STATE OF CONNECTICUT v. RUSSELL PEELER
(SC 16362) (SC 16354)
Supreme Court of Connecticut
Arguеd December 3, 2003-officially released October 12, 2004
271 Conn. 338
Sullivan, C. J., and Borden, Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.
The form of the judgment is improper, the judgment is reversed and the case is remanded with direction to render judgment for the defendants on the merits of the plaintiff‘s claim for injunctive relief.
In this opinion the other justices concurred.
Mark Rademacher, assistant public defender, for the appellee-appellant (defendant).
Opinion
VERTEFEUILLE, J. After a jury trial, the defendant was convicted of one count of murder in violation of
On appeal, the defendant claims that the trial court: (1) improperly instructed the jury that it could convict the defendant of a capital felony based upon a theory of conspiratorial liability under Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946); (2) improperly charged the jury on an element of conspiratorial liability under the Pinkerton doctrine by failing to instruct the jury that, in order to find the defendant guilty of murder, it must find that the coconspirator intentionally caused the victims’ deaths; (3) deprived the defendant of his federal and state constitutional rights to confront witnesses and to present a defense by refusing to disclose certain medical, drug treatment and psychiatric records of a state‘s key witness for the purpose of cross-examination; (4) violated his constitutional rights to be present at all stages of his trial and to presence of counsel when it conducted two ex parte proceedings with the attorney for a key witness for the state; and (5) violated the Code of Judicial Conduct when the presiding judge failed to recuse himself, sua sponte, after conducting those two ex parte proceedings. We conclude that the defendant‘s first, second and fifth claims are without merit. Furthermore, even if we assume that the defendant‘s third and fourth claims are valid, we nevertheless conclude that the improprieties were harmless. Accordingly, we affirm the conviction portion of the judgment of the trial court.
The second appeal is the state‘s appeal from the sentencing portion of the defendant‘s conviction. Specifically, the state appeals from: (1) the trial court‘s denial of the state‘s motion for a mistrial, its dismissal of the penalty phase proceedings, and the subsequent imposition of a sentence of life imprisonment without the possibility of release; and (2) the trial court‘s subsequent denial of the state‘s request for permission to appeal, pursuant to
The state further argues that the trial court abused its discretion by denying its motion for a mistrial after improperly instructing the jury that if it remained deadlocked, the trial court would be required to impose a sentence of life imprisonment “without the benefit of release.” Such an improper instruction, the state argues, was not only based upon an unsound legal premise, but tainted the jury deliberations by: (1) leading the jury to believe that the responsibility for determining the appropriateness of whether the defendant should be sentenced to life imprisonment or put to death did not rest solely in its discretion; and (2) increasing the likelihood that the jury would remain deadlocked.
In response to the state‘s claims, the defendant presents four alternate grounds for affirmance. The defendant argues that the judgment of the trial court, sentencing him to life imprisonment, should be affirmed because: (1)
I
THE FACTS
The jury reasonably could have found the following facts. In the late 1990s, the defendant and his brother, Adrian Peeler (Adrian), operated a large-scale drug trafficking network that sold crack cocaine (crack) throughout the city of Bridgeport. In 1997, the defendant partnered with Rudolph Snead, Jr., to produce and distribute the crack. Snead‘s responsibilities included providing the defendant with powdered cocaine, which the defendant, with the help of several associates, processed into crack and then sold on the streets. The partnership began to sour when, in 1997, the defendant accused Snead of overcharging him for the powdered cocaine. Snead responded to the accusation by “shooting up” a building on Benham Street in Bridgeport that
In September, 1997, the defendant, Corey King, Shawn Kennedy, and the defendant‘s cousin, Ryan Peeler (Ryan), were driving in Bridgeport when the defendant noticed Snead‘s car parked in the lot of a barber shop. The defendant observed Snead leave the barber shop, get into his car and drive away. At the time, the defendant was aware that two young boys, later identified as Leroy Brown, Jr., and Tyrell Snead (Tyrell), were passengers in Snead‘s car.
The defendant‘s car followed Snead‘s car to the Lindley Avenue entrance ramp to Route 25. As Snead proceeded up the ramp, he slowed down and pulled off to the side. The defendant‘s vehicle pulled up next to Snead‘s car, and the defendant, who was seated in the right front passenger seat, fired several shots at Snead from a .40 caliber, semi-automatic handgun.11 The defendant kept shooting until his gun jammed.
Several of the shots fired by the defendant hit Snead, injuring him, but not so severely that he was unable to drive away. A Bridgeport police officer, who noticed glass falling from Snead‘s car as he drove by, stopped the vehicle. After Snead explained what had happened, the officer sent him to St. Vincent‘s Medical Center for treatment.
At the hospital, another officer from the Bridgeport police department interviewed Snead and his two young passengers, Brown and Tyrell. The officer‘s investigative report included the names of all three interviewees. On the basis of Snead‘s identification of the defendant as the person who had shot him, the defendant was arrested and charged with attempted murder.
While investigating Snead‘s death, the Bridgeport police department performed ballistics tests comparing the shell casings retrieved from the murder scene with those from the Lindley Avenue shooting. The tests revealed that all of the bullets had been discharged from the same gun. The police were also aware that Brown could identify the defendant as the shooter in the Lindley Avenue shooting, thus linking him directly to Snead‘s murder. On the basis of this information, the defendant was arrested and charged with Snead‘s murder.
The defendant, however, again secured his release by posting bond. As a condition of his release, the defendant was required to observe a curfew and wear an electronic ankle bracelet to ensure compliance. Despite these precautions, the defendant continued operating his drug trafficking business, albeit from a new location.
In January, 1998, during the course of pretrial discovery in connection with the Lindley Avenue shooting, the state provided defense counsel with the police report identifying Brown and Tyrell as the two passengers in Snead‘s car when that shooting had occurred. The trial court, however, ordered counsel to conceal the names of the two children from the defendant to ensure their safety.
During the fall of 1998, the defendant frequently discussed his pending cases with his attorney, and often
The defendant‘s suspicions were confirmed when, one day while driving past 207 Earl Avenue in Bridgeport, where Brown lived with his mother, Karen Clarke, the defendant saw Brown playing outside. When Brown saw the defendant, he looked surprised and immediately ran away. As a result, the defendant concluded that Brown was in fact one of the state‘s witnesses. The defendant thereafter openly contemplated the possibility of having someone kill Brown and Clarke.
In December, 1998, the defendant told his girlfriend, Angelina Keene, that she should move away from Bridgeport because he was going to start killing the witnesses against him.12 At about the same time, the defendant offered Kybarris Taylor $10,000 to kill two people. Specifically, the defendant told Taylor that he wanted to eliminate “two nobodies.” Taylor refused the offer. The defendant also asked his brother Adrian and Josephine Lee, a crack addict and prostitute who lived
The defendant also told his associates that he wanted the witnesses killed with a revolver because, unlike a .40 caliber semi-automatic handgun, the shell casings would not be discharged from the revolver, making it more difficult to link the shootings to the gun.13 In October, 1998, one of the defendant‘s associates in the drug trade, Albrent Daniels, procured for the defendant the revolver that was to be used to kill Clarke and Brown. Michael Lanier, a drug user, went to a crack house that was controlled by the defendant and offered to trade Daniels a .357 magnum revolver in exchange for drugs. Daniels contacted the defendant and asked whether he was interested in acquiring the gun. The defendant agreed, and Daniels subsequently traded for the revolver. King, another associate of the defendant, then picked up the gun from Daniels and delivered it to the defendant.
King testified that at one point after the defendant had gained possession of the gun, the defendant described to several of his associates, including Adrian, what he intended to do with it. He said that he would put the gun to Brown‘s head and go “[p]ow,” simulating the sound of a gunshot. The gun eventually was given to the defendant‘s brother, Adrian.
At this same time, the defendant and his drug trafficking associates moved their crack production to a house located at 200 Earl Avenue in Bridgeport, across the street from the house in which Clarke and Brown then
Lee testified that on January 6, 1999, the day before the Clarke and Brown murders, the defendant and an associate, later identified as King, were at the house located at 200 Earl Avenue. According to Lee, the two men spent time in the dining room observing Clarke and Brown‘s residence. Lee further testified that another of the defendant‘s associates, later identified as Gary Garner, and the defendant‘s brother, Adrian, also came by the house that day. At some point, King left Lee‘s residence and, thereafter, Lee observed Adrian and the defendant conversing in the dining room.
The defendant and Adrian then entered the kitchen and “cooked” some crack. Lee testified that the defendant asked her if she would “do him a favor . . . [and] kill the woman across the street. . . .” Lee, however, refused to do so. The defendant thereupon asked Adrian if he would kill Clarke and her son. According to Lee, Adrian indicated that he would “take care of it.”
The defendant then asked Lee to keep an eye on the 207 Earl Avenue address and to contact him when Clarke and Brown returned home. Lee agreed to do so, and the defendant wrote down his beeper number for her to call. The defendant then gave Lee a handful of crack cocaine as payment for her cooperation.
The next day, when Lee saw Clarke and Brown return home, she telephoned the defendant‘s beeper number and left her number. When the defendant called her back, she informed him that Clarke and Brown had returned home. The defendant said “okay” and hung up the telephone. A few minutes later, Adrian arrived at Lee‘s residence holding a gun. Adrian greeted Lee and then immediately departed Lee‘s residence. Lee followed him.
Adrian and Lee approached Clarke‘s residence and Lee rang the front doorbell while Adrian remained behind her. Lee heard a voice from inside the house ask, “[w]ho is it?” Lee responded, “[t]he girl across the street.” Clarke cracked open the door, at which time Adrian pushed past Lee and forced the door open. Lee testified that she heard the rustle of grocery bags, which were later found strewn across the floor, and the sounds of a struggle inside. When Lee entered the house, she saw Clarke and Brown running up the stairs trying to escape from Adrian, who was chasing them. According to Lee, once Clarke and Brown reached the top of the stairs, she heard a gunshot, and then heard Brown scream out, “mommy, mommy, mommy, mommy,” from the top of the stairs. Lee then saw Adrian pursue Clarke into a bedroom and heard him mention something about Brown being a witness to a shooting. Lee, who by this time was at the top of the stairs, testified that she had heard another gunshot and, immediately thereafter, observed Adrian emerge from the bedroom. Lee further stated that she saw Adrian shoot Brown in the head. Adrian then ran out of the house. Lee, who was still at the top of the stairs, testified that she initially had stood frozen, but eventually left to return to her residence at 200 Earl Avenue. On her way out of Clarke and Brown‘s house, Lee noticed Adrian was gone, as was the car in which Garner had been sitting. Louis Ellis, who also lived at 200 Earl Avenue, corroborated Lee‘s account, testifying that on the evening of the murders, he heard four or five gunshots, and shortly there-
On April 14, 1999, the defendant was arrested for the murders of Clarke and Brown and charged with one count of murder, two counts of capital felony-one for the murder of Brown, and the second for the double murder-and one count of conspiracy to commit murder. While incarcerated and awaiting trial, the defendant inculpated himself to fellow inmates. Two of those inmates, Audrey Holeman and Thomas Kerr, testified that while each was incarcerated with the defendant, the defendant had bragged about his involvement in the murders. Holman testified that he had overheard the defendant tell another inmate that his brother would not testify against him because the defendant had murdered one person, but his brother had murdered two, and that the defendant was pleased with his brother because Adrian “had done something righteous” for him “that nobody else . . . would do . . . .” Kerr testified that the defendant had told him that “that bitch,” Clarke, rather than the defendant himself, was responsible for both of the deaths, and that “[s]he should have known not to mess with him.”
