Lead Opinion
Opinion
The defendant, Todd Rizzo, appeals from the judgment rendered by a three judge panel, following a penalty phase hearing held pursuant to General Statutes (Rev. to 1997) § 53a-46a,
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 General Statutes § 53a-54a (a) and capital felony in violation of General Statutes (Rev. to 1997) § 53a-54b (9) and, following a § 53a-46a penalty phase that was tried to a jury, he was sentenced to death. State v. Rizzo,
I
The defendant claims first that his waiver of a jury for the penalty phase proceedings was constitutionally invalid.
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 Charming, 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
“[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.
*80 “The Defendant: If it can be done only in the sense, if the state opposes, it’s a dead issue. I folly 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.
*82 “[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, audit’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.
*83 “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 . . .*84 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.
*85 “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 ah 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*86 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*87 you tinder 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.
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,
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,
Additionally, because the.defendant previously had been sentenced to death by s| 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,
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,
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.
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;
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,
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,
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 § 53a-46a (b) (3) for capital cases, and that the defendant’s choice to waive his right to a jury and to opt instead for a three judge panel was a voluntary choice free of outside pressures or the effect of intoxicating substances. Beyond that, the court advised the defendant that his choice could not be readily undone, differentiated between the unanimity and majority requirements for twelve person juries and three judge panels, respectively, to render sentences of death, and inquired repeatedly whether the defendant had had sufficient time to confer with defense counsel and whether he was satisfied with their advice. In declining to provide more specific information as to the consequences of a waiver, the trial court properly relied on the defendant’s prior experience with a capital sentencing jury and his multiple assurances that he had received adequate advice from his counsel.
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,
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,
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,
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,
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 Practice Book §§ 1-22 and 1-23.
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.
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,
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.
Pursuant to our rules of practice; see Practice Book § 1-22; a judge should disqualify himself from acting in a matter if it is required by rule 2.11 of the Code of Judicial Conduct, which provides in relevant part that “[a] judge shall disqualify himself ... in any proceeding in which the judge’s impartiality might reasonably be questioned including, but not limited to, the following circumstances . . . [t]he judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.” Code of Judicial Conduct 2.11 (a) (1). In applying this rule, “[t]he reasonableness standard is an objective one. Thus, the question is not only whether
With certain well-defined exceptions not at issue here,
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,
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,
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.
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,
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 . . . .”
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 maimer. 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,
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,
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 priorto the defendant’s penalty phase proceeding and demonstrate prejudgment, that argument is entirely speculative.
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,
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 § 53a-46a (i). The sole aggravating factor that the three judge panel found proven was that the defendant had committed his offense “in an especially heinous, cruel or depraved manner . . . .” General Statutes (Rev. to 1997) § 53a-46a (i) (4). The defendant claims that this court’s limiting construction of that aggravating factor; see State v. Breton,
The defendant did not raise this claim in the trial court and now seeks review pursuant to State v. Gold
“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,
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 General Statutes (Rev. to 1997) § 53a-46a (i) (4), a defendant who has committed one of the capital felonies enumerated in General Statutes (Rev. to 1997) § 53a-54b is eligible for the death penalty if he or she “committed the offense in an especially heinous, cruel or depraved manner . . . Because the United States Supreme Court held that similar phraseology was unconstitutionally vague in the absence of a narrowing construction by the state court; see Maynard v. Cartwright,
We initially provided a core construction of § 53a-46a (i) (4), concluding that it included a defendant’s “intentional infliction of extreme pain or torture above and beyond that necessarily accompanying the underlying killing.” State v. Breton, supra,
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 § 53a-46a (i) (4) is impermissibly vague in contravention of the constitution of Connecticut. We are not persuaded. “[I]t is settled constitutional doctrine that, independently of federal constitutional requirements, our due process clauses, because they prohibit cruel and unusual punishment, impose constitutional limits on the imposition of the
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 [
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,
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.
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,
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,
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,
Moreover, in the two cases in which this court has concluded that the jury improperly applied § 53a-46a (i) (4), this court did not hesitate to reverse their findings. Notably, however, those reversals did not concern improper findings as to the defendant’s callousness or indifference, but rather, they concerned improper findings as to the extent of the victim’s pain and suffering; State v. Johnson,
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,
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 § 53a-46a (i) (4) that would exclude murderers who, with callousness and indifference, impose upon their victims physical or psychological pain, suffering or torture beyond that necessary to the underlying killing. Consequently, the defendant’s third claim fails.
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.
“[W]e have interpreted the aggravating factor set forth in § 53a-46a (i) (4) to require proof that the defendant engaged in intentional conduct that inflicted extreme physical or psychological pain [suffering] or torture on the victim above and beyond that necessarily accompanying the underlying killing, and that the defendant specifically intended to inflict such extreme pain [suffering or] torture . . . or . . . the defendant was callous or indifferent to the extreme physical or psychological pain, suffering or torture that his intentional conduct in fact inflicted on the victim. . . .
