264 Conn. 1 | Conn. | 2003
Lead Opinion
Opinion
TABLE OF CONTENTS
I. THE FACTS................. 18
II. GUILT PHASE ISSUES........... 24
A. Sufficiency of the Information .... 24
B. The Defendant’s Challenge to the Panel’s Interpretation of § 53a-54b (1) 28
C. Motion to Suppress Statements ... 35
1. The Search.............. 43
2. The Arrest.............. 46
3. Miranda Violation......... 50
4. The Defendant’s Claim of Involuntariness................ 53
D. The Court’s Limitation on the Defendant’s Right of Cross-Examination . 57
III. PENALTY PHASE ISSUES......... 61
A. Issues Concerning the Aggravating Factor Enumerated in § 53a-46a (h) (D.................... 61
1. Facial Constitutionality of § 53a-46a (h) (1).............. 61
2. The State’s Burden of Satisfying the “Same Felony” Element of § 53a-46a (h)(1)........... 67
3. The Right to a Jury Determination on the Existence of the Aggravating Factor Enumerated in § 53a-46a (h) (1).............. 83
*13 4. The Sufficiency of Evidence of the Defendant’s Attempt to Commit the Crime of Sale of a Narcotic Substance During the Course of Committing the Capital Felony..... 87
B. Issues Concerning the Aggravating Factor Enumerated in § 53a-46a (h) (4).................... 89
1. Evidentiary Insufficiency...... 89
2. Denial of the Defendant’s Prepenalty Phase Motion to Dismiss the Aggravating Factor Enumerated in § 53a-46a (h) (4)........... 98
C. The Court’s Instructions on Reasonable Doubt............... 103
D. Effect of the Jury’s Invalid Finding as to the Existence of One Aggravating Factor on the Jury’s Finding as to the Existence of Another Aggravating Factor.................. 107
E. Three Judge Panel........... 110
F. Excusal of Juror for Cause...... 115
G. The Role of the Jury as Sentencer. . 120
H. The Right to a Bifurcated Penalty Phase Hearing............. 129
I. Issues Regarding the Mitigating Factors and Evidence........... 131
1. Evidence Establishing the Existence of One or More Mitigating Factors................ 131
2. Proof of Mitigating Value..... 136
3. Special Verdict Form—Mitigation 137
4. The Cumulative Effect of the Mitigating Evidence as an Independent Mitigating Factor.......... 138
5. Catchall Mitigating Factors .... 141
*14 6. The Defendant’s Request to Present as an Independent Mitigating Factor the Inappropriateness of the Death Penalty Under the Circumstances of the Case...... 143
7. Mercy as a Mitigating Factor . . . 146
J. Vagueness Challenge to § 53a-46a (d) 148
K. State’s Use of Evidence Purportedly Admissible During the Guilt Phase Only................... 152
L. The Admissibility of Anthony Crawford’s Testimony............ 153
M. Alleged Juror Misconduct....... 156
N. Preliminary Determination of the Evidentiary Sufficiency of the Aggravating Factors............... 157
IV. PROSECUTORIAL MISCONDUCT..... 160
A. References to Officer Williams’ Family .................... 166
B. Inviting the Jury to Ignore the Law 176
C. Expression of Personal Opinions and Beliefs During Closing Arguments. . 199
D. Conclusion............... 214
V. MISCELLANEOUS ISSUES......... 217
A. Change of Venue............ 217
B. The Trial Court’s Denial of the Defendant’s Postverdict Motions for the Imposition of a Life Sentence and an Evidentiary Hearing in Connection Therewith........ 226
C. Mandatory Sentence Review..... 234
VL THE CONSTITUTIONALITY OF CONNECTICUT’S DEATH PENALTY STATUTES ..................... 235
VII. PROPORTIONALITY REVIEW....... 237
ADDENDUM.................... 252B
Officer Walter Williams of the Waterbury police department was on patrol in the vicinity of Orange and Ward Streets in Waterbury in the early morning hours of December 18, 1992, when he was fatally shot in the head at point blank range by the defendant, Richard Reynolds, whom Williams had stopped for questioning. The defendant fled but was apprehended and arrested shortly thereafter and charged with one count of capital felony in violation of General Statutes (Rev. to 1991) § 53a-54b (l)
I
THE FACTS
The panel reasonably could have found the following facts. In late 1992, the defendant, also known as “Kilt,” resided with his girlfriend, Karen Smith, and her four children, in Smith’s apartment on the second floor of 47 Wood Street in Waterbury. The defendant, a convicted drug dealer, was a member of a cocaine trafficking organization that used Smith’s apartment to process and package crack cocaine (cocaine) for sale to street level dealers. Other members of the organization included its leader, Kneshon Carr, and Anthony Crawford, Robert Bryant and Terry Brown.
When the defendant and Crawford reached Orange Street on their way to Locust Street, they crossed paths with Margaret Powell, who previously had purchased cocaine from both the defendant and Crawford. Crawford offered to sell Powell some cocaine, but Powell declined because she had no money.
As the defendant and Crawford were approaching the intersection of Orange and Ward Streets, Officer Williams, who was on patrol alone in a marked police cruiser, turned onto Ward Street from Orange Street and parked near the intersection of those two streets. Williams was in uniform and wearing a bulletproof vest. Upon observing the defendant and Crawford, Williams exited his vehicle and ordered the two men to “[g]et up against” the cruiser. Crawford ignored Williams’ command and kept walking. The defendant complied with Williams’ order. Specifically, the defendant stopped and placed his left hand on the hood of the cruiser. The defendant, however, kept his right hand in his right coat pocket.
Williams, who was standing behind and slightly to the left of the defendant, repeatedly instructed the defendant to remove his right hand from his coat pocket. The defendant, however, refused to do so. Wil
Jesse Strohecker was driving north on Orange Street at about 4 a.m. the same day when he noticed a police cruiser parked at the intersection of Orange and Ward Streets.
Officers Timothy Jackson and John Perugini were riding together in a cruiser approximately two blocks from the shooting when they heard Strohecker’s request for assistance on their radio. They arrived at the scene within one minute of receiving Strohecker’s transmission. Jackson ran to Williams and knelt beside him. Williams grasped Jackson’s shoulder for three to five seconds and attempted unsuccessfully to speak. Officer Joseph Flaherty arrived soon after Jackson and Perugini and observed that Williams’ eyes were open and that he was moving his arms or head. Williams’ lips also were moving, but it was impossible to discern what, if anything, he was saying. Flaherty and a second officer removed Williams’ equipment belt with Williams’ handgun still secured in its holster.
Moments later, an ambulance arrived and transported Williams, who, by that time, was unconscious, to Saint Mary’s Hospital in Waterbury. Williams lapsed into a coma at approximately 5:30 a.m. and died at 7 p.m. from complications resulting from the gunshot wound to his head.
The defendant was apprehended and charged with one count of capital felony in violation of § 53a-54b (1) and one count of murder in violation of § 53a-54a (a). The court, Murray, J., held a probable cause hearing in accordance with article first, § 8, of the state constitution, as amended by article seventeen of the amendm
The trial then was held before the panel, which found the defendant guilty of both capital felony and murder. Thereafter, the defendant elected to have the penalty phase hearing held before a jury rather than the panel.
II
GUILT PHASE ISSUES A
Sufficiency of the Information
The defendant contends that he is entitled to a new probable cause hearing because the information, in which he was charged with the crime of capital felony in violation of § 53a-54b (l),
On December 21, 1992, the state filed a short form information charging the defendant with the crime of capital felony in violation of § 53a-54b (1). On February 3,1993, in response to the defendant’s motion for a bill of particulars, the state filed a long form information charging the defendant with the crime of capital felony
The defendant claims for the first time on appeal that he is entitled to a new probable cause hearing because the information did not specify that Williams was “acting within the scope of his duties”; General Statutes (Rev. to 1991) § 53a-54b (1); when the defendant shot and killed him. The defendant further maintains that “a proper finding of probable cause ... is a constitutional prerequisite to the exercise of trial jurisdiction over a person charged with [the] crime [of capital felony],” and, as a consequence of the “deficiency in the state’s charging document, there was no such probable cause finding with respect to the acting within the scope of duties element [of] the capital felony charge . . . .”
The defendant’s argument is unavailing for two reasons. First, the defendant waived his claim inasmuch as he had failed to raise it in the trial court. “The defendant correctly asserts that a finding of probable cause is necessary to establish that a court has jurisdiction to try a suspect as to a certain charge. See State v. Mitchell, 200 Conn. 323, 332, 512 A.2d 140 (1986). As we stated in State v. John, 210 Conn. 652, 665 n.8, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989), however, our reference in State v. Mitchell, [supra, 330], to a determination of probable cause as a prerequisite to subsequent jurisdiction to hear the trial pertains, not to subject matter jurisdiction, but only to jurisdiction over the person of the defendant. General Statutes § 54-46a (a) expressly allows the waiver of a preliminary hearing to determine probable cause, so it obviously cannot be essential for subject matter jurisdiction. Accordingly, like other defects relating to jurisdiction of the person, any infirmity in the evidence presented at a probable cause hearing is deemed to be waived if not seasonably raised.” (Internal quotation marks omitted.) State v. Hafford, 252 Conn. 274, 309-10, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000). Having failed to raise a claim in the trial court that the evidence did not comport either with the charge or the allegations contained in the information, the defendant is barred from raising such a claim on appeal.
The defendant’s claim fails for a second, more fundamental reason. The particular allegations contained in an information do not limit or otherwise define the scope of the trial court’s responsibility to determine whether probable cause exists to proceed with the pros
Under the view advanced by the defendant, the probable cause hearing may be used as a vehicle to test the sufficiency of the allegations contained in the information. That simply is not a purpose of a probable cause hearing. The probable cause hearing is designed to safeguard an accused’s rights by requiring the state to demonstrate, at an early stage of the prosecution, that the evidence of the defendant’s guilt is sufficient to warrant a prosecution in connection with the particular charge.
Moreover, the defendant’s argument regarding the variance between the “acting within the scope of his duties” language of § 53a-54b (1) and the allegations contained in the information, reflects a fundamental misperception of the purpose of the information. That purpose is not to set the parameters of the probable cause hearing but, rather, to “inform the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial suxprise and to make the charge definite enough to enable [the defendant] to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . .” (Internal quotation marks omitted.) State v. McMurray, 217 Conn. 243, 249, 585 A.2d 677 (1991). Thus, contrary to the defendant’s claim, there
B
The Defendant’s Challenge to the Panel’s Interpretation of § 53a-54b (1)
The defendant next claims that the panel improperly determined that, in order to satisfy the element of § 53a-54b (1) requiring proof that Officer Williams had been “acting within the scope of his duties” when he conducted a Terry
At the conclusion of its deliberations, the panel issued a memorandum of decision in which it found that Williams was acting within the scope of his duties as a member of the Waterbury police department when he was shot and killed by the defendant while investigating the activities of the defendant and Anthony Crawford. The panel also expressly stated, however, that it “makes no finding as to the legality of the stop [and] investigation, since it finds no authority for the defendant’s claim that the state must prove as an element of the crime of capital felony, that the officer was acting in the lawful performance of his duties at the time and place of the incident.” (Emphasis in original.) The defendant does not contest that Williams was on duty and acting in his capacity as a police officer when he stopped the defendant for investigative purposes. The defendant claims, rather, that § 53a-54b (1) applies only to law enforcement officers who, in the discharge of their official duties, act in accordance with constitutional requirements. We disagree.
In interpreting statutes, we also look to the pertinent legislative history and circumstances surrounding the statute’s enactment, to the legislative policy the statute was designed to promote and to its relationship to existing legislation governing the same or related subject matter. E.g., State v. Vickers, 260 Conn. 219, 223-24, 796 A.2d 502 (2002). These considerations also lead us to reject the defendant’s construction of § 53a-54b (1) as unduly narrow.
It is clear- from the legislative history of § 53a-54b (1) that a primary purpose of that provision is to deter violence against police officers and certain other law
Similarly, Representative James F. Bingham, also a member of the judiciary committee, explained during the debate on the proposed capital felony legislation in the House of Representatives that, “[i]t is the view of the judiciary committee that . . . the death penalty has deterrent value and that it may provide a measure of protection against incorrigible and dangerous individuals. The potential criminal will know that if his intended victims die, he may also die. The murderer of a member of the State Police ... or a local police department . . . will know that [he] may have to pay with [his] own [life] for any lives that [he] take[s].” 16 H.R. Proc., Pt. 6, 1973 Sess., p. 2975. Bingham further explained: “[T]he reason for this particular law is that society must be protected. We have come to this stage in our history in the [s]tate of Connecticut that society itself is crying out for protection and that those people who commit heinous crimes, such as the murder of a
Our interpretation of the relevant statutory language of § 53a-54b (1) is consistent with the statute’s underlying purpose; when a police officer carries out his official duties—irrespective of whether his conduct eventually may be deemed to be unlawful—he is particularly vulnerable to the kind of murderous assault that the legislature sought to deter in enacting § 53a-54b (1). By contrast, the statutory construction urged by the defendant would thwart this legislative purpose because there is no logical reason why the legislature would have intended to deprive a police officer of this protection when that officer, acting in the good faith discharge of his duties, mistakenly engages in conduct that ultimately is determined to transgress constitutional boundaries. “It is not our practice to construe a statute in a way to thwart its purpose or lead to absurd results ... or in a way that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve.” (Citation omitted; internal quotation marks omitted.) Colonial Penn Ins. Co. v. Bryant, 245 Conn. 710, 725, 714 A.2d 1209 (1998).
Furthermore, our construction of the phrase “acting within the scope of his duties” contained in § 53a-54b (1) is guided by our interpretation of General Statutes § 53a-167c,
C
Motion to Suppress Statements
The defendant claims that the trial court, Kulawiz, J.,
“At about 7:30 a.m. on December 18, 1992 . . . O’Leary . . . [Sergeant James] Griffin . . . Keegan [and two other police officers accompanied by Bryant] went to 47 Ward Street, one of the three buildings that
“While O’Leary was asking [for the] identity of [the] men, Keegan summoned [O’Leary] into the next room where Smith had [informed the officers] that the men were Anthony Crawford and David Robinson, known as ‘Kilt.’ Both men denied knowledge of the shooting. [Investigating officers] asked them where they had been earlier and they stated that they both had been at the apartment all night. O’Leary informed them that a police officer had been shot and seriously injured. O’Leary asked them if they were willing to go to police headquarters. Both agreed to go. [The investigating] [officers
“Immediately after they had left the apartment and before they were transported to headquarters . . . Smith told . . . Keegan that at about [3:50 a.m.] she was in bed sleeping when ‘Kilt’ . . . jumped in her bed, his heart pounding and said [that he] ‘shot a cop.’ . . . Keegan stayed with . . . Smith at Ward Street until [Smith] had [made child care arrangements].
“At about 8 a.m., [the] defendant and [Anthony] Crawford arrived at headquarters and were taken in through the police entrance rather than the public entrance. [The] [defendant and Crawford were placed in separate interview rooms. At about 8:20 [a.m.] . . . Smith arrived at headquarters. The [m]ayor and various officials were at headquarters. Officers [James] Egan and [James Clary] interviewed Crawford. . . . Keegan and . . . Griffin interviewed . . . Smith . . . and [another officer] interviewed Bryant.
“From about 8 a.m. until 10 a.m., [the] defendant was in a room by himself in police headquarters. O’Leary asked him if he wanted a soda or coffee or to use the bathroom during that time.
“Between 8 and 10 a.m., statements were being taken from Crawford and Bryant. At about 10:15 [a.m.] O’Leary decided to interview [the] defendant after others had said that [the] defendant had shot [Williams]. Inspector John Maia in the presence of . . . O’Leary read [the] defendant his [Miranda]
“O’Leary then observed high ranking officers at his door and asked Maia to move [the] defendant out of his office to another room so that O’Leary could talk with the officers. Maia complied. [The] [defendant said [that] he didn’t shoot the cop, Derrick did. Mala asked who Derrick was and [the] defendant said that Crawford would know. Maia went out and asked Crawford who said that there was no Derrick, ‘just me . . . and Kilt did it.’
“[Keegan] told O’Leary at this point that . . . Smith had given a written statement that [the] defendant had shot . . . Williams. O’Leary told Keegan to go in and tell [the] defendant. Keegan went into the room with [the] defendant and Maia and asked Maia if [the] defendant had been advised of his rights. Maia replied affirmatively. Keegan then told [the] defendant that . . . Smith had told him that [the] defendant had told her that he had shot a cop. Maia said to [the] defendant, ‘get it off your chest,’ and Keegan told him to take responsibility. [The] defendant put his head down and said, T did it, I shot the cop.’ [The] defendant [then] was asked if he would give a [written] statement and he said [that he would], Keegan went out of the room and told O’Leary that [the] defendant ‘went for it.’ Kee
“[The] [defendant then said that he wanted an attorney. He was asked if he wanted a public defender or a private attorney to be called. No farther questions were asked. State’s Attorney [John A.] Connelly who was also at the police station was informed and [he] called Public Defender Alan McWhirter who arrived shortly thereafter. After speaking with [the] defendant . . . McWhirter stated that his client would make no statement. All questioning stopped when [the] defendant stated that he wanted an attorney. No audio or video recording had been taken of the interview . . . .”
In rejecting the defendant’s claims, the court found that, with respect to the police entry into Smith’s apartment, she voluntarily had allowed the officers in. The court emphasized that, although those officers had their guns drawn as they knocked on Smith’s door, they returned their guns to their holsters after observing that the occupants of the apartment were not armed.
Finally, the court found that the defendant’s statements were not the product of police coercion or over
Our review of the defendant’s claim
With these standards in mind, we now turn to the defendant’s claim that his statements should have been suppressed: (1) as the product of an illegal search and illegal arrest; and (2) because they were involuntary and obtained in violation of his Miranda rights. We discuss, in turn, the search, the arrest and the police questioning that prompted the defendant’s statements.
1
The Search
Under both the fourth amendment to the federal constitution
There is no dispute that Smith, a resident and lessee of the apartment that the officers entered, had the authority to consent to the officers’ request to enter
“Although the presence of drawn weapons is certainly a factor in determining voluntariness ... it is not dispositive.” State v. Boyd, 57 Conn. App. 176, 181, 749 A.2d 637, cert. denied, 253 Conn. 912, 754 A.2d 162 (2000). Indeed, in the present case, the officers who requested permission to enter the apartment were not in uniform but, rather, in plainclothes. Furthermore, “the manner in which the police encountered the defendant minimized the potentially coercive effect of their brandished weapons. [In the present case], the armed officers did not rouse the defendant out of bed in the middle of the night; cf. Harless v. Turner, 456 F.2d 1337, 1338 (10th Cir. 1972); break down the door to the defendant’s apartment in the early hours of the morning; cf. United States v. Mapp, 476 F.2d 67, 77-78 (2d Cir. 1973); or use threatening language. See Ex parte Tucker, 667 So. 2d 1339, 1344 (Ala.), cert. denied sub nom. Alabama v. Tucker, 516 U.S. 944, 116 S. Ct. 382, 133 L. Ed. 2d 305 (1995).” State v. Boyd, supra, 181-82. Rather, the officers arrived at Smith’s apartment at approximately 7:30 a.m., knocked on the door and, when greeted by Smith, explained to her why they were there. It was at that point that they requested permission to enter. The record indicates that the officers did not use loud or threatening language, nor did they point their handguns at anyone in the apartment. Moreover, Smith already was aware that the police were in search of a suspect in a police shooting because officers had spoken to her briefly several hours earlier in connection with then1 canvass of the area. Finally, it is significant
We conclude that the evidence amply supports the court’s finding that Smith voluntarily consented to the officers’ request for permission to enter her apartment. We next must address the issue of whether the defendant’s arrest properly was predicated upon probable cause.
2
The Arrest
“A lawful warrantless felony arrest requires that the arrest be supported by probable cause. . . . Probable cause to arrest exists if (1) there is probable cause to believe a crime has been committed; and (2) there is probable cause to believe that the person to be arrested committed that crime. . . . Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed. . . . The probable cause test [therefore] is an objective one. . . .
“While probable cause requires more than mere suspicion . . . the line between mere suspicion and probable cause necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances. . . . The existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence.” (Citations omitted; internal quotation marks omitted.) State v. Trine, 236 Conn. 216, 236-37, 673 A.2d 1098 (1996). Indeed, proof of probable cause requires less than proof by a preponderance of
“In determining the threshold question of whether there has been a seizure, we examine the effect of the police conduct at the time of the alleged seizure, applying an objective standard. Under [article first, § § 7
The defendant’s claims lack merit. With respect to his contention that he was seized when the police sealed off the general area in which Smith’s apartment is located, there is nothing in the record to establish either that the defendant believed that he was not free to leave or that he submitted to a show of police force or authority. Indeed, the defendant was in bed at the time, and although he may have suspected that a police investigation of the shooting had commenced, there is no indication that he was aware of O’Leary’s order to seal off the area.
Nor can the defendant prevail on his claim that he was seized when the police told him to get out of bed and go into the living room. At that point, the police no longer had their guns drawn, and there is no evidence that they threatened or otherwise intimidated the defendant. He was not handcuffed or otherwise physically restrained in any way, and he gave no indication either that he wished to leave or that he wished to stop answering the questions asked of him by the investigating officers. Moreover, the police did not demand that the defendant go to headquarters with them; rather, they asked him if he would be willing to do so.
Even if we were to assume, arguendo, that, as the defendant claims, he was seized when the police entered Smith’s apartment and told him to get out of bed, the police had probable cause to arrest the defendant at that time. Prior to arriving at Smith’s apartment, O’Leary had been informed by Bryant that he was present at that apartment when the defendant and Crawford ran in and stated that they just shot a police officer.
3
Miranda Violation
The defendant next claims that the court improperly concluded that the defendant’s waiver of his Miranda rights was knowing, voluntary and intelligent. We also reject this claim.
“To be valid, a waiver must be voluntary, knowing and intelligent. Miranda v. Arizona, [supra, 384 U.S. 475, 478]; State v. Gonzalez, 206 Conn. 213, 217, 537 A.2d 460 (1988); State v. Boscarino, 204 Conn. 714, 743, 529 A.2d 1260 (1987). The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights.
“Whether the defendant has knowingly and intelligently waived his rights under Miranda depends in part on the competency of the defendant, or, in other words, on his ability to understand and act upon his constitutional rights. . . . Factors which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant’s experience with the police and familiarity with the warnings ... his level of intelligence, including his IQ . . . his age . . . his level of education . . . his vocabulary and ability to read and write in the language in which the warnings were given . . . intoxication . . . his emotional state . . . and the existence of any mental disease, disorder or retardation.” (Citations omitted; internal quotation marks omitted.) State v. Toste, 198 Conn. 573, 580-81, 504 A.2d 1036 (1986). “Although the issue [of whether there has been a knowing and voluntary waiver] is . . . ultimately factual, our usual deference to fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.” State v. Harris, 188 Conn. 574, 580, 452 A.2d 634 (1982), cert. denied, 460 U.S. 1089, 103 S. Ct. 1785, 76 L. Ed. 2d 354 (1983).
The crux of the defendant’s claim is that the state failed to adduce substantial evidence establishing a valid waiver of his Miranda rights. This claim is belied by the record. Maia testified without contradiction that he orally advised the defendant of his Miranda rights by reading from a preprinted waiver form. After informing the defendant of his rights, Maia asked the defendant: “Now, do you feel like talking to us freely and voluntarily?” The defendant answered “yes.” Fur
The evidence clearly establishes, and the court found, that the defendant properly was advised of his Miranda rights, that he understood those rights and that he knowingly and intelligently waived them. “An express written or oral waiver is strong proof of the validity of the waiver.” State v. Negron, 221 Conn. 315, 319 n.5, 603 A.2d 1138 (1992), citing North Carolina v. Butler, supra, 441 U.S. 373. Moreover, the record established that the defendant previously had been arrested and that, consequently, he already was familiar with the nature of the rights that he is afforded under Miranda. See, e.g., State v. Stanley, supra, 223 Conn. 687; State v. Usry, 205 Conn. 298, 305, 533 A.2d 212 (1987). Furthermore, after the defendant waived his rights and spoke with the police, he invoked his right to stop answering questions and to consult with counsel. “[W]e have held that the [invocation] of the right to remain silent after an initial willingness to speak with police
4
The Defendant’s Claim of Involuntariness
The defendant further contends that his postarrest statements were involuntary and, therefore, in contravention of the due process clause of the fourteenth amendment to the United States constitution.
“Under the due process clause of the fourteenth amendment, [however] in order for a confession to be deemed involuntary and thus inadmissible at trial, [t]here must be police conduct, or official coercion, causally related to the confession . . . .” (Internal quotation marks omitted.) State v. Lapointe, 237 Conn. 694, 728-29, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996); see also Colorado v. Connelly, 479 U.S. 157, 164, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986). Because of this “essential link between coercive activity of the [s]tate, on the one hand, and a resulting confession by a defendant, on the other”; Colorado v. Connelly, supra, 165; “mere examination of the [defendant’s] state of mind [although relevant to an assessment of the defendant’s susceptibility to police coercion] can never conclude the due process inquiry.” Id.
“The trial court’s findings as to the circumstances surrounding the defendant’s interrogation and confession are findings of fact . . . which will not be overturned unless they are clearly erroneous. ... On the ultimate issue of voluntariness, however, we will conduct an independent and scrupulous examination of the entire record to ascertain whether the trial court’s finding is supported by substantial evidence.” (Citation omitted; internal quotation marks omitted.) State v. Correa, supra, 241 Conn. 328-29.
In support of his claim, the defendant refers to the allegedly coercive nature of the police conduct that preceded his statements, specifically, the officers’ entry into Smith’s apartment, the ride to police headquarters and the two hours of questioning to which the defendant was subjected “in the context of the pandemonium created by all of the high city and police officials who had crowded into the detective bureau just to watch until this important case was solved.”
Contrary to the defendant’s claim, the court properly concluded that the police conduct was neither intimidating nor coercive, and certainly was not of such a nature as to overcome the defendant’s will. With respect
In the absence of any evidence of improper coercion on the part of police officers, the mere fact that the defendant remained at police headquarters for two hours provides no support for the defendant’s claim. Indeed, he never asked to leave and did not seek to have the police stop questioning him until after he had confessed to shooting Williams; when he eventually requested an attorney, one was provided immediately.
The Court’s Limitation on the Defendant’s Right of Cross-Examination
The defendant next contends that his rights under the confrontation clause of the sixth amendment
The following additional facts are relevant to our disposition of the defendant’s claim. During the guilt phase of the defendant’s case, Crawford testified for the state that he and the defendant each possessed a substantial quantity of cocaine when they were stopped by Officer Williams and that he witnessed the defendant shoot Williams in the head when Williams attempted to subdue the defendant. Crawford further testified that he had been charged with the crime of hindering prosecution in connection with the police investigation of the shooting, and that he had been acquitted of that charge.
Defense counsel cross-examined Crawford extensively about his recollection of the events, focusing, in particular, on discrepancies between his statements to the police and his testimony on direct examination. Defense counsel also elicited testimony from Crawford that: (1) he is a convicted felon; (2) he was incarcerated at the time of the defendant’s trial; (3) he was on parole
Thereafter, Keegan testified for the state. On cross-examination, the defendant asked Keegan whether he was “responsible for deciding what criminal charges would be lodged against . . . Crawford.” The state objected on relevancy grounds, to which defense counsel responded: “[I]t’s clearly relevant to any question of bias or motive for testifying or for giving a statement that . . . Crawford may have had . . . with respect to the relative [ly] minor criminal charges that were immediately brought against him.” The court then sustained the state’s objection.
“Our analysis of the defendant’s claim is guided by the familiar constitutional guidelines relevant to cross-examination by the defendant in a criminal trial. It is axiomatic that the defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. . . . The primary interest seemed by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation [for] testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. ... In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defen
“The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination. . . . The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable. . . .
“The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . .
“The proffering party bears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant.” (Citations omitted; internal quotation marks omitted.) State v. Beliveau, 237 Conn. 576, 584-86, 678 A.2d 924 (1996).
The specific question that defense counsel asked of Keegan regarding what charges were to be filed against Crawford was, at most, only marginally relevant to the issue of Crawford’s bias or motive. As the members of the three judge panel certainly knew, the ultimate responsibility of charging a person with the commission of a crime is vested with the office of the state’s attor
Ill
PENALTY PHASE ISSUES
A
Issues Concerning the Aggravating Factor Enumerated in § 53a-46a (h) (1)
The defendant claims that the finding of the jury regarding the existence of the aggravating factor enumerated in § 53a-46a (h) (1) cannot stand. Specifically, the defendant contends that: (1) the aggravating factor is facially unconstitutional; (2) the state failed to satisfy the “same felony” element of § 53a-46a (h) (1); (3) the trial court improperly deprived him of his right to a jury determination as to the existence of the aggravating factor; and (4) the evidence was insufficient to establish that he was attempting to commit the crime of sale of a narcotic substance during the commission of the capital felony. We reject each of these claims, which we address in turn.
1
Facial Constitutionality of § 53a-46a (h) (1)
The defendant claims that § 53a-46a (h) (1), which requires proof that the defendant committed the capital felony during the commission or attempted commission of a felony and that the defendant previously had been convicted of the same felony, is unconstitutional on its face. Specifically, the defendant contends that because
“The United States Supreme Court has held that if a [s]tate wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a [s]tate’s responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates standardless [sentencing] discretion. Godfrey v. Georgia, 446 U.S. 420, 428, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980). Thus, where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action. Gregg v. Georgia, 428 U.S. 153, 189, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (opinion of Stewart, Powell and Stevens, Js.).” (Internal quotation marks omitted.) State v. Breton, 212 Conn. 258, 263-64, 562 A.2d 1060 (1989) (BretonI). Consequently, “[t]o avoid [a] constitutional flaw, an aggravating [factor] must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, 462 U.S. 862, 877, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).
In State v. Ross, 230 Conn. 183, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995), we considered and rejected a constitutional challenge to the facial validity of our capital sen
“In their overall configuration, our death penalty statutes facially satisfy the constitutional requirements of the eighth and fourteenth amendments to the United States constitution. The multitiered pyramid meets the prerequisite of consistency and reliability by guiding the capital sentencer’s discretion with clear and objective standards that narrow the class of defendants eligible for the death penalty and by providing a meaningful basis for distinguishing between those cases in which the death penalty is imposed and those in which it is not.” (Citations omitted; internal quotation marks omitted.) Id., 236-38. Section 53a-46a (h) (1), as part of the second tier of our capital sentencing scheme, further narrows the group of persons who already have been convicted of a felony that, according to the legislature, warrants designation as a capital felony.
The defendant does not claim that § 53a-46a (h) (1) fails to reduce the number of defendants charged with a capital felony who are eligible to receive the death
It is well settled that, “[i]n the absence of weighty countervailing circumstances, it is improvident for the court to invalidate a statute on its face. . . . A judicial holding that a legislative [a]ct is unconstitutional is one of very grave concern. We ought not, and will not, declare a statute to be unconstitutional unless our judgment is formed in the light of this rule of our law: It is our duty to approach the question with caution, examine it with infinite care, make every presumption and intendment in its favor, and sustain the [a]ct unless its invalidity is, in our judgment, beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 320, 732 A.2d 144 (1999); accord Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 306-307, 695 A.2d 1051 (1997). Furthermore, “outside the context of the first amendment, in order to challenge successfully the facial validity of a statute, [the challenging] party [must] demonstrate as a threshold matter that the statute may not be applied constitu
The defendant cannot sustain his burden of demonstrating that § 53a-46a (h) (1) is facially unconstitutional because he cannot establish that it is unconstitutional as applied to him. In the present case, the state claimed, and the jury found during the penalty phase hearing, that the defendant shot and killed Officer Williams after being stopped by Williams and during the defendant’s attempted commission of a narcotics felony. In such circumstances, the link between the capital murder and the narcotics felony was more than merely temporal or coincidental.
Indeed, the defendant acknowledges that the evidence adduced by the state indicates more than just a temporal connection between the capital felony and the drug felony committed by the defendant during the commission of the capital felony. The defendant asserts, however, that, because the court instructed the jury in accordance with the language of § 53a-46a (h) (1), the jury could have found the existence of that aggravating factor without also having found anything more than a temporal nexus between the capital felony and the narcotics offense. We disagree. On the basis of the specific facts that the state had presented and that the jury necessarily had found as reflected in its special verdict—i.e., that the defendant murdered an on-duty police officer while committing or attempting to commit a felony narcotics offense—a constitutionally sufficient nexus clearly existed between those two offenses.
