Opinion · Supreme Court of Connecticut
State v. Cobb
251 Conn. 285
- Type
- Opinion
- Court
- Supreme Court of Connecticut
- Jurisdiction
- Connecticut
- Date
- 1999-12-07
- Topic
- general
holding that the illegal evidence must be discovered in a search uninfected by illegal police action | noting that disproportionate sentences will be unlikely where the sentencing authority is correctly instructed and appropriately follows the statute | noting that disproportionate sentences will be unlikely where the sentencing authority is correctly instructed and appropriately follows the statute | noting that disproportionate sentences will be unlikely where the sentencing authority is correctly instructed and appropriately follows the statute | noting that disproportionate sentences will be unlikely where the sentencing authority is correctly instructed and appropriately follows the statute | noting that prosecutor’s closing argument is bound only by facts in evidence and theory presented in ‘‘the information and the bill of particulars’’ | upholding validity of jury waiver where, inter alia, defendant was twenty-nine years old, high school graduate, had some military training and was employed at time of arrest | upholding validity of jury waiver where, inter alia, defendant was twenty-nine years old, high school graduate, had some military training and was employed at time of arrest | defendant’s statement that he wanted to get matter “off his chest” indicated desire to relieve his conscience by confession and was evi dence of waiver | "the state can weaken the force of the defendant's presentation by cross-examination and by pointing to inconsistencies in the evidence" [internal quotation marks omitted] | “the state can weaken the force of the defendant’s presentation by cross-examination and by pointing to inconsistencies in the evidence” [internal quotation marks omitted] | ‘‘the state can weaken the force of the defendant’s presentation by cross-examination and by pointing to inconsistencies in the evidence’’ (internal quotation marks omitted) | evidence is not excluded if obtained independently of illegal police conduct, or inevitably would have been discovered | the state can weaken the force of the defendant’s pre- sentation by cross-examination and by pointing to inconsistencies in the evidence . . . | the state can weaken the force of the defendant’s presentation by cross-examination and by pointing to inconsistencies in the evidence . . . | evidence admissible if lawful means for inevitable discovery of evidence was possessed by police and actively being pursed prior to constitutional violation | plain error doctrine "invoke[d] in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment" | plain error doctrine “invoke [d] in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment” | “the statutory language, taken together with its judicial gloss, must give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly” [internal quotation marks omitted] | ‘‘[f]urther articulation of a panel’s criminal verdict is unnecessary [when] the verdict adequately states its factual basis, and [when] the record is adequate for informed appellate review of the verdict’’ | warrant valid notwithstanding that a signature was in the wrong place | discussing relationship between independent source and inevitable discovery doctrines
Citator
- Cited by
- 62 opinions
Opinion
TABLE OF CONTENTS
Page
I. FACTS.......................301
II. SEARCH AND SEIZURE ISSUES.......306
A. The December 21, 1989 Warrantless Search of the Defendant’s Apartment. . . 314
B. The December 21,1989 Warrant to Search the Defendant’s Apartment.........316
D. The December 22,1989 Seizure of Certain Items from the Defendant’s Car......325
1. The December 22, 1989 Search Warrant for the Defendant’s Car......326
2. The Pretrial Ruling...........328
3. The Panel’s Ruling During Trial. . . . 329
4. The Defendant’s Claims on Appeal. . 332
E. The December 26, 1989 Search Warrant for the Defendant’s Apartment......341
F. The Execution of the December 26, 1989 Search Warrant...............345
G. The December 26, 1989 Seizure of the Valve Cap and Valve Stem Remover from the Defendant’s Car.............348
III. THE DEFENDANT’S CONFESSION......349
IV. GUILT PHASE ISSUES.............364
A. Waiver of a Jury Trial............365
B. Motion for a Mistrial............375
C. The Factual Basis of the Verdict.....379
D. The Sufficiency of the Evidence......384
E. Murder-Kidnapping Capital Felony .... 386
F. Murder-Sexual Assault Capital Felony . . 387
G. The Two Witness Rule...........389
H. The Imposition of Two Death Sentences 390
V. PENALTY PHASE ISSUES...........392
A. The Defendant’s Waiver of a Jury Trial . 393
B. Disclosure of the Factual Basis of the Guilt Phase Verdicts................393
C. The Defendant’s Claim that the State Improperly Changed Its Theory of Aggravation .....................397
1. The Evidence at the Guilt Phase . . . 398
2. The Arguments at the Guilt Phase . . 403
3. The Evidence at the Penalty Phase. . 407
4. The Arguments at the Penalty Phase 410
E. The Denial of Disclosure Regarding the Defendant’s Mental Condition.......422
F. Articulation of the Factual Basis of the Panel’s Verdict Regarding the Aggravating Factors....................426
G. The Panel’s Treatment of the Unitary Aggravating Factor as Three Separate Factors ......................432
H. The Definitions of “Especially Heinous” and “Especially Vague”...........434
I. The Purported Inadequacy of the Panel’s Verdict....................434
J. The Claimed Retroactivity of the Ross Definition of “Especially Cruel”........436
K. The Claimed Inapplicability of Certain Ross Language................442
L. The Sufficiency of the Evidence of the Aggravating Factor.............446
M. Articulation of the Factual Basis of the Panel’s Verdict Regarding the Mitigating Factors....................451
N. Whether the Panel Properly Exercised Its Sentencing Function............452
O. The Panel’s Verdict Regarding Mitigation 456
P. The Purported Use of the Defendant’s Motion to Suppress his Confession .... 466
Q. The Purported Misapplication of the Concept of Mitigation..............468
R. The Purported Failure to Consider Certain Nonstatutory Mitigating Factors......469
S. The Purported Failure to Consider the “Catchall” Mitigating Factor........472
T. The Purported Failure to Consider Mercy or Appropriateness of the Death Penalty 474
U. The Purported Failure to Consider the Severity of the Aggravating Factor .... 475
W. The Purported Vagueness of § 53a-46a . . 482
X. The Purported Improper Failure to Find Mitigation...................486
1. Claimed Mitigating Factors Regarding the Defendant’s Psychological State 489
2. Claimed Nonstatutory Mitigating Factors ....................491
Y. The Imposition of Two Separate Death Sentences...................496
Z. Certain Constitutional Challenges.....496
AA. The Purported Arbitrary Factors Pursuant to § 53a-46b (b) (1) and (2)......497
1. The Sufficiency of the Evidence of Aggravation...............498
2. Certain Guilt Phase Challenges .... 498
3. Request for Evidentiary Hearing . . . 498
VI. PROPORTIONALITY REVIEW.........500
A. The State’s Claim of Lack of Proportionality Review Jurisdiction...........501
B. The Comparative Method of Proportionality Review..................502
C. The Purported Speculative Basis of the Aggravant...................509
D. Proportionality Review Pursuant to § 53a-46b (b) (3)..................509
The defendant, Sedrick Cobb, appeals1 from the judgment of the trial court, after a trial to a three judge court, of conviction of two counts of capital felony in violation of General Statutes § 53a-54b (5) and
The defendant was charged in an information with: (1) two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and (B);4
The defendant filed three motions to suppress: (1) certain evidence gathered as a result of two searches of the defendant’s automobile; (2) certain evidence gathered as a result of three searches of the defendant’s residence; and (3) an oral confession made by the defendant. After an evidentiary hearing, the court, Pellegrino, J., denied the defendant’s motions.
The trial then was held before the panel, which rendered a verdict finding the defendant guilty on all counts. Thereafter, pursuant to General Statutes (Rev. to 1989) § 53a-46a (b) (3),9 the defendant, with the
I
THE FACTS
The panel reasonably could have found the following facts. On December 15, 1989, the defendant was in the parking lot of the Bradlees’ shopping center in Waterbury. After Bonita Casertano parked her car in the lot and entered the shopping center, the defendant deflated one of her car tires with a valve stem remover. When she returned to her car, the defendant approached her, pointed to her deflated tire, and offered to change it for her. A friend of Casertano passed by, however, and offered to assist Casertano, at which time the defendant left the area.
On December 16, 1989, at approximately noon, the defendant was again in the Bradlees’ shopping center parking lot. Susan Romaniello had parked her car and entered the shopping center. Thereafter, the defendant deflated one of her car tires with a valve stem remover. When she returned to her car, the defendant approached her, told her that her tire was flat, and offered to change it for her. She declined his offer,
On the evening of December 16, 1989, the victim in this case, Julia Ashe, drove her two door car to the Naugatuck Valley Mall in Waterbury, where she bought some items from Lemer’s department store (Lemer’s) and from Record Town. She then drove 2.4 miles to the Bradlees’ shopping center and parked her car in the parking lot. The defendant was also in the parking lot, and had in his possession a valve stem remover and a roll of fiberglass reinforced tape. After the victim had left her car and entered the shopping center, the defendant deflated one of her car tires with his valve stem remover. When she returned to her car, the defendant approached her and offered to change the tire. She accepted his offer, and the defendant removed the deflated tire and replaced it with a donut spare tire from the trunk of the victim’s automobile. While the defendant was changing the tire, Richard Sprague walked by and saw the defendant so engaged. At some point, the defendant told the victim that his car was disabled and requested a ride. The victim agreed to give him a ride to a gas station. The victim and the defendant then both entered her car with the victim in the driver’s seat and the defendant in the front passenger seat. After they left the parking lot, the defendant forced the victim to drive approximately 0.8 of one mile until they reached a secluded wooded area off Harper’s Ferry Road in Waterbury, near a dam that abutted a pond.
The defendant directed the victim to park there, and he then directed her to get into the backseat, where he knew that she would not be able to leave the two door car. He then went through her pocketbook and shopping bags, and took approximately $300, including two $50 bills. The victim’s fiance, John DeSantis, had given
The victim survived the fall and located some metal wire mesh, which is used to reinforce concrete, protrading from the ice near the apron. Using the sharp edges of the wire mesh, she was able to remove the bindings from her hands, cutting herself in the process. She also managed to undo the bindings from her feet, removing her right sneaker in the process. She unsuccessfully attempted to remove the gag from her mouth. While attempting to do so, she used sufficient force to cause her to gouge her face with her fingernails and to break a fingernail. When she had removed some of her bindings, the victim attempted to crawl out of the water onto the abutting rocky shore.
Meanwhile, however, in order to make sure that the victim was dead, the defendant was watching her from the top of the dam. Realizing that she had survived the fall and was crawling toward the shore, the defendant made his way down to the victim and forced her, face
The defendant then returned to the victim’s car, where he opened the trunk with her car keys, and took out a Jean Country store bag containing a new pair of blue jeans and a Lerner’s bag. He next threw the car keys into the trunk, closed it, took both bags with him, and walked back to his car, which was in the Bradlees’ parking lot. The defendant then drove onto Interstate 84, back to the area adjoining the dam and the pond. There he parked on the shoulder of the highway, and climbed over a guardrail and through a hole in a fence to a point where he was able to look down and see the victim’s lifeless body. He then drove home.
At that time, the defendant was living in an apartment, located at 85 Aetna Street in Naugatuck, with a friend, George Fonte, from whom he rented a room for $300 per month. At some point during the early morning hours of December 17, 1989, the defendant made a payment on his rent by leaving $250 of the cash that he had stolen from the victim, including the two $50 bills, on the kitchen table. Later that same morning, the defendant went to the Jean Country store at the Naugatuck mall where, giving a false name and address, he returned the victim’s jeans, which she had purchased at 6:40 p.m. the previous day, for a cash refund in the amount of $19.90.
The victim’s pocketbook was in her car, but there was no money in it. Although when she had left to go shopping her car had four regular tires on it, when it was found there was a donut spare tire where the left front tire had been, and in the trunk were the left front tire, a single glove and the keys to the car. The valve stem of the removed tire was loose, but when it was tightened the tire retained air, and was still full of air at the time of trial approximately seventeen months later. Additional facts will be stated as appropriate to the various claims of the defendant.
II
SEARCH AND SEIZURE ISSUES
Judge Pellegrino held an extensive evidentiary hearing on the defendant’s motions to suppress, at which
In June, 1989, the defendant was arrested in connection with an incident involving an attempted sexual assault, an assault and an unlawful restraint that had occurred in Naugatuck. At the time of the critical events in the present case, that matter was pending in the Superior Court in Waterbury, and the defendant was represented on those charges by a privately retained attorney, David Labriola.
On December 20,1989, five days before the discovery of the victim’s body, Detective Joseph Froehlich, of
In the early evening of December 20, 1989, Trooper James Monroe, Detective John Buterla and Sergeant John Mucherino, of the Connecticut state police, went to the defendant’s apartment in Naugatuck to execute an arrest warrant for the arrest of the defendant in connection with the Oxford crimes committed on December 15, 1989. Officer Robert Hughes, of the Naugatuck police department, accompanied the state police to assist them with the arrest. At that time, Hughes also was investigating a sexual assault that had occurred in Naugatuck on December 13, 1989. The defendant was at his apartment, and he was placed under arrest. The defendant was asked if he would be willing to speak with the police about the Oxford incident. He agreed and, after having been given the Miranda warnings,15
The defendant then was taken to the Southbury state police barracks, where he was booked and again asked if he would agree to discuss the Oxford crimes. He agreed to do so, and again was given the Miranda warnings. The defendant then willingly gave a written statement regarding the Oxford crimes. He was calm and cooperative. After giving this statement, the defendant consented to speak with the Naugatuck police, who were waiting at the barracks, about the Naugatuck crime committed on December 13, 1989. The defendant again was given the Miranda warnings, and he gave the police a written statement concerning his involvement in that incident. He continued to manifest a calm demeanor at that time.
Meanwhile, the Watertown and Waterbury police departments were investigating the victim’s disappearance on December 16, 1989. On the morning of December 21, 1989, Mucherino shared information about the Oxford crimes with Detective Robert Scannell, of the Watertown police department, and told Scannell that the defendant had been arrested. Scannell had been told by DeSantis that on the night of her disappearance, the victim had intended to shop at Lemer’s and Music Land in the Naugatuck Valley Mall. After Scannell had
At the time of Scannell’s request, Detective Sean Byrne, of the Connecticut state police, was transporting the defendant in a police cruiser from the Southbury barracks to the Superior Court in Derby, for arraignment on the Oxford crimes. Mucherino contacted Byrne by radio and requested that Byrne ask the defendant if he had been at the mall on December 16, 1989. Byrne, after reading the defendant the Miranda warnings, asked him if he had been at the Naugatuck Valley Mall on December 16, and the defendant answered in the affirmative. This information was transmitted to Scannell.
The defendant was arraigned at geographical area number five of the Superior Court in Derby at approximately noon on December 21,1989. At that arraignment, the presiding judge, Sequino, J., advised the defendant, along with others then being arraigned, of their rights. That advice included the following: He had “the right to remain silent”; anything he said “can and will be used against” him; if he “considered] answering questions that may be posed to [him] by anyone including a police officer, [he had] the right to consult with an attorney before being questioned”; he had “the right to have an attorney present while being questioned and . . . the right to stop answering questions at any time [he] chose”; he had “the right to be represented by an attorney”; and if he could not “afford an attorney and [he, qualified], the court [would] appoint a public defender to represent [him] without cost to [him].” The court appointed Public Defender Mary Hazelkamp to represent the defendant on the Oxford charges.
At approximately 1 p.m., Detective Neil O’Leary and Lieutenant Robert Deely, of the Waterbury police
In this form, the defendant acknowledged that he had been advised of his right not to have a search made of his apartment without a search warrant, and that he had a right to refuse to consent to the search. He also
O’Leary and Deely went to the defendant’s apartment, and when they looked into the box next to his bed, as he had described it to them, they first saw a green and white Watertown Federal Credit Union envelope. They immediately thought that the envelope might be evidence in the present case because DeSantis had told them that the victim belonged to the Watertown Federal Credit Union, and that he had cashed her paycheck and had given her the money in a credit union envelope. Instead of proceeding further on the basis of the consent to search, however, the officers called State’s Attorney John Connelly, who advised them to seek a search warrant to seize the credit union envelope.16
As a result, O’Leary and Deely prepared and secured a search warrant for the seizure of the credit union envelope and other items that they thought might be located in the defendant’s apartment. They executed
The next day, December 22,1989, Deely and Scannell secured a search warrant for the defendant’s car, which was still being held by the state police. Pursuant thereto, they sought to seize, and did seize, a woman’s red belt, a pair of woman’s purple and gold clip-on earrings attached to a plastic display card labeled “Cafe,” a cassette tape entitled “Relaxation,” a Lemer’s bag, and a Record Town bag. This warrant and the seizure incident to it were the subject both of a pretrial ruling of Judge Pellegrino, and of a subsequent ruling of the panel during the trial, which we discuss in more detail in part II D of this opinion.