After a jury trial, the defendant was found guilty on all counts. The state then proceeded to a penalty hearing, in accordance with
After several unsuccessful attempts by the trial court to obtain a unanimous verdict, which included the giving of a “Chip Smith”15 instruction to the jury, the court submitted a revised verdict form that allowed the jury to indicate the following: (1) on the capital felony count concerning the murder of Brown, “[w]e the jury unanimously agree that we are unable to unanimously agree that one or more of the proved statutory aggravating factors outweighs one or more of the proved nonstatutory mitigating factors“; and (2) as to the capital felony count directed at the double homicide, “[w]e the jury unanimously agree that we are unable to unanimously agree that the [s]tate has proved one or more of the statutory aggravating factors beyond a reasonable doubt.” Neither the defendant nor the state objected to the submission of the revised verdict form. The jury then resumed deliberations and, on both counts, selected the option declaring that it unanimously agreed that it could not unanimously agree.
After the trial court denied the state‘s motion for a mistrial, the court subsequently dismissed the penalty phase proceedings, rendered a judgment of guilty in accordance with the verdict and, merging the two capital felony counts and the murder count, sentenced the
II
THE DEFENDANT‘S APPEAL
A
The defendant first claims that the trial court improperly instructed the jury that it could convict the defendant of a capital felony based on conspiratorial liability under Pinkerton v. United States, supra, 328 U.S. 640.17
ted the crime of murder, [and] you further conclude beyond a reasonable doubt that the murder was in the scope of and the furtherance of this conspiracy, then each and every member of that conspiracy would be guilty of the murder charge whether or not they personally committed the murder.
* * *
“It does not matter whether [the murder] that resulted from the . . . coconspirator‘s act be intended by [the defendant]. When the deaths of the victims caused by the . . . coconspirator‘s conduct is a foreseeable and natural result of that conduct, the law considers the [chain] of legal causation unbroken and holds the defendant‘s . . . coconspirators and thus the defendant criminally responsible.”
The jurors were admonished, however, that finding the defendant guilty of conspiracy to commit murder was insufficient to convict him of a capital felony under the theory of Pinkerton liability unless the state proved all of the other elements of those crimes. Specifically, the court stated that, “[a] verdict of guilty for the crime of conspiracy to commit the murder does not automatically result in a verdict of guilty for the crime of murder or capital felony,” unless the state proves all of the other elements of the crimes charged. The jury repeatedly was instructed that it must decide whether the defendant intended to commit the murders, the alleged underlying object of the conspiracy. In particular, in the court‘s supplemental instructions, it told the jury that these are “specific intent crime[s]. All four charges require the finding by a jury unanimously that the intent of the actor during the course of the conduct is intentional conduct.”
The court then defined the crime of murder as follows: “A person is guilty of murder, [when] with intent to cause the death of another person, he causes the death of such person.”
We conclude that, in the present case, the first two prongs of Golding are satisfied, that is, the record is adequate for review and the claim is of constitutional magnitude. See State v. Coltherst, 263 Conn. 478, 490, 820 A.2d 1024 (2003) (claim of improper jury instruction on Pinkerton liability is of sufficient constitutional magnitude for Golding review); State v. Leroy, 232 Conn. 1, 7, 653 A.2d 161 (1995) (“an improper jury instruction as to an essential element of the crime charged may result in the violation of the defendant‘s due process right to a fair trial, and thus require the reversal of a conviction based upon that instruction“). Accordingly, we conclude that the defendant‘s claim is reviewable.20 We also conclude, however, that the trial court‘s instruction on Pinkerton liability was proper and the defendant therefore cannot prevail under the third prong of Golding.
We begin by setting forth the appropriate standard of review. “The standard of review for claims of instructional impropriety is well established. [I]ndividual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper
Our analysis begins with a brief review of our case law applying the Pinkerton doctrine. “In Pinkerton v. United States, supra, 328 U.S. 647-48, the United States Supreme Court concluded that under the federal common law, a conspirator may be held liable for criminal offenses committed by a coconspirator if those offenses are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy.” State v. Diaz, 237 Conn. 518, 526, 679 A.2d 902 (1996). “This court first explicitly adopted the Pinkerton principle of vicarious liability for purposes of our state criminal law in State v. Walton, 227 Conn. 32, 630 A.2d 990 (1993). . . . The rationale for the [adoption of the] principle [was] that, when the conspirator [has] played a neces
“We concluded in Walton that the Pinkerton principle was applicable in state criminal cases, reasoning, first, that Pinkerton liability is not inconsistent with our penal code and, therefore, that we were not prohibited from recognizing that theory of criminal liability as a matter of state common law. See
“In State v. Diaz, supra, 237 Conn. 518, we were required to decide whether to extend the principle of vicarious liability that we adopted in Walton to a case in which not all of [the three Walton] conditions have been met, a question that we expressly reserved in Walton. . . . In Diaz, the defendant had been convicted of, inter alia, murder under the Pinkerton doctrine and conspiracy to commit murder. . . . The evidence showed that the defendant, along with several other individuals, had fired multiple gunshots into a motor vehicle occupied by the victim and three others. . . . The victim was struck and killed by a single bullet. . . . The defendant claimed on appeal that the court‘s instruction under the Pinkerton doctrine had been improper because, among other reasons, it was broader than the limited version of the doctrine recognized in Walton. . . . This court acknowledged that the state had not proved that the defendant was the leader of the conspiracy to ambush the vehicle and its occupants
“We also acknowledged, however, that there may be occasions when it would be unreasonable to hold a defendant criminally liable for offenses committed by his coconspirators even though the state has demonstrated technical compliance with the Pinkerton rule. . . . In such a case, a Pinkerton charge would not be appropriate.” (Citations omitted; internal quotation marks omitted.) State v. Coltherst, supra, 263 Conn. 491-93.
In claiming that the trial court improperly instructed the jury that it could convict the defendant of capital felony under
Our recent decision in State v. Coltherst, supra, 263 Conn. 478, is dispositive of this argument. “In Coltherst, we considered the defendant‘s claim that, under State v. Harrell, [supra, 238 Conn. 839], and State v. Johnson, [supra, 241 Conn. 713-14], he could not be convicted of capital felony under
The defendant further argues that “[a]llowing the use of Pinkerton liability to prove a capital felony would produce an absurd, bizarre and unworkable result.”25 Specifically, he claims such a bizarre result would occur because, under the doctrine of accessorial liability, “[a] defendant who agrees to commit a violent felony with
Lastly, the defendant argues that this court never has adopted the expansive notion of Pinkerton liability applied by the trial court, and should not do so in the present case. Specifically, he argues that “[t]his court has [never] applied Pinkerton to a defendant who was not actively involved in the murder or was not even at the scene . . . and should not do so in this case . . . .”26 We disagree.
In the present case, the facts reveal that the defendant sufficiently was engaged in the conspiracy so that it is not unreasonable to impose criminal liability on him for the actions of his coconspirator. Indeed, the defendant was the one who had initiated the plan to murder Brown and Clarke in order to prevent them from testifying against him. The evidence at trial established that the defendant believed that Brown had witnessed the Lindley Avenue shooting. As a result, the defendant conspired with his brother, Adrian, to murder Brown and Clarke in order to prevent them from testifying against him at his trial for Snead‘s murder. The defen
Accordingly, we conclude that the trial court properly instructed the jury that it could convict the defendant of capital felony based upon conspiratorial liability under the Pinkerton doctrine. Therefore, a constitutional violation does not clearly exist and the defendant‘s claim fails under the third prong of Golding.
B
The defendant‘s second claim is that the trial court improperly charged the jury on an element of conspiratorial liability under the Pinkerton doctrine by failing to instruct the jury that, in order to find the defendant guilty of murder, it had to find that the coconspirator intentionally caused the victims’ deaths. In other words, the defendant argues that by instructing the jury that it could convict the defendant if it found that he had conspired to murder the victims and a coconspirator “perform[ed] that act that was the proximate cause” of their deaths, the court improperly treated Pinkerton liability as a species of felony murder requiring that a
At the outset, we address the reviewability of this claim. The defendant once more concedes that he failed to preserve this claim, and therefore seeks to prevail under Golding and the plain error doctrine.28 The defendant argues that the issue is reviewable under Golding because the record is adequate for review and the claim is of constitutional magnitude.29 We agree.30 We conclude, however, that the defendant‘s claim falls short on its merits, and thereby fails to meet the third prong of Golding.
We begin our analysis by setting forth the applicable standard of review. As we previously noted herein, “individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.” (Citation omitted; internal quotation marks omitted.) State v. Coltherst, supra, 263 Conn. 490. Accordingly, in reviewing a constitutional challenge to the trial court‘s instruction, we must consider the jury charge as a whole to determine whether it is “sufficiently correct in law,
As we previously noted herein, the Pinkerton doctrine allows the state to prove the guilt of one defendant through the acts of another committed within the scope of and in furtherance of a conspiracy of which the defendant was a member, provided the acts are reasonably foreseeable as a necessary or natural consequence of the conspiracy. See Pinkerton v. United States, supra, 328 U.S. 647-48. In State v. Diaz, supra, 237 Conn. 531, this court clarified the standard when it stated that when applying Pinkerton liability, “a defendant may not be convicted of murder unless one of his criminal associates acting foreseeably and in furtherance of the conspiracy, caused the victim‘s death with the intent to do so.” (Emphasis added.)
On the basis of the totality of the jury instructions, we are not persuaded that the jury was misled to believe that Adrian‘s intent was irrelevant in determining whether the defendant was guilty of murder based upon a theory of conspiratorial liability under the Pinkerton doctrine. The jurors specifically were instructed that in order to find the defendant guilty of conspiracy to commit murder, they had to “conclude [that] the defendant was a member of the conspiracy as charged in the second count of the information beyond a reasonable doubt and that another member of that same conspiracy committed the crime of murder, [that then] you further conclude beyond a reasonable doubt that the murder was in the scope of and the furtherance of this conspiracy, then each and every member of that conspiracy would be guilty of the murder charge whether or not they personally committed the murder.” (Emphasis added.)
The trial court then explained to the jury that murder, by definition, must include an intentional act. Citing
The defendant argues in his brief that, “[o]n six occasions, the court told the jury it only had to find thаt a coconspirator caused the victims’ deaths and never told the jury that it must find that Adrian committed murder . . . .”31 Specifically, the defendant points to the trial court‘s repeated use of the instruction that the jury could convict the defendant of murder if it found that he conspired to murder the victims and a coconspirator “performed the act that was the proximate cause” of
C
The defendant‘s third claim is that the trial court violated his constitutional rights under the
Certain additional facts are relevant to this issue. Prior to trial, the state moved to depose Lee because she was suffering from a terminal illness and might not survive until trial. After reviewing Lee‘s medical records
Before Lee‘s deposition, the defendant moved for a hearing on Lee‘s competency to testify. The defendant argued that because Lee was suffering from an unspecified terminal illness,37 such illness could also affect her competency to testify, and therefore a hearing was warranted. In order to resolve this issue, Lee consented to the release of her medical, drug treatment and psychiatric records (mental health records) from the various federal prisons, psychiatric institutions and rehabilitation centers in which she had been held or admitted over the past several years, to the extent it was necessary to determine whether she was competent to testify.38 The trial court, however, postponed ruling on the motion until a later date.
At about the same time that the defendant filed his motion for an inquiry into Lee‘s competency, he also filed a motion for production requesting all of Lee‘s mental health records for impeachment purposes during cross-examination. The defendant argued, among other things, that such documents contained information relevant to Lee‘s mental condition that reasonably could affect her credibility at trial. He argued that, at a minimum, such information warranted an in camera review by the court. The trial court denied the motion without comment.
