264 Conn. 327 | Conn. | 2003
Lead Opinion
Opinion
The defendant, Robert J. Breton, Sr., appeals from a sentence of death imposed after his conviction of capital felony in violation of General Statutes (Rev. to 1987) § 53a-54b (8).
On remand, the defendant elected to hold his new penalty phase hearing before a three judge panel pursuant to General Statutes (Rev. to 1995) § 53a-46a (b) and General Statutes §§ 53a-45 (b)
The panel found that the state had proved beyond a reasonable doubt that the defendant had committed
On appeal, the defendant claims that: (1) after the close of evidence, the panel improperly refused to grant a continuance to investigate newly discovered evidence that the defendant claims would have established a new mitigating factor, namely, that he was suffering from a mental impairment at the time that he killed his father in 1966;
I
FACTS
As set forth in Breton II, supra, 235 Conn. 212-14, the jury reasonably could have found the following facts at the guilt phase of the defendant’s trial. “The defendant and JoAnn Breton were married in 1967, and had one child, Robert Breton, Jr. [Robert, Jr.]. In January, 1987, JoAnn Breton was divorced from the defendant. Shortly after the divorce, JoAnn and Robert, Jr., then fifteen years old, moved to a two-stoiy apartment located in Waterbury.
“On Saturday, December 12, 1987, at approximately 10 p.m., the defendant went to the Sears Castaway Lounge in Waterbury, where he had several drinks. At the lounge, the defendant introduced himself to Mary-Jane Modeen, and the two talked and danced for several hours until the bar closed. At around 2 a.m. on Sunday, December 13, the defendant and Modeen left the bar together and drove in the defendant’s truck to his apartment. They remained in the defendant’s apartment for only a few minutes, however, because the defendant told Modeen that he had to go some place else. The defendant thereupon drove Modeen home.
“After dropping Modeen off at her home at around 2:45 a.m., the defendant drove to the apartment complex
“Robert, Jr., was asleep in his bedroom when he was awakened by his mother’s cries for help. At some point prior to his mother’s death, Robert, Jr., entered her bedroom, where he, too, was attacked by the defendant. Although bleeding from a gash on his right forearm and severe cuts on his hands and fingers, Robert, Jr., escaped from the bedroom to a nearby landing area between the first and second floors, and then proceeded down the stairway to the first floor. The defendant pursued Robert, Jr., down the stairs, overtaking him at the bottom of the staircase. The defendant then resumed his attack on Robert, Jr., repeatedly stabbing him in the face, chest, shoulder and neck. Robert, Jr., as did his mother, bled to death from a knife wound that severed his carotid artery.
“After the killings, the defendant left the apartment. Later that Sunday evening, he went to work at the Somers Thin Strip Company. On Monday morning, December 14, the defendant met a friend and coworker, Domenic Aurigemma and the two men drove to JoAnn Breton’s apartment. The defendant went to the front door of the apartment while Aurigemma remained in the defendant’s truck. The defendant quickly returned to his truck and told Aurigemma that the door to the
The following additional evidence was presented at the second penalty phase hearing. Walter Borden, a psychiatrist, testified that he initially had been retained by the office of the chief public defender to perform a forensic psychiatric evaluation of the defendant in connection with the defendant’s first penalty phase hearing. In connection with his evaluation, Borden interviewed the defendant and certain of the defendant’s family members, including his sister, Catherine Bunker, and his aunt, Ruth Breton, and reviewed certain psychological reports and public records pertaining to the defendant. Borden testified at the second penalty phase hearing that, during the course of his review, he learned the following relevant facts.
Public welfare records dating from the time of the defendant’s early childhood indicated that the defendant’s mother, then named Hazel Duffhey, was unable to care for him and that her home was unfit for a child. At a very young age, perhaps when he was as young as one year, the defendant had been placed in an orphanage for a period of time. Family members reported that, when the defendant later was returned to his family, he was emaciated, mute and unkempt and would not allow anyone to touch him.
At the time that the defendant was bom, his mother was not married to the defendant’s putative father,
During the defendant’s childhood, his father was a heavy drinker who became abusive when he drank. He repeatedly threatened to kill the defendant. The defendant’s mother also was an alcoholic. At one point, the defendant found her passed out in the gutter. She appeared to have been beaten. Another time, she killed and dismembered the family’s pet cat and distributed the body parts around the house. When money was not available to purchase alcohol, she would prostitute herself to a package store owner in exchange for drinks. She would then openly taunt her husband about her sexual relations with other men. She also extorted money from her mother-in-law by threatening to harm the defendant and his sister if the money was not provided.
To discipline the defendant, his mother would strip him from the waist down and beat him with a belt on his buttocks and genitals. When the defendant entered his teenage years, his mother habitually lay around the house unclothed and drinking. When he was thirteen, his mother made a sexual advance on the defendant by attempting to grab his penis. At that point, the defendant ran away from home. He later was found by the police and brought back.
When the defendant was sixteen he joined the Navy. He was unable, however, to conform to the structure of naval life or to follow orders, and he was discharged after only two months. He then returned to his mother’s home.
When the defendant was seventeen, he broke into a neighbor’s apartment intending to steal money, but he
After the defendant moved in with his father, the issue of the defendant’s paternity continued to be a source of antagonism between them. When the defendant was eighteen or nineteen, he and his father had a heated argument over the issue, during which his father said that he was going to obtain the defendant’s birth certificate to prove that he was the defendant’s biological father. The birth certificate, however, did not resolve the issue.
After that point, the relationship between the defendant and his father became even more strained. The defendant’s father continued to be a heavy drinker who was abusive, threatening and belligerent toward the defendant, his own mother and others. He habitually carried a knife with him when he left the house.
On December 3,1966,
The defendant’s memory about what happened next was not clear. Borden testified that the defendant told him that he remembered picking up a knife and seeing his father fall, apparently hurt. The defendant did not remember stabbing him, however. The defendant then ran out of the house, found a police officer to whom he indicated that his father had been hurt and brought the officer back to the house. The defendant’s father died of multiple stab wounds to the chest and face. Ultimately, the defendant confessed to the killing. He pleaded guilty to manslaughter and received a suspended sentence. Borden testified that the defendant told him that he did not clearly recall stabbing his father, but admitted that he must have done so.
Shortly after the defendant killed his father, he met his wife, JoAnn Breton. He married her in December, 1967,
Shortly after his marriage, the defendant had begun work at Somers Thin Strip Company. He worked there until 1985, when the company reorganized and he lost his job. The defendant stated to Borden that it was important to him to be a good husband, a good provider and a good parent, unlike his own father. When the defendant was laid off, he became depressed and started drinking heavily and taking pills. The relationship between him and his wife worsened.
On Mother’s Day, 1986, the defendant and his wife had a fight over whether to visit his wife’s mother or the grave of the defendant’s mother. The defendant became very angry and challenged his wife to leave him. She did. Divorce proceedings were initiated in July, 1986, and were finalized in January, 1987.
During this period the defendant continued to become more depressed and to drink heavily. He also took the prescription drugs Desoxyn and Fiorinal. Desoxyn is an amphetamine with a potent stimulant effect. Borden testified that it was the worst medication that could have been prescribed for. the defendant because it would have exacerbated his depression and
Borden testified that the defendant reported to him that he was extremely depressed during the month of December, 1987. His birthday, the anniversary of his father’s death and his wedding anniversary all occurred in that month. It would have been his twentieth wedding anniversary that year.
The defendant had numerous contacts with his former wife beginning on or about December 9, 1987. He brought roses to her place of work, purchased a favorite wine for her, handled a motor vehicle registration problem, brought suitcases to her house for a trip to Florida that she had planned for herself and their son later in the month, hand-delivered a late child support payment and brought her a ling that she had requested. Borden testified that it was his belief that the defendant took these actions in hopes of reconciling with his former wife.
On December 12, 1987, the defendant went to his former wife’s house in connection with one of these tasks. While there, he took her keys. That evening, the defendant went to a bar. He met a woman there, as we previously have noted, and took her back to his house, where he attempted unsuccessfully to have sexual intercourse with her. At some point, he took the woman home and then returned to his own house. He then noticed the keys that he had taken from his former wife’s house and decided to return them to her and to try to talk to her. By then, it was very early in the morning of December 13.
Borden testified that his understanding of the events that happened next was based on an interview with the defendant on February 20, 1988. The defendant told him that, as he parked the car in the parking lot outside
Borden testified that, at tMs point in the narrative given by the defendant during the interview on February 20, 1988, the defendant’s demeanor changed dramatically. He began crying, sweatmg and trembling. In tMs agitated state, the defendant reported to Borden that he had been trying to keep Ms former wife from yelling, not trying to hurt her. He recalled pushing her face down, wrestling on the bed with her and falling onto the floor. He found himself sitting on top of her and Mtting her to keep her from yelling. She continued to scream to “Bobby” that someone was trying to rape her.
At some point a light went on m the hall next to the bedroom. When the defendant looked up he saw someone standing in the doorway. The defendant did not know who it was. At that point, the defendant took the knife in Ms hand. Borden testified that the defendant’s description of Ms feelings at that time were “very similar [to those that he had described having at the time of] the death of Ms father where he described himself recalling, seeing the hand, Ms hand and the
The defendant reported to Borden that he did not recognize the person in the doorway. He said to his former wife that it was not “Bobby,” but she said that it was. The person in the doorway then said something to the defendant. The defendant reported to Borden that he believed that the words were, “Dad, I love you.” At that point, the defendant saw his own arm go out and hit the person in the doorway. He could not clearly see the person he was striking because the light was behind that person.
Borden testified that, during this part of the defendant’s narrative to him, the defendant was extremely emotional, trembling and crying and appeared to be racked and tormented by his recollection. Borden testified that it was his impression that the defendant was “back in that room” as he reported the events. The defendant reported that he hit the person in the doorway and saw something gushing out of his neck or head and heard something gasping and gurgling. At that point, the defendant recognized his son.
The defendant then heard his former wife calling him and he returned to the bedroom. She asked the defendant, “[W]hy, Bob?” The defendant then grabbed her hair and felt his hand hit her. He heard gurgling and then a crash. He left the bedroom and, as he started down the stairs, saw his son lying at the bottom of the stairs on the floor, shaking. At that point, he went back into the bedroom and knelt next to his former wife, who was lying on the floor and asked, “[W]hy, why.” He told her that he just wanted to talk, but then he hit her with his hand again.
Borden testified that, at this point in the interview, the defendant said, in reference to what happened next,
Borden testified that, while the defendant was reporting this portion of the narrative, he was saying, “[W]hy do I remember so much? Why do I have to remember?” and “[W]hy, why, why.” He also continued to cry and to be in an extreme emotional state. After describing his last act, however, his demeanor changed instantaneously, as if he had awoken from a nightmare. Borden testified that he could never persuade the defendant to talk about the events surrounding the murders again. He testified that the defendant’s demeanor during the interview indicated agony and remorse.
During subsequent interviews, the defendant continued to report to Borden that he felt that his hand was not part of him and that it was his hand that had done these things, not him. He indicated that he wished that he could have cut it off. He also indicated that, for years, he had believed that his grandmother might have killed his father. Borden testified that the defendant’s experience of his hand as not being a part of himself was an example of the depersonalization that borderline personalities are prone to experience. Borden also testified that depersonalization is a defense mechanism developed by children who have been subjected to chronic severe abuse. As adults, such persons are prone to go into a dissociative state under severe stress.
Borden testified that, in his opinion, at the time of the offense, the defendant’s ability to conform his conduct to the requirements of the law was significantly impaired; his mental functioning was significantly impaired; he suffered from a mental disease or defect,
II
CLAIMS RELATED TO NEWLY DISCOVERED EVIDENCE
We next consider the defendant’s claim that the trial court improperly refused to grant a continuance to allow him to introduce testimony by his expert witness, based on newly discovered evidence, namely, two transcripts of legal proceedings pertaining to the 1966 killing of the defendant’s father, that would have bolstered the expert’s previous testimony and supported the unconsidered mitigating factor that the defendant had a mental impairment at the time that he killed his father. The defendant originally claimed in his brief to this court that the newly discovered evidence established that the defendant was insane at the time that he murdered his former wife and son. At oral argument before this court, however, the defendant withdrew this claim. The defendant also withdrew his claim that the state improperly failed to disclose in a timely manner the allegedly exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Although these last two claims have been withdrawn, we consider all of the claims together in order to provide context for the defendant’s withdrawal of the two claims and our review of the remaining claim that the trial court improperly denied his motion for a continuance. We conclude that the trial court did not abuse
The following additional facts and procedural history are relevant to the defendant’s claim. On Wednesday, April 16,1997, during the second penalty phase hearing, the state’s attorney asked Borden on cross-examination whether he would change his opinion as to the defendant’s mental condition if he knew that: (1) the defendant’s grandmother had testified at the December 12, 1966 inquest into the death of the defendant’s father that the defendant had taken a knife into the bathroom when escaping from his father and had come out with the knife in his hand and attacked his father; and (2) the defendant had testified at the inquest that his father had hit him only once during the entire time that they had lived together.
On the morning of April 17, 1997, counsel for the defendant asked the state’s attorney whether there were any other transcripts pertaining to the events surrounding the death of the defendant’s father. In response to this request, the state’s attorney provided
The sentencing phase hearing reconvened on Tuesday, April 22, 1997. At the end of the morning session, defense counsel rested his case. At that time, he renewed a prior motion to impose a life sentence on the basis of the insufficiency of the aggravating factor. The motion was denied. He then moved to impose a life sentence on the basis of the state’s failure to disclose exculpatory evidence, namely, the 1966 transcripts. Defense counsel also requested a two to three week continuance to allow the defense experts to review the transcripts and to prepare a supplemental report. He indicated that he needed the continuance “to simply have the experts review the materials of our investigation, review it and see—we’re finding out in reviewing it that other people exist. That’s where some of these people came from. There may be other people out there that can corroborate the doctor’s opinion.” He also stated that “[o]ver the weekend and yesterday in preparation for argument I was preparing to argue from the transcript to show the corroboration for Dr. Borden and in our family history background evidence and it occurred to me that if this was not in evidence for the jury to consider in the last trial then when you look if anyone has the opportunity to ever look and I have at the closing argument from the last trial and the transcript from the last trial this never came up and it’s critical and it’s crucial.” Finally, defense counsel stated
The panel denied both the motion for life sentence and the request for a continuance, stating that the 1966 transcripts would have no effect on the conclusions or testimony of the experts other than to corroborate them, that the panel now had the transcripts before it as exhibits, and that there had been neither a claim of prejudice nor a request for a continuance until after the conclusion of evidence. The panel then proceeded to hear closing arguments and, as previously noted in this opinion, ultimately imposed the death sentence.
On January 26, 1998, the defendant filed this appeal. On May 14, 1999, the defendant filed a petition for a new trial of both the guilt phase and the penalty phase of the prosecution on the basis of the newly discovered transcripts. In that petition, the defendant represented that Borden recently had reviewed the transcripts and had concluded in a written report dated March 9,1999
Oral argument in the defendant’s direct appeal was held before this court on January 8, 2002. At that argument, this court asked counsel for the defendant and counsel for the state why the court should not continue the appeal proceedings and order an immediate hearing on the petition for a new trial. Counsel for the defendant argued that this court should continue the appeal pro
After the commencement of the proceedings on the petition for a new trial, counsel for the defendant met with Borden to prepare him to testify at those proceedings. At that meeting, Borden indicated that, despite his statements in the March 9, 1999 report, he would not testify that, on the basis of his review of the 1966 transcripts, he had an opinion that differed from the opinion he had offered during the second penalty phase hearing. Rather, he indicated that the transcripts merely raised new questions about the defendant’s mental state at the time of the offense and that further testing would be necessary in order to determine whether the defendant had been insane at the time.