“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 lining 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 6 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.
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,
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,
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,
In the present case, evidence on which the panel relied, in particular, the defendant’s own sworn statement to the police,
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 General Statutes (Rev. to 1997) § 53a-46a (d), which directs a capital penalty phase fact finder to determine whether a particular mitigating factor, having been established by the evidence, “is mitigating in nature, considering all the facts and circumstances of the case,” is unconstitutional. According to the defendant, requiring the fact finder to make this determination as a prerequisite to the weighing of aggravating and mitigating factors, the final step in the statutory process for determining whether death is the appropriate penalty; see General Statutes (Rev. to 1997) § 53a-46a (f); improperly prevents mitigating evidence offered by the defendant from being given full consideration and effect in violation of the eighth amendment to the United States constitution.
The defendant acknowledges that this claim already was raised, and rejected, in his first appeal; see State v. Rizzo, supra,
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.
The panel, in its written memorandum of decision, outlined the law governing the finding of statutory and
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
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,
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.
VII
The defendant claims next that the panel improperly determined that the proven aggravating factor outweighed the proven mitigating factor.
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. General Statutes (Rev. to 1997) § 53a-46a (f). Although the statutory language does not supply a standard for the sentencer to employ in making the weighing determination, we concluded in Rizzo that the sen-tencer must be convinced, beyond a reasonable doubt, that the aggravating factor or factors outweigh, by any
In State v. Courchesne, supra,
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 General Statutes § 53a-46b (b) (1)
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,
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,
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 article first, § 8, and article first, § 19, our state constitution makes repeated textual references to capital offenses and thus expressly sustains the constitutional validity of such a penalty in appropriate circumstances. Connecticut case law has recognized the facial constitutionality of the death penalty under the eighth and fourteenth amendments to the federal constitution. See, e.g., State v. Davis,
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,
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.
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 General Statutes § 53a-46a (h) (2), as amended by Public Acts 2001, No. 01-151, § 2. Moreover, from the time they were adopted in 1973, our modem death penalty statutes barred executions of those who committed their capital crimes when they were under eighteen years old; see Public Acts 1973, No. 73-137, § 4; and did not authorize the death penalty for any crime not involving the death of a victim.
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/Fact Sheetpdf (last visited November 18, 2011) (copy contained in the file of this case in the Supreme Court
Although “the clearest and most rehable objective evidence of contemporary values is the legislation enacted by the country’s legislatures”; (internal quotation marks omitted) Atkins v. Virginia, supra,
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.
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.
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,
In State v. Allen,
As part of his constitutional claim, the defendant argues that capital punishment is not serving legitimate penological goals of deterrence, incapacitation or rehab
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.
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.
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 Conn. Const., art. IV, § 15;
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,
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,
The judgment is affirmed.
In this opinion PALMER, McLACHLAN, VERTEFEUILLE and DiPENTIMA, Js., concurred.
Notes
General Statutes (Rev. to 1997) § 53a-46a provides in relevant part: “(b) For the purpose of determining the sentence to be imposed when a defendant is convicted Of or pleads guilty to a capital felony, the judge or judges who presided at the trial or before whom the guilty plea was entered shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, and any aggravating factor set forth in subsection (i). . . . Such hearing shall be conducted . . . before [a] jury . . . or . . . before the court, on motion of the defendant and with the approval of the court and the consent of the state. . . .”
Unless otherwise noted, all subsequent references to § 53a-46a are to the 1997 revision of the statute.
We clarified the appropriate burden of persuasion applicable to the fact finder’s weighing of aggravating factors against mitigating factors pursuant to § 53a-46a (e) and (f). State v. Rizzo, supra,
The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .” The sixth amendment right to a jury trial is made applicable to the states through the due process clause of the fourteenth amendment. See Duncan v. Louisiana,
General Statutes § 53a-45 provides in relevant part: “(b) If a person indicted for murder or held to answer for murder after a hearing conducted in accordance with the provisions of section 54-46a waives his right to a
General Statutes § 54-82 provides: “(a) In any criminal case, prosecution or proceeding, the party accused may, if he so elects when called upon to plead, be tried by the court instead of by the jury; and, in such case, the court shall have jurisdiction to hear and try such case and render judgment and sentence thereon.
“(b) If the accused is charged with a crime punishable by death or imprisonment for life and elects to be tried by the court, the court shall be composed of three judges to be designated by the Chief Court Administrator, or his designee, who shall name one such judge to preside over the trial. Such judges, or a majority of them, shall have power to decide all questions of law and fact arising upon the trial and render judgment accordingly.
“(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.”