The victim’s car and body were discovered on December 25, 1989. As a result, Deely and O’Leary sought another warrant to seize, among other things, a plastic valve cap, a metal valve cap, and a valve stem remover, from the defendant’s car. This warrant was signed and executed on December 26, 1989, yielding the two valve
A
The December 21, 1989 Warrantless Search of the Defendant’s Apartment
Judge Pellegrino ruled that the defendant voluntarily had consented to the warrantless search of his apartment by O’Leary and Deely on December 21,1989. That search revealed the presence of the Watertown Federal Credit Union envelope, which served as a partial basis for the subsequent warrant for the further search of the defendant’s apartment and the seizure of the envelope. The defendant claims that the court improperly determined that his consent to this search was voluntary. We disagree.
“A search ... is not unreasonable under . . . the fourth amendment to the constitution of the United States . . . if a person with authority to do so has freely consented .... Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); Dotson v. Warden, 175 Conn. 614, 618, 402 A.2d 790 (1978). . . . State v. Reagan, 209 Conn. 1, 7, 546 A.2d 839 (1988). Whether there was valid consent to a search is a factual question that will not be lightly overturned on appeal. United States v. Sanchez-Jaramillo, 637 F.2d 1094, 1098 (7th Cir.), cert. denied, 449 U.S. 862, 101 S. Ct. 166, 66 L. Ed. 2d 79 (1980).” (Internal quotation
The trial court’s finding is amply supported by the evidence. The defendant agreed to speak with O’Leary and Deely in the Derby courthouse after they had informed him that they were police officers investigating the disappearance of the victim, and after they had advised him of his Miranda rights. He voluntarily disclosed to them that he had put a receipt in a box in his bedroom, and he specifically told them that they could go to his apartment and retrieve it. They advised him of his right not to have his apartment searched without a warrant, and he stated that he understood his rights. There was a hiatus of several hours while they obtained a formal consent to search form. He then signed the form in which he also acknowledged that he could refuse to have his apartment searched without a warrant, that they could seize, not only the receipt in question, but any other items that they deemed pertinent to their investigation, and that he was giving them permission to search without threats or promises of any kind. In signing the form, he also specifically waived his constitutional right not to have his premises searched without a warrant. As the trial court specifically noted, there was no evidence whatsoever of any coercion. In addition, on the prior day the defendant voluntarily had consented to a search of his apartment in connection with his arrest for the Oxford crimes, and he had executed a consent to search form at that time.
The defendant argues that “by being informed that the police could get a warrant, [he] was given the signal that not to consent would be futile. This brings the case
B
The December 21, 1989 Warrant to Search the Defendant’s Apartment
The court ruled that the search warrant for the defendant’s apartment issued on December 21, 1989, was valid. This search yielded, among other things, the credit union envelope, the Chess King receipt for the sweater that the victim had purchased for her father on December 14, 1989, and the newspaper under the defendant’s bedcovers open to a story concerning the victim’s disappearance, all of which eventually were introduced into evidence. The defendant claims that this warrant was invalid because the affidavit underlying it did not establish probable cause. This claim is wdthout merit.
Under the fourth amendment to the United States constitution, “[p]robable cause to search exists if: (1)
“The standard of review of an issuing judge’s determination that probable cause existed to issue a search warrant is to consider the information before the issuing judge at the time of the issuance of the warrant, together with the reasonable inferences drawn from such information, in the light most favorable to the issuing judge’s determination of probable cause. ... In determining whether probable cause exists to conduct a search, a totality of the circumstances test is used. Illinois v. Gates, 462 U.S. 213, 233, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); State v. Johnson, [219 Conn. 557, 562, 594 A.2d 933 (1991)]; State v. Barton, 219 Conn. 529, 545, 594 A.2d 917 (1991). [P]robable cause is a fluid concept— turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules. Illinois v. Gates, supra, 232. In determining the existence of probable cause to search, the magistrate should make a practical, commonsense decision whether, given all of the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id., 238; State v. Johnson, supra, 563. In making this determination [of probable cause], the magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate.
The application for the search warrant sought permission to search the defendant’s apartment and to seize a green and white Watertown Federal Credit Union envelope, a Music Land plastic bag, receipts, a woman’s red coat, white sneakers and blue jeans, and a “black velcro wallet with crisscross design.” The supporting affidavit of O’Leary and Deely dated December 21,1989, disclosed the following facts. The victim, age twenty-two, was reported missing by DeSantis to the Water-town police department at approximately 2 a.m on December 17, 1989. He had last seen her when she left their residence in Oakville to go shopping at the Naugatuck Valley Mall on the evening of December 16, 1989. When she left, she had been wearing, among other items, blue jeans, a red winter coat and sneakers, and was carrying a black velcro wallet with a crisscross design. The victim had told DeSantis that she was going shopping at Lemer’s and Music Land at the mall, and would be home at approximately 10:30 p.m. She neither arrived home at the expected time, nor had she called. According to DeSantis, this was completely out of character for her, because in the five years that they had been together she had never even been one hour late coming home. Further, she was seen by Douglas Hughes, a friend of both DeSantis and the victim, inside the mall carrying packages, at approximately 7:30 p.m.
The affidavit further stated that the victim’s friends and her employer were of the opinion that her disappearance involved foul play. The affidavit also stated that the defendant, who lived at 85 Aetna Street in Naugatuck, had been arrested on the previous day and charged with robbery in the first degree and sexual
In addition, the affidavit disclosed that the victim did all of her banking at the Watertown Federal Credit Union, and that on December 21, 1989, the defendant had been interviewed by O’Leary and Deely in connection with the victim’s disappearance. After being advised of and waiving his constitutional rights, he had told them that, on the evening of December 16, 1989, he had been shopping at Caldor’s department store, and when he returned to his car in the Caldor’s lot it would not start. He walked across the street to the Naugatuck Valley Mall, and, in that parking lot at approximately 10 p.m., after leaving the mall, he found a plastic shopping bag with the name “Lerner’s” on it. According to the defendant, inside the bag were a pair of earrings, a cassette tape and a receipt. He took the receipt out of the bag and put it in his jacket pocket, and walked back to his car. He put the bag into his car, which still would not start. He then blacked out for several hours, woke up at approximately 2 a.m., started his car and went home.
When asked why he took the receipt, the defendant stated that he did not know why. When asked where the receipt was at that time, the defendant stated that he had put it in a cardboard box in his bedroom, and that the affiants could get it. The defendant also stated that his roommate would be home after 5 p.m. and would let them in because the defendant did not have his keys with him. After being advised that in order for O’Leary and Deely to enter his apartment they would need either a search warrant or a written consent to search signed by him, the defendant stated that he had nothing to hide, and that if they wanted to enter the apartment he would give them his consent. They then secured a consent to search form, which the defendant signed.
These facts gave ample support for the issuing judge’s determination that there was probable cause to search the defendant’s apartment. Although the whereabouts of the victim was then unknown and her body had not yet been discovered, there was sufficient evidence for probable cause to believe that she had been the victim of criminal activity. She had been missing for approximately five days, after having gone shopping in the Christmas holiday period, and had neither returned home when expected that evening nor called to say where she was. She had not been seen since 7:30 that evening, when she had been seen at the mall. Such a disappearance was totally out of character for her. Thus, there was probable cause to believe that the items sought were “connected with criminal activity . . . .”
Furthermore, there was sufficient evidence to connect both the defendant and his apartment to the criminal activity regarding the disappearance of the victim, and thus, ample evidence for probable cause to believe that the items sought would be found in the defendant’s apartment. The victim was going to shop at Lerner’s and Music Land at the mall, and was seen at the mall at approximately 7:30 p.m. The defendant admitted that he had been at the mall at approximately the same time. The defendant admitted that he had found and taken possession of a Lemer’s bag containing a pair of earrings, a cassette tape and a receipt, and such a bag had been found during the inventory search of his car. The consensual search of the defendant’s apartment had disclosed the credit union envelope, and the victim had been in possession of just such an envelope, which contained several hundred dollars, when she had embarked on her shopping trip. Moreover, the defendant was not a member of the credit union. The consensual search also had disclosed the presence of a Music Land bag. Furthermore, the defendant had been arrested and charged with first degree robbery and first degree sexual assault for a criminal incident committed on the very day before the victim’s disappearance. The totality of these facts, and the reasonable inferences that could be drawn from them by the issuing judge, were sufficient to establish probable cause to believe that, in addition to the credit union envelope and Music Land bag that already had been found in the defendant’s
C
The Execution of the December 21, 1989 Search Warrant
In executing the December 21, 1989 warrant, the police seized the credit union envelope and its contents, which included the Chess King receipt.20 The trial court declined to suppress the receipt, ruling that: (1) the receipt was “part and parcel” of the credit union envelope; and (2) the warrant had authorized the seizure of “receipts.”
The defendant claims that the Chess King receipt should have been suppressed on the ground that “the warrant did not authorize the seizure of [this receipt] . . . because at the time [it was] seized the police lacked the [requisite] probable cause that [it was] in any way connected to criminal activity or to [the victim’s] disappearance.” More specifically, he argues that: (1) if the authorization in the warrant to seize receipts included any or all receipts, the warrant would necessarily be “an unconstitutional general warrant”; and (2) the authorization to seize the envelope did not authorize the police to seize anything in it, except for the cash that the affidavit established had been in the envelope. Therefore, the defendant maintains, the police could not establish probable cause with regard to any other contents of the envelope. We disagree.
The affidavit disclosed that the defendant had placed, in a box in his bedroom, a receipt of unknown origin
The warrant authorized the seizure of both the envelope and receipts. The envelope itself was named in the warrant as a target of the search, and was also a logical container of a receipt, in the sense that a paper receipt reasonably could be thought to be inside an envelope. The envelope was part of the evidence connecting the defendant to the disappearance of the victim, and the defendant himself had stated that he had obtained the receipt from a Lerner’s bag he had found in the mall parking lot. Moreover, this reference further connected the defendant to the victim’s disappearance because she had disappeared after leaving to go shopping at Lemer’s, among other places, at the mall. Thus, the envelope, the Lemer’s bag and the receipt, all combined to connect the defendant to the victim’s disappearance. Therefore, when the police seized the credit union envelope, they were entitled to search inside it to determine whether it contained, and then to seize therefrom, any receipt found therein.21
Consequently, we reject the defendant’s contention that the police were required to establish separate probable cause to seize anything, other than cash, that they found in the credit union envelope. The police were authorized to seize any receipt that could have disclosed a potential connection between the victim and the
We also reject the defendant’s contention that this interpretation of the scope of the warrant renders it an unconstitutional general warrant. Given that the defendant did not specify the origin of the receipt that he had taken out of the Lerner’s bag purportedly found in the mall parking lot, and given that the victim was known to have been on a shopping trip at the mall prior to her disappearance, that reference was as specific as the circumstances and the nature of the activity under investigation permitted. See State v. Zarick, supra, 227 Conn. 225.
D
The December 22, 1989 Seizure of Certain Items from the Defendant’s Car
Pursuant to a search warrant issued for the defendant’s car dated December 22, 1989, the police seized the following items: a Lemer’s bag containing a red belt and a pair of earrings, which the victim had purchased at Lerner’s on December 16, 1989; and a Record Town bag containing a cassette tape entitled “Relaxation,” which the victim had purchased at Record Town on December 16.22 The defendant claims that these items, as well as certain other evidence that was discovered as a result of the seizure of these items, should have been suppressed. We disagree.
1
The December 22, 1989 Search Warrant for the Defendant’s Car
On the evening of December 22, 1989, the Waterbury police secured a search warrant for the defendant’s car, which was still located at the state police barracks in Southbury. That warrant authorized the search of the car, and the seizure therefrom, of the following items, among others: a woman’s red belt; a pair of woman’s puiple and gold clip-on earrings attached to a plastic display card labeled “Cafe”; an audio cassette tape entitled “Relaxation”; a Lemer’s bag; and a Record Town bag.
The supporting affidavit submitted by Scannell and Deely contained the following information. The first six paragraphs repeated some of the same statements that had been contained in the supporting affidavit for the December 21, 1989 search warrant for the defendant’s apartment. In summary, these paragraphs repeated the following facts: the victim had been missing since the evening of December 16, 1989; she had failed to return home at the expected hour and failed to call, which was totally out of character for her; the victim had told
The affidavit also contained the following information, which theretofore had not been reflected in any previous warrant application. The defendant had been identified by the victim of the Oxford crimes as the man who had entered her home, sexually assaulted her, and “held a gun to her head while playing Russian Roulette.” Also, on December 20,1989, the state police, in connection with the arrest of the defendant for the Oxford crimes, had executed a search warrant of the defendant’s car at the Southbury barracks, and in connection with that search had inventoried among the contents of the car the following items, which were in state police custody at Southbury: (1) a gray plastic Lemer’s bag containing a woman’s red belt with a Lerner price tag and a pair of woman’s purple and gold clip-on earrings attached to a plastic display card bearing the word “Cafe”; and (2) a white plastic Record Town bag containing an audio cassette tape entitled “Relaxation.”
The affidavit further stated that, on December 21, 1989, the Waterbury and Watertown police departments had executed a search warrant for the defendant’s apartment, and had seized store receipts from stores located at the mall that were connected to purchases made by the victim on December 14 and 16, 1989. In this connection, paragraph ten of the affidavit, which later became the subject of the panel’s ruling during trial, stated as follows: “Through subsequent investigation and checking of the day’s receipts for 12-16-89 at the Lerner Shop, located at the [Naugatuck] Valley Mall,
The affidavit also stated that the audio cassette tape entitled “Relaxation” had been identified by DeSantis as the type of cassette that the victim had intended to purchase for him as a Christmas present. Finally, the affidavit stated that, as of December 22, 1989, the date of the affidavit, neither the victim nor her car, which she had been driving on December 16, 1989, had been located.
2
The Pretrial Ruling
The defendant’s pretrial challenge to the December 22, 1989 warrant was confined to the claim that certain information contained in the affidavit, namely, that the victim of the Oxford crimes had identified him as the perpetrator of those crimes, was false. Thus, the defendant challenged the validity of the warrant under the doctrine of Franks v. Delaware, 438 U.S. 154, 171-72, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), that, where a supporting affidavit contains false information included by the affiant either knowingly or recklessly, and the remaining information in the affidavit is insufficient to establish probable cause, the warrant is invalid. See also State v. Delmonaco, 194 Conn. 331, 335, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984). Judge Pellegrino rejected this challenge ruling that the information was not false, and was not made with either intent to mislead or with reckless disregard for the truth, and that, even if the challenged information were excised, the warrant nonetheless established probable cause. See id. The defendant does not challenge that ruling in this appeal.
The Panel’s Ruling During Trial
During the trial, testimony revealed that, on the morning of December 22, 1989, before the search warrant was secured by the Waterbuiy police that evening, certain items that were referred to in the warrant affidavit had been removed from the defendant’s car. Specifically, Mucherino removed the Lerner’s bag and its contents, namely, the belt and earrings, and the Record Town bag and its contents, namely, the “Relaxation” cassette tape, from the car, took them to the Waterbury police department, and gave them to O’Leary. Detective Tania Stenberg, of the Waterbury police department, subsequently brought the belt and earrings, with the coded price tags attached, to Lemer’s. At Lemer’s, Stenberg compared the numbers on the price tags of the belt and earrings to all of Lemer’s December 16, 1989 sales slips, as a result of which she was able to obtain copies of the charge receipts and of the cash register receipt for the purchase of these items. Thereafter, O’Leary returned the items that had been removed from the car to Mucherino, who put them back in the car. Subsequently, the warrant affidavit was prepared, and the warrant was secured that evening. Pursuant to the execution of the warrant, the bags and their contents again were seized. This prewarrant activity by Stenberg was not described as such in the warrant affidavit.23 It was referred to, however, in paragraph
Stenberg testified at trial that on the morning of December 22,1989, she had taken the belt and earrings to Lemer’s at the mall. Using the numbers on the price tags, she located, among the store’s receipts for December 16, 1989, the transaction involving their purchase, as a result of which she located the charge receipts for the items. Those receipts contained the victim’s signature and indicated that the cashier was Lisa Nickles.