Although, as the defendant asserts, it is possible to conjure up a situation in which there is only a coincidental relationship between the capital felony and the other felony committed during the course of the commission of the capital felony, the present case does not resemble
2
The State’s Burden of Satisfying the “Same Felony” Element of § 53a-46a (h) (1)
The defendant claims that the trial court improperly concluded that the state had alleged and proven facts sufficient to establish the aggravating factor of § 53a-46a (h) (1). In particular, the defendant contends that the term “same felony” in § 53a-46a (h) (1) includes only Connecticut felonies and not out-of-state felonies. We disagree.
The following additional facts and procedural history are necessary to our resolution of this claim. At trial, the defendant stipulated to the fact that he had been convicted in 1989 of the criminal sale of a controlled substance in the fourth degree in violation of § 220.34 of the New York Penal Law.
“The [defendant’s] claim raises an issue of statutory construction over which our review is plenary. . . . Our resolution of [this claim] is governed by well established principles. [I]t is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) State v. Russo, supra, 259 Conn. 447.
“When the statute in question is one of a criminal nature, we are guided by additional tenets of statutory construction. First . . . we must refrain from imposing criminal liability whe[n] the legislature has not expressly so intended. . . . 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. . . . Finally, unless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are strictly construed against the state.” (Citations omitted; internal quotation marks omitted.) State v. Davis, 255 Conn. 782, 788-89, 772 A.2d 559 (2001). Moreover, “in this case we are construing [a death penalty] statute. The resolution of this issue could result in the imposition of the death penalty on this defendant and on other defendants charged with similar offenses. It is axiomatic that any statutory construction implicating the death penalty must be based on a conclusion that the legislature has clearly and unambiguously made its
“The rule of strict construction, however, does not require that the most narrow, technical and exact meaning be given to the language of a statute in frustration of an obvious legislative intent. . . . Common sense should be applied to the language of a penal statute, particularly if otherwise absurdity or frustration of the evident design of the legislature results.” (Internal quotation marks omitted.) State v. Albert, 50 Conn. App. 715, 726, 719 A.2d 1183 (1998), aff'd, 252 Conn. 795, 750 A.2d 1037 (2000). “No rule of construction . . . requires that a penal statute be strained and distorted in order to exclude conduct clearly intended to be within its scope—nor does any rule require that the act be given the narrowest meaning. It is sufficient if the words are given their fair meaning in accord with the evident intent of [the legislature]. . . . The rule that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise; General Statutes § 1-1 (a); State v. Mattioli, [210 Conn. 573, 579, 556 A.2d 584 (1989)]; also guides our interpretive inquiry.” (Citation omitted; internal quotation marks omitted.) State v. Scott, 256 Conn. 517, 531-32, 779 A.2d 702 (2001).
As with all issues of statutory construction, our starting point is the relevant statutory language. General Statutes (Rev. to 1991) § 53a-46a (h) provides in relevant part: “If no mitigating factor is present, the court shall impose the sentence of death on the defendant if the jury . . . finds by a special verdict . . . that (1) the defendant committed the [capital] offense during the commission or attempted commission of ... a felony
The term “felony,” however, is defined by statute. General Statutes § 53a-25 (a)
Notwithstanding the clear import of the literal statutory language, the defendant contends that the context and legislative history of the relevant statutory provisions compel the conclusion that the legislature did not intend for out-of-state felonies to be included under § 53a-46a (h) (1). Before addressing the merits of the defendant’s contention, we briefly review the pertinent legislative genealogy.
As the defendant notes, the legislature revised Connecticut’s death penalty statutory scheme in 1973.
Because the conduct that led to the defendant’s conviction of capital felony in the present case occurred in 1992, long after the legislature expanded the meaning of “felony” to include out-of-state felonies, a literal application of the relevant statutory language to the facts of this case compels the conclusion that the defendant’s conviction for the criminal sale of a controlled substance pursuant to N.Y. Penal Law § 220.34 is a “felony” within the meaning of § 53a-46a (h) (1). Despite its facial applicability, however, the defendant maintains that the legislature did not intend for that expanded definition of the term “felony” to apply to § 53a-46a (h) (1). The defendant advances three arguments in support of his claim. First, the defendant claims that, because the legislature made express reference to out-of-state felony convictions in subdivision (2) of § 53a-46a (h),
The defendant first claims that if the legislature had intended for the “same felony” requirement of § 53a-46a (h) (1) to apply to convictions for out-of-state felonies, the legislature would have used the language that it used in § 53a-46a (h) (2), which requires proof that the defendant, prior to committing the capital felony, had been convicted of a certain number and kind of “federal” or “state” offenses “for . . . which a penalty of more than one year imprisonment may be imposed . . . .” General Statutes (Rev. to 1991) § 53a-46a (h) (2). We agree with the defendant that the legislature evidently did intend to exclude out-of-state felony convictions from the coverage of § 53a-46a (h) (1) when that provision first was enacted in 1973 as part of P.A. 73-173, § 4, and codified at General Statutes (Rev.
That the legislature apparently intended to limit the scope of the term “same felony” when P.A. 73-173, § 4, was enacted in 1973, however, provides no support for the defendant’s argument. As we have explained, the legislature enlarged the definition of “felony” in 1975 to include out-of-state felonies; P.A. 75-380, § 15, codified at General Statutes (Rev. to 1977) § 53a-24 (a); see also General Statutes § 53a-25 (a) (defining term “felony” as “[a]n offense [as defined in § 53a-24 (a)] for which a person may be sentenced to a term of imprisonment in excess of one year”); and there is nothing in the relevant statutoiy language or history to suggest that the expanded definition of “felony” is not applicable to § 53a-46a (h) (1). Indeed, it makes perfect sense that the legislature, having decided to include out-of-state and federal felonies in the group of felonies qualifying under § 53a-46a (h) (2), also would have chosen to include out-of-state and federal felonies in the group of felonies qualifying under § 53a-46a (h) (1). We therefore reject the defendant’s argument predicated on the language of § 53a-46a (h) (2).
The defendant next contends that because the legislature, in enacting P.A. 75-380, primarily was concerned with setting mandatory minimum penalties for certain offenses involving the use of firearms, it could not have intended for that act to bear upon the death penalty.
The defendant’s argument would fail even in the absence of § 53a-2, moreover, because it flies in the face of well established principles of statutory construction. “In interpreting statutes . . . [w]e presume that laws are enacted in view of existing relevant statutes . . . and that [sjtatutes are to be interpreted with regard to other relevant statutes because the legislature
Finally, the legislature had completed its post-Fur-man
The defendant’s last argument also is unpersuasive. Although it undoubtedly is true that modifications to our death penalty statutory scheme generally are accompanied by spirited legislative debate, we simply cannot place on the absence of such debate the conclusive weight that the defendant’s argument would require. In light of the clarity of the language of the
Finally, there is compelling reason to reject the statutoiy construction advanced by the defendant, namely, that the state’s contrary interpretation furthers the fundamental purpose of § 53a-46a (h) (1), whereas the defendant’s construction is inconsistent with that pur
This conclusion does not end our inquiry, however, for we still must determine whether, for purposes of § 53a-46a (h) (1), the felony that the defendant committed during the commission of the capital felony, namely, sale of a narcotic substance, is the same as the New York felony for which he was convicted in 1989. We conclude that it is.
Again, our inquiry is one of statutory construction. Because the term “same” is not statutorily defined, we look to the commonly approved meaning of the word as defined in the dictionary. See, e.g., Perodeau v. Hartford, 259 Conn. 729, 736, 792 A.2d 752 (2002). The word “same” is defined as “resembling in every way: not different in relevant essentials at one time . . . conforming in every respect . . . corresponding so closely as to be indistinguishable: closely similar: comparable . . . .” Webster’s Third New International Dictionary.
Having determined that the term “same felony” in § 53a-46a (h) (1) encompasses out-of-state felonies, we conclude that our legislature likely did not intend to impose a requirement that the title and wording of the out-of-state provision under which the defendant previously had been convicted be identical to the title and wording of the Connecticut statutory provision that embraces the felony that the defendant is alleged to have committed or to have attempted to commit during the commission of the capital felony. The legislature
We therefore conclude that, for purposes of § 53a-46a (h) (1), the term “same felony” means a felony that is the same in all material respects as the felony that is committed in this state during the commission of the capital felony. That requirement is fully satisfied only if the two felonies share the same essential elements.
The Right to a Jury Determination on the Existence of the Aggravating Factor Enumerated in § 53a-46a (h) (1)
The defendant claims that the trial court improperly deprived him of his right to have the jury decide all of the factual issues relating to the existence of the aggravating factor of § 53a-46a (h) (1) and, in so doing, also improperly relieved the state of its burden of proving all of the elements of that aggravating factor beyond a reasonable doubt. We disagree.
With respect to the requirement of § 53a-46a (h) (1) that the defendant previously have been convicted of the “same felony” that he committed or attempted to commit during the commission of the capital felony, the state relied on the defendant’s stipulation that he has a prior felony conviction in New York for the sale of a controlled substance.
The court next instructed the jury on the crime of sale of a narcotic substance in violation of § 21a-277 (a)
The defendant contends that he was entitled to have the jury, rather than the court, decide whether the criminal sale of a controlled substance in the fourth degree,
We agree with the trial court that the issue of whether the two narcotics offenses constitute the “same felony” for purposes of § 53a-46a (h) (1) is an issue to be resolved by the court, not the jury. The process of statutory interpretation in no way implicates the fact-finding function of the jury but, rather, presents a pure question of law. Consequently, it is a matter within the sole province of the court. The process of comparing statutory provisions to determine whether they are the “same” within the meaning of a third statute is no more a fact-based inquiry than determining the elements of the offenses enumerated therein.
4
The Sufficiency of Evidence of the Defendant’s Attempt to Commit the Crime of Sale of a Narcotic Substance During the Course of Committing the Capital Felony
The defendant next claims that the evidence was insufficient to support the jury’s finding that the state had proven the elements of § 53a-46a (h) (1) beyond a reasonable doubt. Specifically, the defendant claims that, at most, the evidence supported a finding that he was committing “the felony of attempted possession of cocaine with the intent to sell” when he was stopped by Williams, and not that he was attempting to sell cocaine. This claim also is without merit.
“[B]ecause of the seriousness of any death penalty determination, we will subject a finding of an aggravating factor to the same independent and scrupulous examination of the entire record that we employ in our review of constitutional fact-finding, such as the voluntariness of a confession ... or the seizure of a defendant.” (Citations omitted.) State v. Ross, supra, 230 Conn. 259. “However, [e]ven with the heightened appellate scrutiny appropriate for a death penalty case, the defendant’s challenge to the sufficiency of the evidence of aggravating circumstances must be reviewed, in the final analysis, by considering the evidence presented at the defendant’s penalty hearing in the light most favorable to sustaining the facts impliedly found
On the basis of the evidence adduced by the state at the penalty phase hearing, the jury reasonably could have found that, in the early morning hours of December 18, 1992, both the defendant and Crawford, members of the same drug trafficking organization, were each in possession of approximately 175 bags of cocaine, worth about $3500, for sale to a person who resided on Locust Street in Waterbury. The defendant also was carrying a loaded .38 caliber semiautomatic pistol in his right coat pocket. The two men were walking to the Locust Street address to consummate the drug sale when they were approached by Williams, who ordered them to stop and place their hands on his cruiser. Crawford ignored Williams’ command and walked away. The defendant stopped and placed his left hand on the cruiser, but refused to take his right hand out of his coat pocket, where his gun was concealed. When Williams forcibly tried to remove the defendant’s right hand from the defendant’s pocket, the defendant turned and shot Williams in the head to avoid the discovery of the weapon and the cocaine. These facts amply support the jury’s determination that the defendant shot and killed Williams while he and Crawford were involved in an attempt to sell a narcotic substance, namely, cocaine.
B
Issues Concerning the Aggravating Factor Enumerated in § 53a-46a (h) (4)
1
Evidentiary Insufficiency
The defendant contends that the evidence was insufficient to establish beyond a reasonable doubt that he murdered Officer Williams in an “especially heinous, cruel or depraved manner,” as required under § 53a-46a (h) (4). Specifically, the defendant claims that the jury reasonably could not have concluded that he had the intent necessary to satisfy that aggravating factor. We agree with the defendant.
The defendant contends that the state failed to establish beyond a reasonable doubt that he intended to inflict extreme psychological pain or torture on Williams above and beyond that necessarily accompanying the murder.
“Even with the heightened appellate scrutiny appropriate for a death penalty case, the defendant’s challenge to the sufficiency of the evidence of aggravating circumstances must be reviewed, in the final analysis, [first] by considering the evidence presented at the defendant’s penalty hearing in the light most favorable to sustaining the facts impliedly found by the jury.” State v. Ross, supra, 230 Conn. 264. “Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established [the existence of the aggravating factor] beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that
“Furthermore, [i]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with [the existence of the aggravating factor] and is not required to draw only those inferences consistent with [its nonexistence], The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Johnson, supra, 253 Conn. 64.
“Because [t]he only kind of an inference recognized by the law is a reasonable one [however] . . . any such inference cannot be based on possibilities, surmise or conjecture. ... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence. . . . [T]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment.” (Citations omitted; internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 338-39, 746 A.2d 761 (2000); accord State v. Niemeyer, 258 Conn. 510, 518, 782 A.2d 658 (2001).
Viewed in the light most favorable to the state, the evidence that the state adduced at the penalty phase hearing established that, while Williams was attempting to subdue the defendant, the defendant bumped Williams in the chest to determine whether Williams was wearing a bulletproof vest. Upon ascertaining that, in fact, Williams was wearing a protective vest, the defendant removed a .38 caliber semiautomatic pistol from his pocket, turned and shot Williams in the head from a distance of one to two feet. The defendant immediately fled and, as he was running away, fired six additional gunshots in Williams’ direction.
The state claims that, in view of the fact that the defendant shot Williams in the head from such close range, it was reasonable for the jury to conclude that, as the defendant fled, he knew that Williams lay helpless in the street, dying. The state further contends that, because the jury reasonably could have found that the defendant was aware that Williams had been fatally wounded, it also was proper for the jury to infer that the defendant fired the additional gunshots with an intent to torture Williams psychologically and not with an intent to kill him. The state points to no other evidence in support of its claim.
There can be no doubt that the evidence supported a finding that the defendant shot Williams in the head with the intent to kill him.
Contrary to the state’s claim, the evidence does not reasonably support the conclusion that the defendant continued to fire at Williams with the intent to torture him psychologically. To reach such a conclusion, it would be necessary for a fact finder to infer, on the basis of the defendant’s conduct, that the defendant’s state of mind changed from an intent to kill to an intent to torture in the brief interval between the point at which the defendant shot Williams in the head and the point at which the defendant fired the additional gunshots in Williams’ direction while fleeing the crime scene.
Of course, “[p]roof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis. . . . Thus, in determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable. ... In other words, an inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference.” (Internal quotation marks omitted.) State v. Niemeyer, supra, 258 Conn. 518-19. As we have indicated, however, we are not persuaded that the evidence in the present case is reasonably susceptible of an inference that the defendant intended to torture Williams.
We acknowledge that it probably would not have been impossible for the defendant to have formulated the intent to torture Williams in the extremely brief period of time between the firing of the first shot and the firing of the additional gunshots. An inference is not legally supportable, however, merely because the scenario that it contemplates is remotely possible under the facts. To permit such a standard would be to sanction fact-finding predicated on mere conjecture or guesswork. Proof by inference is sufficient, rather, only “if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact.” (Emphasis added; internal quotation marks omitted.) Id., 519. Under the circumstances of the present case, the likelihood that the defendant had changed his intent in the brief interval that separated the first shot from the remaining gunshots simply is
2
Denial of the Defendant’s Prepenalty Phase Motion to Dismiss the Aggravating Factor Enumerated in § 53a-46a (h) (4)
The defendant next claims that the panel improperly denied his prepenalty phase motion to dismiss the aggravating factor enumerated in § 53a-46a (h) (4)
In view of the gruesome nature of the autopsy photographs, the trial court cautioned the jury in relevant part as follows: “[P]art of the evidence consists of . . . slides of the deceased. I would just point out these slides are not offered for their emotional impact but the nature and the extent and the severity of injuries suffered by [Williams]. Emotional impact of the photos should have absolutely no effect on your consideration now and your consideration during deliberation. Cer
At the conclusion of the state’s evidence on the aggravating factors, the defendant renewed his motion to dismiss the aggravating factor enumerated in § 53a-46a (h) (4). The trial court granted the defendant’s motion limited to the state’s claim regarding the defendant’s alleged intentional infliction of extreme physical pain or torture. Accordingly, the court thereafter instructed the jury that “there is no claim by the state that there exists evidence in this case of the intentional infliction of extreme physical pain beyond that necessarily accompanying the underlying killing.” The court then instructed the jury on the law applicable to the state’s claim concerning the existence of the aggravating factor enumerated in § 53a-46a (h) (4) by virtue of the defendant’s allegedly intentional infliction of extreme psychological pain or torture beyond that necessary to accomplish the killing.
On appeal, the defendant contends that the panel improperly declined to dismiss, in advance of the penalty phase hearing, the aggravating factor enumerated in § 53a-46a (h) (4), on the ground that the evidence was insufficient to establish that the defendant intentionally inflicted extreme physical pain or torture beyond that necessary to accomplish the killing. The defendant further claims that he was prejudiced by the panel’s denial of his motion in advance of the penalty phase hearing because the autopsy photographs that were admitted at that hearing were both prejudicial and irrelevant to any other issue in the case.
Moreover, the photographs were relevant to the state’s claim that the defendant had intentionally inflicted extreme psychological pain or torture on Williams beyond that necessary to accomplish the killing. In order to prove the existence of the aggravating factor enumerated in § 53a-46a (h) (4), the state sought to establish that Williams was conscious and, consequently, was able to experience the terror of hearing six additional gunshots
Finally, the trial court strongly cautioned the jurors about the graphic nature of the photographs of Williams and emphasized that they should take particular care to guard against any unduly emotional reaction. Such an instruction likely reduced any possible prejudice to the defendant that might have arisen from the state’s use of the photographs.
C
The Court’s Instructions on Reasonable Doubt
The defendant claims that the trial court’s instructions on reasonable doubt
“In determining whether a trial court’s charge satisfies constitutional requirements, however, 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. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper
As the defendant acknowledges, this court previously has applied this standard of review in rejecting claims identical in all material respects to those advanced by the defendant. E.g., State v. Velasco, 253 Conn. 210, 249, 751 A.2d 800 (2000) (rejecting constitutional challenge to instruction that reasonable doubt is “a real doubt, an honest doubt, a doubt which has its foundation in the evidence or lack of evidence” [internal quotation marks omitted]); State v. Griffin, supra, 253 Conn. 205 (rejecting constitutional challenge to instruction that reasonable doubt is “such a doubt, as in serious affairs that concern you, you would heed, that is, such a doubt as would cause reasonable men and women to hesitate to act in matters of importance” [internal quotation marks omitted]); State v. Lewis, 245 Conn. 779, 816, 717 A.2d 1140 (1998) (rejecting constitutional challenge to instruction that reasonable doubt is doubt “for which you can in your own mind conscientiously give a reason” [internal quotation marks omitted]); State v. Taylor, 239 Conn. 481, 504, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997) (rejecting constitutional challenge to instruction that reasonable doubt “is [not] a doubt suggested by the ingenuity of counsel” [internal quotation marks omitted]).
D
Effect of the Jury’s Invalid Finding as to the Existence of One Aggravating Factor on the Jury’s Finding as to the Existence of Another Aggravating Factor
The defendant next claims that he is entitled to a new penalty phase hearing on the existence of the aggravating factor enumerated in § 53a-46a (h) (l)
In State v. Webb, 238 Conn. 389, 479-83, 680 A.2d 147 (1996) (Webb I), we addressed an issue virtually identical to the issue raised by the defendant’s claim
Contrary to the defendant’s claim, the state has demonstrated beyond a reasonable doubt that the jury’s finding concerning the existence of the aggravating factor of § 53a-46a (h) (4) did not improperly affect its finding concerning the existence of the aggravating factor of § 53a-46a (h) (1). Our reasoning in Webb is equally applicable in the present case. First, “the two aggravants are logically and factually distinct, and the trial court’s instructions properly presented the aggravants as separate matters for the jury’s consideration. In this connection . . . the trial court expressly instructed the jury that the state was required to prove only one aggravating factor .... Moreover, the trial court gave separate instructions concerning each aggravant and marshaled the evidence related to each aggravant separately.” Id., 482. Furthermore, “overwhelming evidence supported the jury’s finding of the aggravating factor set forth in § 53a-46a (h) (1). To find this factor, the jury was required to conclude only that the murder of the victim occurred in the course of an attempted [sale of a narcotic substance]. The evidence in th[e] [present] case unequivocally supports] the jury’s conclusion that the defendant murdered [Officer Williams] during the commission of ... an attempted [narcotics sale].”
The simple answer to the defendant’s claim is that the evidence of those additional gunshots was admissible under General Statutes (Rev. to 1991) § 53a-46a (d),
E
Three Judge Panel
The defendant next claims that the panel improperly denied his motion to have all three members of the panel preside over the penalty phase hearing rather than just one member. The defendant maintains that § 53a-46a (b)
We note, preliminarily, that several other statutory provisions and their relationship to § 53a-46a (b) inform our resolution of the defendant’s claim. Under General Statutes § 54-82 (a),
As the panel noted in its decision denying the defendant’s motion, it is true that the first sentence of § 53a-46a (b), when viewed in isolation, may be read to suggest that a capital defendant is entitled to have the three judges who determined the defendant’s guilt also preside over the penalty phase hearing. There is, however, no mention of any such right in the third sentence of § 53a-46a (b), which governs, inter alia, cases such as the present case, in which a defendant, who has elected to have his guilt or innocence determined by a three judge panel, chooses to have a jury determine his sentence at the penalty phase hearing.
To be sure, the first sentence of § 53a-46a (b) provides that the penalty phase hearing shall be conducted by “the judge or judges who presided at” the guilt phase portion of the case. But pursuant to §§ 53a-45 and 54-82, the chief court administrator is responsible for designating one of the members of the panel to be the presiding judge. When §§ 53a-46a, 53a-45 and 54-82 are read together, it is apparent that only the panel member who had been selected to be the presiding judge during the guilt phase shall preside over the penalty phase hearing. Thus, we do not believe that the literal language of § 53a-46a (b) dictates that all three panel members before whom the guilt phase was conducted must preside at a penalty phase hearing that is conducted before a jury. Indeed, we are persuaded that the term “judges” in the first sentence of § 53a-46a (b) does not apply to
We reach this conclusion for several reasons. First, the defendant has not proffered an explanation, and we are aware of none, why the legislature would have required all three members of the panel who determined the defendant’s guilt to preside over the penalty phase hearing when that proceeding is to be conducted before a jury. In such circumstances, there simply is no reason to have more than one judge preside over the penalty phase hearing. In contrast, when the court is called upon to serve as the fact finder in a murder case, that function is performed by three judges rather than one for good reason, namely, because the legislature has concluded that the “burden of having a murder case tried to the court, when the accused so elect[s], should
Second, there is no other circumstance under which a three judge panel is authorized to preside over a jury trial. This is hardly surprising in light of the fact that, as we already have explained, there is no justification for having more than one judge preside over a hearing or trial in which a jury, rather than a judge, serves as the fact finder. Because the role of a three judge court is to serve as a substitute for a jury,
Third, there exists a strong reason why there should not be more than one judge presiding over a jury trial, namely, only one judge is necessary to perform the duties of the court. Indeed, to have three judges participate in the time consuming task of jury selection for the penalty phase hearing, and then to require the same three judges to preside over that hearing, would result in a significant waste of judicial resources.
Finally, there is nothing in the relevant statutory genealogy or legislative history to support the defendant’s
For the foregoing reasons, we conclude that, inasmuch as the defendant had elected to have a jury determine his sentence at the penalty phase hearing, the panel properly determined that the defendant was not entitled to have all three members of the panel preside over that hearing. Consequently, we reject the defendant’s claim to the contrary.
F
Excusal of Juror for Cause
The defendant next claims that the trial court improperly granted the state’s request to excuse a prospective
We begin our analysis of the defendant’s claim with a brief review of the governing law. “Our constitutional and statutory law permit each party, typically through his or her attorney, to question each prospective juror individually, outside the presence of other prospective jurors, to determine the venireperson’s fitness to serve on the jury. Conn. Const., art. I, § 19; General Statutes § 54-82f;
“In Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985) . . . the United States Supreme Court . . . considered the effect [of] a prospective juror’s beliefs concerning the death penalty ... on that individual’s eligibility to serve as a juror in a capital case . . . [and] clarified the standard for determining whether a venireperson properly may be challenged for cause on the basis of his beliefs regarding the death penalty. Specifically, the court concluded that the federal constitution permits the excusa! for cause of venirepersons whose opposition to capital punishment would prevent or substantially impair the performance of their duties as jurors in accordance with the court’s instructions and the juror’s oath. Id., 424. . . . [A]s interpreted in . . . Witt, the federal constitution permits the excu
Furthermore, “a trial judge’s finding that a particular venire [person] was not biased and therefore was properly seated [is] a finding of fact .... [T]he question whether a venire [person] is biased has traditionally been determined through voir dire culminating in a finding by the trial judge concerning the venire[person’s] state of mind. . . . [S]uch a finding [also] is
Applying the foregoing principles to the present case, we conclude that the record fully supports the court’s decision to strike M.K. for cause. First, M.K. stated on his jury questionnaire that he could not serve as a juror because he did not believe in capital punishment. Thereafter, in response to questions by the state’s attorney regarding his views on the subject, M.K. stated that he believed that capital punishment is morally wrong and that he “wouldn’t want to be part of” the process of evaluating the alleged aggravating and mitigating factors for the puipose of determining whether the defendant would be sentenced to death. When the trial court sought to clarify M.K’s views on the death penalty, M.K. indicated that those views probably would affect his ability to be impartial, and that he would “tend more toward the defendant.” Although M.K. later stated, in response to questioning from defense counsel, that he would be able to find facts fairly, he also reiterated his desire that he not be required to participate in a fact-finding process that might lead to the imposition of the death penalty in light of his belief that “it’s [not] the right thing to do.”
We conclude that the trial court properly excused M.K. for cause. M.K. expressed strong moral opposition to capital punishment and repeatedly explained that, in light of his views, it would be very difficult for him to remain impartial. Although M.K. did indicate that he thought that he could listen to and analyze the evidence fairly, he also candidly acknowledged that he was, at
G
The Role of the Jury as Sentencer
The defendant also contends that the court’s jury instructions did not adequately apprise the jury of its responsibility to determine whether the defendant would be sentenced to death or to life in prison without the possibility of release.
“The sentencer makes the required moral and individualized determination, under our statute, because it must consider a nonexclusive list of mitigating factors
“Furthermore, it is evident that the capital sentencer, either a jury or the court, in making its determination regarding the existence of aggravating and mitigating factors during the separate sentencing hearing is aware that its task [is] the serious one of determining whether a specific human being should die at the hands of the [s]tate. . . . Finally, the death sentence is mandatorily imposed only after the capital sentencer has determined unanimously that at least one aggravating factor exists and no mitigating factors exist, and has come to this unanimous determination by engaging in a full, individualized consideration as to whether death is the appropriate penalty for each defendant.” (Citations omitted; internal quotation marks omitted.) State v. Ross, supra, 230 Conn. 240-41.
Thus, “great care must be taken by the trial court to ensure that a capital sentencing jury fully appreciates the momentous nature of its duty and, in particular, that the jury not be led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere. Caldwell v. Mississippi, supra, [472 U.S.] 329.” (Internal quotation marks omitted.) State v. Breton, 235 Conn. 206, 245-46, 663 A.2d 1026 (1995) (Breton II). To ensure that the jury is “fully aware of its determinative role in our capital sentencing
The defendant claims that the trial court’s instructions regarding the jury’s ultimate role in determining the appropriate sentence were inadequate because “[t]he overall effect of [those] . . . instructions . . . was an impermissible lessening or lowering of the jurors’ sense of responsibility” in regard to that role. The defendant further contends that the trial court improperly declined to give the charge that he had requested regarding the jury’s responsibility in deciding the appropriate sentence.
The trial court’s instructions were sufficient to inform the jurors that they were ultimately responsible, by virtue of their statutory duty to determine the existence or nonexistence of the alleged aggravating and mitigating factors, for deciding whether the defendant would be sentenced to death or to life imprisonment without the possibility of release. Furthermore, inasmuch as the court properly had explained the jury’s role in evaluating the defendant’s claimed mitigating factors, the jury necessarily was aware of the “moral and individualized”; State v. Ross, supra, 230 Conn. 240; nature of its determination.
The defendant also contends that the trial court should have instructed the jury, as he had requested, that it “ultimately must determine the punishment in this particular case.” Contrary to the defendant’s contention, the trial court was not obligated to instruct the
In addition to his general challenge to the effect of the jury charge as a whole, the defendant specifically challenges the following language contained in the court’s charge: “It’s not within your province to be affected by the consequences your verdict may have upon the participants in this trial or anyone else.” The defendant contends that this portion of the court’s instructions, which was given toward the conclusion thereof, conveyed the false impression that the jury’s function merely was to find facts without regard to whether death was the appropriate sentence.
“The standard of review for constitutional claims of improper jury instructions is well settled. In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Respass, 256 Conn. 164, 182, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001).
It is clear that the challenged language, when considered in the broader context of the charge as a whole,
H
The Right to a Bifurcated Penalty Phase Hearing
The defendant next asserts that the panel improperly denied his motion for a bifurcated penalty phase hearing. Specifically, the defendant contends that he was entitled to separate hearings to determine the existence of the aggravating factors that the state alleged, on the one hand, and to determine the existence of the mitigating factors that he alleged, on the other hand, the necessity of the latter hearing being dependent on whether the jury found the existence of one or more aggravating factors during the first hearing. According to the defendant, the panel’s failure to bifurcate the penalty phase hearing gave rise to an undue risk that the jury, in deliberating on the alleged aggravating and mitigating factors, weighed those factors in contravention of the statutory sentencing scheme.
Furthermore, we see no reason why a bifurcated penalty phase hearing was necessary under the circumstances of the present case. Pursuant to the court’s instructions, the jury was required to determine, first,
I
Issues Regarding the Mitigating Factors and Evidence
1
Evidence Establishing the Existence of One or More Mitigating Factors
The defendant contends that the jury “erroneously and arbitrarily” failed to find that the evidence adduced at the penalty phase hearing established the existence
“First, [Cobb’s] argument would effectively read out of § 53a-46a (d) the requirement that the sentencer determine whether that factor is mitigating in nature .... We ordinarily do not read statutes so as to render parts of them superfluous or meaningless. United Illuminating Co. v. New Haven, [240 Conn. 422, 439, 692 A.2d 742 (1997)]. Thus, § 53a-46a (d) contemplates that a capital sentencer may reject a proven proposed mitigant on the ground that, under all of the facts and circumstances of the case, the factor does not extenuate or reduce the degree of [the defendant’s] culpability or blame for the offense or to otherwise constitute a basis for a sentence of less than death.
“Second, we can discern nothing inconsistent between the statutory provision, on the one hand, that directs a capital sentencer to consider the facts and circumstances of the case in determining whether a particular factor is in fact mitigating in nature; see Gen
“In sum, § 53a-46a does not require a capital sentencer to give mitigating force to any particular proven factor solely because that factor establishes something good about the defendant. Instead, the statute leaves the decision as to whether a proven factor is mitigating in nature to the sentencer’s reasoned moral judgment.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Cobb II, supra, 251 Conn. 494-96. The defendant has failed to articulate any reason why we should reconsider our conclusion in Cobb II, and we know of none. Consequently, the defendant’s claim fails.
2
Proof of Mitigating Valúe
The defendant also asserts that the trial court improperly instructed the jury that the defendant had the burden of proving, not only the existence of an alleged
3
Special Verdict Form—Mitigation
At the conclusion of the penalty phase hearing, the defendant requested that the court give the jurors a special verdict form requiring them to indicate, for each of the forty-one mitigating factors alleged by the defendant, whether they had found a factual basis for each of the alleged mitigating factors and, if so, whether one or more jurors had found that factor to be mitigating. The defendant claimed that this customized special verdict form was necessary for adequate appellate review of the jury’s findings concerning the mitigating factors. The trial court rejected the defendant’s request and, instead, provided the jury with a special verdict form that required the jury to indicate only whether it unanimously had found the existence of any mitigating factor.
As the defendant notes, “it is important that the record on appeal disclose to the reviewing court the considerations which motivated the death sentence in every case in which it is imposed.” Gardner v. Florida, 430 U.S. 349, 361, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977). Consistent with this requirement, General Statutes (Rev. to 1991) § 53a-46a (e) provides that “[t]he jury or, if there is no jury, the court shall return a special verdict setting forth its findings as to the existence of any aggravating or mitigating factor.” (Emphasis added.) The special verdict form that the trial court submitted to the jury satisfies that statutory mandate, and the defendant has failed to articulate any reason why a form that complies with § 53a-46a (e) is inadequate for appellate review of the jury’s findings with respect to the mitigating factors. We, like the United States Supreme Court, “are not impressed with the claim that without written jury findings concerning mitigating circumstances, appellate courts cannot perform their proper role.” Clemons v. Mississippi, 494 U.S. 738, 750, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990). Accordingly, we reject the defendant’s claim.