At a May 9,2002 hearing on the petition for a new trial, counsel for the defendant reported this development to the trial court. He indicated that he did not believe that Borden’s testimony would support the petition for a new trial. He also requested a continuance so that supplemental psychological testing of the defendant could be conducted to determine whether there was a valid basis for the petition. The trial court denied the request. The state immediately moved to dismiss the petition for new trial with prejudice. Before the trial court ruled on that motion, however, the defendant withdrew his petition with prejudice.
Thus, as the defendant has framed his claim, he implicitly suggests that his theories as to the nature and materiality of Borden’s prospective testimony, as
As a preliminary matter we address the standard of review. We previously have recognized that “[t]he determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. ... A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. . . . Our role as an appellate court is not to substitute our judgment for that of a trial court that has chosen
The defendant argues, however, that the eighth and fourteenth amendments to the United States constitution, article first, §§ 8 and 9, of the Connecticut constitution and General Statutes (Rev. to 1995) § 53a-46a (c) and (d)
We now turn to the merits of the defendant’s claim. We have recognized that the factors to be considered by a trial court in ruling on a motion for a continuance include “the likely length of the delay . . . the impact of delay on the litigants, witnesses, opposing counsel and the court . . . the perceived legitimacy of the reasons proffered in support of the request . . . [and] the likelihood that the denial would substantially impair the defendant’s ability to defend himself . . . .” (Internal quotation marks omitted.) State v. Delgado, supra, 261 Conn. 714. “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” (Internal quotation marks omitted.) Id. Finally, we have recognized that “a trial court does
In Delgado, we reviewed a claim by the defendant that the trial court improperly had denied his request for a thirty day continuance in order to respond to new evidence presented by the state during the course of the trial. Id., 709-10. The defendant had been charged with sexual assault and the new evidence consisted of a medical report indicating that the victim had experienced dreams involving violence and sex. Id., 711-12. When questioned by the trial court as to the purpose of the continuance, defense counsel responded “ ‘I’m not sure I am—other than to protect my client’s interest ....’” Id., 712. The trial court denied the request and the Appellate Court affirmed the denial. Id., 713-14. Thereafter, we granted the defendant’s petition for certification to appeal to this court. State v. Delgado, 258 Conn. 913, 728 A.2d 1248 (2001).
On appeal, we determined that the reasons proffered by defense counsel in support of the motion for continuance were merely speculative. State v. Delgado, supra, 261 Conn. 715-16. Accordingly, we concluded that the trial court had not abused its discretion in denying the motion. Id., 717; see also State v. Walker, 215 Conn. 1, 11, 574 A.2d 188 (1990) (court did not abuse discretion in denying untimely request for continuance to photograph crime scene and interview eyewitness where, “other than speculation on appeal, there is no reason to believe that the denial of the request impaired the defendant’s ability to present a defense”); State v. Aillon, 202 Conn. 385, 395, 521 A.2d 555 (1987) (court did not abuse discretion in denying request for continuance where defendant “failed to make any evidentiary showing that [witness’] testimony would have aided the defense in any manner”).
Moreover, we note that, although the defendant obtained the 1966 transcripts during the course of presenting his case, for tactical reasons, he did not request the continuance until after he had rested his case. We previously have recognized that “ [i]f the trial court finds that inadvertence or some other compelling circumstance . . . justifies a reopening and no substantial prejudice will occur, it is vested with the discretion to reopen the case. ... In order for the trial court’s exclusion of the proffered evidence to constitute a sixth amendment violation, however, [i]t must be shown . . . that the . . . evidence was of such importance to the achievement of a just result that the need for admitting it overrides the presumption favoring enforcement of the state’s usual trial procedures. ... A greater prejudice must be shown by the omission of the evidence in question than in refusals to receive evidence offered in the regular course of a trial.” (Citations omitted;
The defendant argues, however, that the standard for determining whether mitigating evidence in death penalty cases is excludable as cumulative is more lenient to the defendant than the standard applied in other contexts. In support of this claim, he relies on Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986), and State v. Ross, 230 Conn. 183, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995). In Skipper, the United States Supreme Court reviewed a claim that the trial court improperly had excluded the testimony of two jailers and a regular visitor to the jail to the effect that the defendant “had ‘made a good adjustment’ ” to prison life. Skipper v. South Carolina, supra, 3. The trial court had concluded that the ability of the defendant to adjust was excludable as irrelevant, and the Supreme Court of South Carolina had affirmed that determination. Id. On the defendant’s appeal to the United States Supreme Court, the state argued in part that the evidence was properly excluded because it was merely cumulative of testimony by the defendant and his former wife that his conduct in jail was satisfactory and that the defendant would not cause trouble in the future. Id., 7-8. The Supreme Court reversed the judgment of the South Carolina Supreme Court, concluding that “characterizing the excluded evidence as cumulative ... is implausible on the facts before us.” Id., 8. Specifically, the court concluded that the testimony of the jailers would have been given much greater weight by the jurors than the self-serving testimony that the defen
In Ross, the other case relied upon by the defendant, this court reviewed a claim that the trial court improperly had excluded both a letter from a court-appointed psychiatric expert who had evaluated the defendant for the state, which reflected the fact that the expert had changed his position about the mitigating role of the defendant’s psychopathology, and a report by the same expert that corroborated the diagnosis of the defendant contained in the reports of defense experts. State v. Ross, supra, 230 Conn. 266-67. On appeal, the state argued that the evidence properly had been excluded because it was unauthenticated hearsay and unreliable. Id., 267-68. After concluding that relevant mitigating evidence is admissible even if its reliability cannot be tested by the state, this court determined that the excluded report “corroborated the defense psychiatric experts’ opinions that the defendant suffered from sexual sadism.” Id., 272. We also determined that the report “could have appeared more objective and worthy of belief than evidence adduced by the defendant from his own expert witnesses.” Id. Finally, we concluded that, because the excluded evidence was “unique” and
We conclude that, contrary to the defendant’s claim, neither Skipper nor Ross applied a more lenient standard for determining whether evidence is cumulative than that applied in other contexts. Evidence that has much greater weight than evidence already introduced; see Skipper v. South Carolina, supra, 476 U.S. 8; or unique evidence; see State v. Ross, supra, 230 Conn. 273; is not cumulative in any context. In any event, we have concluded in this case that the panel’s conclusion that the 1966 transcripts would have no effect on the conclusions or testimony of the experts other than to corroborate them was reasonable in light of the record before it and, therefore, its exclusion of the transcripts as cumulative was proper. Accordingly, even if it is assumed that Skipper stands for the proposition that the standard for determining whether evidence was properly excluded as cumulative in death penalty cases is whether the evidence might affect the sentencer’s decision to impose the death sentence, that standard was met.
Ill
CLAIM RELATING TO PROVED FACTUAL BASIS OF MITIGATING CLAIMS
The defendant next claims that the panel arbitrarily rejected as mitigating under the facts and circumstances of this case the defendant’s proved factual claims that he: (1) was neglected, abandoned and the product of an abusive family unit during his childhood; (2) had been a model prisoner at all times since his incarceration for the murders; (3) dropped out of school at age sixteen; and (4) was a good employee and a productive worker. We disagree.
As a preliminary matter, we address the reviewability of this claim. The defendant concedes that he did not preserve the claim by moving to impose a life sentence on the ground that he had established a mitigating factor. He therefore seeks appellate review under the Golding doctrine; see State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); the plain error rule; Practice Book § 60-5; and the “special capital reviewability rule.”
We conclude that the record is adequate for review and that, in view of the constitutional requirement under the eighth and fourteenth amendments that the death penalty not be “imposed by the fact finder in a wanton, freakish, aberrant, or wholly arbitrary and capricious manner”; State v. Webb, 238 Conn. 389, 500, 680 A.2d 147 (1996); the claim is of constitutional magnitude. Moreover, we note that the state has not argued that the claim is unreviewable and has briefed the claim on its merits. Accordingly, we will review the claim. We conclude, however, that the defendant cannot prevail under the third prong of Golding.
We begin our analysis by considering the appropriate standard of review. We previously have recognized that, “[u]nder our death penalty statute, the defendant must convince the jury not only of the facts underlying an alleged nonstatutory mitigating factor, but also that the factor ‘is mitigating in nature, considering all the facts and circumstances of the case,’ such that ‘in fairness and mercy, [it] may be considered as tending either to extenuate or reduce the degree of his culpability or blame for the offense or to otherwise constitute a basis for a sentence less than death.’ General Statutes § 53a-46a (d).” Breton II, supra, 235 Conn. 229. We also have recognized that, “[although our review of the evidence in mitigation of the death penalty is a heightened one
The defendant concedes that this standard of review applies to the panel’s determination of the facts underlying his claimed mitigating factors. He claims, however, that the panel’s determination of whether those facts are mitigating in nature is subject to de novo review and that this court must independently exercise its own normative moral judgment in considering that issue. The defendant makes the following two arguments in support of his claim: (1) plenary review of a sentencer’s normative determination is required to enforce “the conscience of the community on the ultimate question of life or death”; Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968); and (2) the need for and practicality of such review is demonstrated by the practice of other jurisdictions. We are not persuaded.
With respect to the defendant’s first argument, we note that Witherspoon requires only that a state’s death penalty scheme must be administered so as to ensure that the sentence of death reflects the conscience of the community.
With respect to the defendant’s argument based on cases from other jurisdictions, we note that none of the cases cited by the defendant addresses the specific issue that he raises here or suggests that the review that he seeks is constitutionally required. Rather, the cases merely support the undisputed proposition that appellate review of a death sentence must be sufficiently rigorous to ensure that the death sentence is not excessive, disproportionate, wanton or freakish; see Jurek v. Texas, 428 U.S. 262, 276, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976) (judicial review that “serves to assure that sentences of death will not be ‘wantonly’ or ‘freakishly’ imposed” satisfies constitution); and indicate that the heightened review that he seeks may be one constitutionally adequate method of ensuring such a result. For example, in State v. Watson, 129 Ariz. 60, 63, 628 P.2d 943 (1981), the court concluded that “[t]he question before us is not whether the trial court properly imposed the death penalty, but whether, based upon the record before us, we believe that the death penalty should be imposed. A finding merely that the imposition of the death penalty by the trial court was ‘factually supported’ or ‘justified by the evidence’ is not the separate and independent judgment by this corut that the death penalty warrants. This is in keeping with the mandate of the United States Supreme Court that we must review carefully and with consistency death penalty cases and not engage in a ‘cursory’ or ‘rubber stamp’ type of review. Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976). The death penally statute must not be applied freakishly or unevenly.” Cf. Terry v. State, 668 So. 2d 954, 965 (Fla. 1996) (“[o]ur
Contrary to the defendant’s argument, none of these cases indicates that the constitutional requirement for a careful review of a death sentence to ensure that it is applied appropriately and consistently necessarily entails a de novo determination by the reviewing court as to whether facts proved by the defendant in support of claimed mitigating factors are mitigating in nature. Accordingly, we decline to revisit our previous conclusion that proportionality review pursuant to General Statutes (Rev. to 1995) § 53a-46b, in conjunction with our heightened review of the evidence of aggravation and mitigation; see Breton II, supra, 235 Conn. 228—29; provide a constitutionally adequate method of ensuring that the death penalty statute is not applied freakishly or unevenly. See State v. Webb, supra, 238 Conn. 494-505. We therefore reject the defendant’s claim that the panel’s determination that the facts proved by him in support of his claim of mitigation were not mitigating in nature should be subject to de novo review.
We conclude instead that the appropriate standard for our review of the sentencer’s determination of whether proved facts are mitigating in nature is “whether the defendant’s proof of a mitigating factor was so clear and so compelling that the [sentencer],
We now turn to a review of the defendant’s evidence in support of mitigation. In addition to Borden’s testimony, as previously summarized in this opinion, the defendant presented the testimony of a clinical psychologist, Anne M. Phillips, the defendant’s sister, Catherine Bunker, his brother-in-law, John Bunker, his former coworkers, Robert Trumfio and Aurigemma, counsel supervisor for corrections, Anne Coumoyer, and correction officers Craig Bergeron, Todd Case, Carl Stelmack and Timothy John Carroll to establish his claimed mitigating factors.
Phillips testified that she subjected the defendant to a number of diagnostic tests and her diagnostic impression was that the defendant had a mixed personality disorder with paranoid, schizoid and depressive fea
The defendant’s sister, Catherine Bunker, testified that she was four years younger than the defendant; their grandmother, Eva Breton, told her that the defendant had been sent to an orphanage when he was about one year old and had been very badly abused there; the home in which she and the defendant were raised was
The defendant’s brother-in-law, John Bunker, testified that he met the defendant when the defendant was still married to his wife; the defendant seemed to be easygoing and an “[outstanding citizen”; after the defendant separated from his wife, he became depressed and holidays became difficult for him; the defendant lost weight after the separation; the defendant drank after the separation; and he had heard that the defendant had had a bad childhood.
Trumfio testified that he was an employee at Somers Thin Strip Company, where the defendant worked; the defendant was hired in an entry level position in 1968 and was promoted to foreman in 1978 on the basis of his good work performance; the defendant supervised thirty-five to forty people as foreman; the defendant left the company in 1985 when the company was required to downsize and offered him the choice of being laid off or returning to an entiy level position; the defendant was rehired in 1987 because he had been a productive and industrious worker; Trumfio noticed at that time that the defendant was more withdrawn than he previously had been; and the defendant never had any disciplinary reports against him, showed up for work regularly and fulfilled his daily work requirements.
Aurigemma testified that he was a former employee of Somers Thin Strip Company; he has known the defendant for over twenty years and considered himself to be the defendant’s best friend and probably his only friend; at some point in 1987 the defendant came to his house appearing thin, drawn, weary and worn out, and told Aurigemma that he was getting a divorce; the defendant at that time was depressed and had lost his ambition; and the defendant, after his separation from his
Bergeron testified that he was a correction officer at Osborn correctional institution for several years when the defendant was also there; the defendant caused no trouble as an inmate; and the defendant was the only prisoner on death row who was allowed the privilege of being a “tier man,” or the person responsible for keeping the unit clean. Coumoyer testified that she was the defendant’s treatment counselor at Somers prison during 1994 and 1995 and found the defendant to be trustworthy, respectful, quiet and cooperative. Case testified that he was a correction officer at Northern correctional institution and that he has known the defendant for approximately two and one-half years; he found the defendant to be quiet, cooperative, respectful, trustworthy and a model prisoner; and other prisoners on death row have assaulted each other and have been disrespectful to the officers. Stelmack testified that he was a correction officer at Northern correctional institution and that he has known the defendant for about two years; to his knowledge, the defendant has never caused any trouble in prison; the defendant works as a cashier and as a “tier man” for a wage of about eighty cents per day; and the defendant has had no disciplinary tickets during the entire period of his incarceration. Carroll testified that he was a correction officer at Northern correctional institution, that he has known the defendant since 1989 and that the defendant is quiet, cooperative, respectful, nondemanding and trustworthy.