Lee‘s deposition began in early November, 1999.39 The court initiated the proceedings by addressing the defendant‘s motion for a hearing regarding Lee‘s competency to testify. The defendant argued that recently disclosed reports indicated that Lee was a “patient . . . beginning to lose it, that she hears voices, that she sees hallucinations,” and, therefore, she was not competent to testify. The trial court, however, disagreed. After reviewing Lee‘s mental health records, the trial court concluded that Lee appeared to be unstable only when under the influence of narcotics, that she was not presently under the influence of such substances and, therefore, that she was competent to testify. The state then commenced its direct exаmination of Lee.
Prior to defense counsel‘s cross-examination of Lee, the defendant renewed his previous motion for permission to use Lee‘s medical records during cross-examination.40 Having previously reviewed Lee‘s mental health records in relation to his motion on Lee‘s competency to testify, the defendant argued that an in camera review
After hearing Lee testify on direct examination, and having heard argument from all the parties, the trial court concluded that Lee “had feelings of suicide when depressed, and that usually was in conjunction with the development of the use of crack cocaine . . . and/or alcohol.” Relying on this court‘s opinion in State v. D‘Ambrosio, 212 Conn. 50, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990), the court noted, however, that a witness’ history of drug or alcohol treatment does not automatically provide the key to gain access to that witness’ mental health records. Therefore, the trial court initially concluded that the defendant had not met the threshold burden needed to justify an in camera review of Lee‘s mental health records.
Nevertheless, “out of an abundance of caution,” the trial court reviewed all of Lee‘s mental health records in camera and concluded that “[t]here is no especially probative feature to be disclosed from [the mental health records] in the court‘s judgment of this witness’ capacity to relate the truth or to observe and recollect and narrate relevant occurrences, not only now, but in the course of her developing life as she suffered from physical illness and addiction problems.” The records were then sealed for appellate review, and the deposition proceeded.
Lee subsequently testified before the jury during the defendant‘s trial. Lee testified on direct examination that in January, 1999, she had smoked crack on a daily basis. She further testified that she had smoked crack on the day of the murders. During cross-examination, Lee admitted that when she was under the influence of crack, she would experience extreme paranoia, lasting approximately five minutes. When asked what she meant by feeling “paranoid,” she stated that she would get “scared.” The defendant impeached Lee‘s credibility with an inconsistent statement from her deposition, wherein she testified that she remained paranoid for fifteen to twenty minutes after ingesting crack. The defendant further impeached Lee with numerous inconsistent statements that she had made to the police about the events surrounding the murders. Due to the court‘s order sealing her mental health records, however, defense counsel made no attempt to question Lee about her mental illnesses.
While the appeal in the present case was pending, Adrian‘s case went to trial. On a motion by counsel for Adrian, the trial judge in that case, O‘Keefe, J., ordered
that either Lee consent to the release of her mental health records to defense counsel for Adrian, the same mental health records in dispute in the present case, or the state would be precluded from having Lee testify. Lee subsequently consented to their full release, thereby making the records available to Adrian‘s counsel during cross-examination.
Because Lee‘s mental health records had become part of the public record at Adrian‘s trial, the defendant‘s appellate counsel subsequently moved to have the records unsealed so their contents could be reviewed and referred to in the present appeal. Lee consented, and the trial court therefore unsealed them.
On appeal, the defendant claims that the trial court abused its discretion by denying disclosure of Lee‘s mental health records for purposes of cross-examination. The defendant argues that such an exclusion violated his state and federal constitutional rights to cross-examine Lee about her various hospitalizations, medications and psychiatric conditions, especially as aggravated by her significant crack use, in an effort to challenge her ability to perceive and recall the events surrounding the murders. We have reviewed Lee‘s mental health records in connection with our determination of this appeal and we conclude that the defendant should have been given access to portions of the records that bore on Lee‘s ability to understand, recall and relate the circumstances of the murders. We further conclude, however, that the failure to afford the defendant access to these records was harmless beyond a reasonable doubt.41
“We first set forth the standard of review for determining whether the exclusion of this evidence enti
It is well established that “[a] criminal defendant has a constitutional right to cross-examine the state‘s witnesses, which may include impeaching or discrediting them by attempting to reveal to the jury the witnesses’ biases, prejudices or ulterior motives, or facts bearing on the witnesses’ reliability, credibility, or sense of perception. Delaware v. Fensterer, 474 U.S. 15, 19, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985); Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Storlazzi, 191 Conn. 453, 457, 464 A.2d 829 (1983). Thus, in some instances, otherwise privileged records, like the ones in this case, must give way to a criminal defendant‘s constitutional right to reveal to the jury facts about a witness’ mental condition that may reasonably affect that witness’ credibility. State v. Hufford, 205 Conn. 386, 401-402, 533 A.2d 866 (1987); State v. Pierson, 201 Conn. 211, 227, 514 A.2d 724 (1986), on appeal after remand, 208 Conn. 683, 546 A.2d 286 (1988), cert. denied, 489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d 193 (1989).” State v. Slimskey, 257 Conn. 842, 853-54, 779 A.2d 723 (2001).
“We are mindful, however, that the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” (Internal quotation marks omitted.) State v. Rolon, supra, 257 Conn. 175. “The need to balance a witness’ statutory privilege to keep psychiatric records confidential against a defendant‘s rights under the confrontation clause is well recognized. See, e.g., State v. Herring, 210 Conn. 78, 108-109, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). The test and the associated burdens imposed on a defendant are equally well chronicled. If, for the purposes of cross-examination, a defendant believes that certain privileged records would disclose information especially probative of a witness’ ability to comprehend, know or correctly relate the truth, he may, out of the jury‘s presence, attempt to make a preliminary showing that there is a reasonable ground to believe that the failure to produce the records would likely impair his right to impeach the witness. . . . If in the trial court‘s judgment the defendant successfully makes this showing, the state must then obtain the witness’ permission for the court to inspect the records in camera. A witness’ refusal to consent to such an in camera inspection entitles the defendant to have the witness’ testimony stricken. . . .
“Upon inspecting the records in camera, the trial court must determine whether the records are especially probative of the witness’ capacity to relate the truth or to observe, recollect and narrate relevant occurrences. . . . If the court determines that the records are probative, the state must obtain the witness’ further waiver of his privilege concerning the relevant portions of the records for release to the defendant, or have the witness’ testimony stricken. If the court discovers no probative and impeaching material, the entire record of the proceeding must be sealed and preserved for
possible appellate review. . . . Once the trial court has made its inspection, the court‘s determination of a defendant‘s access to the witness’ records lies in the court‘s sound discretion, which we will not disturb unless abused.” (Internal quotation marks omitted.) State v. Slimskey, supra, 257 Conn. 855-56. “[T]he linchpin of the determination of the defendant‘s access to the records is whether they sufficiently disclose material especially probative of the ability to comprehend, know and cоrrectly relate the truth . . . so as to justify breach of their confidentiality and disclosing them to the defendant in order to protect his right of confrontation.” (Internal quotation marks omitted.) Id., 856-57. “It bears emphasis [however] that any limitation on the impeachment of a key government witness is subject to the most rigorous appellate review.” State v. Colton, 227 Conn. 231, 250, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996).
With this standard in mind, our review of Lee‘s mental health records convinces us that portions of these records directly relate to Lee‘s ability to perceive, remember and relate events at the time of the murders and, therefore, should have been disclosed by the trial court to the defendant for use for impeachment purposes. Specifically, the records contain information that could call into question Lee‘s mental stability at the time of the events in question, and could have created doubt regarding her ability accurately to perceive and relate the events surrounding the murders. See State v. Piskorski, 177 Conn. 677, 736, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). In particular, the records reveal that both prior to and after the murders, Lee was diagnosed with significant mental disorders, including “cocaine induced psychiatric disorder with hallucinations,” “chronic paranoid
The records further reveal that in the year prior to the events in question, while hospitalized, Lee had been placed in four point restraints and medicated with Thorazine, an antipsychotic drug,42 on several occasions after severely acting out as a result of hearing voices. On one occasion in particular, Lee was restrained after running wildly up and down the hallway of the Southwest Community Mental Health Center, experiencing auditory hallucinations, and yelling that “the people say I got to get out of here.” Finally, the records reveal that only seven months after the events in question, Lee was again diagnosed as having “a history of schizophrenia,” of “hearing voices for the last two years,” especially when using drugs, and, most importantly, experiencing difficulty in recalling past events, including her numerous suicide attempts.
On the basis of the foregoing, we conclude that Lee‘s mental health records contained information demonstrating that she suffered from conditions that may have “substantially affected [her] ability to observe, recall or narrate events at issue in the trial.” State v. Cardinal, 194 Conn. 114, 119, 478 A.2d 610 (1984). Specifically, Lee‘s records reveal a history of mental unsoundness, including hallucinations, delusions, misperception of reality and paranoia, exacerbated by a severe state of substance dependency. The records therefore were probative of Lee‘s ability to “comprehend, know and correctly relate the truth,” which, as previously noted, is the linchpin in determining whether disclosure is warranted. (Internal quotation marks omitted.) State v. Slimskey, supra, 257 Conn. 856. Accordingly, we con-
The state argues that the trial court correctly refused the defendant access to Lee‘s mental health records because her records solely relate to “her drug and alcohol addiction and treatment, and the resulting depression, despair and suicidal feelings.” On the basis of this court‘s conclusion in State v. Bruno, 236 Conn. 514, 529, 673 A.2d 1117 (1996), that “‘we have never held that a history of alcohol or drug abuse or treatment automatically makes a witness fair game for disclosure of psychiatric records to a criminal defendant,‘” the state argues that the trial court did not abuse its discretion in denying the defendant access to Lee‘s mental health records. We disagree.
The state mischaracterizes the nature of the defendant‘s claim. The defendant does not argue that he should have been given access to Lee‘s mental health records because they demonstrate a history of alcohol and drug abuse, and therefore would be relevant to her credibility. Rather, the defendant argues that he should have been given access because the records reflect that Lee suffered from mental instability, before and after the events in question, which was exacerbated by her drug and alcohol abuse. It is this information that the defendant deems strongly probative of Lee‘s ability accurately to perceive, recall and relate the events at the time of the murders. We agree with the defendant.
Our conclusion that the trial court improperly denied disclosure of Lee‘s mental health records for purposes
In the present case, the trial court refused to disclose Lee‘s mental health records, which prevented the jury from evaluating the impact of Lee‘s mental condition on her ability accurately to perceive, recall and relate the events in question. Moreover, although the trial court allowed the defendant to question Lee during cross-examination concerning her heavy use of crack and the paranoia she felt while under the influence of crack, the defendant was denied any meaningful opportunity to inquire into Lee‘s extensive history of mental illness, and how her admitted drug use may have affected her mental condition, which we previously have determined was relevant to her credibility as a witness. Consequently, we conclude that the trial
“Whether [a confrontation violation] is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution‘s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution‘s case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial. . . . If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless.” (Internal quotation marks omitted.) State v. Rolon, supra, 257 Conn. 174.
In the present case, the state supported its case with a considerable amount of corroborating evidence, significantly limiting its need to rely solely on Lee‘s testimony. This evidence included the testimony of several of the defendant‘s drug associates corroborating the defendant‘s involvement in the murders, several incriminating statements said to, or overheard by, the defendant‘s fellow inmates, and the testimony of Keene, the
Kennedy, an associate of the defendant‘s who was with him during the Lindley Avenue shooting, testified that after the defendant‘s arrest for the murder of Snead, the defendant made a significant effort to discover the identity of the state‘s witnesses against him in that homicide. Kennedy testified that the defendant ultimately had told him that he had determined that Brown was the state‘s witness against him and that he “was going to kill [him]” to prevent Brown from testifying.