4
The Cumulative Effect of the Mitigating Evidence as an Independent Mitigating Factor
The defendant next contends that the trial court improperly rejected his request to include, in his written
The following facts are necessary to our determination of this issue. The defendant requested that the following mitigating factor be submitted to the jury along with his other proposed mitigating factors: “That any of the [mitigating] factors, either taken individually or in combination with any other factor, constitutes not an excuse for the murder of [Williams], but in fairness or mercy provides a reason for sentencing [the defendant] to life in prison with no possibility of release rather than sentencing him to death . . . .” The defendant also requested that the trial court instruct the jury that it “must . . . consider the cumulative or combined effect of all of the mitigating evidence and information which [it had] heard. If the cumulative or combined effect of that evidence satisfies the preponderance of the evidence standard, and is in your judgment mitigating, then you will have found a mitigating factor . . . .”
The trial court rejected the defendant’s request, essentially concluding that the proposed mitigating factor regarding the cumulative effect of the mitigating evidence was not factually separate and distinct from the other proposed mitigating factors, and, therefore, there was no reason to include that factor in the list of mitigating factors to be submitted to the jury. The court, however, instructed the jury that it “may consider the cumulative impact of some or all of the evidence offered
A defendant is entitled to have the capital sentencer consider individual mitigating factors as well as their combined effect. “[E]ven if [specific mitigating facts] are not in themselves cause for a sentence less than death, they are still relevant to mitigation and must be weighed in conjunction with other factors to determine if all of the circumstances together warrant a lesser sentence.” Smith v. McCormick, 914 F.2d 1153, 1168 (9th Cir. 1990); see also Boyde v. California, 494 U.S. 370, 377-78, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990) (eighth amendment requires capital sentencers to consider “all relevant mitigating evidence” offered by defendant). Moreover, we have stated that, as a matter of sound judicial policy, the trial court should submit an accurate written list of each of the claimed statutory and nonstatutory mitigating factors if the defendant so requests. BretonII, supra, 235 Conn. 254—55.
5
Catchall Mitigating Factors
The defendant asserts that the trial court improperly determined that he was not entitled to include, in his written list of mitigating factors, two claimed mitigating
The defendant sought to include in his written list of mitigating factors the following two factors: (1) “That there exists a factor concerning the facts or circumstances of the case that has not been specifically mentioned in this list that a juror or jurors consider in fairness or mercy to constitute a basis for imposing ... a sentence of life in prison with no possibility of release rather than [a sentence of death] and (2) “ [t]hat there exists a factor concerning [the defendant’s] character, history or background that has not been specifically mentioned in this list that a juror or jurors consider in fairness or mercy as [a] basis for sentencing [the defendant] to life in prison with no possibility of release rather than sentencing him to death . ...” In addition, the defendant sought an instruction explaining these two proposed mitigating factors.
The trial court declined to allow the defendant to include the two mitigating factors in his list, concluding that it was not appropriate to do so because those
As we have explained previously in this opinion; see part III 14 of this opinion; a trial court, if so requested, should include all proposed mitigating factors in the list of mitigating factors submitted to the jury. Breton II, supra, 235 Conn. 254-55. The defendant should have been permitted to include these so-called “catchall” mitigating factors in the list along with his other proposed mitigating factors. The court’s failure to do so, however, does not constitute reversible error because the court, in its instructions to the jury, adequately apprised the jury of its responsibility to consider those proposed mitigating factors. In view of the court’s instructions, it is not reasonably possible that the jury failed to consider the defendant’s proposed catchall mitigating factors.
6
The Defendant’s Request to Present as an Independent Mitigating Factor the Inappropriateness of the Death Penalty Under the Circumstances of the Case
The defendant maintains that the trial court improperly declined to allow the jury to consider, as an inde
The defendant sought to include the following mitigating factor on his list of mitigating factors: “That, because of considerations of fairness or mercy, a juror or jurors do not consider the existence of any aggravating factor which [they] may have found proven beyond a reasonable doubt to be a sufficient basis for [the defendant’s] execution under the facts and circumstances of the case.”
The trial court properly declined the defendant’s request to permit the jury to consider the proposed mitigating factor. See Cobb II, supra, 251 Conn. 475-76, 478 (rejecting substantially similar claim). First, the defendant’s contention is incorrect “[a]s a matter of the meaning of our statutory capital sentencing scheme”; id., 476; which requires the imposition of the death penalty if the sentencer finds the existence of one or more aggravating factors and no mitigating factor. See General Statutes (Rev. to 1991) § 53a-46a (f) (“[i]f the jury or, if there is no jury, the court finds that one or more of the [aggravating] factors set forth in subsection (h) exist and that no mitigating factor exists, the court shall sentence the defendant to death”). “Thus, contrary to the defendant’s contention, under our statute, once the sentencer has found an aggravating factor proven beyond a reasonable doubt, there is no requirement that it go further and make an additional determination that the presence of that factor justifies the imposition of the death penalty. In effect, the legislature has stated that as a matter of fundamental policy, the presence of such a factor requires the imposition of that penalty unless a mitigating factor is found.” Cobb II, supra, 478. Second, as we repeatedly have stated, our capital sentencing scheme fully comports with the constitutional requirement that the capital sentencer make a
7
Mercy as a Mitigating Factor
The defendant claims that the trial court improperly failed to instruct the jury that mercy is an independent mitigating factor. Although the defendant acknowledges that he did not request such an instruction, he seeks review of his claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),
We note, preliminarily, that considerations of mercy play an important role in our capital sentencing scheme.
The defendant nevertheless claims that he was constitutionally entitled to have the court instruct the jury that mercy itself constituted an independent mitigating factor. In essence, the defendant claims that he had a right to have the jury consider whether he should receive a sentence of life imprisonment without the possibility of release on the basis of mercy irrespective of whether the facts adduced at the penalty phase hearing warranted a finding of the existence of any other mitigating factor. This claim is foreclosed by United States Supreme Court precedent. The United States Supreme Court has held that a state properly may prohibit the capital sentencer from “dispensing] mercy
J
Vagueness Challenge to § 53a-46a (d)
The defendant asserts that § 53a-46a (d), which directs the capital sentencer to consider “all the facts and circumstances of the case” in determining the existence of mitigation is unconstitutionally vague because it authorizes the capital sentencer to reject evidence of mitigation on irrelevant and improper grounds. The
We rejected a virtually identical claim raised by Sedrick Cobb, the defendant in Cobb II, supra, 251 Conn. 482-86. We stated in Cobb II: “[I]n this context, constitutional vagueness analysis involves the application of the eighth amendment . . . [rather than] the due process fair notice principle. The purpose of the eighth amendment vagueness doctrine is to channel the capital sentencing decision sufficiently so as to ensure that the decision is not made arbitrarily and capriciously. Put another way, the eighth amendment vagueness doctrine requires that a death penalty statute adequately inform the capital sentencer regarding what it must find in order to impose the death penalty. See Breton I, supra, 212 Conn. 264. Moreover, eighth amendment vagueness analysis applies only to the eligibility phase and not to the selection phase of the sentencing hearing of a capital felony trial. The due process vagueness principle, however, requires fair warning as to whether conduct constitutes a crime, and clarity of the prohibited conduct sufficient to prevent arbitrary enforcement. It therefore is not relevant at the sentencing phase of a capital trial. . . .
“In Buchanan v. Angelone, 522 U.S. 269, 275-77, 118 S. Ct. 757, 139 L. Ed. 2d 702 (1998), the United States Supreme Court stated: [0]ur cases have distinguished between two different aspects of the capital sentencing process, the eligibility phase and the selection phase. Tuilaepa v. California, 512 U.S. 967, 971 [114 S. Ct. 2630, 129 L. Ed. 2d 750] (1994). In the eligibility phase, the [sentencer] narrows the class of defendants eligible for the death penalty, often through consideration of aggravating circumstances. [Id.] In the selection phase,
“In the selection phase, our cases have established that the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. Penry v. Lynaugh, [supra, 492 U.S. 317-18]; Eddings v. Oklahoma, [455 U.S. 104, 113-14, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982)]; Lockett v. Ohio, [438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978)]. However, the state may shape and structure the [capital sentencer’s] consideration of mitigation [as] long as it does not preclude the [sentencer] from giving effect to any relevant mitigating evidence. Johnson v. Texas, [supra, 509 U.S. 362]; Penry [v. Lynaugh, supra, 326]; Franklin v. Lynaugh, 487 U.S. 164, 181 [108 S. Ct. 2320, 101 L. Ed. 2d 155] (1988). Our consistent concern has been that restrictions on the . . . sentencing determination not preclude the [sentencer] from being able to give effect to mitigating evidence. . . . [0]ur decisions suggest that [at the selection phase], complete . . . discretion is constitutionally permissible. See Tuilaepa [v. California, supra, 512 U.S. 978-79] (noting that at the selection phase, the state is not confined to submitting specific propositional questions to the [capital sentencer] and may indeed allow [it] unbridled
“It is equally well settled that the federal constitution permits a capital sentencer to consider the circumstances of the crime in deciding whether to impose the death penalty. Tuilaepa v. California, supra, 512 U.S. 976; see also Monge v. California, 524 U.S. 721, 731-32, 118 S. Ct. 2246, 141 L. Ed. 2d 615 (1998); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976). Further, although [General Statutes (Rev. to 1989)] § 53a-46a is not a balancing statute; see State v. Ross, supra, 230 Conn. 239; the federal constitution permits a state to adopt a death penalty scheme that requires the capital sentencer to balance aggravating factors against mitigating factors at the sentencing hearing. See Tuilaepa v. California, supra, 979; Clemons v. Mississippi, supra, 494 U.S. 745; Blystone v. Pennsylvania, [494 U.S. 299, 305, 110 S. Ct. 1078, 108 L. Ed. 2d 255 (1990)]; McCleskey v. Kemp, supra, 481 U.S. 313-15 n.37. Obviously, in order to balance aggravating factors against mitigating factors, a capital sentencer first must be permitted to consider evidence regarding aggravation. Thus, the federal constitution
“Furthermore, [Cobb’s] claim that [General Statutes (Rev. to 1989)] § 53a-46a (d) unconstitutionally authorizes a capital sentencer to reject a factor that has been proposed as a mitigant on improper grounds, such as the respective races of the defendant and the victim, is unpersuasive. Section 53a-46a (d) simply directs the sentencer to make its determination as to whether a proven factor is mitigating in nature in light of all of the evidence that has been presented in the case; it cannot reasonably be construed to authorize a capital sentencer to base its determination on nonevidentiary factors. [Cobb], moreover, has presented absolutely no evidence that . . . the panel based its determination that the defendant had not proven the existence of a mitigating factor on any improper ground.” (Citation omitted; internal quotation marks omitted.) Cobb II, supra, 251 Conn. 483-86.
The defendant has suggested no reason why we should reconsider our conclusion in Cobb II regarding the constitutionality of § 53a-46a (d), and we know of none. We therefore reject the defendant’s constitutional challenge to § 53a-46a (d).
K
State’s Use of Evidence Purportedly Admissible During the Guilt Phase Only
The defendant claims that the trial court improperly permitted the state to offer evidence, during the penalty
Under General Statutes (Rev. to 1991) § 53a-46a (d), a capital sentencer is required to determine, with respect to each of the defendant’s proposed mitigating factors, whether any such factor “is mitigating in nature, considering all the facts and circumstances of the case.” (Emphasis added.) In recognition of the fact that a sentencer “entrusted with the awesome responsibility for deciding whether the death penalty should be imposed cannot be asked to find facts in a vacuum”; State v. Ross, supra, 230 Conn. 284; we previously have recognized that the relevant facts and circumstances of the case include the facts and circumstances of the underlying capital offense. See Cobb II, supra, 251 Conn. 494. Thus, the defendant’s contrary contention is without merit.
L
The Admissibility of Anthony Crawford’s Testimony
The defendant next contends that the trial court improperly permitted the state to elicit certain testimony from Anthony Crawford during the penalty phase hearing because that testimony differed materially from
The following additional facts are necessary to our determination of this issue. Prior to the commencement of the penalty phase hearing, the court ordered the state to file a supplemental bill of particulars setting forth the factual basis for its claim regarding the existence of the aggravating factor enumerated in § 53a-46a (h) (l).
During the penalty phase hearing, Crawford testified that he and the defendant had been on their way to Locust Street to “[s]ell” some cocaine when Williams stopped them. The defendant moved to strike Crawford’s testimony that he and the defendant were planning to “[s]ell” drugs that morning, claiming a material difference between that testimony and the testimony referred to in the state’s revised bill of particulars that Crawford and the defendant were planning to “drop
“The purpose of a bill of particulars is to inform the defendant of the charges against him with sufficient precision to enable him to prepare his defense and avoid prejudicial surprise. ... A bill of particulars limits the state to proving that the defendant has committed the offense in substantially the manner described.” (Citation omitted; internal quotation marks omitted.) State v. Correa, supra, 241 Conn. 341. “It is the defendant’s burden on appeal to demonstrate that he was in fact prejudiced in his defense on the merits as a result of a material variance between the allegations in a bill of particulars and proof at trial, and that substantial injustice was done to him because of the language of the state’s pleadings.” (Internal quotation marks omitted.) State v. Steve, 208 Conn. 38, 45, 544 A.2d 1179 (1988). “[If] the state’s pleadings . . . informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty.” (Internal quotation marks omitted.) State v. Killenger, 193 Conn. 48, 55, 475 A.2d 276 (1984).
We conclude that the slight difference between Crawford’s guilt phase testimony and penalty phase testimony did not require the trial court to grant the defendant’s motion to strike Crawford’s testimony during the penalty phase hearing. First, there is no inherent inconsistency between “dropping off’ drugs and “selling” them; indeed, drugs generally are dropped off, or delivered, when they are sold. Second, for purposes of § 2 la-277 (a)—the provision setting forth the felony offense that the defendant was alleged to have been attempting to commit when he committed the capital
M
Alleged Juror Misconduct
The defendant claims that certain comments purportedly made by several jurors to a reporter
The defendant’s claim is not properly before this court. To the extent that the defendant is aware of facts that support his allegation of juror impropriety, those facts have not been established.
N
Preliminary Determination of the Evidentiary Sufficiency of the Aggravating Factors
The defendant requests that this court invoke its supervisory authority over the administration of justice to require our trial courts, upon request by a defendant charged with a capital felony, to conduct a preliminary hearing to determine whether there is sufficient evidence to establish the existence of the aggravating factor or factors alleged by the state.
The defendant advances several arguments in support of his contention. First, he maintains that a preliminary hearing would provide a necessary check on the power of the state to allege the existence of aggravating factors for which there is insufficient evidence. Next, he claims that “ ‘the spect[re] of death should not hang over the head of an accused without some basis of fact.’ ” The defendant further claims that the hearing he contemplates would eliminate the unnecessary selection of death-qualified jurors, who, according to the defendant, may be more conviction-prone than non-death qualified jurors.
We decline to exercise our supervisory authority as the defendant requests for two primary, albeit nonexclusive, reasons. First, the procedures governing the prosecution of capital cases are the subject of a comprehensive legislative scheme, and we will not tinker with those procedures in the absence of a compelling justifi
IV
PROSECUTORIAL MISCONDUCT
The defendant contends that he was deprived of his constitutional right to a fair penalty phase hearing owing to the misconduct of the state’s attorney during the penalty phase hearing. Specifically, the defendant claims that the state’s attorney: (1) made irrelevant and prejudicial references to the family of Officer Williams during voir dire, cross-examination and closing arguments; (2) invited the jury, during closing arguments, to ignore the legal standards governing the determination of whether to impose the death penalty; and (3) injected his personal opinions and beliefs into his closing arguments. Because the defendant failed to object to the majority of the conduct that he challenges on appeal,
Before addressing the merits of the defendant’s claim, we first review the principles that govern our resolution of claims of prosecutorial misconduct. “[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . [MJoreover ... [a defendant is not entitled to prevail under Golding] whe[n]
As we previously have recognized, prosecutorial misconduct of a constitutional magnitude can occur in the course of closing arguments. E.g., State v. Whipper, 258 Conn. 229, 262, 780 A.2d 53 (2001); State v. Broom, supra, 256 Conn. 306. “When making closing arguments to the jury, [however] [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.” (Citation omitted; internal quotation marks omitted.) State v. Whipper, supra, 252-53. “Moreover, [i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument.” (Internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 712, 767 A.2d 1214 (2002).
Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention from the facts of the case. “[The prosecutor] is not only an officer of the court,
Thus, the “prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. . . . Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the defendant. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position. . . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence ... it is likely to infer that such matters precipitated the personal opinions.” (Internal quotation marks omitted.) State v. Singh, supra, 259 Conn. 713. A prosecutor also may not appeal to the emotions, passions and prejudices of the jurors; e.g., State v. Alexander, 254 Conn. 290, 307, 755
“Prosecutorial misconduct [also] may occur in the course of cross-examination of witnesses; State v. Hafner, 168 Conn. 230, 249, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975); and may be so clearly inflammatory as to be incapable of correction by action of the court. Id., 252-53. In such instances there is a reasonable possibility that the improprieties in the cross-examination either contributed to the jury’s verdict of guilty or, negatively, foreclosed the jury from ever considering the possibility of acquittal. Id., 253.” (Internal quotation marks omitted.) State v. Singh, supra, 259 Conn. 700; accord State v. Williams, supra, 204 Conn. 538-39.
“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. . . . Included among those factors are the extent to which the misconduct was invited by defense conduct or argument; State v. Falcone, 191 Conn. 12, 23, 463 A.2d 558 (1983); the severity of the misconduct; see United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981), cert. denied, 456 U.S. 989, 102 S. Ct. 2269, 73 L. Ed. 2d 1284 (1982); the frequency of the misconduct; State v. Couture, 194 Conn. 530, 562-63, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985) . . . the centrality of the misconduct to the critical issues in the case; Hawthorne v. United States, 476 A.2d 164, 172 (D.C. App. 1984); the strength of the curative measures adopted; United States v. Modica, supra, 1181 . . . and the strength of the state’s case. See [id.] . . . .” (Citations omitted; internal quotation marks
Furthermore, whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any of the prosecutor’s improper remarks. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant’s right to a fair trial. State v. Negron, supra, 221 Conn. 330; see also State v. Andrews, 248 Conn. 1, 19-20, 726 A.2d 104 (1999) (failure of defense counsel to object to prosecutor’s rebuttal argument suggested that “defense counsel did not believe that it was unfair in light of the record of the case at the time”); State v. Robinson, supra, 227 Conn. 745-46 (failure to object to closing arguments indicated that defense counsel “did not regard . . . remarks as seriously prejudicial at the time they were made”). Moreover, ordinarily, when a defendant who raises an objection to the allegedly improper remarks of a prosecutor elects to pursue one remedy at trial instead of another, he will not be permitted to claim on appeal that the remedy he pursued was insufficient. Cf. State v. Drakeford, 202 Conn. 75, 81, 519 A.2d 1194 (1987).
“[E]ven when prosecutorial misconduct is not so egregious as to implicate the defendant’s [due process] right to a fair trial, an appellate court may invoke its supervisory authority [over the administration of justice] to reverse a criminal conviction when the prosecutor deliberately engages in conduct that he or she knows, or ought to know, is improper. . . . Such a sanction generally is appropriate, however, only when the [prosecutor’s] conduct is so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal.” (Citations omitted; internal quotation marks
A
References to Officer Williams’ Family
The defendant claims that the state’s attorney repeatedly made improper, prejudicial and gratuitous references to Officer Williams’ wife and children, and to the anguish that they had suffered as a result of Williams’ death. The defendant contends that the sole objective of the state’s attorney in making these allegedly inflammatory comments was to arouse the passions of the jury to the detriment of the defendant and, further, that the remarks of the state’s attorney likely achieved their intended effect. According to the defendant, these improprieties occurred during the voir dire process, during cross-examination of several defense witnesses and during closing arguments.
The defendant also challenges the propriety of certain statements made by the state’s attorney during his cross-examination of several of the defendant’s witnesses. First, the state’s attorney asked James McLaughlan, one of the ambulance attendants who had transported Williams to the hospital, if he knew the name of Williams’ wife.
A third instance of alleged improper cross-examination by the state’s attorney involves his questioning of John Collins, a psychologist retained by the defendant. Collins testified on direct examination that he administered the Thematic Apperception Test (test) to the defendant. Collins explained that, as part of the test, he had shown the defendant a drawing of a reclining female figure. According to Collins, the defendant interpreted the drawing as depicting a wife worrying about her husband who had been critically injured in a serious accident. Collins opined that, inasmuch as the defendant’s grandfather had died as a result of injuries he had suffered in an accident, the defendant’s reaction to the drawing supported the conclusion that the defendant had been affected deeply by his grandfather’s death. On cross-examination, the state’s attorney asked Collins if he knew that Williams had a wife, that Williams had lived for fifteen hours after having been shot by the defendant, and that this fifteen hour time period was extremely traumatic for Williams’ wife.
The defendant also contends that the state’s attorney improperly referred to Williams’ suffering and that of his family during closing arguments. In particular, the defendant refers to three occasions on which the state’s attorney mentioned that Williams had died “one week before Christmas.” On each such occasion, the state’s attorney referred to the temporal proximity of Christmas to the shooting in furtherance of his argument that Williams had suffered extreme psychological pain,
The defendant alleges a second improper reference to Williams’ wife and family during a rebuttal argument in which the state’s attorney alluded to certain comments that defense counsel had made in his closing argument about the aggravating factor enumerated in § 53a-46a (h) (4). Specifically, defense counsel argued, in support of his contention that the state’s attorney had failed to prove the existence of that aggravating
The defendant claims that the state’s attorney made yet another improper reference to Williams’ family during closing arguments. At the conclusion of his closing argument, the state’s attorney urged the jury to view the photographs that had been taken in connection with the autopsy performed on Williams. In directing the jury’s attention to those photographs, the state’s attorney noted that defense counsel had introduced the defendant’s family album into evidence. The state’s attorney then referred to the autopsy photographs as the “Williams [family] album” and informed the jurors that they also would have that album in the jury room
The state maintains that none of the foregoing comments was improper. According to the state, the state’s attorney was entitled to apprise the venirepersons that Williams had a wife and children who resided in Wolcott so that prospective jurors could determine whether they knew any member of the Williams family. The state also claims that the fact that Williams had a wife and children was admissible for the purpose of establishing the extreme psychological pain or torture element of the aggravating factor enumerated in § 53a-46a (h) (4), because there is a reasonable likelihood that Williams would have been thinking about his family as he lay in the street, critically wounded, while the defendant fired six additional gunshots in his direction. The state further contends that testimony and argument as to the impact of Williams’ death on his wife and children was appropriate under General Statutes (Rev. to 1991) § 53a-46a (d),
We reject the defendant’s claim that it was improper for the state’s attorney to have referred to Williams’ wife and children and their town of residence in his remarks to prospective jurors. Both the state and the defendant had the right to apprise prospective jurors of the identities of persons connected with the case so that those prospective jurors could ascertain whether they knew any such person and, if so, report that potentially disqualifying fact to the court and to the parties.
The defendant’s more substantive claim of impropriety relates to the references of the state’s attorney, during cross-examination and closing arguments, to the mental pain and anguish that Williams’ wife and children had suffered as a result of Williams’ death. Before addressing this claim, however, it is important to emphasize that the federal constitution erects no per se bar to the state’s use of victim impact evidence in capital cases. In Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991), the United States Supreme Court stated that “a [s]tate may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. [T]he [s]tate has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss
Although the court in Payne opined that victim impact evidence “serves entirely legitimate purposes” in most capital cases; id.; it did not purport to adopt a rule authorizing the use of such evidence in all capital cases. The court made clear, rather, that a state is free to permit the use of such evidence, if it so chooses, subject only to constraints of due process. Id., 825-27. As we have indicated, the state contends that § 53a-46a (d) reflects a determination by our legislature that victim impact evidence is admissible in penalty phase hearings inasmuch as that statutory provision expressly requires the fact finder to determine whether the mitigation evidence introduced by the defendant is sufficient, “considering all the facts and circumstances of the case”; General Statutes (Rev. to 1991) § 53a-46a (d); to
In light of Payne, we need not decide, for purposes of the present case, whether § 53a-46a (d) authorizes the use of victim impact evidence in capital cases, because even if we assume, arguendo, that it does not, the defendant can prevail on his constitutional claim only if he can establish that the references made by the state’s attorney concerning the suffering of Williams’ family were so inflammatory and prejudicial as to render his penalty phase hearing fundamentally unfair. We are not persuaded that the defendant has demonstrated that the remarks of the state’s attorney deprived him of a fair hearing.
With respect to the questions about the suffering of Williams’ family, those questions were few in number and were neither asked nor answered in such a manner as to give rise to any reasonable likelihood of prejudice to the defendant. Indeed, jurors necessarily are aware that the tragic loss of a loved one inevitably causes great emotional distress to the family of the decedent; the questions posed by the state’s attorney did no more than underscore that obvious fact. Thus, the state’s attorney’s questions on cross-examination about the grief and suffering of the Williams family were not so inflammatory or provocative as to cause undue prejudice to the defendant.
We also disagree with the defendant that the references to Christmas were gratuitous and likely to arouse the passions of the jury. First, the state plausibly argued that Williams’ mental suffering may have been exacerbated by his realization that he likely would not have been with his family to celebrate Christmas. Even if we assume, however, that, contrary to the state’s argument,
With respect to the reference to the autopsy photographs, we agree with the defendant that characterizing those photographs as the “Williams [family] album” exceeded the bounds of appropriate argument. Although the state contends that the comments of the state’s attorney were a fair rejoinder to the defendant’s use of his family album, we believe, to the contrary, that the comments constituted an improper appeal to the emotions of the jury. As we have indicated, some leeway is permitted to account for zeal of counsel in the heat of closing arguments, which “are seldom[ly] carefully constructed in toto before the event . . . .” Donnelly v. DeChristoforo, 416 U.S. 637, 646-47, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974). The reference of the state’s attorney to the autopsy photographs as the “Williams [family] album,” however, cannot be defended as mere rhetorical flourish.
Nevertheless, we are not persuaded that that reference violated the defendant’s right to a fair penalty
We conclude, therefore, that the questions and comments of the state’s attorney regarding Williams’ wife and children and the impact of his death on them were not unduly prejudicial. Consequently, the defendant has failed to establish that those questions and comments violated his due process rights or that they otherwise require a new penalty phase hearing.
B
Inviting the Jury to Ignore the Law
The defendant next claims that the state’s attorney engaged in misconduct in his closing argument by inviting the jury to ignore the legal principles that govern the
1
The defendant first contends that the state’s attorney improperly argued to the jury that it was responsible only for finding facts and not for the ultimate determination of whether the defendant should five or die. We disagree.
We begin our consideration of this claim by acknowledging that a capital defendant has an eighth amendment right to “a capital sentencing jury [that] recognizes the gravity of its task and [that] proceeds with the appropriate awareness of its truly awesome responsibility.” (Internal quotation marks omitted.) Caldwell v. Mississippi, supra, 472 U.S. 341, quoting McGautha v. California, 402 U.S. 183, 208, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971). Because of the “[e]ighth [a]mendment’s heightened need for reliability in the determination that death is the appropriate punishment in a specific case;
At the beginning of his closing argument, the state’s attorney stated that “[t]here’s been a lot of evidence presented, a lot of testimony and, indeed, the task you’re about to embark on is, as we’ve said from the beginning when we were questioning you in voir dire . . . perhaps the most awesome task that the government could ever ask one of its citizens to participate in, that is, determining whether or not the death penalty should be imposed in this case.
“Now, in our final arguments, I’m going to allude to some of the evidence. I’m also going to make comments about the law. Now the important thing to remember about that—and I’m sure [defense counsel] is going to do the same thing—the important thing to remember
“And . . . you must follow what the judge says the law is. Nobody is going to intentionally try to mislead you, but if my version of the law or [defense counsel’s] version differs from what the judge says it is, it’s the judge that you have to follow because, again, as we said during the voir dire process, the job of the jury— you decide what the facts are, you take the law from the judge, you apply the law to the facts, and that’s how [you] come up with your decision.”
The state’s attorney continued: “Now, the task that is before you ... is unique .... The defendant has already been proven guilty beyond a reasonable doubt .... And because it is a capital felony conviction . . . that is what brings us here, to determine what the appropriate punishment would be.
“And again . . . there is a lot of talk and controversy and debate about the death penalty and a lot of people . . . they say if it was up to me, I’d pull the switch or I don’t believe in the death penalty. And I think some of your attitudes may have reflected one way or the other when you first came in. But believe me, I know that today what we’re asking you to do is to make that decision and it is not easy at all. I know it’s not easy for anyone in this courtroom. It’s not easy for me. I
The defendant asserts that these remarks were misleading because they suggested that the jury was not truly responsible for determining whether the defendant would receive a sentence of death or life imprisonment without the possibility of release. In essence, the defendant contends that the state’s attorney minimized the jury’s responsibility by indicating that its function was limited to “apply[ing] the law to the facts . . . .” We disagree that the remarks of the state’s attorney conveyed any such improper suggestion.
The state’s attorney initially explained the respective functions of the court and the jury by emphasizing that the court’s role is to apprise the jury of the applicable law and the jury is responsible for finding the facts and applying the law to those facts. This explanation of the respective roles of the court and the jury was accurate in all respects.
Thereafter, the state’s attorney repeatedly reminded the jurors of their responsibility to decide that ultimate question. First, the state’s attorney emphasized that “the task you’re about to embark on is, as we’ve said from the beginning when we were questioning you in voir dire . . . perhaps the most awesome task that the government could ever ask one of its citizens to participate in, that is, determining whether or not the death penalty should be imposed in this case.” (Emphasis added.) Second, the state’s attorney emphasized that “the job of the jury ... [is to] decide what the facts are, [to] take the law from the judge, [to] apply the law to the
Furthermore, the trial court properly instructed the jury regarding its responsibility in relevant part: “You, the jury, will make the determination of facts which will result in the court imposing [a sentence of death or a sentence of life imprisonment without the possibility of release]. Specifically, you will be asked to determine the existence or nonexistence of aggravating and mitigating factors based upon the evidence adduced at the hearing. The existence or nonexistence of these factors will dictate the ultimate sentence. You must recognize that your decision is not one of simply making objective factual findings. Rather, you are, in fad and in law, actually making the decision whether the defendant should be sentenced to life imprisonment with no possibility of release or to death. Your response, therefore, is truly of immense proportion as you are no doubt aware. Basically, if you find the state has proven the existence of an aggravant beyond a reasonable doubt and are further satisfied that the defense has failed to prove any mitigating factor by a preponderance of the evidence, then the court will
We find no merit to the defendant’s contention that the comments of the state’s attorney led the jury to believe that it was not ultimately responsible for determining whether the defendant would be sentenced to death or to life imprisonment without the possibility of release. Moreover, any possibility of confusion was eliminated by the trial court’s clear and forceful instructions. We therefore reject the defendant’s claim.
2
The defendant also maintains that the state’s attorney improperly suggested to the jurors that his oath of office required him to seek the death penalty and that their oath and “civic duty” obligated them to return a verdict requiring the imposition of the death penalty. The state responds that the challenged argument was nothing more than a reminder to the jurors of their duty to set aside any personal feelings about the death penalty and to decide the issue solely on the basis of the law and the facts. We are not persuaded that the comments of the state’s attorney require a new penalty phase hearing.
The following additional facts are necessary to our resolution of this claim. After telling the jury that it had the “awesome task” of “determining whether or not the death penalty should be imposed,” the state’s attorney remarked: “I took an oath to enforce the laws of the state of Connecticut. The judge took an oath and you as jurors took an oath to see that the laws of the state of Connecticut are upheld and I do this, I make this argument to you . . . because I, like you, have taken an oath to uphold and enforce the law. And, indeed, if the facts are there and the law calls for it, based on my oath and your oath and the court’s oath, the death
At the conclusion of closing arguments and before the court instructed the jury, defense counsel objected to the comments of the state’s attorney concerning his “oath” and the oath taken by the jurors. Defense counsel further requested the court to instruct the jurors that defense counsel, too, had taken such an oath. The court overruled the objection and also refused to instruct the jury in accordance with defense counsel’s request.