The defendant also introduced as exhibits at the second penalty phase hearing the transcripts of the testimony given at the first penalty phase hearing by correction officers Christopher Pelkey and Edward Zelek and by Borden. The testimony of Pelkey and Zelek was substantially similar to the testimony of the corree
The state relied solely on its cross-examination of the defendant’s witnesses to rebut the defendant’s mitigating evidence. Borden testified on cross-examination that he had obtained the defendant’s family background information primarily from interviews with the defendant’s sister and aunt, not from the defendant himself; he assumed that the defendant’s sister did not want him to be sentenced to death; his interviews of the sister and aunt lasted approximately one hour each; he assumed that they knew that he was acting at the request of the defendant’s attorneys; he had obtained the information about the defendant’s being placed in an orphanage from Ruth Breton and that he did not know how long the defendant had been placed there; he had obtained information about the strip poker games from Ruth Breton, not from the defendant, and he could not recall if she indicated whether the defendant had been present; he had obtained the information about the dismemberment of the family cat from Catherine Breton, not from the defendant; neither the defendant nor his family members told Borden about his arrest for breaking into his former wife’s house in July, 1986; July, 1986, was an especially bad month for the defendant because his divorce proceedings had been initiated that month; although Borden was interested
Phillips testified on cross-examination that her psychological evaluation of the defendant was based on five tests and two interviews of the defendant; the interviews lasted approximately one and one-half hours combined;
Catherine Bunker acknowledged on cross-examination that her grandmother, Eva Breton, had told her about the strip poker games but that she had not told her that she, Eva, was present at the games; she did not know if the defendant ever learned about the incident with the pet cat; their grandmother was a very kind, gentle and loving woman who showed a great deal of affection for both Catherine and the defendant as they were growing up; the defendant dropped out of school when he was sixteen; the defendant had friends during his teenage years; she had never heard of the defendant’s having trouble with people at his workplace; the defendant’s wife obtained a restraining order against the defendant after their separation; the defendant had started seeing a psychologist under court order; she was not aware that the defendant had been arrested for breaking into his wife’s house after the
Catherine’s husband, John Bunker, testified on cross-examination that, before the defendant’s separation from his wife, he seemed to be a “regular guy” who worked full time and socialized with people and that there was nothing bizarre or abnormal about his behavior. Trumfio also acknowledged on cross-examination that he had never observed any bizarre or strange behavior by the defendant that would suggest that he required psychological help.
Aurigemma testified on cross-examination that he and his family were very close to the defendant and that he had never noticed any signs of mental instability in him; on the evening of December 13, 1987, after the defendant had committed the murders, he called Aurigemma and said that he needed his help to get his truck, which was stuck at the reservoir in Thomaston; the next day, the defendant went to Auiigemma’s house and together they then went to a coffee shop; while there, the defendant indicated that he had been trying unsuccessfully to reach his former wife, that he was worried that a man that she had been seeing may have tried to hurt her and that he wanted to check on her; they drove to the apartment where the defendant’s former wife lived and the defendant noticed blood on the doorknob; the defendant called the police, who came to the apartment and found the victims’ bodies; and, at that point, the defendant became visibly upset.
The defendant claims that, in light of this evidence, it was arbitrary for the panel to reject the mitigating nature of the proved facts that the defendant was
It is also clear that the panel was not compelled to conclude that the defendant’s dropping out of high school, in and of itself, was mitigating. There was no evidence that that decision was forced upon the defendant or resulted in any long-term social or economic consequences that, in turn, set the stage for his commission of the offense. Likewise, the defendant’s good behavior in prison after he committed the murders did not compel a finding that the defendant should not be held fully responsible for his crime. Finally, we conclude that it was not arbitrary for the panel to acknowledge the defendant’s successful employment career but to conclude that that did not reduce his culpability. Lack of success in the employment setting is not a prerequisite to being held fully responsible for two horrific murders. In summary, we conclude the defendant’s proof of the mitigating nature of the proved factual basis of the defendant’s claims of mitigation was not “so clear and so compelling that the panel, in the exercise of reasoned judgment, could not have rejected it.” Breton II, supra, 235 Conn. 229.
IV
CLAIM RELATED TO THE PANEL’S REJECTION OF EXTREME EMOTIONAL DISTURBANCE AS MITIGATING FACTOR
We next address the defendant’s claim that his proof of a mental and volitional impairment resulting in extreme emotional disturbance was so compelling that the panel could not have rejected it as a nonstatutory mitigating factor. The defendant’s claimed mitigating factor was that “[a]t the time of the offense, [the defen
We first note that we do not agree that the defendant met the requirements for the extreme emotional disturbance defense to murder set forth in § 53a-54a (a). In order to establish a defense under that statute, the defendant would have been required to establish that he acted “under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be . . . .” General Statutes § 53a-54a (a). We previously have rejected a claim that the “unique mental and emotional characteristics [of the
In this case, the defendant argues that his underlying mental illness was exacerbated by his separation and divorce from his former wife and caused him to suffer extreme emotional disturbance when he learned that she and their son had planned a vacation trip to Florida in December, 1987.
Nevertheless, we recognize that, as a general matter, a defendant may attempt to establish that an extreme emotional disturbance resulting from a debilitating psychological disorder reduced his culpability for a capital offense, even though it did not have an objectively reasonable explanation or excuse so as to constitute a
V
THE PANEL’S PURPORTED FAILURE TO CONSIDER CUMULATIVE IMPACT OF MITIGATING EVIDENCE
The defendant next claims that the panel improperly failed to consider the cumulative impact of all of his
At the sentencing hearing, the panel stated that “the court finds proven by a fair preponderance of the evidence the following: number one, that the defendant was neglected, abandoned and the product of an abusive family unit during his childhood; number two, that the defendant has been a model prisoner at all times since his incarceration for the murders; number three, that he dropped out of school at age sixteen; and number four, that he was a good employee and a productive worker. The court further finds, however, that none of these factors either alone or in combination constitutes a mitigating factor considering all the facts and circumstances of this case.” The defendant argues that “these factors” can only be understood to refer to the four mitigating factors the factual bases of which the defendant had proved, and, therefore, that the panel’s statement demonstrates that it improperly failed to consider the cumulative effect of other mitigating evidence that, considered in isolation, it did not find to be convincing.
Among the defendant’s nonstatutory mitigating factors, however, were the following catchall categories: “[t]hat any of the above listed factors either taken individually or in combination with any other factor, while not an excuse for the murder of [JoAnn] Breton and Robert Breton, Jr., but in fairness or mercy provides a reason for a sentence of life without the possibility of release”; “mercy”; that “[considerations of fairness and mercy constitute a basis for a sentence of life without the possibility of release”; and that “[d]eath is not the appropriate sentence for [the defendant].” We will not presume that, in determining that the defendant had proved only the factual underpinnings for each of the
VI
THE USE OF MITIGATING EVIDENCE TO PROVE AGGRAVATION
The defendant next claims that the panel improperly considered mitigating evidence produced by the defendant as proof of the aggravating factor. The state counters that we determined in Breton II, supra, 235 Conn. 256-59, that it was not improper for the state to rely on mitigating evidence to prove an aggravating factor and that the defendant has not provided us with any reason to revisit the question. We agree with the state.
As a preliminary matter, we address the reviewability of this claim. The defendant argues that this issue is reviewable on appeal because it “was raised and decided in the trial court . . . ,”
The following additional facts are relevant to this claim. As we previously have noted, at the defendant’s second penalty phase hearing, the defendant offered Borden’s expert testimony in support of his claims in mitigation. At the close of evidence, the state requested a ruling from the panel as to whether the state could argue evidence offered in mitigation as proof of the aggravating factor. The following colloquy took place on April 18, 1997:
“Judge Damiani: So, the . . . [issue] you’re presenting ... is [whether] the evidence being submitted on mitigation by [the] defendant which meet[s] the rules of evidence can be used as an aggravating factor?
“[Mr. John Connelly, State’s Attorney]: Or argued as an aggravating factor. ... I guess ultimately it will be determined whether or not the court can use it as an aggravating factor.
*387 “Judge Damiani: If you are allowed to argue it—
“[Connelly]: That’s what I mean.”
On April 22,1997, the panel ruled that the state could argue, and the panel could consider, evidence submitted in mitigation as proof of the aggravating factor, within the boundaries set forth by Breton II, supra, 235 Conn. 256-58.
There are three prongs to the defendant’s argument in the present case. First, the defendant argues that we should overrule Breton II and hold that the federal constitution prohibits the use of evidence offered in mitigation as proof of an aggravating factor. Second, the defendant contends that we should overrule Breton II because its holding is inconsistent with our statutory capital sentencing scheme. Finally, the defendant maintains that even if we were to reaffirm our holding in Breton II, in the present case, in finding an aggravating factor the panel went beyond the scope of that holding and considered evidence offered in mitigation that did not meet the requirements of the rules of evidence. We decline the defendant’s invitation to overrule Breton II, and we conclude that the panel did not exceed the scope of that holding in considering mitigating evidence as proof of the aggravating factor.
First, in asking us to overrule Breton II, the defendant contends that the eighth amendment to the federal constitution prohibits use of evidence of mental illness and an abusive background offered in mitigation to be considered as proof of an aggravating factor. Upon a
Second, the defendant contends that use of evidence offered in mitigation as proof of an aggravating factor is inconsistent with the allocation of the burdens of proof under our statutory capital sentencing scheme. The defendant contends that under our statutory scheme, evidence offered in mitigation must be proved by a preponderance of the evidence, while evidence of an aggravating factor must be proved beyond a reasonable doubt. The defendant maintains that this allocation of the burdens of proof will be undermined if the state is allowed to use evidence offered in mitigation as proof of an aggravating factor. We disagree.
This court addressed the allocation of the burdens of proof under our capital sentencing scheme in State v. Daniels, 207 Conn. 374, 384-85, 542 A.2d 306, after remand for articulation, 209 Conn. 225, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989). In that case, we concluded that the defendant must prove a mitigating factor by a preponderance of the evidence. The defendant need not prove each piece of evidence offered in mitigation by a preponderance of the evidence, however. Rather, all of the evidence offered in mitigation, taken together, must prove the mitigating factor by a preponderance of the evidence. On the other hand, the state must prove the aggravating factor beyond a reasonable doubt. This
Finally, the defendant contends that even if we decline to overrule Breton II, the panel in the present case went beyond this court’s holding in Breton II when it considered all of the evidence offered in mitigation, regardless of its admissibility under the rules of evidence, in deciding whether an aggravating factor existed. We disagree. Contrary to the defendant’s contention, the panel clearly stated that its ruling that the state could rely on mitigating evidence to support its aggravating factor was limited to “evidence being submitted on mitigation by [the] defendant which meet[s] the rules of evidence,” pursuant to Breton II. (Emphasis added.) Our careful review of the record reveals nothing to suggest that the panel went beyond that ruling by allowing the state to rely on mitigating evidence that was otherwise inadmissible.
Accordingly, we affirm our holding in Breton II and conclude that there is no constitutional bar to using
VII
THE PANEL’S PURPORTED FAILURE TO ARTICULATE THE FACTUAL BASIS OF ITS VERDICT
The defendant next claims that the panel violated his rights under the eighth amendment and the due process clause of the federal constitution when it failed to articulate the factual basis of its verdict pursuant to Practice Book, 1997, § 4059 (now § 64-1).
The following additional facts are necessary for resolution of this claim. On April 23, 1997, the panel, pursuant to General Statutes (Rev. to 1995) § 53a-46a (e),
On December 31, 1998, the defendant filed a motion for articulation of the factual and legal basis for the panel’s oral verdict.
This court previously has had occasion to consider the circumstances under which an articulation of a special verdict in a death penalty case is required. In Cobb II, the panel returned a special verdict similar to the verdict rendered by the panel in this case. Specifically, as to the mitigating factors, the panel in Cobb II stated: “[W]e find that the defendant has not proven by a fair preponderance of the evidence that at the time of the murder of [the victim], the defendant[’s] . . . mental capacity was significantly impaired, nor his ability to conform his conduct to the requirements of law was significantly impaired. Further, we find that the defendant has not proven by a fair preponderance of the evidence that the defendant was under the influence of emotional disturbance at the time of the offense, or that he suffered or suffers from a mental disorder. We have considered all of the defendant’s list of proposed mitigating factors submitted on August 5, 1991, and all evidence that was presented to us in mitigation. Considering all of the facts and circumstances of this case, we do not find the defendant has proven by a fair preponderance of the evidence any factor that can be considered as mitigating.” (Internal quotation marks omitted.) Cobb II, supra, 251 Conn. 451-52.
The defendant in Cobb II claimed that this verdict did not comply with Practice Book § 64-1 (formerly § 4059). Id., 451. We disagreed, reasoning that, “substan
Likewise, we conclude in the present case that the panel stated all that it was required to state. The special verdict adequately stated its factual basis and the trial court record is adequate for informed appellate review. There is nothing ambiguous in the panel’s special verdict, and it is not incomplete. Accordingly, we conclude that no further articulation of the panel’s special verdict is required.
VIE
CLAIM RELATING TO THE DEFENDANT’S REQUEST FOR A HEARING TO CONSIDER RACIAL DISPARITIES IN THE ADMINISTRATION OF THE DEATH PENALTY
We next consider the defendant’s claim that the trial court improperly denied his request for a hearing to determine whether racial disparities in the administration of the death penalty statute violated his constitu
The following facts and procedural history are relevant to this claim. On April 2,1997,
The defendant’s motion for a continuance and the underlying motion for imposition of a life sentence were argued at a hearing on December 5, 1997. At that hearing, the state argued that this court’s statement in State v. Cobb, 234 Conn. 735, 762, 663 A.2d 948 (1995) (Cobb I), that, under § 53a-46b (b) (1), the defendant was required to create a statistical record in the trial court pertaining to his racial disparity claim before presenting the claim on appeal, was dicta because the defendant in that case had not raised a claim under that statute. The state further argued that the trial court had no jurisdiction to hold a hearing because General Statutes (Rev. to 1995) § 53a-46b (b) (1) vests original jurisdiction in the Supreme Court to determine, after a death sentence has been imposed, whether it was the product of “passion, prejudice or any other arbitrary factor . . . .” The state also argued that, even if the trial court were to determine that it had jurisdiction to conduct a presentence hearing on the issue, the defendant was not entitled to a hearing because he had not made and could not make any preliminary showing that the panel’s verdict was a result of an improper passion or prejudice held by the panel, or that the state had acted arbitrarily in prosecuting the defendant. Finally, the state argued that the defendant should have raised the issue long ago. The defendant argued that Cobb I required that the racial disparity question be raised
The next hearing was held on December 19, 1997. At that hearing, the court raised a new jurisdictional question. Specifically, the court noted that, in his first appeal to this court, the defendant had raised a claim under General Statutes (Rev. to 1995) § 53a-46b (b) (3)
The next hearing was held on January 9, 1998. At that hearing, defense counsel again argued that all sentencing issues, including the defendant’s racial disparity claim, were within the scope of the remand on the first appeal. The state rested on its brief and requested that the court proceed immediately with sentencing without holding a hearing on the racial disparity claim. The court concluded that it did not have jurisdiction to consider the defendant’s motion for a continuance and a hearing because the statute “requires a review by the Supreme Court of any death sentence imposed. It’s not an issue related to the purpose of the remand. No sentence has been imposed to this point. Furthermore, claims made pursuant to [§ 53a-46b (b)] are currently pending in the Supreme Court, awaiting resolution of the remand. . . . The matter may ultimately be remanded, as in Cobb [7], for an evidentiary hearing. But, that’s a decision for the Supreme Court to make, since it did indicate in the Cobb decisions that such a remand would not necessarily be appropriate in all cases.” The court then sentenced the defendant to death.