Prior to Stenberg’s testimony, there had been no disclosure of the fact that, prior to the issuance of the warrant, the police had removed these items from the car, used them for investigatory purposes, and then referred to the fruits of that investigation in the warrant affidavit. Following that disclosure, the defendant requested the panel to reconsider the court’s pretrial suppression ruling. The panel granted the defendant’s request for reconsideration, and mled that the prewarrant removal by the state police of the items on the morning of December 22, 1989, was an illegal seizure. Specifically, the panel mled that the removal of the properly inventoried “items from the automobile inventoried for the use as possible evidence absent exigent circumstances [was] unauthorized and should not have been done without a warrant. . . . The individual police officer must not be allowed so much latitude that inventoried searches are turned into a purposeful and general means of discovering evidence of the crime. Further, we find that the inevitable discovery exception is not applicable to this factual situation . . . .” Accordingly, the panel suppressed the Lemer’s bag, the belt, the earrings, the Record Town bag and the tape entitled “Relaxation.”24
The defendant claims on appeal that the panel should have suppressed the valve cap, the valve stem remover, and the Lerner’s charge and register receipts. These claims were presented to the panel, and rejected by it. The defendant also claims, for the first time on appeal, that the panel should have stricken Stenberg’s trial testimony,27 and that it should not have permitted the subsequent trial testimony of Nickles, who had known the
4
The Defendant’s Claims on Appeal
On appeal, the defendant claims that “[a]fter having found [the] initial seizure of the Lemer’s bag and the Record Town bag from the defendant’s car on the morning of [December 22, 1989] to be illegal in violation of constitutional search and seizure guarantees, the three judge panel erred in not applying properly the exclusionary mle to all of the evidence derived from the illegal search and seizure.” More specifically, the defendant claims that all of the evidence in question is the fmit of the poisonous tree and, therefore, is suppressible. See Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); State v. Ostroski, 201 Conn. 534, 545, 518 A.2d 915 (1986). The state responds that, assuming but not conceding that the panel was correct in ruling that the prewarrant removal of the items from the car was unconstitutional: (1) nonetheless, under the independent source doctrine the warrant was valid and the consequent seizure of the Lemer’s material was also valid; and (2) that material inevitably would have been seized irrespective of any prior illegality. We agree with the state.29
As the state accurately points out, not all of the information contained in paragraph ten of the warrant affidavit must be excised because only certain parts of that information was tainted. Specifically, irrespective of that paragraph, the affidavit contained the following information to establish probable cause that the victim was shopping at Lemer’s on December 16, 1989. DeSantis had told the police that on the evening of December 16, the victim was going shopping at Lemer’s and at Music Land, both of which were identified as being located at the mall. In addition, Douglas Hughes saw her shopping at the mall at approximately 7:30 p.m. on December 16. Thus, the only information properly excisable from the affidavit, as the fruit of the purported illegality, was that portion of paragraph ten that established that the victim actually had purchased a belt and a pair of gold and purple clip-on earrings at Lemer’s. We therefore consider the affidavit shorn only of that information.
The affidavit provided, therefore, the following information. The victim had disappeared on the evening of December 16, 1989, and neither she nor her car, which she had been driving that evening, had been seen since. Although she was supposed to be home by approximately 10:30 p.m., she had failed to return, and had failed to call. These failures were totally out of character for her. Further, she had told DeSantis that she was going shopping at Lemer’s and Music Land at the mall, where she was seen with packages in her arms by Douglas Hughes at approximately 7:30 p.m. Her friends and
Further, the record conclusively establishes that the decision to seek the warrant was not prompted by the information gleaned from the illegal conduct. Although the determination of whether the decision to seek the warrant for the search of the defendant’s car was improper, if it was prompted by such information, would ordinarily present a question of fact for the trial court; Murray v. United States, supra, 487 U.S. 543; the circumstances of the present case are such that only one rational inference can be drawn, namely, that the decision to seek the warrant would have been the same irrespective of the prewarrant discovery of the small amount of tainted information.
In addition to the untainted information contained in the warrant affidavit that we already have described at
Given all of this information — both that contained in the warrant affidavit and the information also known to the police but not contained in the affidavit — and given that the defendant’s car already was impounded at the state police barracks in connection with a different but recent sexual assault and robbery, it is wholly implausible — indeed, it is inconceivable — that the police would not have sought a search warrant for his car, irrespective of the additional information purportedly gained in an illegal manner. Thus, the only rational conclusion that any fact finder could draw from this record is that the decision to seek the warrant was not prompted by the purportedly tainted information.
Alternatively, we agree with the state that, even if the independent source doctrine did not apply so as to permit the introduction into evidence of the challenged evidence, the evidence, nonetheless, properly was
Both the United States Supreme Court and this court have explained the relationship between the independent source doctrine and the inevitable discovery doctrine. “[The] ‘inevitable discovery’ doctrine . . . assumes the validity of the independent source doctrine as applied to evidence initially acquired unlawfully. . . . The inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.” (Emphasis in original.) Murray v. United States, supra, 487 U.S. 539. Both doctrines rest on the same premise: “ ‘the interest of society in deterring unlawful police conduct and the public interest in having [fact finders] receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred.’ ” (Emphasis in original.) State v. Vivo, supra, 241 Conn. 672, quoting Nix v. Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). Thus, “if the [state] can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings.” Nix v. Williams, supra, 447.
“Both the independent source rule and the inevitable discovery rule rest on assumptions that if the law enforcement agencies involved had eschewed the illegal activity, they nevertheless would have procured the evidence at issue. But the independent source rule applies only upon proof that in actual fact the officers did not obtain the challenged evidence as a result of the primary illegality; the inevitable discovery exception assumes that the evidence was in fact obtained as a consequence of the primary illegality but is invoked by proof that — hypothetically—if the officers had not engaged in the primary illegality, they would nevertheless although in a different manner have obtained the challenged evidence. . . . 1 C. McCormick, Evidence (4th Ed. 1992) § 180, p. 739; see Murray v. United States, supra, 487 U.S. 540.” (Emphasis in original; internal quotation marks omitted.) State v. Vivo, supra, 241 Conn. 673 n.5.
We have stated that “[t]o qualify for admissibility the state must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursuedprior to the occurrence of the constitutional violation.” (Emphasis in original.) State v. Badgett, 200 Conn. 412, 433, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). Although it is not altogether clear, under currently prevailing inevitable discovery jurisprudence, that these are rigid requirements for the application of
Certainly, prior to the issuance of the warrant during the evening of December 22, 1989, the police investigation into the disappearance of the victim had focused on the defendant, and that investigation was being pursued actively. As of December 21, 1989, the police possessed the following information. The defendant had been aixested and charged with the Oxford sexual assault that occurred on December 15, 1989, the day before the victim’s disappearance. The victim was last seen at approximately 7:30 p.m. on December 16, 1989, shopping at the mall, where she had gone specifically intending to shop at Lerner’s and Music Land. The defendant had admitted being at the mall at approximately 8 p.m. on December 16, the day of the victim’s disappearance, and finding a Lerner’s bag containing a pair of earrings, a cassette tape, and a receipt that, he stated, he had brought back to his apartment. The cassette tape matched the type that the victim had
Therefore, once the victim’s car and body were discovered on December 25,1989, and the examination of the car disclosed the spare tire on the front and the regular tire in the trunk with the valve stem having been tampered with, the ultimate seizure of the Lerner’s bag and its contents was inevitable. It follows that the police next would have sought and seemed another warrant, as they actually did on December 26, 1989, to search the defendant’s car for the valve cap and valve stem remover, which the police knew were in it as a result of Waterbury police officer James McDonald’s and Scannell’s plain view during the December 22, 1989
E
The December 26, 1989 Search Warrant for the Defendant’s Apartment
The trial court rejected the defendant’s claim that the December 26, 1989 search warrant for the defendant’s apartment lacked probable cause. This warrant sought “[p]ackaging type tape, [Connecticut] drivers license of [the victim], credit cards of [the victim, and] personal papers of [the victim].” The search pursuant to the warrant yielded, among other items, the victim’s social security card and her Citicorp banking card, and two Sears receipts, both dated December 14, 1989, and signed by her, for the amounts of $26.49 and $9.15.31
The first contention borders on the frivolous. At the suppression hearing, the state affirmatively elicited testimony from O’Leary explaining the mistake in the location of the signatures.32 Thereafter, in oral argument before Judge Pellegrino, the defendant, whose trial counsel intentionally had omitted any such claim from his brief, through the same trial counsel specifically
We already have determined that neither the Lemer’s bag, the Record Town bag, and their contents, nor the evidence to which they led, should have been suppressed because of (1) the independent source doctrine, and (2) the inevitable discovery doctrine. The independent source doctrine applies when “the tainted evidence was obtained, ‘in fact,’ by a search untainted by illegal police activity.” State v. Vivo, supra, 241 Conn. 672. The “independent source rule applies only upon proof that in actual fact the officers did not obtain the challenged
Regarding his second contention, the defendant offers neither authority nor reason, and we know of none, that requires the state, in applying for a search warrant for premises that it previously has searched, to offer independent justification for its failure to seize, in those prior searches, the evidence that it now seeks to discover. So long as the subsequent search warrant affidavit establishes probable cause, the fact that the premises to be searched had been searched previously does not undermine that probable cause. Because the defendant makes no other claim with respect to the validity of this search or the adequacy of the supporting affidavit, we decline to discuss this claim further.
F
The Execution of the December 26, 1989 Search Warrant
The December 26, 1989 search warrant authorized the seizure of, among other items, “[p]ackaging type tape . . . .’’In executing this warrant, the police seized,
As we stated with regard to the seizure of the Chess King receipt pursuant to the December 21,1989 warrant; see part II C of this opinion; “[t]he description of items to be seized in a warrant need only be as specific as the circumstances and the nature of the activity under investigation permit.” State v. Zarick, supra, 227 Conn. 225. Moreover, when the items that were seized “were discovered during a lawful search authorized by a valid warrant [and when] they were discovered, it was immediately apparent to the officer that they constituted incriminating evidence . . . the seizure [is] authorized by the ‘plain-view’ doctrine.”36 Horton v. California,
The victim’s body was discovered on December 25, 1989. As the detectives executing the December 26, 1989 warrant were aware, and as was indicated in the warrant’s supporting affidavit, the victim’s body was discovered with “packaging like tape around the arms, legs and also around her face.” During the suppression hearing, O’Leary testified that he had seized the Yankee Trader receipt37 and the Seal's receipts from the desk because he thought that the packaging tape “could have
G
The December 26, 1989 Seizure of the Valve Cap and Valve Stem Remover from the Defendant’s Car
The defendant’s final search and seizure claim is that the panel should have suppressed the valve caps and valve stem remover that the police seized from the defendant’s car pursuant to the December 26, 1989 search warrant for the car. Although the panel had suppressed the Lemer’s bag and Record Town bag, and their respective contents, based on its view that they illegally had been seized before the issuance of the December 22, 1989 warrant for the search of the defendant’s car, the panel declined to suppress the valve caps and valve stem remover.
This claim, and its resolution, mirror the defendant’s claim regarding the search of his apartment pursuant to the December 26, 1989 search warrant for those premises. The basis of the defendant’s claim for suppression of these items, like his claims regarding the items seized from his apartment, is that they were the “tainted fruit of the initial illegal seizure of the bags from the car.” Because we have determined that the bags, and the evidence to which they led, were obtained independently of any prior purported illegality, however, the admissibility of the valve caps and valve stem
Ill
THE DEFENDANT’S CONFESSION
The defendant claims that Judge Pellegrino should have suppressed an oral confession that he gave to O’Leary and Deely on December 27, 1989, because it was obtained in violation of this court’s ruling in State v. Stoddard, 206 Conn. 157, 537 A.2d 446 (1988), which we discuss later in part III of this opinion. The defendant also claims, accordingly, that any evidence to which his confession led the police also should have been suppressed. The state contends that: (1) Stoddard should be reversed; and (2) alternatively, the defendant is not entitled to any relief under Stoddard. We decline to reverse Stoddard because of considerations of stare decisis, and because its reasoning is as sound now as when it was decided. We also conclude, however, that Stoddard does not avail the defendant of suppression of his confession.
The record discloses the following facts. On December 27,1989, the defendant was brought to geographical area number four of the Superior Court in Waterbury, to be arrested and arraigned in connection with the December 13, 1989 Naugatuck sexual assault. At that time, Public Defender Hazelkamp already was representing the defendant in the Derby geographical area courthouse, and attorney Labriola already was representing him in Waterbury in connection with the June, 1989 Naugatuck charges. It is undisputed, however, that, although Hazelkamp represented him on the Oxford charges pending in the Derby courthouse, neither she nor any other public defender represented him in connection with the December 13, 1989 Naugatuck charges for which he had been brought to Waterbury for arrest and arraignment, because for such purposes
At approximately 9 a.m., on December 27, 1989, O’Leary and Deely went to the Waterbury courthouse to speak with the defendant, who they knew was being brought in to be arrested in connection with the December 13, 1989 sexual assault in Naugatuck. Shortly after 9 a.m., as the defendant was being brought into the lockup area by the sheriffs department, O’Leary greeted the defendant and asked him if he remembered them. The defendant said that he did, and O’Leary asked him whether he would speak with them. The defendant agreed to speak with the officers, and was escorted by the sheriff to the bail commissioner’s office. The officers and the defendant, who were the only individuals in the office, sat down at a table. Deely read the Miranda warnings to the defendant, and the defendant read the Miranda warnings aloud from Deely’s Miranda card. O’Leary asked the defendant if he wanted a lawyer. He stated that he did not want a lawyer. When O’Leary asked the defendant again whether he wanted a lawyer, the defendant replied that “I want to get this off my chest.” O’Leary then reread him the Miranda warnings, and the defendant stated that he understood his rights. O’Leary then asked him again if he wanted to talk with them, and the defendant again stated that “I want to get this off my chest.” The defendant then made an oral confession, which took approximately one-half hour.
The defendant’s statement included the following information. On the night of December 16, 1989, he went to the Bradlees’ shopping center, and saw the victim park her car and go inside. He then walked over
The defendant next removed the victim from her car. She was still alive. He took her over to a wall near a body of water, and pushed her off the wall into the body of water. He then returned to her car and opened the trunk because he remembered that, when he was changing the tire, he had seen a Jean Country shopping bag in the trunk. He took that bag out of the trunk, and inside that bag was a pair of blue jeans and a Lerner’s bag. He took the two bags out of the trunk, locked the car, and walked back to his car at the Bradlees’ parking lot. He next drove in his car onto Interstate 84, and stopped his car on the side of the highway near the
On the basis of the information contained in the defendant’s confession, O’Leary contacted Sergeant Edward Pekrul, of the Waterbury police department, at approximately 10 a.m. on December 27, 1989. After speaking with O’Leary, Pekrul went to investigate the area adjacent to the dam off of Interstate 84. After parking on the shoulder of the highway, Pekrul observed two sets of footprints near the guardrail— one set that appeared to be leading toward the dam, and another set that was leading away from the dam. No other footprints were found in the area of the guardrail. The footprints, including a footprint going over the guardrail, covered the twenty-five feet from the highway guardrail to a fence between the highway and the dam. The fence had a hole in it, and the footprints continued past the hole, for a total of approximately ten to fifteen feet of footprints going from the inside of the fence toward the dam. It is possible to view the location where the victim’s body was found from the spot where the footprints ended. Although there was a distance of another 150 to 200 feet between the fence and the dam, no other specific footprints could be discerned because, by this time, the area had been heavily trampled by persons looking for and removing the victim’s body.