The transcript indicates that court did not reconvene until 11:20 a.m. on Monday and that, prior to that time, defense counsel had spoken with the defendant twice.
The defendant also draws our attention to Judge O’Keefe’s statement, when the defendant first proposed waiving a jury, that the judge would not be part of the three judge panel “[g]iven [his] involvement so far in the case . . . Because Judge O’Keefe ultimately was chosen to serve on that panel, the defendant argues that his waiver was based on prejudicial misinformation. Because, as we hold in part II of this opinion, a reasonable person would not conclude that a judge’s pretrial involvement in a case and the knowledge thereby gained necessarily impairs his or her impartiality, this claim is meritless.
We disagree that the defendant’s claim is preserved simply because his waiver of his right to a jury was made contrary to his counsels’ advice. Counsel raised no formal objections to the waiver during the colloquy. Furthermore, at no time during the penalty phase proceedings that followed the waiver did the defendant or his counsel move to revoke that waiver, or attempt to introduce any evidence that might have called its effectiveness into question. Finally, after the panel’s imposition of sentence, the defendant did not file a motion to vacate the judgment and cause the proceedings to be set for a jury trial on the ground that he “was not fully cognizant of his rights” at the time of his jury waiver or because “the proper administration of justice require[d]” such a result. General Statutes § 54-82b (b); see also State v. Ouellette,
Pursuant to State v. Golding, supra,
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,
“The most basic rights of criminal defendants are . . . subject to waiver .... A criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the [constitution. See, e.g., Ricketts v. Adamson,
Connecticut is not alone in permitting defendants to waive jury rights in capital sentencing proceedings, provided the waiver is knowing, voluntary and intelligent; see, e.g., Peraita v. State,
Although some of the foregoing cases and other capital cases cited in this opinion predate Ring v. Arizona, supra,
We emphasize that, because the defendant never sought to withdraw his jury waiver as invalidly effected; see footnote 7 of this opinion; the question presented by his unpreserved claim “is not in full measure whether [he] acted knowingly and intelligently in waiving a jury trial, as in cases where an evidentiary hearing upon that subject has been held.” State v. Marino,
The record indicates that the defendant had worked even prior to reaching the minimum age for employment, beginning when he was fourteen years old.
We disagree with the defendant’s assertion that his counsel’s opposition to his jury waiver “is a factor . . . showing that the waiver was not intelligently entered.” A waiver of jury rights made contrary to the advice of counsel is not necessarily unknowing or unintelligent; see, e.g., State v. Smith, supra,
In this regard, the defendant’s assertions on appeal that he acted “impulsively . . . with minimal consultation with his attorneys” and that he “knew very little about what he was doing” are directly contradicted by the record.
The defendant argues that the following axe among the circumstances that contributed to the involuntariness of his decision to waive his right to a jury: Due to the defendant’s incarceration since the age of eighteen, his psychological development was not that of a normal adult; the transportation of the defendant each day from prison to voir dire proceedings and the restraints that he wore during those proceedings left him feeling despondent; the trial court employed a lighthearted, humorous or sarcastic tone in overseeing the voir dire proceedings, lessening their seriousness and making the defendant feel that his life was unimportant; the trial court remarked unevenly on prospective jurors’ views of capital punishment, speaking more positively to those who favored it than to those who opposed it; and the appearance that jury selection would continue indefinitely.
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
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,
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,
In the event of a hung jury in the penalty phase of a capital trial, the trial court has three options: “it may declare a mistrial; it may make factual findings ‘acquitting’ the defendant of the death penalty; or it may exercise its discretion, pursuant to General Statutes § 54-56, to dismiss the death penalty proceeding.” State v. Daniels,
Apparently, the brain imaging test produced no mitigating evidence.
Rule 23 (a) of the Federal Rules of Criminal Procedure, which reflects the holding of Patton v. United States, supra,
Corresponding Connecticut provisions similarly do not mandate a canvass. General Statutes § 54-82b (b) requires only that the defendant, at the time he is put to plea, be “advise[d] ... of his right to trial by jury . . . .” Similarly, Practice Book § 42-1 directs that upon election of a court trial, “the judicial authority shall advise the defendant of his or her right to a trial by jury and that a failure to elect a jury trial . . . may constitute a waiver of that right.” As noted in this opinion, a capital defendant’s waiver of a sentencing jury requires both the consent of the state and the approval of the court. General Statutes (Rev. to 1997) § 53a-46a (b). Additionally, like the Connecticut and the federal rules, the American Bar Association Standards for Criminal Justice do not provide for a canvass. See A.B.A., Standards for Criminal Justice: Discovery and Trial by Jury (3d Ed. 1996) standard 15-1.2
The United States Court of Appeals for the Second Circuit has “recommended that a district court go beyond a written waiver and individually inform each defendant, on the record, of the fundamental attributes of a jury trial before accepting a waiver.” (Internal quotation marks omitted.) United States v. Carmenate, supra,
This court long ago observed that “personal interrogation of the defendant to determine his understanding of the significance of his execution of the [jury] waiver form” was the preferable approach, although it was not constitutionally required. State v. Marino, supra,
“Waiver of a jury, although certainly an important election, still leaves in place another form of fact finding; it has not as much weight or consequence as a guilty plea, which is tantamount to a conviction and involves implicitly . . . the waiver of three constitutional rights—to confront adverse witnesses, to be free of compulsion to testify against oneself, and to be tried by [a] jury . . ." Ciummei v. Commonwealth,
Our opinion in Gore was released on September 23, 2008. The defendant was canvassed as to his waiver of his right to a jury on April 18, 2005.
