STATE OF CONNECTICUT v. TODD RIZZO
(SC 17527)
Supreme Court of Connecticut
Argued October 22, 2010—officially released November 29, 2011
303 Conn. 71
Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan, Vertefeuille and DiPentima, Js.*
Rogers, C. J., and Norcott, Palmer, Zarella, McLachlan, Vertefeuille and DiPentima, Js.*
that the defendant also was unconcerned about the risks associated with leaving his two year old child under the exclusive supervision of an eight year old and about the necessity of taking appropriate measures both to child proof his home and to obtain appropriate supervision for his child in the defendant‘s absence.
* This appeal originally was argued before a panel of this court consisting of Chief Justice Rogers, Justices Norcott, Katz, Palmer, McLachlan and Vertefeuille and Chief Judge DiPentima. Thereafter, Justice Katz resigned from this court and did not participate in the consideration or decision of the case, and Justice Zarella was added to the panel. Justice Zarella has read the record and briefs, listened to a recording of the oral argument and participated in the resolution of this case.
Harry Weller, senior assistant state‘s attorney, with whom was John A. Connelly, former state‘s attorney, for the appellee (state).
Opinion
ROGERS, C. J. The defendant, Todd Rizzo, appeals from the judgment rendered by a three judge panel, following a penalty phase hearing held pursuant to
The basic facts and procedural history of the case are as follows. In the early evening hours of September 30, 1997, the defendant lured the young victim into the defendant‘s backyard under false pretenses and, thereafter, bludgeoned the victim to death with a small sledgehammer. The defendant initially attempted to conceal his crime, but the following day, when confronted with powerful evidence of his guilt, he confessed to murdering the victim. The defendant pleaded guilty to murder in violation of
I
The defendant claims first that his waiver of a jury for the penalty phase proceedings was constitutionally invalid.3 He argues specifically that his decision to forgo a jury determination of whether death was the appropriate penalty, and to opt instead for sentencing by a three judge panel; see
The following additional procedural history is relevant to this claim. Jury selection for the defendant‘s penalty phase proceedings began on March 15, 2005. During jury selection and throughout the penalty phase proceedings, the defendant was represented by Ronald Gold and David Channing, both of whom were experienced public defenders. As of April 15, 2005, the twentieth day of voir dire proceedings and a Friday, eight jurors had been chosen. Late that day, after the trial court, O‘Keefe, J., had dismissed the current panel of prospective jurors and while the court was preparing to adjourn the proceedings until the following Monday, the defendant requested permission to waive his right to a sentencing jury. Initially, Gold indicated to the trial court that some issue had arisen, and requested a recess to confer with the defendant. The trial court granted
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. . . .”
“(b) If the accused is charged with a crime punishable by death or imprisonment for life and elects to be tried by the court, the court shall be composed of three judges to be designated by the Chief Court Administrator, or his designee, who shall name one such judge to preside over the trial. Such judges, or a majority of them, shall have power to decide all questions of law and fact arising upon the trial and render judgment accordingly.
“(c) If the party accused does not elect to be tried by the court, he shall be tried by a jury of six except that no person, charged with an offense which is punishable by death or life imprisonment, shall be tried by a jury of less than twelve without his consent.”
“[Gold]: Your Honor, [the defendant] wanted to address the court about something.
“The Court: I don‘t have any problem with that. What do you want to tell me . . . ?
“The Defendant: Your Honor, over the past few weeks since we‘ve begun selecting a jury, my mind has changed from back in [1999] when I elected a three judge panel, it might have been during the probable cause hearing or the arraignment or my guilty plea, when I originally elected—
“The Court: A jury.
“The Defendant: A jury.
“The Court: You elected a jury.
“The Defendant: A jury. I reviewed the law and my lawyers presented me with a lot of information that showed that while I‘m, you know, if you‘re arrested for a crime, you‘re guaranteed a jury trial by jury. But there are conditions, if a defendant wants to elect a three judge panel, and I understand that it is the consent of the state and the approval of the court, and in this situation I haven‘t prepared any motion and I just wanted to put on the record that I wanted to—
“The Court: You are thinking about changing your election to a three judge panel?
“The Defendant: I have—right. I have no right to do so, but what I—
“The Court: You are thinking about it.
“The Defendant: Yes. I wanted to find out if—
“The Court: If it could be done.
“The Defendant: If it can be done only in the sense, if the state opposes, it‘s a dead issue. I fully accept a jury. I had a jury before. A jury can be fair, but I feel it‘s in my best interest this time around to have three judges review the evidence for what it is.
“The Court: Okay. That‘s a surprise to me, what you said. I‘ll consider it. There‘s nothing before me. There‘s nothing formal before me. So you think about it over the weekend, talk to your lawyers. Tell me how you feel on Monday. And, [state‘s attorney].
“[State‘s Attorney]: This is the first. I‘m also surprised, Your Honor, but I will think about it over the weekend.
“The Court: Yeah, how‘s that?
“[State‘s Attorney]: Just to let [the defendant] know, that the state is not foreclosed to the possibility of a three judge panel.
“The Court: Given my involvement so far in the case, I would not be part of the—I wouldn‘t be one of the three judges. That probably wouldn‘t be a good idea, would it?
“[Gold]: I haven‘t thought about that, Your Honor.
“The Court: We don‘t need to cross that bridge right at this point. But—okay. You heard what [the state‘s attorney] said.
“The Defendant: I appreciate you taking the time to hear my request.
“The Court: No problem.
“The Defendant: Thank you, sir.
“The Court: Okay. We‘re adjourned.”
Before court reconvened the following Monday, the defendant and his two attorneys met and discussed the
At the outset of the canvass proceedings, defense counsel notified the trial court that they both had “explained the various ramifications of the decision [to the defendant] and [had] recommended against it.” The trial court, Iannotti, J., proceeded to canvass the defendant:
“The Court: Now . . . it‘s my understanding that since some time on Friday afternoon or Friday morning, up until now, that you had indicated to your attorneys that you were contemplating changing your election from a [twelve] person jury and electing a three judge court—a three judge court, three judge panel. Is that correct?
“[The Defendant]: Yes, sir.
“The Court: Now, have you had enough time to talk to your lawyers about that change, sir?
“[The Defendant]: Yes, sir. Judge O‘Keefe granted us much time this morning to—
“The Court: Okay.
“[The Defendant]: —discuss it.
“The Court: And you‘re obviously, sir, aware that your lawyers are recommending to you not to do this?
“[The Defendant]: Yes, sir. They‘ve thoroughly explained the differences between a jury trial and a court trial and—
“The Court: Tell me what they explained to you . . . .
“[The Defendant]: Well, they explained to me how selecting a jury, considering the evidence, and it‘s different, it‘s different. It‘s different for the defense to put on a case for [twelve] people compared to [twelve] experienced judges.
“The Court: Three experienced judges.
“[The Defendant]: Did I say [twelve]?
“The Court: Yes, sir.
“[The Defendant]: I meant three, sir.
“The Court: Yes, sir.
“[The Defendant]: And they would prefer and I don‘t really—I‘m not sure how much I‘m allowed to say.
“The Court: Well, you don‘t have to say anything about the conversations you have with your lawyers. I just wanted to know the understanding, that you understand what you‘re doing.
“[The Defendant]: Right. They understand—they—if they are putting on this trial and to put on my best defense, they feel that a—
“The Court: They feel they can do it better with a [twelve] person jury than they can with a three judge panel.
“[The Defendant]: Yes, sir.
“The Court: Is that what they told you?
“[The Defendant]: Yes, sir.
“The Court: Now, here‘s the important part. Okay? Once you change this election here today, okay, from a jury to a three judge panel, you can‘t change your mind back again. Okay?
“That election ends here and today, and the only thing that will occur after today is phone calls will be made and the chief [court administrator] of this state will appoint a three judge panel to your case, and your matter will be heard in front of that three judge panel. Do you understand that?
“[The Defendant]: Yes, sir.
“The Court: So once that begins, once that process begins or actually not even once that process begins. As soon as I accept your election here today, you can‘t go into the back room and talk to [defense counsel] and say, you know, geez, maybe I, maybe I should have the jury. Okay? You cannot change your mind back again. Do you understand that?
“[The Defendant]: Yes, sir.
“The Court: If you had originally elected a—the other way, you could have changed—once you elect a court trial, it‘s over. Do you understand that?
“[The Defendant]: Yes, sir.
“The Court: You can go from a jury to a court, you can‘t go from a court to a jury.
“[The Defendant]: Yes, sir. That‘s exactly what they explained to me this morning, very thoroughly.
“The Court: All right. And I‘m sure what they also explained to you is that when you have a [twelve] person jury in a death penalty phase case like this, is that it would have to be unanimous with those [twelve] people. Right?
“[The Defendant]: Yes, sir.
“The Court: And my guess is that their thought process was, you know, they probably said to you . . .
we think we have a better chance with a [twelve] person jury here than we do with a three judge panel because with a three judge panel of experienced judges, it‘s the three of them versus the [twelve] person jury that they would have to convince. Do you understand that?
“[The Defendant]: Yes, sir. I was told that it‘s not unanimous with three judges, it‘s—it could be—
“The Court: Two out of three would be enough. But not—obviously, with the jury it has to be unanimous. Do you understand that?
“[The Defendant]: Yes, sir.
“The Court: All right. So they‘ve explained all of that to you thoroughly.
“[The Defendant]: Yes, sir.
“The Court: Right, Mr. Gold?
“[Gold]: Yes.
“The Court: Right, Mr. Channing?
“[Channing]: May I have one moment with him, Your Honor?
“The Court: Sure.
“[Channing]: Thank you, Your Honor. Yes, we explained what he said we explained.
“The Court: Is that right?
“[The Defendant]: Yes, sir. In writing and verbally they told me.
“The Court: All right. And knowing all that, it is still your decision here today that you want to change from a jury to a three judge panel?
“[The Defendant]: Yes, sir. I do understand their position, but I‘m certain that I prefer a court trial.
“The Court: Do you have any other questions of your lawyer[s]?
“[The Defendant]: I feel very satisfied that I‘ve been given every bit of information to make this decision, and I have no further questions to my lawyers at this time that‘s going to change my mind tomorrow.”
The trial court thereafter asked the defendant whether he had had enough time to make his decision, and the defendant replied, “Yes, sir. Plenty of time.” When the court asked him again whether he needed more time, the defendant responded, “No, sir. I feel very satisfied.” The colloquy continued:
“The Court: So you‘re confident that this is the way you want to go, and you‘re confident you‘ve discussed everything you need [to] discuss with your attorneys?
“[The Defendant]: Yes, sir.
“The Court: And you‘re confident that you don‘t need any additional time to make this decision. Is that correct?
“[The Defendant]: That is correct.”
After some discussion with the state‘s attorney regarding the fact that the defendant, in an earlier penalty phase proceeding, had elected to be tried by a jury, the trial court queried the defendant further:
“The Court: . . . [S]o you have been through this process before, and you have had a jury on this before, so you have a complete understanding how that works. Is that a fair statement . . . ?
“[The Defendant]: Yes, it is, Your Honor.
“The Court: And another good point actually brought up by [the state‘s attorney] is that you‘ve had a lot of time to think about this, you‘ve had a lot of time to talk to your lawyers, but is this your own decision based
on your own free will? Are you doing this knowingly? Are you doing this voluntarily? Did anybody pressure you, and I don‘t mean your lawyers because clearly they have not, but anybody pressure you from without to change your election here? Is there any influence upon you other than your own decision-making process that has led you to make this decision today?
“[The Defendant]: No, Your Honor. This has been knowingly and it‘s definitely been voluntary because there‘s—
“The Court: Were you coerced by anybody?
“[The Defendant]: No, not even in the prison. I‘ve had no discussions with this, with even any of the escort officers.
“The Court: Did anybody suggest it to you?
“[The Defendant]: No, sir. I thought this was my decision over the past few weeks and I voiced my opinion last week to my lawyers.
“The Court: All right. So there [were] no outside influences to change your mind from a jury to a court election whatsoever. It was thought up by yourself, it was brought to your lawyers’ attention by yourself, was thoroughly discussed with your lawyers by yourself, and again, your lawyers told you not to do this, but regardless of that after having fully talked it out with your lawyers, you have remained adamant that this is a decision that you knowingly, voluntarily, and in complete knowledge wish to make?
“[The Defendant]: Yes, sir. I initiated this.”
The trial court continued to inquire:
“The Court: . . . [A]t this time or throughout this decision-making process, as of right now, today, are
you under the influence of any alcohol, medication, or drugs of any kind?
“[The Defendant]: I take no medication, Your Honor, and no alcohol, nothing.
“The Court: All right. So your decision making is clear of any outside influences whatsoever with regard to that?
“[The Defendant]: Yes, sir.”
The trial court then found that the defendant‘s decision to revoke his jury election and to proceed before a three judge panel was knowingly and voluntarily made with the assistance of his attorneys. The court further found that the defendant was not under the influence of any alcohol, drugs or medication of any kind and that he had had at least seventy-two hours to contemplate his decision. Accordingly, the trial court accepted and approved the defendant‘s waiver of his right to a jury and his election to be sentenced by a three judge panel. Following the penalty phase hearing, the three judge panel sentenced the defendant to death.