Daniels, an associate who participated in the drug trafficking network with Kennedy and the defendant, testified that he had purchased a .357 Magnum revolver for the defendant, the same type of gun that subsequently was used to commit the murders of Brown and Clarke. Daniels’ testimony was corroborated by that of Michael Lanier, the individual who had sold Daniels the gun.
King testified that once the defendant had obtained possession of the .357 Magnum, the defendant described to Adrian, and several other associates, how he would kill Brown by placing the barrel of the gun to the child‘s head and pulling the trigger. Ira Kanfer, the state‘s medical examiner, testified that Brown was killed in such a manner; and Marshall Robinson, the state‘s firearms expert, testified that Brown and Clarke were both killed by bullets from a .357 Magnum. In addition, Keene testified that sometime in December of 1998, after the defendant had determined that Brown was a state‘s witness in the Lindley Avenue shooting, the defendant told her to leave town because he was going to begin murdering witnesses. Specifically, Keene testified that the defendant first told her to move in November, 1998, stating that, “[h]e told me shit was starting to get hot and he [was] about to start getting
Lastly, two of the defendant‘s fellow inmates, Aundrey Holeman and Thomas Kerr, testified that while each was incarcerated with the defendant, the defendant had bragged about his involvement in the murders. Holeman testified that he had overheard the defendant tell another inmate that Adrian would not testify against him because the defendant had murdered one person, but Adrian had murdered two,43 and that the defendant was pleased with his brother because Adrian “had done something righteous” for him “that nobody else . . . would do . . . .” Kerr testified that the defendant had told him that “that bitch,” Clarke, and not the defendant, was responsible for both of the deaths, and that “[s]he should have known not to mess with him.”
Moreover, the state presented a significant amount of physical evidence that the jury could have found corroborated Lee‘s description of the murders, lessening the state‘s need to rely upon her testimony. For example, Lee testified that grocery bags had been strewn against the door when Adrian forced his way into Clarke and Brown‘s home. This was confirmed by photographs taken at the scene of the crime. Lee testi-
Lastly, a review of the record reveals that even without Lee‘s mental health records, the defendant was able to take full advantage of numerous other methods of challenging Lee‘s credibility. Defense counsel elicited from Lee herself that she had lied to the police, under oath, on at least ten different occasions. The defendant also put into evidence several letters written by Lee that contradicted and, in some instances, explicitly recanted her accusations regarding the defendant‘s complicity in the murders.
Additionally, the defendant mounted a serious attack on Lee‘s motive for testifying by exposing the fact that, despite being an accessory to these murders and having pleaded guilty to federal drug offenses, Lee was hoping for a minimal amount of jail time as a result of her testimony. The defendant also revealed that Lee was infatuated with Officer Dwayne McBride, one of the investigating Bridgeport police officers, and wanted to convince him that when she was called to testify, she would tell the real “truth.” Furthermore, the defendant
Finally, even without the use of Lee‘s mental health records, the defendant significantly undermined Lee‘s credibility concerning her ability to perceive, remember and recall the events in question by highlighting the details of her significant drug habit. In particular, building upon Lee‘s testimony during direct examination that she had smoked between $100 and $200 worth of crack per day for a period before and after the murders, the defendant was able to further elicit that while Lee was under the influence of crack, she experienced extreme paranoia.
On the basis of our careful review of the trial court record in the present case, we are persuaded that the state has satisfied its burden of proving that the trial court‘s refusal to order disclosure of Lee‘s mental health records and permit their use in cross-examination was harmless beyond a reasonable doubt. The state produced substantial evidence that the crimes had been perpetrated as the defendant had planned, physical evidence reasonably corroborated Lee‘s testimony, and the defendant was able to undermine Lee‘s credibility extensively without the use of the mental health records. Consequently, we conclude that the state has established, beyond a reasonable doubt, that the disclosure and use of Lee‘s mental health records would not “have had a tendency to influence the judgment of the jury. . . .” State v. Rolon, supra, 257 Conn. 174; cf. State v. Cassidy, 236 Conn. 112, 129-30, 672 A.2d 899 (1996) (concluding that state had not met its burden of proving harmlessness beyond reasonable doubt because its case rested “solely on the [uncorroborated] testimony of the victim“); State v. Colton, supra, 227 Conn. 254 (concluding that trial court‘s exclusion of witness’ testimony was harmful error because state conceded that “the jury . . . would have to credit [the witness‘] testimony to convict the defendant“).
D
The defendant‘s final claim is that by conducting two ex parte44 proceedings with Lee‘s attorney, the trial court denied the defendant his rights to: (1) be present at all important stages of trial; (2) have counsel at every critical stage of a criminal proceeding; and (3) have an impartial judge preside at trial. Specifically, the defendant argues that by conducting the ex parte hearings without him or his attorney present, the trial court violated the defendant‘s constitutional rights under the sixth and fourteenth45 amendments to the United States constitution. The defendant further argues that events surrounding the ex parte hearings evidenced a bias against the defendant, in violation of canon 3 (a) (4)
The following facts and procedural history are relevant to this claim. Prior to trial, Lee was incarcerated at a federal penal hospital in Fort Worth, Texas. In December, 1999, near Christmas, Lee sent holiday cards, with letters enclosed, to the three Bridgeport police officers who had befriended her during their investigation of the murders of Brown and Clarke. Simultaneously, she sent a card, with a letter enclosed, to her attorney, Richard Reeve, in which she recanted
Benedict, realizing that the letter contained potentially exculpatory information and that it was most likely an inadvertently disclosed privileged communication, forwarded the letter to the trial court, Thim, J., for an in camera review pursuant to
Early in January, 2000, Judge Ford conducted the first of two49 ex parte hearings with Reeve in an effort to determine: (1) whether the letter did in fact contain exculpatory information that would require that the state turn the letter over to the defendant; and (2) if the letter did contain exculpatory information, whether such information nevertheless was protected by Lee‘s attorney-client privilege. Because the exculpatory
During this meeting, which was conducted without the knowledge of the defendant or the state, the court discussed with Reeve the letter‘s contents, how the letter came into the state‘s possession, and the legal ramifications of its disclosure. In particular, the court asked Reeve whether he believed the defendant would be prejudiced by delaying disclosure to the defendant while Reeve discussed the letter with his client, Lee. Both the trial court and Reeve concluded that, undеr the circumstances, such a delay was warranted and, therefore, the court directed Reeve to travel to Fort Worth, Texas, where Lee was being held in a federal prison, in order to further discuss the matter with her. The court also requested that Reeve file a memorandum with the court detailing the factual and legal basis for Lee‘s claim of privilege after Reeve visited her. The court then sealed all of the documents obtained during the ex parte hearing, as well as the transcript of the proceedings.
On February 15, 2000, while the parties were selecting the jury, the trial court took a recess from the proceedings and requested that counsel leave the courtroom so that the trial court could speak privately with Reeve. Although the court did not disclose to either the defendant or the state the purpose of the meeting, both attorneys complied without comment. During this second meeting, Reeve submitted a memorandum to the court confirming that the misdirection of Lee‘s recantation letter was inadvertent, as well as providing legal argument for not disclosing the letter to the state‘s attorney or defense counsel. The court then discussed with
Three days after that hearing, on February 18, 2000, the court filed a memorandum of decision disclosing to both the state and defense counsel that on January 5, 2000, the court had conducted a hearing to determine whether the recantation letter to Reeve should be disclosed to the defendant, and that on February 15, 2000, Reeve had reported back to the court, noting that Lee had intended the letter to be a private communication
The defendant thereafter filed a motion for an in camera hearing to establish an “appropriate record . . . to support [the court‘s] decision . . . a full record of the facts underlying the invocation of the privilege in this case and to permit the court to explore the exculpatory nature of the information sought by the defendant.” The motion did not challenge, however, the propriety of the trial court‘s conducting the previous ex parte proceedings. In a memorandum of decision issued a few days later, the trial court denied the defendant‘s request for an evidentiary hearing, concluding that “any further inquiry on the part of the defense into the substance of the letter from [Lee] to her attorney would violate her assertion of the attorney-client privilege . . . .”
In early April, 2000, the trial court was informed that Lee had decided to waive her attorney-client privilege regarding the letter she had intended to send to Reeve. The court therefore unsealed the letter and made it available to defense counsel.
Lee subsequently testified during the defendant‘s jury trial on May 9 and 10, 2000. On the second day of her testimony, during cross-examination, she read the letter she had written Reeve to the jury and the letter was admitted as a full exhibit in the case. In the letter, Lee stated that she had lied when she had implicated both the defendant and his brother, Adrian, in the murders of Brown and Clarke. On redirect examination, the state asked Lee why she had written the letter. Lee testified: “I was very desperate. I didn‘t want to die in jail . . . because the doctor told me I had AIDS.” She stated
After this appeal was filed, the transcripts and other documents pertaining to the trial court‘s ex parte hearings were released to both the state and the defendant. The defendant then learned for the first time of Reeve‘s disclosure to the court that Lee allegedly wrote the recantation letter out of shame and concern over the legacy that she was leaving her children.
1
The defendant first contends that the trial court violated his constitutional rights under the sixth and fourteenth amendments to the United States constitution by conducting two ex parte proceedings with Lee‘s attorney, during which the substance of Lee‘s reasons for sending the recantation letter was discussed. Specifically, the defendant argues that by excluding both him and his attorney from the proceedings, the defendant was prevented from discovering, and subsequently utilizing, the reasons for the letter, another ground to impeach Lee, in that such information was disclosed only at these ex parte meetings. The defendant contends that the action by the trial court violated his constitutional right to: (1) be present at any stage of trial where his exclusion would interfere with his opportunity for effective cross-examination; (2) be present at all stages of trial where his presence would contribute to the fairness of the proceedings; and (3) have the presence of counsel at every critical stage of a criminal proceeding. The defendant concedes that this claim was not properly preserved at trial and therefore seeks review
At the outset, we briefly review the scope of the defendant‘s claims. The defendant is not claiming that his constitutional rights under the sixth and fourteenth amendments were violated because the court failed to inform him that the ex parte proceedings had occurred or to disclose to him the substance of those proceedings. He concedes that the record reflects just the opposite. In mid-February, 2000, only three days after the conclusion of the second and final ex parte proceeding, the trial court issued a memorandum of decision fully disclosing to the parties the fact that it had conducted
two ex parte hearings with Reeve. The memorandum further stated that the purpose of the proceedings was to determine whether Lee‘s letter recanting her implication of the defendant and Adrian in the murders of Brown and Clarke should be disclosed to the defendant, or whether the letter was protected by Lee‘s attorney-client privilege.
The defendant also is not claiming that his constitutional rights were violated because he was not made privy to Lee‘s recantation letter. The defendant concedes that in April, 2000, after learning that Lee had waived her privilege, the court unsealed the letter and made the letter available to defense counsel. The letter subsequently was read by Lee to the jury during cross-examination and became a full exhibit at trial.
What the defendant does argue is that, by failing to disclose Reeve‘s brief reference to an alternate reason for Lee‘s recantation letter until after the transcripts of the ex parte proceedings were released following the filing of the present appeal, the trial court violated the defendant‘s constitutional rights under the
We begin by setting forth the applicable standard of review. Whether the exclusion of the defendant and his counsel from the trial court‘s ex parte proceedings violated the defendant‘s constitutional rights is a mixed question of law and fact. Accordingly, our review is plenary. Duperry v. Solnit, 261 Conn. 309, 318, 803 A.2d 287 (2002) (“[q]uestions of law and mixed questions of law and fact receive plenary review“).