As the defendant contends, it generally is improper for the state to argue that the jurors’ oath obligates them to return a particular verdict because such language poses a risk of diverting the jury from its duty of deciding the case on the basis of the evidence and the applicable law. E.g., State v. Pennington, 119 N.J. 547, 576, 575 A.2d 816 (1990). We are not persuaded, however, that the comments of the state’s attorney, when considered in context, were likely to have had such an effect. The comment to which the defendant primarily objects, namely, “based on . . . your oath . . . the death penalty must be imposed,” was immediately preceded by the qualifying statement, “if the facts are there and the law calls for it . . . .” The comment regarding the jurors’ “civic duty” also was qualified by an earlier reference to the facts and the law. Thus, the challenged argument was a rhetorical device employed by the state’s attorney to remind the jurors of their duty to render a verdict requiring a sentence of death if, upon application of the facts to the law, that verdict was appropriate.
We also believe, however, that the state’s attorney should not have referred to his oath of office in
3
The defendant next claims that the state’s attorney improperly invited the jury to send a message to the community by returning a verdict requiring a sentence of death. We disagree.
During his argument to the jury, the state’s attorney remarked: “The death penalty is about a person being told by society you have to take responsibility for your conduct. That’s what the death penalty is: society as a community pointing to someone who has committed a terrible crime, who has committed the ultimate crime,
After closing arguments and before the court charged the jury, defense counsel objected to the comment that the jury should send a message by its verdict and requested a curative instruction that sending a “message” to the community was not a proper consideration for the jury. Neither the court nor the state’s attorney could recall the challenged argument, and the court therefore overruled the objection and refused to give the requested instruction. On appeal, the defendant renews his claim that it is improper for a prosecutor to exhort the jury to send a message to the community by returning a verdict requiring the imposition of the death penalty.
Thus, a fair interpretation of the challenged argument leads us to conclude that the defendant, not the community, was the intended receiver of the message that the state’s attorney urged the jury to send through its verdict.
The defendant next claims that the state’s attorney improperly argued that, because the defendant had committed the “ultimate crime,” he should receive the “ultimate penalty.” We are not persuaded by the defendant’s claim. The use of such rhetoric in closing argument is not necessarily inappropriate. E.g., State v. Singh, supra, 259 Conn. 712. The state’s attorney used the challenged language in the course of extended argument as to why the jury should hold the defendant accountable for his conduct, which, by any standard, was egregious. When viewed in that context, the remarks were not improper.
5
The defendant further contends that the state’s attorney’s closing argument contained several misleading and prejudicial statements regarding the mitigating factors alleged by the defendant. The defendant claims that he is entitled to a new penalty phase hearing because the state’s attorney: (1) mischaracterized the proof necessary to establish two of those mitigating factors; (2) argued that the jury should not find the defendant’s confession to be a mitigating factor as alleged by the defendant because he never expressed remorse for murdering Williams; and (3) improperly characterized several of the defendant’s mitigating factors as “emotional blackmail.” The state contends that the comments of the state’s attorney were not improper. The state also asserts that, to the extent that any of the relevant comments were inaccurate, they were neither intentionally misleading nor prejudicial. We conclude that, although several of the state’s attorney’s comments were improper, those improper comments do not merit a new penalty phase hearing.
The defendant first claims that the state’s attorney misled the jury with respect to the proof necessary to
The following excerpts from the transcription of the state’s attorney’s closing argument and the trial court’s jury instructions are necessary to our resolution of the defendant’s claim. The state’s attorney commenced his closing argument with the admonition that, if either counsel’s comments about the law differed from the instructions of the court, the jurors “must follow what the judge says the law is. Nobody is going to intentionally try to mislead you, but if my version of the law . . . differs from what the judge says it is, it’s the judge that you have to follow . . . .” Later, after summarizing the evidence adduced by the defendant in support of his claim that he had been subject to abuse as a child, the state’s attorney commented: “So [the defendant’s mental health experts] come in and . . . say [that the defendant] had a terrible childhood. You have to ask
With respect to the defendant’s proof concerning the mitigating factor enumerated in § 53a-46a (g) (2), the state’s attorney remarked: “[Defense counsel] ... is going to stand up and tell you why [the defendant] shot . . . Williams. He’s going to tell you it’s because of his antisocial personality disorder. He can’t conform his conduct to the law. That’s what he’s going to tell you. I haven’t heard him say that but I know he’s going to tell you that. Couldn’t conform his conduct to the law? When he wanted to do good in school, he could. When he wanted to be a good son and be a mechanic, he could. When he wanted to help the kids in the neighborhood fix their bike, he could. To say that because of their—you know, to say that people who have this personality disorder shouldn’t be held responsible [for] the ultimate punishment is nonsense.” (Emphasis added.)
Thereafter, defense counsel asserted during his closing argument that the evidence supported the existence of the nonstatutory mitigating factor regarding the defendant’s allegedly abusive childhood. In explaining that mitigating factor, defense counsel repeatedly argued that the defendant’s difficult childhood, although not an excuse for his crime, “mattered] enough” to warrant a sentence of life imprisonment without the possibility of release rather than a death sentence. Defense counsel also emphasized that the mitigating factor enumerated in § 53a-46a (g) (2) requires only that the defendant establish that his psychiatric condition significantly impaired his ability to conform his conduct to the law, not that he establish that his condition was so “extreme” that it “caused [the defendant] to shoot” Williams.
Thereafter, the court instructed the jury on the law governing mitigating factors. With respect to the miti
“Thus, to find the existence of this statutory mitigating factor, you must find the following elements proven to you by a preponderance of the evidence: number one, that at the time of the capital felony, number two, his ability to conform his conduct to the requirements of the law was significantly impaired. If you find this statutory mitigating factor proven by a preponderance of the evidence, then the court will impose the penalty of life without the possibility of release.”
Under all of the circumstances, we disagree with the defendant that the comments of the state’s attorney were likely to have confused or misled the jury regarding the proof necessary to establish either the statutory mitigating factor enumerated in § 53a-46a (g) (2) or the nonstatutory mitigating factor concerning the defendant’s allegedly abusive childhood. The brevity of the ostensibly objectionable comments belies the defendant’s suggestion that the state’s attorney intentionally
Finally, the state’s attorney reminded the jurors that the court, not counsel, was responsible for instructing the jury on the law. In addition, defense counsel accurately summarized the precise nature of the mitigating factors, and the court properly instructed the jury on the law governing mitigating factors generally and on the particular mitigating factors alleged by the defendant. We conclude, therefore, that the defendant’s contention of prosecutorial impropriety is without merit.
The defendant also claims that the state’s attorney improperly argued that the defendant’s confession should not be considered a mitigating factor because the defendant lacked remorse for having murdered Wil
The evidence adduced at the penalty phase hearing revealed that several hours after the shooting, investigators learned that Robert Bryant had information relating to the crime. The investigating officers interviewed Bryant, who told them that he had been in Karen Smith’s apartment earlier that morning when the defendant and Anthony Crawford came running in and “talked about shooting the police officer.” The officers then went to Smith’s apartment
After being advised of his rights, the defendant initially denied having any knowledge of the shooting. The
The police then questioned Crawford about Derrick. Crawford responded that Derrick did not exist. Crawford thereafter admitted that he was present when the defendant shot Williams. Other investigators learned from Smith that the defendant had admitted to her that he had shot Williams and that he had expressed sorrow for what he had done. Armed with this information, Maia and Detective Keegan confronted the defendant and told him that Smith had given a sworn statement that the defendant had told her that he had “just shot a police officer.” Keegan then indicated that the defendant should take responsibility for his actions, and Maia suggested that the defendant should “get it off his chest . . . .” The defendant then put his head in his hands and said, “I did it. I shot the cop.” When asked about the gun that had been used in the shooting, the defendant responded that it was “in transit” and never would be found. Keegan asked the defendant if he would be willing to provide a written statement explaining his involvement in the shooting, and the defendant agreed. Before Keegan could locate a typewriter to take the defendant’s statement, however, the defendant indicated that he wanted to speak to an attorney before proceeding any further.
During the fingerprinting process, the defendant again stated that his name was David Robinson and signed the fingerprint identification card in that name. After taking the defendant’s fingerprints, the police immediately sent the fingerprint identification card to the identification division of the Federal Bureau of Investigation (FBI). Within one hour, the FBI notified the Waterbury police that the fingerprints were those of Richard Reynolds. O’Leary then asked the defendant
The defendant did not again acknowledge his involvement in the shooting. In fact, John Collins, the psychologist who testified for the defendant, indicated that the defendant had denied to him that he had committed the crime.
The defendant alleged numerous mitigating factors, one of which was his cooperation with the police in admitting that he had shot Williams. The defendant also alleged as a mitigating factor that he had demonstrated remorse for his conduct by telling Smith that he was sorry for shooting Williams.
In his closing argument, the state’s attorney commented in relevant part: “There’s one [mitigant] in here. It says, well, it’s mitigating because when [the defendant] went to the police station [and] when Inspector[s] Keegan
“He also told him [that] you’re not going to find the gun. My gun’s a .45 [caliber] and the gun is in transit. So that’s again . . . the kind of thing I’m asking . . . you [to] look at when you look at this list they
The defendant contends that these remarks improperly suggested to the jury that his inculpatory statement to the police was not a valid mitigating factor because the defendant also had not shown any remorse for the crime. We are not persuaded by this argument. General Statutes (Rev. to 1991) § 53a-46a (c)
The defendant next claims that the state’s attorney improperly characterized certain of the defendant’s mitigating factors, including the factor concerning abuse that the defendant suffered during childhood, as “emotional blackmail,” and as an effort to shift responsibility for his conduct to others. In particular, the defendant challenges the following comments of the state’s attorney: “Emotional blackmail. . . . [TJhat’s what this mitigating evidence is. It’s an attempt to promote emotional blackmail on the jury. And that’s not what the death penalty is about. The death penalty is about a person being told by society you have to take responsibility for your conduct. That’s what the death penalty is: society as a community pointing to someone who has committed a terrible crime, who has committed the ultimate crime, and say[ing] to that person you have to take responsibility for your actions. Don’t blame your father. Don’t blame your teacher in school. Don’t blame your grandparents in Jamaica. Don’t blame your sister. Don’t blame your brother. Don’t blame the courts. Don’t blame that you run around with the wrong crowd. Step up and take responsibility for your actions. . . . Take
We acknowledge that it would have been preferable for the state’s attorney to have refrained from using the term “emotional blackmail” to characterize the mitigating factors alleged by the defendant. Although the state’s attorney was entitled to argue forcefully why, in his view, the defendant’s mitigating factors lacked merit, he was not free to do so in an inflammatory manner or by appealing to the emotions of the jury. The reference to “emotional blackmail” exceeded the bounds of fair comment because such a reference goes beyond a claim that the mitigating factors lack merit; the term suggests, rather, that those mitigating factors constituted an improper attempt by the defendant to coerce or manipulate the jurors by appealing unfairly to their emotions. Nevertheless, we do not believe that the two isolated references to the term—to which defense counsel raised no objection—were likely to have affected the jury’s consideration of the defendant’s mitigating factors.
Contrary to the defendant’s claim, the state’s attorney’s argument that the jury should hold the defendant fully responsible for his crime was not improper. The state’s attorney merely was expressing the position of the state that the mitigating factors alleged by the defendant were not of sufficient force to minimize the consequences of the defendant’s crime. Those comments, therefore, constituted fair argument in support of the contention of the state’s attorney that the defendant had not established any persuasive reason why he should be spared the death penalty.
6
Finally, the defendant claims that the state’s attorney improperly indicated that the defendant should have called his father as a witness. The defendant contends
The defendant’s claim is predicated on the following remarks that the state’s attorney made during his closing argument: “Where’s [the defendant’s father] Cleveland Reynolds? I didn’t see him on the stand. Other people spoke for him. Dr. [Cecil St. George] Henry
In Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), overruled by State v. Malave, 250 Conn. 722, 738, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000), we stated that “[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.” (Internal quotation marks omitted.) Secondino v. New Haven Gas Co., supra, 675. When the party seeking to invoke this principle, commonly referred to as the Secondino rule or the missing witness rule, has established both that the witness is available and that the opposing party naturally would have produced the witness, the party invoking the rule is entitled to an instruction that the jury may draw an inference adverse to the party who failed
In the present case, however, the state did not claim that the defendant’s father was a witness whom the defendant naturally would have called, and it did not seek a missing witness instruction. Moreover, the state’s attorney did not argue to the jury that it should draw an adverse inference by virtue of the fact that the defendant had failed to call his father as a witness. Rather, the state’s attorney’s remarks served only to underscore the fact that the evidence adduced at the penalty phase hearing regarding the abuse that the defendant had suffered at the hands of his father had come not from the father’s trial testimony but, rather, from the testimony of those who had interviewed the defendant, his father or both of them. Consequently, the comments of the state’s attorney were intended only to raise a question regarding the reliability of the evidence adduced by the defendant concerning the abuse that he claimed to have suffered. Because such argument is not improper; see, e.g., State v. Malave, supra, 250 Conn. 739; we reject the defendant’s claim.
C
Expression of Personal Opinions and Beliefs During Closing Arguments
The defendant also contends that the state’s attorney improperly expressed his personal opinions and beliefs
1
The following additional facts and procedural history are necessary to our resolution of the defendant’s claims. Prior to the conclusion of the evidentiary portion of the penalty phase hearing, the trial court informed the parties and the jury that closing arguments would proceed as follows: (1) the state’s attorney would address the aggravating factors; (2) defense counsel would respond to the state’s argument on the aggravating factors and then address the mitigating factors; (3) the state’s attorney would then respond to defense counsel’s argument on the mitigating factors and summarize its claims regarding the aggravating factors; and (4) defense counsel would summarize his claims regarding the mitigating factors.
While addressing the aggravating factors in his first argument, the state’s attorney remarked: “Now is my
During defense counsel’s first argument, defense counsel adverted only briefly, and in general terms, to the defendant’s mitigating factors, choosing instead to address the mitigating factors in detail in his final argument. At the conclusion of defense counsel’s first argument, the state’s attorney complained to the court, outside the presence of the jury, about defense counsel’s failure to address the mitigating factors in any detail. Specifically, the state’s attorney claimed that defense counsel’s strategy of waiting until his final argument to discuss the mitigating factors violated the court’s order regarding the procedure to be followed with respect to closing arguments. The state’s attorney further claimed that defense counsel’s alleged transgression had prejudiced the state by depriving the state’s attorney of a meaningful opportunity to rebut defense counsel’s argument regarding the mitigating factors. Finally, the state’s attorney asserted that the appropriate sanction for defense counsel’s alleged failure to comply with the court’s directive regarding closing arguments was to prohibit defense counsel from commenting on the mitigating factors in his final argument. The trial court overruled the state’s attorney’s objection to the manner in which defense counsel had chosen to proceed, concluding, in essence, that defense counsel had not violated either the letter or the spirit of the court’s order regarding the manner in which closing arguments were to be conducted.
Thereafter, the state’s attorney stated during his final argument to the jury: “I don’t know how I can argue or rebut the mitigants. [Defense counsel] refused to
The state’s attorney also made the following comments with regard to certain specific mitigating factors: “I’m saying just because they say it’s a mitigant doesn’t mean it is and I’m not going to point out the one about the middle child. If you ask me if I thought that was a mitigant, I’d say no.” (Emphasis added.) The state’s attorney continued: ilIf [defense counsel] did not have the courage to stand in front of you and argue the mitigants so I can come up and attack them, you have to ask yourselves how strong are those mitigants.” (Emphasis added.) Defense counsel did not object to these comments when they were made.
In accordance with defense counsel’s request for an instruction regarding the personal opinions of counsel, the trial court, during the initial portion of its charge
As we previously have indicated, it is improper for a prosecutor to express his or her personal beliefs about any aspect of the case. “[T]he prosecutor’s opinion carries with it the imprimatur of the [state] and may induce the jury to trust the [state’s] judgment rather than its own view of the evidence.” United States v. Young, 470 U.S. 1, 18-19, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985). Because “[t]he prosecutor’s office carries a special prestige in the eyes of the jury . . . [i]t is obligatory for prosecutors to find careful ways of inviting jurors to
The remarks of the state’s attorney violated this well established prohibition. Although each of the challenged comments was improper, the most objectionable comments were, “I [feel] my aggravants are strong,” and “I have confidence in my [aggravants],” while defense counsel did not “have confidence in his mitigants.”
With respect to the state’s attorney’s comment on his personal belief in the merits of the aggravating factors, such comment clearly was inappropriate. The state’s attorney compounded the impropriety when he personalized the state’s case by characterizing the aggravating factors as “my aggravants . . . .” We repeatedly have emphasized that counsel, and especially prosecutors, must be particularly careful to avoid the unnecessary use of the first person. See, e.g., State v. Singh, supra, 259 Conn. 713-15 and n.18; State v. Satchwell, supra, 244 Conn. 565-66. Although we do not excuse the impropriety that inheres in such comments, they represent the kind of lapse that sometimes occurs, without premeditation, in the heat of the moment and at the close of an emotional trial. Thus, isolated comments of this type generally do not give rise to a due process violation or otherwise result in manifest injustice because a properly instructed jury is likely to appreciate fully its duty to decide the case on the evidence and not on the basis of such rhetoric.
Of greater concern, however, was the state’s attorney’s utterly unsupported assertion that defense coun
Nevertheless, defense counsel did not object to the comments when they were made, suggesting that he did not view the comments to be seriously prejudicial at the time. E.g., State v. Andrews, supra, 248 Conn. 19-20; see State v. Satchwell, supra, 244 Conn. 565. In fact, the likelihood of any such prejudice was significantly reduced because the jury was aware that the comments were prompted by the manner in which defense counsel chose to apportion his closing arguments and not by any real insight or information that the state’s attorney might have had regarding defense counsel’s personal beliefs. Most importantly, however, it appears that defense counsel made a conscious decision not to seek either a mistrial or a strongly worded curative instruction condemning the improper comments. Rather, defense counsel sought and obtained an
Inasmuch as defense counsel had heard the comments of the state’s attorney when they were made, defense counsel was in a position to assess what impact, if any, the comments may have had on the jury and to determine what remedy to seek. Indeed, defense counsel reasonably could have concluded that the comments, which the state’s attorney likely made in a fit of pique over opposing counsel’s trial strategy and the trial court’s tacit approval of that strategy, were so peevish and unprofessional as to undermine the credibility of the state’s attorney in the eyes of the jurors. Thus, after referring to the irrelevance of argument concerning “personal opinions or the personal involvement or performance of the attorneys,” defense counsel expressly stated that the defendant was “not raising an objection to the improper nature of argument but [rather was] asking the court to . . . address it in [the] charge by indicating that the personal opinions of the attorneys are not anything of weight for the jurors . . . .’’As we previously indicated, the trial court gave an instruction along the lines requested by defense counsel, who neither objected to the instruction as given nor sought any further curative action by the court.
“Our rules of procedure do not allow a defendant to pursue one course of action at trial and later, on appeal, argue that a path he rejected should now be open to him. ... To rule otherwise would permit trial by ambuscade. . . . An appellant cannot create a reviewable claim because his appellate counsel disagrees with the strategy of his trial counsel.” (Citations omitted; internal quotation marks omitted.) State v. Clark, 48 Conn. App. 812, 819-20 n.6, 713 A.2d 834, cert. denied, 245 Conn. 921, 717 A.2d 238 (1998); see also Johnson v. United States, 318 U.S. 189, 201, 63 S. Ct. 549, 87 L.
In light of the court’s straightforward and timely instruction and defense counsel’s informed decision regarding the most efficacious way to address the comments of the state’s attorney, we cannot conclude that those comments, although improper, so compromised the fairness of the penalty phase hearing as to constitute a violation of the defendant’s due process rights. Under the circumstances—including the fact that defense counsel, apparently for tactical reasons, expressly waived any further curative instructions or other remedy—we also are not persuaded that the comments of the state’s attorney necessitate a new penalty phase hearing in the exercise of our supervisory authority over the administration of justice. See part IV D of this opinion. Accordingly, we reject the defendant’s claim that the state’s attorney’s improper injection of his personal opinion entitles the defendant to a new penalty phase hearing.
2
The defendant next claims that the state’s attorney suggested during closing arguments that certain statements made by the defendant’s family members to defense experts were fabricated to help the defendant avoid the death penalty. The defendant contends that such argument was unfair and improper because there was no evidence in the record to support such an inference. The state claims that the state’s attorney did not act improperly in calling into question the credibility
The defendant bases his claim on the following comment of the state’s attorney: “I don’t fault the Reynolds family [for telling the psychologist that the defendant’s father beat him during his childhood]. I think anyone of us would have done the same thing to try to save [the defendant] from the fate that he faces. I don’t blame parents for that.” (Emphasis added.)
To the extent that the defendant’s claim is predicated on the contention that the state’s attorney was prohibited from raising doubt about the accuracy of the information supplied by the defendant’s family members to the defendant’s experts, we disagree with that claim. For example, it would not have been improper for the state’s attorney to point out that persons related to the defendant may have had an interest in exaggerating the nature of the abuse that the defendant had suffered in light of their probable desire to assist him. Inasmuch as the state’s attorney had adduced no specific evidence to indicate that the defendant’s family or friends were lying when they reported the abuse that the defendant allegedly had suffered as a child, however, it would have been preferable for the state’s attorney to have spoken in somewhat less categorical terms. Nonetheless, in light of the isolated nature of comment and the court’s instructions to the jury regarding the expression of personal opinions by counsel, we are not persuaded that the comment of the state’s attorney prejudiced the defendant.
3
The defendant also claims that the state’s attorney improperly vouched for the credibility of Crawford, one of the state’s witnesses, during closing arguments. We conclude that the state’s attorney acted improperly under the circumstances but reject the defendant’s
During the penalty phase hearing, Crawford testified that he had been convicted of robbery in the third degree in 1991, and that he had received a suspended sentence and three years probation for that offense. Crawford also testified that, later that year, he was convicted of larceny in the second degree and received a sentence of ten years imprisonment, execution suspended after five years, and five years probation. According to Crawford, he was on parole when the defendant shot and killed Williams and was on probation as of the date of his testimony during the guilt phase of the defendant’s case. Crawford also acknowledged that he was in possession of $3500 worth of cocaine when the shooting occurred. At no time, however, did Crawford indicate that he had been charged in connection with his possession of cocaine at the time of the shooting. Crawford further testified that, approximately one year prior to the penalty phase hearing in the defendant’s case, he had been charged with escape in the first degree, a felony carrying a maximum sentence of ten years imprisonment, in connection with his unauthorized departure from a halfway house.
During his initial closing argument to the jury, the state’s attorney, who anticipated that defense counsel would argue that Crawford lacked credibility because he had received special treatment from the state, commented as follows: “Crawford. He’s no altar boy. He told you what he was, and believe me, they are going to say, well, don’t believe . . . Crawford because he got a break from the state. He didn’t get a break from the state. I prosecuted him for hindering prosecution in this case. If I wanted to give Crawford a break in exchange for his testimony, the easiest thing for me to do was not to prosecute him .... We don’t give a damn what happens to him later on. ... If I wanted to give . . . Crawford a break in exchange for his testimony . . . would I have ever prosecuted him . . . ? So . . . Crawford has been given no break. He came and he testified.” (Emphasis added.)
Later, while defending the credibility of Crawford’s testimony as to the number of gunshots fired, the state’s attorney remarked: “You know why I believe . . . Crawford that there were seven shots? I’m going to tell you why I believe . . . Crawford . . . (Emphasis added.) The state’s attorney then proceeded to recite in detail the facts upon which Crawford’s testimony was based.
During his initial closing argument, defense counsel did, in fact, challenge Crawford’s credibility by reference to the special treatment that Crawford ostensibly had received from the state. Defense counsel argued
“He’s never been prosecuted. If they have got such a strong case . . . that [the defendant] was involved in the attempted sale of drugs that night, they have got just as strong a case that Crawford was. In fact, [it is] stronger because Crawford admitted it, in open court, under oath. So why has he not been prosecuted? I’m not suggesting that [the state’s attorney] has gone out and made some under-the-table deal, that he’s now lying to you all about giving these guys any promises. What I’m suggesting—and I don’t think that’s the important part—what I’m suggesting is that Crawford’s credibility should be held in doubt because he was—he’s under probation now ....
“There’s this drug situation which he admitted would be a fifteen year felony, right? He’s got fifteen years that he could get for his own drug activities in this situation if you believe him.
“We know about the escape situation, right? That’s a ten year felony, and we know that that was dropped right after he testified at the earlier trial, right?”
We agree with the defendant that the state’s attorney improperly vouched for Crawford’s credibility when he stated that he believed Crawford’s testimony regarding the number of gunshots that the defendant had fired. As we have explained, “[s]uch expressions of personal opinion are a form of unsworn and unchecked testimony, and particularly difficult for the jury to ignore because of the prosecutor’s special position. . . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence ... it is likely to infer that such matters precipitated the per
We nevertheless are persuaded that the comment was not likely to have prejudiced the defendant. First, the state’s attorney followed the objectionable comment with a detailed explanation of the facts that supported Crawford’s testimony. Second, defense counsel did not object to the comment at the time it was made, suggesting that he did not view the remark as particularly harmful. E.g., State v. Andrews, supra, 248 Conn. 19-20; State v. Robinson, supra, 227 Conn. 745-46. Finally, at the conclusion of closing arguments, defense counsel, after reminding the court that the state’s attorney had expressed his personal opinion on several occasions, stated that he was “not raising an objection to the improper nature of [that] argument . . . .” Rather, defense counsel requested and received a general instruction to the effect that the opinions or beliefs of counsel are not evidence and are not to be considered by the jury. Under these circumstances, we are not persuaded that the comment of the state’s attorney was harmful.
We now turn to the comment of the state’s attorney that he had not made a deal with Crawford in return for his testimony. Although the state’s attorney was entitled to underscore Crawford’s testimony by asserting that the state had made no promises of leniency to him, the state’s attorney should not have stated, as he did, that he personally had not made any deal with Crawford in order to obtain Crawford’s testimony against the defendant. We previously have stated
Again, however, we are not persuaded that this comment prejudiced the defendant. Indeed, defense counsel, himself, stated in closing argument that he was not claiming that the state’s attorney had made any secret deals or promises to Crawford or to any other witness. Moreover, defense counsel did not seek any remedy other than the instruction that the court had given regarding the irrelevance of any expression of personal opinion or beliefs by counsel. Finally, defense counsel forcefully challenged Crawford’s testimony that he had no expectation of leniency by highlighting the fact that Crawford had not been charged in connection with his possession of cocaine at the time of the defendant’s murder of Williams, that his felony escape charge had been nolled and that he had not been charged with a violation of the conditions of his probation. Thus, even though the state’s attorney improperly injected his own credibility into the case by denying that he personally had given Crawford “a break in exchange for his testimony,” we do not believe that the impropriety, when viewed in context, constituted harmful error.
D
Conclusion
As we have explained, the state’s attorney engaged in conduct that clearly was improper on several occasions. For the foregoing reasons, however, we are not persuaded that the sum total of those improprieties rendered the defendant’s penalty phase hearing
We also do not believe that a new penalty phase hearing is warranted in the exercise of our supervisory authority over the administration of justice. “Our supervisory powers are not a last bastion of hope for every untenable appeal. [The exercise of our supervisory powers is] an extraordinary remedy to be invoked only when circumstances are such that the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.” (Emphasis in original; internal quotation marks omitted.) State v. Hines, supra, 243 Conn. 815.
We acknowledge that the conduct of the state’s attorney, at times, did not meet the standard of professionalism required of prosecutors in this state. We strongly disapprove of that conduct and, in particular, the state’s attorney’s interjection of his personal opinion. The improprieties are especially disturbing in light of the fact that the state’s attorney is an experienced litigator who has successfully prosecuted numerous cases, including several death penalty cases. The defendant,
V
MISCELLANEOUS ISSUES A
Change of Venue
The defendant next claims that the trial court improperly denied his motion for a change of venue.
The following facts and procedural history are necessary to our resolution of this claim. Prior to the guilt phase of the defendant’s case, the defendant filed a motion for a change of venue, claiming that “intense and pervasive media coverage” in the Waterbury area concerning Officer Williams’ murder had created “a substantial likelihood” that the defendant would not be able to obtain a fair trial in the judicial district of Waterbury. At a hearing on the defendant’s motion, the defendant elicited testimony from G. Donald Ferree, associate director of the Institute for Social Inquiry at the University of Connecticut. Ferree testified that his organization had conducted a telephone poll of residents of the Waterbury, Stamford and Middlesex judicial districts. According to the poll, 16 percent of those
The defendant also submitted 158 articles that had been written about the case in the Waterbury Republican-American, Waterbury’s daily local newspaper. Furthermore, the defendant provided videotapes reflecting coverage by local affiliates of all of the major television networks in the area, namely, National Broadcasting Company (NBC), American Broadcasting Companies (ABC), Columbia Broadcasting System (CBS), and the Fox Television Network, as well as a videotape of coverage of the case on a local cable access channel.
At the conclusion of the hearing, the trial court denied the defendant’s motion without prejudice to renewal pending the voir dire process. In its memorandum of decision on the motion, the court explained that, with respect to press accounts of the case, those accounts were most pervasive in the first two weeks after the murder. Notably, however, even those accounts were, by and large, “straightforward, factual, and, aside from the headlines . . . neither inflammatory nor sensationalized.” Although some newspaper articles contained information of an emotional or potentially prejudicial
Finally, although the trial court acknowledged Ferree’s expertise and credibility generally, the court also concluded that the results of the telephone poll were of limited value. Specifically, the court observed that the poll was not designed to address the issues that were central to the defendant’s motion for a change of venue, including the extent to which the persons polled had prejudged the defendant’s guilt or innocence and the extent to which those persons could decide the case fairly and objectively notwithstanding any views they may have expressed—about the case specifically or the death penalty generally—in connection with the survey.
The court concluded that the evidence adduced at the hearing indicated that the defendant could receive a fair trial in the judicial district of Waterbury. In so concluding, the court underscored the fact that the “[p]roper use of [this state’s] individual voir dire should be sufficient to assure the defendant of a fair and impartial jury.” The court noted, however, that the voir dire process would provide “an opportunity [for the court] to test its . . . [conclusion]” that a change of venue was not warranted. The court indicated that if, during voir dire, it appeared that an impartial jury could not be selected in the judicial district of Waterbury, the court then would reconsider transferring the case to another judicial district.
On the day that jury selection was scheduled to commence, the defendant notified the court that, in light of the court’s denial of his motion for a change of venue, he was inclined to change his election from a jury trial to a trial before a three judge panel. The defendant nevertheless requested an opportunity to reflect further on the matter and proposed that the court proceed with jury selection for two days pending the defendant’s final decision on the matter.
Jury selection thereafter commenced and proceeded for two days. The initial panel consisted of thirty-three venirepersons, of which twenty-six were excused prior to voir dire. Only one venireperson, however, was excused for reasons relating to pretrial publicity. The remaining seven venirepersons were questioned, and two were chosen to serve as jurors. At the beginning of the third day of jury selection, the defendant elected to be tried before a three judge panel instead of a jury, reasoning that he did not believe that a fair and impartial jury could be selected in the judicial district of Waterbury. With these facts in mind, we now turn to the
“In requesting a change of venue, a defendant bears the burden of showing that he could not otherwise receive a fair and impartial trial. The trial court exercises its discretion in deciding whether to grant such a change of venue. State v. Miller, 202 Conn. 463, 477, 522 A.2d 249 (1987); State v. Piskorski, 177 Conn. 677, 685, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). The trial court’s discretion is governed by Practice Book [§ 41-23], which provides: ‘Upon motion of the prosecuting authority or the defendant, or upon his own motion, the judicial authority may order that any pending criminal matter be transferred to any other court location: (1) If the judicial authority is satisfied that a fair and impartial trial cannot be had where the case is pending ....’” State v. Townsend, 211 Conn. 215, 224-25, 558 A.2d 669 (1989). “Despite the broad discretion vested in the trial court in considering such a motion, its denial has constitutional implications and appellate review requires an independent evaluation of the circumstances upon which the claim of an unfair trial is based. Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966); State v. Piskorski, [supra, 685].” State v. Vitale, 190 Conn. 219, 227, 460 A.2d 961 (1983).
“For an appellate court to reverse a conviction on the [ground] of prejudicial pretrial publicity, a defendant generally must prove actual juror prejudice. State v. Pelletier, 209 Conn. 564, 569, 552 A.2d 805 (1989); State v. Piskorski, supra, [177 Conn.] 686; State v. Hart, 169 Conn. 428, 432-33, 363 A.2d 80 (1975). A defendant need not, however, show actual prejudice in extreme circumstances whe[n] there has been inherently prejudicial publicity such as to make the possibility of prejudice highly likely or almost unavoidable. . . . State v. Piskorski, supra, 686.” (Citations omitted; internal quo
In the present case, the defendant cannot, and does not, claim actual prejudice because a jury was not selected as a result of the defendant’s decision to proceed with a trial before a three judge panel instead of a jury trial. The defendant maintains, rather, that the evidence adduced at the hearing on his motion for a change of venue evinces inherent prejudice of such magnitude that there is no reasonable likelihood that an impartial jury could have been impaneled.