We also remain cognizant that this case, unlike Gore, involves the death penalty, and we reiterate that in capital cases, courts should be particularly cautious in accepting a jury waiver, in part by canvassing the defendant thoroughly to ensure the waiver is knowing, voluntary and intelligent. At the same time, “although capital cases do require a more extensive colloquy than other types of cases, the simple fact that the case is capital does not mandate an exhaustive colloquy.” Sowell v. Bradshaw,
“See Brady v. United States, 397 U.S. [742, 757,
The defendant argues that this court cannot assume that his counsel advised him of the various consequences of his jury waiver “[i]n the absence of any evidence that counsel did so,” and where there is “no suggestion on the record to support that presumption. ” The current record, however, offers many such suggestions. Prior to being canvassed by the trial court, the
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,
See North Carolina v. Alford,
But see Commonwealth v. O’Donnell,
In support of his argument that the trial court was required to explain to him the possible consequences of a hung jury, the defendant cites Harris v. State,
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,
In People v. Robertson, supra,
AE 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,
Charming explained his concern to the trial court as follows: “I know that I posited the question [of whether the defendant wanted a life sentence without the possibility of release or to be executed] ... to him, and he said he wanted justice, and I described the adversarial—you know, process to him that requires us to pull hard for our side, and I couldn’t get him to say, well, you know, I want to live, you know, I want—I want a sentence of life without the possibility of release.
“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.”
The defendant’s claim that he actively sought a death sentence also is belied by the record of the proceedings subsequent to his jury waiver. Specifically, there is no indication that the defendant in any way prevented his counsel from putting forth the best case possible on his behalf. Rather, the defendant permitted his counsel to file two separate motions to impose a life sentence, to introduce extensive evidence and to submit a list of forty-five suggested mitigating factors for the panel’s consideration. In this regard, the present case is readily distinguishable from those cited by the defendant
Practice Book § 1-22 provides in relevant part: “(a) A judicial authority shall, upon motion of either parly 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 misy 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.”
There is no indication in the record as to what, precisely, the brain imaging tests revealed. The defendant argues, however, that because Judge O’Keefe knew that the testing had been done and, thereafter, no evidence derived from the testing was introduced at the penalty phase hearing, the judge “could not avoid concluding that the results were not favorable to the defendant and did not establish a developmental problem.”
The defendant also claims that Judge O’Keefe’s more favorable comments toward jurors who spoke positively about capital punishment and his failure to maintain the seriousness of the proceedings exacerbated the appearance of impropriety created by his having presided over voir dire. Because we concluded in part II of this opinion that the defendant’s characterization of Judge O’Keefe’s comments and the voir dire proceedings is inapt, we need not address this argument.