On the evening of December 26, 1989, however, the day before the defendant’s confession to O’Leary and Deely, Assistant Public Defender Barbara Sorrentino, of the Waterbury judicial district office, was told by an investigator from the office of the chief public defender to be on the lookout for the defendant because he was a suspect in a capital felony case. At that time, the
When Isko arrived at the geographical area courthouse prior to 9 a.m. on December 27, 1989, he went downstairs into the lockup area and informed Sheriff Michael Connelly that he wanted to speak with the person who was a suspect in a murder case who was to arrive that morning, presumably the defendant. Connelly told Isko that he would have to check with Lieutenant Philip Calo, who was the sheriff in charge of the lockup area. Isko then talked with Calo, who assured Isko that he would advise him when the defendant had arrived. Meanwhile, prior to 9 a.m., Sorrentino went to the courthouse to meet with Isko so that she could accompany him when they spoke with the defendant. Isko was busy with other matters, and when he became free sometime after 9 a.m., Sorrentino and Isko went downstairs to the lockup area, where they discovered that the defendant was in conference with O’Leary and Deely. As soon as they discovered this, they entered the bail commissioner’s office. As they entered, the defendant had completed giving his oral confession, and O’Leary and Deely were about to obtain a written confession from him. Sorrentino and Isko, however, immediately told O’Leary and Deely that they were public defenders, ordered O’Leary and Deely to stop ques
In State v. Stoddard, supra, 206 Conn. 157-58, we held that the due process clause of article first, § 8, of the Connecticut constitution39 requires the police “to inform a suspect whom they are holding for custodial interrogation of timely efforts by counsel to render pertinent legal assistance.” In that case, the defendant had been arrested at approximately 1:15 p.m. on April 19, 1984, and, after being duly advised of and waiving his Miranda rights, he was questioned by the police in a detective bureau interrogation room at the police station at various times between approximately 2 p.m. of that day, and 3 p.m. on the next day, April 20. Id., 160-62. At that time, after again waiving his Miranda rights, the defendant signed a written confession, which ultimately was admitted against him at trial. Id., 162. In the meantime, however, within fifteen minutes of the defendant’s arrest, his girlfriend had contacted an attorney whose partner had represented the defendant on prior charges. Between 1:30 p.m. on April 19, and the morning of April 20, the attorney made four telephone calls to the police station, identifying himself as the defendant’s attorney and requesting to speak with him. Id., 161-62. In response to each call, however, the attorney was told
On these facts, we concluded “that a suspect must be informed promptly of timely efforts by counsel to render pertinent legal assistance. Armed with that information, the suspect must be permitted to choose whether he wishes to speak with counsel, in which event interrogation must cease, or whether he will forgo assistance of counsel, in which event counsel need not be afforded access to the suspect. The police may not preclude the suspect from exercising the choice to which he is constitutionally entitled by responding in less than forthright fashion to the efforts by counsel to contact the suspect. The police, because they are responsible for the suspect’s isolation, have a duty to act reasonably, diligently and promptly to provide counsel with accurate information and to apprise the suspect of the efforts by counsel.” Id., 166-67. We also stated that, “[w]ithin the parameters we have outlined, this duty requires only that the police act as a neutral conduit for the pertinent and timely requests by counsel to meet with a custodial suspect.” Id., 167. Furthermore, we held that “the prior existence of an attorney-client relationship is not relevant to the duty itself.” Id., 172. Instead, “[t]he existence, or lack thereof, of an attorney-client nexus relates to the question of waiver . . . .’’Id.
With respect to the question of waiver, however, we declined to impose a per se rule of suppression in the event of a violation of this duty of disclosure. Instead, we held that “[t]he decision to speak or to stand mute is a personal right of the suspect,” which is to made “exclusively [by] him” on the basis of full knowledge of all of the relevant circumstances. Id., 174. Based upon “the totality of the circumstances . . . [t]he critical question is whether the information not conveyed
Even if we were to assume, without deciding, that there was a Stoddard violation under the facts of the present case,40 we conclude nonetheless that, even if the effort of Sorrentino and Isko to contact the defendant properly had been communicated to him, the defendant would not have altered his decision to speak with O’Leary and Deely and to confess. We therefore conclude that, the assumed Stoddard violation notwithstanding, the defendant’s waiver of his rights was valid.
We first consider our scope of review on this issue of waiver. The trial court ruled that Stoddard did not
First, we believe that this question is most accurately characterized, not as either a question of fact or as a question of law, but as a hybrid mixed question of fact and law. Although throughout the law there are various mixed questions that call for differing scopes of appellate review and, therefore, applying the label does not necessarily yield the answer; compare, e.g., Copas v. Commissioner of Correction, 234 Conn. 139, 152-53, 662 A.2d 718 (1995) (mixed question of law and fact yields plenary scope of review); with Plastic Tooling Aids Laboratory, Inc. v. Commissioner of Revenue Services, 213 Conn. 365, 369, 567 A.2d 1218 (1990) (mixed
Second, this waiver determination is qualitatively different from the kind of factual determinations to which we normally give deference. The inquiry here is not what happened, based on the evidence presented and the permissible inferences drawn therefrom. The inquiry here is what would or would not have happened if something that did not happen had happened. We are as qualified as the trial court to evaluate the record and to make that hypothetical determination.
Third, this determination is much like the ultimate determination of whether a defendant knowingly and voluntarily waived his Miranda rights. Indeed, the question of whether, notwithstanding a Stoddard violation, the defendant would nonetheless have spoken with the police, is simply part of the Miranda voluntariness calculus. State v. Stoddard, supra, 206 Conn. 173. In making the appellate determination of whether there was a valid Miranda waiver, although we defer to the trial court’s findings on subsidiary factual questions, we do
Fourth, in Stoddard itself we employed, albeit without discussion, a plenary scope of review. After articulating the standards for a waiver of a Stoddard violation, we concluded that “[t]he record in this case, taken as a whole, reveals at least a reasonable likelihood that the defendant would have invoked his right to counsel had the police fulfilled their duty to inform.” State v. Stoddard, supra, 206 Conn. 176. Because of the unrestricted contents of the attorney’s aborted communications, and because the attorney was a member of a firm that previously had represented the defendant, we concluded that “[ujnder the totality of the circumstances, the state has not met its burden of proving by a preponderance of the evidence that the efforts of counsel, if properly communicated, would not have altered the defendant’s appraisal and understanding of the circumstances.” Id., 176-77. Accordingly, without leaving the question open to further trial court determination, we ruled that “the trial court erred in denying the defendant’s motion to suppress.” Id., 177.
Applying this plenary scope of review to the entire record in the present case, we conclude that the state has met its burden. The state has demonstrated, by a preponderance of the evidence, that, even if the effort of the public defenders to talk with the defendant properly had been communicated to him, it is reasonably likely that the defendant would nevertheless have decided to
First, the defendant’s conduct; see id., 175; not only at the time of his confession, but during the preceding week, strongly indicated that he would have cooperated with O’Leary and Deely notwithstanding the information that he was not given. During the week preceding his confession, when asked about both crimes regarding which he formally had been charged and regarding crimes of which he was merely a suspect, the defendant exhibited an extraordinary willingness to cooperate with the police. On December 20, 1989, when he was arrested at his apartment for the Oxford crimes, he agreed to and did speak with the police about those crimes. He also signed two separate consents to search his apartment, one in connection with the Oxford crimes, and the other in connection with the December 13, 1989 Naugatuck crimes for which he then was only under investigation. Thereafter, at the Southbury barracks, he again willingly gave a written statement regarding the Oxford crimes to the state police, and also willingly gave a written statement regarding the Naugatuck crimes to the Naugatuck police. Moreover, this entire course of cooperation had been preceded by numerous Miranda warnings, by his repeated waiver of the rights referred to therein, and by full advice regarding his right not to have his apartment searched without a warrant.
The next day, December 21, 1989, while being transported to the court in Derby for arraignment on the Oxford crimes, the defendant, again after having been given the Miranda warnings, freely responded to Byrne’s inquiry regarding whether he had been at the Naugatuck mall on December 16, 1989. That afternoon, O’Leary and Deely met with him at the court in Derby and told him that they were police officers investigating the disappearance of the victim in the present case.
Furthermore, all of this cooperation took place while the defendant was represented by counsel, albeit not necessarily on the specific matter on which he was cooperating. Since June, he had been represented by Labriola, whom he privately had retained to represent him on the prior Naugatuck charges, for which he had been charged and which charge was pending in court. Since his arraignment on December 21, 1989, in Derby, he was represented on the Oxford charges by Hazelkamp. Not once during this entire course of cooperation with the police on the very serious charges of sexual assault and related crimes, and on O’Leary’s and Deely’s investigation of the victim’s disappearance, for which the defendant knew he was responsible, did the defendant seek to consult either his privately retained or publicly appointed attorney to advise him regarding whether to cooperate. Instead, despite his knowledge of his own guilt, and despite the knowledge that he had counsel, he repeatedly waived his right to counsel and spoke with the police when they asked if he would do so, and repeatedly waived his right not to have his apartment searched without a warrant. Thus, the defendant’s conduct during the week before confessing to O’Leary and Deely indicates an unmistakable willingness to forgo any reliance on counsel, and to cooperate with the police regarding both those crimes for which he had been charged and those crimes for which he
Of further importance in this respect is his willingness, on December 21, 1989, to permit O’Leary and Deely to search his apartment for the receipt that he claimed to have found in the mall parking lot. His written consent to search covered, not only that receipt, but anything else that “they may desire for their official investigation.” The defendant knew that the reference to the “official investigation” was to the disappearance of the victim, whom the defendant had murdered just five days earlier. The defendant also knew, or must have known, that their search would be likely to uncover, not only the receipt, for which he had supplied an exculpatory explanation, but the credit union envelope and the newspaper article, which would be much more difficult to explain and which would necessarily lead to more inculpatory material regarding the victim’s murder.
In addition, when O’Leary and Deely met with the defendant in the bail commissioner’s office on the morning of December 27, 1989, he knew that O’Leary and Deely were still investigating the disappearance of the victim whom he had sexually assaulted and murdered just eleven days earlier. Nonetheless, he agreed to talk to them. He was read his Miranda rights twice, and read them aloud himself once from the card. He acknowledged that he understood his rights. He was asked twice if he wanted a lawyer, and twice he refused. These refusals, moreover, came when the defendant was at the courthouse to be arrested and arraigned on the charges arising out of the December 13, 1989 Naugatuck incident. Thus, the conclusion is inevitable that he knew that, just as had occurred in the Derby court on the Oxford crimes, he would soon have a public
Second, unlike the situation in Stoddard, in which the defendant had a prior attorney-client relationship with the partner of the attorney who was attempting to contact him, in the present case the defendant had no such relationship with either Sorrentino or Isko, or with any public defender in their office. They were not his attorneys, and were not associated with anyone who had been his attorney. Indeed, he had never even met or heard of either of them. They were strangers to him. Thus, “the relationship of the suspect to the attorney”; id., 175; does not suggest that the defendant would have acted differently than he did, because there was no such relationship.
Third, Stoddard is also factually distinguishable because of the extraordinary preconfession history in the present case of cooperation with the police, despite the fact that the defendant throughout had counsel available to him, and despite the high probability, of which the defendant must have been aware, that his cooperation would inculpate him. Moreover, in the present case there is a strong suggestion in the record that, when O’Leary and Deely asked the defendant to speak with them, the defendant wanted to clear his conscience. There was no such history or suggestion in Stoddard.
The defendant contends that, because when Sorrentino and Isko entered the bail commissioner’s office he
The defendant attaches significance to the fact that he did not, at that point, tell Sorrentino and Isko to leave, ask for permission to complete his written confession, or accept O’Leary’s and Deely’s invitation to speak with them later, to which they testified. Those facts, however, which are statements of what the defendant did not do, do not undermine our conclusion, which is drawn from the record of what the defendant did do, both in the previous week and in the previous one-half hour, and from the absence of any prior relationship between the defendant and Sorrentino and Isko.
The state’s burden is to establish, on the basis of the totality of the circumstances, that the defendant would not have acted differently had he been given the proper information. Our conclusion is drawn from the totality of the circumstances, and those circumstances convince us that the state has met its burden.
IV
GUILT PHASE ISSUES
The defendant presents eight claims involving the guilt phase of the trial. He claims that: (1) his waiver
A
Waiver of a Jury Trial
The defendant first contends that his waiver of his right to a juiy trial and election of a three judge panel were not knowing, intelligent and voluntary. More specifically, he argues that the canvass by Judge Byrne was flawed in several respects. First, the defendant claims that the trial court misinformed him about how the chief court administrator selects the panel members. Second, the defendant asserts that it was improper for the trial court not to canvass him about “his understanding of how jurors would be picked and his role therein and his ability to question prospective jurors about their attitude toward racial issues and toward the death penalty . . . .” Third, he argues that he “was not advised about the likelihood that the three judge
The following undisputed facts bear on the defendant’s claim. When the defendant initially was put to plea on all seven counts of the information, he pleaded not guilty and elected a jury trial. Thereafter, however, during a pretrial hearing, the defendant withdrew his jury trial election, elected a trial before a three judge panel, and waived his right to a jury trial.
At that hearing, the defendant was represented by Gerard A. Smyth and Alan D. McWhirter, of the office of the chief public defender. Both were experienced criminal defense attorneys.44 They continued to represent the defendant throughout the trial.
The defendant’s attorneys informed the court that, because the state had communicated to them that it intended to withdraw its request to have the defendant examined by a psychiatrist, they both had spoken to the defendant about “whether or not [he would elect] to be tried by a three judge panel or by a jury.” McWhirter stated that “[a]fter considerable discussion and deliberation, I believe that we’ve reached the decision that we would make the request — [the defendant] will make the request that the trial be made in front of a three judge panel as opposed to a jury at this time.” Smyth concurred with this description of events. McWhirter explained to the court that they also had discussed with the defendant “the question of what
The court explained to the defendant that he had the right to a jury trial before twelve jurors, that no one could force him to change his election of a jury trial, and that he was entitled to have the matter tried to a three judge panel if he so elected. The court explained each of these rights separately, and, at the end of each explanation, asked the defendant if he understood that particular right. The defendant answered in the affirmative each time.
The court then explained how the three judge panel would be assembled for the trial. Judge Byrne explained that he personally would not be a member of the panel,
The trial court then asked the defendant a number of personal questions and received the following information from him. The defendant was twenty-nine years old, a high school graduate, and employed at the time he was arrested. Since graduation from high school, the defendant had “spent some time in the service and after was a truck driver.” In particular, the defendant had spent five years in the United States Army, during which he worked as a transportation specialist, and had left the army with the rank of E-4. While in the army, the defendant had been stationed at a “couple” of duty stations, and participated in special training. The trial court asked, “And you were honorably discharged from that service?” The defendant responded, “No. No, I wasn’t.” The defendant also stated that he had been incarcerated for sixteen months, and that he was not “under the influence of alcohol, drugs or medication of any kind.”
Again, the trial court asked the defendant if he understood that he had the right to a jury trial, and the defendant responded that he did. The trial court then asked: “This is what I gather you want to do today, waive your right to a jury trial and have it done by a three judge panel?” The defendant answered: “That’s correct, Your Honor.”
The court then advised the defendant that “in a jury trial, of course, the verdict must be unanimous, all
The court also confirmed that the defendant had discussed his election with his attorneys and, without soliciting the particulars of the defendant’s conversations with his attorneys, the court asked if the defendant felt that he was “fully and adequately” apprised of the consequences of his election. The court also asked the defendant if his attorneys had told him anything different from what the court had told him, and the defendant responded that they had not. The trial court then explained to the defendant that “the case of this type is split into two phases. The part of determining guilt or innocence, and depending on that verdict, if the verdict of the three judge panel is guilty, then we go to what we call the penalty phase.” The court also explained to the defendant that in order for the three judge panel to preside over the penalty phase, the panel must agree to do so. The court continued that “if the three judge panel comes to the conclusion that you are guilty of the crimes charged, then they could disqualify themselves and then you would have to go on to a jury trial . . . .’’At this juncture, the defendant posed a question to the court: “They could disqualify themselves, Your honor?” The court answered, “They could say that, we don’t want to participate in the penalty phase. You also have to have the agreement of the three judge panel in order for the three judge panel to participate in the penalty phase, if that’s how far it goes;
The court then asked the defendant if he had any questions that he wanted to ask of the court, if he understood all the questions that the court had asked, and if he understood that once he made the election it could not be changed. The defendant declined to ask any questions, and indicated that he understood the court’s questions and the consequences of his election. For the last time the trial court asked the defendant, “you are doing this freely and voluntarily, are you not, sir?” In response, the defendant stated, “Yes. This is in my best interest, Your Honor.”