The defendant has cited to no case, and we are not aware of one, in which a claim of inherent jury prejudice has been raised in circumstances, such as those in the present case, in which a jury is not selected because the accused waives his right to a jury trial and elects to be tried by the court. Indeed, the state contends that the defendant’s election of a court trial constitutes a waiver of any claim he may have had arising out of the
As the trial court concluded, the publicity surrounding the case was neither so pervasive nor so prejudicial as to require a change of venue. Moreover, the most extensive and potentially prejudicial publicity was generated in the period immediately after the commission of the murder; the guilt phase portion of the case did not commence, however, until approximately twenty-two months after the commission of the crime. Although it cannot be doubted that some, if not many, of the prospective members of the jury pool would have been exposed to at least some pretrial publicity concerning the case, that fact alone is insufficient to warrant removal of the case to a different venue. “[J]urors need not be totally ignorant of the facts and issues involved in a criminal trial and the fact that some jurors have some prior knowledge about the case does not itself constitute identifiable jury prejudice.” State v. Townsend, supra, 211 Conn. 225. Furthermore, there is no reason to believe that any influence of the pretrial publicity could not have been overcome by the voir dire process. See State v. Kelly, supra, 256 Conn. 34. Indeed, this conclusion is borne out by the fact that two jurors were selected in the two days of jury selection that preceded the defendant’s decision to waive his right to a jury trial and to be tried by a three judge panel. Finally, the trial court, in denying the defendant’s motion without prejudice, properly left open the possibility of reconsidering the motion in the unlikely event that, during the course of the voir dire process, it became apparent that an impartial jury could not be impaneled in the judicial district of Waterbury.
The Trial Court’s Denial of the Defendant’s Postverdict Motions for the Imposition of a Life Sentence and an Evidentiary Hearing in Connection Therewith
The defendant next raises two separate but related claims. First, the defendant claims that the trial court improperly denied his postverdict motion for the imposition of a life sentence, claiming that a sentence of death would be arbitrary and discriminatory. Second, the defendant claims that the court improperly rejected his request for the postponement of the imposition of a sentence in order to afford him: (1) a reasonable period of time within which to research and analyze certain data that he contends are relevant to his motion; and (2) an opportunity to present evidence in substantiation of his claims upon completion of that research and analysis. Although the reasons that the trial court proffered in support of its decision to deny the defendant’s motions for the imposition of a life sentence and for a hearing on that motion were incorrect as a matter of law, we nevertheless conclude that, under the particular circumstances presented, the defendant was not entitled to the hearing that he sought. We also conclude, however, that the defendant may renew his claim by way of a petition for a writ of habeas corpus.
The following additional facts and procedural history are necessary to our resolution of the defendant’s claims. After the jury had returned its verdict revealing that it had found the existence of two aggravating factors and no mitigating factors, the defendant filed a motion for the imposition of a life sentence, claiming that a sentence of death under the circumstances of
The defendant also filed a separate motion seeking an evidentiary hearing on his motion for the imposition of a life sentence. In support of this separate motion, the defendant provided the court with certain “preliminary data” which, according to the defendant, suggest that the death penalty is imposed in a racially discriminatory and arbitrary manner in this state.
The trial court denied both of the defendant’s motions, essentially concluding that the data submitted by the defendant failed to show that the prosecution of the present case was predicated on arbitrary or discriminatory factors. The court further stated that there was no reason to delay the imposition of sentence for the extended period of time requested by the defendant in view of the fact that the defendant’s motion raised “collateral matters that ha[d] nothing to do with [the] proceedings . . . .” Finally, the court suggested that the defendant’s claim is properly raised as a claim under subdivision (3) of General Statutes (Rev. to 1991) § 53a-46b (b), as amended by Public Acts 1992, No. 92-260, § 23, for proportionality review on appeal to this court. See Webb I, supra, 238 Conn. 490-91.
Approximately four months after the trial court denied the defendant’s motions, we issued our opinion
In light of the nature and magnitude of the work necessary to prepare the claim for a hearing—as evidenced by the fact that such work has not yet been completed—an extraordinary, indeed, indefinite, delay in the imposition of sentence would have been required to accommodate the defendant’s request for a hearing prior to sentencing. Such a lengthy postponement of the hearing simply would not have been acceptable. Indeed, even without the benefit of hindsight, it would not have been reasonable for the defendant to have expected the court to grant the four to six month postponement he requested, especially in view of the fact that the court could not possibly have been assured that the matter would be ready for a hearing even in that extended time frame. Under the circumstances, therefore, there is no reasonable possibility that the trial court would have permitted the requested extension of time even if our decision in Cobb / had been available to the trial court when it denied the defendant’s motions.
Furthermore, since our decisions in Cobb I and Cobb II, subsequent events have overtaken both the claim that the defendant raises in the present case and the same claim made by Cobb in his case. These events reaffirm our conclusion that the defendant should be required to pursue his claim in a habeas corpus proceeding in the trial court. We affirmed Cobb’s conviction and his death sentence. Cobb II, supra, 251 Conn. 521. In the course of that opinion, we reaffirmed our earlier conclusion in Cobb I, supra, 234 Conn. 762-63, that Cobb would be permitted to raise his statistical claim by way of a petition for a writ of habeas corpus. Cobb II, supra, 499.
At some time after our decision in Cobb I, which was released in 1995, the office of the public defender began to collect the data that it deemed necessary to establish the claim. In November, 2002, approximately seven years after the defendant in the present case sought his continuance in the trial court, the office of the public
It is apparent, therefore, that neither the office of the public defender nor the state is ready to litigate the merits of this claim in the immediate future. It is also apparent that judicial economy, as well as fairness to both defendants and the state, mandates that this claim be litigated before the same habeas judge and in the same general, consolidated hearing, on behalf of all defendants who have been sentenced to death.
Our conclusion applies to the defendant in the present case.
Moreover, in order to clarify this matter for other defendants, we now conclude that it is not appropriate for capital defendants to make such a claim in the trial court before which their penalty phase hearings will be or have been held. Such a claim properly is presented
C
Mandatory Sentence Review
The defendant further asserts that this court should vacate his death sentence because: (1) it “was the product of passion, prejudice or any other arbitrary factor” in violation of General Statutes § 53a-46b (b) (1); and (2) “the evidence fails to support the finding of an aggravating factor” in violation of General Statutes (Rev. to 1991) § 53a-46b (b) (2), as amended by Public Acts 1992, No. 92-260, § 23. In support of these claims, the defendant relies solely on the arguments that he has raised in connection with his other claims. With the exception of the defendant’s contention regarding the evidentiary insufficiency of the existence of the aggravating factor enumerated in § 53a-46a (h) (4), we have rejected all of his claims. The persuasive force of the defendant’s meritless claims is no greater when
VI
THE CONSTITUTIONALITY OF CONNECTICUT’S DEATH PENALTY STATUTES
The defendant challenges the constitutionality of this state’s death penalty statutes under the federal and state constitutions. He argues that the statutory scheme is unconstitutional because it: (1) requires the defendant to shoulder the burden of proving the existence of a mitigating factor by a preponderance of the evidence; (2) embodies a presumption that death is the appropriate sentence; (3) requires the jurors to unanimously agree that some mitigating factor exists before the defendant is eligible to receive a sentence of life imprisonment without the possibility of release;
We previously have considered and rejected each of these claims. Specifically, in Boss, we rejected claims identical in all material respects to the first seven claims raised by the defendant. See State v. Ross, supra, 230 Conn. 229, 239-41 and n.24, 243-44, 256. In Breton II, we reaffirmed our conclusion in Boss regarding claims identical in all material respects to six of the defendant’s claims, namely, the first two claims and claims four through seven. Breton II, supra, 235 Conn. 217-18. Thereafter, in Webb I, supra, 238 Conn. 401-402, we were asked to reexamine our holdings in Boss and Breton II that the state’s death penalty statutory scheme does not violate the state constitutional prohibition against cruel and unusual punishment. We reaffirmed our holdings in Boss and Breton II; id., 406; rejecting the precise contention that the defendant raises in his seventh claim. We subsequently reaffirmed our conclusions in Ross and Breton II in Cobb II, supra, 251 Conn. 496-97. Finally, in State v. Webb, 252 Conn. 128, 146, 147, 750 A.2d 448 (Webb II), cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000), we considered and rejected a claim that lethal injection as a method of execution constitutes cruel and unusual punishment in contravention of the federal and state constitutions, a claim identical in all material respects to the defendant’s eighth claim.
VII
PROPORTIONALITY REVIEW
Pursuant to General Statutes (Rev. to 1991) § 53a-46b (a), this court is responsible for reviewing “[a]ny sentence of death imposed in accordance with the provisions of [§] 53a-46a . . . .” In carrying out this function, the legislature has directed us to “affirm the sentence of death unless [we determine] that . . . the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.”
As we previously have stated, “our function in undertaking [proportionality review] is to assure that upon consideration of both the crime and the defendant the aggravating and mitigating circumstances present in
Our first task, therefore, is to determine “the universe of cases from which can be culled the pool of cases deemed to be ‘similar cases’ for puiposes of proportionality review under § 53a-46b (b) (3).” Id., 513. “In accordance with the statutory mandate of § 53a-46b (a) that we review all sentences of death pursuant to [our] rules,
We next turn “to the question of how to go about culling from the universe of eligible cases the ultimate pool of cases deemed to be similar cases for purposes of proportionality review. Having defined and limited the universe of cases, we must determine which particular cases within that universe are similar to th[e] [present] case for purposes of deciding whether the death sentence being reviewed is an outlier.” (Internal quotation marks omitted.) Webb I, supra, 238 Conn. 523. “What the ultimate pool of ‘similar cases’ will consist of in any particular case will have to be developed on a case-by-case basis. . . . [The term] ‘similar cases’ means, in general, cases in which the underlying capital felonies were based on conduct of other defendants that is substantially similar, in its criminal characteristics, to that of the defendant in the case under review. We ask: in the general transaction that underlies the conviction for capital felony in the case under review, in what kind of criminal conduct, in general, did the defendant engage? We then seek to identify other cases in which the defendants engaged in substantially similar conduct.” Id., 525-26. Thus, in ascertaining the pool of similar cases, we are not limited only to those cases involving the same subsections of the capital felony statute. Rather, we look to the characteristics of the
Finally, we do not “differentiate, for purposes of defining the pool of similar cases, between aggravating and mitigating factors, because both may implicate the circumstances of the crime, and both may also implicate the character and record of the defendant. . . . [Therefore . . . both aggravants and mitigants must be viewed together, analytically, although not as part of the definition of similar cases. Rather, they must both be considered in the process of actually comparing the case before us on review with the predetermined pool of similar cases . . . .” (Internal quotation marks omitted.) Id., 525.
In the present case, the defendant was found guilty of capital felony in connection with the fatal shooting of a police officer who was acting in the performance of his official duties. The murder occurred while the defendant was engaged in a narcotics transaction, for which he was seeking to avoid detection and the purpose of which was pecuniary gain. We therefore conclude that the defendant’s conduct generally may be characterized, for purposes of proportionality review, as involving a murder committed in the course of, or for the purpose of advancing, a criminal scheme, an object of which was pecuniary gain.
In State v. Hafford, supra, 252 Conn. 274, the defendant was convicted of capital felony in connection with a murder committed in the course of a sexual assault. Id., 276, 281. The murder and sexual assault occurred during the course of a gas station robbery. Id., 280-81. The defendant, Christopher Hafford, compelled the gas station attendant to hand over the cash from the cash register and, after she complied, Hafford forced her into a back room, where he sexually assaulted her and then killed her with a knife and a shovel. Id. At the conclusion of the penalty phase hearing, the three judge panel found the existence of an aggravating factor, namely, that Hafford had committed the murder in an especially cruel manner. Id., 277-79 and n.3. The panel also found, as a nonstatutory mitigating factor, that, “at the time of the offenses, [Hafford’s] mental capacity was impaired” and that Hafford’s “ability to conform
In the present case, the defendant also alleged, as mitigating factors, that his ability to conform his conduct to the requirements of law significantly was impaired, that he had expressed remorse for shooting Officer Williams and that he had confessed to the crime. The jury, however, rejected the defendant’s claim that these factors, considered separately or together, were sufficiently mitigating to warrant a sentence of life imprisonment without the possibility of release. Moreover, there is nothing in the evidence adduced at the penalty phase hearing to suggest that the jury finding in this regard was unwarranted. With respect to the defendant’s claim of an impairment, the jury was free to conclude that the defendant’s alleged impairment, namely, antisocial personality disorder, did not affect his ability to conform his conduct to the requirements of law at the time of the shooting. Furthermore, the defendant’s sole expression of remorse consisted of a purported statement to Karen Smith, immediately after the shooting, indicating that he was sorry about what had happened. That statement is hardly comparable to the expressions of remorse and regret that the panel found to have been proven by Hafford in his case. Finally, as the panel found in Hafford, Hafford thor
In State v. Gonzalez, supra, 206 Conn. 213, the defendant, Hector Gonzalez, was convicted of capital felony for the fatal shooting of two men whose bodies were discovered in an apartment in Bridgeport. See id., 214-15. Gonzalez also was convicted of the attempted murder of a third victim. See id. After his arrest in connection with the shooting, Gonzalez admitted to being involved but claimed that the primary shooter was a man he identified only as the “ ‘Cuban man.’ ” Id., 216. According to Gonzalez, he and the “ ‘Cuban man’ ” shot the three victims in self-defense when those three men attempted to rob them. Id., 215-16 n.4. Although the record is unclear as to the actual reason for the killings, the defendant in the present case asserts that they were committed “in the course of the drug trade for pecuniary gain.”
Prior to the trial of the case, the court in Gonzalez dismissed the state’s aggravating factors
In Hoyeson, the defendant, Thomas Hoyeson, was the subject of a routine traffic stop by a uniformed Milford police officer. As the officer was approaching Hoyeson’s vehicle, Hoyeson fired one shot into the officer’s chest, fatally wounding him. Although both Hoyeson and the present case involve the murder of an on-duty police officer, in Hoyeson, the state stipulated to the existence of a mitigating factor, namely, that Hoyeson, who had been on a three day cocaine binge, “was substantially impaired ... in a paranoid state, highly agitated, [and] highly fearful” at the time of the murder. Because the defendant in the present case suffered no such impairment—indeed, the jury rejected the defendant’s claim that he suffered from a condition that impaired his ability to conform his conduct to the requirements of law—Hoyeson provides no support for the defendant’s disproportionality claim.
The mitigating factor established by the defendant in State v. Roseboro, supra, 221 Conn. 430, distinguishes that case from the present case for purposes of proportionality review. In Roseboro, the defendant, Derek Roseboro, stabbed three people to death, including an eight year old child, during the course of a burglary. See id., 433. A three judge panel found Roseboro guilty of capital felony and burglary and, thereafter, determined that the state had established the existence of an aggravating factor, namely, that Roseboro had committed the capital felony in an especially heinous manner. Roseboro alleged the existence of several mitigating factors, including: (1) that he had graduated from college, where he was a successful student and athlete; (2) that he had a productive work history; (3)
At the conclusion of the sentencing hearing, the panel in Roseboro found that Roseboro had established a mitigating factor. Specifically, the panel concluded that Roseboro “proved . . . that he adjusted well to incarceration between the time of arrest and the present. The [panel] also [found] that [Roseboro] had previously adjusted well to incarceration, and that it is probable that he will adjust well in the future in a highly structured setting. This is supported by psychological testing and expert testimony, by evidence that he has been cooperative in the past and has gained the trust and confidence of many of those in authority around him in structured situations. . . . [A]lso ... he turned over to the authorities a buried hacksaw blade that he found, which could have been used as a weapon or sold to other prisoners for monetary gain. The court finds that he will conform well in situations of institutional confinement . . . and adjust as needed to proper authority.” By contrast, the defendant in the present case made no claim of an exceptional institutional record or a demonstrated likelihood that he would be a model prisoner in the future.
In State v. Correa, supra, 241 Conn. 322, the defendant, Jesus Alberto Correa, and an accomplice arranged to meet drug dealers to purchase a kilogram of cocaine for $20,000. Id., 325. At the designated time and place, Correa exited his car and approached the vehicle occu
Following a jury trial, Correa was convicted of, inter alia, capital felony, murder and robbery. Id., 324 and n. 1. After Correa’s penalty phase hearing, the jury found that the state had established the existence of an aggravating factor, namely, that Correa had committed the murders for pecuniary gain. The jury, however, also found that Correa had proven one or more mitigating factors and, consequently, the court imposed a sentence of life imprisonment without the possibility of release. Id., 324.
The jury did not indicate on its special verdict form what mitigating factor or factors it found that Correa had proven the existence of. Among his proposed mitigating factors, however, Correa alleged that: (1) his formal education had ended in the fifth grade; (2) notwithstanding his low level of education, he had a history of steady employment; (3) he had worked hard to support his family and improve his family’s economic situation; (4) he had been a good and loving husband and father to his two young children; (5) he had no criminal record in his native country, Colombia;
Finally, in State v. Ortiz, supra, 252 Conn. 533, the defendant, Angel Luis Ortiz, and a codefendant kid
The defendant’s disproportionality claim in regard to Ortiz is defeated by a review of the mitigating factors over which the jury in that case deadlocked. In particular, Ortiz alleged certain mitigating factors, including that he had no prior criminal record, that he was sixty years of age and that he was gainfully employed at the time his children were young and needed his financial support. As in the other cases included in the pool of similar cases for purposes of proportionality review, the mitigating factors that Ortiz had alleged were not alleged by the defendant in the present case. In such circumstances, the differences between the two cases are material, thereby vitiating any claim by the defendant that his sentence is disproportionate to the sentence imposed in Ortiz.
The judgment is affirmed.
In this opinion BORDEN, VERTEFEUILLE, ZARELLA, LAVERY and FOTI, Js., concurred.
ADDENDUM
Following the official release of this opinion on June 3, 2003, the defendant, on June 27, 2003, filed a motion for reconsideration. In his motion, the defendant claimed, inter alia, that, pursuant to Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), an opinion that was released after the parties’ submission of briefs to this court and after oral arguments, he has a federal constitutional right to a jury determination of whether his prior felony conviction in New York for
In Ring, the United States Supreme Court concluded that Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), applied to the capital sentencing scheme at issue. See Ring v. Arizona, supra, 536 U.S. 609. In Apprendi, the United States Supreme Court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, supra, 490. The statute at issue in Ring directed that “[t]he court alone shall make all factual determinations” regarding the existence or nonexistence of certain aggravating circumstances for the purpose of determining the sentence to be imposed. Ariz. Rev. Stat. Ann. § 13-703 (C) (West Sup. 2001); see Ring v. Arizona, supra, 592. The court in Ring held that the statute was unconstitutional, explaining that, under the sixth and fourteenth amendments to the federal constitution, “[i]f a [s]tate makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact—no matter how the [s]tate labels it—must be found by a jury beyond a reasonable doubt. ... A defendant may not be expose[d] ... to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Ring v. Arizona, supra, 602.
The central holding of Ring, namely, that a jury must determine the existence of aggravating circumstances necessary to impose a sentence of death, does not
As we have explained, the issues of whether the defendant previously had been convicted of the sale of a controlled substance and whether he was attempting to sell a narcotic substance during the commission of the capital felony are factual issues to be decided by the jury. The jury did determine those factual issues in this case. By contrast, the issue of whether the two felonies are the “same” within the meaning of § 53a-46a (h) (1) presents a pure question of law that in no way “implicate[s] the weighing of testimony, the assessment of credibility, the use of external facts, or
General Statutes (Rev. to 1991) § 53a-54b provides in relevant part: “A person is guilty of a capital felony who is convicted of . . . (1) [mjurder of a member of the division of state police within the department of public safety or of any local police department, a chief inspector or inspector in the division of criminal justice, a sheriff or deputy sheriff, a constable who performs criminal law enforcement duties, a special policeman appointed under section 29-18, an official of the department of correction authorized by the commissioner of correction to make arrests in a correctional institution or facility, or of any fireman . . . while such victim was acting within the scope of his duties . . . .”
All references to § 53a-54b throughout this opinion are to the 1991 revision unless otherwise indicated.
General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”
We hereinafter refer to the trial court, Fasano, J., as the trial court unless otherwise indicated. Judge Fasano, who served as the presiding judge of the three judge panel during the guilt phase of the proceedings, also presided over the penalty phase hearing.
General Statutes (Rev. to 1991) § 53a-46a provides: “(a) A person shall be subjected to the penalty of death for a capital felony only if a hearing is held in accordance with the provisions of this section.
“(b) For the purpose of determining the sentence to be imposed when a defendant is convicted of or pleads guilty to a capital felony, the judge or judges who presided at the trial or before whom the guilty plea was entered shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, including any mitigating factor set forth in subsection (g), and any aggravating factor set forth in subsection (h). Such hearing shall not be held if the state stipulates that none of the aggravating factors set forth in subsection (h) of this section exists or that one or more mitigating factors exist. Such hearing shall be conducted (1) before the jury which determined the defendant’s guilt, or (2) before a jury impaneled for the purpose of such hearing if (A) the defendant was convicted upon a plea of guilty; (B) the defendant was convicted after a trial before three judges as provided in subsection (b) of section 53a-45; or (C) if the jury which determined the defendant’s guilt has been discharged by the court for good cause or, (3) before the court, on motion of the defendant and with the approval of the court and the consent of the state.
“(c) In such hearing the court shall disclose to the defendant or his counsel all material contained in any presentence report which may have been prepared. No presentence information withheld from the defendant shall be considered in determining the existence of any mitigating or aggravating factor. Any information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but the admissibility of information relevant to any of the aggravating factors set forth in subsection (h) shall be governed by the rules governing the admission of evidence in such trials. The state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any mitigating or aggravating factor. The burden of establishing any of the factors set forth in subsection (h) shall be on the state. The burden of establishing any mitigating factor shall be on the defendant.
“(d) In determining whether a mitigating factor exists concerning the defendant’s character, background or history, or the nature and circumstances of the crime, pursuant to subsection (b) of this section, the jury or, if there is no jury, the court shall first determine whether a particular factor concerning the defendant’s character, background or history, or the nature and circumstances of the crime, has been established by the evidence, and shall determine further whether that factor is mitigating in nature,
“(e) The jury or, if there is no jury, the court shall return a special verdict setting forth its findings as to the existence of any aggravating or mitigating factor.
“(f) If the jury or, if there is no jury, the court, finds that one or more of the factors set forth in subsection (h) exist and that no mitigating factor exists, the court shall sentence the defendant to death. If the jury or, if there is no jury, the court finds that none of the factors set forth in subsection (h) exists or that one or more mitigating factors exist, the court shall impose a sentence of life imprisonment without the possibility of release.
“(g) The court shall not impose the sentence of death on the defendant if the jury or, if there is no jury, the court finds by a special verdict, as provided in subsection (e), that any mitigating factor exists. The mitigating factors to be considered concerning the defendant shall include, but are not limited to, the following: That at the time of the offense (1) he was under the age of eighteen or (2) his mental capacity was significantly impaired or his ability to conform his conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution or (3) he was under unusual and substantial duress, although not such duress as to constitute a defense to prosecution or (4) he was criminally liable under sections 53a-8, 53a-9 and 53a-10 for the offense, which was committed by another, but his participation in such offense was relatively minor, although not so minor as to constitute a defense to prosecution or (5) he could not reasonably have foreseen that his conduct in the course of commission of the offense of which he was convicted would cause, or would create a grave risk of causing, death to another person.
“(h) If no mitigating factor is present, the court shall impose the sentence of death on the defendant if the jury or, if there is no jury, the court finds by a special verdict as provided in subsection (e) that (1) the defendant committed the offense during the commission or attempted commission of, or during the immediate flight from the commission or attempted commission of, a felony and he had previously been convicted of the same felony; or (2) the defendant committed the offense after having been convicted of two or more state offenses or two or more federal offenses or of one or more state offenses and one or more federal offenses for each of which a penalty of more than one year imprisonment may be imposed, which offenses were committed on different occasions and which involved the infliction of serious bodily injury upon another person; or (3) the defendant committed
The legislature made substantial amendments to § 53a-46a in 1995, which became effective on October 1 of that year. See Public Acts 1995, No. 95-19, § 1. Those amendments are inapplicable to the offenses with which the defendant was charged and ultimately convicted, however, because the offenses were committed in 1992, before the effective date of the amendments. Consequently, all references to § 53a-46a throughout this opinion are to the 1991 revision unless otherwise indicated.
The legislature recently amended § 53a-46a to provide that the act of murdering a police officer to avoid arrest, to prevent detection of a criminal act, to hamper or to prevent the officer from carrying out his or her official duties, or to retaliate against the officer for the performance of his or her official duties, is, itself, an aggravating factor. Public Acts 2001, No. 01-151, § 1 (P.A. 01-151). That amendment is inapplicable, however, to the present case inasmuch as the conduct that formed the basis of the defendant’s conviction of capital felony occurred before the effective date of P.A. 01-151, § 1.
Crawford testified that he observed the defendant fire six additional gunshots. Powell testified that she had heard four or five gunshots. Joselyn Campos, who was in the vicinity at the time of the shooting, testified that she had heard three gunshots. Bryant, who had remained at Smith’s apartment after the defendant and Crawford left, indicated that he had heard three to five gunshots. Because we review the evidence in the light most favorable to sustaining the verdict, we conclude that the panel reasonably could have resolved this conflicting testimony so as to find that the defendant had fired six additional gunshots.
Crawford also testified that, in response to Crawford’s question why he had shot Williams, the defendant stated: “[My] mother didn’t name [me] ‘Kilt’ for nothing.”
Strohecker testified that he had decided to take a drive that morning because he was bored.
Article first, § 8, of the constitution of Connecticut, as amended by article seventeen of the amendments, provides in relevant part: “No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law . . . .”
Although article first, § 8, of the constitution of Connecticut, as amended by article seventeen of the amendments, was amended further by article twenty-nine of the amendments, article twenty-nine of the amendments did not amend the provision in article seventeen of the amendments securing the right to a probable cause hearing in cases involving crimes punishable by life imprisonment or death.
General Statutes § 54-46a provides in relevant part: “(a) No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause. . . .”
General Statutes § 53a-45 provides: “(a) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony or murder under section 53a-54d.
“(b) If a person indicted for murder or held to answer for murder after*23 a hearing conducted in accordance with the provisions of section 54-46a waives his right to a jury trial and elects to be tried by a court, the court shall be composed of three judges designated by the Chief Court Administrator or his designee, who shall name one such judge to preside over the trial. Such judges, or a majority of them, shall have power to decide all questions of law and fact arising upon the trial and render judgment accordingly.
“(c) The court or jury before which any person indicted for murder or held to answer for murder after a hearing conducted in accordance with the provisions of section 54-46a is tried may find such person guilty of homicide in a lesser degree than that charged.”
The defendant filed a second motion for a change of venue in which he requested that the penalty phase hearing be held outside the judicial district of Waterbury, the judicial district in which the trial occurred. A majority of the panel agreed with the defendant, and the defendant’s motion was granted. Accordingly, jury selection for the penalty phase hearing and the penalty phase hearing itself both were conducted in the judicial district of Middlesex.
The trial court merged the conviction of murder with the conviction of capital felony, the former offense being a lesser included offense of the latter offense. The court thus did not impose a sentence in connection with the defendant’s conviction of murder.
See footnote 1 of this opinion for the relevant text of § 53a-54b (1).
The defendant also argues that, in the event we conclude that he is entitled to a new probable cause hearing, and probable cause is found at that hearing, he then is entitled to a new trial to determine his guilt with respect to the capital felony charge. Although we agree with the defendant that, under the scenario he posits, he would be entitled to a new trial, his claim that he is entitled to a new trial fails in light of our conclusion that he is not entitled to a new probable cause hearing.
See footnote 9 of this opinion for the relevant text of article first, § 8, of the Connecticut constitution, as amended by article seventeen of the amendments.
See footnote 10 of this opinion for the relevant text of § 54-46a.
We note that the long form information that the state had filed prior to the probable cause hearing was the operative information for purposes of the guilt phase of the defendant’s case. Indeed, after closing arguments during the guilt phase but before the panel had begun its deliberations, the state’s attorney informed the panel that the information had failed to allege that Williams was acting within the scope of his duties as a police officer when he was murdered. The state’s attorney also expressly acknowledged, however, that the state bore the burden of establishing that essential element of § 53a-54b (1) beyond a reasonable doubt. After observing that the defendant necessarily was aware of that statutory element because he had moved for a judgment of acquittal on the ground that the state had failed to meet its burden of proving that element beyond a reasonable doubt, the panel asked defense counsel whether he had seen the information and whether he had a “problem” with it. Defense counsel merely responded that he had seen the information; defense counsel did not raise any challenge in connection with the sufficiency of the allegations contained therein in response to the panel’s inquiry. In light of this record, the defendant also makes no claim on appeal that the state was required to file a substitute information, prior to the panel’s deliberations, containing the omitted language.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
“Under the fourth amendment to the United States constitution, and under article first, [§§ 7 and 9], of the Connecticut constitution, a police officer may briefly detain an individual for investigative purposes if the officer has a reasonable and articulable suspicion that the individual has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Oquendo, 223 Conn. 635, 654, 613 A.2d 1300 (1992); State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990).” State v. Trine, 236 Conn. 216, 223, 673 A.2d 1098 (1996). The officer
As the state acknowledges, proof that an officer was acting in good faith is essential inasmuch as an officer who is not acting in good faith cannot, by definition, be acting within the scope of his duties. See State v. Casanova, 255 Conn. 581, 592-93, 767 A.2d 1189 (2001) (police officer cannot be deemed to be acting in performance of his duties unless he carries out those duties in good faith); State v. Privitera, 1 Conn. App. 709, 722, 476 A.2d 605 (1984) (same). Although the defendant challenges our conclusion that a police officer who harbors a good faith but mistaken belief in the propriety of his conduct is “acting within the scope of his duties” for purposes of § 53a-54b (1), the defendant alternatively contends that he is entitled to a new guilt phase hearing under that standard. Specifically, he claims that a new guilt phase hearing is necessary because the panel made no finding that Williams believed, in good faith, that he was conducting a lawful Terry stop of the defendant. We reject the defendant’s claim. The panel expressly found that Williams was “acting within the scope of his duties” when he was murdered. In the absence of any evidence to the contrary, “[¡judges are presumed to know the law . . . and to apply it correctly.”
General Statutes § 53a-167c provides in relevant part: “(a) A person is guilty of assault of public safety . . . personnel when, with intent to prevent a reasonably identifiable peace officer . . . from performing his or her duties, and while such peace officer ... is acting in the performance of his or her duties, (1) such person causes physical injury to such peace officer . . . .” (Emphasis added.)
The defendant contends that the phrase “acting within the scope of his duties” contained in § 53a-54b (1), when strictly construed, must be understood to require evidence establishing that the officer is acting lawfully when he or she is murdered. We disagree. First, we are not persuaded that a strict construction of that statutory wording leads to the interpretation that the defendant urges because, as we have explained, there simply is nothing explicit in the language to suggest such a requirement. Moreover, “although criminal statutes are strictly construed, it is equally fundamental
The defendant also argues that the rule of lenity applies to our analysis of his claim. See State v. Hinton, 227 Conn. 301, 317, 630 A.2d 593 (1993) (rule of lenity requires court to resolve “doubts in the enforcement of a penal code against the imposition of a harsher punishment” [internal quotation marks omitted]). We reject the defendant’s contention. “[T]he touchstone of this rule of lenity is statutory ambiguity. . . . [W]e . . . [reserve] lenity for those situations in which a reasonable doubt persists about a statute’s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute.” (Emphasis in original; internal quotation marks omitted.) State v. King, 249 Conn. 645, 687 n.47, 735 A.2d 267 (1999). The rule of lenity is inapplicable to the present case because, contrary to the defendant’s claim, the phrase “acting within the scope of his duties” contained in § 53a-54b (1) does not give rise to any ambiguity.
All references to the trial court in part II C of this opinion are to the trial court, Kulawiz, J., unless otherwise noted.
The record reflects that the investigating officers who knocked on Smith’s door and obtained her permission to enter were not in uniform. These plainclothes officers were joined shortly thereafter by two other officers, at least one of whom was in uniform.
According to testimony adduced at the suppression hearing, Smith opened the door and said, “[c]ome in.” Smith, herself, did not testify at the suppression hearing. She did testify, however, at the penalty phase hearing and, in response to a question posed by the state’s attorney as to what she did when the police knocked on her door, Smith responded, “I let them in.”