Although the defendant cites the due process clauses of both the state and federal constitutions, he has not provided an independent analysis of the state claim as required by State v. Geisler,
Pursuant to General Statutes § 51-39 (c), “[w]hen any judge ... is disqualified to act in any proceeding before him, he may act if the parties thereto consent in open court.” We repeatedly have held that a party’s failure to object to a particular judge or to move for his recusal prior to or during trial is the functional equivalent of consent. See, e.g., State v. Fitzgerald,
One commentator explains: “The United States Supreme Court has never held that an appearance of bias on the part of a state trial court judge, alone, violates the [c]onstitution; that is, there is no Supreme Court decision which clearly establishes that an appearance of bias or partiality, where there is no actual bias, violates the [d]ue [p]rocess [c]lause or any other constitutional provision. While the [c]ourt has occasionally suggested, in dicta, that something less than actual bias could result in a due process violation, such references appear to be limited to situations in which the circumstances were such as to give rise to a strong probability of actual bias.” R. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges (2010 Sup.) § 2.5.2, pp. 22-24. In short, “an appearance of bias, in and of itself, will never offend the [d]ue [p]rocess [c]lause.” Id., p. 25; see also State v. Canales,
See, e.g., General Statutes § 51-183c (requiring different judge, in case of court trial, after new trial is granted or judgment is reversed on appeal and, in case of jury trial, after new trial is granted); General Statutes § 51-183h (disallowing judge from hearing motion attacking validity or sufficiency of arrest warrant that he or she signed); Practice Book § 1-19 (requiring, for trial of rionsummary contempt charges, different judge than judge who issued order that was disobeyed or who oversaw proceedings during which contempt was committed); Code of Judicial Conduct 2.11 (a) (5) (A) (requiring disqualification when judge previously acted as attorney in same matter); see State v. Niblack,
Similarly, courts routinely hold that a judge’s familiarity with a criminal defendant and his or her prior offenses through participation in a separate, earlier trial of the defendant; see, e.g., State v. Webb,
In Liteky v. United States, supra,
“The primary reason for the rule permitting judges who have presided over earlier proceedings in a case to continue to sit in later proceedings in the same matter is simple and straightforward: Were the rule otherwise, a judge could never reach the end of a case without being disqualified through exposure to it during its earlier stages. Litigation, moreover, frequently unveils uncomplimentary facts about individuals and their cases. Should disqualification result merely because such facts were learned during the
In support of this claim, the defendant has submitted a transcript from the later proceeding. We agree with the defendant that this court may take judicial notice of files or records of the Superior Court in the same or other cases. See, e.g., Ajadi v. Commissioner of Correction, supra,
The following provides further context for that comment. In the course of criticizing Foster for not admitting his crimes, Judge O’Keefe explained that he considered the testimony of Foster’s incarcerated coconspirators, who had implicated Foster, to be credible. He then stated: “When you arrest murderers, get them under control in proper settings like maximum security penitentiaries, they start to act close to human beings. They’re not human, but they come close. What you had was these individuals coming in and attempting to do something decent. They are still murderers. They still deserve to be punished for this. But many had no motive for false testimony . . . .”
Diego Vas was convicted of, inter alia, murder in connection with the shooting death of his six year old daughter. State v. Vas,
Mark Chicano was convicted of, inter alia, felony murder in connection with the beating and strangulation deaths of two adults and an eleven year old child. State v. Chicano,
Eric Steiger was convicted of, inter alia, murder in connection with the shooting deaths of two men. State v. Steiger,
Adrian Peeler was convicted of conspiracy to commit murder in connection with the shooting deaths of a woman and her young son. State v. Peeler,
Because there is a strong presumption that judges perform their duties impartially, a claim that a judge was required to recuse himself or herself on the basis of bias must be supported by more than mere speculation; State v. Shabazz,
It is axiomatic that a trial court’s rulings adverse to a defendant cannot in themselves demonstrate bias. See Liteky v. United States, supra,
See Practice Book § 43-10 (6) (“[i]n cases where sentence review is available [those involving sentences of three years or more; General Statutes § 51-195], the judicial authority shall state on the record, in the presence of the defendant, the reasons for the sentence imposed”).
The eighth amendment to the United States constitution prohibits, inter alia, the infliction of “cruel and unusual punishments . . .
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,
As part of the present claim, the defendant argues that this court improperly changed the meaning of § 53a-46a (i) (4) in Ross, after defining the factor in Breton. We previously rejected a similar claim. State v. Cobb, supra,
Article first, § 8, of the state constitution, which provides generally for due process in criminal prosecutions, supplies no particular guidance to the question at hand.
The defendant directs our attention to United States v. Hall,
The only such decision of which we are aware is People v. Superior Court,
In all of these cases, both prongs of the intent element of § 53a-46a (i) (4) were determined to apply, i.e., the evidence was sufficient to show that each defendant intended to cause his victim additional pain or suffering, and that he was callous and indifferent to that pain or suffering. Accordingly, experience does not substantiate the defendant’s argument that our construction of § 53a-46a (i) (4) encompasses vastly more capital murderers than would a construction requiring a specific intent to cause gratuitous pain and suffering. Rather, the two groups overlap considerably.
The defendant does not dispute that his conduct in striking the victim repeatedly with a sledgehammer was intentional, and that he engaged in that conduct with the intent to kill the victim.
Compare State v. Johnson, supra,
The quoted portions of the panel’s memorandum of decision correspond to language in the defendant’s statement.
The defendant takes issue with the court’s finding as to the number of blows he inflicted on the victim, arguing that the fact that the victim suffered twelve injuries does not prove that he endured twelve direct hits from the sledgehammer. The panel’s memorandum of decision states the number of blows as approximate, however, and does not attempt to distinguish between direct and indirect strikes, i.e., those that might have been inflicted after the hammer was deflected off of the victim’s skull. In any event, after reviewing the jurisprudence governing this claim, we conclude that the distinction the defendant attempts to draw is not determinative of the outcome.