The defendant now claims that his waiver of a jury for the sentencing proceedings was constitutionally inadequate because the trial court failed to ensure that it was knowing, voluntary and intelligent. According to the defendant, the totality of the circumstances demonstrates that his waiver of the constitutional right to have a jury decide his fate was invalid. Specifically, he points to the timing and nature of his incarceration and the atmosphere during the voir dire proceedings preceding his waiver. The defendant also claims that his waiver was defective in the absence of specific advice from the trial court as to the differences between court and jury proceedings, and that the court should have
Because the defendant did not raise this claim during the penalty phase proceedings, it is not preserved for purposes of appellate review.7 Nevertheless, a claim that a trial court has failed to ensure a proper waiver of the right to a jury is of constitutional magnitude and alleges a violation of fundamental rights. See State v. Woods, 297 Conn. 569, 578, 4 A.3d 236 (2010); State v. Ouellette, 271 Conn. 740, 748 n.14, 859 A.2d 907 (2004). Because there is an adequate record of the defendant‘s waiver, we review his claim within the framework of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).8 We conclude, however, that the defendant has failed
We begin with general principles. A defendant charged with a felony possesses a constitutional right to be tried by a jury, and that right extends to the determination of aggravating factors in the sentencing phase of a death penalty prosecution. See Ring v. Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). Nevertheless, the right to a jury trial, like many important constitutional rights held by an accused, properly may be waived.10 See Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S. Ct. 236, 87 L. Ed. 268 (1942) (approving waiver of jury trial by unrepresented felony defendant, “in the exercise of a free and intelligent choice, and with the considered approval of the court“); Patton v. United States, 281 U.S. 276, 312, 50 S. Ct. 253, 74 L. Ed. 854 (1930) (permitting waiver of jury for trial of felony charges upon, inter alia, defendant‘s “express and intelligent consent“). Likewise, a defendant who has pleaded guilty to, or has been found guilty of, a capital offense in
Our review of the record and careful consideration of the totality of the circumstances convince us that the defendant‘s waiver of a sentencing jury must be upheld. To begin, “there is no evidence to suggest that the defendant was not of ordinary intelligence or educational background“; (internal quotation marks omitted) State v. Ouellette, supra, 271 Conn. 758; or that he lacked meaningful life experience. To the contrary, the defendant‘s personal characteristics suggest a valid waiver. At the time of the sentencing proceedings, the defendant was twenty-six years old, a high school graduate, and had several years of steady employment history.13 Compare, e.g., State v. Cobb, 251 Conn. 285, 372, 743 A.2d 1 (1999) (upholding validity of jury waiver where, inter alia, defendant was twenty-nine years old, high school graduate, had some military training and was employed at time of arrest), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000), State v. Shockley, 188 Conn. 697, 707-708, 453 A.2d 441 (1982) (upholding validity of jury waiver where, inter alia, defendant was twenty-three years old at time of trial and had com-
Additionally, because the defendant previously had been sentenced to death by a jury, he had particularly relevant personal experience with the criminal justice system, which the trial court properly considered in assessing his waiver. See Parke v. Raley, 506 U.S. 20, 37, 113 S. Ct. 517, 121 L. Ed. 2d 391 (1992) (“evidence of a defendant‘s prior experience with the criminal justice system [is] relevant to the question whether he knowingly waived constitutional rights“); see also State v. Cobb, supra, 251 Conn. 372 (upholding validity of jury waiver where, inter alia, defendant had been advised of right to jury trial in connection with other charges); People v. Smith, 176 Ill. 2d 217, 227, 680 N.E.2d 291 (finding it “significant,” for purposes of finding valid jury waiver in second capital sentencing hearing, that “defendant had originally been convicted of murder and sentenced to death by a jury, and thus was familiar with the jury‘s function in a capital sentencing hearing“), cert. denied, 522 U.S. 920, 118 S. Ct. 311, 139 L. Ed. 2d 241 (1997); People v. Albanese, 104 Ill. 2d 504, 536, 473 N.E.2d 1246 (1984) (noting, in upholding jury waiver for capital sentencing hearing, that defendant recently “had been convicted of murder and sentenced to death by another jury . . . on a related indictment and so became familiar with the jury‘s function at the sentencing hearing“), cert. denied, 471 U.S. 1044, 105 S. Ct. 2061, 85 L. Ed. 2d 335 (1985). Here, the defendant responded affirmatively to the trial court‘s query: “[S]o you have been through this process before, and you have had a [penalty phase] jury . . . before, so you have a complete understanding [of] how that works. Is that a fair statement . . . ?” The trial court properly relied on the defendant‘s assurance.
Next, the record clearly reveals that the defendant, in waiving his right to a sentencing jury, acted of his own volition after considerable reflection and after he
Under analogous circumstances, we regularly have rejected claims of invalid jury waivers. See, e.g., State v. Woods, supra, 297 Conn. 586 (defendant‘s statements “were appropriate and demonstrated that he understood his rights and the court‘s questions,” he “confirmed that he wished to be tried by a three judge court, that he had spoken with defense counsel to discuss this decision, and had an adequate opportunity to do so, that defense counsel had spoken with him about all the issues and possibilities associated with his decision, and that he was sure of his decision to be tried by a three judge court” and defense counsel agreed with defendant‘s statements); State v. Ouellette, supra, 271 Conn. 758 (defendant represented by counsel, advised twice of right to jury in open court and both times affirmatively stated that he understood he was giving up right to trial by jury); State v. Williams, 205 Conn. 456, 462, 534 A.2d 230 (1987) (after consulting with counsel, defendant “vigorously and knowingly persisted in articulating a preference for a court trial“); State v. Marino, 190 Conn. 639, 645, 462 A.2d 1021 (1983) (concluding it is reasonable to infer jury waiver “from the free expression by a defendant of his election of a nonjury trial especially where he is represented by counsel“); see also State v. Tocco, 120 Conn. App. 768, 780-81, 993 A.2d 989 (defendant responded to court in “intelligent and courteous manner,” indicated that “he carefully had considered the issue and that he was
Finally, in response to the trial court‘s questioning, the defendant confirmed unequivocally that he was acting of his own free will, that he was not under the influence of any intoxicating substances and that his waiver of his right to a jury was not a product of coercion or pressure from any outside influences. Despite these assurances, the defendant on appeal urges us to conclude that a variety of circumstances existing prior to his jury waiver effectively had rendered him despondent, desperate to reach the conclusion of the penalty phase proceedings and indifferent to his fate, thereby making his waiver the involuntary product of irrational thinking. Our careful review of the record compels us, however, to reject this argument as unsupported and entirely speculative.16 In short, because this claim is not
Moreover, we discern no pattern of more positive comments by the court to jurors who favored capital punishment. First, very few prospective jurors expressed definitive views on capital punishment. Rather, in response to the multiple similar questions posed by counsel, most panel members’ answers best can be described as nuanced, internally inconsistent and/or equivocal. Likewise, the trial court‘s comments to prospective jurors, while generally positive and encouraging, also vary and defy neat categorization. Finally, the specific comments that the defendant deems more favorable were directed at times to potential jurors that the defendant had dismissed, and at other times to potential jurors that the state had dismissed. In short, the defendant‘s characterization of the pattern of the court‘s comments is highly subjective and not verifiable.
The record is also contrary to the defendant‘s assertion that it appeared that voir dire would drag out for another ten weeks. On April 13, 2005, the eighteenth day of jury selection and two days before the defendant‘s initiation of a jury waiver, an on the record discussion between the court and counsel at the close of the day indicated that jury selection was proceeding at a typical rate for a capital case. On April 14, 2005, the nineteenth day of jury selection and one day prior to the defendant‘s waiver, the court indicated that seven of twelve jurors had been chosen. The court thereafter indicated, as it had repeatedly throughout the voir dire proceedings, that it expected to have a jury chosen and to begin the penalty phase proceedings on May 9, 2005, in other words, within three to four weeks. On the morning of the day the defendant chose to waive a jury, an eighth juror was chosen. In sum, it was clear that jury selection would not continue much longer.
Turning to the remaining circumstances cited by the defendant as allegedly contributing to the involuntariness of his jury waiver, because the defendant never complained about those circumstances during the penalty phase proceedings and his counsel never raised any question as to his competence generally or his ability to validly waive his rights, the record is completely silent as to what effect, if any, the conditions of his incarceration, transport and restraint might have had on the defendant‘s personal development or his decision to waive his right to a jury. This court cannot, as the defendant requests, rely on excerpts from social science texts or journal articles that were not recognized as authoritative by an expert and admitted into evidence during the penalty phase proceedings; see Conn. Code Evid. § 8-3 (8); see also Pestey v. Cushman, 259 Conn. 345, 367, 788 A.2d 496 (2002); to make factual findings regarding the defendant‘s state of mind for the first time on direct appeal. It is axiomatic that this court does not find facts. State v. Joyce, 229 Conn. 10, 27 n.19, 639 A.2d 1007 (1994). Moreover, although we understand the defendant‘s desire to supplement the factual record with new materials supportive of his unpreserved claim, “well established principles
governing appellate review of factual decisions preclude us from utilizing this material to find facts on appeal. See, e.g., State v. Dillard, 66 Conn. App. 238, 248 n.11, 784 A.2d 38 (that information was not before the trial court, and, on appeal, we do not take new evidence), cert. denied, 258 Conn. 943, 786 A.2d 431 (2001); C. Tait & E. Prescott, Connecticut Appellate Practice and Procedure (3d Ed. 2000) § 8.8 (a), pp. 305-306 (an appellate court does not retry a case, admit new evidence or weigh the evidence).” (Internal quotation marks omitted.) State v. Ovechka, 292 Conn. 533, 547 n.19, 975 A.2d 1 (2009); see also Moore v. Moore, 173 Conn. 120, 122, 376 A.2d 1085 (1977) (adjudicative facts, i.e., those concerning parties and events of particular case, are not subject to judicial notice, without affording parties opportunity to be heard); E. Margolis, “Beyond Brandeis: Exploring the Uses of Non-Legal Materials in Appellate Briefs,” 34 U.S.F. L. Rev. 197, 216 (2000) (“it is clear that non-legal information introduced for the purpose of assessing adjudicative facts should be presented to the trial court, and not on appeal“).
If the defendant possesses compelling evidence in support of this claim, the claim is better pursued in a collateral proceeding where a hearing can be held and the evidence evaluated by a trier of fact. See, e.g., Lewis v. Commissioner of Correction, 117 Conn. App. 120, 123-24, 977 A.2d 772 (2009) (considering invalid jury waiver claim as part of ineffectiveness of counsel claim in habeas corpus proceeding; evidence was developed regarding what counsel told defendant and whether defendant felt pressured to waive jury), cert. denied, 294 Conn. 904, 982 A.2d 647 (2009); see also Jells v. Mitchell, 538 F.3d 478, 509-10 (6th Cir. 2008) (considering, in habeas proceeding, evidence outside trial record, including affidavits from defendant and counsel, to evaluate claim that counsel was ineffective in advising defendant to waive jury for capital sentencing proceeding); Moreland v. Bradshaw, 635 F. Supp. 2d 680, 698-705 (S.D. Ohio 2009) (considering, in habeas proceeding, testimony from defense counsel and prosecutors to determine whether defendant‘s jury waiver was invalid because he was under influence of sodium pentothal); Ciummei v. Commonwealth, 378 Mass. 504, 511-14, 392 N.E.2d 1186 (1979) (considering, in writ of error proceeding, evidence outside trial record in support of claim that defendant‘s jury waiver was not knowing and voluntary).
The defendant also argues that the trial court‘s canvass, although extensive, was insufficient to ensure a knowing, voluntary and intelligent jury waiver. Specifically, he complains that the court was required to advise him that juries are better equipped than judges to make moral judgments; about the various possibilities that could ensue in the event of a hung jury;17 and that a panel of judges, unlike a jury, would be aware of his previous death sentence, this court‘s opinion in State v. Rizzo, supra, 266 Conn. 171, and the results of a brain imaging test that the court earlier had permitted the defendant to pursue.18
The United States Supreme Court has never held that a defendant, when waiving the right to a jury, constitutionally is entitled to be canvassed by the trial court,
Because the United States Supreme Court never has held that a canvass is required for a valid waiver of the right to a jury, it necessarily has not prescribed the contents of a canvass. In other contexts, however, that court has explained: “the law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances—even though the defendant may not know the specific detailed consequences of invoking it.” (Emphasis in original.) United States v. Ruiz, 536 U.S. 622, 629, 122 S. Ct. 2450, 153 L. Ed. 2d 586 (2002); id. (waiver of rights attendant to guilty plea). Thus, the United States Supreme Court repeatedly has rejected challenges to the validity of guilty pleas, with the concomitant waiver of multiple constitutional rights, based on claims that defendants harbored “various forms of misapprehen-
Consistent with the foregoing, this court and others have rejected claims that an otherwise valid waiver of the right to a jury is undermined by the trial court‘s failure to include a specific item of information in its canvass. For example, in State v. Cobb, supra, 251 Conn. 374-75, we rejected the defendant‘s claim that the trial court‘s failure to inquire about his understanding of the process of juror selection and voir dire, or its failure to advise him that a three judge panel, unlike a jury, likely would become aware of inadmissible and prejudicial information about the defendant, rendered his waiver unknowing and involuntary. We reasoned that such information, which relates to “the strategic advantages and disadvantages . . . of a jury trial, as opposed to a trial to a panel of judges“; id., 374; was more properly the province of counsel to explain to the defendant and was not a required part of the trial court‘s canvass.26
Applying these principles, we conclude that the trial court‘s canvass was sufficiently detailed, and that the omissions cited by the defendant do not render his otherwise valid waiver of his right to a jury constitutionally deficient. Clearly, consistent with the requirements that we prescribed in Gore, the trial court verified that the defendant understood that he had the right to a jury, but that he could waive that right and elect to be sentenced by a court, subject to the requirements of
See Iowa v. Tovar, supra, 541 U.S. 92 (defendant need not have full and complete appreciation of all consequences flowing from waiver); United States v. Ruiz, supra, 536 U.S. 629 (defendant need not know specific detailed consequences of invoking waived right); Johnson v. Zerbst, supra, 304 U.S. 464 (court must consider totality of circumstances in assessing validity of waiver); State v. Gore, supra, 288 Conn. 776-77 (same); see also Harris v. State, supra, 295 Md. 341 (Murphy, C. J., dissenting) (describing majority analysis as “badly strained and totally at odds with the governing law“). Because Trimble and Piper rely on Harris, and also because they are factually distinguishable, we similarly consider them to be unpersuasive.