The trial court then asked several questions of the defendant’s attorneys. First, the court asked the attorneys whether they agreed with the defendant’s answers. The attorneys responded in the affirmative. The court then asked Smyth, “do you feel that [the defendant’s] waiver is freely and voluntarily accomplished and he knows what he is doing and the consequences of that?” Smyth responded, “I am personally satisfied that that is the case, Your Honor.” McWhirter concurred. The court also asked the defendant’s attorneys whether they knew of any reason why the court should not accept the defendant’s waiver, and both attorneys replied that they did not. The court finally directed the same question to the state. The state responded that it knew of no reason. The trial court then specifically found that
In addition, on May 28, 1991, immediately before the presentation of evidence, the defendant was put to plea on the state’s substitute information. In the course of those proceedings, he personally reiterated his election to be tried “[b]y judges,” rather than by a jury, and Smyth reminded the panel that, “[j]ust for the record, there was a previous election and a finding by Judge Byrne.”
“The principles that govern waiver of a right to a jury trial are not in dispute. The right to a jury trial in a criminal case is among those constitutional rights which are related to the procedure for the determination of guilt or innocence. The standard for an effective waiver of such a right is that it must be knowing and intelligent, as well as voluntary. Schneckloth v. Bustamonte, [supra, 412 U.S. 237]; Patton v. United States, 281 U.S. 276, 312, 50 S. Ct. 253, 74 L. Ed. 854 (1930). . . . Relying on the standard articulated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), we have adopted the definition of a valid waiver of a constitutional right as the intentional relinquishment or abandonment of a known right. . . . State v. Reed, 174 Conn. 287, 293, 386 A.2d 243 (1978). This strict standard precludes a court from presuming a waiver of the right to a trial by jury from a silent record. . . . [S]ee Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case. . . . [S]ee Adams v. United States ex rel. McCann, 317 U.S. 269, 278, 63 S. Ct. 236, 87 L. Ed. 268 (1942). When such a claim is first raised on appeal, our focus is on compliance with these constitutional requirements rather than on observance of analogous procedural rules prescribed
The record affirmatively and unequivocally establishes that the defendant’s waiver of his right to a trial by a jury was voluntary, knowing and intelligent. First, “there is no evidence to suggest that the defendant was not of ordinary intelligence or educational background.” Id., 463. In fact, the record establishes that the twenty-nine year old defendant was a high school graduate, had received training in the military, and had been employed at the time of his arrest.
Moreover, “[t]he defendant was not a novice in the criminal justice system .... See, e.g., State v. Reid, 204 Kan. 418, 421, 463 P.2d 1020 (1970). Nor can it fairly be said that the record presents a picture of a defendant bewildered by court processes strange and unfamiliar to him .... See Smith v. O’Grady, 312 U.S. 329, 334, 61 S. Ct. 572, 85 L. Ed. 859 (1941).” (Internal quotation marks omitted.) State v. Shockley, 188 Conn. 697, 708, 453 A.2d 441 (1982). The record also reflects that the defendant had been advised of his right to a jury trial in relation with another sexual assault charge. At the time of the canvass in the present case, he was under arrest for, and previously had been arraigned and put to plea, for both the Naugatuck and Oxford crimes. The record also demonstrates that the defendant remained alert and attentive during the court’s questioning, and even asked a question from the court when he was unsure of the meaning of the panel’s potential disqualification. The defendant did not respond with a generic yes or no to every question; rather, the defendant actively participated in the canvassing. For example, the trial court asked, “And you were honorably discharged from the service?” The defendant candidly answered, “No. No, I wasn’t.” In addition, he stated that his choice was “of my own free will,” and that it was “in my best
The record also reflects that the defendant was represented by counsel experienced in cases of this nature, who were present and actively participated in the canvass. Although the presence of counsel does not by itself mean “that the defendant’s interests and rights are protected . . . [t]he fact of counsel being present and having advised the defendant is a factor to be considered in determining the question of the need for or sufficiency of any admonition given by the court. Neller v. State, 79 N.M. 528, 534, 445 P.2d 949 (1968); see Henderson v. Morgan, 426 U.S. 637, 647, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976).” (Internal quotation marks omitted.) State v. Shockley, supra, 188 Conn. 708. Indeed, it would be to blink at the reality disclosed by this record to conclude other than that the defendant’s decision to have his fate determined by a panel of judges, rather than by a jury, was a tactical decision entered into by the defendant after consultation with and advice from experienced and capable defense counsel.
Finally, the court repeatedly asked the defendant and his attorneys whether his election was voluntary and knowing, and whether there was any reason to suggest that it was not. The defendant and his attorneys repeatedly assured the court that it was voluntary and that there were no such reasons. The record clearly establishes that the defendant made his choice voluntarily, knowingly, intelligently, and after full consultation with experienced counsel.
We reject the defendant’s contention that he is entitled to a new trial because the trial court improperly described the panel’s selection process. The defendant’s specific claim is that the trial court erroneously
The defendant’s second argument, namely, that the trial court improperly failed to advise him that he could participate to a certain degree in the selection of the jury, is also unpersuasive. In canvassing the defendant, it was not the function of the court to provide an analysis of the strategic advantages and disadvantages to him of a jury trial, as opposed to a trial to a panel of judges. That is the function of the defendant’s counsel, not the court. Indeed, in this case, the defendant’s counsel encouraged the trial court to stop its questioning, by stating that “[wje’ve explained that in greater detail, Your Honor. I think the court can proceed.” The presentation of facts and information relating to strategic decision making was properly left to the defendant’s counsel. Moreover, the court did inform the defendant that, unlike a jury verdict that would have to be unanimous, the panel could convict him by a two to one vote.
First, as we explain in part IV B of this opinion, there was nothing improper in the fact that the panel read the memorandum of decision. Second, generally in a trial to a court, the court will have to hear evidence before ruling on admissibility. That is the kind of concern inherent in the choice of fact finder that is the province of counsel, not the court, to discuss with the defendant. It is not part of the required canvass of a defendant who elects to waive his constitutional right to a jury trial.
B
Motion for a Mistrial
The defendant also claims that the panel improperly denied his motion for a mistrial, which was based on his claim that it improperly had read the memorandum of decision by Judge Pellegrino on the defendant’s motions to suppress certain evidence. Specifically, the defendant asserts that the suppression hearing was held before Judge Pellegrino in order to insulate the panel from hearing irrelevant and prejudicial evidence that might have been admitted for the purposes of suppression, but that otherwise would have been inadmissible at the trial. Thus, the defendant argues that, because the panel members exposed themselves to such irrelevant and highly prejudicial evidence, the panel, as fact finders, “taint[ed[ themselves.” We disagree.
After a recess, on the same day, the defendant moved for a mistrial. The basis of the defendant’s motion was that if one or more of the panel members had read the first ten pages of Judge Pellegrino’s memorandum of decision, they would have learned irrelevant and highly prejudicial evidence that otherwise would not have been known to them. It was the defendant’s claim that due process required that he be tried based on facts adduced at his trial, not on the facts that were found during the suppression hearing.
The panel denied the defendant’s motion. Judge Kulawiz stated on behalf of the panel that all members of the panel had read Judge Pellegrino’s decision. She also stated: “I do not believe there was any prohibition
The denial of a motion for a mistrial will be reversed only upon a showing of an abuse of discretion. State v. Correa, 241 Conn. 322, 348-53, 696 A.2d 944 (1997). We conclude that the panel did not abuse its discretion in denying the defendant’s motion.
First, contrary to the defendant’s claim, the record does not establish that the suppression motions were heard by Judge Pellegrino in order to insulate the panel from any evidence that might not have been admissible at the trial on the merits.46 There is nothing in this record to suggest any such reason for the assignment of Judge Pellegrino, rather than the panel, to hear the motions. Second, the panel would not have been disqualified from hearing the defendant’s suppression motions in the first place. Practice Book § 41-7, formerly
C
The Factual Basis of the Verdict
The defendant next contends that he is entitled to a new trial because the panel did not properly “state the factual basis underlying the decisions on the legal issues” resolved by its verdict as was required by Practice Book, 1991, § 4059 (now § 64-1).48 The defendant’s precise claim is that, although the panel orally announced its verdict, which then was transcribed and filed with the clerk, this court should remand the case to the panel or order a new trial because the verdict failed to address, with particularity, the factual issues relating to the cause of the victim’s death.49 We disagree.
This claim arises out of the testimony of Edward T. McDonough, the deputy chief medical examiner for the state, who performed the autopsy on the victim’s body. McDonough testified that, based on his anatomical findings, the cause of death was asphyxia, which he attributed to one or a combination of three underlying
In its verdict, the panel found the defendant guilty of murder, and the two counts of capital felony that relied on that finding of guilt.50 The defendant then filed a motion for a finding of fact, in which he requested the panel to “articulate for the record the factual basis for its decision, wherein the defendant was found guilty of murder . . . and capital felony . . . .” The defendant asserted in his motion that such a finding was “required by Practice Book § 4059.” In oral argument in support of this motion, the defendant clarified that he was asking the panel to articulate whether it found that the victim “died as a result of a facial gag or died as a result of drowning or died as a result of strangulation.” The panel denied the defendant’s motion.
The defendant claims that the panel’s denial was improper, and requests that we remand this case to the panel for further articulation. The defendant farther contends that, in the event that the panel is unable to reconstruct the factual basis of its decision, there should be a new trial. The defendant’s arguments are unavailing, both procedurally and substantively.
The defendant characterizes the panel’s denial of his motion as a failure to comply with § 4059, which he
Therefore, a claimed failure to make adequate findings under § 4059 did not, by itself, provide a basis for reversal of a verdict that is otherwise valid. See State v. Holloway, 22 Conn. App. 265, 273, 577 A.2d 1064, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990) (ruling of trial court on defendant’s motion for articulation pursuant to § 4051 does not ordinarily provide basis of claim on appeal).53 Moreover, despite the pendency of this appeal for approximately eight years, the defendant has never sought review of the panel’s ruling. Thus, the defendant’s claim that he is entitled to appellate relief based on what he claims to be the panel’s inadequately articulated verdict is procedurally flawed.
On the murder count, the information and bill of particulars charged that the defendant had murdered the victim in that, with the intent to cause her death, he had done so by asphyxia. The panel stated in its verdict that the defendant, “with [the] intent to cause the death of [the victim], did cause her death by asphyxia.” Thus, it found that the defendant had engaged in the specific criminal conduct proscribed by the particular statute involved, as specified in the information and bill of particulars. No more was required of the panel. There is nothing in either the language or the purpose of § 4059 that required the judicial panel to state the specific mechanism by which the defendant killed the victim. This is particularly true in the present case, where (1) there was no real dispute regarding the fact that the defendant had killed the victim, (2) based on the evidence, the asphyxia could have resulted from any one or a combination of all three mechanisms specified by the medical examiner,
D
The Sufficiency of the Evidence
The defendant next claims that there was insufficient evidence to prove beyond a reasonable doubt that there was a temporal concurrence between the defendant’s intent to kill and his conduct that resulted in the victim’s death. We disagree.
Generally, criminal intent and the acts that meet the elements of a crime must temporally concur. W. LaFave & A. Scott, Criminal Law (1972) § 34, p. 237. “With crimes which require both some act or omission and mental fault, no crime is committed unless the mental fault concurs with the act or omission, in the sense that the mental state actuates the act or omission.” Id. It is axiomatic that “to render any act criminal, the intention with which it is done, must be so; or, in other words, the will must concur with the act.” (Emphasis in original.) Myers v. State, 1 Conn. 502, 505 (1816); see also State v. Miller, 186 Conn. 654, 666, 443
In reviewing the verdict to determine whether it was supported by the evidence, we employ a two part test. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [fact finder] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Traficonda, 223 Conn. 273, 278, 612 A.2d 45 (1992). “In order to be convicted of murder, the defendant must have possessed the specific intent to cause the death of the victim. General Statutes § 53a-54a. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim. General Statutes § 53a-3 (11); State v. Raguseo, 225 Conn. 114, 120, 622 A.2d 519 (1993). Generally, intent can be proved only by circumstantial evidence. . . . Intent may be, and usually is, inferred from conduct. ... An intent to cause death may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.” (Internal quotation marks omitted.) State v. Greenfield, 228 Conn. 62, 76-77, 634 A.2d 879 (1993).
There was sufficient evidence to prove beyond a reasonable doubt that when the defendant engaged in the homicidal conduct, he did so with the intent to kill the victim. The defendant stated in his confession that, after
E
Murder-Kidnapping Capital Felony
The defendant’s next claim is that he cannot be guilty of capital felony pursuant to § 53a-54b (5), namely, murder committed in the course of the commission of a kidnapping or before the kidnapped person is able to return or be returned to safety, because that statute applies only where the kidnapping was for the purpose of collecting a ransom. This claim is controlled by our recent decision in State v. King, 249 Conn. 645, 687, 735 A.2d 267 (1999), in which we rejected an identical argument.
Murder-Sexual Assault Capital Felony
Next, the defendant claims that he could not have been found guilty of the capital felony of murder in the course of the commission of a sexual assault because the evidence did not establish that he murdered the victim in the course of committing sexual assault in the first degree. We disagree.
Under § 53a-54b (7), “[a] person is guilty of a capital felony who is convicted of . . . (7) murder committed in the course of the commission of sexual assault in the first degree . . . .” (Emphasis added.) As used in § 53a-54b (7), the phrase “in the course of the commission of sexual assault in the first degree” includes within its ambit the killing of the victim during or shortly after the sexual assault motivated by a desire to avoid detection.55 See Wooldridge v. State, 653 S.W.2d 811, 816 (Tex. Crim. App. 1983) (“[w]e see no material difference between [a perpetrator who kills the rape victim after commission of the rape] and the armed bank robber who shoots his victim as he flees, in order to eliminate the only witness to his crime”).
“This court does not interpret statutes in a vacuum, nor does it refuse to consider matters of known historical fact. . . . And although criminal statutes are strictly construed, it is equally fundamental that the rule of strict construction does not require an interpretation which frustrates an evident legislative intent. State v.
The evidence in the present case was sufficient to prove beyond a reasonable doubt that the defendant murdered the victim after sexually assaulting her in
G
The Two Witness Rule
The defendant also claims that his convictions cannot be sustained because the panel did not specifically satisfy the statutory requirements of General Statutes § 54-83,57 the so-called two witness rule. This claim is without merit.
The defendant concedes that this claim was not preserved in the trial court, and seeks to prevail under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or under the plain error doctrine.
An unpreseived claim of error based on the failure of a court to instruct the jury on the two witness rule in a case eligible for the death penalty is not an error of constitutional dimension. State v. Day, 233 Conn. 813, 848, 661 A.2d 539 (1995). The defendant, therefore, cannot prevail under the Golding doctrine. Id., 849.
Furthermore, the “defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” Id. “Moreover, because the claim raised here is nonconstitutional, the defendant must demonstrate that the trial court’s improper action likely affected the result of his trial.” Id., 850. The defendant cannot meet this burden.
H
The Imposition of Two Death Sentences
The panel imposed two separate death sentences: one on the sixth count of the information, on which the defendant had been found guilty of capital felony in violation of § 53a-54b (5), “murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety”; and the other on the seventh count of the information, on which the defendant had been found guilty of capital felony in violation of § 53a-54b (7), “murder committed in the course of the commission of sexual assault in the first degree . . . .” The defendant claims that “his constitutional protection against double jeopardy was violated by the . . . panel’s failure to merge [his] two capital felony convictions for one victim into one capital felony conviction prior to the penalty hearing.”58 (Emphasis added.) We disagree.
The defendant’s challenge is based on the third of the three “separate functions” of the double jeopardy prohibition, namely, the protection “against multiple punishments for the same offense [in a single trial].” (Internal quotation marks omitted.) State v. Hill, 237
As a practical matter, because the defendant can be executed only once, the threat of multiple punishments is illusory. Unless and until the sentence of death is actually carried out, it is not “consummated” for double jeopardy purposes. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463, 67 S. Ct. 374, 91 L. Ed. 422 (1947). Thus, as the state accurately points out, “for a defendant sentenced to death for several capital crimes, there is no such thing as a ‘multiple punishment.’ ”
As an analytical matter, the defendant argues that pursuant to State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991) (double jeopardy violation where defendant convicted of and sentenced for both felony murder and manslaughter of single victim; remedy is to combine manslaughter conviction with felony murder conviction, subject, however, to resuscitation of manslaughter conviction if felony murder conviction later invalidated), when a defendant has been found guilty of “alternative ways of committing the same offense . . . the separate verdicts on the alternative forms of the offense must be merged into a single conviction for purposes of conviction and sentencing.” (Emphasis added.) This analysis is flawed.