Specifically, Joy Reho, a criminologist in the forensic biology unit of the state forensic science laboratory, testified that both the front and back sides of the victim’s bicycle gloves were “[hjeavily saturated” with blood and that they had been “in contact with a bloody source for a period of time.” Although she could not say so with complete certainty, Malka Shah, an associate medical examiner from the office of the chief medical examiner, testified that the blood could have gotten on the gloves when the victim raised his hands to his head in an attempt to protect his head. Shah testified further that the victim had no bleeding injuries to his limbs or torso. On the basis of this testimony, we disagree with the defendant that the inference drawn by the panel, that the victim had attempted to protect himself, was an unreasonable one. Compare Williams v. State, supra,
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.
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.
Again, contrary to the defendant’s argument, there was evidence sufficient to show that the defendant lacked remorse. Sergeant Eugene Coyle, who took the defendant’s statement and interacted with him both prior and subsequent to his arrest, testified that the defendant, throughout that period of time, never exhibited any remorse or regret for killing the victim, nor
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.
The defendant cites Abdul-Kabir v. Quarterman,
The specific list of suggested mitigating factors submitted by the defendant was as follows:
“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.
*161 “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 ....
*162 “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.”
Under our death penalty scheme, once the state establishes the existence of an aggravating factor, specified in § 53a-46a (i), beyond a reasonable doubt, the burden shifts to the defendant “to establish the existence of a mitigating factor by a preponderance of the evidence. ... In this regard, the statutory scheme sets out two types of mitigating factors: (1) statutory mitigating factors, as defined in § 53a-46a (h), which, if found, preclude the imposition of the death penalty under any circumstances; and (2) nonstatutory mitigating factors, as defined in § 53a-46a (d).” (Citation omitted.) State v. Rizzo, supra,
The panel was not required to make explicit findings as to the remaining forty-four proposed mitigating factors; see State v. Rizzo, supra,
The defendant also claims that, because the panel necessarily found some individual proposed mitigating factors factually proven; see footnote 67 of this opinion; he statutorily and constitutionally was entitled to have them weighed as individual mitigating factors, and not merely as part of the cumulative mitigating factor found by the panel. According to the defendant, because the panel found no individual mitigating factors proven while simultaneously finding the cumulative mitigating factor proven, his statutory and constitutional rights have been violated. The defendant is incorrect.
The defendant argues, nevertheless, that because the panel concluded that the proven individual factors, viewed cumulatively, were mitigating in nature, it also must have found that those individual factors had some, however minimal, mitigating quality and, therefore, they were entitled to independent consideration in the final determination whether to impose the death penalty. We are not persuaded. Although each proven factor might have established something good or sympathetic about the defendant, the panel apparently found that the factors were not mitigating in nature until they were viewed collectively. As we have explained, § 53a-46a (d) “does not require a capital sentencer to give mitigating force to any particular proven factor solely because that factor establishes something good about the defendant.” (Internal quotation marks omitted.) Id., 295-96; see also State v. Reynolds, supra,
In Rizzo, the penalty phase was tried to a jury, and the jury did not specify which of the proposed nonstatutory mitigating factors it had found proven. Consequently, in discussing the mitigating factors, we allowed that the jury reasonably could have found any of the proposed factors proven and, therefore, we drew all inferences in the defendant’s favor when we outlined the evidence presented and facts potentially found. State v. Rizzo, supra,
The panel also might have questioned the defendant’s suggestion that his murdering the victim was an impulsive “behavioral aberration”; see footnote 65 of this opinion; in light of a statement he made to a television
There was evidence in the record of the defendant’s eventual remorse, specifically, his April, 2000 interview with a television reporter, which was introduced as part of the state’s case. In that interview, the defendant stated that remorse recently had started to set in after he had “met somebody” and, perhaps because of experiencing love, he had begun to “have feelings
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 Mend 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?”
In the course of his argument on this claim, the defendant repeatedly refers to “the mitigating factors,” as if the panel had found multiple proposed factors both proven factually and mitigating in nature. As explained in part VI of this opinion, the panel found proven the cumulative mitigating factor only, and we have concluded that that finding was not improper.
As we concluded in part IV of this opinion, there was sufficient evidence to support the panel’s finding of the cruel, heinous and depraved aggravating factor. Moreover, as we concluded in part VI of this opinion, the panel’s findings as to mitigation were not improper. To the extent the defendant, in arguing this issue, has repeated his attacks on the propriety of the panel’s findings on aggravation and mitigation, we will not respond to those attacks anew.