First, we disagree with the basic premise of the defendant‘s argument, namely, that by choosing to forgo a sentencing jury, he necessarily wanted the least favorable possible result and, therefore, that he had a “death wish . . . .” “[A]t the time when an accused defendant must choose between a trial before the jury and a trial to the court, it simply cannot be said which is more likely to result in the imposition of death.” Lockett v. Ohio, 438 U.S. 586, 634, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) (Rehnquist, J., concurring and dissenting). Moreover, it is not unusual for a criminal defendant to expect greater leniency from a court than from a jury, and there are several logical justifications for opting to waive the right to a jury. See 5 W. LaFave et al., Criminal Procedure (2d Ed. 1999) § 22.1 (h), pp. 264-65. Although the defendant now asserts that, at the time of his waiver, he believed his counsel‘s advice that he would fare better with a jury but nevertheless chose to be sentenced by the court, the record indicates otherwise. Specifically, in explaining his concerns to the trial court, Channing stated that the defendant “trusts the judiciary . . . .” Additionally, prior to being canvassed by Judge Iannotti, the defendant stated to Judge O‘Keefe that he had “had a jury before,” and understood that “[a] jury can be fair, but [he felt it was] in [his] best interest this time around to have three judges review the evidence for what it is.”31 Viewed in conjunction with the fact
Furthermore, although the essence of the defendant‘s argument is that his waiver was involuntary due to his impaired mental state, he has never raised a formal challenge to his competence in either the trial court or this court; see, e.g., State v. Ross, 273 Conn. 684, 873 A.2d 131 (2005); there is no evidence in the record that he suffers from any mental illness and he does not claim that the trial court, sua sponte, should have ordered a competency evaluation. Accordingly, the defendant presumptively was competent to stand trial; see
Finally, as a general matter, the law imposes no obligation on a trial court to explore a defendant‘s tactical reasons for waiving a jury. People v. Diaz, 3 Cal. 4th 495, 571, 834 P.2d 1171, 11 Cal. Rptr. 2d 353 (1992).
A person seeking to set aside a judgment rendered following a jury waiver must make a “plain showing that such waiver was not freely and intelligently made“; Adams v. United States ex rel. McCann, supra, 317 U.S. 281; and has the “burden of showing essential unfairness . . . not as a matter of speculation but as a demonstrable reality. Simply because a result that was insistently invited, namely, a verdict by a court without a jury, disappointed the hopes of the accused, ought not to be sufficient for rejecting it.” Id.; see also Sowell v. Bradshaw, 372 F.3d 821, 835 (6th Cir. 2004) (when defendant waived jury for capital sentencing proceeding, knowing death sentence was possible, he “took a litigation risk and lost; these facts alone do not create a constitutional violation“), cert. denied, 544 U.S. 925, 125 S. Ct. 1645, 161 L. Ed. 2d 485 (2005). On the basis of the foregoing analysis, the defendant‘s first claim fails.
The defendant claims next that Judge O‘Keefe should have disqualified himself, sua sponte, from serving on the three judge panel that the defendant requested for the penalty phase proceedings. According to the defendant, Judge O‘Keefe‘s involvement in the case prior to the defendant‘s waiver of his right to a jury—specifically, his ruling on a pretrial motion, reading of this court‘s decision in Rizzo and presiding over voir dire—gave rise to an improper appearance of partiality or risk of bias against the defendant such that he was required to disqualify himself. Additionally, the defendant argues that comments made by Judge O‘Keefe during an unrelated proceeding that took place approximately one year after the defendant was sentenced prove that, during the defendant‘s penalty phase proceeding, Judge O‘Keefe actually harbored a bias that impaired his impartiality. We are not persuaded.
The following additional procedural history is relevant. On March 3, 2005, prior to the start of voir dire, the defendant filed a motion requesting that he be transported to a medical facility for certain brain imaging tests necessary to prepare his defense for the penalty phase hearing. Judge O‘Keefe granted the defendant‘s motion. Apparently, the brain imaging tests were conducted but failed to result in any mitigating evidence useful to the defense, because no such evidence was offered during the penalty phase hearing.
During a March 9, 2005 hearing, just prior to the commencement of voir dire, Judge O‘Keefe asked a clerk for the citation to this court‘s decision in Rizzo. Various comments made by Judge O‘Keefe during voir dire suggest that he had obtained and read the opinion.
Over the course of voir dire, prospective panel members were questioned about their views on the death penalty generally and whether they had opinions about
On April 18, 2005, the trial court accepted the defendant‘s waiver of his right to a jury. On the following day, the defendant, his counsel and the state‘s attorney appeared briefly in court to discuss scheduling matters. At that time, Judge Iannotti informed the parties that he had proposed a three judge panel consisting of Judge O‘Keefe as the presiding judge, along with Judge William Cremins and Judge Salvatore Agati. The defendant did not object to the composition of the panel or otherwise express any concerns. The proposed panel subsequently was approved by the office of the chief court administrator. At no time during the penalty phase proceedings that followed did the defendant move to disqualify Judge O‘Keefe pursuant to
On appeal, the defendant now argues for the first time that Judge O‘Keefe should have disqualified him-
Normally, Connecticut‘s appellate courts do not review judicial disqualification claims raised for the first time on appeal because the parties, by failing to object, are deemed to have consented to the participation of the allegedly disqualified judge.36 Nevertheless, because the record is adequate for review and the defendant‘s claim implicates his constitutional right to a fair penalty phase proceeding; see State v. McDougal, 241 Conn. 502, 523–24, 699 A.2d 872 (1997); we will address the claim. We conclude, however, that the defendant has not shown that a constitutional violation clearly exists and clearly deprived him of a fair proceeding.
Judicial disqualification claims rarely raise due process questions; more typically, they invoke statutes, rules or common law imposing much stricter standards than are required constitutionally. Bracy v. Gramley, 520 U.S. 899, 904, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997) (“[m]ost questions concerning a judge‘s qualifications to hear a case are not constitutional ones, because the [d]ue [p]rocess [c]lause of the [f]ourteenth [a]mendment establishes a constitutional floor, not a uniform
The United States Supreme Court has found judicial bias claims to be due process violations only in egregious cases involving actual bias or unusual circumstances creating an intolerably high risk thereof, typically, when the judge had a pecuniary interest or some other personal stake in the outcome of the case.37 See, e.g., Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 886, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009) (due process clause violated by newly elected appellate judge‘s participation in appeal that was pending during his campaign after receiving most of his campaign financing from prevailing party); Bracy v. Gramley, supra, 520 U.S. 905 (if proven, corrupt judge‘s prosecution orientation in some criminal cases, affected to deflect attention from other cases in which he had been
Pursuant to our rules of practice; see
With certain well-defined exceptions not at issue here,38 a judge‘s participation in the preliminary stages
Although a judge, by participating in pretrial or other proceedings, may be exposed to inadmissible evidence about a party, the standard assumption is that he or she is able to disregard it; see Liteky v. United States, 510 U.S. 540, 562, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994) (Kennedy, J., concurring) (“[t]he acquired skill and capacity to disregard extraneous matters is one of the requisites of judicial office“); State v. Santangelo, 205 Conn. 578, 602, 534 A.2d 1175 (1987) (judge not required to disqualify self from sentencing upon receipt of letter containing unsubstantiated and inflammatory
Likewise, opinions that judges may form as a result of what they learn in earlier proceedings in the same case “rarely” constitute the type of bias, or appearance of bias, that requires recusal. See Liteky v. United States, supra, 510 U.S. 554.40 To do so, an opinion must be “so extreme as to display clear inability to render fair judgment.” Id., 551. In the absence of unusual circumstances, therefore, equating knowledge or opinions acquired during the course of an adjudication with an appearance of impropriety or bias requiring recusal “finds no support in law, ethics or sound policy.” People v. Moreno, 70 N.Y.2d 403, 407, 516 N.E.2d 200, 521 N.Y.S.2d 663 (1987).41
The defendant also argues that comments made by Judge O‘Keefe at an unrelated, noncapital proceeding that took place approximately one year after the defendant was sentenced demonstrate that the judge, when participating in the penalty phase hearing, possessed an actual bias that prevented him from properly considering the mitigation evidence presented by the defendant.42 Because the defendant could not have been aware of this claimed basis for disqualification at the time of the penalty phase proceedings, he cannot be faulted for his failure to raise it in an objection. See Ajadi v. Commissioner of Correction, supra, 280 Conn.
The following additional facts are relevant. At an August 14, 2006 hearing, Judge O‘Keefe sentenced Keith M. Foster to a total effective sentence of 110 years following his conviction of multiple crimes, including felony murder, assault, kidnapping and sexual assault, in connection with the torture, gang rape and killing of a thirteen year old girl. The facts of the case were particularly disturbing; see State v. Foster, 293 Conn. 327, 330-31, 977 A.2d 199 (2009); and, despite overwhelming evidence to the contrary, Foster refused to admit his involvement in the crimes. When sentencing Foster, Judge O‘Keefe referenced previous cases in which he had taken part to put Foster‘s crimes into perspective.
The defendant directs our attention to the following comments. First, Judge O‘Keefe listed a number of other individuals whom he previously had sentenced, including the defendant, stated that it was “like a murderers’ hall of fame,” and concluded that he was “going to have to add . . . Foster‘s name to that list.” Next, Judge O‘Keefe referred to murderers generally as “not human . . . .”43 Finally, directing his comments toward Foster, Judge O‘Keefe stated the following, again referencing the defendant and others whom the judge previously
The defendant argues that Judge O‘Keefe‘s remarks at Foster‘s sentencing hearing prove that, at the time of the defendant‘s penalty phase hearing, he was biased in such a way that he was not capable of considering the defendant‘s mitigating evidence, as is constitutionally and statutorily required, because he believed that evidence to be irrelevant. According to the defendant, the comments indicate that, in murder cases such as the defendant‘s, Judge O‘Keefe categorically rejects evidence as to background and upbringing, thereby making it impossible for him to find that such factors are mitigating in nature or to weigh them against aggravating factors in an impartial manner. The defendant claims that the judge‘s comments prove that he did not care
The concept of impermissible judicial “bias or prejudice” contemplates the “formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.” (Emphasis added; internal quotation marks omitted.) Cleveland Bar Assn. v. Cleary, 93 Ohio St. 3d 191, 201, 754 N.E.2d 235, reconsideration denied, 93 Ohio St. 3d 1477, 757 N.E.2d 774 (2001); see also 46 Am. Jur. 2d, supra, § 128, p. 248 (“[p]rejudice,” in disqualification context, means judge‘s “prejudgment or forming of an opinion without sufficient knowledge or examination” or “[a] decision in [a] matter . . . based on grounds other than the evidence placed before him or her” [emphasis added]).
In contrast, there is nothing impermissible about an opinion formed by a judge after a trial has concluded, on the basis of the evidence and arguments that have been presented and the judge‘s evaluation of them. Rather, “a trial judge will normally and properly form opinions on the law, the evidence and the witnesses, from the presentation of the case. These opinions and expressions thereof may be critical or disparaging to one party‘s position, but they are reached after a hearing in the performance of the judicial duty to decide the case, and do not constitute a ground for disqualification.” (Internal quotation marks omitted.) Haldane v. Haldane, 232 Cal. App. 2d 393, 395, 42 Cal. Rptr. 828 (1965). Thus, “[t]he judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the pro-
We believe that Judge O‘Keefe‘s comments here, insofar as they reference the defendant, properly reflect the judge‘s postjudgment assessment that, given the cruel, heinous and depraved manner in which the defendant killed the victim; see part IV of this opinion; the cumulative mitigating factor of his character, background and history did not weigh heavily enough to offset the aggravating factor in order to result in a life sentence. See part VII of this opinion. The panel was bound, statutorily and constitutionally, to consider factors weighing in favor of leniency, but once judgment imposing death was rendered, those factors, much like the presumption of innocence following a criminal conviction, effectively were removed from the case. Although the defendant urges us to conclude that Judge O‘Keefe‘s comments, made more than one year after the defendant was sentenced, are evidence of Judge O‘Keefe‘s mindset prior to the defendant‘s penalty phase proceeding and demonstrate prejudgment, that argument is entirely speculative.48 First, the defendant has not
Second, the record reflects clearly that Judge O‘Keefe properly considered and weighed the defendant‘s mitigating evidence. Specifically, in a unanimous memorandum of decision, the three judge panel, after stating explicitly that it was required to consider constitutionally relevant mitigating evidence and citing extensive
In evaluating the propriety of Judge O‘Keefe‘s references to a “murderers’ hall of fame” and to its members as being “not human,” we are mindful of the context in which they were made, namely, during the sentencing of an unrepentant defendant for indisputably horrific crimes. That defendant, Foster, as well as all of the other defendants to whom the judge referred, already had been convicted for the murders of multiple victims and/or child victims. See footnotes 44 through 47 of this opinion. Because a sentencing judge ordinarily must explain the reasons for imposing the sentence he or she has chosen,50 his or her explanatory comments, even if “harsh and unkind . . . will rarely give rise to a cognizable basis for disqualification . . . .” R. Flamm, supra, § 16.4, pp. 462-63. Indeed, “[i]t is the court‘s prerogative, if not its duty, to assess the defen-
Although the comments at issue were not made directly to the defendant at his own sentencing, we consider that to be a distinction without a difference for purposes of applying the law. Specifically, if the comments would not have indicated improper bias had they been delivered at the defendant‘s sentencing, it is difficult to see how they could become improper simply because they were subsequently expressed to a third party at that party‘s sentencing. Because a sentencing judge enjoys wide latitude when addressing a convicted criminal, Judge O‘Keefe‘s comments, insofar as they referenced the defendant, fall well short of remarks
III
Connecticut‘s statutory aggravating factors are enumerated in
The defendant did not raise this claim in the trial court and now seeks review pursuant to State v. Gold-
ing, supra, 213 Conn. 239-40. Because the record is adequate for review and the defendant‘s claim is of constitutional magnitude, we will address the claim. We conclude, however, that the third prong of Golding is not satisfied because the defendant has failed to establish a constitutional violation.
“Because the death penalty is exacted with great infrequency even for the most atrocious crimes [there must be a] meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not. Furman v. Georgia, 408 U.S. 238, 313, 92 S. Ct. 2726, 33 L. Ed. 2d 346, reh. denied sub nom. Jackson v. Georgia, 409 U.S. 902, 93 S. Ct. 89, 34 L. Ed. 2d 164 (1972) (White, J., concurring).” (Internal quotation marks omitted.) State v. Breton, supra, 212 Conn. 262-63. Accordingly, “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. Reynolds, 264 Conn. 1, 62, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).