In the present case, we need not reach the merits of the defendant‘s constitutional claims because, even if we were to assume that the defendant‘s claims are valid, the state has established beyond a reasonable doubt that any impropriety was harmless. A conclusion that a defendant‘s
Similarly, on the basis of the totality of the evidence produced at trial, we conclude that the defendant‘s inability to utilize the alternate ground for impeaching Lee‘s testimony concerning the recantation letter—her shame that her children would know that she had been involved in the murder of a child—was harmless beyond a reasonable doubt. First, Lee‘s motivation in sending the recantation letter provided only marginal additional exculpatory material. Even without this additional impeachment material, the record reflects that the defendant was able to take full advantage of numerous other methods of challenging Lee‘s credibility as well as her motive to testify. See part II C of this opinion. Moreover, even if Lee‘s testimony had been stricken from the record entirely, the remaining evidence produced by the state would have been sufficient to convict the defendant beyond a reasonable doubt. Accordingly, we conclude that any misconduct by the trial court was harmless beyond a reasonable doubt and the defendant‘s claim therefore fails under the fourth prong of Golding.
The defendant‘s final argument is that the trial court‘s two ex parte proceedings with Lee‘s attorney evidenced a bias against the defendant and, therefore, the trial judge should have, sua sponte, recused himself. Specifically, the defendant argues that the trial judge should have recused himself after violating canon 3 (a) (4) (A) of the Code of Judicial Conduct by: (1) failing promptly to disclose to the defendant the substance of the ex parte hearings and allow him reasonable opportunity to respond; and (2) requesting that Reeve perform an independent investigation of the facts of the case when the trial court directed Reeve to travel to Texas to consult with Lee concerning the recantation letter that she had written.
As a preliminary matter, we begin by addressing the reviewability of the defendant‘s claims. The defendant concedes that his claim of judicial impropriety was not properly preserved at trial and therefore he seeks review under Golding and the plain error doctrine.53 The defendant argues that the issue is reviewable under Golding54 because the record is adequate for review and the сlaim is of constitutional magnitude.55 We agree. We conclude, however, that the defendant‘s claim is without merit, and thereby fails to meet the third prong of Golding.
Canon 3 (a) (4) of the Code of Judicial Conduct generally prohibits a presiding judge from initiating, permitting or considering ex parte communications concerning pending or impending proceedings, outside of the presence of the parties. See footnote 46 of this opinion. The canon also contains several explicit exceptions to its general prohibition, one of which provides that “[a] judge may initiate or consider any ex parte communications when expressly authorized by law to do so.” (Emphasis added.) Code of Judicial Conduct, canon 3 (a) (4) (E). The ex parte hearings conducted by the trial court in the present case arose under
In the present case, the ex parte hearings, which had been requested by the state‘s attorney after Lee‘s letter had been turned over to the trial court, were authorized by
We acknowledge that the trial court‘s inquiry at the ex parte hearings was not limited to whether Lee‘s letter contained exculpatory information. The hearings also addressed the issues of whether the letter should remain undisclosed under the attorney-client privilege, and whether that privilege had been waived by the inadvertent disclosure. This broadened scope of the ex parte hearing does not necessarily render the hearings violative of canon 3 (a) (4), however, because, under our common law, ex parte proceedings are authorized to resolve claims of attorney-client privilege.
We have stated that, “[t]he decision of whether to engage in an [ex parte] in camera review of . . . allegedly privileged information is necessarily one for the trial court.” Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 183, 757 A.2d 14 (2000). Furthermore, we have stated that once it has been established that the privilege applies, “the trial court has discretion to determine if a waiver of the attorney-client privilege has occurred and the scope of that waiver“; Harp v. King, 266 Conn. 747, 770, 835 A.2d 953 (2003); and “in certain circumstances, [an ex parte in camera review] may be an appropriate means of examining the allegedly privileged material without abrogating the privilege itself.” Olson v. Accessory Controls & Equipment Corp., supra, 182-83; see also, e.g., State v. Ortiz, 252 Conn. 533, 557, 747 A.2d 487 (2000) (discussing standard that criminal defendant must meet to obtain in camera inspection of witness’ confidential records sought for
The defendant further claims that, even if the law expressly permitted the trial court‘s inquiry into whether Lee‘s letter was exculpatory, and whether that letter nonetheless was protected by the attorney-client privilege, the court did not limit its inquiry to these two subjects. Rather, the defendant argues, the trial court also addressed the issue of whether the defendаnt‘s constitutional right to confrontation56 would overcome the attorney-client privilege, which was outside the court‘s express legal authority, and therefore violative of canon 3 (a) (4) (E). The state responds that, although it does not dispute the contention that the defendant should have been included in the court‘s discussion of this ancillary topic, the defendant‘s claim was rendered moot once Lee waived her privilege in the letter. We agree with the state.
“[M]ootness implicates the jurisdiction of the court. . . . It is a well-settled general rule that the existence
In the present case, prior to the commencement of trial, Lee waived her attorney-client privilege regarding the recantation letter. The trial court therefore unsealed the letter and made it available to defense counsel, who had the letter admitted as a full exhibit at trial. Consequently, any claim of impropriety concerning the court‘s discussion with Reeve about the defendant‘s right of confrontation was rendered moot when the letter was fully disclosed to the defendant prior to trial.
III
STATE‘S APPEAL
At a separate penalty phase hearing with regard to the two capital felonies for which the defendant was convicted, the same jury that convicted the defendant considered evidence of aggravating and mitigating factors as provided in
The state now challenges the trial court‘s denial of (1) the state‘s request for permission to appeal pursuant to
A
The state first claims that the trial court abused its discretion when it denied the state permission to appeal from the denial of its motion for mistrial. Specifically, the state argues that in denying it permission to appeal, the trial court misconstrued the law of unanimity in the context of a capital felony penalty hearing, and by doing so, improperly concluded that the jury in the present case reached a lawful verdict. We agree.
The following facts and procedural history are relevant to this issue. After the defendant‘s conviction of
The trial court then submitted to the jury a revised verdict form that allowed the jury to indicate that it unanimously agreed that it could not unanimously agree as to certain findings regarding aggravating and mitigating factors. Neither the defendant nor the state objected to the submission of the revised form to the jury. The jury then resumed deliberations and subsequently filled out the verdict form to indicate as follows: On the capital felony count concerning Brown‘s murder, “[w]e the jury unanimously agree that we are unable to unanimously agree that one or more of the proved aggravating factors outweighs one or more of the proved nonstatutory mitigating factors“; and, as to the capital felony count directed to the double homicide of Brown and Clarke, “[w]e the jury unanimously agree that the [s]tate has failed to prove one or more statutory aggravating factors beyond a reasonable doubt.”
After receipt of the revised special verdict form indicating that the jury unanimously agreed that it could not unanimously agree, the trial court ordered the verdict accepted and recorded. The state then orally moved for a mistrial pursuant to Practice Book § 42-45.60 The
Thereafter, the trial court issued a memorandum of decision articulating its rationale for denying the state‘s motion for permission to appeal from the denial of its motion for a mistrial.61 In its memorandum, the court reasoned that the jury‘s finding that it unanimously agreed that it could not unanimously agree constituted a valid verdict that indicated that “the state [had] failed to sustain its burden of proof.” The court further concluded that the jury‘s verdict indicated that the state was unable to overcome any mitigating factor found by the jury and the state‘s motion for permission to appeal, therefore, was denied.
We begin our analysis by setting forth the appropriate standard of review that guides our resolution of this issue. “As a general proposition . . .
“[I]n the context of evaluating whether a court has abused its discretion in denying requests for certification or permission to appeal, we repeatedly have applied the criteria set forth in Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). See, e.g., State v. James, 261 Conn. 395, 405-10, 802 A.2d 820 (2002) (denial of state‘s request for permission to appeal from court‘s ruling that police lacked probable cause to arrest); Seebeck v. State, 246 Conn. 514, 534, 717 A.2d 1161 (1998) (denial of request for certification to appeal from denial of petition for new trial); Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994) (denial of petition for certification to appeal from denial of writ of habeas corpus). The Lozada inquiry was established in order to determine whether a petitioner has made the requisite substantial showing of the denial
In the present case, we conclude that the state has met its burden of satisfying at least one of the Lozada criteria, namely, that the issue is adequate to “deserve encouragement to proceed further.” (Internal quotation marks omitted.) Id., 430. This court‘s resolution of issues challenging the general requirement of jury unanimity has long been regarded as fundamental to maintaining the consistency and reliability of the judicial system as a whole, and the ultimate verdict in a criminal trial in particular. See generally State v. Sawyer, 227 Conn. 566, 580, 630 A.2d 1064 (1993); State v. Aparo, 223 Conn. 384, 388, 614 A.2d 401 (1992), cert. denied, 507 U.S. 972, 113 S. Ct. 1414, 1415, 122 L. Ed. 2d 785 (1993);
The issue in the present case, namely, whether in denying the state permission to appeal, the trial court misconstrued the law of unanimity in the context of a capital felony penalty hearing, and by doing so, improperly concluded that the jury reached a valid verdict, plainly fits this category. Moreover, the fact that this court has not had an opportunity previously to address this specific issue renders it even more worthy of review. Consequently, we conclude that the issue presented by the state “deserve[d] encouragement to proceed further“; (internal quotation marks omitted) Lozada v. Deeds, supra, 498 U.S. 432; and therefore the trial court abused its discretion in denying the state‘s motion for permission to appeal.62
The state‘s second, and principal, claim on appeal is that the trial court abused its discretion by denying the state‘s motion for a mistrial after improperly instructing the jury that if it remained deadlocked, the trial court would be required to impose a sentence of life imprisonment “without the benefit of release.”63 Specifically, the state argues that the trial court‘s improper instruction was not only based upon an unsound legal premise, but tainted the subsequent jury deliberations by: (1) leading the jury to believe that the responsibility for determining the appropriateness of whether the defendant should be sentenced to life imprisonment or put to death did not rest solely in the jury‘s discretion; and (2) increasing the likelihood that the jury would remain
The following additional facts and procedural history inform our resolution of this issue. On the third day of deliberations in the penalty phase of the defendant‘s trial, the jury sent to the court a note in reference to the questions on the verdict form dealing with the murder of Brown. The jury requested instructions on how to proceed if it was unable to agree on whether the nonstatutory mitigating factor or factors outweighed the aggravating factor or factors. Commenting on the note outside the jury‘s presence, the trial court told the parties that the jury must “strive to reach a unanimous verdict. If they become deadlocked on [the issue of weighing] . . . I‘ll impose life without the benefit of release.” In response, the state argued that if the jury was deadlocked on this issue, the court would have to declare a mistrial rather than sentence the defendant to life in prison. The trial court, however, disagreed stating: “[I]f it‘s deadlock, it means that you haven‘t met your burden,” and “the defendant would get the benefit of it.”
The jurors were then recalled to the courtroom and the court reinstructed them on the possible verdicts. The court reiterated that at each point in its deliberations, the jury must be unanimous. Specifically, the court stated that the jury had to agree unanimously that aggravating factors outweighed mitigating factors for death to be imposed, or in the alternative, it had to agree unanimously that mitigating factors either outweighed or were in equipoise with aggravating factors for a life sentence to be imposed. The trial court concluded its substantive re-instruction by stating: “If you continue to deliberate on this issue and at the final
Later that day, the jury sent a second note to the court stating that, with regard to the murder of Brown, it still was deadlocked on the issue of whether the nonstatutory mitigating factors outweighed the aggravating factors. In response, the trial court instructed the jury to put the issue aside and to move on to the questions on the verdict form dealing with the double murder of Brown and Clarke. The court implored the jurors to strive to answer the remaining questions. The court then repeated to the jury the action the court would take if the jury were to become deadlocked on the second issue: “I‘ve already told you, if you cannot agree, then I will impose a sentence which is in accord with the inability of the state to satisfy the burden of proof beyond all reasonable doubt in respect to the aggravating factor and your consideration of the mitigating factor. So there‘s no puzzle.” (Emphasis added.) The state again indicated to the court that it disagreed with the court‘s proposed disposition. The state argued that the jury‘s notes merely indicated that it was deadlocked and, therefore, imposing a life sentence would be improper. The court adhered to its position.