Because the penalty phase in Courchesne was tried to a jury, there were no findings, as there are in the present case, as to the specific mitigating factor or factors found. Accordingly, we evaluated the defendant’s claim with reference to all of the mitigating factors alleged. State v. Courchesne, supra,
In advancing this claim, the defendant emphasizes the fact that he was just shy of his nineteenth birthday when he murdered the victim. He argues that that factor, as a general matter, strongly diminishes culpability and, therefore, carries heavy weight to offset the aggravating factor and, further, renders the punishment of death disproportionate. Although the defendant’s age undoubtedly was a consideration; see, e.g., Johnson v. Texas,
The defendant requests that this court consider extra-record social science reference materials to evaluate the reasonableness of the panel’s weighing determination. For the reasons previously explained; see footnote 16 of this opinion; we cannot rely on evidence not introduced at trial to second-guess the panel’s determination. Cf. State v. Arthur H.,
General Statutes § 53a-46b (b) requires this court to review all death sentences to determine whether they are “the product of passion, prejudice or any other arbitrary factor . . . .”
The defendant also claims state constitutional violations, but the only argument he provides in support of those claims is a conclusory reference to Geisler analyses in different portions of his brief that are directed at
According to the defendant, at the time he was sentenced, six of Connecticut’s ten death row inmates had been prosecuted in the judicial district of Waterbury and, at the time his brief was filed, six of thirteen.
As part of this claim, the defendant also argues that his sentence was an improper product of the presiding judge’s bias regarding mitigating evidence. Because we disagree that the defendant has established the factual predicate of this argument; see part II of this opinion; we do not address it further.
In advancing this claim, the defendant cites to extra-record reference materials as evidence of contemporary societal norms to advocate for a new constitutional rule rather than, as in parts I, IV and VII of his brief, to attempt to reacjjudicate this particular case on appeal. See footnotes 16, 63 and 76 of this opinion. We have in the past permitted citation to such evidence in this context. See Connecticut Coalition for Justice in Education Funding, Inc. v. Rell,
The defendant also argues that the death penalty, per se, constitutes a violation of the eighth amendment to the United States constitution. Clearly, we are bound by precedents of the United States Supreme Court holding to the contrary. See, e.g., Gregg v. Georgia, supra,
In State v. Ross, supra,
In contrast, in State v. Ross, supra,
In State v. Webb, supra,
We undertake, in essence, a partial Geisler analysis regarding what has occurred since 1994, because our constitutional text and history remain the same, and this court repeatedly has sustained the constitutionality of the death penalty generally and our death penally statutes in particular. Accordingly, our focus is on recent federal and state jurisprudence and contemporary economic and sociological norms.
When originally enacted, § 53a-54b authorized a capital felony conviction for a nonhomicide offense that, nevertheless, contributed to the death of a person. See Public Act 73-137, § 3 (6) (identifying as capital felony illegal sale, for economic gain, of cocaine, heroin or methadone to person who dies as direct result of use of such cocaine, heroin or methadone). This provision was eliminated in 2001. See Public Act 01-151, § 3. Since then, Connecticut’s statutorily enumerated capital felonies have included only various types of murders.
Moreover, in People v. LaValle,
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,
This statistic includes two inmates in New Mexico who remain on death row despite that state’s repeal of the death penalty because the repeal, by its terms, is prospective only. It also includes sixteen Illinois inmates who were on death row in January of 2011, but were subsequently granted clemency by that state’s governor when the repeal of the death penalty in Illinois took effect on July 1, 2011, bringing the number of inmates held on death row nationwide to 3235 in thirty-five states.
The numbers of executions carried out, nationwide, over the previous sixteen years, are as follows: 1994-31; 1995-56; 1996-45; 1997-74; 1998-68; 1999-98; 2000-85; 2001-66; 2002-71; 2003-65; 2004-59; 2005-60; 2006-53; 2007-42; 2008-37; 2009-52; 2010-46. See Death Penalty Information Center, “Facts about the Death Penalty,” supra, p. 1. As of October 21, 2011, 38 executions have taken place. See id.
The numbers of executions carried out, nationwide, in the decade preceding Ross were, as follows: 1983-5; 1984-21; 1985-18; 1986-18; 1987-25; 1988-11; 1989-16; 1990-23; 1991-14; 1992-31; 1993-38. See Death Penalty Information Center, “Facts about the Death Penalty,” supra, p. 1.
Moreover, although the pace of executions has slowed in recent years, they still occur at a rate substantially higher than that typically considered by the United States Supreme Court to evidence a dearth of public support for a particular punishment. See, e.g., Kennedy v. Louisiana, supra,
See Death Penalty Information Center, “The Death Penalty in 2010: Year End Report,” (December, 2010), available at http://www.deathpenalty info.org/documents/2010YearEnd-Einal.pdf (last visited November 18, 2011) (copy contained in the file of this case in the Supreme Court clerk’s office); N. Lewis, “Death Sentences Decline, And Experts Offer Reasons,” N.Y. Times, December 15, 2006, p. A28.