Relevant to the present matter, “a state must avoid defining aggravating factors in an open-ended, subjective manner that would allow the trier unfettered discre
Pursuant to
We initially provided a core construction of
We begin by emphasizing that the aggravating factor is not proven by demonstrating merely that a defendant was callous or indifferent to the death of his or her victim, as the defendant repeatedly implies, but rather, the state must show that the defendant caused additional pain, suffering or torture to be inflicted on his victim and that he either specifically intended that additional pain, suffering or torture or was callous or indifferent to it. The United States Supreme Court has upheld against an eighth amendment vagueness chal
The defendant argues alternatively that this court‘s limiting construction of
It further “is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.” (Internal quotation marks omitted.) Id. In some instances, we have found greater protections for citizens of Connecticut in our own constitution than those provided by the federal constitution, and we have acknowledged that “[o]ur state constitutional inquiry may proceed independently from the decisions of the United States Supreme Court upholding the constitutionality of the death penalty.” (Internal quotation marks omitted.) Id., 207.
“The analytical framework by which we determine whether, in any given instance, our state constitution affords broader protection to our citizens than the federal constitutional minimum is well settled. In State v. Geisler [222 Conn. 672, 684-86, 610 A.2d 1225 (1992)], we enumerated the following six factors to be considered in determining that issue: (1) persuasive relevant federal precedents; (2) the text of the operative constitutional provisions; (3) historical insights into the intent of our constitutional forebears; (4) related Connecticut precedents; (5) persuasive precedents of other state courts; and (6) contemporary understandings of applicable economic and sociological norms, or as otherwise described, relevant public policies.” (Internal quotation marks omitted.) State v. Rizzo, supra, 266 Conn. 207-208.
We next turn to the first and fifth Geisler factors, relevant federal and sister state decisions. Controlling precedent from the United States Supreme Court is contrary to the defendant‘s claim, and lower federal courts have applied those holdings to reject eighth amendment challenges similar to the present one. See, e.g., Moore v. Gibson, 195 F.3d 1152, 1175-76 (10th Cir. 1999) (applying Walton to reject vagueness challenge
With regard to sister state jurisprudence, our research has disclosed a dearth of cases raising state constitutional challenges to factors akin to our heinous, cruel or depraved aggravator.56 A survey of the limiting constructions used in other states is pertinent, however, because those constructions were supplied by those states’ highest courts. Several states, like Connecticut, employ constructions that require the infliction of gratuitous pain, suffering or torture on the victim, coupled with a mental state akin to callousness or indifference. See, e.g., McCray v. State, 88 So. 3d 1, 74-75 (Ala. Crim. App. 2010) (“especially heinous, atrocious or cruel” contemplates “those conscienceless or pitiless homicides that are unnecessarily torturous to the victim“); State v. Gallardo, 225 Ariz. 560, 566, 242 P.3d 159 (2010) (“especially cruel” requires jury to find that victim “consciously suffered physical or mental pain, distress or anguish prior to death” and defendant “kn[e]w or should have known that the victim would suffer” [emphasis added; internal quotation marks omitted]), cert. denied, U.S. , 131 S. Ct. 1796, 179 L. Ed. 2d 665 (2011); Hall v. State, 614 So. 2d 473, 478 (Fla. 1993) (“heinous, atrocious, or cruel” means “accompanied by additional acts that show that the crime was conscienceless or pitiless and was unnecessarily torturous to the victim” [internal quotation marks omitted]), cert. denied, 510 U.S. 834, 114 S. Ct. 109, 126 L. Ed. 2d 74 (1993); State v. Osborn, 102 Idaho 405, 418, 631 P.2d 187 (1981) (“heinous, atrocious or cruel” means “accompanied by such additional acts as to set the crime apart from the norm of capital felonies—the conscienceless or pitiless crime which is unnecessarily torturous to the victim” [internal quotation marks omitted]); State v. Anderson, 996 So. 2d 973, 1006 (La. 2008) (“heinous, atrocious, and cruel” requires “torture or pitiless infliction of unnecessary pain“), cert. denied, 556 U.S. 1165, 129 S. Ct. 1906, 173 L. Ed. 2d 1057 (2009); Bennett v. State, 933 So. 2d 930, 955 (Miss. 2006) (“heinous, atrocious or cruel” means “the conscienceless or pitiless crime which is unnecessarily torturous to the victim,” e.g., “the defendant inflicted physical or mental pain before death” [internal quotation marks omitted]), cert. denied, 549 U.S. 1133, 127 S. Ct. 976, 166 L. Ed. 2d 740 (2007); State v. Syriani, 333 N.C. 350, 390, 428 S.E.2d 118 (“heinous, atrocious, or cruel” is “directed at the conscienceless or pitiless crime which is unnecessarily torturous to the victim“; “where the level of brutality involved exceeds that normally present in first-
Several other states use more broadly formulated limiting constructions, which, like the preceding jurisdictions, require the infliction of gratuitous pain, suffering or torture on the victim, but unlike those jurisdictions, do not specify a particular accompanying mind-set. See, e.g., People v. Burgess, 176 Ill. 2d 289, 314-15, 680 N.E.2d 357 (“exceptionally brutal or heinous behavior indicative of wanton cruelty” means “involv[ing] prolonged pain, torture or premeditation” [internal quotation marks omitted]), cert. denied, 522 U.S. 999, 118 S. Ct. 568, 139 L. Ed. 2d 408 (1997); State v. Kleypas, 282 Kan. 560, 570, 147 P.3d 1058 (2006) (“heinous, atrocious or cruel” means that victim suffered “serious physical abuse or mental anguish before death” [internal quotation marks omitted]); State v. Moore, 210 Neb. 457, 470, 316 N.W.2d 33 (“especially heinous, atrocious, or cruel” is “directed to the pitiless crime which is unnecessarily torturous to the victim and to cases where torture, sadism, or the imposition of extreme suffering exists” [emphasis added; internal quotation marks omitted]), cert. denied, 456 U.S. 984, 102 S. Ct. 2260, 72 L. Ed. 2d 864 (1982); Le v. State, 947 P.2d 535, 552 (Okla. Crim. App. 1997) (“especially heinous, atrocious, or cruel” is “directed to those crimes where the death of the victim was preceded by torture of the victim or serious physical abuse” [internal quotation marks omitted]), cert. denied, 524 U.S. 930, 118 S. Ct. 2329, 141 L. Ed. 2d 702 (1998); State v. Odom, 928 S.W.2d 18, 26 (Tenn. 1996) (“heinous, atrocious, or cruel” is act involving “torture or serious physical abuse beyond that necessary to produce death” [internal quotation marks omitted]); State v. Kell, 61 P.3d 1019, 1036 (Utah 2002) (“especially heinous, atrocious, cruel, or exceptionally depraved” involves serious physical abuse or
Although our research discloses some states that join a specific intent requirement with the infliction of gratuitous pain, suffering or torture, those jurisdictions are decidedly in the minority. See Echols v. State, 326 Ark. 917, 987, 936 S.W.2d 509 (1996) (“cruel” requires intent to inflict mental anguish, serious physical abuse or torture upon victim prior to death), cert. denied, 520 U.S. 1244, 117 S. Ct. 1853, 137 L. Ed. 2d 1055 (1997); State v. Perry, 124 N.J. 128, 172, 590 A.2d 624 (1991) (” ‘torture’ or ‘aggravated battery’ ” requires intent to cause extreme physical or mental suffering in addition to intent to cause death); Commonwealth v. Stevens, 559 Pa. 171, 201-202, 739 A.2d 507 (1999) (same, as to “torture“); State v. Moeller, 616 N.W.2d 424, 454 (S.D. 2000) (approving limiting construction of aggravating factor of torture to require: “[1] the unnecessary and wanton infliction of severe pain, agony, or anguish; and [2] the intent to inflict such pain, agony, or anguish“); Olsen v. State, 67 P.3d 536, 581 (Wyo. 2003) (construing “especially atrocious and cruel, being unnecessarily torturous to the victim” to require that physical or mental torture be intentionally inflicted); cf. People v. Superior Court, supra, 31 Cal. 3d 801-803 (concluding, under state constitutional due process analysis, that limiting construction approved by United States Supreme Court in Proffitt is impermissibly vague). In sum, because the number of other jurisdictions that utilize the construction advanced by the defendant is significantly outnumbered
As to the fourth Geisler factor, related Connecticut precedents, we have recognized that our due process clauses, like the eighth amendment, prohibit cruel and unusual punishment, and that they may impose limits on the imposition of the death penalty independent of any federal requirements. State v. Rizzo, supra, 266 Conn. 206. Although we have been willing, therefore, to consider claims that the Connecticut constitution provides greater protection to capital defendants than does the federal constitution, those claims rarely have been successful. See State v. Colon, 272 Conn. 106, 319, 864 A.2d 666 (2004) (rejecting claim that state constitution provides for right of allocution at capital sentencing hearing), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005); State v. Rizzo, supra, 223-24 (rejecting claim that state constitution requires jury instruction that, to impose penalty of death, aggravating factors must outweigh mitigating factors beyond reasonable doubt); State v. Ross, supra, 230 Conn. 247-51 (rejecting claim that state constitution forbids imposition of death penalty under any circumstances); State v. Ross, supra, 230 Conn. 252-56 (rejecting several facial challenges to death penalty statutes as violative of state constitution); but see State v. Rizzo, supra, 233-34 (concluding, with reference to state constitution, that jury, to impose death penalty, must be instructed that it must be persuaded beyond reasonable doubt that aggravating factors outweigh mitigating factors, by any degree). Because our prior jurisprudence in this area almost uniformly has held that, with respect to the specific claims at issue, federal and state constitutional rights are coextensive, the fourth Geisler factor does not assist the defendant.
Moreover, in the two cases in which this court has concluded that the jury improperly applied
We address last the third Geisler factor, historical considerations. As the state points out, the jurisprudential underpinnings of the defendant‘s vagueness claim are of relatively recent vintage. See Godfrey v. Georgia, supra, 446 U.S. 427-28; Gregg v. Georgia, supra, 428 U.S. 189-95; Furman v. Georgia, supra, 408 U.S. 239. Historically, the death penalty was available for a much broader range of offenses than under our present constitutional and statutory scheme; see State v. Ross, supra, 230 Conn. 250 n.31; id., 293 n.8 (Berdon, J., dissenting); and considerably more discretion was permitted in its
In sum, we conclude that consideration of the Geisler factors counsels against a holding that our state constitution requires a more restrictive limiting construction of
IV
The defendant claims next that there was insufficient evidence to prove that he committed his offense in an especially heinous, cruel or depraved manner. He argues specifically that the state failed to prove both that the victim experienced extreme physical or psychological pain or suffering beyond that necessarily accompanying his death and that the defendant was callous or indifferent to that pain or suffering.58 We disagree.
“[W]e have interpreted the aggravating factor set forth in
“In reviewing a claim that the evidence fail[ed] to support the finding of an aggravating factor specified
“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 [phase] hearing in the light most favorable to sustaining the facts . . . found by the [panel]. . . . 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 of the [panel] if there is sufficient evidence to support the [panel‘s] verdict. . . .
“Furthermore, [i]n viewing evidence [that] could yield contrary inferences, the [panel] 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 [panel‘s] function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .
“[Finally], [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circum
The three judge panel produced a written memorandum of decision explaining its determination that the aggravating factor had been proven beyond a reasonable doubt. The panel summarized the relevant evidence and its findings as follows: “During the evening of September 30, 1997, the defendant murdered [the victim] . . . at the defendant‘s home in Waterbury. He did this by luring the victim into the backyard of the defendant‘s home, where he bludgeoned the victim to death by repeated blows to the head with a three pound sledgehammer. . . .
“On September 30, 1997, the victim was thirteen years old. He lived with his mother and his sister in the Bunker Hill section of Waterbury. At approximately 6:30 p.m., the victim left his house and got onto his bicycle.
“Meanwhile, the defendant had left his job at Arett Sales in Cheshire and, at approximately 5 p.m., returned to his house in the Bunker Hill section, where he lived with his mother, his older brother and his younger sister.
“At approximately 7:45 p.m., the defendant encountered the victim as the victim rode his bicycle up to the front of the defendant‘s home.
“The defendant recognized the victim because he had spent time at the video store where the defendant
“The defendant decided to lure the victim to a secluded place where he could kill him unobserved. Believing that the victim would be interested in snakes, the defendant told him that there were snakes in his backyard, and he asked the victim if he wanted to see them. When the victim agreed, the defendant told him that they would need a flashlight to see the snakes in the darkness, and that he would get one from his car. The defendant went to his car and retrieved a flashlight and a three pound sledgehammer. The defendant slipped the sledgehammer down the front of his pants, rejoined the victim and took him into the backyard of the defendant‘s home.
“The defendant handed the flashlight to the victim so that he could look for snakes. As the victim was doing so, the defendant took the sledgehammer from his pants, approached the victim from behind, raised the sledgehammer over his head, held it there for a moment, and then hit the victim on the side of the head with the flat surface of the side of the sledgehammer. The victim rolled over and implored the defendant to stop hitting him, but the defendant straddled him ‘like a horse,’ and began to hit him in the head ‘because [he] didn‘t want [the victim] to scream out and alert the neighbors.’ After the defendant had delivered a number of blows with the sledgehammer, the victim made a gurgling sound. The defendant then delivered another one or two blows to ensure that the victim was dead.
“In all, the defendant delivered approximately twelve blows to the victim—four to the head, then eight others on the back and shoulders. The blows to the back and shoulders were not fatal, and did not result in bleeding.
“During the attack, the victim attempted to protect himself. One of the blows punched out a large fragment of the victim‘s skull, creating a gaping hole.
“At some point, two dogs in a neighbor‘s yard began to bark, and the dogs’ owner came out of his house to quiet them down. The defendant stopped the beating, and held the flashlight against his body so that the neighbor would not see light coming from his yard. After the neighbor returned to his house, the defendant shone the flashlight on the victim‘s body, and saw that he was covered in blood and had a large hole in his skull.
“The defendant then decided to dump the victim‘s body on Fulkerson Drive in Waterbury, which [is] located a short distance from the defendant‘s house. Realizing that his car was too small to carry both the victim‘s body and his bicycle in one trip, the defendant took the bicycle to Fulkerson Drive and left it next to a dumpster. He then returned to his house, put garbage bags over the victim‘s head and lower part of his body, dragged the body to his car, and opened the hatchback. He then removed the rug that covered the rear portion of his car to ensure that it would not be stained with blood, placed the victim‘s body into the rear portion of the car, and drove to Fulkerson Drive.