Shortly thereafter, the jurors sent a third note to the court indicating that they also were deadlocked on the issue of whether the state had proven an aggravating factor pertaining to the double homicide. The trial court indicated to the parties that it would respond to the note by giving a “Chip Smith” instruction to the jury in an effort to nudge the jury toward unanimity. When the state inquired as to how the court interpreted the jury‘s deadlock on the aggravating factors pertaining to the
Later that same afternoon, the jury sent a fourth, and final, note to the court stating: “We still have a problem with the word unanimous . . . . Some of us feel the state has proven one or more statutory aggravating factors and some of us feel the state has failed to prove one or more statutory aggravating factors.” In response, the court provided the jury with an “Official Revised” version of the verdict form which permitted the jurors to “unanimously agree that [they] are unable to unanimously agree” on both counts of capital felony. All twelve jurors chose this new option for both counts.
Immediately after the jury announced that it had agreed to disagree, the trial court ordered the verdict accepted and recorded. The state then orally moved, pursuant to Practice Book § 42-45, for a mistrial. The state‘s motion, however, was denied by the court.
We begin our analysis by setting forth our standard of review. “The principles that govern our review of a trial court‘s ruling on a motion for a mistrial are well established. Appellate review of a trial court‘s decision granting or denying a motion for a [mistrial] must take into account the trial judge‘s superior opportunity to assess the proceedings over which he or she has personally presided. . . . Thus, [a] motion for a [mistrial] is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds. . . . In our review of the denial of a motion for mistrial, we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been
In reviewing a claim of abuse of discretion, we have stated that “[d]iscretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Internal quotation marks omitted.) State v. Onofrio, 179 Conn. 23, 29, 425 A.2d 560 (1979). In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors. See id. Therefore, “[i]n those cases in which an abuse of discretion is manifest or where injustice appears to have been done, reversal is required.” State v. Avcollie, supra, 174 Conn. 111.
The state first contends that the trial court‘s instruction that, if the jury remained deadlocked, the court would be required to sentence the defendant to life imprisonment without the possibility of release, was improper. Specifically, the state argues that the instruction was based upon the unsound legal premise that, under Connecticut law, during the penalty phase of a capital case a deadlocked jury necessarily signifies that the trial court must sentence the defendant to life imprisonment because the state has failed to sustain its burden of proof. We agree with the state.
“It is settled doctrine in Connecticut that a valid jury verdict in a criminal case must be unanimous. . . . A nonunanimous jury therefore cannot render any finding of fact.” (Internal quotation marks omitted.) State v. Aparo, supra, 223 Conn. 388. Indeed, where a jury is deadlocked, a court cannot rightfully record a verdict “because [as a matter of law] no such verdict can be found to have existed . . . .” State v. Goodman, 35 Conn. App. 438, 448, 646 A.2d 879 (1994), cert. denied, 231 Conn. 940, 653 A.2d 824 (1994); see also State v. Daniels, supra, 207 Conn. 394 (concluding that deadlocked jury in penalty phase of capital case makes no finding of whether death or life imprisonment is warranted). Rather, it is axiomatic that a deadlocked jury makes no lawfully cognizable finding, thereby requiring no specific action by the trial court. See State v. Sawyer, supra, 227 Conn. 580; State v. Aparo, supra, 388; State v. Daniels, supra, 388.
This court addressed a similar issue in State v. Daniels, supra, 207 Conn. 394, wherein the court concluded that under our death penalty statute, a deadlocked jury in the penalty phase of a capital trial “neither authorizes imposition of the death penalty nor requires the imposition of a life sentence.” The court stated that, “[b]ecause the record in this case reveals an unchallenged finding that an aggravating factor exists, but no unanimous finding that the defendant has proved that a mitigating factor exists, the defendant was not entitled as a matter of law to a sentence of life imprisonment . . . .” Id., 393. Under Connecticut law, therefore, we concluded that a deadlocked jury authorizes neither a life sentence nor the death penalty. Id., 394.64 We therefore determine that the jury instruction in the present case that the trial court would be required to impose a sentence of life imprisonment without the possibility of release if the jury remained deadlocked was improper.
The state further contends that this improper instruction tainted the jury‘s subsequent deliberations. We agree. The United States Supreme Court and this court continuously have recognized “the need for heightened reliability in death penalty deliberations . . . .” (Citations omitted.) State v. Ross, 230 Conn. 183, 230-31, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165 (1995).
In Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985), the United States Supreme Court expressly concluded that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant‘s death rests else
“In evaluating the various procedures developed by [s]tates to determine the appropriateness of death, this [c]ourt‘s [e]ighth [a]mendment jurisprudence has taken as a given that capital sentencers would view their task as the serious one of determining whethеr a specific human being should die at the hands of the [s]tate. Thus, as long ago as . . . McGautha v. California, 402 U.S. 183 [91 S. Ct. 1454, 28 L. Ed. 2d 711] (1971), [the court has assumed] . . . that jurors confronted with the truly awesome responsibility of decreeing death for a fellow human will act with due regard for the consequences of their decision. . . . Belief in the truth of the assumption that sentencers treat their power to determine the appropriateness of death as an awesome responsibility has allowed this [c]ourt to view sentencer discretion as consistent with—and indeed as indispensable to—the [e]ighth [a]mendment‘s need for reliability in the determination that death is the appropriate punishment in a specific case. Woodson v. North Carolina, [428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976)] (plurality opinion). See also Eddings v. Oklahoma, [455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982)]; 57 L. Ed. 2d 973” court=“U.S.” date=“1978“>Lockett v. Ohio, [438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978)].” (Citations omitted; internal quotation marks omitted.) Caldwell v. Mississippi, supra, 472 U.S. 329-30.65
Similarly, in the present case, the trial court‘s instruction to the jury tainted the subsequent deliberations by diluting the jury‘s appreciation of its role in the sentencing phase of a capital trial. The trial court instructed the jury that if it remained deadlocked, “[the court] would be required to impose a sentence of life without the benefit of release . . . which is in accord with the inability of the state to satisfy the burden of proof beyond all reasonable doubt in respect to the aggravating factor and your consideration of the mitigating factor.” (Emphasis added.) These instructions created a “reasonable likelihood“; Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990) (where it is claimed that instruction is subject to erroneous interpretation, “proper inquiry . . . is whether there is a reasonable likelihood that the jury has applied the challenged instruction” erroneously); that the jury did not fully appreciate the “momentous nature of its duty” and “its determinative role in our capital sentencing process . . . .” (Internal quotation marks omitted.) State v. Reynolds, supra, 264 Conn. 124-25. In other words, by charging the jury that if it were to remain deadlocked, the ultimate decision as to the defendant‘s sentence would be removed from its
The trial court‘s instructions further tainted the jury‘s deliberations by reinforcing the likelihood of deadlock, thereby denying the state its right to fair and thorough deliberations by a jury attempting to reach a unanimous result. It is unquestionable that a defendant has a substantial liberty interest at stake in any criminal trial. State v. Sawyer, supra, 227 Conn. 578-79. “That does not mean, however, that the defendant‘s liberty interest is the only substantial interest at stake . . . . The state also has a substantial interest, namely, its interest in securing a [determination of the imposition of the death penalty]” through the jury‘s thoughtful deliberation to a unanimous verdict. Id., 579; see also State v. Malcolm, 257 Conn. 653, 658, 778 A.2d 134 (2001) (recognizing “the state‘s right to seek a judgment against the defendant“); State v. James, 247 Conn. 662, 674, 725 A.2d 316 (1999) (“[t]he [state], like the defendant, is entitled to resolution of the case by verdict from the jury” [internal quotation marks omitted]). A jury instruction that implies that a jury need not deliberate to a unanimous decision “neglects the state‘s interest in the resolution of the charges on which it presented the defendant.” State v. Sawyer, supra, 578. Indeed, “[a jury] should
In the present case, after the jury reported being deadlocked, the trial court instructed the jury that, if it remained deadlocked, the trial court would sentence the defendant to life imprisonment without the possibility of release. This instruction was reasonably likely to have influenced those jurors who, at that point in the deliberations, were inclined to vote against the imposition of the death penalty, to resist further deliberations aimed at reaching a unanimous verdict. In other words, those jurors who favored sentencing the defendant to life imprisonment improperly were informed by the court that they could ensure a sentence of life imprisonment simply by refusing to deliberate further, in which event the court would impose a life sentence.
After improperly instructing the jury as to the sentence that it would be required to impose if the jury were to remain deadlocked, the trial court denied the state‘s motion for mistrial. The trial court‘s instruction in the present case impermissibly led the jury to believe that it was not solely responsible for determining the appropriate sentence for the defendant. Moreover, the improper instruction increased the likelihood that the jury would remain deadlocked, as it did, in violation of the state‘s right to fair and thorough deliberations by
IV
DEFENDANT‘S ALTERNATE GROUNDS FOR AFFIRMANCE
In response to the state‘s claims, the defendant presents four alternate grounds to affirm the trial court‘s judgment sentencing the defendant to life imprisonment without the possibility of release. The defendant argues that the trial court‘s sentence should be upheld because: (1)
A
The defendant first claims that the trial court‘s judgment denying the state‘s motion for a mistrial, and the subsequent imposition of a life sentence, was proper because
The question of whether
“The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and
Our conclusion finds further support in our decision in State v. Daniels, supra, 207 Conn. 374. In Daniels, both the defendant and the state challenged the trial court‘s sentencing of the defendant to two consecutive terms of life imprisonment for capital felony and murder after the jury unanimously found the existence of an aggravating factor, but was unable to agree unanimously on the existence of a mitigating factor. Id., 378. The state argued that
Furthermore, the legislature‘s failure to amend
In Daniels, where this court concluded that
The defendant attempts to overcome Webb and Daniels by relying on the United States Supreme Court case of Jones v. United States, 527 U.S. 373, 380-81, 119 S. Ct. 2090, 144 L. Ed. 2d 370 (1999), in which the court concluded that the phrase “‘good cause,‘” within the federal death penalty statute;
In Jones v. United States, supra, 527 U.S. 381, the court held that, “[t]he phrase ‘good cause’ in
B
The defendant‘s second claim is that the trial court‘s judgment sentencing the defendant to life imprisonment should be upheld because principles of accessorial liability cannot be used to prove the existence of aggravating factors, and the state therefore presented insufficient evidence to prove any aggravating factors needed for the imposition of the death penalty.75 To
The following additional facts and procedural history are relevant to our resolution of this issue. The state relied upon four aggravating factors, in accordance with
At the beginning of the penalty hearing, the defendant moved to strike each aggravating factor. He argued that: (1) nothing in Connecticut‘s death penalty statutory framework allows principles of vicarious liability to be used to prove aggravating factors; (2) the state failed to produce evidence that the defendant instructed Adrian on how the murders were to be carried out, and therefore he did not know that they would be committed in a heinous, cruel or depraved manner; and (3) under the eighth amendment to the United States constitution, the defendant cannot be sentenced to death for the acts of another.