Even if we were to assume, without deciding, that the doctrine employed in Chicano applies to multiple violations of the capital felony statute, the defendant misapplies it to the present case. The defendant argues that the panel was required to combine the two separate guilty verdicts before entering the penalty phase of the proceedings. Thus, under the defendant’s rubric, the panel would be required, before hearing the penalty phase, to select one of the two particular capital felony violations as the only surviving violation.
V
PENALTY PHASE ISSUES
The defendant raises twenty-seven claims challenging various aspects of the penalty phase of the trial, including the imposition of the two death penalties. We reject each claim.59
The Defendant’s Waiver of a Jury Trial
The defendant “contends that the minimal canvass of [his] purported waiver of [his] right to a jury at the penalty phase was insufficient to show a constitutionally valid waiver.” We decline to afford appellate review of this claim.
The defendant concedes that this claim was not raised in the trial court. He therefore seeks to prevail pursuant to State v. Golding, supra, 213 Conn. 233. His claim of a constitutional right to a juiy trial at the penalty phase of a capital felony, however, is simply an attempt to apply a constitutional label to a nonconstitutional right. There is no constitutional right to a jury trial in the sentencing phase of a capital case. Walton v. Arizona, 497 U.S. 639, 647, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990); Clemons v. Mississippi, 494 U.S. 738, 745, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990); Spaziano v. Florida, 468 U.S. 447, 459, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984). Therefore, the defendant has not met the second prong of Golding, namely, that his claim be of truly constitutional dimension. State v. Golding, supra, 238-39.60
B
Disclosure of the Factual Basis of the Guilt Phase Verdicts
The defendant next claims that he was deprived of due process of law because the panel declined, prior to the penalty phase hearing, to disclose the factual
Prior to the commencement of the penalty phase, the defendant moved that the panel “articulate for the record the factual basis for its decision, wherein the defendant was found guilty of murder, in violation of § 53a-54a . . . and capital felony, in violation of § 53a-54b (5) and (7).” The defendant asserted that the “factual basis of the court’s decision is material to the issue of whether or not an aggravating factor exists.” The panel denied this motion.
This claim reduces to the contention that the panel was required to make a finding regarding precisely by what specific cause and specifically when the victim died: by asphyxia resulting from the occlusion of her breathing passages caused by the gag taped into her mouth, before the defendant threw her off the dam; by asphyxia resulting from strangulation, after he threw her off the dam; or by asphyxia resulting from drowning, after he threw her off the dam. The defendant asserts that, without such a finding, he was unconstitutionally hindered in presenting a defense against the state’s claim of an aggravating factor.61 We disagree.
Had the defendant chosen to have his guilt or innocence determined by a jury, rather than the panel, the jury’s verdict of guilty would not have been any more specific than was the panel’s. We know of no principle of due process that would have required the jury to state with particularity which factor or combination of factors caused the victim’s death, or at what specific time. Thus, the defendant then would have been required to enter the penalty phase with no more information in this regard than he had in the present case. Similarly, we know of no principle of due process, and the defendant has offered none, that, in the guilt phase of a capital case, imposes greater requirements of specificity of the verdict on a panel of judges than on a jury.
Furthermore, the United States Supreme Court has stated, in the context of a death penalty case, that due process of law generally does not require the state to disclose the evidence that it intends to introduce against the defendant, and that even where the prosecutor had told the defendant that he did not intend to introduce certain evidence, it did not offend due process for him to change his mind on the day of trial. Gray v. Netherland, 518 U.S. 152, 167-68, 116 S. Ct. 2074, 135 L. Ed. 2d 457 (1996). Thus, although a “defendant’s right to notice of the charges against which he must defend is well established ... a defendant’s claim that he has a right to notice of the evidence that the state plans to use to prove the charges stands on quite a different footing. We have said that ‘the Due Process Clause has
The defendant’s reliance on Gardner v. Florida, 430 U.S. 349, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977), and Lankford v. Idaho, 500 U.S. 110, 111 S. Ct. 1723, 114 L. Ed. 2d 173 (1991), is unavailing. In Gardner, the trial court, in imposing a death sentence, specifically noted that its sentence was based, in part, on factual information contained in a confidential presentence report, which had not been disclosed to the defendant. The United States Supreme Court reversed the death sentence concluding that the defendant had not been given the opportunity through the adversary process to contest the accuracy and materiality of that factual information. Gardner v. Florida, supra, 356. That principle does not apply where, as in the present case, all of the evidence on which the panel based its decision was presented through the adversary process. See General Statutes (Rev. to 1989) § 53a-46a (c) (in penalty hearing, “the court shall disclose to the defendant or his counsel all material contained in any presentence report which may have been prepared”).
IxiLankford, both the guilt and the penalty phases had been conducted on the express understanding between the state and the defendant that the state would not seek the death penalty. Under Idaho law, however, the sentencing judge was not bound by the state’s decision not to seek the death penalty. Lankford v. Idaho, supra, 500 U.S. 119; compare General Statutes (Rev. to 1989) § 53a-46a (b) (no death penalty hearing if state stipulates that no aggravating factor exists or that mitigating
C
The Defendant’s Claim that the State Improperly Changed Its Theory of Aggravation
We next consider the defendant’s claim that the panel improperly permitted “the state to change its theory of the case regarding aggravation during its closing argument and in a manner inconsistent with the state’s theory of the case during the guilt phase of the trial.”62 The defendant maintains that, during the guilt phase, “it was the state’s theory . . . that [the] defendant intentionally caused the death of [the victim] by pushing her off the top of the dam.” The defendant also contends, however, that in the state’s final argument at the
In order properly to analyze this claim, it is necessary to review in some detail the state’s presentation of the evidence, both at the guilt phase and at the penalty phase, and the arguments of the parties presented to the panel at the conclusion of the guilt phase and the penalty phase, regarding the charge of intentional murder. This review leads us to conclude, contrary to the contention of the defendant, that, although the state may have shifted some of the emphasis of its argument from that presented at the guilt phase to that presented at the penalty phase, this shift in emphasis, where it did occur, was not improper, did not prejudice the defendant, and did not violate his due process rights.
1
The Evidence at the Guilt Phase
At the guilt phase, the state had the burden to establish that the defendant had committed either or both of the two forms of capital felony charged: (1) murder by a kidnapper of a kidnapped person during the course of the kidnapping or before the kidnapped person could return or be returned to safety in violation of § 53a-54b (5); and (2) murder committed in the course of the commission of a sexual assault in the first degree in
During the guilt phase, the state introduced the defendant’s oral confession, in which he outlined the ruse by which he, armed with the tape, intentionally deflated the victim’s tire so that, upon her return from shopping, he could persuade her to allow him into her car. According to this confession, the defendant then forced her to drive to the scene of the homicide where, after robbing and sexually assaulting her, he gagged and bound her, and then, realizing that she had seen his-face, took her over to the wall of the dam and pushed her off the wall into the water below. Also according to this confession, the defendant then returned to his car and drove onto Interstate 84 where, from the shoulder of the highway, he looked down into the water, saw her motionless body, and concluded that she was dead. Thus, according to the defendant’s confession, (1) his homicidal intent was not formed until after he had robbed and sexually assaulted her, and (2) he had no further physical contact with her after pushing her off the dam.
The panel was entitled, however, as is any fact finder, to credit those parts of the confession that it found credible, and to draw reasonable inferences therefrom, and to discount those parts that it found not credible. Thus, there was, in fact, sufficient evidence, based in
First, there was sufficient evidence to justify the inference that the defendant possessed a homicidal intent before he encountered this specific victim. He went to the Bradlees’ parking lot armed with both the tape and the valve stem remover, intent on preying on a companionless woman by deflating her tire and then offering to help her, just as he unsuccessfully had done with Casertano and Romaniello, and as he successfully did with the victim. He knew precisely where he would bring his victim, as he directed the victim in this case to the area of the killing. Moreover, the manner in which he used the tape on the victim after sexually assaulting her, coupled with his statement that he had decided to bind and gag her and throw her off the dam because she had seen his face, permitted the inference that, despite his self-serving statement to the contrary, he entered into his scheme knowing that his victim, who predictably would have seen his face, would eventually have to be killed.
Next, the defendant’s confession permitted the inference that, at some point after throwing the victim off the dam, the defendant looked down to determine
Finally, there was overwhelming circumstantial evidence that the victim was alive despite having been thrown off the dam and that, after reaching the bottom of the dam, she struggled to remove her bonds — successfully with respect to her feet and hands, and unsuccessfully with respect to her face and mouth. When her body was found, it was face down in the ice of the pond, facing away from the concrete apron of the dam. Her arms were separated at her sides, not taped together. Shredded and frayed remnants of the tape were on her right wrist, but there was no tape on her left wrist. Her feet, also not taped together, were on a rock on the shore. Her left foot was shod with a sneaker and sock, and had tape around it. Her right foot was unshod, with neither sneaker nor sock, and had no tape around it. Her mouth was covered with the gag fashioned from her glove and the defendant’s tape, but the glove was in the front part of her mouth between her teeth, and the gag, which did not involve the neck, did not entirely cover her nose. The tape was of a type that would be very difficult to break.
The autopsy slides and testimony indicated numerous premortem injuries. There were abrasions or scrapes on her wrists and on all of the knuckles of her left hand, and she had a freshly broken fingernail. Her jeans had
All of this evidence, taken together, permitted the reasonable inference that the defendant had killed the victim, not by pushing her off the dam and leaving her there to die, but by strangling or drowning her, or both, after making his way down to her. The location of the body when found, the position of her arms and legs, the type and presence of tape on her wrists and ankle, the condition of her clothing, the types and location of the injuries to her body, the other autopsy findings, and the footprints, permitted that reasonable chain of inferences.
2
The Arguments at the Guilt Phase
At the conclusion of the state’s case, the defendant moved for a judgment of acquittal on all of the counts. With respect to the murder count, the gist of the defendant’s argument was that the state had not proven that the defendant had the intent to kill the victim. Based on his view of the evidence, the defendant argued that the panel “could only reasonably conclude that [the victim] died as a result of the gag around her mouth, and that being the case, the causing of death was not necessarily intentional.” Thus, in the defendant’s view, the evidence supported a guilty verdict only on the lesser included offenses of manslaughter in the first or second degree.67 The state responded that it had proven
Thereafter, the defendant rested without presenting any evidence, and the parties presented final arguments.
3
The Evidence at the Penalty Phase
At the penalty phase, it was the state’s burden to prove beyond a reasonable doubt, pursuant to its notice of an aggravating factor, that the defendant committed either or both of the capital felonies “in an especially heinous, cruel, or depraved manner.” In support of that burden, the state reintroduced all of the evidence, outlined in detail previously, that it had introduced at the guilt phase. See part V C 1 of this opinion. It did not, however, rest on that submission. The state also introduced the following additional evidence.
A map of the area of the dam was introduced that gave a specific distance of 23.3 feet from the top of the dam to the concrete apron below. Further, there was testimony from Melvin Goldstein, a meteorologist, that the temperature in the general area on December 16, 1989, was approximately eighteen or nineteen degrees fahrenheit between 8 p.m. and 11 p.m., and that from December 16, the temperature did not rise above freezing until December 31, 1989. Goldstein also testified that, although six inches of snow had fallen before ending at approximately midnight on December 16, from that date until December 25, 1989, only traces of snow had fallen. In addition, Goldstein testified that on December 16, the moon had been between the full phase
Further, the state introduced a videotape that had been made of the recovery of the body of the victim on the evening of December 25, 1989. This videotape showed, with more specificity than previously had been elicited, the location of the body in the ice of the pond in relation to the dam, and the surrounding area. It also showed the steep and rocky terrain leading from the dam down to the pond, and the dirt on the victim’s clothes, regarding which there had been similar testimony in the guilt phase. This videotape further showed that the body had been brought up to the top of the area lying on its back on a rescue sled, so that the dirt on the jeans could not have come from the recovery operation.
The state also introduced the testimony of Joseph G. Tartaglia, a Watertown police department scuba diver, who, with a scuba diving team, had searched the pond on December 26, 1989. Through his testimony, and another map of the scene, as well as certain photographs and a videotape of his dives, the following evidence was introduced that had not been introduced in the guilt phase. There was a roll of metal wire mesh with sharp ends protruding from the ice. On the wire mesh were pieces of the same type of tape with which the victim had been bound. In addition, there were pieces of the tape trailing from the base of the dam to where the body had been found. Tartaglia also described finding the victim’s other sneaker approximately twenty to thirty feet away from where the victim’s body had been found, encased in the ice at the bottom of the dam. In addition, Tartaglia testified to the depth of the water that covered the cement apron, namely, approximately one foot.
Further, the state recalled McDonough, who reiterated much of his earlier testimony regarding the condition of the victim’s body and the wounds found on it. He again testified to the precise height and weight of the victim. He also reintroduced sixteen of the twenty-seven autopsy slides that had been introduced at the guilt phase. Using those sixteen slides, he reiterated much of what he had testified to in the guilt phase, describing the fibers on the victim’s wrists and legs, the condition of her clothes, the numerous premortem injuries on the various parts of her body, the dirt on the knees of her jeans, and the abrasions and contusions on her knees. He also gave his opinion, which he had not been asked to give at the guilt phase, that: (1) the injuries on the victim’s wrists had been caused by sharp metal prongs of the wire mesh such as the kind that had been found in the ice at the bottom of the dam; and (2) certain abrasions on the victim’s face were consistent with having been caused by the victim’s fingernails. Finally, through McDonough the state reintroduced, among other items, the tape and glove by which the defendant had gagged the victim.
In addition, the state introduced the testimony of Anthony Marchionne, a process engineer employed by Tara Tape, Inc., which manufactured the tape used by the defendant. He described in some detail the specific composition of the tape. He also testified in effect that the tape did not lose tensile strength by being immersed
4
The Arguments at the Penalty Phase
The state argued that the defendant had intended to inflict extreme pain or torture beyond that necessary to inflict death. It argued that the penalty phase evidence showed that, after the defendant pushed the physically small victim off the dam on the dark and moonless night of December 16, 1989, he watched her struggle for her life at the bottom of the dam. Then, according to the state, after she successfully had removed the tape from her hands and feet by using the metal wire mesh, and was climbing back up the rocky shore, the defendant went to the bottom of the dam and forced her back into the water.72 The defendant’s argument at
With this background in mind, we return to the defendant’s claim, namely, that the state improperly was permitted, in the penalty phase, to advance a theory of the case that it had not advanced in the guilt phase and that was, moreover, inconsistent with the factual findings of the panel at the guilt phase. More specifically, the defendant claims that “[d]uring the guilt phase, the state argued, and the trial court presumably so found, that [the] defendant acted with the intent to kill when he threw [the victim] off the top of the dam and that this was how she was killed. This was the only theory of the application of intentional killing force presented to the . . . panel during the guilt phase. This remained
This claim of the defendant rests on two premises. The first premise is that, at the guilt phase, the state’s “theory of the case” was confined to the factual scenario that the defendant’s only homicidal conduct in effectuating his intent to kill the victim was throwing her off the dam, and that she did not survive the fall. The
First, the state’s case in the guilt phase was bounded only by the information and the bill of particulars. See State v. Bergin, 214 Conn. 657, 674-75, 574 A.2d 164 (1990). Those charging documents alleged that the defendant murdered the victim by intentionally causing her death by asphyxia. They did not require the state to prove (1) any particular underlying mechanism for the asphyxia, (2) any particular time at which the defendant first formed that intent, or (3) any particular factual scenario by which the elements of the offense charged would be established. We know of no authority or reason, and the defendant has offered none, that the state narrows the boundaries by which it may prove the allegations in the charging documents by arguing for a particular set of inferences at final argument, or that such an argument necessarily precludes the fact finder from drawing broader inferences that reasonably are supported by the evidence.