“At approximately 8:30 p.m., the defendant drove into a condominium complex on Fulkerson Drive, looking for a place to dispose of the body. Eventually, he located a dark, secluded area, where he stopped the car and threw the victim‘s body onto the pavement.
“The victim‘s body was discovered on Fulkerson Drive at approximately 8:45 p.m. that same night.
“By the next day the defendant had become the focus of the investigation. At 5 p.m., the defendant was approached by members of the Waterbury police department who asked him if he would be willing to go to the police station and answer some questions. The defendant agreed. During the course of his presence at the police station the defendant denied that he knew the victim and claimed no knowledge of the murder. The defendant was allowed to return to his home with the police.
“Pursuant to consent by the defendant, the police subsequently searched the defendant‘s car. That search produced smears in the spare tire wheel well area that appeared to be blood. When confronted with the blood smears in his car, the defendant said, ‘I feel sick’ and ‘I did it.’ The defendant further explained that, as he spoke to the victim, he ‘had an urge.’ He also stated [that] he ‘was interested in serial killings and Jeffrey Dahmer’ and that, when he saw the victim, the urge to commit murder ‘just came over him . . . .’ The next day, while being transported to court for his arraignment, the defendant told a police detective that he had murdered the victim because he just wanted to know what it was like to kill somebody.
“Additional evidence presented by the state established that the defendant had served in the United States Marine Corps from November, 1996, to September, 1997. While the defendant was stationed in Hawaii, his
“The panel unanimously finds that the state has proven the aggravating factor beyond a reasonable doubt. The panel unanimously finds that the murder of [the victim] was committed in an especially cruel, heinous and depraved manner.
“The panel further unanimously finds, based on the evidence and beyond a reasonable doubt, that the defendant engaged in intentional conduct that inflicted extreme physical pain and psychological pain (suffering) on the victim above and beyond that necessarily accompanying the underlying killing and [that] the defendant was callous and indifferent to the extreme physical pain and psychological pain and suffering that his intentional conduct in fact inflicted on the victim.
“The panel‘s findings of intentional conduct that inflicted extreme physical pain and psychological pain and suffering beyond that necessarily accompanying the underlying killing is based upon: the type of weapon used by the defendant; the manner in which the defendant utilized the sledgehammer; the defendant‘s obsession with violent deaths and serial killers; [and] the defendant‘s preexisting desire to kill.
“The finding that the victim experienced extreme physical pain and psychological pain and suffering as the result of the defendant‘s intentional conduct is supported by: the number and nature of sledgehammer blows to the head and torso of the victim; the victim‘s attempt to protect himself; the profuse bleeding from the victim‘s wounds; the nature and circumstances of a nighttime attack in a dark and secluded location; and the victim‘s last words, imploring the defendant to stop hitting him.
The defendant argues, in short, that the evidence did not establish the heinousness, cruelty and depravity of his acts in murdering the victim because the attack was unanticipated, the victim‘s death likely was swift and, accordingly, the victim simply did not suffer enough either physically or psychologically. We are not persuaded. Courts frequently have concluded that aggravating circumstances similar to Connecticut‘s cruel, heinous and depraved factor were sufficiently proven in cases in which a victim was killed by beating or bludgeoning, even when the attack is not especially prolonged and the victim‘s loss of consciousness and death occur rather quickly.59 See, e.g., State v. Colon,
Consequently, if the state can establish that the victim remained conscious for some part of the defendant‘s attack, and experienced extreme physical or psychological pain or suffering while conscious, the evidence may be sufficient to prove the aggravator. Evidence that the victim continued to move around during the attack is relevant in this regard. See, e.g., McGowan v. State, supra, 990 So. 2d 1004-1005 (evidence that victim was on hands and knees during part of hammer attack demonstrated that he was conscious and suffered before dying); State v. Barden, supra, 356 N.C. 371 (defendant‘s statement that victim, following initial blows, reached for his pocket, suggested that victim did not die immediately); Eizember v. State, 164 P.3d 208, 242 (Okla. Crim. App. 2007) (evidence that victim attempted to get up after being struck with butt of shotgun sufficient to demonstrate conscious suffering), cert. denied, 552 U.S. 1269 (2008); cf. State v. Breton, 235 Conn. 206, 222-24, 663 A.2d 1026 (1995) (evidence that victim moved around room during beating and stabbing attack supports conclusion that she was conscious and suffered extreme physical pain).
Additionally, evidence that a victim attempted to protect himself from the blows inflicted by his attacker demonstrates that the victim remained alive and conscious while being assaulted and, therefore, endured physical and psychological pain and suffering. See Williams v. State, 37 So. 3d 187, 200 (Fla. 2010) (“[t]he existence of a defensive wound is relevant to the [heinous, atrocious, or cruel] analysis—this [c]ourt has affirmed findings of [the heinous, atrocious, or cruel factor] where defensive wounds revealed awareness of impending death” [internal quotation marks omitted]); see also State v. Porter, 130 Idaho 772, 790, 948 P.2d 127 (1997) (numerous bruises on victim‘s forearms appeared defensive and indicative of premortem suffering), cert. denied, 523 U.S. 1126 (1998); Young v. State, 992 P.2d 332, 344, 348 (Okla. Crim. App. 1998) (defensive fractures to victim‘s finger, hand and elbow proved her consciousness and awareness of attack with baseball bat), cert. denied, 528 U.S. 837 (1999); State v. Melson, 638 S.W.2d 342, 367 (Tenn. 1982) (defensive injuries to arms and hands of victim, who was killed with ball peen hammer, proved “that there was time for her to realize what was happening, to feel fear, and to try to protect herself“), cert. denied, 459 U.S. 1137 (1983).
Finally, evidence that a victim spoke after the attack began clearly is indicative of consciousness and, therefore, pain and suffering. See State v. Kiles, supra, 222 Ariz. 30 (defendant admitted that, following initial blow, victim asked him, “‘[W]hy did [you] do this?‘“); Salvatore v. State, supra, 366 So. 2d 747 (victim bludgeoned as he cried for help); compare Herzog v. State, 439 So. 2d 1372, 1380 (Fla. 1983) (where victim was under “heavy influence” of drugs and neither spoke nor resisted during fatal attack, it could be inferred that she was only semiconscious; murder, therefore, was not unnecessarily torturous).
In the present case, evidence on which the panel relied, in particular, the defendant‘s own sworn statement to the police,60 established that the victim remained conscious beyond the first blow to his head that the defendant inflicted with the sledgehammer and, therefore, experienced physical and psychological pain and suffering while some or all of the remaining blows were delivered. Specifically, the defendant stated that,
Although the defendant argues that the panel should have drawn a different inference as to the source of the blood on the victim‘s gloves, we do not agree. We reiterate that, “[i]n viewing evidence [that] could yield contrary inferences, the [panel] 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 [panel‘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. Courchesne, supra, 296 Conn.
Regarding the panel‘s finding that the defendant was callous and indifferent to the pain and suffering he caused the victim, we disagree with the defendant that the panel made improper inferences from the evidence presented. The defendant‘s choice of a sledgehammer as a weapon with which to beat the victim repeatedly on his head, causing profuse bleeding and dislodging a portion of the victim‘s skull, reasonably suggests that the defendant was not concerned with the victim‘s pain and suffering. See State v. Call, 353 N.C. 400, 425, 545 S.E.2d 190 (2001) (defendant lured victim to isolated area and beat him to death with shovel handle and tire iron with no provocation, supporting inference that murder was conscienceless and pitiless), cert. denied, 534 U.S. 1046 (2001). Moreover, the defendant‘s statements that he killed the victim because he “had an urge” and “just wanted to know what it was like to kill somebody,” as well as his general failure at the time to show any remorse for murdering an innocent child,63 are competent evidence of the defendant‘s cal-
The defendant argues additionally that the defendant‘s interest in serial killings does not reasonably indicate that the victim experienced pain and suffering beyond that necessary to cause his death. We agree. The trial court cited that circumstance, however, in support of its finding that the defendant‘s conduct was intentional, not in support of its finding that the victim experienced extreme physical and psychological pain and suffering as a result of the defendant‘s intentional conduct.
We conclude that the evidence was sufficient to support the panel‘s findings that the defendant inflicted extreme physical and psychological pain and suffering on the victim beyond that necessarily accompanying
V
The defendant‘s next claim is that
The defendant acknowledges that this claim already was raised, and rejected, in his first appeal; see State v. Rizzo, supra, 266 Conn. 290-91; but argues that this court decided it incorrectly. We disagree. We have reviewed the authority cited by the defendant, including the authorities that arose after our decision in Rizzo,64 and we conclude that our previous holding, that the defendant had failed to establish that
The defendant claims next that the panel‘s findings as to mitigation were improper. According to the defendant, it was error for the panel to find proven only one of the mitigating factors that he proposed and to reject all of the others. We disagree.
The following additional procedural history is relevant to this claim. The defendant submitted a list of forty-five proposed mitigating factors to the panel for its consideration, arguing that the factors were both factually proven and mitigating in nature. Generally, the proposed mitigating factors concerned the defendant‘s age at the time of his crime, his deplorable home environment and neglectful upbringing, his small stature as a child and the resulting bullying and harassment he endured, his positive attributes, talents and contributions to his family and community, his steady employment history, his military service, his cooperation with the police in their investigation of the victim‘s murder and his eventual remorse for his crime.65 The final proposed mitigating factor submitted by the defendant was “[t]he cumulative or combined effect of all the evidence concerning [the defendant‘s] character, background or history or the nature [or] circumstances of the crime which the court, in fairness and mercy, finds is mitigat-
We now turn to the evidence presented by the defendant in support of mitigation. Ellen Knight, an investigator for the division of public defender services, testified as to the state of the defendant‘s home at 15 Marion Avenue shortly after his arrest. Knight described the condition of the property as unlike anything she had ever seen. In short, the house had fallen into severe disrepair, was filthy and overrun with clutter and garbage, and reeked from the presence of several cats and their accumulated waste. The washing machine, oven, a refrigerator and one bathroom were not functional. The kitchen subfloor long had been exposed due to removal, without subsequent replacement, of the linoleum covering, and part of a downstairs ceiling had collapsed from a leak in an upstairs bathroom. The surrounding yard was poorly maintained and overrun with vegetation. Extensive photographic and videotaped evidence showing the condition of the property was submitted into the record after being identified and described by Knight.
There was evidence showing that Peter Rizzo sometimes had failed to abide by the parties’ biweekly visitation schedule by picking up his children as planned. Additionally, he sometimes fell behind on his child support payments, although he eventually caught up. On one occasion, after having the children with him for the Thanksgiving holiday, he dropped them off early at home while Moffatt was out of state visiting relatives. Although Peter Rizzo generally lived nearby in Cheshire following the divorce, he moved out of state for a period beginning in 1995, when the defendant was about sixteen years old.
Testimony from the Rizzo family, as well as other documentary evidence, established that the defendant
Two of the defendant‘s neighbors, Barbara Voglesong and Paula Delage, also testified. They confirmed that the defendant and his siblings often were unsupervised and outside alone after dark, and that their house was disheveled and smelled strongly of cat urine. The defendant and his sister played with Voglesong‘s children often, and Voglesong testified that the defendant seemed to be looking for a mother. A middle school friend of the defendant confirmed that he was unsupervised and “had [a lot of] freedom . . . .”
Several witnesses testified as to the defendant‘s strong interest in violent, gory “slasher films” and horror themed books, an interest he was able to pursue freely due to lack of supervision. Moffatt was either unable or unwilling to prevent the defendant from viewing these materials.
The defendant was an avid and talented cook. At home, he prepared meals for himself and his siblings. While in high school, he received an award for creativity in culinary arts.
Evidence was submitted to show that the defendant was an involved churchgoer. The defendant and his sister continued to attend church by themselves following their parents’ divorce, when the rest of the family ceased to go. The defendant brought homemade baked goods to church events and he participated in a Christmas pageant one year.
Testimony from several witnesses, both young and adult, tended to show that the defendant had good rela-
Lynn Connolly managed a video store at which the defendant once had worked, and she lived in an apartment above the store. Connolly testified that the defendant spent much time at her apartment and also at a neighbor‘s apartment, that she permitted the defendant to baby-sit her children and that she never had any concerns about him. Violet Boisvert also lived in the vicinity of the video store and met the defendant when he was about fifteen years old. She testified that the defendant often visited her home and that she never had any problem with him. Boisvert testified that her family loved the defendant, that he always was welcome in her home and that she trusted him with her children. Mary Sweet McKeown, Kenneth Sweet‘s mother, testified that the defendant visited her home a few times a month, that he stayed overnight sometimes and that she would wash his clothes for him. McKeown stated that the defendant was like a second son to her, that she trusted him and that she had no concerns about him. Daisy DeJesus, the mother of another high school friend of the defendant, testified that the defendant was welcome at her home, that he ate meals there and that
The defendant demonstrated that he had been a decent student with no disciplinary problems. He was admitted to the culinary arts program at Warren F. Kaynor Regional Vocational-Technical School (Kaynor) after being highly recommended on the basis of his good middle school grades, a strong interview and other considerations. While attending Kaynor, the defendant maintained an average class rank, and he graduated in 1996 in the middle of his class. In his senior year, he was accepted into a culinary school in South Carolina, but ultimately did not attend. Testimony from the defendant‘s parents suggested that one or both of them had failed to complete paperwork necessary for him to receive financial aid. Following graduation, instead of attending culinary school, the defendant joined the Marine Corps. While in the Marines, the defendant completed boot camp and infantry training, and received a certificate of appreciation for service he had performed as a recruit religious lay reader. During the additional, highly rigorous training that followed, the defendant became demoralized and caused himself to be discharged from service, apparently by eating marijuana and subsequently failing a drug test.
Evidence was presented about hazing activities, some of a sexual nature, to which the defendant, and approximately five to seven other classmates, were subjected in their sophomore year at Kaynor. Senior classmates, typically within the confines of a locker room, engaged in activities such as throwing the younger boys into lockers, pulling their pants down and “goos[ing]” them. At times, an upperclassman would shove a younger boy‘s face into the upperclassman‘s crotch, or the upperclassman would sit on the younger boy‘s face or on his chest facing his head, when the upperclassman
The defendant introduced evidence showing that he had been employed consistently for many years, beginning when he was in middle school. He had worked at a video store, several restaurants and a bakery, for the local newspaper and as a telemarketer. At the video store, he was trusted and given a lot of responsibility. When he returned home after being discharged from the Marine Corps, he immediately secured employment through a temporary agency.