The defendant first argues that the plain language of
As a preliminary matter, we set forth our applicable standard of review. The question of whether principles
“When the statute in question is one of a criminal nature, [however] we are guided by additional tenets of statutory construction. First, it is axiomatic that we must refrain from imposing criminal liability where the legislature has not expressly so intended. State v. Breton, 212 Conn. 258, 268-69, 562 A.2d 1060 (1989). Second, [c]riminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant. . . . State v. Jones, 234 Conn. 324, 340, 662 A.2d 1199 (1995). Finally, unless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are to be strictly construed against the state. State v. Ross, [supra, 230 Conn. 200].” (Internal quotation marks omitted.) State v. Davis, 255 Conn. 782, 788-89, 772 A.2d 559 (2001). It is, however, equally understood that despite the nature of the statute, it “must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant. . . .” (Internal quotation marks omitted.) State v. Szymkiewicz, 237 Conn. 613, 621, 678 A.2d 473 (1996). In other words, “[n]o part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . [so that] no word [or
With these standards in mind, we begin by examining the text of
Moreover, the defendant‘s proffered interpretation would vitiate one of the clearly stated, overarching purposes of the statute, i.e., the punishment of a person as if he were the principal, when, with the requisite mental state, he solicits, requests, commands, importunes or intentionally aids the person who physically committed the crime.
This court has addressed a similar issue in State v. Davis, supra, 255 Conn. 792, where we concluded that “[t]he fact that [a statute] is a sentence enhancement provision rather than a separate and distinct offense . . . is of no consequence to [whether
Similar to the statute at issue in Davis,
The text of the revision of the statute in effect at the time of the commission of the offenses in the present case provides in relevant part: “The aggravating factors to be considered shall be limited to the following . . . (3) the defendant committed the offense and in such commission knowingly created a grave risk of death to another person in addition to the victim of the offense; or (4) the defendant committed the offense in an especially heinous, cruel or depraved manner; or (5) the defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value . . . .”84
....
“In making such an assertion, the defendant attempts to draw a distinction between principal and accessorial
“This principle is apparent throughout our state‘s criminal statutes.
“[Additionally] [b]ecause the legislature is presumed to know the state of the law when it enacts a statute; State v. Dabkowski, 199 Conn. 193, 201, 506 A.2d 118 (1986); we can assume that, absent an affirmative statement to the contrary, it did not intend to change the existing law to create a distinction between accessories and principals when it enacted [
The defendant‘s final argument is that the use of accessorial liability tо prove an aggravating factor violates the eighth and fourteenth amendments to the United States constitution. Specifically, the defendant contends that using accessorial liability to prove an aggravating factor would violate the eighth amendment by: (1) depriving the defendant of the constitutionally required individualized consideration of the appropriate punishment for him; and (2) defining a class of death-eligible defendants in a manner unrelated to their individual moral blameworthiness, thereby making death a disproportionate punishment.85 We are not persuaded.
The
Although the issue of whether the eighth amendment precludes the application of principles of accessorial liability to prove aggravating factors in the penalty phase of a capital case is an issue of first impression for this court, the United States Supreme Court has addressed a similar issue and, in doing so, implicitly answered the question before us. In Tison, where the defendants were charged with murder based upon accessory liability similar to the present case, the Supreme Court concluded that “major participation in the [murders] committed, combined with reckless indifference to human life” demonstrated culpability sufficient for imposition of the death penalty. Id., 158. In that case, the defendants, who were brothers, planned and carried out the escape of their father from prison, with the help of another brother, where the father was serving a life sentence for having killed a correction officer during a previous escape. Id., 139. After the defendants’ father and another inmate were freed, the group of five men flagged down a passing automobile after their own automobile became disabled. The four occupants of the automobile that stopped to help the defendants were overtaken, driven into the desert and brutally executed by the defendants’ father and his fellow escapee. Id., 139-41.
The defendants in Tison individually were tried for and convicted of, among other things, capital murder under Arizona‘s felony murder and accessorial liability statutes. Id., 141-42. During the penalty phase of the
The defendants appealed, claiming, among other things, that the state had failed to prove that the defendants had “inten[ded] to kill” the victims, as required by Enmund v. Florida, 458 U.S. 782, 797-98, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982). Tison v. Arizona, supra, 481 U.S. 143. On appeal, the United States Supreme Court concluded “that the [e]ighth [a]mendment did not preclude imposing the death penalty on two brothers who participated substantially in their father‘s armed prison breakout and in a related kidnaping and robbery that resulted in four murders, even though neither defendant took any act which he desired to, or was substantially certain would, cause death. . . . [The court] found that the [defendants‘] involvement in
Although the Tison court did not address expressly the narrow issue before this court, i.e., whether principles of accessorial liability may be used to prove aggravating factors under the eighth amendment, in broadly concluding that the eighth amendment did not preclude the imposition of the death penalty based on accessorial liability when there is “major participation” by the defendant and he evidences a “reckless indifference to human life“; Tison v. Arizona, supra, 481 U.S. 152, 158; the court acknowledged that the eighth amendment does not preclude using accessorial liability to prove aggravating factors. By explicitly recognizing the trial court‘s finding of aggravating factors established through principles of accessorial liability, and thereafter concluding that an accessory could be sentenced to death, the Supreme Court in Tison implicitly concluded that the eighth amendment permitted the use of accessorial liability to prove aggravating factors. Id. In other words, by answering the broader question, i.e., whether the eighth amendment permitted imposing the death penalty on an accessory, the Tison court necessarily decided the more narrow issue that is presently
Furthermore, we can conceive of no reason why a statutory scheme that requires a jury to evaluate aggravating factors need face a more stringent requirement under the eighth amendment when principles of accessorial liability are being used to prove those aggravating factors rather than the commission of the crime itself. In other words, because the eighth amendment does not mandate that the fact finder evaluate aggravating factors for a capital punishment statutory scheme to be constitutionally valid, and because the death penalty has been upheld as constitutional despite the application of accessorial liability to the crime of capital murder; see id., 158; there should be no greater standard under the eighth amendment when principles of accessorial liability are used to prove aggravating factors that could lead to the imposition of the death penalty, as compared to being used to prove the commission of a crime that could result in the imposition of the death penalty.
The United States Supreme Court has emphatically stated that, “[a]ny argument that the [c]onstitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this [c]ourt.” Clemons v. Mississippi, 494 U.S. 738, 745, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990); see also Spaziano v. Florida, 468 U.S. 447, 459, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984) (concluding that neither sixth amendment, nor eighth amendment, nor any other constitutional provision provides defendant with right to have jury determine appropriateness of capital sentence). For example, in Jurek v. Texas, supra, 428 U.S. 270, the court concluded that the Texas death penalty statute did not violate the eighth amendment or any other section of the federal constitution although the
Because the United States Supreme Court clearly has stated in Tison that principles of accessorial liability may be used to prove the crime of capital felony under the eighth amendment, and the eighth amendment does not require that a death penalty scheme must mandate that a jury consider aggravating factors, we can conceive of no reason why a statutory scheme that requires a jury to determine the existence of aggravating factors need face a more stringent requirement under the eighth amendment when principles of accessorial liability are being used to prove those aggravating factors rather than the commission of the crime itself.88 Consequently,
Turning to the facts of the present case, the jury reasonably could have found that the defendant‘s involvement in the crimes was not minor, but, rather, was substantial and that he evidenced a reckless disregard for human life. Far from merely asking his brother Adrian to murder the two victims, the defendant was “actively involved . . . in the entire sequence of criminal activity culminating in the murder of [Brown and Clarke] . . . .” Id. The defendant planned every detail of the crime. This included soliciting the commission of the murders by Adrian, purchasing the gun that eventually was used by Adrian to commit the crimes, and paying Lee to inform him when both Brown and Clarke were at home so that the murders could be committed simultaneously. The defendant even demonstrated to Adrian how he wanted Brown to be killed. Such participation in these murders clearly rises to the level of major participation that evidences “a reckless disregard for human life.” Id.
The defendant argues that, despite the United States Supreme Court‘s conclusion in Tison, the use of accessorial liability to prove an aggravating factor would define a class of death-eligible defendants in a way unrelated to their individual moral blameworthiness, thereby making death a disproportionate punishment in violation of the eighth amendment. Specifically, the
As we previously noted herein, when a legislature broadly defines capital offenses and provides for the narrowing of culpability for those offenses by jury findings of aggravating circumstances, as the Connecticut legislature has chosen to do here; see
Specifically, the jury was instructed: “The defendant has a whole list [of mitigating factors], and there is nothing that bars anything from your consideration, even things beyond the list [he] submit[s] that come to you in your consideration, your judgment, of the totality of the facts developed here before you in the case.” The trial court then reiterated this instruction near the end of its charge stating: “In addition to any of the mitigating factors claimed by the defendant, you may give a mitigating force to any fact taken alone or in conjunction with facts presented providing, of course, you are persuaded that the fact or facts exist by a preponderance of the evidence and that the fact or facts are mitigating in nature, as that term had been defined for you.” We conclude that such instructions were sufficient to satisfy the requirements of the eighth amendment.
C
The defendant‘s third argument is that, even if accessory liability may be used to prove aggravating factors, the state failed to produce sufficient evidence to prove beyond a reasonable doubt that the defendant had the particularized mental state required by each aggravating factor and, therefore, the trial court‘s judgment of life imprisonment without the possibility of release should be upheld. Specifically, the defendant claims that the state failed to prove that the defendant: (1) knew that, in killing Brown, another person would be subject to a grave risk of death; (2) intended to or was callously indifferent to the fact that the victims would be killed in an “especially heinous, cruel or depraved manner“;
The following additional facts are relevant to our resolution of this issue. During the penalty phase of the defendant‘s trial, the jury indicated on the final verdict form that, in reference to count two, i.e., the death of Brown, it had agreed unanimously that the state had proven one or more aggravating factors beyond a reasonable doubt, that the defendant had failed to prove any statutory mitigating factors, and that at least one member of the jury found the existence of one or more nonstatutory mitigating factors. The form further indicated, however, that the jury was unable to agree unanimously that one or more of the proved statutory aggravating factors outweighed one or more of the proved nonstatutory mitigating factors.
We begin by briefly reviewing what is required under our death penalty statute for the imposition of a sentence of life imprisonment.
Consequently, in applying these precepts to the present case, if we were to determine that there is evidence in the record to support beyond a reasonable doubt
We begin by setting forth the appropriate standard of review. “[B]ecause of the seriousness of any death
The defendant argues that the state failed to produce sufficient evidence to prove beyond a reasonable doubt that the defendant intended that the offense be committed in such a way as to knowingly create a grave risk of death to another person in addition to the victim. Specifically, the defendant claims that the state failed to prove that he knew that, in carrying out the murder of Brown, Clarke would be exposed to a “grave risk of death . . . .”
Before we review the evidence adduced by the state in the present case, we define the standard by which it is to be measured. Neither this court nor the legislature, however, has had an occasion to define the phrase
In the present case, as to the first capital felony count, the jury reasonably could have found that the defendant intended to have someone kill not only Brown, but also Clarke, thereby clearly subjecting Clarke to a grave risk of death. The defendant first asked Taylor to kill “two nobodies.” (Emphasis added.) After Taylor declined, the defendant proceeded to ask both Lee and Adrian if either of them would murder both Brown and Clarke. Furthermore, the evidence reveals that the defendant asked Lee to tell him when both Brown and Clarke arrived home, demonstrating an intent that he wanted the crimes to be committed together. Finally, at the time of the murder, the defendant knew that Brown was a young child, approximately eight years old. On the basis of this fact, the jury reasonably could have inferred that the defеndant knew, or should have known, that there was a strong possibility that Brown‘s mother would be in close proximity to him, wherever he went, and, therefore, if the defendant intended to have Brown killed, he also would subject Clarke to a substantial risk of death. On the basis of this evidence, we conclude that there is sufficient evidence in the
As to the double murder count, the jury reasonably could have found beyond a reasonable doubt that the defendant gave crack cocaine to Lee during the commission of the double murder, in exchange for her assistance in alerting the defendant when the victims arrived at their home and in helping the defendant gain access to the victims’ home, which is an aggravating factor as articulated in
Consequently, because we conclude that the record contains sufficient evidence to prove beyond a reasonable doubt at least one aggravating factor applicable to each capital felony count, we need not address the remaining aggravating factors, and therefore we reject the defendant‘s alternate ground for affirmance.