Miranda v. Arizona, supra, 384 U.S. 436.
The court also found that the police had probable cause to enter Smith’s apartment. Although the police did not have a warrant to enter Smith’s apartment, the state maintains that the officers’ warrantless entry into the apartment would have been constitutionally permissible, even without Smith’s consent, under the exigent circumstances exception to the warrant requirement. See, e.g., State v. Gant, 231 Conn. 43, 63-64, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 13 L. Ed. 2d 291 (1995) (exigent circumstances exception to warrant requirement applies generally to those circumstances in which police are unable or unlikely to effectuate arrest, search or seizure, for which probable cause exists, unless they act swiftly, without seeking prior judicial authorization). The state asserts that the police had sound reason to believe that two armed and dangerous men involved in the murder of Williams had fled to, and were hiding in, an apartment in which Smith and her children resided. Thus, a powerful argument may be made that these circumstances were sufficiently exigent to justify a warrantless entry into the apartment even without Smith’s consent. In view of the court’s conclusion that Smith voluntarily allowed the police into the apartment, however, there was no need for the court to address the exigent circumstances exception and, in fact, the court did not do so. Consequently, that issue is not before us on appeal.
The state questions the propriety of the court’s conclusion that the defendant was seized when he entered the police cruiser to be driven to police headquarters. According to the state, this conclusion does not follow logically from the established facts and from the court’s other findings, which, according to the state, lead inexorably to the conclusion that the defendant was not in custody until sometime after he arrived at police headquarters. See, e.g., State v. James, 237 Conn. 390, 405, 678 A.2d 1338 (1996) (person not arrested or seized if he freely chooses to enter or continue encounter with police). The state does not otherwise challenge the court’s conclusion, however, in light of the court’s determination that the police had probable cause to arrest the defendant when he entered the police cruiser.
We note, preliminarily, that “[w]e may consider the testimony adduced both at the [defendant’s] trial and at the [defendant’s] suppression hearing when determining the propriety of the trial court’s ruling on a motion to suppress a confession.” (Internal quotation marks omitted.) State v. Pinder, 250 Conn. 385, 390 n.5, 736 A.2d 857 (1999).
Of course, the connection between the fruits and the illegal search or seizure may be “sufficiently attenuated” so that the fruits are purged of their primary taint. State v. Geisler, 222 Conn. 672, 682, 610 A.2d 1225 (1992). Moreover, if the evidence is obtained independently of the illegal conduct, or inevitably would have been discovered irrespective of that conduct, then the evidence is not excluded. See, e.g., State v. Cobb, 251 Conn. 285, 337-39, 743 A.2d 1 (1999) (Cobb II), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000). Because we conclude that the police engaged in no unlawful conduct, these principles are inapplicable to the present case.
The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The fourth amendment is made applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. See, e.g., Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).
Article first, § 7, ofthe constitution of Connecticutprovides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”
See footnote 33 of this opinion for the text of article first, § 7, of the constitution of Connecticut.
Article first, § 9, of the constitution of Connecticut provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
Although the court’s findings concerning the historical circumstances surrounding the defendant’s interrogation are questions of fact that will not be overturned unless they are clearly erroneous, our review of the court’s finding on the ultimate issue of custody is plenary. See State v. Pinder, 250 Conn. 385, 410-12, 736 A.2d 857 (1999).
As the court explained in its memorandum of decision, Campos informed O’Leary that she had observed two black males walking on Orange Street at approximately 4 a.m. After hearing gunshots, Campos saw the same two men running down Ward Street. Campos further reported that she had observed the men enter one of three buildings, which she pointed out to O’Leary. On the basis of the information provided by Campos, O’Leary ordered the police to seal off the area in the vicinity of those buildings.
Smith did testify that the defendant had asked her to look out the window and report whether she observed any police officers. She did so and informed him that she saw several officers on the street. The mere fact that the defendant knew that police officers were in the vicinity, however,
At the suppression hearing, Bryant testified that he did not provide these details to the police until later in the morning, after the defendant had been taken to police headquarters and arrested. Bryant’s testimony, however, is contrary to the testimony of O’Leary, who stated that he received the information from Bryant prior to traveling to Smith’s apartment. As we have indicated, it is the function of the trial court to weigh the evidence and pass upon the credibility of witnesses. E.g., State v. Clark, supra, 255 Conn. 280. Inasmuch as the court reasonably credited O’Leary’s version of the historical events, we do not second guess that fact-bound determination.
Although the state bore the burden of proving a valid Miranda waiver by a preponderance of the evidence, the trial court found “beyond a reasonable doubt that the oral statement of [the] defendant . . . given to officers at . . . police headquarters on December 18, 1992, was voluntarily, knowingly and willingly given without coercion and with advisement and understanding of his constitutional rights.”
A clinical psychologist performed certain tests on the defendant in connection with the present case, the results of which indicated that the defendant has an IQ in the average range. Furthermore, although the defendant did not complete high school, he has been characterized as a smart student and was able to obtain a general equivalency diploma (GED) while in prison.
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 defendant does not claim that he is entitled to any greater rights under the due process clause of article first, § 8, of the state constitution than he is under the analogous federal constitutional provision. Accordingly,
We note, in addition, that O’Leary asked the defendant whether he wanted a beverage or needed to use a restroom.
The record, moreover, does not bear out the defendant’s description of police headquarters as “crowded” with high ranking officials, nor does it support his characterization of the activity there as resulting in “pandemonium . . .
The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .”
The defendant also asserts that his constitutional right to present a defense was violated as a result of the alleged impropriety. The defendant, however, has failed to explain how, under the circumstances presented, that claim differs from his confrontation clause claim, and we cannot perceive any such distinction. We therefore limit our review to the defendant’s claim under the confrontation clause.
On appeal, the defendant claims that he also was unable to elicit from Keegan the fact that one of the investigating officers is related to Crawford. The defendant, however, never sought to elicit any such information from Keegan and, consequently, the court never had the opportunity to rule on the admissibility of such evidence. Moreover, there is no indication that the court would have prohibited the defendant from questioning Keegan about whether Crawford was related to an officer involved in the investigation. Consequently, the defendant cannot prevail on his unpreserved evidentiary claim.
General Statutes § 51-286a provides in relevant part: “(a) Each state’s attorney, assistant state’s attorney and deputy assistant state’s attorney shall diligently inquire after and make appropriate presentment and complaint to the Superior Court of all crimes and other criminal matters within the jurisdiction of the court or in which the court may proceed, whether committed before or after his appointment to office. . . .”
The defendant offers the following hypothetical example to illustrate his point. “Suppose a person is the proprietor of a small store [and] engages on the side with a few needy customers in the pawnbroking business without a license, but is otherwise a law-abiding person (i.e., he does not fence stolen property, he does not charge usurious rates, etc.). Suppose also that our proprietor has previously been convicted of conducting a pawnbroking business without a license, which is a [class D] felony .... See [General Statutes] § 21-47 (a). Then one day, while conducting some unlicensed pawnbroking business with a customer who is trying to borrow a few dollars on his watch, two hated enemies of our proprietor come into the store, not knowing he is there and intending only to conduct legitimate business (i.e., to buy some sodas). The proprietor pulls out his gun and intentionally kills both of them, thereby committing a capital felony .... The fact that the proprietor was engaging in illegal pawnbroking at the time had absolutely nothing to do with the capital crime; it would have occurred even if the customer at the counter was buying soda rather than trying to get a loan on his watch. Indeed, consider a second proprietor who is in exactly the same situation as [the] first proprietor except that the customer at the counter at the time the [second] proprietor murdered his two enemies was in fact buying a soda. The second proprietor would not even be eligible for the death penalty, but because the first proprietor’s customer was trying to borrow a few dollars against his watch, the first proprietor is eligible for the death penalty under the ‘(h) (1)’ aggravating factor . . . .”
We note that, based on the facts of the defendant’s hypothetical, the second proprietor could receive the death penalty; see General Statutes § 53a-54b (8) (murder of two or more persons at same time or in course of single transaction is capital felony for which accused may be sentenced to death); if the state were able to establish the existence of an aggravating factor other than that enumerated in § 53a-46a (h) (1).
The eighth amendment to the United States constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The cruel and unusual punishments clause of the eighth amendment is made applicable to the states through the due process clause of the fourteenth amendment of the United States constitution. See, e.g., Tuilaepa v. California, 512 U.S. 967, 970, 114 S. Ct. 2630, 129 L. Ed. 2d 750 (1994).
The defendant concedes that § 53a-46a (h) (1) would pass constitutional muster if it expressly required more than a temporal nexus between the capital felony and the felony committed during the commission of the capital felony. Thus, the defendant acknowledges that § 53a-46a (h) (1) would be constitutional if, for example, it expressly required the state to establish that the defendant committed the capital felony “ ‘in furtherance of ” or “to prevent the discovery of’ another felony and that the defendant previously had been convicted of that same felony.
We think it is highly unlikely that the state would seek to prove the existence of the aggravating factor of § 53a-46a (h) (1) if the nexus between the capital felony and the felony committed during the commission of the capital felony was only temporal or coincidental. Because the present case does not involve such a factual scenario, however, we need not consider the constitutionality of § 53a-46a (h) (1) under those facts.
The defendant had been convicted of one count of criminal sale of a controlled substance in the fourth degree in violation of § 220.34 of the New York Penal Law, which provides in relevant part: “A person is guilty of criminal sale of a controlled substance in the fourth degree when he knowingly and unlawfully sells: 1. a narcotic preparation . . . .” N.Y. Penal Law § 220.34 (McKinney 1980). The undisputed facts underlying the defendant’s conviction are as follows: “On July 5, 1988 in the County of Nassau in the town of Hempstead, New York, the defendant knew that he had in his possession an illegal drug (cocaine) and he intended to sell the illegal drug (cocaine) for money and did sell the illegal drug (cocaine) to an undercover officer for ten dollars.”
In 1988, when the defendant committed the crime of criminal sale of a controlled substance in the fourth degree, which led to his conviction under N.Y. Penal Law § 220.34 in 1989, a person could receive up to fifteen years imprisonment for the commission of a nonviolent, class C felony. See N.Y. Penal Law § 70.00 (McKinney 1987).
General Statutes § 21a-277 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”
A majority of the panel voted to deny the defendant’s motion to dismiss.
General Statutes § 53a-25 provides: “(a) An offense for which a person may be sentenced to a term of imprisonment in excess of one year is a felony.
“(b) Felonies are classified for the purposes of sentence as follows: (1) Class A, (2) class B, (3) class C, (4) class D, (5) unclassified and (6) capital felonies.
“(c) The particular classification of each felony defined in [chapter 952 of the General Statutes] is expressly designated in the section defining it. Any offense defined in any other section of the general statutes which, by virtue of an expressly specified sentence, is within the definition set forth in subsection (a) shall be deemed an unclassified felony.”
General Statutes § 53a-24 provides: “(a) The term ‘offense’ means any crime or violation which constitutes a breach of any law of this state or any other state, federal law or local law or ordinance of a political subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction. The term ‘crime’ comprises felonies and misdemeanors. Every offense which is not a ‘crime’ is a ‘violation’. Conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.
“(b) Notwithstanding the provisions of subsection (a) of this section, the provisions of sections 53a-28 to 53a-44, inclusive, shall apply to motor vehicle violations. Said provisions shall apply to convictions under section 2 la-278 except that the execution of any mandatory minimum sentence imposed under the provisions of said section may not be suspended.”
In 1972, the United States Supreme Court, in a per curiam opinion, held that the imposition of the death penalty under the circumstances presented in the appeals that it was deciding constituted cruel and unusual punishment in violation of the eighth and fourteenth amendments to the United States constitution. Furman v. Georgia, 408 U.S. 238, 239-40, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). The court’s decision effectively rendered many states’ death penalty statutory schemes, including the death penalty statutory scheme of this state, constitutionally infirm. See State v. Golino, 201 Conn. 435, 439, 518 A.2d 57 (1986); State v. McGann, 199 Conn. 163, 174, 506 A.2d 109 (1986). In 1973, the legislature, in response to Furman, amended the death penalty statutory scheme in Connecticut. See generally P.A. 73-137.
We note that the term “[a]ny offense” in General Statutes (Rev. to 1972) § 53a-25 (a) was changed to “[a]n offense” in 1992. Public Acts 1992, No. 92-260, § 9, codified at General Statutes § 53a-25. See footnote 58 of this opinion.
The aggravating factor enumerated in General Statutes (Rev. to 1991) § 53a-46a (h) (1) initially was codified at General Statutes (Rev. to 1975) § 53a-46a (g) (1) after its passage in 1973 as a part of P.A. 73-137, § 4.
See footnote 4 of this opinion for the text of § 53a-46a (h).
Public Act 75-380 consists of fifteen sections. Section 1 of P.A. 75-380 amended General Statutes (Rev. to 1975) § 53a-3 by adding the definition of the terms “machine gun,” “rifle,” “shotgun,” “pistol” and “firearm” to the other definitions contained in § 53a-3. Section 2 of P.A. 75-380 provides that it shall be an affirmative defense to the offenses enumerated in §§ 3 through 12, inclusive, of P.A. 75-380 if the firearm used in the commission of the offense was not a weapon from which a shot could be discharged. Sections 3 through 12, inclusive, of the act established enhanced mandatory minimum penalties for certain offenses when those offenses are committed with a firearm. Section 13 of P.A. 75-380 provides that it shall be an affirmative defense to the offenses enumerated in §§ 3 through 12, inclusive, of the act
The relatively brief legislative history of P.A. 75-380 relates only to the sentencing provisions of the act; see 18 H.R. Proc., Pt. 10, 1975 Sess., pp. 4852-62; 18 S. Proc., Pt. 5, 1975 Sess., pp. 2291-98; and is silent as to the modification of the definition of the term “offense” in General Statutes (Rev. to 1975) § 53a-24.
General Statutes § 53a-2 provides: “The provisions of [title 53a of the General Statutes] shall apply to any offense defined in [that] title or the general statutes, unless otherwise expressly provided or unless the context otherwise requires, and committed on or after October 1, 1971, and to any defense to prosecution for such an offense.”
Title 53a of the General Statutes comprises the Connecticut Penal Code. General Statutes § 53a-l.
See footnote 60 of this opinion.
As the panel explained, § 53a-46a (h) (1) “was designed to penalize a defendant with the possible imposition of the death penalty, [for committing] murder while in the process of committing the same serious offense for which he had previously been punished. [That is, the defendant] persists in the same conduct unaffected by any prior adjudication, but this time takes a life in the process .... [In the legislature’s view, such conduct constitutes] the ultimate defiance of the criminal justice system, worthy of the ultimate penalty.”
This interpretation both comports with the common meaning of the word “same” and farthers the purpose of § 53a-46a (h) (1) by assuring that the aggravating factor enumerated therein applies to only those capital defendants—no more and no less—who, after having been convicted of a serious crime, commit that same serious crime again during the commission of a capital felony.
The essential elements of § 21a-277 (a) and N.Y. Penal Law § 220.34 are (1) the intentional or knowing (2) sale or distribution (3) of a narcotic substance, including but not limited to cocaine. See footnotes 54 and 56 of this opinion.
In accordance with this stipulation, the trial court informed the jury that it was to accept as proven the following facts regarding the defendant’s prior conviction: “The name of the charge was criminal sale of a controlled substance in the fourth degree. The statute from the penal code of the state of New York was [N.Y. Penal Law §] 220.34. Jurisdiction was Nassau county in New York. [The [d]ate of [the defendant’s] plea was December 20, 1988. The date of the sentence was February 17, 1989. The underlying facts [are as follows]. On July 5, 1988, in the county of Nassau in the town of Hemp-stead, New York, the defendant knew that he had in his possession an illegal drug, cocaine, and [that] he intend[ed] to seE the illegal drug, cocaine, for money and did seE the illegal drug, cocaine, to an undercover police officer for ten doEars. The sentence was an indeterminate sentence of imprisonment. The minimum term [was] one year . . . and you may take this as a proven fact—that such a conviction constitutes a felony.”
Prior to the penalty phase hearing, the defendant filed a motion to dismiss, inter aha, the aggravating factor enumerated § 58a-46a (h) (1). The
Although the defendant claims that the state presented insufficient evidence to prove that the defendant violated § 21a-277 (a)—a claim that we reject; see part III A 4 of this opinion—he does not challenge the trial court’s instructions on the elements of § 21a-277 (a).
Thereafter, the court reiterated its instructions as follows: “I should note . . . that during the course of the court’s charge, I indicated with respect to the first aggravant that the felony § 21a-277 (a) of our General Statutes is the same as the felony for which the parties agree the defendant had previously been convicted, that being the sale of a controlled substance in the fourth degree. In so doing, the court takes judicial notice of § 220.34 of the New York Penal [Law] with respect to the elements of the crime of criminal sale of [a] controlled substance in the fourth degree. Those elements include the knowing and unlawful sale of a narcotic preparation. In comparing that to § 21a-277 (a) of our General Statutes, which involve[s] the sale of any narcotic substance . . . [and] which under our law requires proof that such a sale be knowingly and unlawfully] done, the court found that the elements of the two felonies were, in fact, the same as a matter of law and, therefore, are charged accordingly in conjunction with the [§ 53a-46a (h) (1)] aggravant alleged by the state.”
As we repeatedly have observed, statutory interpretation is a matter of law. E.g., Wallerstein v. Stew Leonard's Dairy, 258 Conn. 299, 302, 780 A.2d 916 (2001). Moreover, General Statutes § 52-163a expressly authorizes the courts of this state to determine the law of any jurisdiction outside this state. General Statutes § 52-163a provides: “(a) In determining the law of any jurisdiction or governmental unit thereof outside this state, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the rules of evidence.
“(b) The court, not the jury, shall determine the law of any jurisdiction or governmental unit thereof outside this state. Its determination is subject to review on appeal as a ruling on a question of law.”
We note that permitting a jury to decide whether the elements of two criminal statutes are the same conceivably could result in two different juries coming to different conclusions. Such an untenable result would be
See addendum to this opinion.
The defendant also claims, with respect to the aggravating factor enumerated in § 53a-46a (h) (4), that the trial court improperly: (1) declined to require the state to provide the defendant with a bill of particulars setting forth the facts underlying that aggravating factor; (2) instructed the jury that it could find that that aggravating factor was satisfied upon proof of
The state also alleged that the defendant intended to inflict, and Williams suffered, extreme physical pain or torture beyond that necessarily accompanying the underlying killing. At the conclusion of the state’s case at the penalty phase hearing, however, the trial court determined that the state had failed to adduce evidence from which the jury reasonably could find that Williams had suffered such extreme physical pain or torture. Accordingly, the trial court did not submit that claim to the jury, and it is not an issue on appeal.
In Cobb II, supra, 251 Conn. 285, which was decided after the penalty phase hearing in the present case, we stated that the aggravating factor of § 53a-46a (h) (4) also could be satisfied by proof that “the defendant was callous or indifferent to the extreme physical or psychological pain, suffering or torture that his intentional conduct in fact inflicted on the victim.” Id., 445. The trial court did not instruct the jury in accordance with this alternate application of § 53a-46a (h) (4), and, consequently, we do not consider it in reviewing the defendant’s claim of evidentiary insufficiency.
The defendant also claims that the evidence was insufficient to warrant a finding that Williams had suffered extreme psychological pain or torture as a result of the additional gunshots that the defendant fired at Williams as the defendant was fleeing the scene. Because we conclude that the evidence did not support the jury’s finding that the defendant intended to inflict such extreme psychological pain or torture on Williams, we need not and, therefore, do not reach this claim.
General Statutes (Rev. to 1991) § 53a-46b (b), as amended by Public Acts 1992, No. 92-260, § 23, provides in relevant part: “The supreme court shall affirm the sentence of death unless it determines that ... (2) the evidence fails to support the finding of an aggravating factor specified in subsection (h) of section 53a-46a . . . .”
There was no testimony either as to the precise period of time between the first shot at close range and the additional gunshots, or the length of time that it had taken the defendant to discharge those gunshots as he was fleeing. Because the defendant fled immediately after firing the first shot, and because there is nothing in the record to suggest that the defendant stopped or paused as he was running and shooting, it is reasonable to conclude that all of the additional gunshots were fired within a matter of seconds. This conclusion is supported by the state’s characterization of the evidence, set forth in its brief submitted to this court, as establishing that the defendant “chose to flee immediately, firing wildly at [Williams] as he did so.”
Indeed, the panel made this finding at the conclusion of the guilt phase of the trial.
The state does not claim that the defendant’s intent changed after he already had begun firing the additional gunshots in Williams’ direction as he was fleeing. The seminal time period, therefore, is the brief interval after the defendant had shot Williams at close range and before he had fired the additional gunshots while fleeing the crime scene.
In support of its contrary contention, the state relies on two capital felony cases, State v. Rhines, 548 N.W.2d 415, 452 (S.D.), cert. denied, 519 U.S. 1013, 117 S. Ct. 522, 136 L. Ed. 2d 410 (1996), and State v. Zagorski, 701 S.W.2d 808, 814 (Term. 1985), cert. denied, 478 U.S. 1010, 106 S. Ct. 3309, 92 L. Ed. 2d 722 (1986), in which the evidence was deemed sufficient to establish that the defendants had tortured their respective victims. Because those cases bear no factual similarity to the present case, they provide no support for the state’s contention. In Rhines, the defendant was burglarizing a donut shop when the victim unexpectedly entered the premises. State v. Rhines, supra, 451. After stabbing the victim in the abdomen and again in the back, the defendant forced the victim into a storage room, where he ignored the victim’s pleas for mercy and medical attention. Id. Although the victim remained passive in apparent acknowledgment of his impending death, the defendant seated the victim on a pallet, bound his hands tightly behind his back, placed his head between his knees and proceeded to thrust a knife into the base of his skull. Id. The evidence also indicated that the victim had endured certain wounds that were “caused or exacerbated by [the victim’s] agonized struggle before his death.” Id., 452. In Zagorski, the defendant shot his two victims and then also “slit their throats, leaving them to bleed to death in the woods.” State v. Zagorski, supra, 814. The court concluded that, although the victims ultimately died of the gunshot wounds, “[the] [defendant's actions were an infliction of gratuitous violence, and needless mutilation of [the] victims who were already helpless from fatal wounds . . . .” Id. In contrast to the present case, the prosecuting authorities adduced ample evidence in Rhines and Zagorski from which the juries could find, without resort to speculation or conjecture, that the defendants intended to torture their respective victims.
See footnote 4 of this opinion for the text of § 53a-46a (h) (4).
The defendant moved to dismiss all of the aggravating factors alleged by the state. The panel denied the motion in its entirety.
The defendant objected to the introduction of the autopsy photographs on the ground that the prejudicial effect of the photographs outweighed their probative value.
See footnote 6 of this opinion and accompanying text.
We have concluded that the evidence adduced by the state was insufficient to support the jury’s determination that the defendant had intentionally inflicted extreme psychological pain or torture on Williams beyond that necessary to accomplish the Mlling. See part III B 1 of this opinion. The defendant does not contend, however, that the panel improperly denied his motion to dismiss the aggravating factor enumerated in § 53a-46a (h) (4) in advance of the penalty phase hearing on the ground of evidentiary insufficiency with respect to the state’s claim that the defendant intentionally caused Williams extreme psychological pain or torture beyond that necessary to accomplish the killing.
As we have indicated, the defendant sought to preclude the state from introducing the autopsy photographs into evidence at the penalty phase hearing on the ground that they were unduly prejudicial. The thrust of the defendant’s claim on appeal, however, is that the state would not have been able to introduce those photographs if the panel had granted the defendant’s motion to dismiss the aggravating factor enumerated in § 53a-46a (h) (4) prior to the penalty phase hearing. The defendant does assert on appeal, however, that any probative value of the autopsy photograph depicting Williams’ head with his scalp peeled back is outweighed by the photograph’s prejudicial effect. The defendant is not entitled to review of this claim, however, because he has not adequately briefed it. See, e.g., Abington Ltd. Partnership v. Heublein, 257 Conn. 570, 586-87 n.29, 778 A.2d 885 (2001). Moreover, the defendant cannot prevail on the merits of his claim. “This court . . . has held that photographic evidence is admissible where the photograph has a reasonable tendency to prove or disprove a material fact
The trial court instructed the jury on reasonable doubt as follows: “Now, the phrase ‘reasonable doubt’ has no technical or unusual meaning. You can arrive at the real meaning of it by emphasizing the word ‘reasonable.’ A reasonable doubt is a doubt for which there exists a reasonable basis arising out of evidence or the lack of evidence. It is a doubt which is more than a guess or surmise. It’s not a conjecture or a fanciful doubt. A reasonable
“Now, of course, absolute certainty in the affairs of life is never attainable and the law does not require absolute certainty on the part of a jury before you return a verdict finding an aggravant. The state does not have to prove a factor beyond all doubt or to a mathematical or absolute certainty. What the law does require, however, is that, after hearing all of the evidence, if there is something in that evidence or lack of evidence which leaves in the minds of a jury as reasonable men and women a reasonable doubt about the aggravating factor, then the accused must be given the benefit of doubt and found not to have committed that factor. Any conclusion reasonably to be drawn from the evidence which is consistent with the accused not having committed the aggravating factor must prevail. If there is no reasonable doubt, then the jury must find that the accused committed the aggravant. The test is one of reasonable doubt, a doubt based on reason and common sense.”
Because the defendant did not object at trial to the portions of the jury charge that he now challenges on appeal, he seeks to prevail on his claim of instructional impropriety under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), in which we held that a defendant can prevail on an unpreserved constitutional claim “only if all of the following conditions are met: (1) the
In State v. Delvalle, 250 Conn. 466, 475, 736 A.2d 125 (1999), this court again rejected a constitutional challenge to the “ingenuity of counsel” language. We observed, however, that, when viewed in isolation, the phrase “conceivably could misdirect the jury’s attention . . . .” (Internal quotation marks omitted.) Id., quoting State v. Taylor, supra, 239 Conn. 504. To avoid any possibility of juror confusion in the future, we directed our trial courts,
See footnote 4 of this opinion for the text of § 53a-46a (h) (1).
In Webb I, supra, 238 Conn. 389, we concluded that the jury’s finding of the existence of the aggravating factor enumerated in § 53a-46a (h) (4) was predicated upon an improper instruction regarding that aggravating factor. See id., 475. In the present case, by contrast, we have concluded that the jury improperly found the existence of that aggravating factor on the basis of insufficient evidence.
Of course, the state also was required to prove, pursuant to § 53a-46a (h) (1), that the defendant previously had been convicted of the felony sale of a narcotic substance. In light of the defendant’s stipulation that he had
See footnote 4 of this opinion for the text of § 53a-46a (d).
Although the state alleged the existence of this aggravating factor, the jury rejected the state’s allegation.
The defendant also argues that the jury’s finding of the aggravating factor enumerated in § 53a-46a (h) (4) prejudiced him in regard to the jury’s consideration of the aggravating factor enumerated in § 53a-46a (h) (1) because “the jurors might well have rejected something as mitigating only because of their erroneous belief that the capital offense was aggravated in two different ways and may well have not reached that same decision if they had actually known that there was only one properly found aggravating factor.” (Emphasis in original.) We reject this argument because it would require us to conclude that the jury ignored the court’s thorough instructions on the law pertaining to the aggravating and mitigating factors and the manner in which the jury was to determine their existence or nonexistence. We refuse to draw such a conclusion in the absence of some indication that the jury failed or declined to follow the court’s instructions. See, e.g., State v. Ancona, 256 Conn. 214, 219, 772 A.2d 571 (2001).
See footnote 4 of this opinion for the text of § 53a-46a (b).
Inasmuch as the defendant’s claim gives rise to an issue of statutory construction, our review is plenary. E.g., State v. Russo, supra, 259 Conn. 447. As we previously have indicated, the process of statutory construction requires us to ascertain the intent of the legislature as reflected in the language of the statute, its legislative history, the policy that the statute
General Statutes § 54-82 (a) provides: “In any criminal case, prosecution or proceeding, the party accused may, if he so elects when called upon to plead, be tried by the court instead of by the jury; and, in such case, the court shall have jurisdiction to hear and try such case and render judgment and sentence thereon.”
General Statutes § 53a45 (b) provides in relevant part: “If a person indicted for murder or held to answer for murder after a [probable cause] hearing . . . waives his right to a jury trial and elects to be tried by a court, the court shall be composed of three judges designated by the Chief Court Administrator or his designee, who shall name one such judge to preside over the trial. Such judges, or a majority of them, shall have power to decide all questions of law and fact arising upon the trial and render judgment accordingly.”
General Statutes § 54-82 (b) provides: “If the accused is charged with a crime punishable by death or imprisonment for life and elects to be tried by the court, the court shall be composed of three judges to be designated by the Chief Court Administrator, or his designee, who shall name one such
As this court has observed in construing the precursor to § 54-82 (b); Public Acts 1921, c. 267, § 2, codified at General Statutes (1930 Rev.) § 6477; “[t]he court is by this statute substituted for the jury and fulfills in the trial of a criminal cause without a jury the duties of both court and jury.” State v. Frost, 105 Conn. 326, 329, 135 A. 446 (1926).
General Statutes (Rev. to 1972) § 53a-46 provides in relevant part: “(a) When a defendant has been found guilty of murder, there shall thereupon be further proceedings before the court or jury on the issue of penalty. Such proceedings shall be conducted before the court or jury which found the defendant guilty. ...”
General Statutes (Rev. to 1972) § 53a-46 was repealed with the enactment of § 53a-46a. See Public Acts 1973, No. 73-137, §§ 4, 15.
we refer to M.K. by his initials to protect his legitimate privacy interests. See, e.g., State v. Dehaney, 261 Conn. 336, 346 n.8, 803 A.2d 267 (2002).
The defendant also maintains that the trial court improperly excused a prospective alternate juror, C.D., for cause on the basis that C.D. had indicated during voir dire that she was uncertain about whether she could render a decision that would result in a sentence of death. We do not reach this claim, however, because all twelve regular jurors had been selected prior to the voir dire of C.D., and those twelve jurors, at the conclusion of the evidence, deliberated and reached a verdict in the case. Thus, no alternate jurors were needed to reach a verdict. Consequently, the defendant’s claim concerning C.D. is moot because C.D. would not have participated in the jury deliberations even if the trial court had not excused her for cause.
General Statutes § 54-82f provides: “In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. If the judge before whom the examination is held is of the opinion from the examination that any juror would be unable to render a fair and impartial verdict, the juror shall be excused by the judge from any further service upon the panel, or in the action, as the judge determines. The right of such examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of said action.”
Practice Book § 42-12 provides: “Each party shall have the right to examine, personally or by counsel, each juror outside the presence of other
As the court stated in Wainwright, this standard “does not require that a juror’s bias be proved with unmistakable clarity. This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many venire[persons] simply cannot be asked enough questions to reach the point where their bias has been made unmistakably clear; these venire[persons] may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. . . . [Consequently] deference must be paid to the trial judge who sees and hears the [prospective] juror.” (Internal quotation marks omitted.) Wainwright v. Witt, supra, 469 U.S. 424-26.
In support of his claim that M.K. should not have been excused for cause, the defendant relies almost entirely on M.K.’s response to questioning during voir dire that he could be a fair fact finder. The defendant, however, ignores the fact that M.K also expressed strong misgivings about his ability to remain fair and objective to the state owing to his belief that capital punishment is morally wrong.
The trial court instructed the jury in relevant part as follows:
“Now, as you have been told during the course of these proceedings, the court will impose the death penalty only if the state proves at least one aggravating and the defendant fails to prove any mitigating factors. If no aggravating or if any mitigating factor is proven, the court will impose a penalty of life without the possibility of release.
“The evaluation of aggravating and mitigating factors involves two different burdens of proof. The state has the burden of proving an aggravating factor beyond a reasonable doubt while the defendant has the burden of proving a mitigating factor by a preponderance of the evidence. . . .
* * *
“Now, as you are aware, the defendant in this case stands convicted of the charge of capital felony. . . . It’s the law of this state that the penalties for an individual found guilty of a capital felony shall be either death or a sentence of life without the possibility of release. These two sentences are
“The first sentence, the sentence of death, means exactly what it says, that the defendant will be put to death by the state of Connecticut.
“The second sentence, life without the possibility of release, means just what it says, that the defendant will spend the rest of his natural life imprisoned by the state of Connecticut. That’s the law. You, the jury, will make the determination of facts which will result in the court imposing one or the other of the above-stated sentences. Specifically, you will be asked to determine the existence or nonexistence of aggravating and mitigating factors based upon the evidence adduced at the hearing. The existence or nonexistence of these factors will dictate the ultimate sentence. You must recognize that your decision is not one of simply making objective factual findings. Rather, you are, in fact and in law, actually making the decision whether the defendant should be sentenced to life imprisonment with no possibility of release or to death. Your response, therefore, is truly of immense proportion as you are no doubt aware. Basically, if you find the state has proven the existence of an aggravant beyond a reasonable doubt and are further satisfied that the defense has failed to prove any mitigating factor by a preponderance of the evidence, then the court will impose the death penalty. If the state fails to prove an aggravating [factor] or the defense proves any mitigating factor, the court will then impose a sentence of life without the possibility of release.