Finally, the defendant presented the expert testimony of James Garbarino, a developmental psychologist who specializes in childhood and adolescence, for the stated purpose of providing context to the panel for its evaluation of the other evidence offered in mitigation. Garbarino testified that the years encompassing adolescence are not subject to fixed definition, and that brain maturation typically continues into the early twenties. He opined that, during adolescence, a person is more prone to impulsive acts. Garbarino also spoke of the importance of adults, particularly parents, being present in a child‘s life to teach and influence moral behavior, and about the negative effects of abuse and neglect on a child‘s development. He explained how shame could lead to rage, possibly resulting in violent responses to relatively minor problems. Garbarino also testified that
chronic trauma or assaults could lead to “emotional numbing” as an adaptation, making a person appear cold and emotionless. Additionally, he discussed the potential outcomes of “toxic environment[s],” which could be physical or social, and opined that televised violence could affect a child‘s aggressive behavior. Finally, Garbarino explained how the path of a particular individual‘s development is determined both by the various risk factors to which he is exposed and the individual‘s personal characteristics, in particular his resilience. He added that a child‘s having at least one person in his life who is “crazy about” him can add to the child‘s resilience.
To rebut the defendant‘s case in mitigation, the state relied on its cross-examination of defense witnesses. With regard to the condition of the defendant‘s home, the state‘s attorney established that, despite the deplorable state of the property, the defendant‘s family members lived there for years, both before and after his arrest, and essentially chose to live that way. Several witnesses confirmed that, although they were aware that children lived in the house they considered uninhabitable, they never thought to report the situation to the department of children and families.
The defendant‘s family members verified that their house did not always appear as it did at the time of the defendant‘s arrest. Rather, prior to the parents’ divorce, it was well kept and clean. Additionally, the house was located in a nice neighborhood with many other children and a park. Prior to the divorce, the family celebrated holidays together, attended church and went on camping trips. Moffatt testified that, after the divorce, there was no money available for home repairs, but that her children were her number one concern, she tried to maintain a stable home for them and she sacrificed herself for them. Although she often was absent, no physical harm to the children ever resulted.
Peter Rizzo testified that he never abused his children, physically or psychologically, and that he loved them very much. He stated that, during his marriage to Moffatt, the house was neat and the children were happy and wanted for nothing. Following the divorce, he supported the children as best he could, and they always had health insurance. Peter Rizzo testified that he has never stopped loving the defendant and has always been in contact with him.
Although both Chelsea Rizzo and Brandon Rizzo found deficiencies in their upbringing, they nevertheless agreed that their parents loved them. Both of them confirmed that, despite their troubled and neglectful childhood experience, they had completed their high school educations, had never been arrested and had maintained steady employment. Brandon Rizzo testified that, although he did not feel close to his parents when growing up, they were available to give him advice if he wanted it.
When cross-examining Garbarino, the state‘s attorney elicited that Garbarino had not interviewed or evaluated the defendant, nor had he prepared a report specific to the facts of this case. Particularly, Garbarino agreed that he knew “very little” about the case and had read no reports about it other than “one very brief summary . . . .” During his questioning of Garbarino, the state‘s attorney effectively highlighted that many of the risk factors or characteristics of troubled youth about which Garbarino generally had spoken did not
After our careful review of the evidence presented by the defendant in support of mitigation, we disagree that, as to each proposed individual factor, the evidence, viewed within the context of all of the facts and circumstances of the case, “was so clear and so compelling that the [panel], in the exercise of reasoned judgment, could not have rejected it“; (internal quotation marks omitted) State v. Breton, supra, 264 Conn. 367; or that the evidence necessarily “compel[led] a finding that [the established] facts extenuate[d] or reduce[d] the degree of [the defendant‘s] culpability or blame for the offense or . . . otherwise constitute[d] a basis for a sentence less than death.”69 (Internal quotation marks omitted.) Id., 379. The panel reasonably could have concluded that the defendant‘s childhood, although severely lacking in some respects, was positive in others. The panel might have reasoned that, prior to his parents’ divorce, the defendant‘s home life was fairly normal, despite his parents’ unhappiness. Although following the divorce, parental presence and involvement in the defendant‘s life clearly was deficient,
Additionally, the panel reasonably could have found uncompelling the argument that the defendant‘s youth, and the traumatizing aspects of it, were mitigating in nature in light of the substantial achievements the defendant was able to realize despite his tender age and unfortunate circumstances. Specifically, the panel might have questioned how a person could possess the maturity and discipline to complete high school and military training, to maintain several years of steady employment; see footnote 13 of this opinion; and to refrain from abusing drugs or alcohol, but nevertheless lack the awareness and self-control that would have prevented him from murdering an innocent child without reason or provocation.70
VII
The defendant claims next that the panel improperly determined that the proven aggravating factor outweighed the proven mitigating factor.72 According to the defendant, the panel‘s determination was not a reasoned moral judgment based on the evidence, and the sentence of death that the panel imposed was excessive and disproportionate. The state argues alternatively that the defendant‘s claim is not reviewable or, even if it is, the panel reasonably concluded that the aggravating factor outweighed the mitigating factor. We agree with the state that the panel‘s determination was reasonable.
Pursuant to our death penalty scheme, if the state proves the existence of one or more aggravating factors beyond a reasonable doubt, and the defendant fails to prove any statutory mitigating factors but proves one or more nonstatutory mitigating factors by a preponderance of the evidence, the sentencer then weighs the established aggravating factor or factors against the established nonstatutory mitigating factor or factors. If the sentencer finds that the nonstatutory mitigating factor or factors are outweighed by the aggravating factor or factors, the defendant shall be sentenced to death.
In State v. Courchesne, supra, 296 Conn. 784, we assumed, without deciding, that a claim of improper weighing was reviewable, and we concluded, on the basis of the evidence presented, that the jury reasonably could have found, beyond a reasonable doubt, that the proven aggravating factor outweighed the alleged nonstatutory mitigating factors.74 We conclude similarly today.
The evidence established, and the panel found, that the defendant murdered the thirteen year old victim in a cruel, heinous and depraved manner. The defendant lured the victim into a secluded backyard under the pretense of looking for snakes, then murdered the victim by beating him in the head repeatedly with a sledgehammer. The defendant‘s conduct was intentional, and the victim survived long enough to experience extreme
VIII
The defendant argues next that his death sentence was imposed arbitrarily and capriciously in violation of
In advancing this claim, the defendant cites no authority that directly supports it, and completely ignores extensive federal and state jurisprudence that rejects it. See McClesky v. Kemp, 481 U.S. 279, 307, 311-12, 313-14 n.37, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987); Jurek v. Texas, 428 U.S. 262, 274, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976); Proffitt v. Florida, supra, 428 U.S. 254; Gregg v. Georgia, supra, 428 U.S. 198-99 and n.50, 224-26; United States v. Mitchell, 502 F.3d 931, 982 (9th Cir. 2007), cert. denied, 553 U.S. 1094, 128 S. Ct. 2902, 171 L. Ed. 2d 843 (2008); United States v. Sampson, 486 F.3d 13, 24-25 (1st Cir. 2007), cert. denied, 553 U.S. 1035, 128 S. Ct. 2424, 171 L. Ed. 2d 234 (2008); Williams v. Bagley, 380 F.3d 932, 963 (6th Cir. 2004), cert. denied sub nom. Williams v. Bradshaw, 544 U.S. 1003, 125 S. Ct. 1939, 161 L. Ed. 2d 779 (2005); Joubert v. Hopkins, 75 F.3d 1232, 1248 (8th Cir.), cert. denied, 518 U.S. 1029, 116 S. Ct. 2574, 135 L. Ed. 2d 1090 (1996); Davis v. Greer, 13 F.3d 1134, 1144 (7th Cir.), cert. denied, 513 U.S. 933, 115 S. Ct. 328, 130 L. Ed. 2d 287 (1994); Hawkins v. Wong, United States District Court, Docket No. CIV S-96-1155 MCE EFB DP (E.D. Cal. September 2, 2010); Duckett v. McDonough, 701 F. Sup. 2d 1245, 1293 (M.D. Fla. 2010); Kerr v. Thaler, United States District Court, Docket No. 4:06-CV-372-Y (N.D. Tex. September 17, 2009); Moeller v. Weber, 635 F. Sup. 2d 1036, 1044-45 (D.S.D. 2009); Moreland v. Bradshaw, 635 F. Sup. 2d 680, 725-26 (S.D. Ohio 2009); United States v. Tisdale, United States District Court, Docket No. 07-10142-05-JTM (D. Kan. December 8, 2008); Hamilton v. Ayers, 458 F. Sup. 2d 1075, 1144-45 (E.D. Cal. 2006), rev‘d in part on other grounds, 583 F.3d 1100 (9th Cir. 2009); Crowe v. Terry, 426 F. Sup. 2d 1310, 1355 (N.D. Ga. 2005), aff‘d sub nom. Crowe v. Hall, 490 F.3d 840 (11th Cir. 2007), cert. denied, 553 U.S. 1007, 128 S. Ct. 2053, 170 L. Ed. 2d 798 (2008); Middleton v. Roper, United States District Court, Docket No. 4:03CV543 CDP (E.D. Mo. September 21, 2005); Madrigal v. Bagley, 276 F. Sup. 2d 744, 805 (N.D. Ohio 2003), aff‘d, 413 F.3d 548 (6th Cir. 2005); Smith v. Anderson, 104 F. Sup. 2d 773, 846-47 (S.D. Ohio 2000), aff‘d, Smith v. Mitchell, 348 F.3d 177 (6th Cir. 2003), cert. denied, 543 U.S. 841, 125 S. Ct. 278, 160 L. Ed. 2d 65, reh. denied, 543 U.S. 1016, 125 S. Ct. 646, 160 L. Ed. 2d 488 (2004); United States v. Davis, 904 F. Sup. 554, 559-60 (E.D. La. 1995); United States v. Cooper, 754 F. Sup. 617, 625 (N.D. Ill. 1990); Phillips v. State, 650 So. 3d 971, 1037-38 (Ala. Crim. App. 2010); State v. Smith, 193 Ariz. 452, 463, 974 P.2d 431, cert. denied, 528 U.S. 880, 120 S. Ct. 191, 145 L. Ed. 2d 161 (1999); Simpson v. State, 339 Ark. 467, 470-71, 6 S.W.3d 104 (1999); People v. Vines, 51 Cal. 4th 830, 889-90, 251 P.3d 943, 124 Cal. Rptr. 3d 830 (2011); Dawson v. State, 581 A.2d 1078, 1099-1100 (Del. 1990), vacated on other grounds, 503 U.S. 159, 112 S. Ct. 1093, 117 L. Ed. 2d 309 (1992); Wade v. State, 41 So. 3d 857, 874-76 (Fla. 2010), cert. denied, 562 U.S. 1183, 131 S. Ct. 1004, 178 L. Ed. 2d 835 (2011); Arrington v. State, 286 Ga. 335, 337, 687 S.E.2d 438 (2009), cert. denied, 562 U.S. 853, 131 S. Ct. 112, 178 L. Ed. 2d 69 (2010); People v. Thompson, 222 Ill. 2d 1, 54, 853 N.E.2d 378 (2006), cert. denied, 549 U.S. 1254, 127 S. Ct. 1393, 167 L. Ed. 2d 163 (2007); Harrison v. State, 644 N.E.2d 1243, 1258 (Ind. 1995); Hunt v. Commonwealth, 304 S.W.3d 15, 55 (Ky. 2009), cert. denied, 562 U.S. 882, 131 S. Ct. 203, 178 L. Ed. 2d 122 (2010); Johnson v. State, 333 S.W.3d 459, 471 (Mo. 2011); State v. Gales, 269 Neb. 443, 461-62, 694 N.W.2d 124, cert. denied, 546 U.S. 947, 126 S. Ct. 449, 163 L. Ed. 2d 341 (2005); State v. Koedatich, 112 N.J. 225, 250-57, 548 A.2d 939 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989); State v. Clark, 128 N.M. 119, 142-43, 990 P.2d 793 (1999); State v. Blakeney, 352 N.C. 287, 312-13, 531 S.E.2d 799 (2000), cert. denied, 531 U.S. 1117, 121 S. Ct. 868, 148 L. Ed. 2d 780 (2001); Romano v. State, 847 P.2d 368, 392-93 (Okla. Crim. App. 1993), aff‘d, 512 U.S. 1, 114 S. Ct. 2004, 129 L. Ed. 2d 1 (1994); State v. Longo, 341 Or. 580, 602-603, 148 P.3d 892 (2006), cert. denied, 552 U.S. 835, 128 S. Ct. 65, 169 L. Ed. 2d 53 (2007); Commonwealth v. Crews, 552 Pa. 659, 663-64, 717 A.2d 487 (1998); State v. Moeller, supra, 616 N.W.2d 463; State v. Banks, 271 S.W.3d 90, 154-55 (Tenn. 2008), cert. denied, 556 U.S. 1156, 129 S. Ct. 1677, 173 L. Ed. 2d 1043 (2009); Whitaker v. State, 286 S.W.3d 355, 367 (Tex. Crim. App. 2009); State v. Lafferty, 20 P.3d 342, 379 (Utah 2001), cert. denied, 534 U.S. 1018, 122 S. Ct. 542, 151 L. Ed. 2d 420 (2001); State v. Harris, 106 Wn. 2d 784, 793-94, 725 P.2d 975 (1986), cert. denied, 480 U.S. 940, 107 S. Ct. 1592, 94 L. Ed. 2d 781 (1987).