D
The defendant‘s final argument is that the trial court‘s judgment sentencing the defendant to life imprisonment without the possibility of release should be upheld because Pinkerton liability cannot be used to prove aggravating factors, and the state therefore presented insufficient evidence to prove any aggravating factors required for the imposition of the death penalty. To support this claim, the defendant argues that: (1) the application of Pinkerton liability to aggravating factors is inconsistent with the plain language of
Our review of the record in the present case, however, reveals that the trial court‘s instructions to the jury during the penalty phase of the trial were completely devoid of any instruction on Pinkerton liability.89 We therefore conclude that the defendant‘s claim is irrelevant to the facts of this case, and we need not address it. See Pizzola v. Planning & Zoning Commission, supra, 167 Conn. 209 (defendant‘s constitutional attack on statute predicated on hypothetical facts deemed irrelevant and therefore court declined to address claim); Housing Authority v. Olesen, supra, 31 Conn. App. 361 (court declined to address defendant‘s claim because irrelevant to disposition of appeal).
The judgment is affirmed with respect to the defendant‘s conviction; the judgment is reversed with respect to the sentence of life imprisonment without the possibility of release and the case is remanded for a new penalty phase hearing.
In this opinion BORDEN, PALMER and ZARELLA, Js., concurred.
SULLIVAN, C. J., concurring in part and dissenting in part. I agree with parts I and II of the majority opinion, which address the defendant‘s appeal. With respect to part III of the majority opinion, which addresses the
I
The majority first asserts that the court‘s statements are grounds for a mistrial because they led the jury to
In Caldwell v. Mississippi, supra, 472 U.S. 324, defense counsel, during сlosing argument, spoke of the jury‘s awesome responsibility in deciding whether the defendant would live or die. The prosecutor, in response, argued that the defense inappropriately had suggested that the jury was solely responsible for its decision. Id., 325. The prosecutor further stated that the jury‘s decision was not “the final decision“; id.; because it was reviewable automatically by the Mississippi Supreme Court. Id., 325-26. On appeal, the United States Supreme Court concluded that the prosecutor‘s comments had violated the defendant‘s eighth amendment right to reliable imposition of the death penalty because “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant‘s death rests elsewhere.” (Emphasis added.) Id., 328-29.
In the present case, the death penalty was not imposed. Thus, the Caldwell court‘s concerns with respect to the reliable imposition of the death penalty
Moreover, the Caldwell court was particularly concerned with the bias in favor of the death sentence created by the prosecutor‘s comments.5 The court in
The majority also asserts that the court‘s statements are grounds for a mistrial because they gave the jurors in favor of a life sentence an incentive to cut deliberations short, thereby increasing the likelihood that the jury would remain deadlocked. I conclude that the state was not prejudiced by the court‘s statements.6 As noted by the majority, the statements may have provided an incentive for those jurors in favor of a life sentence to stop trying to convince those in favor of death to change their minds. The statements did not provide any incentive for the jurors in favor of death to cease their efforts to convince those in favor of life, because doing so would only have resulted in a hung jury with a resultant
Accordingly, I conclude that the court‘s statements to the jury did not create circumstances such that the court‘s denial of the state‘s motion for a mistrial constituted a manifest abuse of discretion.
II
I, therefore, would reach the state‘s claim that the court abused its discretion by denying its motion for mistrial and by dismissing the proceedings pursuant to
The following additional facts and procedural history are necessary for the resolution of this issue. Immediately after the court ordered the jury‘s special verdict accepted and recorded, the state made an oral motion for a mistrial pursuant to Practice Book § 42-45. The state argued that a mistrial was necessary because the jury was deadlocked, but the court denied the state‘s motion. The state then asked for permission to appeal, and the court reserved ruling on the issue until the day of sentencing.
At the sentencing hearing, the court denied the state‘s motion for permission to appeal and reiterated its asser-
In a subsequent memorandum of decision on the court‘s denial of the motion for permission to appeal, the court further articulated its reasons for denying the state‘s motion for a mistrial. The court first noted that it could take one of three courses of action in response to the jury‘s inability to agree, pursuant to State v. Daniels, 207 Conn. 374, 394-97, 542 A.2d 306 (1988). Specifically, the court stated that it could: “(1) declare a mistrial; (2) make factual findings ‘acquitting’ the defendant of the death penalty; or (3) exercise its discretion pursuant to
In State v. Daniels, supra, 207 Conn. 380-81, the court imposed a life sentence after the jury could not unanimously agree as to the presence or absence of a mitigating factor. On appeal, after determining that the court had three options for disposing of the case after the jury deadlocked (acquit, dismiss or declare a mistrial), this court concluded that the record was ambiguous as to which action the court had taken and why. Id., 401-403. We could not ascertain whether the court acquitted the defendant on the basis of its assessment of the facts or imposed a life sentence because it thought it was required to do so. Id., 402. We refused to entertain the state‘s remaining claims because, in the event that the court‘s imposition of a life sentence constituted an acquittal, further review of the state‘s claim would have been barred by double jeopardy. Id. “If the trial court‘s imposition of a life sentence amounts to an ‘acquittal’ of the death penalty then double jeopardy bars a second capital sentencing proceeding.” Id., 398. The effect of an acquittal is particularly important in the context of the state‘s claim that the court imposed a life sentence on the basis of erroneous legal conclusions, because, “[t]he fact that an acquittal is based in whole or in part on an erroneous construction of the governing law is of no import. That fact affects the accuracy of that determination, but it does not alter its essential character.” (Internal quotation marks omitted.) Id., 399.
Accordingly, I respectfully dissent.
KATZ, J., with whom NORCOTT, J., joins, dissenting. Adhering to my view that the death penalty is, in all circumstances, cruel and unusual punishment prohibited by the constitution, I reaffirm my position that our “society should not have the authority to sustain an institution the nature of which is to destroy its own members. If our status as moral creatures is to survive, the termination of our ability to accomplish a deliberate institutionalized method of execution heads my list of desiderata for this society.” State v. Webb, 252 Conn. 128, 150, 750 A.2d 448 (Katz, J., dissenting), cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000).
As I have stated before, the issue “is not whether the defendant . . . has the right to life, but whether we as a society have the right to kill.” Id. Certainly the defendant who has committed such hideous аtrocities did not have that right. His acts of violence, however, do not
I also agree with former Justice Berdon and Justice Norcott, both of whom, in separate dissenting opinions, have expressed their opposition to the death penalty because it allows for arbitrariness and racial discrimination in the determination of who shall live or die at the hands of the state. See State v. Cobb, 251 Conn. 285, 530-36, 545-48, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000). In the years following the United States Supreme Court‘s decision in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), serious efforts were made to comply with its mandate, and legislatures and appellate courts struggled to provide judges and juries with sensible and objective guidelines for determining life and death. We have attempted to define who is “deserving” of the death penalty through the use of carefully chosen adjectives, reserving the death penalty for the “worst of the worst.” But the Furman promise of consistency and the requirement of individualized sentencing; see Lockett v. Ohio, 438 U.S. 586, 605, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978); merely have reduced, rather than eliminated, the number of people subject to arbitrary sentencing. While one might hope that providing the sentencer with as much relevant mitigating evidence as possible will lead to more rational and consistent sentences, experience has taught us otherwise. Indeed, the decision whether a human being should live or die is so inherently subjective that it unavoidably defies the rationality and consistency required by the constitution.
Furthermore, even under the most sophisticated death penalty statutes, race continues to play a major role. We have not eliminated the biases and prejudices that infect society generally; therefore, it should not be surprising that such problems continue to influence the determination of who is sentenced to death, even within the narrower pool of death-eligible defendants selected according to so-called objective standards. Finally, even the most sophisticated death penalty schemes are unable to prevent human error from condemning the innocent. Innocent persons have been executed. See H. Bedau & M. Radelet, “Miscarriages of Justice in Potentially Capital Cases,” 40 Stan. L. Rev. 21, 36 (1987).
Accordingly, I respectfully dissent because to do otherwise would perpetuate yet another killing, sadly this one state sponsored.
Notes
The court further informed the jury that conspiratorial liability applied to the murder count, to the capital felony counts and “particularly [to] the fourth count [of conspiracy to commit murder] as well.” The court then proceeded to charge the jury on Pinkerton liability, without referring to the doctrine by name, by instructing the jury that if it found that the defendant was “guilty of conspiracy to commit murder,” but had not killed the victims, it also would have to find that another member of the conspiracy murdered the victims. Specifically, the court stated that, “[t]here is a doctrine in our law that provides that once a defendant‘s participation in a conspiracy is established, he is then responsible for each of the criminal acts of the other coconspirators which is within the scope of and in furtherance of the conspiracy.
“This means in this case that if you conclude the defendant was in fact guilty of conspiracy to commit murder, as I will define that for you, but he did not in fact kill [Brown or Clarke], then you must determine whether sufficient evidence has been provided to show you beyond a reasonable doubt that another member of that same conspiracy did in fact perform that act that was the proximate cause of their deaths. If such other member of the conspiracy did perform that act and if that act was in the scope of the furtherance of the conspiracy, then the defendant would be guilty of murder and capital felony as well.
“To reiterate, if you conclude [that] the defendant was a member of a conspiracy as charged in the second count of the information beyond a reasonable doubt and that another member of that same conspiracy commit-”
Section 1 of the fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .” The United States Supreme Court, in Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987), interpreted the fourteenth amendment to guarantee a defendant “the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” See also Snyder v. Massachusetts, 291 U.S. 97, 105-106, 54 S. Ct. 330, 78 L. Ed. 674 (1934) (concluding that due process clause provides defendant with right “to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge“).
See footnote 32 of this opinion for the relevant text of the sixth amendment to the United States constitution.
The defendant further argues that he never had a realistic opportunity either to object to the ex parte hearings or to file a motion for recusal because he was not given notice of the hearings, nor did the court disclose the full content of these hearings or that there were transcripts of the proceedings. Therefore, the defendant argues that, when there was no meaningful opportunity to object at trial, it cannot reasonably be argued that the defendant has waived his right to raise the issue on appeal. Because we conclude that the issue is reviewable under the first two prongs of Golding, we need not address this argument.
Furthermore, because we conclude that any alleged impropriety was harmless, we need not address the defendant‘s claim of plain error. See footnote 19 of this opinion.
The state further argues that the trial court committed plain error by failing to instruct the jury properly that it must be unanimous with respect to any individual aggravating factor, as opposed to unanimously agreeing that at least one aggravating factor exists. Specifically, the state contends that such an instruction was “vital in a capital case so that this [c]ourt could review the sufficiency of the aggravating factors as required by . . .
“(1) before the jury that determined the defendant‘s guilt;
“(2) before a jury impaneled for the purpose of the hearing if . . .
“(C) the jury that determined the defendant‘s guilt was discharged for good cause . . . .”
We reference herein the 1997 revision of
Subsection (i) of