Second, the state’s final argument in the guilt phase reasonably cannot be understood as having been intended to narrow those boundaries. Although, in its initial argument, the state relied principally on the defendant’s confession, that argument is most reasonably understood as premised on the implicit argument that the defendant’s intent, to kill was established by his own confession, even without consideration of all of the other circumstantial evidence. It is also clear, moreover, that at that point the state was anticipating
Third, the evidence at the guilt phase overwhelmingly established that the victim had survived the fall and struggled at the bottom of the dam to save her own life. We need not recount that evidence. Indeed, it is difficult, if not impossible, to conceive that, on the state of the evidence presented, any rational fact finder could have found that she died as a result of having been thrown off the dam, without further homicidal conduct having taken place at the bottom of the dam.
Fourth, the panel’s obligation was to consider all of the evidence and to determine whether the state had proven its case as alleged in the charging documents. Although it certainly was obligated to consider the arguments of the parties, it knew that those arguments were not evidence. See State v. Glenn, 194 Conn. 483, 496-97, 481 A.2d 741 (1984). The evidence consisted of what had been presented to the panel, and the panel’s function was to draw reasonable inferences from that evidence, and to determine whether the state had proven its case beyond a reasonable doubt. See State v. Bruno, 236 Conn. 514, 538-39, 673 A.2d 1117 (1996). There is
The defendant’s reliance on Cole v. Arkansas, 333 U.S. 196, 68 S. Ct. 514, 92 L. Ed. 644 (1948), is misplaced. In that case, the defendants had been charged and convicted in the trial court of violating a specific section of the Arkansas statutes. On appeal, however, the state Supreme Court affirmed their convictions on the basis of a different section of the statutes, under which they had never been charged. The United States Supreme Court reversed that decision stating: “No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.” Id., 201. In the present case, there is simply no basis in the record for a viable claim that the defendant’s conviction at the guilt phase and the imposition of the death penalties at the penalty phase violated his due process right to notice of the charges against him and the opportunity to be heard concerning those charges.
D
The State’s Notice of Aggravating Factors
The defendant claims that the panel denied him a fair penalty hearing by denying his motion for a bill of particulars regarding the state’s notice of aggravating factors. Specifically, he contends that the panel should have ordered the state to specify the “specific acts, language or behavior” that constituted the “especially cruel” or “especially heinous” manner in which he had
In January, 1991, approximately four months before the guilt phase hearing began, the state filed its notice of aggravating factors stating that “the aggravating factors which the state alleges to exist and which the state intends to offer proof at any hearing on imposition of the death penalty which may be held . . . are that pursuant to [General Statutes §] 53a-46a (h) (4): the defendant committed the offense in an especially heinous, cruel, or depraved manner.” In June, 1991, after the panel rendered its verdict on the guilt phase, but before the beginning of the penalty phase, the defendant moved for a bill of particulars, requiring the state to specify “[b]y what specific actual acts, language or behavior does the state allege that the defendant committed the offense in an ‘especially cruel’. . . [or] ‘especially heinous’ manner?” The panel denied this motion.
“When the state’s pleadings have informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty. . . . State v. Spigarolo, 210 Conn. 359, 381, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); see State v. Morrill, 197 Conn. 507, 551, 498 A.2d 76 (1985); State v. Vincent, 194 Conn. 198, 205, 479 A.2d 237 (1984); State v. Killenger, 193 Conn. 48, 55, 475 A.2d 276 (1984); State v. Roque, [supra, 190 Conn. 154].
“[T]he denial of a motion for a bill of particulars is within the sound discretion of the trial court and will
The defendant’s specific claim is “that he was clearly harmed by the lack of the requested bill of particulars, as shown by the state being allowed to change in its theory of the case at the time of its closing argument, which the state would not have been allowed to do had the requested bill of particulars been ordered.” Thus, the defendant’s claim rests on the same flawed premises that we previously have rejected. See part V C of this opinion. We already have concluded that the defendant’s claim that the state improperly was permitted to change its theory of the case from the guilt phase to the penalty phase is without merit. On the same reasoning, there is no basis in this record to conclude that, had the panel ordered the state to file a bill of particulars, the state would have been required to confine itself to the unlikely factual scenario that the defendant intentionally killed the victim by pushing her off the dam, without any further homicidal conduct at the bottom of the dam.
Finally, as a practical matter, this record clearly indicates full prepenalty hearing disclosure to the defendant
E
The Denial of Disclosure Regarding the Defendant’s Mental Condition
The defendant next claims that the panel improperly denied that portion of his prepenalty phase motion for disclosure that sought “the substance of any communications by [psychiatrist] Ezra Griffith to the state’s attorney or his representative concerning his review of the reports of mental examinations of the defendant disclosed to the state in accordance with” Practice Book, 1991, § 759 (now § 40-18).76 This claim is -without merit.
After the guilt phase and before the penalty phase, the defendant filed the motion for disclosure involved in this claim. The state asserted, and it is not disputed, that: (1) Griffith had not examined the defendant; (2) although the state had discussions with Griffith solely regarding the insanity defense,77 the state had decided not to have the defendant examined, based on the state’s attorney’s review of the reports submitted to Griffith and on the state’s attorney’s conversations with Griffith; and (3) there was no written report by Griffith to the state. The state also claimed that the conversations with Griffith were “the work product of our office.” The state’s attorney asserted further that there was “nothing that I can recall that would be considered exculpatory in those conversations” with Griffith. In an
The defendant contends that “the state should not be allowed to evade disclosure requirements by accepting a substantive report orally, without obtaining a written report that surely would have had to be turned over. Once the state below offered to turn over at least the sum and substance of the report, it is hard to see how the . . . panel could reach the determination to deny the no longer opposed motion for disclosure.” Recognizing, however, that the record does not contain any suggestion of the content of Griffith’s conversations with the state, the defendant argues that we should remand the case and “order the disclosure to take place and then allow the parties to seek the appropriate remedy or remedies thereafter depending on the substance of the disclosure.” We are not persuaded.
First, we disagree with the defendant’s reading of the trial record. It is clear to us that the state’s offer to disclose the “sum and substance” of its conversations with Griffith was made to the panel, and not to the defendant, and that the defendant understood it accordingly.78 Indeed, if it were otherwise, it would be hard to account for the defendant’s response that “I don’t think you should.” Thus, it is not accurate to assert, as the defendant does, that the motion was no longer opposed.
In addition, as the state points out, the defendant has not established that he could not have obtained Griffith’s opinion, assuming that Griffith had formed one, directly from him and used it in the penalty phase. We “do not assume that psychiatric professionals will act as hired guns on behalf of their respective ‘employers.’ ” State v. Ross, supra, 230 Conn. 272 n.41.
Thus, we see no justification for remanding the case at this time for further fact-finding on this question. The defendant offered extensive psychological testimony in mitigation at the penalty phase, and it is purely speculative that Griffith would have added anything to that testimony. We do not ordinarily remand for further fact-finding based on nothing but speculation, and we see no reason to do so in the present case.
F
Articulation of the Factual Basis of the Panel’s Verdict Regarding the Aggravating Factors
The defendant’s next claim is that the panel’s special verdict at the penalty phase did not comply with the requirements of Practice Book, 1991, § 4059; see footnote 48 of this opinion; because it failed to state the factual basis underlying its decision on the aggravating factors. In addition to his reliance on § 4059, the defendant maintains that we should, “both as a matter of constitutional capital jurisprudence, and as a matter of [our] supervisory authority over the procedures of the
The relevant facts and procedural history are as follows. In its orally delivered verdict, which subsequently was transcribed and signed, the panel stated: “Special verdict: In accordance with § 53a-46a (e), the court sets forth findings as to the existence of aggravating factors.
“One: The state has proven beyond a reasonable doubt that the murder of [the victim] was committed in an especially cruel manner in that [the defendant] intentionally inflicted extreme pain and torture on [the victim] above and beyond that which would necessarily accompany the underlying killing.
“Two: The state has proven beyond a reasonable doubt that the killing of [the victim] was committed by [the defendant] in an especially heinous manner in that it was hatefully and shockingly evil and grossly bad
“Accordingly, as to counts six and seven of the information, this court imposes the sentence of death.”
Thereafter, on August 19,1991, the defendant, specifically relying on Practice Book § 4059 “for purposes of the appeal,’’moved that the panel “articulate . . . [t]he factual basis upon which the court concluded that each
Insofar as the defendant’s claim rests on § 4059, it suffers from the same procedural and substantive flaws as did his similar claim regarding the panel’s verdict at the guilt phase. See part IV C of this opinion. Procedurally, the purported failure of the panel adequately to state the factual basis of its verdict does not provide an independent basis for appellate reversal of the judgment, and the defendant has failed to avail himself of the appropriate procedural mechanism of seeking review of the panel’s ruling.
Substantively, the panel stated all that § 4059 required of it. The state’s notice of aggravating factors alleged that “the defendant committed the offense in an especially heinous, cruel, or depraved manner.” Prior to the penalty phase, the panel had announced that it would apply the definition of “especially cruel” that this court adopted in State v. Breton, 212 Conn. 258, 270, 562 A.2d 1060 (1989) (Breton I), namely, “the intentional infliction of extreme pain or torture above and beyond that necessarily accompanying the underlying killing,” and that it would apply the definition of “heinous,” namely, “hatefully or shocking evil, grossly bad,” which the panel determined had been approved by the United States Supreme Court in Lewis v. Jeffers, 497 U.S. 764, 769-70, 110 S. Ct. 3092, 111 L. Ed. 2d 606 (1990).84 The
The defendant argues that the panel’s definition of “heinous” was incorrect, and that we cannot discern if the panel considered that incorrect definition as part of the facts and circumstances of the case in determining whether the aggravating factor was proven. Therefore, he contends, we must reverse the panel’s special verdict and order a new penalty hearing. We agree that the definition employed by the panel for the term “heinous” was incorrect. We also conclude, however, that this error was harmless beyond a reasonable doubt.
In Ross, we held that the language “especially heinous, cmel or depraved” contained in § 53a-46a (h) (4),
The present case was tried in 1991, three years before our decision in Ross. Therefore, the panel did not have the benefit of our interpretation of “heinous” as used in § 53a-46a (h) (4). Accordingly, the panel adopted a definition of “heinous” that had been approved as constitutional by the United States Supreme Court in Lewis v. Jeffers, supra, 497 U.S. 773-80, but that is broader than the definition that this court subsequently adopted in Ross.
We conclude, however, that this flaw in the panel’s special verdict was harmless beyond a reasonable doubt. See State v. Webb, supra, 238 Conn. 479-83. The special verdict makes clear that the panel found that the defendant’s conduct had been both especially cruel, as that term was properly defined, and especially heinous, as that term was improperly defined. As the state correctly contends, the defendant does not identify any
The defendant also argues that, based on “constitutional capital jurisprudence” and on our supervisory authority over the criminal justice system, detailed factual findings and legal conclusions regarding the aggravating factors should be required. The underpinning of this claim is his assertion that such findings are necessary for meaningful appellate review.
There is no dispute over the proposition that, “to provide a check against having a death sentence imposed under the influence of passion or prejudice, or in a random and arbitrary manner, there must be an opportunity for meaningful appellate review.” State v. Ross, supra, 230 Conn. 232. As we have decided, our death penalty statutory scheme fully satisfies that requirement. Id., 238. The defendant offers no authority, and we know of none, that requires a sentencing court to issue a detailed factual statement justifying its imposition of a sentence of death that is otherwise valid under the statutory scheme. The constitutional requirement is that “the record on appeal disclose to the reviewing court the considerations which motivated the death sentence . . . .” Gardner v. Florida, supra, 430 U.S. 361. The panel’s special verdict, stating its factual findings, viewed in conjunction with the complete evidentiary record of the penalty phase hearing, discloses to this court the considerations that supported the death sentence, and provides an ample basis for our meaningful appellate review of that sentence. We decline cate
G
The Panel’s Treatment of the Unitary Aggravating Factor as Three Separate Factors
The defendant claims that a new penalty hearing is required because the panel treated the unitary aggravating factor, namely, that the defendant committed the murder “in an especially heinous, cruel or depraved manner,” as if it were three separate aggravating factors, rather than a formulation constituting one unitary factor. We agree that the panel treated the three adjectives — heinous, cruel and depraved — separately. We disagree, however, that this impaired the panel’s verdict in any way.
In Breton I, supra, 212 Conn. 271, we defined “especially cruel” as meaning “at least . . . that the defendant intentionally inflicted extreme pain or torture upon the victim, above and beyond the pain necessarily accompanying the victim’s death.” Subsequently, in State v. Ross, supra, 230 Conn. 260-61, we held that “especially heinous, cruel or depraved” constituted a unitary factor, rather than three separate factors, and that its meaning was that articulated in Breton I as
The present case was tried after our decision in Breton I, but before our decision in Ross. Thus, as stated previously, the panel did not have the benefit of our decision in Ross that the three terms had one unitary meaning, rather than three separate meanings. Nonetheless, the panel applied the Breton I definition of “cruel.” Under these circumstances, therefore, the fact that the panel also applied two other inapplicable definitions to the same evidence did not undermine the validity of its application of the proper definition.
The defendant contends, nonetheless, that the panel’s use of the inapplicable definition's of “heinous” and “depraved” misled it into considering irrelevant factors, namely, “such things as ‘relishing’ and ‘evil,’ ” and also misled the panel “as to what were the true facts and circumstances of the case” regarding “the mitigating nature of the nonstatutory mitigating factors . . . .” There is no basis in the record for this contention. The defendant points out no evidence in the record, and we can find none, that could be considered as relevant to the inapplicable definitions but irrelevant to the applicable definition. There is no indication that the panel was misled about the facts and circumstances of the case insofar as they bore on the question of mitigation.
The Definitions of “Especially Heinous” and “Especially Depraved”
The defendant next contends that the definitions of “especially heinous” and “especially depraved” employed by the panel were unconstitutionally vague and were contrary to the meaning of those terms under our law. In light of our conclusions stated in part V G of this opinion, however, this contention is unpersuasive. The panel’s proper application of the definition of “cruel” rendered irrelevant any purported infirmities inherent in its use of the definitions of “heinous” and “depraved.”
I
The Purported Inadequacy of the Panel’s Verdict
The defendant next claims that the panel failed to find that the capital offenses of which the defendant was convicted were committed in an aggravated manner. The defendant contends that the panel’s penalty verdict is flawed because: (1) under § 53a-46 (h) (4), the death penalty may be imposed only if the defendant committed the offense in an especially heinous, cruel or depraved manner; (2) the defendant was convicted of, not simple murders, but a murder committed as part of a kidnapping and a murder in the course of the commission of first degree sexual assault; and (3) the panel’s verdict found only that the murder was committed in an especially cruel manner, and not that the capital offenses were committed in such a manner. This claim borders on the frivolous.
In order to understand this claim, it is necessary to review the two sets of verdicts in this case — the verdict at the guilt phase, and the verdict at the penalty phase. At the guilt phase, the panel found: (1) on the murder count, the defendant “guilty of murder” by intentionally
The defendant contends that when the panel, in its penalty phase verdict, used the word “murder,” rather than, for example, “capital offense,” “murder in the course of a kidnapping,” “or murder in the course of a first degree sexual assault,” the panel “did not make the finding(s) necessary to support a valid death sentence.” It is clear from this record, however, that when the panel referred to the “murder,” it intended that reference to incorporate its earlier verdict at the guilt phase that the defendant had committed the murder (1) in the course of the kidnapping of the victim, and (2) in the course of the first degree sexual assault of the victim. It is inconceivable, furthermore, that anyone in the courtroom when the penalty verdict was delivered did not understand this intention.86 Indeed, the whole point of the penalty hearing was to determine
J
The Claimed Retroactivity of the Ross Definition of “Especially Cruel”
In State v. Ross, supra, 230 Conn. 260-62, decided in July, 1994, we held that the unitary factor of “especially heinous, depraved or cruel” included the infliction of psychological, as well as physical, pain or torture on the victim. The defendant claims that this purported “expanded construction of [cruel], which was not in effect at the time of his crime (December, 1989), cannot be retroactively applied to him without violating the fundamental due process right to notice and the ex post facto principle as that principle is applicable through due process to judicial constructions of statutes which expand the meaning thereof.” This claim is without merit.