These cases recognize, in sum, that prosecutorial discretion is an essential component of the criminal justice system in general, and of a constitutional death penalty system in particular, and it often results in leniency. Additionally, prosecutorial discretion is not truly unbri-
IX
The defendant‘s final claim is that the death penalty, in general, constitutes cruel and unusual punishment in violation of the state constitution. Although we previously have rejected this claim; see State v. Ross, supra, 230 Conn. 249-52; see also State v. Webb, supra, 238 Conn. 406; the defendant requests that we reconsider it in light of subsequent developments in law and policy.81 We accept the defendant‘s invitation to revisit this issue, but again disagree that the death penalty violates the state constitution.82
We initially determined that five of the Geisler factors—(1) the text of the constitutional provisions; (2) related Connecticut precedents; (3) persuasive federal precedents; (4) persuasive precedents of other state courts; and (5) historical insights into the intent of our constitutional forbears—did not support the defendant‘s claim that the death penalty should be declared unconstitutionally unacceptable on its face. Id., 249. We explained: “In
We thereafter considered the sixth Geisler factor, contemporary understandings of applicable economic and sociological norms, and we disagreed with the defendant‘s argument “that the death penalty is so inherently cruel and so lacking in moral and sociological justification that it is unconstitutional on its face because it is fundamentally offensive to evolving standards of human decency.” Id., 251. We reasoned that community standards of acceptable legislative policy choices necessarily were reflected in our constitutional text, our history and the teachings of the jurisprudence of other state and federal courts. Id. We found particularly compelling the fact that, in the ten years following the United States Supreme Court‘s invalidation of all of the states’ capital punishment schemes due to their failure to channel properly the sentencer‘s discretion, thirty-seven states had passed new death penalty legislation designed to comply with the court‘s constitutional directives. Id. We concluded that, given that circumstance, “the probability that the legislature of each state accurately reflects its community‘s standards approaches certainty.” (Internal quotation marks omitted.) Id.
We then emphasized that, although the death penalty itself is not cruel and unusual punishment contrary to the state constitution, the imposition of the penalty
Two years later, in State v. Webb, supra, 238 Conn. 406, an en banc panel comprised entirely of members of this court84 reaffirmed the holding of Ross recited herein,85 and we since have repeated the holding on several occasions without elaboration. See State v. Colon, supra, 272 Conn. 382-83; State v. Breton, supra, 264 Conn. 417-18; State v. Reynolds, supra, 264 Conn. 236-37; State v. Cobb, supra, 251 Conn. 496-97. The defendant asks that we reconsider these holdings in light of the current legal and sociological landscape.
We agree with the defendant that, in determining whether a particular punishment is cruel and unusual in violation of constitutional standards, we must “look beyond historical conceptions to the evolving standards
We first consider developments in the capital punishment jurisprudence of the United States Supreme Court.86 In the years since Ross and Webb were decided, the United States Supreme Court has held that the death penalty is constitutionally impermissible for nonhomicide crimes against individuals; see Kennedy v. Louisiana, 554 U.S. 407, 413, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008); and it has adopted categorical rules prohibiting the imposition of the death penalty for defendants who committed their crimes prior to the age of eighteen; see Roper v. Simmons, supra, 543 U.S. 551, 568-71; or whose intellectual functioning is in a low range. See Atkins v. Virginia, 536 U.S. 304, 318-21, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). It remains settled federal law, however, that the
Notably, these federal constitutional developments did not change the law in Connecticut, because our legislature had acted ahead of the United States Supreme Court to prohibit executions of persons with mental retardation. See
More importantly, at this point in time, a strong majority of jurisdictions—thirty-four states, the federal government and the military—still authorize the death penalty, while only sixteen states do not. See Death Penalty Information Center, “Facts about the Death Penalty,” (updated November 17, 2011), p. 1, available at http://www.deathpenaltyinfo.org/documents/FactSheet.pdf (last visited November 18, 2011) (copy contained in the file of this case in the Supreme Court.
Although “the clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country‘s legislatures“; (internal quotation marks omitted) Atkins v. Virginia, supra, 536 U.S. 312; in assessing whether a punishment is constitutionally sound, it also is appropriate for us to consider what is occurring in actual practice. For example, in Graham v. Florida, supra, 560 U.S. 64, in holding that the sentence of life imprisonment without the possibility of parole was cruel and unusual punishment for a juvenile who had committed a nonhomicide offense, the United States Supreme Court considered, inter alia, that nationwide, only 123 people were serving such sentences in only eleven jurisdictions. In contrast, as to the death penalty generally, as of January 1, 2011, there were 3251 inmates held on death row nationwide by thirty-six
The defendant directs us to the fact that, despite the large number of inmates on death row, the number of executions actually carried out over the past decade generally has declined gradually, hitting a low point in 2008 before rising again.90 The numbers remain substantially higher, however, than those in the ten years preceding our decision in Ross.91 In addition, the decrease in 2007 and 2008 likely was attributable in part to moratoria imposed in 2007 following the United States Supreme Court‘s grant of certification in Baze v. Rees, supra, 553 U.S. 41, an appeal in which it was argued, unsuccessfully, that the risk of error in administration of lethal injection, the method of execution utilized by most death penalty states, rendered that form of capital punishment unconstitutional. Also a factor impeding executions in recent years is a shortage of thiopental sodium, which is used in lethal injections, as well as
We recognize that imposition of new death sentences also has declined substantially over the past decade, from 224 in 2000 to 112 in 2010. Death Penalty Information Center, “Facts about the Death Penalty,” supra, p. 3. Various reasons have been posited for the decline, however, including: the high costs of the death penalty at a time when state budgets are strained from a weak economy; publicity about convictions overturned due to DNA evidence; a significant drop in rates of violent crime and murder; improved legal representation for capital defendants, including the greater use of mitigation specialists; and the increasingly available option
The defendant points to public opinion polls as support for his claim of waning societal support for the death penalty. The most recent polling data indicate, however, that public support for the death penalty in Connecticut remains strong.95 According to a Quinnipiac University poll released in March, 2011, 67 percent of Connecticut voters supported the death penalty, while only 28 percent were opposed to it.96 D. Schwartz, Quin-
The defendant also argues that this court should look to practices in some other nations, or to a resolution of the United Nations calling for the abolition of capital punishment, to determine whether the death penalty offends contemporary sociological norms in Connecticut. In its eighth amendment jurisprudence, the United States Supreme Court at times has referenced international norms as support for its own determinations, while at the same time making clear that the opinions prevalent in other nations could never control over a domestic legislative climate running decidedly counter to such opinions. See Graham v. Florida, supra, 560 U.S. 80 (noting that punishment at issue had been rejected in all other nations, but emphasizing that “[t]his observation does not control our decision [and that] judgments of other nations and the international community are not dispositive as to the meaning of the [e]ighth [a]mendment“); Roper v. Simmons, supra, 543 U.S. 578 (“[t]he opinion of the world community [which universally97 had ceased to give official sanction to the
In State v. Allen, 289 Conn. 550, 585, 958 A.2d 1214 (2008), we took a similar view of the relevance of international norms in a case involving a claim of an unconstitutional sentence. In rejecting the defendant‘s argument that life in prison with no possibility of release for a juvenile convicted of capital felony and murder was cruel and unusual punishment in violation of the eighth amendment, we recognized that the overwhelming majority of countries around the world had rejected that approach and that that circumstance was constitutionally relevant. We agreed, moreover, that the large number of juveniles serving life sentences in the United States raised troubling questions. Id. We ultimately concluded, however, that the overwhelming weight of authority from courts in this country that the practice was constitutionally sound, strong indications of approval from the United States Supreme Court and no evident trend away from imposing serious adult criminal liability upon juvenile offenders compelled us to defer to the legislative process on what ultimately is a public policy determination. Id., 585-86. We conclude similarly today that international norms cannot take precedence over a domestic legal climate in which capital punishment retains strong legislative and judicial support.
As part of his constitutional claim, the defendant argues that capital punishment is not serving legitimate penological goals of deterrence, incapacitation or reha-
One final matter raised by the defendant merits our consideration. In May, 2009, following the filing of the defendant‘s initial brief, the General Assembly passed No. 09-107 of the 2009 Public Acts (P.A. 09-107), which was intended to repeal the death penalty for crimes committed after the passage of the act. On June 5, 2009, however, P.A. 09-107 was vetoed by the governor, and the legislature did not thereafter muster the two-thirds vote necessary to override the governor‘s veto.101
Following the aborted passage of P.A. 09-107, the defendant submitted his reply brief. He argues that the legislative repeal of the death penalty, although subsequently vetoed by the governor, evidences a powerful societal repudiation of capital punishment in Connecticut that should compel this court to conclude that such punishment violates the state constitution. We are not persuaded.102
The governor, like our legislators, is an elected representative of the people of the state. Additionally, executive approval or veto of legislation is an integral part of the legislative process; see
Accordingly, we are unable to accept the premise underlying all of the defendant‘s various arguments as
In light of the foregoing, we disagree that we properly may discern contemporary community standards on the basis of a “truncated [product] of the legislative process“; (internal quotation marks omitted) Wilson v. Eu, 1 Cal. 4th 707, 727, 823 P.2d 545, 4 Cal. Rptr. 2d 379 (1992); that ultimately failed to gain all of the constitutional approvals necessary to become the binding law of this state. Cf. Kennedy v. Louisiana, supra, 554 U.S. 431 (declining to discern contemporary norms based on proposed legislation). Simply put, “[the] [g]overnor is a part of the legislative process and a veto renders a legislative action as if it had not occurred.” Washington State Legislature v. Lowry, 131 Wn. 2d 309, 330, 931 P.2d 135 (1997).
We conclude that the death penalty, as a general matter, does not violate the state constitution. Accordingly, we reaffirm our earlier holdings to that effect in State v. Ross, supra, 230 Conn. 249-52, and State v. Webb, supra, 238 Conn. 406.
The judgment is affirmed.
In this opinion PALMER, MCLACHLAN, VERTEFEUILLE and DIPENTIMA, Js., concurred.
NORCOTT, J., dissenting. I continue to “maintain my position that the death penalty has no place in the jurisprudence of the state of Connecticut.”1 State v. Ross, 269 Conn. 213, 392-93, 849 A.2d 648 (2004) (Norcott, J., dissenting). Thus, I disagree with the majority‘s analysis in part IX of its opinion, rejecting the arguments of the defendant, Todd Rizzo, in support of reconsideration of this court‘s previous decisions2 upholding the constitutionality of the death penalty under
As in my past dissenting opinions; see footnote 1 of this dissenting opinion; I do not intend to reiterate in full the reasoning behind my belief that the death penalty “per se is wrong,” “violates the state constitution‘s prohibition against cruel and unusual punishment . . . [and] that our statutory scheme for the imposition of the death penalty cannot withstand constitutional scrutiny because it allows for arbitrariness and racial discrimination in the determination of who shall live or die at the hands of the state.” State v. Cobb, 251 Conn. 285, 543, 743 A.2d 1 (1999) (Norcott, J., dissenting), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000). Rather, I pause to reflect on my previously expressed “optimis[m] that very early in the twenty-first century we will all witness the abolition of [the death penalty] by Connecticut as a state and the United States as a country.” State v. Webb, 252 Conn. 128, 147, 750 A.2d 448 (2000) (Norcott, J., dissenting), cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000); see also State v. Cobb, supra, 552 (Norcott, J., dissenting) (“with the alternative of life imprisonment without the possibility of parole as a penalty, the continuation of the death penalty simply makes no sense as we approach a hopefully more enlightened new millennium“). Recent history has, however, shown that my predictive abilities are no better than those of any other court. Indeed, my optimism waned significantly six years ago, when I found myself questioning, on the eve of an execution, whether “our thirst for this ultimate penalty [has] now been slaked, or do we, the people of Connecticut, continue down this increasingly lonesome road?” State v. Ross, 273 Conn. 684, 723, 873 A.2d 131 (2005) (Norcott, J., concurring and dissenting).
BRIDGEPORT HARBOUR PLACE I, LLC v. JOSEPH P. GANIM ET AL.
(SC 18290)
Palmer, Zarella, DiPentima, Lavine and Beach, Js.
Argued March 15—officially released December 13, 2011
Notes
Unless otherwise noted, all subsequent references to
In addition to seeking Golding review, the defendant argues that the trial court committed plain error in accepting his jury waiver. Because we conclude that the defendant validly waived his right to a jury, it necessarily follows that the trial court did not commit plain error. See State v. Woods, supra, 297 Conn. 589 n.5; see also State v. Corona, 69 Conn. App. 267, 274-75, 794 A.2d 565, cert. denied, 260 Conn. 935, 802 A.2d 88 (2002).
Although some of the foregoing cases and other capital cases cited in this opinion predate Ring v. Arizona, supra, 536 U.S. 584, which established that there is a constitutional, and not merely a statutory, right to have a jury find aggravating factors in the penalty phase of a capital trial, the standard for determining whether a jury waiver is valid is the same regardless of whether the right is constitutional or statutory in origin. See People v. Robertson, 48 Cal. 3d 18, 36, 767 P.2d 1109, 255 Cal. Rptr. 631 (applying knowing, voluntary and intelligent standard to waiver of statutory right, prior to Ring, to capital penalty phase jury), cert. denied, 493 U.S. 879, 110 S. Ct. 216, 107 L. Ed. 2d 169 (1989); People v. Maxwell, supra, 173 Ill. 2d 117 (“[d]espite the different origins of a defendant‘s [constitutional] right to a jury at the guilt phase of the proceedings and his [statutory] right [prior to Ring] to a jury at the capital sentencing hearing, the waiver of either right to a jury must be knowing, intelligent, and voluntary“); Jones v. State, 310 Md. 569, 597, 530 A.2d 743 (1987) (to be effective, waiver of statutory right, prior to Ring, to capital sentencing jury must be knowing and voluntary), vacated on other grounds, 486 U.S. 1050, 108 S. Ct. 2815, 100 L. Ed. 2d 916 (1988); Commonwealth v. O‘Donnell, 559 Pa. 320, 345, 740 A.2d 198 (1999) (finding, prior to Ring, “that a capital defendant‘s waiver [of] his statutory right to a penalty-phase jury must be knowing, voluntary and intelligent“); see also United States v. Mezzanatto, 513 U.S. 196, 210-11, 115 S. Ct. 797, 130 L. Ed. 2d 697 (1995) (upholding criminal defendant‘s
We have reviewed carefully the entire record of the proceedings prior to the defendant‘s jury waiver. As to some of the assertions, we conclude that they simply are contrary to the record. For example, we disagree with the defendant‘s characterization of the trial court‘s demeanor. A review of the voir dire transcripts reveals an overall concern with fairness and seriousness
Corresponding Connecticut provisions similarly do not mandate a canvass.