“I will now explain to you in detail the process of evaluating the evidence with respect to the above-described factors.
“Now, if you find the state has failed to prove each one of the three aggravating] factors beyond a reasonable doubt, then this court, will impose the penalty of life without the possibility of release. If you find the state has proven one or more of the alleged aggravating] factors beyond a reasonable doubt, then you will go on to consider whether the defendant has proven any mitigating factor by a preponderance of the evidence as I’ve explained that phrase to you. Mitigating factors are such as do not constitute a defense or excuse for the capital felony committed by the defendant but which, in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of . . . culpability or blame for the crime or to otherwise constitute a basis for a sentence of less than death.
“Mitigating factors basically consist of two types. Number one, factors concerning the defendant’s character, background or history, and, number two, factors concerning the facts and circumstances of the crime itself. You must consider the evidence with respect to both types of mitigating factors without prejudice [toward] either. In other words, you should consider the evidence presented with an open mind as to either type of mitigating fact.
“Now, in this case, the defense claims that it has established by a prepon
* * *
“Now, the list I just read to you was a list of nonstatutory mitigating factors alleged by the defendant. With respect to these claimed nonstatutory factors, you must determine, first, whether one or more such factors have been proven by a preponderance of the evidence to exist and, second, whether using your individual judgments any such factor or factors are mitigating in fairness and mercy tend to either extenuate or reduce the degree of [the defendant’s] culpability or blame for the offense or otherwise constituted a basis for a sentence of less than death.
“Now, in determining whether the factor is mitigating, you may consider it in the context of all the facts and circumstances of the case including the nature of [the] capital felony itself and all the surrounding circumstances. Mitigation should not be considered in a vacuum. Thus, the process of determining the existence or nonexistence of mitigating factors differs from the process of determining the existence or nonexistence of aggrava[ting] factors. The state has the burden of proving the elements of one or more of the statutory aggrava[ting] factors beyond a reasonable doubt while the defense has the burden of proving the statutory mitigating factors by a preponderance of the evidence. And with respect to nonstatutory mitigating factors alleged, first, the facts constituting the alleged factor by a preponderance of the evidence, and, second, that the fact or facts proven constitute a mitigating factor as that phrase has been defined for you. So, with respect to the statutory mitigating factor, the defendant’s burden is to prove it by a preponderance of the evidence. . . . With respect to the list of factors I read to you thereafter, those are nonstatutory factors which, first, the defense has to prove they exist and, second, has to—and, second, you decide whether or not in your judgment they constitute mitigating factors once you are satisfied as to their existence.
“Furthermore, in addition to any of the statutory and nonstatutory mitigating factors claimed by the defendant, you may give mitigating force to any fact taken alone or in conjunction with any—or facts presented providing, of course, you are satisfied [as] to the existence of the fact or facts by a preponderance of the evidence and that the facts are mitigating in nature as that term has been defined for you. Furthermore, you may consider the cumulative impact of some or all of the evidence offered in mitigation as constituting the equivalent of a mitigating factor. You are bound by our law
“If you find any mitigating factor to exist, then this court will impose the penalty of life without the possibility of release. If you find any aggravant to exist and no mitigating factor to exist, the court will impose the penalty of death. If you find that no mitigation exists, you must each individually agree that no mitigating circumstance exists in the case.
* ** *
“Now, in a few minutes, the decision in this case will be in your hands. If I made any reference in my charge to the position of the state or the defendant, I assure you it’s not my intention to convey to you directly or indirectly how the court feels as to what should be the outcome of the case. The decision rests in your hands. You will apply the law as I explained it to you to the facts found by you and render your verdict. It’s not within your province to be affected by the consequences your verdict may have upon the participants in this trial or anyone else. The defendant relies on you to consider his claims, to evaluate carefully all the evidence and to render a verdict in his favor if the facts and the law require such a verdict. The state, likewise, looks to you to deal with this case fairly, firmly and honestly, and to render a verdict in its favor if the facts and the law require.”
The defendant’s request to charge provides in relevant part: “[Although you will be presented with certain factual questions for your resolution, the central task you are about to undertake is not exclusively one of fact-finding. Instead, what our law now asks you to undertake is nothing loss than exercising your own individual judgment as to what the appropriate sentence is in this case. . . .
“[T]he determination of sentence is not my job; it is your job. The legislature and the court do not and cannot control the sentencing decision you make. It is in your power to make the sentencing decision in this case according to the law I give you and it is your responsibility to do so. . . .
“While our statute guides your decision by using the concepts of aggravating and mitigating factors, you must recognize that your decision is not one of simply making objective factual findings; rather, you are, in fact and in law, actually making the awesome decision of whether the defendant should be sentenced to life imprisonment with no possibility of release or to death .... That is your function in this case and it is your responsibility. Neither I as the judge . . . nor the legislature decide the appropriate sentence for [the defendant]; you do. Your task is the serious one of determining whether the defendant should die at the hands of the state. . . .
“[T]he law does not require any juror to vote for the death penalty unless, upon your personal evaluation of the evidence, you decide that death is the appropriate penalty under all the facts and circumstances of the case. You, the jurors, ultimately must determine the punishment that is appropriate in this particular case.
* * *
“ [I] t is crucial that you understand that even in this situation the legislature
The defendant also requested the court to instruct the jury as follows: “In conclusion, it is my duty once more to remind you of the gravity of your task in this case. . . .
“The responsibility for determining the existence of the factors upon which the defendant’s liability for the imposition of the death penalty depends is exclusively yours, not mine, and indeed the responsibility for deciding whether death or life imprisonment without possibility of release should be imposed is yours, within the confines of the law I have described for you.
“Remember that in capital cases the jury is to serve as the link between contemporary community values and standards of decency and the penal system, and that no man is to be condemned to death unless his fairly selected jury unanimously agrees that he should be.”
In 1992, when the defendant committed the capital felony that is the subject of this appeal, our death penalty scheme did not permit the weighing of aggravating and mitigating factors. As we have explained previously, under the statutory scheme applicable to the present case, a capital defendant cannot be sentenced to death if the capital sentences (1) does not find the existence of an aggravating factor; or (2) finds the existence of a mitigating factor. Only if the jury finds one or more aggravating factors and no mitigating factors will the defendant be sentenced to death. State v. Ross, supra, 230 Conn. 237-38. In 1995, the legislature amended our death penalty statutory scheme to permit the sentencer to weigh the aggravating factors against the mitigating factors. Public Acts 1995, No. 95-19, § 1; see General Statutes (Rev. to 2003) § 53a-46a (f) (“[i]f the jury or, if there is no jury, the
Indeed, the defendant does not cite to any such statutory provision.
We note, however, that the relevant statutory provisions do not expressly prohibit a bifurcated penalty phase hearing.
The defendant submitted the following list of alleged mitigating factors:
“1. At the time of the offense, [the defendant’s] ability to conform his conduct to the requirements of law was significantly impaired, as the result of his diagnosis of Antisocial Personality Disorder, and that such impairment constitutes a statutory mitigating factor pursuant to Connecticut law.
“2. At the time of the offense, [the defendant’s] ability to conform his conduct to the requirements of law was impaired, so as to constitute a [nonstatutory] mitigating factor.
“3. [The defendant] was taken from New York to Jamaica to live with his ‘grandparents’ when he was six weeks old and, as a result, neither he nor his parents were able to participate in the ‘bonding’ that is essential during the early phases of healthy child development.
“4. [The defendant] was a quiet and well-behaved child while being raised in a healthy and nurturing environment by his ‘grandparents’ in Jamaica.
“5. As the ‘baby’ of the family in Jamaica, [the defendant] was the favored child of his ‘grandmother’ and received the kind of parental attention necessary to a child’s healthy development.
“6. [The defendant’s] ‘grandfather’ was loving and kind to [the defendant] . . . and contributed to [the defendant’s] healthy development in Jamaica.
“7. [The defendant’s] ‘grandfather’ was killed in a car accident when [the defendant] was approximately six years old, an event which was akin to losing one’s own father at that age since his ‘grandfather’ was the primary male figure in [the defendant’s] life at the time.
“8. [The defendant’s] only contact with his parents prior to coming to New York was during visits which included intimidation and humiliation by his father.
“9. [The defendant’s] misbehavior and legal problems only began after he left Jamaica and his ‘grandmother, ’ who had served as his mother in Jamaica, and was sent to live with his parents in New York when he was approximately eight years old.
“10. [The defendant] became the middle [child] of five children when he was brought to New York.
“11. [The defendant’s] parents worked the 4 p.m. to 11 p.m. shift plus second jobs and overtime throughout [the defendant’s] childhood.
“12. [The defendant’s] thirteen year old sister was responsible for all the children when their parents were at work during the afternoon and evening hours.
“13. [The defendant’s] family was the first black family in their neighborhood in New York.
“14. [The defendant] and his brothers and sisters were home alone when racially motivated attacks were directed at them.
“15. [The defendant’s] Jamaican dialect caused him language problems when he entered public school in New York City.
“16. [The defendant’s] father beat him severely and frequently.
“17. [The defendant’s] father fashioned rubber objects at work to beat
“18. [The defendant’s] father used household objects such as a plastic baseball bat, a hammer and a [two by four] during beatings.
“19. [The defendant’s] father would lock [the defendant] in the basement and beat him until he was too tired to beat [the defendant] anymore.
“20. [The defendant’s] efforts to do better in school such as his graduation from elementary school were ignored.
“21. [The defendant’s] parents offered no praise or reward for positive behavior.
“22. [The defendant’s] father began throwing [the defendant] out of the house when [the defendant] was twelve years old.
“23. [The defendant] would live with friends or sleep in the park when his father 1hrew him out.
“24. [The defendant’s] father threw his mattress out the front door into the rain.
“25. When evicted by his father, [the defendant] could only return home to shower or eat when his father was not home.
“26. [The defendant’s] ‘grandmother,’ mother, [sister] Jackie, and other siblings disagreed with his father’s treatment of [the defendant] but were unable to stop the father’s mistreatment, beatings and evictions.
“27. The discovery that [the defendant’s] ‘grandmother’ was not his mother’s biological mother caused [the defendant] great confusion at a time when he was already experiencing profound problems at home.
“28. [The defendant’s] 'grandmother’ left the family home after this ‘discovery’ because of health problems, the pregnancy [of] [the defendant’s] aunt and disagreements with [the defendant’s] father on how to raise the boys.
“29. [The defendant] was not allowed to live regularly at his [parents’] home after the age of [fourteen],
“30. [The defendant’s] ‘grandmother’ died when [the defendant] was [fifteen] years old.
“31. [The defendant] was first arrested on January 4, 1984.
“32. [The defendant’s] behavior improved greatly when he was removed from his [parents’] custody and placed in a structured environment at [a] Youth Center.
“33. [The defendant] won a Black History Essay Contest and school awards while at [the] Youth Center.
“34. [The defendant’s] misbehavior and legal problems resumed when he returned home after being at [the] Youth Center.
“35. [The defendant] agreed to enter [a] religious school and his academic performance again improved greatly, although there were also reports of various behavioral problems.
“36. [The defendant’s] parents refused to allow him to five at home when he left [the religious school].
“37. [The defendant’s] father did not answer . . . letters [that the defendant had sent to him while the defendant was attending religious school]
“38. [The defendant] repeatedly told Karen Smith ‘I’m sorry, I’m sorry, I’m sorry . . . ’ immediately after shooting Officer Williams.
“39. [The defendant] admitted shooting . . . Williams immediately after Inspector Maia and Detective Keegan appealed to his conscience and told him to . . . [get it off Ms chest],
“40. That, because of considerations of fairness, the existence of the alleged aggravating factor mvolving the attempted sale of cocaine on December 18, 1992, if proven beyond a reasonable doubt, does not constitute a sufficient basis for [the defendant’s] execution in light of the fact that neither Anthony Crawford, Robert ‘Po’ Bryant, nor . . . Smith were ever prosecuted for attempting to sell, possess, or Mde the same drugs from the police.”
The defendant also alleged the following mitigating factor: “41. That, because of considerations of fairness, the existence of the alleged aggravating factor of creating a grave risk of death, if proven beyond a reasonable doubt, does not constitute a sufficient basis for [the defendant’s] execution m light of the fact that the person said to be at risk . . . Crawford, has stated that he was himself an accomplice to the alleged attempted sale of drugs wMch preceded the shooting.” Because the jury rejected the state’s claim regarding the existence of the aggravating factor to wMch this mitigatmg factor relates, this particular mitigating factor is not at issue in tins appeal.
See footnote 4 of this opirnon for the text of § 53a-46a (d).
The special verdict form provides in relevant part:
“SPECIAL VERDICT FORM
❖ * *
“MITIGATING FACTORS (Only to be considered if one or more aggravating factors have been proven beyond a reasonable doubt)
“Do you unanimously agree that there exists any mitigating factor concerning the character, background, or history of the defendant... or the nature and circumstances of the offense?
“ Yes, we the jury unanimously agree that there does exist a mitigating factor concerning the character, background, or history of the defendant ... or the nature and circumstances of the offense.
*138 :}; í¡í ijt
“ No . we the jury unanimously agree that no mitigating factor exists concerning the character, background, or history of the defendant ... or the nature and circumstances of the offense.”
The jurors were instructed to render a verdict by placing a checkmark on the appropriate line and to sign their names under the answer in the space provided.
It is important to note, however, that our statement in Breton II, supra, 235 Conn. 254-55, was not founded on constitutional principles but, rather, on sound policy considerations. Moreover, we did not release our decision in Breton II until after the trial in the present case had been concluded. Accordingly, the principle that we announced in Breton II regarding the necessity of giving a jury a written list of mitigating factors is not applicable to the present case.
The defendant claims that the court’s instruction was inadequate because its language was permissive rather than mandatory. Specifically, the defendant contends that the instruction allowed the jury to consider the cumulative effect of the mitigating evidence, whereas he was entitled to an instruction requiring the jury to do so. We disagree with the defendant’s interpretation of the court’s instruction. The instruction did not give the jury the option to consider the cumulative weight of the mitigating evidence, as the defendant contends. Rather, the court informed the jury that it was to treat the “cumulative impact” of the mitigating evidence as it would have treated any other claimed mitigating factor. In other words, the instruction did not advise the jury to decide whether to consider the cumulative effect of the mitigating evidence but, rather, directed the jury to determine whether it considered the cumulative effect of the evidence to be sufficiently mitigating so as to constitute a mitigating factor.
The defendant requested the court to instruct the jury in relevant part: “[These] mitigating factors refer to any other factor in the circumstances of the case or in the defendant’s character, history or background that a juror or jurors considers [sic] mitigating but which has not specifically [been] included on the written list prepared by the defense.
“Although you might be tempted to overlook these factors, you are instructed that you should not do so. These are very important factors. . . . In [your] position as the judges of the appropriate sentence, you must look at everything and consider everything. . . . [Y]ou as individuals or as a group, may perceive other factors of a mitigating nature that have not been expressly listed by the defendant’s counsel. You are obligated by our law to consider those factors and any other factors that occur to you even if they are not on this list.”
The defendant also requested the following jury instruction: “[Although you will be presented with certain factual questions for your resolution, the central task you are about to undertake is not exclusively one of fact-finding. Instead, what our law now asks you to undertake is nothing less than exercising your own individual judgment as to what the appropriate sentence is in this case. . . .
* ** *
“It is your responsibility to return special verdicts with regard to aggravating factors and mitigating factors. While our statute guides your decision by using the concepts of aggravating and mitigating factors, you must recognize that your decision is not one of simply making objective factual findings; rather, you are, in fact and in law, actually making the awesome decision of whether the defendant should be sentenced to life imprisonment with no possibility of release or to death .... Neither I as the judge, nor the legislature decide[s] the appropriate sentence for [the defendant]; you do.
“You, the jurors, ultimately must determine the punishment that is appropriate in this particular case. . . .
“If you are not convinced that death is the appropriate sentence, you can find a non-statutoiy mitigating factor on that basis alone.”
In Golding, we held “that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.
Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” As we recently have reiterated, however, “[p]lain error review is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . [Thus, a] defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest nvjustice.” (Citation omitted; internal quotation marks omitted.) State v. Whipper, 258 Conn. 229, 279-80, 780 A.2d 53 (2001).
See footnote 4 of this opinion for the text of § 53a-46a (d).
Thg defendant filed a motion in limine seeking to preclude the state’s use of the challenged evidence during the penalty phase hearing. The trial court denied the defendant’s motion.
We therefore need not address the issue of whether the challenged evidence was relevant to one or more of the state’s proposed aggravating factors.
See footnote 4 of this opinion for the text of § 53a-46a (h) (1).
The comments to which the defendant refers appeared in an article in the April 24,1995 edition of the Connecticut Law Tribune entitled “Weighing Death.” E. Song, “Weighing Death,” 21 Conn. L. Trib., April 24, 1995, pp. 1, 20-21.
General Statutes § 53a-46b (b) provides in relevant part: “The Supreme Court shall affirm the sentence of death unless it determines that: (1) The sentence was the product of passion, prejudice or any other arbitrary factor . . . .”
Although subsection (b) of § 53a-46b was amended in 1995; see Public Acts 1995, Nos. 95-16, § 3, and 95-19, § 3, those amendments did not modify the text of subdivision (1) of that subsection. Thus, we refer to the current revision of § 53a-46b (b) (1) for ease of reference.
In fact, the state maintains that a review of the Connecticut Law Tribune article containing the purported comments; see footnote 133 of this opinion; clearly indicates, contrary to the defendant’s claim, that the jurors properly applied the law as instructed. We agree with the state that the comments attributed to the jurors do not, on their face, support the defendant’s contention of juror impropriety. Nevertheless, the defendant is free to bring his claim in the appropriate forum.
The defendant suggests that this hearing would be akin to a hearing in probable cause. See generally General Statutes § 54-46a.
We note that, prior to the penalty phase hearing, the defendant moved for the imposition of a sentence of life without the possibility of release on the ground that there was insufficient evidence to establish any of the three aggravating factors alleged by the state. In connection with that motion, the defendant urged the panel to afford the defendant a hearing, in the exercise of its “inherent jurisdiction and authority,” so that he could prove his claim of evidentiary insufficiency. The panel denied his motion without a hearing. The defendant does not challenge in this appeal the denial of his request for a hearing but, rather, contends that this court should require such hearings in future capital prosecutions in light of what he characterizes as “the tendency of this issue to escape appellate review.”
We note that we recently have rejected the contention that death-qualified jurors generally are more likely to convict than nondeath qualified jurors. State v. Griffin, supra, 251 Conn. 703-707.
The defendant, however, fails to account for the time that necessarily would be expended in conducting such hearings, which, undoubtedly, would be requested in most, if not all, death penalty cases.
Of course, a capital defendant already is statutorily entitled to a probable cause hearing with respect to the sufficiency of evidence supporting the state’s decision to charge the defendant with a capital felony. See generally General Statutes § 54-46a.
On occasions when the defendant did object to the alleged misconduct of the state’s attorney, we note that objection in our discussion of the defendant’s claim.
See footnote 127 of this opinion. The defendant’s prosecutorial misconduct claim is reviewable under Golding because the record is adequate for our review and the defendant alleges a violation of constitutional magnitude.
See footnote 128 of this opinion for the relevant text of Practice Book § 60-5, which sets forth the plain error doctrine. We reiterate that plain error review “is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . [Thus, a] defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Citation omitted; internal quotation marks omitted.) State v. Whipper, 258 Conn. 229, 279-80, 780 A.2d 53 (2001).
We may review a claim of prosecutorial misconduct under our inherent supervisory authority over the administration of justice even though the alleged impropriety does not rise to the level of a constitutional violation.
We note that the defendant also asserts that he is entitled to review of his claim under the so-called “special capital reviewability rule.” We previously have refused to adopt such a rule, however, concluding that our authority under State v. Golding, supra, 213 Conn. 239-40, the plain error doctrine and our inherent supervisory authority over the administration of justice, is “capacious enough to rectify any constitutional or nonconstitutional trial court errors that affect the outcome of a criminal case, capital or otherwise, and that, under those doctrines, require the reversal of the judgment.” Cobb II, supra, 251 Conn. 343-44 n.34. The defendant has failed to articulate any reason why we should adopt a rule of “special capital reviewability” in file present case and, consequently, we decline to do so.
It is undisput ed that a number of venirepersons from those panels ultimately were chosen to serve as jurors.
The defendant objected to the question on relevancy grounds. The trial court overruled the objection, and McLaughlan testified that he did not recall the name of Williams’ wife. McLaughlan was able to do so, however, after reviewing a document that had been prepared by the ambulance attendants and that already had been introduced as an exhibit by the defendant.
The defendant was bom in the United States, but was sent to Jamaica, along with his sister, to live with an elderly couple who the defendant believed to be his grandparents. The defendant learned many years later that they were not his grandparents, but we refer to them as the defendant’s grandparents for ease of reference. The defendant, who resided with his grandparents in Jamaica until he was approximately nine years old, was particularly close to his grandfather, who died when the defendant was approximately seven years old.
The defendant’s sister acknowledged, in response to the questions of the state’s attorney, that it is traumatic to lose a parent at a young age and that it is difficult being a single parent.
Collins responded that he was not aware of the circumstances surrounding Williams’ death.
The trial court overruled several objections made by the defendant in connection with this line of questioning. Collins thereafter suggested that, although there were parallels between the losses suffered by the two families,
Collins testified that the defendant denied having killed Williams.
por example, the state’s attorney argued: “Here’s a man, [Williams] a thirty-four year old man, a police officer who knows he’s just been shot in the head, lying there defenseless, by himself, and what does he hear while he’s lying there dying? More gunshots being fired at him. If that is not psychological pain, what is? And I don’t care if . . . Williams was conscious for five minutes, for ten minutes or for three minutes. He knew he was being shot at. He knew he was helpless. He knew he was going to die one week before Christmas. . . .” (Emphasis added.) The state’s attorney’s two other references to Christmas were of similar tone and import.
See footnote 4 of this opinion for the text of § 53a-46a (h) (4); see also part III B 1 of this opinion (discussing construction of the phrase “in an especially heinous, cruel or depraved manner” found in § 53a-46a [h] [4]).
The defendant challenges the propriety of this argument only insofar as it refers to Williams’ wife and family. The defendant does not claim that the remarks of the state’s attorney about the differences between real life and the movies otherwise was improper.
The defendant also claims that the introduction of the autopsy photographs into evidence was so prejudicial as to require a new penalty phase hearing. We address and reject this claim in part III B 2 of this opinion.
See footnote 4 of this opinion for the text of § 53a-46a (d).
In accordance with General Statutes (Rev. to 1991) § 53a-46a (f) and (g), a defendant must be sentenced to life imprisonment without the possibility of release as opposed to death if the fact finder finds 1he existence of a mitigating factor.
We also agree with the state that the fact that Williams had a wife and children was relevant to the nature and extent of his mental pain and suffering for the purpose of establishing the existence of the aggravating factor enumerated in § 53a-46a (h) (4).
In Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987), and South Carolina v. Gathers, 490 U.S. 805, 109 S. Ct. 2207, 104 L. Ed. 2d 876 (1989), the court previously had concluded that the eighth amendment bars victim impact evidence in capital cases. Payne overruled Booth and Gathers. Payne v. Tennessee, supra, 501 U.S. 830.
We note that the defendant did not address this argument by the state either in his initial brief to this court or in his reply brief.
We note, moreover, that prior to the closing arguments of counsel, the trial court instructed the jury that counsel’s “comments and their arguments do not constitute evidence in the case. ” At the conclusion of those arguments, the court again reminded the jury that “[t]he arguments and statements by the lawyers do not constitute evidence in the case.” The court further instructed the jury: “You are the sole judges of the facts. It’s your duty to find the facts. You are to recollect and weigh the evidence and form your own conclusions as to what those ultimate facts are. You may not go outside the evidence to find the facts. This means you may not resort to guesswork, conjecture, or suspicion and you must not be influenced by any personal likes, dislikes, opinions or prejudices.”
In addition, we note that, “[b]ecause the jury is empowered to exercise its discretion in determining punishment, it is wrong for the prosecutor to undermine that discretion by implying that he, or another high authority, has already made the careful decision required. This kind of abuse unfairly plays upon the jury’s susceptibility to credit the prosecutor’s viewpoint.” Brooks v. Kemp, 762 F.2d 1383, 1410 (11th Cir. 1985).
When interviewed by the police after the shooting, the defendant initially told them that his name was David Robinson.
The defendant relies primarily on State v. Rose, 112 N.J. 454, 548 A.2d 1058 (1988), to support his claim of impropriety. In Rose, the prosecutor had argued to the jury: “ [ W]hat you do here today is going to send a message. Everybody that lives in this [cjounty, everybody that lives in this [s]tate and you’re going to send a message and you’re going to say that the law is in place; we live by these laws; fortunately, some people die by these laws.” (Internal quotation marks omitted.) Id., 520. The prosecutor thereafter stated that the jury “must send a message out to everybody outside in this community, in this county, if you’re going to do what he did, remember, think about it ... . Let them know out there what happens if you’re going to do it. Let them know that the penalty has to be paid for the ultimate crime. Maybe they’ll think twice. Maybe they’ll think twice before they even go buy the damn gun and practice with it and threaten others with it.” (Internal quotation marks omitted.) Id. The court in Rose concluded that such statements improperly “focused the jury’s attention on matters extraneous to the aggravating and mitigating factors .... [Furthermore] [t]he emotional force of the prosecutor’s arguments posed a significant risk that the jury would be
Although we acknowledge that the argument of the state’s attorney on this point was not a model of clarity, we are not persuaded that the jury was likely to have understood it as the defendant contends. See Donnelly v. DeChristoforo, supra, 416 U.S. 646-47 (“[C]losing arguments of counsel ... are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through [a] lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.”).
See footnote 4 of this opinion for the text of § 53a-46a (g) (2).
Consistent with our rules of practice; see Practice Book, 1978-1997, § 879, now Practice Book § 42-37; the trial court placed reasonable limits on the time that the state’s attorney and defense counsel were permitted to argue to the jury.
The investigating officers arrived at Smith’s apartment at approximately 7:30 a.m. on December 18.
Collins also testified, however, that the defendant’s comment to Smith after the shooting that he was sorry for what he had done seemed to constitute remorse for his conduct. Collins also noted that the defendant’s admission to the police suggested that the defendant was attempting to take responsibility for his actions.
By the time of trial, Keegan had left the Waterbury police department and was serving as an inspector for the office of the state’s attorney in the judicial district of Waterbury.
We presume that the use of the word “they” refers to the defendant and defense counsel.
See footnote 4 of this opinion for the text of § 53a-46a (c).
Henry, a psychologist, had testified for the defense that the defendant’s father, Cleveland Reynolds, was a very strict disciplinarian who regularly assaulted the defendant physically. Henry testified that, although Cleveland Reynolds’ purpose in meting out such severe punishment was to motivate the defendant rather than to harm him, it did not have its intended effect but, rather, seriously scarred the defendant emotionally.
Subsequent to the trial in the present case, this court, in State v. Malave, supra, 250 Conn. 738, abandoned the Secondino rule in criminal cases.
Furthermore, the evidence clearly established that the relationship between the defendant and his father was not a good one. Under the circumstances, therefore, it is highly likely that the jury would not have expected the defendant to call his father as a witness, notwithstanding any possible suggestion to the contrary. Consequently, there is no reasonable likelihood that the comments of the state’s attorney prejudiced the defendant.
We note that defense counsel also expressed Ms personal opinions in the first person during Ms closing argument. For example, during Ms first argument to the jury, defense counsel stated: “So when I put things on like the fact that the defendant was [a] middle child in New York, I think that is mi important, fact and I’ll talk more about the defendant’s life when I come back on my second half and I’ll explain why I think that’s an import,ant fact.” (Emphasis added.) In addition, during his final argument to the jury, defense counsel stated: “The person who does that stuff for the fun of it is the one that deserves to be executed and there is simply no evidence whatsoever that that was the intent in firing back at the officer. And I da'll’t think it was.” (Emphasis added.)
We note that the trial court also had informed the jury immediately prior to closing arguments that closing arguments are not evidence.
Crawford stated that he left the halfway house and traveled to North Carolina to be with his family and to avoid having to testify against the defendant.
Although Crawford stated that he was not aware of any agreement with the state in connection with the nolle of the escape charges, Crawford could not explain why those charges had been nolled.
Crawford testified that he was acquitted of the hindering prosecution charge.
We also note that the state’s attorney commenced his closing argument by advising the jury that its recollection of the facts, and not counsels’ comments on the evidence, is controlling. See part IV B 1 of this opinion. Although this kind of prefatory statement cannot legitimize otherwise improper argument, it has some bearing on the extent to which the improper remarles are deemed to be harmful. State v. Singh, supra, 259 Conn. 715.
Although we necessarily have analyzed each of the defendant’s claims of prosecutorial misconduct separately, we are mindful that we must determine whether the “totality of the improprieties leads to the conclusion that the defendant was deprived of a fair trial.” State v. Singh, supra, 259 Conn. 728 (Borden, J., concurring and dissenting). We are not persuaded that the improprieties in the present case, considered in combination, rendered the defendant’s penalty phase hearing fundamentally unfair.
We reject the defendant’s claim of plain error for essentially the same reasons that we reject his due process claim.
The dissent does not conclude that the improprieties deprived the defendant of a fair trial. Rather, the dissent contends that we should reverse the defendant’s conviction in the exercise of our supervisory authority over the administration of justice. In support of this contention, the dissent asserts that the state’s attorney who committed the prosecutorial improprieties in the present case “is not new to findings of prosecutorial misconduct. . . .” Contrary to the suggestion of the dissent, however, that state’s attorney heretofore has not been found to have engaged in any prosecutorial impropriety that warranted reversal of a conviction either as a matter of due process or under the exercise of this court’s supervisory power. Indeed, the defendant does not suggest that the conduct of the state’s attorney in other cases constitutes a basis to vacate the death sentence in the present case. Furthermore, we are aware of only one case prosecuted by the office of the state’s attorney during this state’s attorney’s tenure of approximately seventeen years in that position that was reversed on the ground of prosecutorial misconduct; State v. Mills, 57 Conn. App. 202, 748 A.2d 818, cert. denied, 253 Conn. 914, 754 A.2d 163 (2000); and the assistant state’s attorney who engaged in that misconduct is no longer employed as a state’s attorney. Therefore, we disagree with the dissent’s statement that “nothing short of
defendant sought to transfer the case to a judicial district other than the judicial district of Waterbury for the guilt phase of the case and, if found guilty of the capital murder charge, for the penalty phase hearing as well. Although the trial court denied the defendant’s motion for a change of venue prior to the guilt phase, the defendant again filed a motion for a change of venue for the penalty phase hearing after the panel had found him guilty of capital murder. Unless otherwise indicated, references to the defendant’s motion for a change of venue are to the motion that the defendant filed prior to the guilt phase of the case.
The court also noted that the defendant had not claimed that the television coverage of the case was either so prejudicial or extensive as to constitute a major factor in the court’s decision whether to grant the defendant’s motion for a change of venue.
The court stated: “The key concern for . . . consideration in this case is whether or not there is a sufficient pool of Waterbury area residents who are able to set aside whatever awareness or feelings about the case, or emotions regarding the family they may have . . . accord this defendant the presumption of innocence, and judge this case only on the evidence they hear or see in the courtroom. . . .
“The . . . survey does not lend itself to thought provoking analysis and response. It is as superficial a method of dealing with complicated issues
The defendant claims that the trial court improperly “concentrated on the issue of whether the defendant could receive a fair trial on the issue of guilt." (Emphasis in original.) We reject this contention because the defendant has failed to identify anything in the record or in the court’s memorandum of decision, and we are not aware of anything, to substantiate his claim.
The state did not object to the defendant’s request.
In addressing the defendant concerning his decision to entertain the idea of electing a trial by a three judge panel, the court stated in relevant part: “[I]nasmuch as it has been indicated that the reason lor this contemplat[ed] [change of election] is the court’s decision with respect to the change of venue issue, the court did, in fact, deny the change of venue, but. . . denied [it] without prejudice. This court has every intention of seeing to it . . . that you receive, number one, a fair panel, that is, a fair panel of jurors and a fair trial. And that’s going to be whether it’s here in Waterbury or whether it’s somewhere else. The court, after reviewing all the evidence including the surveys and everything else, indicated that it believes . . . that you can receive a fair trial in Waterbury. But I’m waiting—I’m willing to wait and see. Certainly, it’s been established that there’s a high degree of awareness [of the case among people residing in the judicial district of Waterbury]. And there’s a high degree of concern about the death penalty and these are issues that can all be taken up during the course of the voir dire procedure.”