On appeal, the defendant argues that, under Cobb I, supra, 234 Conn. 735, the trial court was required to hold an evidentiary hearing so that the defendant could present statistical evidence in support of his racial disparity claim. He further argues that our remand order in Breton II was sufficiently broad to encompass such a hearing. We conclude that the trial court improperly determined that it did not have jurisdiction to hold a hearing pursuant to § 53a-46b (b) (1). We also conclude,
We begin our analysis of this claim with a review of our decision in Cobb I, supra, 234 Conn. 735. The defendant in that case had moved for enlargement of the class of similar cases that this court could consider in determining whether his death sentence was justified in light of the prohibition against disproportionality provided by § 53a-46b (b) (3). Id., 737. Specifically, the defendant requested that we consider “ ‘all cases prosecuted in Connecticut after October 1, 1973, in which a capital felony could have been charged pursuant to . . . § 53a-46b and which resulted in a homicide conviction, following a plea or trial.’ ” (Emphasis in original.) Id., 738. The defendant argued that this expanded universe of cases was necessary to enable this court to evaluate his claim that race has an impermissible effect on capital sentencing decisions in Connecticut. Id. We rejected the defendant’s claim, concluding that “the legislature did not intend proportionality review to encompass a comparison with all homicide cases prosecuted since 1973 in which a capital felony could have been charged.” Id., 747.
We also concluded, however, that the defendant could have raised his racial disparity claim under § 53a-46b (b) (1). Under that statute, however, “it would have been necessary for the defendant to have made his statistical record in the trial court, and to have subjected it to a full evidentiary hearing, as in [McCleskey v. Zant, 580 F. Sup. 338 (N.D. Ga. 1984), aff'd sub nom. McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987)], before presenting it on appeal. To hold that he could raise this claim on appeal under § 53a-46b (b) (1), without having first created an adequate factual basis in the trial court, would be incorrect for many of the same reasons that we reject his claim under § 53a-46b (b) (3), because it would assume, with
Finally, we concluded in Cobb I that, “even though the defendant has not created a trial record in this case that would permit him to present, in his direct appeal, his statistical claim under § 53a-46b (b) (1) . . . he should be permitted to do so by way of a postappeal habeas corpus petition .... Although ordinarily habeas corpus cannot serve as a surrogate for a claim that could have been presented on direct appeal . . . we conclude that, with respect to the claim that the defendant seeks to present by this motion, he should not be bound by that principle because the scope and meaning of § 53a-46b (b) have remained uncertain and, until now, have been the subject of only one published decision of this court .... Furthermore, the nature of the defendant’s claim of systemic racial bias, and the seriousness and finality of the death penalty, counsel against raising any undue procedural barriers to review of such a claim.” (Citations omitted.) Id., 762-63.
In Cobb II, we reaffirmed our holding in Cobb I that a racial disparity claim “was cognizable under § 53a-46b (b) (1), but must [be] based on a full evidentiary hearing made at trial in the trial court.” Cobb II, supra, 251 Conn. 499. Because the defendant had not made such a record at the trial court, he was required to proceed by way of a habeas petition. Id. In support of this conclusion, we noted “two further aspects of [his]
The trial court in the present case appears to have concluded that, under Cobb I, jurisdiction is vested in this court to determine in the first instance whether an evidentiary hearing on a racial disparity claim under § 53a-46b (b) (1) is required and, if so, to remand the case to the trial court for that purpose. That conclusion is inconsistent, however, with our statements in Cobb I that (1) our initial review of a claim under § 53a-46b (b) (1) requires “evaluation by this court of the trial court record of the case on appeal”; Cobb I, supra, 234 Conn. 762; and (2) a defendant who fails to create such a record in the trial court is not entitled to a remand for that purpose but, at most, is entitled to raise the claim in a habeas proceeding. See id., 763 n.21 (“[w]e leave to another day, and to a case that properly presents it, the question of whether a defendant who had ample notice and opportunity, as a result of the publica
To the extent that the trial court’s conclusion was based on its belief that a racial disparity claim was raised in the defendant’s first appeal to this court and was still pending here after remand, we also reject that reasoning. First, no such claim was brought in the first appeal. Second, even if it is assumed that such a claim had been brought, we did not reserve jurisdiction over any of the issues raised in that appeal or limit the scope of the remand for a new penalty phase hearing in any way. Therefore, the defendant was entitled to raise any matters in the second sentencing hearing that he could have raised in the first sentencing hearing. See Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 523, 686 A.2d 481 (1996) (“[i]f a judgment is set aside on appeal, its effect is destroyed and the parties are in the same condition as before it was rendered”); State v. Darwin, 161 Conn. 413, 419, 288 A.2d 422 (1971) (“The trial [after reversal of the original judgment] is ‘new’ in every sense. It is as if no trial had ever taken place. ... It would not be compatible with the theory of a new trial to tie the hands of counsel so that any errors waived in the first trial are forever waived.” [Citations omitted.]). Accordingly, we conclude that the trial court improperly determined that it did not have jurisdiction to grant the defendant’s request for a hearing under § 53a-46b (b) (1).
We also conclude, however, that, “[although the defendant had a right to an evidentiary hearing, he was not entitled to an indefinite period of time within which to attempt to develop facts in support of his claim.” State v. Reynolds, 264 Conn. 1, 231, 836 A.2d 224 (2003). In Reynolds, we stated that “[t]he defendant estimated that he would have needed four to six months to obtain
“In light of the nature and magnitude of the work necessary to prepare the claim for a hearing—as evidenced by the fact that such work has not yet been completed—an extraordinary, indeed, indefinite, delay in the imposition of sentence would have been required to accommodate the defendant’s request for a hearing prior to sentencing. Such a lengthy postponement of the hearing simply would not have been acceptable. Indeed, even without the benefit of hindsight, it would not have been reasonable for the defendant to have expected the court to grant the four to six month postponement he requested, especially in view of the fact that the court could not possibly have been assured that the matter would be ready for a hearing even in that extended time frame. Under the circumstances, therefore, there is no reasonable possibility that the trial court would have permitted the requested extension of time . . . .” Id.
In the present case, the defendant also asked for a continuance of several months to obtain and evaluate the relevant data.
With respect to the defendant’s argument that his racial disparity claim under § 53a-46b (b) (1) was not ripe until the panel reached its verdict,
We noted in Reynolds that, “since our decisions in Cobb I and Cobb II, subsequent events have overtaken both the claim that the defendant raises in the present case and the same claim made by Cobb in his case. These events reaffirm our conclusion that the defendant
“It is apparent, therefore, that neither the office of the public defender nor the state is ready to litigate the merits of this claim in the immediate future. It is also apparent that judicial economy, as well as fairness to both defendants and the state, mandates that this claim be litigated before the same habeas judge and in the same general, consolidated hearing, on behalf of all defendants who have been sentenced to death.
“Our conclusion applies to the defendant in the present case. The defendant will have a full opportunity to present his claim in the habeas court and, as we previously have indicated, is not prejudiced in any way by the relegation of his claim to that forum.” Id., 232-33.
We concluded in Reynolds that all racial disparity claims in pending death penalty cases should be “pre
IX
THE SUFFICIENCY OF THE EVIDENCE OF THE AGGRAVATING FACTOR
The defendant next claims that the evidence presented by the state at the second penalty phase hearing failed to prove beyond a reasonable doubt that the defendant committed the capital felony in an especially cruel manner. The state maintains that the panel at the second penalty phase hearing was presented with the same evidence as was determined to be sufficient in Breton II and that there is no reason to revisit this issue. We agree with the state.
We begin by setting forth the applicable standard of review. “In reviewing a claim under § 53a-46b (b) (2) that the evidence fail[ed] to support the finding of an aggravating factor specified in subsection (h) of § 53a-46a, we will subject that finding to the same independent and scrupulous examination of the entire record that we employ in our review of constitutional fact-finding .... However, [e]ven with the heightened appellate scrutiny appropriate for a death penalty case, the defendant’s challenge to the sufficiency of the evidence of aggravating circumstances must be reviewed, in the final analysis, by considering the evidence presented at the defendant’s penalty hearing in the light most favorable to sustaining the facts impliedly found by the jury. . . . Furthermore, [i]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with [the existence of the aggravating factor] and is not
The following additional facts are necessary for the resolution of this claim. At the second penalty phase hearing, the state presented the testimony of Arkady Katsnelson, an associate medical examiner of the state’s chief medical examiner’s office and of Henry Lee, the state’s chief criminalist and director of the state police forensic laboratory.
On the basis of the testimony of Katsnelson and Lee, the panel reasonably could have found the following facts pertaining to the murder of JoAnn Breton. The defendant severely beat her before killing her. There were extensive contusions and abrasions caused by blunt force trauma on her forehead, around her right eye, on her right cheek, right arm, right knee, lower right leg, nose, left cheek, left eye, mouth, chin and the area under her chin. In addition, there was an extensive amount of blood in her nose and mouth. These injuries were the result of multiple blows and occurred before JoAnn Breton died.
Finally, JoAnn Breton was conscious throughout the beating that resulted in the contusions to her face and body and was conscious when the stab wounds were inflicted. She received at least one major injury while standing on the right side of her bed. Bloodstain pattern evidence on the telephone, the bed and bedding, the floor and the walls indicated that she moved from the head of the bed to the foot of the bed while bleeding profusely. She struggled with the defendant at the foot of the bed. She then moved around to the left side of the bed, toward the bedroom door. While she was still standing, the defendant stabbed her fatally through the neck. She fell to her knees and another struggle ensued in this area. She eventually lay on the floor, face down, and was subsequently rolled to her back before she bled to death.
On the basis of the testimony of Katsnelson and Lee, the panel reasonably could have found the following facts in regard to the murder of Robert, Jr. The defendant cut and stabbed Robert, Jr., repeatedly with a long sharp instrument before he inflicted the fatal wound. During the course of this assault, Robert, Jr., suffered a two and one-half inch long incised wound on his right cheek;
All of the wounds were inflicted while Robert, Jr., was alive and while he was conscious. The defendant first stabbed him while he stood in the doorway to his mother’s bedroom. Robert, Jr., then moved from the bedroom toward the second floor landing. At the top of the stairs, he was on the ground when the defendant inflicted some other injury to him, most likely the defensive wounds to his right arm. Robert, Jr., got up and moved down the stairs where he fell against the wall. He was still standing when he reached the bottom of the stairs and the defendant overtook him. At the bottom of the stairs, the defendant stabbed him in the right side of the neck, almost severing his carotid artery. At that point Robert, Jr., fell backward onto the stairs, where he bled to death.
The evidence presented to the panel at the second penalty phase hearing was virtually identical to the evi
X
CLAIM THAT THE CRUEL, HEINOUS AND DEPRAVED AGGRAVATING FACTOR IS UNCONSTITUTIONALLY VAGUE
The defendant next contends that the aggravating factor alleged by the state, that the defendant committed the crimes in an especially heinous, cruel or depraved manner; General Statutes (Rev. to 1995) § 53a-46a (h) (4); is unconstitutionally vague. The defendant argues that this constitutional infirmity results from the vagueness of the term “especially cruel.” The state maintains that the defendant is bound by the definition of “especially cruel” set forth in State v. Breton, 212 Conn. 258, 270, 562 A.2d 1060 (1989) (Breton I). The state further contends that the definition of “especially cruel” set forth in Breton I exceeds the requirements of the eighth amendment.
In support of his claim that the term “especially cruel” is unconstitutionally vague, the defendant argues that this court does not have the power to define a facially vague aggravating factor and that the legislature alone has the power to define “especially cruel.” This claim was raised and rejected in Breton I, supra, 212 Conn. 268- 69. In that case, we concluded that the “especially cruel” aggravating factor was unconstitutionally vague and undertook to put a judicial gloss upon the term to save it “from its facial vagueness and yet [construe] it as narrowly as possible in the defendant’s favor.” Id., 269- 70. The defendant had asserted that we did not have the authority to adopt such a definition, citing State v. Ellis, 197 Conn. 436, 455-56, 497 A.2d 974 (1985), on appeal after remand sub nom. State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990), for the proposition
The defendant in the present case now asks us to revisit the question of whether we have the power to define the term “especially cruel” or whether that function is a power reserved to the legislature alone. The defendant, however, has offered no compelling reason to revisit this issue. Accordingly, we reaffirm our holding in Breton I.
The defendant’s second contention is that, even if it is assumed that we have the power to put a gloss on statutes, the definition of “especially cruel” that we adopted in Breton I is unconstitutionally vague because it provides too subjective a standard. The defendant concedes, however, that this argument was raised and rejected mBreton II, supra, 235 Conn. 217-18, and State v. Ross, supra, 230 Conn. 255-56.
XI
CLAIM THAT § 53a-46a (d) IS UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED
The defendant next claims that our capital sentencing statute is unconstitutional on its face and as applied because it requires that the mitigating nature of nonstatutory mitigating factors must be determined “considering all the facts and circumstances of the case. . . .” General Statutes (Rev. to 1995) § 53a-46a (d). The state contends that this challenge to the “facts and circumstances” language of the capital sentencing statute already has been rejected by this court and we should not revisit the issue. We agree with the state.
The defendant first contends that the facts and circumstances language is “broad and all encompassing . . . plac[ing] no meaningful limit on what . . . the sentencer may consider when rejecting a proven mitigating fact.” This claim is virtually identical to a claim that we considered and rejected in Cobb II, supra, 251 Conn. 482-86. In that case, the defendant challenged the facts and circumstances language of § 53a-46a (d) on vagueness grounds and asked that the sentencer be given a limiting instruction or that the language be stricken. Relying on Buchanan v. Angelone, 522 U.S. 269, 275-77, 118 S. Ct. 757, 139 L. Ed. 2d 702 (1998),
The defendant also claims, however, that use of the facts and circumstances language in the present case impermissibly transformed the capital sentencing statute into a weighing statute and deprived the defendant of meaningful appellate review. This claim also was
Finally, the defendant argues that § 53a-46a (d) renders the capital sentencer’s findings on mitigating factors unreviewable. This claim also was considered by this court in Breton II, supra, 235 Conn. 217. Relying on our holding in Ross, where we had rejected an identical claim, we concluded that § 53a-46a (d) “does not render the capital sentencer’s findings on mitigating factors unreviewable, or standardless and arbitrary.” Id., 218; see also State v. Ross, supra, 230 Conn. 281-84. We see no reason to revisit the issue, and reaffirm our holdings in Breton II, Ross and Cobb II.
XII
OTHER CONSTITUTIONAL CHALLENGES
Finally, the defendant raises an array of constitutional challenges to our capital sentencing scheme. Spe
The defendant concedes that we have considered and rejected each of these constitutional challenges multiple times.
XIII
PROPORTIONALITY REVIEW
We next undertake the appellate function of proportionality review. “Pursuant to General Statutes (Rev.