Indeed, declining imposition of capital punishment may indicate that the death penalty is being employed precisely as was intended, to punish only the very worst of society’s criminals, and only after a vigorous legal process has ensured that the defendant has been found guilty after a fair trial with demanding procedural safeguards. As the United States Supreme Court has observed, “the relative infrequency of jury verdicts imposing the death sentence does not indicate rejection of capital punishment per se. Rather, [it] . . . may well reflect the humane feeling that this most irrevocable of sanctions should be reserved for a small number of extreme cases.” Gregg v. Georgia, supra,
The defendant filed his initial brief in this appeal in 2008, when support for the penalty appeared somewhat weaker, and he referred to an earlier Quinnipiac University poll reflecting that circumstance.
The views of Connecticut residents are consistent with those held nationally. A 2010 Gallup poll showed 64 percent of Americans in favor of the death penalty and 29 percent in opposition to it. See Gallup, “In U.S., 64% Support Death Penalty in Cases of Murder,” (November 8, 2010), available at http://www.gallup.com/poll/144284/Support-Death.-Penalty-Cases-Murder.aspx (last visited November 18, 2011) (copy contained in the file of this case in the Supreme Court clerk’s office).
Unlike the punishments at issue in Graham and Roper, capital punishment in general has not lost the support of the entire world community. According to Amnesty International, ninety-six countries have abolished the deathpenalty for all crimes and nine have abolished it for all but “exceptional crimes,” thirty-four countries retain the death penalty but have not executed
The defendant deemphasizes retribution, which is recognized as a constitutionally legitimate purpose of punishment. Graham v. Florida, supra,
The defendant also includes lengthy quotes from the opinions of dissenting justices in capital cases, which express views similar to those reflected in the commission and interest group reports. He further observes that death row inmates have been exonerated in other jurisdictions, but makes no suggestion that any person on Connecticut’s death row, presently or previously, was convicted wrongfully.
As the Supreme Court of New Jersey observed when upholding that state’s death penalty against a general constitutional challenge, “[t]he ‘contemporary standard of decency’ against which the death penalty must be tested ... is that of the community, not that of its scientists, penologists, or jurists.” State v. Ramseur, supra,
The repeal legislation originally had passed in the House of Representatives with ninety members voting in favor of it, fifty-six members voting against it and five members absent. The vote had been closer in the Senate, with nineteen members voting in favor of the legislation and seventeen voting against it.
The defendant also argues that the unsuccessful repeal attempt deprives the death penalty of the legislative authorization necessary for its constitutionality, and that “[t]he state constitution does not empower the [g]overnor to authorize the death penalty after its repudiation by the General Assembly . . . .” Obviously, all of our current death penalty legislation was enacted via the process specified in our constitution, which requires both legislative and gubernatorial approval, and subsequently has been upheld by this court against numerous constitutional challenges. The defendant provides no direct support for the proposition that a legislature’s unsuccessful repeal attempt somehow vitiates a law that was enacted constitutionally by a previous legislature and governor, and we are not aware of any. Moreover, to the extent the defendant raises a new claim as to purported constitutional limitations on the governor’s authority to veto death penalty legislation, a claim to which the state has had no opportunity to reply, we need not address his arguments. SS-II, LLC v. Bridge Street Associates,
Concurrence Opinion
concurring. I concur in all respects with the well reasoned opinion of the majority. I write separately only to express my continued reservations about the efficacy of our application of the Geisler test to claims raised by a party under the Connecticut constitution. See State v. Geisler,
NORCOTT, J., dissenting. I continue to “maintain my position that the death penalty has no place in the jurisprudence of the state of Connecticut.”
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 five or die at the hands of the state.” State v. Cobb,
See State v. Ross,
See, e.g., State v. Webb,
See Substitute Senate Bill No. 1035, 2011 Sess., “An Act Revising the Penalty for Capital Felonies” (not taken up for full vote in either chamber); Public Acts 2009, No. 09-107 (legislation vetoed by former Governor M. Jodi Rell).
As the majority notes, thirty-four states, plus the federal government and military, have the death penalty. Connecticut and New Hampshire are the only states in the New England region with the death penalty. See generally Death Penalty Information Center, “Facts About the Death Penalty,” available at http://www.deathpenaltyinfo.org/documents/Fact Sheetpdf (last visited November 17, 2011).
The remainder of the top ten countries with respect to the number of reported executions in 2010 consists of Saudi Arabia, Libya, Syria, Bangladesh and Somalia. See Amnesty International, Report: Death Sentences and Executions 2010 (2011), p. 41, available at http://www.amnesty.org/en/ library/asset/ACT50/001/2011/en/ealb6b25-a62a-4074-927d-ba51e88df2e9/ act500012011en.pdf (last visited November 17, 2011).
Cf. Aesop’s Fables, “The Ass and His Purchaser” (“[a] man is known by the company he keeps”), available at http://etext.virginia.edu/toc/modeng/ public/AesFabl.html (last visited November 17, 2011).