When a defendant indicates that he has been advised by counsel and is satisfied with the advice received, the trial court is entitled to rely on that representation in determining whether a jury waiver is knowing and intelligent. See State v. Woods, supra, 297 Conn. 586 (“[t]he fact that the defendant was represented by counsel and that he conferred with counsel concerning waiver of his right to a jury trial supports a conclusion that his waiver was constitutionally sound“); State v. Ouellette, supra, 271 Conn. 758 (“[W]e cannot assume that in performing his duty of competent representation [defense] counsel did not advise the defendant of the consequences of his choice, even to the extent of the refinements the defendant now demands. . . . In addition, we will not assume that the defendant did not fully discuss the decision to forgo a jury trial with defense counsel.” [Citation omitted; internal quotation marks omitted.]); State v. Cobb, supra, 251 Conn. 373 (“[a]lthough the presence of counsel does not by itself mean that the defendant‘s interests and rights are protected . . . [t]he fact of counsel being present and having advised the defendant [concerning jury waiver] is a factor to be considered in determining the question of the need for or sufficiency of any admonition given by the court” [internal quotation marks omitted]); cf. Bradshaw v. Stumpf, 545 U.S. 175, 183, 125 S. Ct. 2398, 162 L. Ed. 2d 143 (2005) (guilty plea is constitutionally invalid if defendant has not been advised of elements of crime, but court need not advise defendant personally; “the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel“).
In other cases, the reviewing courts have held, contrary to Harris, that an otherwise valid waiver was not undermined by a trial court‘s failure to advise a capital defendant that, pursuant to statute, a life sentence automatically would result if the jury did not agree unanimously to a death sentence. See Whitehead v. Cowan, 263 F.3d 708, 732 (7th Cir. 2001) (noting that Illinois courts previously have reached that conclusion, and also have declined to require that defendant be informed that jury‘s decision to impose death penalty must be unanimous), cert. denied, 534 U.S. 1116, 122 S. Ct. 927, 151 L. Ed. 2d 890 (2002); see also People v. Shatner, 174 Ill. 2d 133, 154, 673 N.E.2d 258 (1996) (Illinois courts repeatedly have held that defendant need not be expressly advised that vote of single juror may preclude imposition of death penalty).
In People v. Robertson, supra, 48 Cal. 3d 36-38, the Supreme Court of California rejected the defendant‘s claim that his waiver of his right to a jury was invalid because the trial court failed to advise him of the statutory requirement that life imprisonment be imposed in the event of a jury deadlock. The court examined the totality of the circumstances before upholding the validity of the waiver, and noted specifically: that the defendant was represented by two apparently competent counsel who, over the course of several days, had discussed with him “at length” the nature and consequences of the waiver; that counsel had expressed on the record their sound tactical reasons for recommending a jury waiver; and that the trial court, before accepting the waiver, engaged in an extensive colloquy with the defendant to determine that his waiver was knowing, voluntary and intelligent. Id., 38. That court concluded that the rule sought by the defendant was “too stringent for any situation,” because “no waiver requires the court to explain every single conceivable benefit and burden of the choice being made.” Id., 38. The court explicitly declined to follow the reasoning of Harris as “unpersuasive . . . .” Id., 38 n.6.
All of the preceding decisions, regardless of whether they tend to support or favor the defendant‘s position, are distinguishable because they involved statutory mandates that life sentences be imposed in the event of jury deadlock, whereas in Connecticut, that result is but one of three discretionary options available to the trial court. State v. Daniels, supra, 209 Conn. 225, 231. Moreover, we agree with the Supreme Court of California that Harris is contrary to the law governing jury waivers and, like that court, we decline to follow it. When determining in Harris that the defendant‘s jury waiver was invalid, the Court of Appeals of Maryland cited no authority, conducted no analysis of the totality of the circumstances and instead reasoned simply that the information omitted from the canvass “may very well [have been] significant” to one facing a possible death sentence. Harris v. State, supra, 295 Md. 340. Although this statement may be true, it is not, as we have explained herein, the test for a constitutionally valid waiver.
“I mean, I understand he trusts—he trusts the judiciary and I‘m not saying he shouldn‘t. I‘m just saying that we prepared this case for a unanimous verdict for [twelve] people, for [twelve] different kinds of people, people that I don‘t—I don‘t think that will necessarily—we won‘t have any input into choosing for a three judge panel, and I think his chances are much better for the jury, and I couldn‘t get him to say that that‘s what he wants, he wants—that he wants the best chance as possible. He just says he wants justice.”
Practice Book § 1-22 provides in relevant part: “(a) A judicial authority shall, upon motion of either party or upon its own motion, be disqualified from acting in a matter if such judicial authority is disqualified from acting therein pursuant to Rule 2.11 of the Code of Judicial Conduct or because the judicial authority previously tried the same matter and a new trial was granted therein or because the judgment was reversed on appeal. A judicial authority may not preside at the hearing of any motion attacking the validity or sufficiency of any warrant the judicial authority issued nor may the judicial authority sit in appellate review of a judgment or order originally rendered by such authority. . . .”
Practice Book § 1-23 provides: “A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith. The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time.”
Article first, § 8, of the constitution of Connecticut provides in relevant part that in all criminal prosecutions: “No person shall . . . be deprived of life, liberty or property without due process of law . . . .”
Article first, § 9, of the constitution of Connecticut provides in relevant part: “No person shall be . . . punished, except in cases clearly warranted by law.”
We previously have held that these provisions, Connecticut‘s due process clauses, impliedly prohibit punishment that is cruel and unusual. State v. Ross, 230 Conn. 183, 246-47, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995).
The defendant cites extensively to extra-record nonlegal materials to argue that the trial court‘s factual finding as to his lack of remorse was erroneous, and to request that this court draw different factual inferences from his behavior. For the reasons explained in footnote 16 of this opinion, the defendant‘s citation to material that was not admitted into evidence is not properly used to attack the trial court‘s factual findings on appeal, and, therefore, we do not consider it.
“1. [The defendant] was an eighteen year old adolescent, not having reached full physiological or emotional maturity, when he murdered [the victim].
“2. [The defendant‘s] parents were so physically and emotionally absent from [the defendant] during his formative years that they provided deficient nurturance, guidance, support, protection, supervision or discipline for his normal emotional and social development.
“3. [The defendant‘s] parents were unwilling and/or unable to communicate with [the defendant] about the most emotionally damaging and/or stressful events in his life (e.g., his parents’ divorce, the incident at Kaynor [Regional Vocational-Technical School (Kaynor)] and [the defendant‘s] posthigh school career plans).
“4. [The defendant‘s] parents] did not provide [the defendant] with clear expectations for behavior and they failed to supervise and monitor [the defendant] as a child and teen.
“5. [The defendant] was neglected as defined by [General Statutes] § 46b-120 [8] in that he had been denied proper care and attention, physically, emotionally or morally, or was permitted to live under conditions, circumstances or associations injurious to his well-being.
“6. [The defendant] suffered significant emotional distress as a result of his parents’ volatile conflicts, repeated separations, eventual divorce and his father moving away from him.
“7. The [defendant‘s] family was characterized by conflict and negative family relationships that adversely affected [the defendant‘s] emotional development.
“8. [The defendant] suffered neglect as a result of his mother‘s persistent depression and anger over the divorce.
“9. After the divorce of his parents, [the defendant‘s] family home at 15 Marion Avenue, Waterbury, fell into such complete disrepair that it was nearly impossible for anyone to perform household tasks like cooking, bathing, or laundering bedding and clothing. The house was in such an extremely unhealthy state that it was unfit for human habitation or normal child development.
“10. [The defendant] and his siblings suffered poor living conditions despite the fact that his parents had the financial resources to provide for them.
“11. The absence of responsible, caring and interested adults in [the defendant‘s] home was so extreme that [the defendant] was forced to seek basic necessities such as food, shelter, assistance with laundry, and nurturing from friends and neighbors (maternal and paternal figures) in the community.
“12. After the divorce, [the defendant‘s] mother did not secure any responsible child care for her children and left [them] alone and unattended.
“13. [The defendant] was too young to understand the potential danger of seeking out inappropriate alternative maternal and paternal figure[s] outside his home.
“14. [The defendant‘s] mother deprived her son of normal social peer interaction by continually refusing to allow any nonfamily members into the family home.
“15. [The defendant‘s mother] inappropriately exposed her young son [the defendant] to excessive media violence during his childhood and did not provide the appropriate guidance and supervision to prevent his continuing exposure to the potentially damaging violent content.
“16. [The defendant‘s] parents did not seek mental health counseling for their son during the most emotionally damaging and stressful events in his life (e.g., his parents’ divorce and the incidents at Kaynor . . . ).
“17. [The defendant‘s father] knew of the deplorable physical and emotional conditions that [the defendant] was living in, but did nothing to take physical custody or otherwise rescue his son from neglect.
“18. [The defendant‘s father] moved out of state and became less involved with [the defendant] despite being aware of the deplorable conditions that [the defendant] was enduring.
“19. [The defendant‘s father] consistently chose his own happiness over the emotional and physical well-being of his son.
“20. [The defendant‘s] plans to attend the Johnson and Wales culinary program were thwarted by his parents’ failure to fill out the basic financial aid paperwork necessary for him to attend.
“21. [The defendant] was physically small, underweight, and a chronic bed wetter into his teenage years, resulting in humiliation and ridicule from family members and peers.
“22. [The defendant‘s] experiences of having been humiliated and bullied were significant enough to damage his emotional well-being.
“23. [The defendant], while a freshman and sophomore at . . . Kaynor . . . was subjected to repeated acts of physical hazing and sexual harassment by upper-class students.
“24. [The defendant] demonstrated remarkable perseverance and resilience despite living under conditions of extreme neglect which shows his potential to learn from his mistakes.
“25. [The defendant] was a good grammar and middle school student resulting in his acceptance into Kaynor
“26. [The defendant] had a genuine interest in and talent for cooking and baking, and graduated from the culinary program in the middle of his class in 1996 from Kaynor . . . .
“27. [The defendant] was accepted as a student into the culinary program at Johnson and Wales University in South Carolina.
“28. [The defendant] displayed kindness in helping to provide for his mother, family, and friends by purchasing necessities and gifts for them.
“29. [The defendant] reached out to the church as a positive influence in his life; he attended church throughout his childhood and teenage years, often bringing his sister with him, and he continued to be actively involved in church activities even after his parents stopped attending.
“30. [The defendant] maintained a steady history of employment from the age of fourteen until the time of his arrest.
“31. [The defendant] joined the United States Marine Corps at the age of seventeen.
“32. [The defendant] successfully completed boot camp at Parris Island and infantry training at Camp Geiger.
“33. [The defendant] volunteered to serve as the lay reader for the Marine recruits in his boot camp platoon and delivered the prayer during the graduation ceremony.
“34. [The defendant] took responsibility for his actions when he cooperated with the police and confessed to the murder of [the victim].
“35. [The defendant] took responsibility for his actions when he cooperated with the police and consented to the searches of his home and his car.
“36. [The defendant] took responsibility for his actions when he cooperated with the police when he disclosed to them the location in the rear yard at 15 Marion Avenue where he murdered [the victim].
“37. [The defendant] took responsibility for his actions when he cooperated with the police when he disclosed to them the location of the murder weapon.
“38. [The defendant] cooperated with the police when he disclosed the location of where he placed [the victim‘s] body.
“39. [The defendant‘s] cooperation saved the Waterbury police department a lot of time and effort.
“40. [The defendant] cooperated with resolution of this case by voluntarily pleading guilty to the murder of [the victim], thereby taking both personal and legal responsibility for the murder.
“41. [The defendant] has shown remorse for the murder of [the victim].
“42. [The defendant‘s] act of murdering [the victim] was a tragic behavioral aberration considering that he has no prior juvenile or criminal record.
“43. Life imprisonment without the possibility of release is the appropriate sentence for [the defendant].
“44. Any other factor concerning [the defendant‘s] character, background, or history or the nature and circumstances of the crime that has not been specifically suggested which the court may, in fairness and mercy, find is mitigating in nature and constitutes a basis for a sentence of life imprisonment without the possibility of release.
“45. The cumulative or combined effect of all the evidence concerning [the defendant‘s] character, background or history or the nature [or] circumstances of the crime which the court, in fairness and mercy, finds is mitigating in nature and constitutes a basis for a sentence of life imprisonment without the possibility of release.”
The panel reasonably could have found that the defendant‘s statements of remorse in 2000 lacked mitigating quality in light of their belated expression, particularly when contrasted against other words of the defendant, written shortly after the commission of his crime, that charitably can be described as boastful, callous and lacking in remorse. On October 10, 1997, the defendant wrote to John Fleischer, a friend he had made while undergoing training in the Marine Corps. Like the interview with the television reporter, that letter was introduced into evidence as part of the state‘s case. The letter stated in relevant part: “Well [let‘s] just say, you might be reading about me one day. Just add me on to your long list of famous killers, like Jeffrey Dahmer, John Gacy, Henry Lucas, and so on.
“Yes, from the news article [e]nclosed [you‘ll have] learned, I‘ve been arrested for murdering a [thirteen year] old boy. I beat the backside of his skull in with a sledgehammer in my backyard and dropped his body on a side road [with] his head wrapped in a plastic bag. So way back in July, when me you Jones and Sims talked about the truth if we could actually kill another person? Well I did. That knocks off number two on my goal list!
“I probably [won‘t] go to trial until early [1999] maybe late [1998]. But I will keep you informed if you continue to write me. I suppose you can let everyone know, [there‘s] no secret. If I can get my hands on a better article, I‘ll mail it to you. You [should‘ve] seen it, I was on the entire front page of my paper and many [other] papers and all over the news! I am sorry for what I‘ve done, because my life is now over, [I‘m] either facing life in prison with no [parole] or the death sentence, which in [Connecticut] is lethal injection. Anyway, now that my life is through, [how‘s] yours doing?”
Notably, the New Mexico ban is prospective only and no clemency has been granted to convicted capital offenders, leaving that state‘s existing death row intact. Given that circumstance, it is unlikely that the New Mexico legislature was convinced that the death penalty is intolerable under any and all circumstances. See Atkins v. Virginia, supra, 536 U.S. 342 (Scalia, J., dissenting) (legislation that abolished death penalty for persons with mental retardation prospectively only “is not a statement of absolute moral repugnance, but one of current preference between two [constitutionally] tolerable approaches“).