“As we previously have stated, our function in undertaking [proportionality review] is to assure that upon consideration of both the crime and the defendant the aggravating and mitigating circumstances present in one capital case will lead to a result similar to that reached under similar circumstances in another capital case, thus identifying the aberrant sentence and avoiding its ultimate imposition. . . . The search, however, is not for a case involving a rough equivalence of moral blameworthiness; the search is, rather, for a gross disparity between the case on review and other cases within the selected pool of similar cases. . . . Thus, proportionality review requires a comparison of the decision to impose a death sentence, made by the fact finder in the case before us on the basis of the presence or absence of aggravating and mitigating factors, with decisions to impose sentences of death or life imprisonment, made by the fact finders in the other relevant cases on the basis of the presence or absence of aggravating and mitigating factors. That process requires us
As a preliminary matter, we address the state’s claim that the defendant is not entitled to proportionality review because his sentencing hearing was held in 1997, two years after the statute mandating proportionality review was repealed. See Public Acts 1995, No. 95-16, § 3 (b) (P.A. 95-16). The defendant contends that his case was still pending when the repealing statute was enacted and, therefore, that he is entitled to proportionality review. We agree with the defendant.
The essential facts are not in dispute. The defendant committed the crimes for which he was convicted on December 13, 1987. After the first penalty phase hearing, the defendant was sentenced to death on April 11, 1989. He then appealed to this court. On April 12, 1995, P.A. 95-16, § 3 (b), took effect, thereby repealing proportionality review. On August 22,1995, this court reversed the defendant’s death sentence and remanded the case to the trial court for a second penalty phase hearing. On April 23, 1997, after the defendant’s second penalty phase hearing, the panel delivered its special verdict, finding that the state had proved the aggravating factor beyond a reasonable doubt and that none of the factors claimed by the defendant, either alone or in combina
The defendant contends that he is entitled to proportionality review pursuant to Cobb I, Webb and Cobb II. In Cobb J, we concluded that although P.A. 95-16, § 3 (b), repealed proportionality review, proportionality review “is still mandatory for all capital felony cases pending at the time that the repealing statute became effective.” Cobb I, supra, 234 Conn. 746 n.10; see id., 737-38 n.2 (noting that P.A. 95-16 eliminated proportionality review on prospective basis); see also Cobb II, supra, 251 Conn. 501-502; State v. Webb, supra, 238 Conn. 491 n.71. The state contends, however, that this case is distinguishable from Cobb I, Webb and Cobb II because, unlike the penalty phase hearings in those cases, the defendant’s second penalty phase hearing in the present case took place subsequent to the enactment of the repealing statute. We agree with the defendant.
In Cobb I, Webb and Cobb II, we determined that capital felony defendants whose cases were pending at the time the repealing statute was enacted were still entitled to proportionality review. Thus, we recognized that P.A. 95-16, § 3 (b), was not retroactive. This is in accord with the well established principle that “[i]n criminal cases . . . we generally have applied the law in existence on the date of the offense, regardless of its procedural or substantive nature.” (Internal quotation marks omitted.) State v. Parra, 251 Conn. 617, 633, 741 A.2d 902 (1999) (Berdon, J., dissenting); In re Daniel H., 237 Conn. 364, 377, 678 A.2d 462 (1996); see also State v. Millhouse, 3 Conn. App. 497, 501, 490 A.2d 517 (1985) (in construing penal statute to determine whether application is retroactive, date of crime controls). Accordingly, the fact that the defendant’s penalty phase hearing took place after the repeal of § 53a-46b (b) (3) is irrelevant to a determination of whether the defendant is entitled to proportionality review. Rather,
We next address the question of what cases should be included within the pool of similar cases for purposes of our review. “In accordance with the statutory mandate of § 53a-46b (a) that we review all sentences of death ‘pursuant to [our] rules,’ we adopted Practice Book § [67-6 (b)],
In State v. Webb, supra, 238 Conn. 525, we recognized that “[t]here is no hard and fast rule or definition of ‘similar cases’ that will be satisfactory ... in all cases.” We also recognized, however, that “the cases of any other defendants who were convicted [under the same subsection of the capital felony statute], as was this defendant, would be ‘similar cases’ to this case.” Id., 526. We further recognized that the class of similar cases was not “intended to be cabined by the particular subsections of the capital felony statute”; id.; but also includes “cases in which the defendants engaged in substantially similar conduct.” Id., 525-26.
The state and the defendant agree on the following pool of similar cases culled from the appropriate universe of cases:
The state and the defendant disagree, however, about whether Breton II, supra, 235 Conn. 206, and State v. Ross, supra, 230 Conn. 183, should be included in the pool of similar cases. The state contends that both cases are similar cases for purposes of proportionality review. The defendant contends that: (1) the pool of similar cases should not include earlier appeals of his own case; and (2) Ross is not a similar case because the defendant in that case did not engage in substantially similar conduct. We conclude that the defendant’s first penalty phase hearing is not a similar case for purposes of proportionality review. We also conclude that the defendant in Ross engaged in substantially similar conduct and, therefore, that that case is a similar case.
We first address the state’s claim that the defendant’s sentence after his first penalty phase hearing should be treated as a similar case for comparison purposes because we concluded in State v. Webb, supra, 238 Conn. 522, that “prior cases that have been reversed on appeal should, absent exceptional circumstances, be included in the universe of cases.” We conclude that the state reads our holding in Webb too broadly. Webb simply did not address the question of whether a prior reversed sentence in the same case should be included in the
Although we recognize that inclusion of the defendant’s first sentence in the class of similar cases could provide “additional insight into patterns or trends of sentencers”; id., 522; we conclude for the following reasons that it should not be included. First, the state has pointed to nothing in the language of § 53a-46b (b) or in its legislative histoiy to suggest that the legislature intended for the phrase “similar cases,” as used in that statute, to include reversed sentences in the case under review. In ordinary usage, and as a matter of common sense, the word “similar” does not mean “same” or “identical.” Moreover, we note that the potential for multiple death sentences and reversals in a given case automatically could provide the state with a set of “similar cases” in which the death penalty had been imposed, with no corresponding potential benefit to defendants. Thus, inclusion of all such reversed sentences in the pool of similar cases would provide an asymmetrical benefit to the state. Accordingly, we reject the state’s claim that the defendant’s reversed sentence in this case is a similar case for purposes of § 53a-46b (b).
We next address the state’s contention that State v. Ross, supra, 230 Conn. 183, is a similar case. The state points out that the defendant in that case originally was charged with one count of multiple homicide pursuant to § 53a-54b (8) along with seven other counts of capital felony.
We conclude that the underlying conduct in Ross “is substantially similar, in its criminal characteristics, to that of the defendant in [this] case . . . .” State v. Webb, supra, 238 Conn. 525. The dismissal of the multiple murder count in Ross for lack of territorial jurisdiction does not alter the underlying character of the criminal conduct in that case, namely, the murder of two persons during the course of a single transaction, or deprive it of its basic similarity to the defendant’s conduct in this case. As we have noted, similar cases are not “cabined by the particular subsection of the capital felony statute.” Id., 526. Accordingly, the fact that the two murders in Ross were prosecuted under a different subsection of the capital felony statute does not preclude consideration of Ross as a similar case for purposes of proportionality review.
The defendant claimed the two statutory mitigating factors of significant impairment of his mental capacity and significant impairment of his ability to conform his conduct to the requirements of the law as well as twenty-five nonstatutory mitigating factors.
The state, at the defendant’s penalty phase hearing, sought to prove the aggravating factor that the defendant had committed the murders in an especially heinous, cruel or depraved manner. The defendant claimed twenty mitigating factors.
In State v. Correa, supra, 241 Conn. 324 n.l, 325-27, the defendant was convicted of one count of multiple murder capital felony in violation of § 53a-54b (8)
In State v. Day, supra, 233 Conn. 813, 815-16, the defendant was convicted of four counts of murder in violation of § 53a-54a and one count of multiple murder capital felony in violation of § 53a-54b (8) for the shooting deaths of four individuals, one of whom was a five year old child. Id.
The state sought to prove the aggravating factor that the defendant had committed the crime in an especially heinous, cruel or depraved manner. The state presented testimony that one of the adult victims died from multiple gunshot wounds to the head, all fired at close range, and evidence from the trial indicated that the defendant repeatedly kicked that individual, probably while he was unconscious. The state offered further testimony indicating that the cause of death for a second adult victim was multiple gunshot wounds to the head and chest, any one of which could have caused her death. The state offered testimony regarding the third adult victim indicating that she was killed by two gunshot wounds to the head, both fired at close range and capa
At the close of state’s evidence, the defendant moved to dismiss the penalty phase hearing and moved for imposition of a life sentence. The trial court found that the state had not presented a prima facie case from which the jury reasonably could infer that the aggravating factor had been proved by the state, and it granted the defendant’s motion to dismiss and motion for imposition of a life sentence.
In State v. Roseboro, supra, 221 Conn. 430, the defendant was convicted of multiple murder capital felony in violation of § 53a-54b (8), three counts of murder in violation of § 53a-54a (a); and one count of first degree burglary in violation of General Statutes § 53a-101 (a) (1) and (2). “The defendant, armed with a dangerous weapon and intending to commit a larceny, unlawfully entered and remained in a house in Derby owned by Mary Ferrara. In the course of committing this crime, the defendant engaged in a struggle with Mary Ferrara and intentionally killed her. The defendant also intentionally killed her son Joseph Ferrara and her niece Nina Ferrara. Each of the victims died of stab wounds.” Id., 433.
The three judge panel that conducted the penalty phase hearing unanimously found that the state had proved that the crimes were committed in an especially heinous manner. The panel further found a mitigating factor, specifically that the defendant had adjusted well to incarceration, and imposed a Ufe sentence.
The state claimed two aggravating factors: (1) that the defendant committed the murders in an especially heinous, cruel or depraved manner; and (2) that the defendant committed the murders and in such commission knowingly created a grave risk of death to another person in addition to the victims of the offense pursuant to § 53a-46a (h) (3).
In mitigation, the defendant offered testimony that: he had suffered from severe paranoid schizophrenia; he had a mental capacity that was significantly impaired; the mental disorder from which he suffered was prone to worsen under the influence of emotionality; he showed paranoid traits such that he tended to over-inteipret threats and to respond explosively to threats; he was an individual of immature emotional development and immature impulse control; he had strong conflicting and unresolved emotions concerning his father and alcoholism; his mental capacity was significantly impaired and he was under substantial duress; he had traumatic childhood experiences that could be characterized as emotional and psychological
The three judge panel that conducted the penalty phase hearing unanimously found that the state had proved both aggravating factors. Id., 351. Two of the judges found the existence of a mitigating factor in the defendant’s character, background and history and that, at the time of the offense, the defendant’s mental capacity was significantly impaired and his ability to conform his conduct to the requirements of the law was significantly impaired. One member of the panel found that the defendant had not proved any mitigating factors. The panel imposed a life sentence without the possibility of parole. Id., 352.
In State v. Wood, supra, 208 Conn. 125, the defendant was convicted of three counts of murder in violation of § 53a-54a and one count of multiple murder capital felony in violation of § 53a-54b (8). “[0]n the evening of April 16, 1982, the defendant shot and killed his former wife, Rosa Wood, and her boyfriend, George Troie, on Farmington Avenue in West Hartford. The defendant then proceeded to the home on White Pine Lane he had shared with his former wife. Once there he shot and killed his former mother-in-law, Patricia Voli. The defendant then shot and killed his fifteen year old daughter, Elisa Wood.” Id., 128.
At the penally phase hearing, the state sought to prove two aggravating factors: (1) that the defendant committed the murders and in committing them knowingly created a grave risk of death to another person in addition to the victims of the murders; and (2) that the defendant committed the murders in an especially heinous, cruel or depraved maimer.
In mitigation, the defendant offered testimony that: he suffered from explosive disorder, major depression and antisocial personality disorder; he suffered from
The jury found that the state had not proved the first aggravating factor, knowingly causing grave risk of death to another. The jury further found that the state had proved that the defendant committed the murders of Voli and Elisa Wood in an especially heinous, cruel or depraved manner. Finally, the jury found that the defendant had proved the mitigating factor that the defendant’s mental capacity was significantly impaired or his ability to conform his conduct to the requirements of the law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution. The defendant was sentenced to 120 years in prison. Id.
In State v. Daniels, supra, 207 Conn. 376-78, the defendant was convicted of multiple murder capital felony in violation of § 53a-54b (8), murder in violation of § 53a-54a and sexual assault in the first degree in violation of General Statutes § 53a-71. Late at night, the defendant entered the home of his girlfriend, where he attacked his girlfriend’s roommate and the roommate’s three year old child. The defendant stabbed the roommate multiple times in the chest. He then proceeded to strangle the child and slit the child’s throat. Then, upon hearing the roommate making gurgling noises, he sexually assaulted her and stabbed her again. Id., 378-79.
At the penalty phase hearing, the jury found that the state had proved the existence of an aggravating factor,
In State v. Ross, supra, 230 Conn. 183, the defendant was convicted of two counts of capital felony for murder in the course of kidnapping in violation of § 53a-54b (5). The defendant kidnapped two fourteen year old girls and transported them to Rhode Island. While he left one victim in the car, he sexually assaulted and strangled the other. He then returned to the car and strangled the first girl. Id., 192.
The defendant claimed sixteen mitigating factors, including the two statutoiy mitigating factors of significant impairment of his mental capacity and significant impairment of his ability to conform his conduct to the requirements of the law.
We now turn to a comparison of the facts of the present case with the facts of the eight similar cases that we have set forth. In one of the eight similar cases, State v. Ross, supra, 230 Conn. 183, the sentencer imposed the death penalty; in the remaining cases, the sentencers imposed life sentences.
In Ross, as in the present case, the sentencer found that the state had proved the aggravating factor that the defendant had committed each of the two murders in an especially heinous, cruel or depraved manner. The sentencer in Ross further found that the defendant had not proved any of the sixteen mitigating factors that he claimed. Eight of the claimed mitigating factors that were rejected in Ross were included, either explicitly or in substance, in the claims of mitigation in the present case. Thus, in both Ross and the present case, the sentencers consistently rejected these claims of mitigation.
Of the seven similar cases in which the sentencers imposed life sentences, there was one, Day, in which the state did not prove its aggravating factor. In that case, the trial court granted the defendant’s motion to impose a life sentence at the close of the state’s case during the penalty phase hearing. The present case is distinguishable from Day on that basis alone.
In two of the seven similar cases in which the sentencers imposed life sentences, Steiger said Daniels, the state proved its aggravating factor and the sentencers could not agree on whether there was a mitigating fac
With respect to mitigants, in Steiger, two of the three judges on the three judge sentencing panel found that the defendant had proved that his mental capacity was impaired, while one of the judges found no mitigating factor. In Steiger, however, unlike the present case, the defendant presented testimony of severe schizophrenia. In Daniels, the jury disagreed on the issue of whether the defendant had proved a mitigating factor. At least one of the offered mitigating factors, substantial duress, has no counterpart in the present case. In addition, the defendant in Daniels presented evidence of organic brain dysfunction. Thus, the panel’s decision in the present case was based on evidence significantly different from that offered by the defendants in Steiger and Daniels. Accordingly, the imposition of a sentence of death in the present case is not inconsistent with the imposition of a sentence of life imprisonment in those two cases.