After explaining the voir dire process and the opportunity (hat defense counsel would have to question prospective jurors during that process, the court continued: “The motion for change of venue was denied without prejudice. That means it’s still an open question. This voir dire proceeding means a lot to the court in terms of whether or not this case will proceed in Waterbury. I’m going to watch very carefully. Number one, if we can’t have a fair panel [in] Waterbury, this case will be moved. If the process will be so prolonged that it becomes ridiculous to continue seeking jurors to sit on this case [in] Waterbury, the case will be moved ... to another area. So, I want it clear before you make any decision simply based on the denial of the motion for change of venue what the court’s ruling is.”
In support of his claim that the trial court improperly denied his motion for a change of venue, the defendant refers to the decision of the three judge panel to grant his motion for a change of venue in connection with
“Media accounts relative to the police version, arrests, background of the suspects and courtroom proceedings before and during the trial of the guilt phase were straightforward, factual and not inflammatory or sensationalized. . . . Unfortunately, the gist of the media publicity subsequent to the [panel’s finding of] guilty . . . has been inflammatory, fomenting a virtual cry to battle to see that [the defendant] receives the death sentence. News accounts offered little perspective into the legal and factual issues which must be considered before the imposition of the death penalty.” The panel also referred to the upcoming second anniversary of . . . Williams’ death as a likely source of prejudicial publicity, as well as the continued activities of the Williams Petition Campaign for Justice, which had held fundraisers, circulated petitions and encouraged people to wear ribbons and T-shirts to urge support for the strengthening of Connecticut’s death penalty statutes. Finally, jury selection for the penalty phase hearing was scheduled to commence soon after the completion of the guilt phase and its attendant publicity; indeed, jury selection for the penalty phase hearing commenced less than three months after the conclusion of the guilt phase. Thus, in view of the publicity generated from the panel’s finding of guilty, the panel was required to consider the defendant’s second motion for a change of venue in a factual context entirely different from the factual context in which the
Article first, § 1, of the constitution of Connecticut provides: “All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”
Article first, §8, of the constitution of Connecticut provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger.”
See footnote 35 of this opinion for the text of article first, § 9, of the constitution of Connecticut.
Article first, §20, of the constitution of Connecticut provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin.”
We previously have concluded that the infliction of cruel and unusual punishment is prohibited by the due process clauses of article first, §§ 8 and 9, of the state constitution. State v. Ross, supra, 230 Conn. 246.
General Statutes (Rev. to 1991) § 53a-46b, as amended by Public Acts 1992, No. 92-260, § 23, provides: “(a) Any sentence of death imposed in accordance with the provisions of section 53a-46a shall be reviewed by the supreme court pursuant to its rules. In addition to its authority to correct errors at trial, the supreme court shall either affirm the sentence of death or vacate said sentence and remand for imposition of a sentence in accordance with subdivision (1) of section 53a-35a.
“(b) The supreme court shall affirm the sentence of death unless it determines that: (1) The sentence was the product of passion, prejudice or any other arbitrary factor; (2) the evidence fails to support the finding of an aggravating factor specified in subsection (h) of section 53a-46a; or (3) the sentence is excessive or disproportionate to the penalty imposed in similar
“(c) The sentence review shall be in addition to direct appeal and, if an appeal is taken, the review and appeal shall be consolidated for consideration. The court shall then render its decision on the legal errors claimed and the validity of the sentence.”
These data are the same data that Sedrick Cobb relied on in support of his claim that his death sentence should have been vacated on the ground that the death penalty is imposed in a racially arbitrary and discriminatory manner in Connecticut. Cobb I, supra, 234 Conn. 738-39 n.4. For purposes of the present case, Cobb’s claim and the defendant’s claim are similar in all material respects. Indeed, the defendant expressly represented in his motion for a hearing to present evidence in support of his motion for the imposition of a life sentence that the hearing “could be held in conjunction with” any hearing ultimately conducted in connection with Cobb’s claim. As we stated in Cobb I in explaining the data: “According to [Cobb], his preliminary data show that: (1) since 1973, prosecutors have charged a capital felony pursuant to General Statutes § 53a-54b in seventy-four cases, of which only eleven, or 15 percent, have involved the minder of a victim who was black, even though 40 percent of all murder victims in the state during that same time period were black; (2) since 1973, although there have been eighteen capital prosecutions for murder committed during the course of kidnapping, none was prosecuted where the victim was black; (3) during the same period, there have been twelve capital prosecutions for murder committed in the course of a sexual assault, and only one involved the murder of a black victim; (4) since 1973, twenty-eight cases have resulted in a conviction of capital felony, by verdict or plea, and eighteen of those twenty-eight have proceeded to a hearing on the imposition of the death penalty. Of the twenty-eight capital felony convictions, only four, or 14 percent, have involved the murder of a victim who was black, and of the
Defense counsel informed the trial court, that preparation for the hearing “most likely [would take] four to six months . . . .”
Cobb presented his claim directly to this court under § 53a-46b (b) (3) and, therefore, had not created an adequate factual record in the trial court. Cobb I, supra, 234 Conn. 741. Consequently, we determined that Cobb would have been ineligible to proceed with his claim under § 53a-46b (b) (1). See id., 762. We nevertheless sanctioned Cobb’s use of a postappeal habeas corpus petition as a means of pressing his claim. Id., 762-63. We thereafter reaffirmed Cobb’s conviction in Cobb II, supra, 251 Conn. 521.
We underscore the fact that the trial court in the present case did not have the benefit of our decision in Cobb I when it denied the defendant’s request for an evidentiary hearing in connection with his claim.
Although we concluded in Cobb I that claims that call into question the manner in which the state’s death penalty statute is implemented are to be developed in the trial court and subject to an evidentiary hearing; see Cobb I, supra, 234 Conn. 762; we did not suggest or otherwise intimate that a court would be bound to postpone sentencing indefinitely, or for an unreasonably long period of time, in order to allow a capital defendant to obtain and analyze the necessary data prior to the imposition of sentence.
Although the defendant properly sought an evidentiary hearing on Ms claim in the trial court, we also have concluded that the postponement he sought simply was not reasonaMe. Under ordinary circumstances, such a procedural default might serve to bar Mm from raising Ms claim m a habeas proceeding. Cf. Cobb I, supra, 234 Conn. 763. In any event, tMs is not such a case. The uncertain state of the law when the defendant sought an evidentiary hearing, the difficult and time-consuming nature of the task of obtaining and evaluating the necessary data, and “the nature of the defendant’s claim of systemic racial bias, [as well as] the seriousness and finality of the death penalty, [all] counsel against raising any undue procedural barriers to review of such a claim.” Id.
See footnote 201 of this opimon.
Indeed, as we previously have indicated; see footnote 199 of this opinion; the defendant suggested, in his motion for a hearing to present evidence in support of his claim, that the hearing could be held in conjunction with any hearing ultimately conducted in regard to Cobb’s claim.
We do not intimate, however, whether any particular defendant or the state would be barred from litigating a claim of this nature in the consolidated habeas proceeding that we contemplate when that defendant desires to present a different variation of the claim or when the state has a different variation of its response to the defendant’s claim. Those will be discretionary matters of case management for both former Chief Justice Callahan and the habeas judge to resolve.
As we concluded previously in this opinion; see part III B 1 of this opinion; the evidence adduced at the penalty phase hearing was insufficient to support the jury’s finding regarding the existence of the aggravating factor enumerated in § 53a-46a (It) (4). To this extent, therefore, the defendant is entitled to prevail on his claim under § 53a-46b (b) (2).
This claim presupposes that the jurors unanimously have found that the state has proven the existence of at least one aggravating factor beyond a reasonable doubt.
At the time of the defendant’s trial, and in April, 1995, when the trial court rendered judgment sentencing the defendant to death, electrocution was the statutorily prescribed method of execution in this state. See General Statutes (Rev. to 1995) § 54-100 (“[t]he method of inflicting the punishment of death shall be by electrocution”); accord General Statutes (Rev. to 1993) § 54-100. After the defendant had been sentenced, however, legislation requiring that all executions that are carried out on or after October 1,1995, be accomplished by lethal injection, became effective. Public Acts 1995, No.
Section 53a-46b (b) provides two other grounds, in addition to disproportionality, for vacating a sentence of death. See General Statutes (Rev.
hi 1995, the legislature eliminated proportionality review by repealing § 53a-46b (b) (3). Public Acts 1995, No. 95-16, § 3 (P.A, 95-16). Prior to the filing of the briefs in the present case, the state moved to dismiss proportionality review, claiming that the repeal of § 53a-46b (b) (3) deprived this court of jurisdiction to undertake proportionality review in the present case even though the defendant had committed the capital felony in 1992, well before the passage of P.A. 95-16, § 3. We denied the state’s motion, adhering to our previous determination in Cobb II, supra, 251 Conn. 502, and Webb I, supra, 238 Conn. 491 n.71, that proportionality review remains available in all capital felony cases pending on April 12, 1995, the date on which P.A. 95-16, § 3, became effective. P.A. 95-16, § 5.
In Webb I, supra, 238 Conn. 389, we explained that comparative proportionality review can be performed in one of two ways: the frequency method, pursuant to which a reviewing court “uses a complicated method of statistical analysis that purports to quantify, with something like mathematical precision, the various factors leading to the imposition, or nonimposition, of the death penalty, and the frequency with which the death penalty is imposed in certain circumstances”; id., 511; and the precedent seeking approach, pursuant to which a reviewing court “compares the case before it to other cases in which defendants were convicted of the same or similar crimes, by examining the facts of the crimes, the defendants, and the aggravating and mitigating factors involved.” Id., 511-12. We concluded in Webb I that “our statute contemplates the precedent seeking method of comparative proportionality review.” Id., 513; see also Cobb I, supra, 234 Conn. 741 (proportionality review does not contemplate detailed statistical analysis of pool of comparable cases). Thereafter, in Cobb II, supra, 251 Conn. 506, we reaffirmed our adherence to the precedent seeking approach to comparative proportionality review. The defendant urges us to reconsider, once again, our use of the precedent seeking mode of analysis. We decline to do so because we are satisfied that that method is the correct one.
We note that neither the state nor the defendant has the burden of persuasion on the ultimate issue of disproportionality under § 53a-46b (b) (3). See Webb I, supra, 238 Conn. 508.
Practice Book § 67-6 provides: “(a) When a sentence of death has been imposed upon a defendant, following a conviction of a capital felony in violation of General Statutes § 53a-54b and the hearing upon imposition of the death penalty pursuant to General Statutes § 53a-46a, the briefs of the parties shall include a discussion of the issues set forth in General Statutes § 53a-46b (b), to wit, whether (1) the sentence was the product of passion, prejudice or any other arbitrary factor; (2) the evidence fails to support the finding of an aggravating circumstance specified in subsection (h) of § 53a-46a; and (3) the sentence is excessive or disproportionate to the penally imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.
“(b) For the purpose of reviewing the issue of disproportionality pursuant to General Statutes § 53a-46b (b), the briefs of the parties shall contain appendices setting forth the circumstances of the crimes that are claimed to be similar to that of which the defendant has been convicted and the characters and records of the defendants involved therein so far as these are ascertainable from the transcripts of those trials and hearings on the imposition of the death penalty or may be judicially noticed. Only those capital felony cases that have been prosecuted in this state after October 1, 1973, and in which hearings on the imposition of the death penally have taken place, whether or not the death penally has been imposed, shall be deemed eligible for consideration as ‘similar cases,’ unless the court, on application of a party claiming that the resulting pool of eligible cases is inadequate for disproportionality review, shall modify this limitation in a particular case. Any such application shall identify the additional case or cases claimed to be similar and set forth, in addition to the circumstances of the crime and the character and record of the defendant involved, the provisions of the applicable statutes pertaining to the imposition of the death penalty with citations of pertinent decisions interpreting such provisions.
“Any such application shall be filed within thirty days after the delivery date of the transcript ordered by the appellant, or, if no transcript is required or the transcript has been received by the appellant prior to the filing of the appeal, such application shall be filed within thirty days after filing the appeal.”
The text of Practice Book § 67-6, with the exception of some technical alterations, was adopted in 1990, and appeared in Practice Book, 1978-97, § 4Ó66A. Section 4066A effectively was transferred to Practice Book, 1978-97, § 4064E, in 1996. In 1998, § 4064E was transferred to Practice Book § 67-6.
The defendant moved to expand the universe of cases to include “all cases prosecuted in Conned icut after October 1, 1973 in which a capital felony could have been charged . . . and which resulted in a homicide conviction, following a plea or trial.” We consistently have rejected similar requests in the past; see Webb I, supra, 238 Conn. 513; Cobb I, supra, 234 Conn. 735; State v. Ross, 225 Conn. 559, 561, 624 A.2d 886 (1993); and we denied the defendant’s motion as well. The defendant now seeks to have us reconsider our denial of his motion. Alternatively, the defendant maintains that, at a minimum, we should expand the universe to include “those cases that were charged as capital crimes, but for whatever reason did not proceed to a penalty [phase] hearing.” As we previously have explained; see, e.g., Webb I, supra, 238 Conn. 514-18; the expansion of the universe of cases
We previously have included State v. Johnson, supra, 253 Conn. 1, a case that, like the present case, involved the murder of a law enforcement officer acting within the scope of his duties, in the universe of eligible cases. See Webb I, supra, 238 Conn. 539. Subsequent to the issuance of our opinion in Webb I, however, this court vacated the death sentence that had been imposed in Johnson on the ground that the evidence was insufficient to support the jury’s finding of the existence of the aggravating factor that served as the basis for the imposition of the death penalty. State v. Johnson, supra, 56, 78, 81. Johnson, therefore, must be excluded from the universe of cases because “[t]he conclusion is inescapable . . . that a reversal that is based on insufficiency of the evidence to support the finding of an aggravant, which finding is the sine qua non of the imposition of the death penalty, will mandate the exclusion of the case from the universe of cases. In other
We denied the defendant’s motion insofar as he sought to include State v. Castonguay, 218 Conn. 486, 590 A.2d 901 (1991), in the universe of cases eligible for consideration.
The state suggests that the primary characteristic of the defendant’s criminal conduct is the use of a gun in the commission of a capital felony and, consequently, that the ultimate pool of cases applicable to our proportionality review includes those cases in which the underlying murder was committed with a firearm. We do not believe that this group of cases is sufficiently well defined to allow for meaningful proportionality review. In other words, those capital cases in which a firearm had been used to commit the murder would not give rise to a pool of cases substantially similar to the present case.
The defendant, however, does not seek to define the pool by reference to any one particular set or combination of criminal characteristics. Rather,
We exclude Cobb II, King, Webb I, Lapointe, Ross, Daniels and Usry from the pool because those cases involve murders in connection with a kidnapping or sexual assault or both. Cobb II, supra, 251 Conn. 297-98, 300, 301-304 (kidnapping and sexual assault); State v. King, supra, 249 Conn. 647-49, 656 (kidnapping and sexual assault); Webb I, supra, 238 Conn. 398-99 (kidnapping); State v. Lapointe, supra, 237 Conn. 695-99 (kidnapping and sexual assault); State v. Ross, supra, 230 Conn. 191-92 (kidnapping and sexual assault); State v. Daniels, supra, 207 Conn. 377, 379 (sexual assault); State v. Usry, supra, 205 Conn. 301 (sexual assault). We eliminate Griffin, Breton II, Day, Steiger and Wood because the predominant criminal characteristic of those cases is the murder of multiple victims. State v. Griffin, supra, 251 Conn. 679-80; Breton II, supra, 235 Conn. 209; State v. Day, supra, 233 Conn. 817; State v. Steiger, supra, 218 Conn. 355; State v. Wood, supra, 208 Conn. 128. We exclude Peeler, Colon, West and Rizzo because those cases involve the murder of a person under the age of sixteen. See State v. Peeler, supra, Superior Court, Docket No. CR 99-148396; State v. Colon, supra, Superior Court, Docket No. CR 98-270986; State v. West, supra, Superior Court, Docket No. CR 98-109471; State v. Rizzo, supra, Superior Court, Docket No. CR 97-262883. None of the foregoing cases is substantially similar to the present case in its criminal characteristics to allow for the kind of comparative analysis necessary for meaningful proportionality review.
The state contends that we should not include Gonzalez in the pool of cases for proportionality review because the trial court in that case dismissed the aggravating factors on the ground of evidentiary insufficiency prior to a penalty phase hearing and, therefore, the court did not conduct a penalty phase hearing. We acknowledge the limited utility of including Gonzalez in the pool. Because the state did not challenge on appeal the trial court’s dismissal of the aggravating factors in Gonzalez, we never have reviewed that decision and, consequently, we also never have considered the sufficiency of the evidence that the state would have presented in support of its alleged aggravating factors. Moreover, we do not know what mitigating factors the jury might have found had they considered them. We nevertheless include Gonzalez for purposes of our proportionality review in light of the relatively small number of other cases in the pool of similar cases.
Although the conduct of the defendant in Iloyeson apparently was not carried out for pecuniary gain and although the trial court in Hoyeson did not conduct a penalty phase hearing because the state stipulated to the
We note that, in Ortiz, although a penalty phase hearing commenced following Ortiz’ conviction of capital felony, the state reversed its decision to seek the death penalty prior to the conclusion of that hearing and, consequently, the hearing was discontinued before the jury could make any findings with respect to the alleged aggravating and mitigating factors. Ordinarily, therefore, we would not include Ortiz in the universe of cases to be considered in connection with our proportionality analysis. See Webb I, supra, 238 Conn. 528. In light of the relatively small size of the pool of similar cases, however, we include Ortiz in that pool notwithstanding its limited value for purposes of proportionality review.
We assume, for purposes of our proportionality review, that Gonzalez had a pecuniary motive for the killings.
The state alleged two aggravating factors, namely, that: (1) during the commission of the offense, Gonzalez had created a grave risk of death to another person in addition to the victim of the offense; and (2) Gonzalez had committed the offense in an especially heinous, cruel or depraved manner.
Gonzalez’ trial, which took place in 1985; see State v. Gonzalez, supra, 206 Conn. 214; occurred well before this court’s decision in State v. Solek, supra, 242 Conn. 431-32, in which we indicated that a trial court does not have the authority to entertain a motion seeking a pretrial determination as to whether a defendant charged with the crime of capital felony is eligible to receive the death penalty. Indeed, we have rejected the defendant’s claim that he was entitled to a preliminary hearing on the sufficiency of the evidence supporting the existence of the aggravating factor enumerated in § 53a-46a (h) (4). See part III N of this opinion.
Correa came to this country from Colombia in 1989, one year prior to the commission of the murders.
Ortiz’ codefendant, Julio Diaz-Marrero, also was convicted of, inter alia, capital felony. A penalty phase hearing was conducted and, as in Ortiz’ case, the jury found the existence of an aggravating factor, namely, that DiazMarrero had committed the offense in an especially heinous, cruel and depraved manner. After the jury had indicated that it was deadlocked on the existence of a mitigating factor, the state informed the court that it would no longer seek the death penalty against Diaz-Marrero, and he, also, was sentenced to life in prison without the possibility of release.
Ordinarily, we would include Diaz-Marrero’s case, as we have included Ortiz’ case, in the pool of cases for purposes of proportionality review. Neither party has identified, however, what mitigating factors Diaz-Marrero had alleged, and the available record does not disclose them. In light of this factual lacuna, we are unable to engage in any meaningful comparative review of Diaz-Marrero’s case and the present case. We therefore do not include it in our analysis of the defendant’s claim of disproportionality under § 53a-46b (b) (3).
Dissenting Opinion
dissenting. I maintain my belief that the death penalty fails to comport with contemporary standards of decency and thereby violates our state constitution’s prohibition against cruel and unusual punishment. See Conn. Const., art. I, §§ 8 and 9. Accordingly, I would reverse the judgment of the trial court and remand the case with direction to vacate the penalty of death and to impose a sentence of life imprisonment without the possibility of release.
I am compelled, nevertheless, to address another issue in this case—the defendant Richard Reynolds’ claims of prosecutorial misconduct, even though, by
The majority separates the defendant’s claims of prosecutorial misconduct into three broad categories. In addressing the claims that fall under the first category, namely, the state’s references to the family of the victim, Walter Williams, a Waterbury police officer, the majority scolds the state’s attorney for his characterization of the victim’s autopsy photographs as the Williams “family album,” but, nevertheless, concludes that, while
The second category of impropriety encompasses the defendant’s claim that the state’s attorney “invit[ed] the jury to ignore the legal principles that govern the question of whether death is the appropriate sentence.” In addressing the defendant’s claim of impropriety, the majority agrees with the defendant that some of the remarks were, indeed, improper,
The third category of alleged misconduct is classified by the majority as the “[ejxpression of [pjersonal [bjeliefs” and includes a discussion of several improper remarks made by the state’s attorney. In addressing these claims of prosecutorial misconduct, the majority castigates the state’s attorney for the numerous times that he expressed his personal beliefs during closing argument,
The majority also points to the comments in the closing argument by the state’s attorney vouching for the credibility of Anthony Crawford, a witness for the state.
The majority thereafter concludes that, although, on several occasions, the state’s attorney engaged in conduct that clearly was improper, the improprieties did not render the penalty phase hearing fundamentally unfair.
This court recently explained the role that our supervisory authority plays in the context of addressing claims of prosecutorial misconduct. In State v. Payne, 260 Conn. 446, 450-52, 797 A.2d 1088 (2002), we stated the following: “Although prosecutorial misconduct is often examined under the rubric of a defendant’s due process protections, as in our recent decision in State v. Singh, 259 Conn. 693, 793 A.2d 226 (2002), our review in the present case is limited to whether reversal is required under our supervisory authority. As an appellate court, we possess an inherent supervisory authority over the administration of justice. . . . The standards that we set under this supervisory authority are not satisfied [merely] by observance of those minimal historic safeguards for securing trial by reason which are summarized as due process of law .... Rather, the standards are flexible and are to be determined in the interests of justice. . . . State v. Jones, 234 Conn. 324, 346-47, 662 A.2d 1199 (1995). Of course, our supervisory authority is not a form of free-floating justice, untethered to legal principle. . . . Thus, [e]ven a sensible and efficient use of the supervisory power ... is invalid if it conflicts with constitutional or statutory provisions. . . . State v. Pouncey, 241 Conn. 802, 813, 699 A.2d 901 (1997).
“Accordingly, we exercise our supervisory authority in this context to redress repeated and deliberate misconduct by a prosecutor seeking to increase the likelihood of conviction even though that conduct does not necessarily require reversal as a due process violation. In accordance with the cases cited previously, we pay particular attention to the fact that the prosecutor knew or should have known that the conduct was improper and was part of a pattern of similar misconduct in other cases. We exercise our supervisory authority in order to protect the rights of defendants and to maintain standards among prosecutors throughout the judicial system rather than to redress the unfairness of a particular trial. We do so in order to send a strong message that
The present case involves a state’s attorney who engaged in such a pattern of deliberate misconduct. This particular state’s attorney, personally, is not new to findings of prosecutorial misconduct committed at trial; see State v. Satchwell, 244 Conn. 547, 568-69, 710 A.2d 1348 (1998) (state’s attorney improperly referred to facts not in evidence by citing to redacted portions of transcript); State v. Watlington, 216 Conn. 188, 193, 579 A. 2d 490 (1990) (disapproving of state’s attorney’s comments in closing argument, but concluding that unpreserved claim did not rise to level of “egregious misconduct” requiring reversal); nor is the office over which he has supervisory authority. See State v. Whipper, 258 Conn. 229, 266-75, 780 A.2d 53 (2001) (state’s attorney improperly expressed personal opinion about expert witness, violated trial court’s order regarding consciousness of guilt instruction, expressed personal opinion about defendant’s guilt, asked jury to consider matters not in evidence, and vouched for credibility of witnesses); State v. Heredia, 253 Conn. 543, 565, 754 A.2d 114 (2000) (state’s attorney improperly appealed to jurors’ passions and prejudices by invoking fear of defendant); State v. Oliveras, 210 Conn. 751, 763, 557 A.2d 534 (1989) (state’s attorney improperly referred to facts not in evidence by referring in closing argument to stricken testimony); State v. Moore, 69 Conn. App. 117, 125, 795 A.2d 563, cert. denied, 260 Conn. 941, 835 A.2d 59 (2002) (state’s attorney improperly referred to facts not in evidence); State v. Conde, 67 Conn. App. 474, 499, 787 A.2d 571 (2001), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002) (state’s attorney improperly referred to hearsay testimony not in evidence); State v. Dillard, 66 Conn. App. 238, 246-58, 784 A.2d 387, cert. denied, 258 Conn. 943, 786 A.2d 431 (2001) (state’s attorney improperly suggested facts not in evidence,
Rather than reconsider his tactics, however, the state’s attorney in the present case grows emboldened, buoyed by the mere slap on the wrist he has received or the harmless error curtain he has been able to hide behind. The case at hand is a prime example. When his objection to the court regarding defense counsel’s failure to address the mitigating factors in any detail failed to achieve the desired result, the state’s attorney took matters into his own hands, “demonstratfing] a complete disregard for the [court’s] rulings.” State v. Ubaldi, supra, 190 Conn. 567. The defendant’s seeming acquiescence to this misconduct does not, however, relieve this court of its responsibility to maintain the integrity of the judicial system and to put an end to the prosecutorial misconduct that has been allowed to “ ‘reign unchecked’ . . . .” Smith v. Phillips, 455 U.S. 209, 221, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982).
I recognize that the issue of whether reversal is warranted requires weighing society’s interest in maintaining a justice system that, both in appearance and in practice, treats all defendants fairly against some of the difficulties that might arise during a new trial, including: “the extent of prejudice to the defendant; the emotional trauma to the victims or others likely to result from reliving their experiences at a new trial; the practical problems of memory loss and unavailability of witnesses after much time has elapsed; and the availability of other sanctions for such misconduct.” State v. Ruiz, supra, 202 Conn. 330.
I am mindful of the emotional trauma to the family of Officer Williams that will likely result from having to go through a new penalty phase hearing. “Any time those affected by a violent crime are forced to relive their experiences in a new trial, the emotional trauma is significant. . . . [This] highly unfortunate [consequence], however, [does] not outweigh the compelling reasons that exist for reversing the conviction in light of the multiple, extraordinary instances of prosecutorial misconduct.” State v. Payne, supra, 260 Conn. 464-65. Nor can I state that the possibility of memory loss by some witnesses and concerns about the unavailability of other witnesses are significant enough in this case to outweigh my reasons for reversing the imposition of the death sentence. The witnesses at the penalty hearing were, for the most part, the same witnesses who testified at the guilt phase of the trial. Their testimony has
Finally, I have considered the availability of other sanctions. This court has stated that reversal of a conviction under our supervisory authority “generally is appropriate . . . only when the ‘[prosecutor’s] conduct is so offensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal.’ State v. Ubaldi, supra, [190 Conn.] 575.” State v. Pouncey, supra, 241 Conn. 812. “Some tribunals have declined to use such supervisory power on the theory that society should not bear the burden of a new trial because of prosecutorial misconduct where a new trial is not constitutionally mandated. . . . According to some authorities, the evil of overzealous prosecutors is more appropriately com-batted through contempt sanctions, disciplinary boards or other means. . . . This court, however, has long been of the view that it is ultimately responsible for the enforcement of court rules in prosecutorial misconduct cases. . . . Upsetting a criminal conviction is a drastic step, but it is the only feasible deterrent to flagrant prosecutorial misconduct in defiance of a trial court ruling. We are mindful of the sage admonition that appellate rebuke without reversal ignores the reality of the adversary system of justice. The deprecatory words we use in our opinions . . . are purely ceremonial. Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice [of verbal criticism without judicial action]—recalling the bitter tear shed by the Walrus as he ate the oysters— breeds a deplorably cynical attitude towards the judiciary.” (Citations omitted; internal quotation marks omitted.) State v. Ubaldi, supra, 571.
Past experience has demonstrated that merely to reprimand, once again, a state’s attorney who engages in
Accordingly, I respectfully dissent.
After telling the jury that it had the “awesome task” of “determining whether or not the death penalty should be imposed,” the state’s attorney remarked: “I took an oath to enforce the laws of the state of Connecticut. The judge took an oath and you as jurors took an oath to see that the laws of the state of Connecticut are upheld and I do this, I make this argument to you . . . because I, like you, have taken an oath to uphold and enforce the law. And, indeed, if the facts are there and the law calls for it, based on my oath and your oath and the court’s oath, the death penalty must be imposed. ... I know it’s not easy. I don’t take it lightly and I know nobody on this panel takes it lightly and [the judge] doesn’t take it lightly, but it’s asking—we’ve been sworn as citizens as part of our civic duty to do.”
In particular, the defendant challenges the following comments by the state’s attorney: “Emotional blackmail. . . . [TJhat’s what this mitigating evidence is. It’s an attempt to promote emotional blackmail on the jury. And that’s not what the death penalty is about. The death penalty is about a person being told by society you have to take responsibility for your conduct, that’s what the death penalty is. Society as a community . . . [pjointing to someone who has committed a terrible crime, who has committed the ultimate crime, and say[ing] to that person you have to take responsibility for your actions. Don’t blame your father; don’t blame the teacher in school; don’t blame your grandparents in Jamaica; don’t blame your sister; don’t blame your brother; don’t blame the courts; don’t blame that you run around with the wrong crowd. Step up and take responsibility for your actions. . . . Take responsibility for that. For once in your life, don’t hold everybody up to emotional blackmail.”
When addressing the aggravating factors in his closing argument, the state’s attorney remarked: “Now is my chance to argue to you why I feel that we have proven each of these aggravants beyond a reasonable doubt. Again, we don’t have to prove all three. . . . I—of course, it’s my belief that the evidence in this case supports the finding that all three have been proven.” (Emphasis added.)
During his closing argument to the jury, the state’s attorney stated: “I don’t know how lean argue or rebut the mitigants. [Defense counsel] refused to argue to you when he had the opportunity what these mitigating factors were and what they all meant. He told you [the state’s attorney] is going to stand up and he’s going to wave the list and smile and laugh. I’m not laughing .... I take nothing about this case lightly. I ask you, if [defense counsel] felt that his mitigating evidence was so strong and so convincing, why didn’t he argue it to you when I would have the opportunity to come up and argue against it? I can’t argue against anything now. ... So I’m left here kind of punching in the shadows.
“If he felt the way I feel—I felt my aggravants are strong. I felt the evidence supported them and I argued those aggravants to you and I said here they are. Now, [defense counsel] stand up and try to knock them down. I have confidence in my case. You can’t knock them down. . . . His part of the case is mitigants. Does he have confidence in his mitigants? No, because he knows if he puts them up there, I’d have the opportunity to come up and knock them down. So you have to ask that. Where’s his big argument for the mitigants? . . . Because this is my last opportunity and because I don’t know what [defense counsel] is going to say about mitigants,
The state’s attorney also made the following comments with regard to certain specific mitigating factors: “I’m saying just because they say it’s a mitigant doesn’t mean it is and I’m not going to point out the one about the middle child. If you ask me if I thought that was a mitigant, I’d say no.” (Emphasis added.) Later, he continued: “If [defense counsel] did not have the courage to stand in front of you and argue the mitigante so I can come up and attack them, you have to ask yourselves how strong are those mitigante.” (Emphasis added.)
The state’s attorney, anticipating that defense counsel would argue that Crawford’s testimony was suspect because he had received special treatment from the state, commented as follows: “Crawford. He’s no altar boy. He told you what he was, and believe me, they are going to say, well, don’t believe . . . Crawford because he got a break from the state. He didn’t get a break from the state. I prosecuted him for hindering prosecution in this case. If I wanted to give Crawford a break in exchange for his testimony, the easiest thing for me to do was not to prosecute him . ... We don’t give a damn what happens to him later on. ... If I wanted to give . . . Crawford a break in exchange for his testimony, common sense, would I have ever prosecuted him . . . ? So . . . Crawford has been given no break. He came and he testified.” (Emphasis added.)
Later, while arguing that Crawford’s testimony as to the number of gunshots fired should be believed, the state’s attorney remarked: “You know why I believe . . . Crawford that there were seven shots? I’m going to tell you why I believe . . . Crawford . . . .” (Emphasis added.) The state’s attorney then proceeded to recite in detail the facts upon which Crawford’s testimony had been based.
We note that the majority has approached this issue by isolating each impropriety and then determining whether that isolated instance rendered the proceeding fundamentally unfair. The ultimate determination, however, is “whether the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process.” (Emphasis added; internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 723, 793 A.2d 226 (2002). Accordingly, it is the effect of the totality of the improprieties that determines whether the defendant’s due process rights were violated. Id., 728 (Borden, J., concurring