In four of the seven similar cases, Griffin, Correa, Roseboro and Wood, the sentencers found both an aggravating factor and a mitigating factor or factors. In Griffin, Roseboro and Wood the state proved the same aggravating factor as was proved in the present case, that the defendants had committed the crimes in an especially heinous, cruel or depraved manner. In Correa, the state proved that the defendant had committed
With respect to mitigants, in Griffin and Correa, the sentencers found that the defendants had proved at least one unspecified mitigating factor. In Griffin, at least twelve of the mitigating factors claimed by the defendant have no counterpart in the list of mitigating factors claimed by the defendant in the present case.
In Wood, the jury found that the defendant had proved the mitigating factor that his mental capacity was significantly impaired or his ability to conform his conduct to the requirements of the law was significantly impaired. Unlike the defendant in the present case, however, the defendant in Wood offered evidence of explosive disorder, major depression and antisocial personality disorder as well as atypical psychosis, a paranoid schizophrenic process and a potential for transient psychotic states. The defendant in the present case, in support of his two claimed mitigating factors of significant impairment, offered evidence of severe mixed personality disorder with borderline schizoid, paranoid and depressive traits. In determining that the defendant in the present case did not prove these mitigating factors, the panel relied on significantly different evidence than that offered by the defendant in Wood. Accordingly, we conclude that that determination by the panel in the present case was not inconsistent with the decision of the sentencer in Wood.
In Roseboro, the sentencer, a three judge panel, found the factual underpinnings for the defendant’s claimed nonstatutory mitigating factor that he was well behaved and well-adjusted while incarcerated.
Finally, we address the defendant’s implicit claim that, in the absence of heightened premeditation, and in all but the most extreme cases, the imposition of the death sentence in cases involving domestic disputes is inherently disproportionate because such cases involve “ ‘mad acts prompted by wild emotion . . . .’” (Citation omitted.) We note that statutory proportionality review pursuant to § 53a-46b does not contemplate review of this type of claim. Rather, such claims arise under the eighth amendment. State v. Webb, supra, 238 Conn. 510 (traditional proportionality review, involving claims that imposition of death penalties for certain categories of crime is inherently disproportionate, is not incorporated in § 53a-46b, but “is simply another term for analysis under either the eighth amendment’s prohibition against cruel and unusual punishment or under our state constitutional counterpart”). Thus, in effect, the defendant claims that the imposition of the death penalty on a defendant who committed the capital offense while in the grip of an emotional disturbance violates that constitutional provision, even if the emotional disturbance does not meet the requirements of
As we stated in Cobb II, supra, 251 Conn. 520-21, we find again today that “[o]ur statement in Webb is an apt summary of the process of proportionality review that we have undertaken in the present case. ‘On the basis of this analysis, of our scrupulous examination of all of the material presented to us regarding the imposition of the death penalty in the present case, and of our careful review of all of the material presented to us regarding the imposition of the sentences in the other
The judgment is affirmed.
In this opinion PALMER, ZARELLA, FOTI, SCHALLER and MIHALAKOS, Js., concurred.
General Statutes (Rev. to 1987) § 53a-54b provides in relevant part: “A person is guilty of a capital felony who is convicted of any of the following ... (8) murder of two or more persons at the same time or in the course of a single transaction.”
General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception . . . .”
General Statutes (Rev. to 1995) § 53a-46a provides in relevant part: “(a) A person shall be subjected to the penalty of death for a capital felony only if a hearing is held in accordance with the provisions of this section.
“(b) For the purpose of determining the sentence to be imposed when a defendant is convicted of ... a capital felony, the judge or judges who presided at the trial . . . shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, including any mitigating factor set forth in subsection (g), and any aggravating factor set forth in subsection (h). . . . Such hearing shall be conducted
“(c) In such hearing the court shall disclose to the defendant or his counsel all material contained in any presentence report which may have been prepared. No presentence information withheld from the defendant shall be considered in determining the existence of any mitigating or aggravating factor. Any information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but the admissibility of information relevant to any of the aggravating factors set forth in subsection (h) shall he governed by the rules governing the admission of evidence in such trials. The state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any mitigating or aggravating factor. The burden of establishing any of the factors set forth in subsection (h) shall be on the state. The burden of establishing any mitigating factor shall be on the defendant.
“(d) In determining whether a mitigating factor exists concerning the defendant’s character, background or history, or the nature and circumstances of the crime, pursuant to subsection (b) of this section, the jury or, if there is no jury, the court shall first determine whether a particular factor concerning the defendant’s character, background or history, or the nature and circumstances of the crime, has been established by the evidence, and shall determine further whether that factor is mitigating in nature, considering all the facts and circumstances of the case. Mitigating factors are such as do not constitute a defense or excuse for the capital felony of which the defendant has been convicted, but which, in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of his culpability or blame for the offense or to otherwise constitute a basis for a sentence less than death.
“(e) The jury or, if there is no jury, the court shall return a special verdict setting forth its findings as to the existence of any aggravating or mitigating factor.
“(f) If the jury or, if there is no jury, the court finds that one or more of the factors set forth in subsection (h) exist and that no mitigating factor exists, the court shall sentence the defendant to death. If the jury or, if there is no jury, the court finds that none of the factors set forth in subsection (h) exists or that one or more mitigating factors exist, the court shall impose a sentence of life imprisonment without the possibility of release.
“(h) If no mitigating factor is present, the court shall impose the sentence of death on the defendant if the jury or, if there is no jury, the court finds by a special verdict as provided in subsection (e) that... (4) the defendant committed the offense in an especially heinous, cruel or depraved manner . . . .” Unless otherwise noted, all references and citations in this opinion to § 53a-46a will be to that statute as revised to 1995.
General Statutes (Rev. to 1995) § 53a-46b provides: “(a) Any sentence of death imposed in accordance with the provisions of section 53a-46a shall be reviewed by the supreme court pursuant to its rules. In addition to its authority to correct errors at trial, the supreme court shall either affirm the sentence of death or vacate said sentence and remand for imposition of a sentence in accordance with subdivision (1) of section 53a-35a.
“(b) The supreme court shall affirm the sentence of death unless it determines that: (1) The sentence was the product of passion, prejudice or any other arbitrary factor; (2) the evidence fails to support the finding of an aggravating factor specified in subsection (h) of section 53a-46a; or (3) the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.
“(c) The sentence review shall be in addition to direct appeal and, if an appeal is taken, the review and appeal shall be consolidated for consideration. The court shall then render its decision on the legal errors claimed
General Statutes § 53a-45 (b) provides: “If a person indicted for murder or held to answer for murder after a hearing conducted in accordance with the provisions of section 54-46a waives his right to a jury trial and elects to be tried by a court, the court shall be composed of three judges designated by the Chief Court Administrator or his designee, who shall name one such judge to preside over the trial. Such judges, or a majority of them, shall have power to decide all questions of law and fact arising upon the trial and render judgment accordingly.”
General Statutes § 54-82 provides in relevant part: “(a) In any criminal case, prosecution or proceeding, the party accused may, if he so elects when called upon to plead, be tried by the court instead of by the jury; and, in such case, the court shall have jurisdiction to hear and try such case and render judgment and sentence thereon.
“(b) If the accused is charged with a crime punishable by death or imprisonment for life and elects to be tried by the court, the court shall be composed of three judges to be designated by the Chief Court Administrator, or his designee, who shall name one such judge to preside over the trial. Such judges, or a majority of them, shall have power to decide all questions of law and fact arising upon the trial and render judgment accordingly. . . .”
The defendant claimed as statutory mitigating factors that, at the time of the offense: (1) his mental capacity was significantly impaired, but not so impaired as to constitute a defense to the prosecution; and (2) his ability to conform his conduct to the requirements of the law was significantly impaired, but not so impaired as to constitute a defense to the prosecution. See General Statutes (Rev. to 1995) § 53a-46a (g) (“[t]he mitigating factors to be considered concerning the defendant shall include, but are not limited to, the following ... (2) his mental capacity was significantly impaired or his ability to conform his conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution”).
The defendant claimed as nonstatutory mitigating factors that: (1) at the time of the offense, his mental capacity was impaired, but not so impaired as to constitute a statutory mitigating factor; (2) at the time of the offense, his ability to conform his conduct to the requirements of the law was impaired, but not so impaired as to constitute a statutory mitigating factor; (3) at the time of the offense, he was suffering from an extreme emotional disturbance; (4) at the time of the offense, his mental capacity was significantly impaired, and he suffered from an extreme emotional disturbance that constituted a defense to the prosecution, which, although not presented in the guilt phase, the court could consider as a nonstatutory mitigating factor; (5) he was under the influence of alcohol and prescription medication at the time of the offense; (6) his mother gave him up to live at an orphanage as well as other homes because he was in the way and she could not or would not properly care for him; (7) his mother herself was the product of a broken home, was abandoned by her own parents, lived in an orphanage and was ill-prepared to raise him properly; (8) upon his return from the orphanage it was readily apparent that the defendant had suffered severe and traumatic abuse at the orphanage; (9) he was significantly and traumatically affected by his abandonment by his parents; (10) he was raised in apathological, alcoholic and abusive family unit; (11) his mother was an alcoholic and she lacked the necessary mothering skills to raise her son properly; (12) his father almost never worked or supported his family and drank excessively on a daily basis; (13) the defendant was subjected to verbal, physical and emotional abuse at the hands of both of his parents; (14) he was the product of a broken home that lacked the necessary love, affection, support and nurturing that is critical to proper social and childhood development; (15) his formal education ended before completion of the eighth grade; (16) despite his low level of education, he has a long history of steady employment and has led a productive life; (17) as a teenager, he worked and contributed to the household; (18) he worked hard to support his family for nineteen
Specifically, the panel found that the defendant (1) was neglected, abandoned and the product of an abusive family unit during his childhood; (2) had been a model prisoner at all times since his incarceration for the murders; (3) dropped out of school at age sixteen; and (4) was a good employee and a productive worker.
The defendant initially claimed that the newly discovered evidence would have proved the unconsidered mitigating factor that he was insane at the time of the murders of his former wife and son. He withdrew that claim, however, at oral argument before this court.
The defendant withdrew this claim at oral argument before this court. We discuss it briefly in connection with our review of the defendant’s first claim, however, to provide context for the withdrawal of the claim.
The defendant did not separately brief this claim, but addressed it in the portion of his brief pertaining to his claim that the panel improperly had found that certain proved factual claims were not mitigating in nature. Because this claim is conceptually distinct, however, we address it separately.
The eighth amendment to the United States constitution, which is made applicable to the states through the fourteenth amendment, provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions . . . [n]o person shall ... be deprived of life, liberty or property without due process of law . . . .”
The constitution of Connecticut, article first, § 9, provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
The transcript of the April 16, 1997 penalty phase hearing reflects that Borden stated that the defendant killed his father on December 3,1967. The transcript of the examination of the defendant taken by the county detective immediately after the killing, however, indicates that the actual date of the killing was December 3, 1966.
Borden’s testimony was not clear as to whether the defendant had told him that, at the time he confessed to the killing, he had been unable clearly to recall it or, at the time of the interview with Borden, his memory was unclear.
The transcript of the April 16, 1997 penalty phase hearing reflects that Borden stated that the defendant married his wife in December, 1968. In light of the fact that the defendant killed his father on December 3, 1966, however; see footnote 14 of this opinion; it is apparent that the marriage took place in December, 1967.
The state’s attorney indicated to Borden that the defendant had testified at the inquest that his father had hit him only once during the entire time they lived together. This representation apparently was based on the following exchange at the inquest:
“[Frank Healy, Jr., coroner for New Haven county at Waterbury]: Had [your father] ever hit you before?
“[The Defendant]: Oh, yes, sir.
“Q. When was the last time?
“A. Well, this is during the summer, sir.
“Q. During the summer of 1966?
“A. Yes, sir, he swung at me a couple of times.
“Q. Pardon?
“A. He swung at me a couple of times and hit me once.
“Q. He hit you once?
“A. Yes, sir.”
The first page of this report carries the date March 9, 1999. Subsequent pages carry the date March 6, 1999. The date of the report is referred to inconsistently throughout the record. For purposes of clarity and consistency, we refer to it in this opinion as the March 9, 1999 report.
Borden did not specify the portions of the transcripts that he believed supported his revised opinion. The defendant represented in his brief, however, that Borden had relied on the portions of the transcripts indicating that, immediately after the killing, the defendant could not remember how it happened. Specifically, the defendant pointed to his testimony at the December 3, 1966 examination conducted by detective Laden that, as his father approached him, he saw a knife and that, “[a]s far as I know, I [picked it up] .... I must have picked up the knife . . . the first thing I knew it was in my hand and he was on the floor. ... All I remember, sir, is the knife in my hand. The first thing I remember my father was on the ground.” Detective Salvatore Lovallo, who had investigated the killing, testified at the inquest that the defendant had told him that “his father . . . advanced towards him with his arms raised, his fists closed, indicating he wanted to strike him. He said he warded off one of the blows his father swung at him with his left hand. The next thing he realized there was a knife in his hand. I asked him did he remember picking up the knife, he said no, just he remembered the knife being in his hand with a downward motion he thrust it [in] the father’s chest.”
The defendant testified at the December 12, 1966 inquest that “[w]hen I turned around to see who broke the window I noticed, as I turned my head back around, I seen him step back and fall and I seen the knife in my hand and there was blood on it.”
“In order to prove a Brady violation, the defendant must show: (1) that the prosecution suppressed evidence after a request by the defense; (2) that the evidence was favorable to the defense; and (3) that the evidence was material.” (Internal quotation marks omitted.) State v. Floyd, 253 Conn. 700, 736-37, 756 A.2d 799 (2000). “[EJvidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) Id., 744. The defendant conceded that the record in this case is inadequate for review of his Brady claim because the record does not contain expert testimony about the 1966 transcripts and, therefore, this court cannot determine whether that testimony would be material.
This suggestion places the defendant in somewhat of a quandary. If we were to agree with him that evidentiary theories developed following the trial are relevant to our review of the panel’s ruling on the defendant’s motion for a continuance, then we would have to conclude that the defendant’s claim is not renewable, because the factual record is not adequate for consideration of those theories. Because we conclude, however, that the panel’s ruling must be reviewed on the basis of the record before it at the time that it ruled, we conclude that the claim is reviewable.
See footnote 3 of this opinion for the text of General Statutes (Rev. to 1995) § 53a-46a.
The state vigorously denied both to the panel and to this court that it had not disclosed the transcripts to the defendant prior to the second penalty phase hearing. We need not decide that question, however, in light of our conclusion that, even if it is assumed that the state had not disclosed the transcripts, on the basis of the record before it, the panel did not abuse its discretion in denying the motion for continuance.
We previously have held that no special capital reviewability rule exists in this state. See, e.g., State v. Cobb, 251 Conn. 285, 343-44 n.34, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000).
The Supreme Court in Witherspoon reviewed a statute that permitted the state of Illinois to exclude from the sentencing jury venirepersons who expressed scruples against the death penalty and concluded that a jury from which such persons had been excluded could “speak only for a distinct and dwindling minority”; Witherspoon v. Illinois, supra, 391 U.S. 520; and “fell woefully short of that impartiality to which the petitioner was entitled under the Sixth and Fourteenth Amendments.” Id., 518. We have recognized that the standard for discharging prospective capital jurors established in Witherspoon “was abandoned and replaced by a more flexible standard in Wainwright v. Witt, [469 U.S. 412, 420, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985)].” State v. Webb, supra, 238 Conn. 435. We assume for purposes of this appeal, however, that the constitutional concern expressed in Witherspoon that the death sentence reflect the conscience of the community remains vital.
By the time of the second penalty phase hearing, Ruth Breton had died.
Ruth Breton’s testimony was summarized in Breton II, supra, 235 Conn. 231, as follows: “[T]he defendant’s mother had placed him in an orphanage when he was a little more than one year old, and when he returned to the family home at age four, he appeared to have ‘been terribly abused’ and was frightened and withdrawn; his parents, who separated when he was nine years old, were alcoholics who openly engaged in deviant sexual behavior in their home; his mother punished him by whipping him with a belt; his mother once killed a pet cat and carved it into pieces; and his father was preoccupied with knives and killing, and had threatened to kill the defendant.”
Phillips also conceded on cross-examination that she had testified at the first penalty phase hearing that the interviews lasted approximately forty-five minutes combined. See Breton II, supra, 235 Conn. 232.
General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”
The defendant also argues that any murder in a domestic setting is, per se, committed under extreme emotional disturbance. This claim is considered and rejected in the proportionality review portion of this opinion. See part XIH of this opinion.
The defendant concedes that this claim was not preserved. We therefore review the claim under the Golding doctrine.
Prior to closing arguments in the second penalty phase hearing, the state asked the panel for a ruling on whether, within the confines of Breton II, the state could argue that evidence offered in mitigation supported the aggravating factor. After the state asked for this ruling, the following colloquy took place:
“Judge Fasano: Did you want to be heard at this point on that issue?
“[Attorney Barry Butler, Defense Counsel]: No, but I would suspect my position would be the same as the defendant’s prior as well as the position of the people in the brief for the defendant in the prior opinion.”
The panel ruled that the state could argue evidence offered in mitigation as proof of the aggravating factor, provided that such mitigating evidence satisfied the requirements of Breton II. The defendant did not object to this
Specifically, as we previously have recognized in this opinion, “the need for heightened reliability in capital cases” implicates the eighth and fourteenth amendments. Breton II, supra, 235 Conn. 257; State v. Ross, supra, 230 Conn. 230.
The panel, Fasano, J., stated, “we’re going to follow the lead of the Supreme Court in [Breton II, supra, 235 Conn. 256-58] with respect to their analysis of the same issue and reject the arguments of [the] defendant and find that no legitimate reason exists not to allow consideration of such evidence relative to the aggravating factor.”
General Statutes (Rev. to 1995) § 53a-46a provides in relevant part: “(a) A person shall be subjected to the penalty of death for a capital felony only if a hearing is held in accordance with the provisions of this section. . . .
“(c) In such hearing . . . [a]ny information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but the admissibility of information relevant to any of the aggravating factors set forth in subsection (h) shall be governed by the rules governing the admission of evidence in such trials. . . . ” (Emphasis added.)
The defendant claims that the panel considered inadmissible mitigating evidence in support of the aggravating factor because, on cross-examination of the defendant’s expert witness, the state referred to several acts of misconduct by the defendant toward his former wife and to his manslaughter conviction for his father’s death. These references were made in an attempt to impeach the testimony of the defendant’s expert witnesses, however, and were not relied on by the state during its closing argument in support of its claimed aggravating factor.
Practice Book, 1997, § 4059 (a) (now § 64-1) provides in relevant part: “(2) [I]n decisions on aggravating and mitigating factors in capital penalty hearings conducted to the court . . . the court shall, either orally or in writing, state its decision on the issues in the matter. The court shall include in its decision its conclusion as to each claim of law raised by the parties and the factual basis therefor. ...”
General Statutes (Rev. to 1995) § 53a-46a (e) provides: “The jury or, if there is no jury, the court shall return a special verdict setting forth its findings as to the existence of any aggravating or mitigating factor.”
Specifically, the defendant requested an articulation of the following issues: (1) Did the panel apply the Breton I definition of cruel? (2) Did the panel consider Borden’s testimony concerning the defendant’s confession to the crime and, if so, what factual findings did it make on the basis of that evidence? (3) Given that the panel accepted part of the testimony of the defendant’s experts, did it reject other aspects of that testimony and, if so, why? (4) Having found as a factual matter that the defendant was neglected, abandoned and the product of an abusive family unit during his childhood, did the panel accept the diagnosis of the defendant’s experts as to the resulting mental condition and, if not, why? (5) If the panel accepted the mental health expert’s diagnosis, did it nonetheless find that the defendant’s mental and volitional capacity was not significantly impaired at the time of the crime and, if so, why? (6) Did the panel consider and reject each and every nonstatutory mitigating factor claimed by the defendant? (7) Did the panel make a finding that each claimed mitigating factor was not mitigating in nature and, if so, why? (8) If the panel found that any nonstatutory mitigating factor was both established by the evidence and
The defendant argues that this claim implicates his constitutional rights under the eighth amendment and the equal protection clause of the fourteenth amendment to the United States constitution and article first, §§ 8, 9 and 20, of the Connecticut constitution.
The motion was dated March 31, 1997.
Subdivision (3) of General Statutes (Rev. to 1995) § 53a-46b (b) was deleted effective April 12,1995. Public Acts 1995, No. 95-16. Unless otherwise specified, all references and citations in this opinion to § 53a-46b (b) (3) are to that statute as revised to 1995.
Defense counsel also stated that a racial disparity claim “probably was brought under [§ 53a-46b (b) (3)]” in the defendant’s first appeal. Our review of the briefs in that case, however, reveals that no such claim was brought.
In his April 2,1997 motion for a continuance, the defendant represented that the continuance “would be for several months at the minimum On October 24, 1997, the defendant filed another motion for a continuance for several months in order to complete his factual investigation of the racial disparity claim. At the December 5, 1997 hearing on the motion for continuance, defense counsel represented that, at some point, he would be prepared to come to the court and answer the court’s questions as to how racial disparities in the administration of the death penalty affected a white defendant who had killed white victims. At the December 19,1997 hearing, defense counsel filed a memorandum in which he argued as a matter of law that the defendant had standing to raise his racial disparity claim regardless of the defendant’s race or the race of the victims, but did not set forth any theory as to how the defendant’s case had been affected by impermissible
As we have noted, we do not believe that this is what the trial court concluded. Rather, the trial court concluded that this court had jurisdiction to determine in the first instance whether a hearing was required and, if so, to remand to the trial court for that purpose.
Defense counsel further argued that he had not represented the defendant until 1995 and, prior to the verdict in this case, he was too busy working on other death penalty appeals to gather data in support of this claim.
We held in Cobb I that § 53a-46b (b) (1) “contemplate[s] not data gathering and fact-finding by or under the aegis of this court from disputed evidence . . . but evaluation by this court of the trial court record of the case on appeal . . . .” Cobb I, supra, 234 Conn. 762. We did not indicate, however, whether the contemplated presentation of evidence should be held during the penalty phase hearing in front of the sentencing jury or panel, as the case may be, or after the verdict but before sentencing, or after the sentencing. There is no need to decide that issue in this case in light of our conclusion that the defendant was not entitled to a hearing in any case.
Both Katsnelson and Lee testified at the first penalty phase hearing. Breton II, supra, 235 Conn. 221.
An incised wound is a cut where the wound does not penetrate deeply inside the soft tissue.
In its brief, the state asserted that we should affirm the defendant’s death sentence even if the state only proved that one of the murders was committed in an especially cruel manner. Because we conclude that the state adduced sufficient evidence to prove beyond a reasonable doubt that both murders were committed in an especially cruel manner, we need not reach this issue.
“Claims of vagueness directed at aggravating circumstances defined in capital punishment statutes are analyzed under the Eighth Amendment and characteristically assert that the challenged provision fails adequately to inform juries what they must find to impose the death penalty and as a result leaves them and appellate courts with the kind of open-ended discretion . . .
Specifically, a challenge to an aggravating factor on vagueness grounds implicates the eighth and fourteenth amendments. Breton I, supra, 212 Conn. 264 n.6.
We further noted that such definition “comports with, and indeed is somewhat narrower than, the common definition of ‘cruel’ . . . [and] such an objective judicial gloss protects the term ‘especially cruel’ from attack on vagueness grounds.” Breton I, supra, 212 Conn. 270.
In Breton II, supra, 235 Conn. 218, the defendant asserted that, despite the judicial gloss placed on the term “ ‘especially cruel’ ” in Breton I, our capital sentencing scheme was unconstitutional because it “allows the state to establish an impermissibly vague aggravating factor, namely, that the defendant committed the offense in an ‘especially cruel manner’ . . . .” Id., 217. Relying on our holding in State v. Ross, supra, 230 Conn. 183, we “rejected] the defendant’s challenges to our capital sentencing scheme . . . because . . . the judicial gloss that we placed upon the term ‘especially cruel’ in [Breton I, supra, 212 Conn. 270-71] . . . saves that aggravating factor from constitutional infirmity.” Breton II, supra, 218.
State v. Ross, supra, 230 Conn. 255, involved, among other claims, a vagueness challenge to the aggravating factor “ ‘in an especially heinous, cruel or depraved manner.’ ” We concluded in Ross that this factor, when properly limited by the judicial gloss placed upon it in Breton I, was not unconstitutionally vague. Id., 255-56.
“In Buchanan v. Angelone, [supra, 522 U.S. 275-77], the United States Supreme Court stated: [0]ur cases have distinguished between two different aspects of the capital sentencing process, the eligibility phase and the selection phase. ... In the eligibility phase, the [sentencer] narrows the class of defendants eligible for the death penalty, often through consideration of aggravating circumstances. ... In the selection phase, the [sentencer] determines whether to impose a death sentence on an eligible defendant. ... It is in regard to the eligibility phase that we have stressed the need
“In the selection phase, our cases have established that the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. . . . However, the state may shape and structure the [capital sentencer’s] consideration of mitigation so long as it does not preclude the [sentencer] from giving effect to any relevant mitigating evidence. . . . Our consistent concern has been that restrictions on the . . . sentencing determination not preclude the [sentencer] from being able to give effect to mitigating evidence. . . . [0]ur decisions suggest that [at the selection phase], complete . . . discretion is constitutionally permissible.” (Citations omitted; internal quotation marks omitted.) Cobb II, supra, 251 Conn. 483-84.
In regard to the defendant’s first constitutional claim, that our capital sentencing scheme fails to provide for a sentencer who is empowered to make an individualized determination that death is the appropriate punishment, we rejected an identical claim in State v. Ross, supra, 230 Conn. 253. In Ross, we concluded that our death penalty scheme “provides the capital sentencer with sufficient latitude to make a reasoned moral and individualized determination, based on the defendant’s background, character and crime, that death is the appropriate punishment.” Id. We subsequently reaffirmed this holding in Breton II, supra, 235 Conn. 217-18, in State v. Webb, supra, 238 Conn. 412, and in Cobb II, supra, 251 Conn. 496-97.
In regard to the defendant’s second constitutional claim, that our capital sentencing scheme imposes a mandatory death sentence on the defendant by not allowing the sentencer to reject the death penalty if the sentencer finds an aggravating factor but no mitigating factor, we rejected an identical claim in State v. Ross, supra, 230 Conn. 241. In Ross, we concluded that our capital sentencing scheme is not impermissibly mandatory because “our capital sentencing statutes, on their face, give the capital sentencer, either a jury or the court, the proper amount of guided discretion to make the appropriate determination regarding the individual defendant with regard to the defendant’s specific crime.” Id. We subsequently reaffirmed this holding in Breton II, supra, 235 Conn. 217-18, and in Cobb II, supra, 251 Conn. 496-97.
In regard to the defendant’s third constitutional claim, that under our capital sentencing scheme the defendant has the burden of proving the existence of a mitigating factor by a preponderance of the evidence, we rejected an identical claim in State v. Ross, supra, 230 Conn. 254-55. We
In regard to the defendant’s fourth constitutional claim, that our capital sentencing scheme embodies a presumption of death, we rejected an identical claim in State v. Ross, supra, 230 Conn. 241. We concluded in that case that, “[w]ith regard to the presumption of death claim, the court [in Walton v. Arizona, supra, 497 U.S. 651-52] determined that there is no unconstitutional presumption of death as long as the requirements of individualized sentencing are satisfied in death penalty cases by allowing the sentencer to consider all relevant mitigating evidence. . . . Our statute allows such consideration.” (Citation omitted.) State v. Ross, supra, 241-42 n.24. We subsequently reaffirmed this holding in Breton II, supra, 235 Conn. 217-18, and in Cobb II, supra, 251 Conn. 496-97.
In regard to the defendant’s fifth constitutional claim, that our capital sentencing scheme is per se unconstitutional under the Connecticut constitution, we rejected an identical claim in State v. Ross, supra, 230 Conn. 249-52. We concluded in that case that “the due process clauses of our state constitution incorporate the principles underlying a constitutionally permissible death penalty statute that the United States Supreme Court has articulated .... These principles require, as a constitutional minimum, that a death penalty statute, on the one hand, must channel the discretion of the sentencing judge or jury so as to assure that the death penalty is being imposed consistently and reliably and, on the other hand, must permit the sentencing judge or jury to consider, as a mitigating factor, any aspect of the individual defendant’s character or record as well as the circumstances of the particular
Practice Book § 67-6 provides: “(a) When a sentence of death has been imposed upon a defendant, following a conviction of a capital felony in violation of General Statutes § 53a-54b and the hearing upon imposition of the death penalty pursuant to General Statutes § 53a-46a, the briefs of the parties shall include a discussion of the issues set forth in General Statutes § 53a-46b (b), to wit, whether (1) the sentence was the product of passion, prejudice or any other arbitrary factor; (2) the evidence fails to support the finding of an aggravating circumstance specified in subsection (h) of § 53a-46a; and (3) the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.
“(b) For the purpose of reviewing the issue of disproportionality pursuant to General Statutes § 53a-46b (b), the briefs of the parties shall contain appendices setting forth the circumstances of the crimes that are claimed to be similar to that of which the defendant has been convicted and the characters and records of the defendants involved therein so far as these are ascertainable from the transcripts of those trials and hearings on the imposition of the death penalty or may be judicially noticed. Only those capital felony cases that have been prosecuted in this state after October 1, 1973, and in which hearings on the imposition of the death penalty have taken place, whether or not the death penalty has been imposed, shall be deemed eligible for consideration as ‘similar cases,’ unless the court, on application of a party claiming that the resulting pool of eligible cases is inadequate for disproportionality review, shall modify this limitation in a particular case. Any such application shall identify the additional case or cases claimed to be similar and set forth, in addition to the circumstances of the crime and the character and record of the defendant involved, the provisions of the applicable statutes pertaining to the imposition of the death penalty with citations of pertinent decisions interpreting such provisions.
“Any such application shall be filed within thirty days after the delivery date of the transcript ordered by the appellant, or, if no transcript is required or the transcript has been received by the appellant prior to the filing of the appeal, such application shall be filed within thirty days after filing the appeal.”
Both the state and the defendant agree that State v. Oritz, 252 Conn. 533, 747 A.2d 487 (2000), is a similar case. We conclude, however, that as to one codefendant in that case, Angel Luis Ortiz, the case is not a similar case, and as to the other codefendant, Julio Diaz-Marrero, the parties have not provided us with sufficient information to engage in a meaningful comparison with the present case.
In Ortiz, the two codefendants were tried jointly, and each was convicted of three counts of capital felony. Id., 536. The case proceeded to a joint
We conclude that, because Ortiz’ case did not proceed to a penalty phase hearing, it should not be included in the universe of similar cases. We also conclude that, although Diaz-Marrero’s case did proceed to penalty phase hearing, the parties have not provided us with the mitigating factors that Diaz-Marrero alleged, and review of the record available to this court does not reveal them.
Practice Book § 67-6 (b) provides in relevant part: “For the purpose of reviewing the issue of disproportionality pursuant to ... § 53a-46b (b), the briefs of the parties shall contain appendices setting forth the circumstances of the crimes that are claimed to be similar to that of which the defendant has been convicted and the characters and records of the defendants involved therein so far as these are ascertainable from the transcripts of those trials and hearings on the imposition of the death penalty or may be judicially noticed. . . .” We require that the parties provide us with information regarding the similar cases so that we can engage in a meaningful comparison of the case before us with the claimed similar cases. Here, the parties have not provided us with any information regarding the penalty phase for either Diaz-Marrero or Ortiz. We independently have reviewed the records available to this court, but we have been unable to determine the mitigating factors claimed by Diaz-Marrero. Without knowledge of the mitigating factors claimed by Diaz-Marrero, this court is unable to engage in a meaningful comparison of Diaz-Marrero’s case with this case.
In addition, the state, in its brief, points out that since the time that the defendant filed his brief, the case of State v. Peeler, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CR 99-0148396, proceeded to a penalty phase hearing and thus could be considered similar for the purposes of proportionality review. The state contends, however, that because the Peeler case was prosecuted under the post-1995 capital sentencing scheme, which mandates that the sentencer weigh the mitigating factors against the aggravating factor, Peeler would be of limited relevance to this case. The defendant does not appear to contest that Peeler is a similar case, but instead points out that the state has not provided us with enough information to compare Peeler to the present case. We conclude that neither party has provided us with sufficient information to engage in a meaningful comparison of Peeler with the present case.
The defendant points out that the state did not include State v. Day, supra, 233 Conn. 813, in the list of cases that the state agreed were similar to the present case. The defendant contends that this was merely an oversight because the state does not object to the inclusion of Day and discusses Day among the cases to which it agrees. We agree with the defendant; the state’s failure to include Day in the list of similar cases to which both parties agree appears to be an oversight.
The defendant in Ross originally was charged with eight counts of capital felony involving four murders. State v. Ross, supra, 230 Conn. 188 n.2, 191-92. The conduct that the state claims is similar to the defendant’s case involves two of the victims in Ross. The defendant in that case kidnapped those two victims in Connecticut and transported them to Rhode Island, where he sexually assaulted and murdered one and murdered the other. Id., 192. In connection with that conduct, the defendant was charged with two counts of kidnap murder, one count of murder, one count of sexual assault murder and one count of multiple murder. The sexual assault murder count and the
In State v. Webb, supra, 238 Conn. 539-40 n.93, and Cobb II, supra, 251 Conn. 510 n.114, we treated the convictions in Ross as four separate cases for purposes of proportionality review because the defendant had been convicted of four separate sexual assault murders. In this case, we treat Ross as a single similar case because the defendant initially was charged with only one violation of § 53a-54b (8).
See footnote 7 of this opinion.
These were: (1) the role and actions of Fruean remain uncertain; (2) the defendant had no record of criminal activity other than a juvenile matter; (3) there was no evidence that the defendant had a violent nature other than the crime for which she was convicted; (4) the defendant had been a productive member of society for thirty years; (5) the defendant was an active and involved mother; (6) the defendant was a loving and devoted grandmother; (7) the defendant took handicapped children into her home for visits; (8) the defendant took care of a profoundly retarded child, making the child part of the defendant’s family; (9) the defendant welcomed her children’s friends into her home when they were in need; (10) the defendant was a hard worker and provided financial support to her family; (11) the quality of the defendant’s work with the handicapped; (12) the defendant went back to school to earn her high school degree and attend college after raising her children; (13) the defendant’s voluntary involvement in community activities; (14) the defendant’s generous dealings with others; (15) the defendant’s background, character and history suggest that she is unlikely ever to be a violent threat to others in the future; (16) the defendant provides positive contributions to the lives of her children, grandchildren and friends; (17) the nature of the defendant’s crimes is so out of character that a death sentence would be inappropriate; (18) a factor concerning the nature of the crime that in fairness or mercy constitutes a basis for a life sentence; (19) a factor concerning the defendant’s character, history or background that in fairness or mercy constitutes a basis for a life sentence;
“The defendant was convicted of one count each of conspiracy to commit capital felony in violation of General Statutes §§ 53a-48 and 53a-54b (8), conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, capital felony in violation of General Statutes § 53a-54b (8), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48,53a-133 and 53a-134 (a) (1) (2), robbery in the first degree in violation of General Statutes §§ 53a-133 and 53a-134 (a) (1) (2), possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b), and attempt to escape in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-169 (a) (1), and of two counts each of murder in violation of General Statutes § 53a-54a (a), and felony murder in violation of General Statutes § 53a-54c.” State v. Correa, supra, 241 Conn. 324 n.l.
Originally the state also had intended to prove that the defendant committed the crime in an especially heinous, cruel or depraved manner pursuant to § 53a-46a (b) (4), but it dropped this factor during the penalty phase hearing.
These were: (1) the defendant was criminally liable as an accessory and his participation in the offense was relatively minor; (2) the defendant was not the one who shot the victims; (3) there remains a lingering doubt as to whether the defendant shot the victims; (4) the defendant’s formal education ended in the fifth grade; (5) the defendant had a history of steady employment; (6) the defendant worked hard to support his family and improve their economic situation; (7) the defendant was a good man and a loving
The defendant was charged with “two counts of murder in violation of General Statutes § 53a-54a, one count of capital felony in violation of General Statutes § 53a-54b (8), one count of conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, and one count of conspiracy to commit capital felony in violation of §§ 53a-48 and 53a-54b (8).” State v. Steiger, supra, 218 Conn. 350.
The state in its brief asserts that we should consider “both Ross sentencing hearings” in the present defendant’s proportionality review. In State v. Ross, supra, 230 Conn. 183, we overturned the defendant’s first penalty phase hearing and remanded the case for a second penalty phase hearing. After the defendant’s second penalty phase hearing, he was again sentenced to death. The state appears to contend that we should consider the sentences imposed after the defendant’s first and second penalty phase hearings in Ross as two separate cases. We decline to do so. Although we recognize that we concluded in Webb that sentences that have been reversed on appeal should be included in the universe of cases from which the pool of similar cases must be drawn, on the ground that even reversed sentences may “provide valuable insight to this court in aid of our task of determining whether a particular death sentence is aberrational”; State v. Webb, supra, 238 Conn. 521; we did not contemplate including multiple sentences for the same conduct in the same case. For the same reasons that we have concluded that we should not include the prior reversed sentence of the defendant in the present case in the class of similar cases, we conclude that we should include only the latest sentence in cases where there have been multiple sentences. Accordingly, we include only the sentence resulting from the second penalty phase hearing in Ross in the class of similar cases.
The fourteen nonstatutory mitigating factors claimed in Ross were: (1) he demonstrated remorse; (2) he cooperated with the police; (3) he gave oral and written statements to the state police admitting guilt; (4) he continued to be cooperative with the police giving oral and written statements of guilt in five other homicides; (5) his cooperation was the major factor in solving the homicides in those cases; (6) he has adjusted well to prison and is a good, cooperative and productive inmate; (7) he has positive relationships with others who would suffer if the defendant was executed; (8) he has demonstrated responsibility as a human being and a strong work ethic; (9) the voluntary consumption of medication to help suppress and control the recurrent sexually sadistic urges that are the source of his mental illness; (10) fairness and mercy; (11) he is presently serving two consecutive life
The mitigating factors claimed by the defendant in Griffin were: (1) the role and actions of the codefendant remained uncertain; (2) the defendant had no record of criminal activity other than a juvenile matter; (3) there was no evidence that the defendant had a violent nature other than the crime for which she was convicted; (4) the defendant was an active and involved mother; (5) the defendant was a loving and devoted grandmother; (6) the defendant took care of a profoundly retarded child, making the child part of the defendant’s family; (7) the defendant welcomed her children’s friends into her home when they were in need; (8) the quality of the defendant’s work with the handicapped; (9) the defendant went back to school to earn her high school degree and attend college after raising her children; (10) the defendant’s voluntary involvement in community activities; (11) the defendant’s generous dealings with others; and (12) the defendant provided positive contributions to the lives of her children, grandchildren and friends.
The mitigating factors claimed by the defendant in Correa were: (1) the defendant was criminally liable as an accessory and his participation in the offense was relatively minor; (2) the defendant was not the one who shot the victims; (3) there remained a lingering doubt as to whether the defendant shot the victims; (4) the defendant was a good man and a loving husband; (5) the defendant was the father of two young children; (6) the defendant had no prior record of criminal convictions in Colombia; (7) the defendant was a member of a large, close, loving and supportive family; (8) the defendant had positive relationships with his family who indicated that they would support him if he was incarcerated; (9) the allure of the illicit drug trade significantly influenced the defendant’s judgment; (10) the defendant wrote letters for his sister and another individual claiming ownership of cocaine found at their apartment; (11) the victims were drug dealers who knowingly and voluntarily involved themselves in a violent and dangerous business; and (12) during the months of separation from his family, the defendant exhibited weaknesses in his personality that had not been exhibited in Colombia.
The panel in Roseboro stated: “The court finds that [the defendant] will conform well in situations of institutional confinement and adjust as needed to proper authority.
“The finding of a mitigating factor in no way subtracts from the horrendous nature of these crimes. The court believes that these were crimes of such immense proportions that they defy the use of proper adjectives. They were so distasteful that the panel has no doubt that the defendant deserves to face the most dire consequences for his act. . . .
“As far as this courtis concerned, the [capital felony] statute as it presently
The court stated that “[a]fter examining the case of [Skipper v. South Carolina, supra, 476 U.S. 1], we find the court is bound to consider as a mitigating factor the evidence relating to the defendant’s behavior while in confinement. The facts of this case are stronger than those in the Skipper case, which indicated that the fact that a prisoner was well-behaved and well-adjusted while incarcerated, supports favorable inferences regarding his probable future conduct if sentenced to life imprisonment. In the words of the United States Supreme Court, ‘[T]here is no question but that such inferences would be “mitigating” . . . .’ [Id., 4.]” The court in Skipper, however, had concluded that “the jury could have drawn favorable inferences from . . . testimony regarding [the] petitioner’s character and his probable future conduct if sentenced to life in prison”; (emphasis added) Skipper v. South Carolina, supra, 4; and that such inferences “might serve ‘as a basis for a sentence less than death.’ ” (Emphasis added.) Id., 5. The court did not conclude that such testimony would compel a finding of mitigation. Indeed, the court noted that “it is true that any such inferences would not relate specifically to [the] petitioner’s culpability for the crime he committed . . . .” (Citation omitted.) Id., 4.
We also note, however, that in Roseboro, unlike in this case, there was evidence that the defendant had been a well behaved prison inmate before he committed the crime for which he was charged with capital felony.
If a defendant charged with a capital offense could establish that he was under the influence of an extreme emotional disturbance that has a reasonable explanation or excuse, pursuant to § 53a-54a (a) he would establish a defense to murder and could not be convicted of the offense.
This does not mean that the defendant is not constitutionally entitled to claim extreme emotional disturbance as a nonstatutory mitigating factor if he is unable to establish a defense under § 53a-54a (a). It does mean, however, that proof of an extreme emotional disturbance that does not meet the requirements of that statute is not per se mitigating. Rather, the sentencer constitutionally may determine that the defendant’s subjective emotional disturbance is not mitigating in nature under the facts and circumstances of the particular case.
Dissenting Opinion
dissenting. Again, I assert my opposition to capital punishment. See State v. Cobb, 251 Conn. 285, 543, 743 A.2d 1 (1999) (Norcott, J., dissenting), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d
The new millennium is now upon us, and my opposition to the death penalty remains “steadfast and unwavering.” State v. Courchesne, 262 Conn. 537, 584, 816 A.2d 562 (2003) (Norcott, J., concurring). The passage of a few years time has done nothing to blunt the pervasive and insidious influence of race and poverty in the administration of the death penalty.
In my dissenting opinion in State v. Cobb, supra, 251 Conn. 543, I explained, in great detail, why the “death penalty cannot withstand constitutional scrutiny because it allows for arbitrariness and racial discrimination in the determination of who shall live or die at the hands of the state.” I discussed the insidious influence of a defendant’s poverty; id., 548-49; as well as the pervasive evil of racial discrimination in capital sentencing; id., 545-48; including the shocking results of a study that “revealed how the race of the defendant was ... a more accurate predictor of capital punishment than the severity of the crime or the defendant’s criminal backgroun d.” Id., 547.1 also discussed the alarming possibility of actual innocence, which is the “real fear presented by [death penalty] cases . . . [i]n a system that is so inherently flawed with arbitrariness and lack of fairness . . . .” Id., 549. I proposed that Connecticut “remain on a higher plane, and further suggested] that if this state has not yet begun executions for over thirty years, it should not begin now, when people—particularly those in our legal community—simply do not have faith in it anymore.” Id., 550-51. Finally, I noted that, in light of the availability of life imprisonment without the possibility of parole as an alternate penalty, “the continuation of the death penalty simply makes no sense as we approach a hopefully more enlightened new millennium.” Id., 552.
Indeed, I echoed this aspiration in my dissent in State v. Webb, 252 Conn. 128, 147, 750 A.2d 448 (Norcott, J., dissenting), cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000), wherein I stated that I was “optimistic that very early in the twenty-first century we will all witness the abolition of this practice by Connecticut as a state and the United States as a country.”
See, e.g., C. Ogletree, “Black Man’s Burden: Race and the Death Penalty in America,” 81 Or. L. Rev. 15, 23-31 (2002) (impact of racial discrimination injury selection and imposition of capital punishment); D. Vick, “Poorhouse Justice: Underfunded Indigent Defense Services and Arbitrary Death Sentences,” 43 Buff. L. Rev. 329, 338 (1995) (describing shortcomings of indigent
As Professor Freedman wrote: “[PJerhaps progress will come less from an exercise in abstraction than one in imagination: Any one of us could wind up in Earl Washington’s position, and what then?” E. Freedman, supra, 29 Hofstra L. Rev. 1109. Indeed, since 1973, there have been 108 exonerations of prisoners from the death rows of twenty-five states because of evidence of their innocence; on average, five death row prisoners are exonerated each year. See Death Penalty Information Center, “Innocence and the Death Penalty,” http://www.deathpenaltyinfo.org (last visited June 4, 2003).
I note that in January, 2003, following the two year moratorium on the imposition of the death penalty, Governor George Ryan of Illinois cited the dangers of wrongful capital convictions, and commuted the death sentences of that state’s entire death row population to life imprisonment without the possibility of parole. See, e.g., A. Lasker, “First One, Then Another . . . Then Everyone,” CM. Daily L. Bull., January 13, 2003, p. 1.
I also note, with regret, that the newly elected governor of Maryland has proceeded in the opposite direction from Illinois, and in January, 2003, lifted that state’s moratorium on the imposition of the death penalty. See, e.g., A. Iiptak, “Top Lawyer In Maryland Calls for End To Executions,” N.Y. Times, January 31, 2003, p. A19.