The purported “expanded construction” of the statutory aggravating factor in question does not involve either a retroactive application to the defendant’s conduct of a standard of criminal liability in violation of the due process requirement of fair notice, or a new judicial construction of a statute in violation of the ex post facto clause.87 First, our case law makes clear that
In Breton I, supra, 212 Conn. 271, decided in July, 1989, we held that “especially cruel” meant “at least . . . that the defendant intentionally inflicted extreme pain or torture upon the victim, above and beyond the pain necessarily accompanying the victim’s death.” We referred to this definition as “an acceptable core construction of § 53a-46a (h) (4).” Id., 270. In adopting that construction, however, we did not specifically address whether the “ ‘extreme pain or torture’ that is at the core of ‘especially cruel’ include[s] the infliction of psychological anguish as well as physical pain.” State v. Ross, supra, 230 Conn. 260.
In Ross, however, we reached this issue and held that the unitary factor of “especially heinous, depraved or cruel” included the infliction of psychological, as well as physical, pain or torture on the victim. Id., 260-62. Although that was the first time that the court was called upon explicitly to decide whether the pain or torture that lay at the core of the notion of cruelty included psychological pain or torture, our decision cannot rationally be seen as departing from the defendant’s reasonable expectations regarding the capital sentencing statutory scheme, because “Breton [I] did not exclude mental anguish from actionable ‘extreme pain or torture’ . . . .” Id., 260.
Second, the defendant’s contention improperly conflates three distinct legal doctrines: (1) the due process vagueness doctrine; (2) the eighth amendment vagueness doctrine; and (3) the ex post facto principle. None of these is violated by the application of the Ross interpretation to the sentencing decision in the present case.
The due process vagueness doctrine rests on the principle of fair notice to a criminal defendant that his contemplated conduct would be criminal. This doctrine involves “either the notion of fair notice of what conduct is prohibited or the concept of guarding against the risk
Accordingly, the application of the due process vagueness principle to the judicial construction of a criminal statute may give rise to a constitutional violation when that construction is not reasonably foreseeable and involves the substantive elements of the crime. “When a[n] . . . unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a, crime. Bouie v. Columbia, 378 U.S. 347, 354-55, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964); see Douglas v. Buder, 412 U.S. 430, 432, 93 S. Ct. 2199, 37 L. Ed. 2d 52 (1973).” (Emphasis added; internal quotation
Thus, the due process vagueness principle simply does not apply to the sentencing factor of cruelty as defined in Ross, because that factor does not implicate the determination of whether the defendant’s contemplated conduct constituted a crime. Indeed, in adopting the “core construction” of “cruel” in Breton I, we specifically did “not rest upon due process notions of fair notice. See State v. Schriver, 207 Conn. 456, 463, 542 A.2d 686 (1988); State v. Pickering, 180 Conn. 54, 65, 428 A.2d 322 (1980). Rather, our construction aim[ed] to comply with the eighth amendment by distinguishing the few cases in which the death penalty is imposed from the many in which it is not. Furman v. Georgia, 408 U.S. 238, 313, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (White, J., concurring).” Breton I, supra, 212 Conn. 271 n.13.
In Breton I, we further explicated the difference between the two vagueness doctrines. “ ‘Objections to vagueness under the Due Process Clause rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk. . . . Claims of vagueness directed at aggravating circumstances defined in capital punishment statutes are analyzed under the Eighth Amendment and characteristically assert that the challenged provision fails adequately to inform juries what they must find to impose the death penalty and as a result leaves them and appellate courts with the kind of open-ended discretion . . . held invalid in Furman v. Georgia, [supra, 408 U.S. 238] . . . .’ Maynard v. Cartwright, 486 U.S. 356, 361-62, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988). As in Maynard, the more stringent eighth amendment principles control this case, except to the extent that due process principles further
Properly understood, therefore, vagueness analysis in the context of this claim of the defendant involves the application of the eighth amendment, not the due process clause. The purpose of the eighth amendment vagueness doctrine, unlike the due process vagueness doctrine, is to channel the capital sentencing decision sufficiently so as to ensure that the decision is not made arbitrarily and capriciously. Id., 264. The unitary sentencing factor involved in the present case passes constitutional muster. State v. Ross, supra, 230 Conn. 261.
Moreover, the application of that factor to the defendant’s conduct does not violate the ex post facto clause. In the context of death penalty jurisprudence, the United States Supreme Court has stated: “It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.” (Internal quotation marks omitted.) Dobbert v. Florida, 432 U.S. 282, 292, 97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977). “It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law.” Id., 294. The mere existence of a death penalty statute on the books at the time of the defendant’s conduct, even though that statutory scheme was later held unconstitutional, insulated it from ex post facto attack. Id., 297-98. The “existence of the statute served as an ‘operative fact’ to warn the petitioner of the penalty which [the state] would seek to impose on him if he were convicted of first degree murder. This was sufficient compliance
K
The Claimed Inapplicability of Certain Ross Language
The defendant next claims that, to the extent that certain language in Ross substituted a general intent for a specific intent requirement in the application of the aggravating factor of cruelty, “such change cannot be retroactively applied to [the] defendant and, in addition, such change renders the . . . aggravating factor unconstitutionally vague.”88 We conclude that our decision in Ross had no such effect, and we therefore disagree that our decision in Ross invalidated the panel’s verdict.
In order to understand this claim, it is necessary to review certain parts of our decisions in Breton I and Ross. In Breton /, we gave the core definition of “cruel” as follows: “[T]hat meaning must include the intentional infliction of extreme pain or torture above and beyond that necessarily accompanying the underlying killing.” Breton I, supra, 212 Conn. 270. We reiterated that “the legislature, in enacting § 53a-46a (h) (4), meant to impose the death penalty at least in those cases in which the trier has found that the defendant intentionally inflicted extreme pain or torture upon the victim, above and beyond the pain necessarily accompanying the victim’s death.” Id., 271.
The defendant’s contention rests on a misreading of both Breton I and Ross. Contrary to the defendant’s contention, in Breton I we did not purport to give a comprehensive and all encompassing definition of “cruel.” That is evident both from the procedural posture of the appeal in Breton I, and from the opinion
The opinion, moreover, makes that limitation on our undertaking quite clear. In order to save the statute from any constitutional infirmity based on the eighth amendment vagueness doctrine, we gave it what we characterized as a “core construction.” Id., 270. Our language in doing so was replete with the understanding that this core construction did not purport to cover all future cases, without further elaboration. For example, we stated that: the meaning of cruel “must include the intentional infliction of extreme pain or torture”; (emphasis added) id., 270; this was “an acceptable core construction”; (emphasis added) id.; “the parties may disagree over how broadly the term ‘especially cruel’ may be construed”; (emphasis in original) id.; we were “assigning to it a limited core construction”; (emphasis in original) id., 270-71; and our construction of the term rested on our perception that the legislature “meant to impose the death penalty at least in those cases in which the trier has found that the defendant intentionally inflicted extreme pain or torture upon the victim, above and beyond the pain necessarily accompanying
Therefore, in Ross, we did not, contrary to the defendant’s contention, make a change from what we had held in Breton I, and certainly, therefore, did not retroactively apply any new construction to the defendant’s detriment in the present case. Rather, in Ross we considered two questions that simply had not been presented to us in Breton h (1) whether the pain and torture referred to as part of the meaning of “cruel” included psychological, as opposed to physical, pain or torture; State v. Ross, supra, 230 Conn. 260; and (2) whether, as part of the requisite state of mind for the concept of cruelty, evidence of the defendant’s callousness or indifference to his victim’s suffering would suffice. Id., 262.
With respect to the first question, we held in the affirmative. With respect to the second, we also held in the affirmative, but with the specific limitation that “it would not suffice without some showing of the infliction of extreme pain, suffering or torture on the victims.” Id. It was immediately preceding that point in the opinion that we used the language that the defendant challenges here. That language, like any other, must be read in context. Doing so, and reading Breton I and Ross together, we conclude that, properly understood, they hold that, with respect to the requisite state of mind and consequences thereof, either of the following will suffice for the aggravating factor in question: (1) the defendant intended to, and in fact did, inflict extreme physical or psychological pain, suffering or torture on the victim; or (2) 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.
L
The Sufficiency of the Evidence of the Aggravating Factor
The defendant next claims that there was insufficient evidence to support the panel’s finding that he committed the capital offenses in an especially cruel manner, “based on the state’s theory thereof.” (Emphasis added.) The defendant also claims that due process and his right to have his penalty determined by the panel who heard the case “prevents this court from substituting some separate theory of aggravation other than that advanced by the state and found by the sentencer below.” (Emphasis added.) We disagree that there was any evidentiary insufficiency.
This claim rests specifically on the premises that: (1) “during the guilt phase, it was the state’s theory that [the] defendant intentionally caused the death of [the victim] by pushing her off the top of the dam”; (2) this was “the theory ... of aggravation presented by the
The fundamental flaw in the defendant’s contention is that the premises underlying it are unsound. We already have rejected the defendant’s claims that the state was confined to a theory of aggravation focusing solely on his conduct in throwing the victim off the top of the dam, and that the panel necessarily rested its special verdict on the basis of such an assertion. See part V C of this opinion. We also have rejected the defendant’s challenge to the language in Ross. See part V K of this opinion. Moreover, we already have outlined the overwhelming evidence that the victim survived having been thrown from the top of the dam by the defendant. See part V C of this opinion. Thus, as stated, the defendant’s evidentiary sufficiency claim is without merit.
Nonetheless, we undertake to summarize the evidence that, considered under the appropriate legal standard, supports the panel’s special verdict that the defendant committed the capital offenses in an especially heinous, cruel or depraved manner. To reiterate: in order to have established this aggravating factor, the state must have proven, beyond a reasonable doubt,
As we have indicated, the evidence supports the following factual scenario. The defendant first encountered the victim in the parking lot where, armed with a valve stem remover and fiberglass reinforced wrapping tape, he engaged in the ruse by which he gained entry into her car. At that time, he intended both to assault her sexually, and to kill her so that she could not later identify him. The defendant then forced the victim to drive to the dark and secluded place near the dam and pond, where he forcibly penetrated her anus with his finger and then forcibly penetrated her vaginally with his penis. He next gagged her by putting her glove into her mouth and wrapping the tape tightly and repeatedly around her mouth and head, and bound her wrists and ankles with the tape. The defendant then carried her over to the top of the dam, and threw her off the top of the dam to the concrete apron approximately twenty-three feet below. It was a moonless night, and the temperature was very cold, approximately nineteen degrees fahrenheit. The victim was clad only in jeans and a coat.
The victim survived this fall, however, and, at the bottom of the dam, engaged in a heroic effort to save her own life. By scraping her wrists repeatedly against the sharp prongs of the wire mesh that protruded from the ice, she was able to remove the tape from her wrists, wounding her wrists in the process. This was a time consuming process, accompanied by enormous effort
Meanwhile, the defendant, in order to ensure that his intent to kill had been effectuated, watched from the top of the dam as the victim engaged in her desperate struggle for life. Realizing that the victim was still alive and was likely to escape, he made his way down the steep and rocky slope. When he reached her, he forced her back into the water face down, and strangled or drowned her, or both.
The defendant then returned to the victim’s car, stole items from it, and walked back to his car, which was parked in the Bradlees’ lot. He then drove on to Interstate 84 and parked his car, climbed over the guardrail and through a hole in the fence, from where he could look down and view the victim’s now lifeless body. Satisfied that she was dead, he drove home.
The evidence supports the determination that the victim experienced extreme psychological and physical pain and suffering throughout this entire episode. The panel reasonably could have found that, beginning with the forced drive from the parking lot and continuing up until the moment of her death, the victim was in terror, and that the terror was accompanied by extreme physical pain and suffering. One need not elaborate on her likely state of mind, and on the extreme physical pain that she suffered, while she: was forced to drive
The evidence also supports the determination that, in engaging in this entire course of homicidal conduct, the defendant had the requisite states of mind. The panel reasonably could have determined that the defendant intended to inflict on the victim the extreme physical and psychological pain and suffering that she in fact endured. It is axiomatic that the fact finder may infer intent from the natural consequences of one’s voluntary conduct. See State v. Crespo, 246 Conn. 665, 674, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999). The panel also reasonably could have determined that the defendant’s entire course of conduct was intentional, and that, particularly as he watched the victim crawl up on to the rocks from the icy water, then made his way down to her and completed his homicidal scheme by forcing her back into the water and strangling or drowning her, the defendant was callous and indifferent to the extreme physical and psychological pain and suffering that he was in fact inflicting on her.
Articulation of the Factual Basis of the Panel’s Verdict Regarding the Mitigating Factors
The defendant’s next claim is that the panel’s special verdict rejecting his claimed mitigating factors was flawed because it did not comply with Practice Book § 4059, in that it did not state the factual basis underlying that verdict. The defendant also claims that we should require, “both as a matter of constitutional capital jurisprudence and under [our] supervisory authority over such proceedings, that when the death penalty is imposed by ... a [panel] . . . after a penalty hearing conducted to the court, the court’s verdict at the penalty phase must state in detail the court’s factual findings and legal conclusions with regard to its verdict on statutory mitigating factors and all nonstatutory mitigating factors.” We reject this claim.
At the end of the penalty phase hearing, the panel rendered its special verdict. With regard to the claimed mitigating factors, the panel stated: “With respect to the mitigating factors set forth in § 53a-46a (g), we find that the defendant has not proven by a fair preponderance of the evidence that at the time of the murder of [the victim], the defendant's] . . . mental capacity was significantly impaired, nor his ability to conform his conduct to the requirements of law was significantly impaired.
“Further, we find that the defendant has not proven by a fair preponderance of the evidence that the defendant was under the influence of emotional disturbance at the time of the offense, or that he suffered or suffers from a mental disorder.
“We have considered all of the defendant’s list of proposed mitigating factors submitted on August 5,
“Considering all of the facts and circumstances of this case, we do not find the defendant has proven by a fair preponderance of the evidence any factor that can be considered as mitigating.”
Thereafter, the defendant moved91 that the panel articulate “[a]s to each mitigating factor [claimed by the defendant], the court’s finding, in accordance with § 53a-46a (d), as to whether the particular factor concerning the defendant’s character, background or history, or the nature and circumstances of the crime, has been established by the evidence.” The defendant claimed, as the basis for this motion, “that the court is required by Practice Book § 4059 to state the factual basis of its decision for purposes of the appeal.” The panel denied the motion, and the defendant did not seek appellate review of that denial.
This claim is a mirror image of the defendant’s claims regarding: (1) the factual basis of the panel’s verdict on the guilt phase of the trial; see part IV C of this opinion; and (2) the factual basis of the panel’s special verdict on the aggravating factor; see part V F of this opinion. For all of the reasons, both procedural and substantive, that we previously stated in those parts of this opinion, we reject this claim as well.
N
Whether the Panel Properly Exercised Its Sentencing Function
The defendant next claims “that the penalty phase verdict fails to show [that] the . . . panel actually exer
In rendering its special verdict, the panel found, first, that the state had proven the aggravating factor beyond a reasonable doubt. It then found that the defendant had not proven by a preponderance of the evidence any of the statutoiy or nonstatutory mitigating factors. The panel then stated: “Accordingly, as to counts six and seven of the information, this court imposes the sentence of death.”
The defendant does not claim that the panel did not follow the statutoiy provisions in rendering its verdict. To the contrary, he claims in effect that the panel’s verdict was constitutionally flawed because the panel followed the statute. Thus, he contends that the imposition of the death sentence pursuant to the provisions of the statute was “constitutionally inadequate” because the statute required the panel, in addition to making the findings regarding aggravating and mitigating factors specified by the statute and imposing the death penalty if the aggravating factor were proven and no mitigating factor were proven, to make an additional finding, namely, that the death penalty was fitting and appropriate. We agree with the state that, in making
“The United States Supreme Court has stated that the capital sentencer must make a reasoned moral and individualized determination based on the defendant’s background, character and crime that death is the appropriate punishment. Penry v. Lynaugh, [492 U.S. 302, 319, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989)]; Caldwell v. Mississippi, [472 U.S. 320, 330-32, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985)]; see also Saffle v. Parks, [494 U.S. 484, 492-93, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990)]; California v. Brown, [479 U.S. 538, 541, 543, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987)]. Our death penalty statutes fulfill this requirement.
“Under § 53a-46a (b), the capital sentencer is either a jury or the court. The sentencer determines whether the defendant, who has been convicted of a capital felony, should receive the punishment of death by making findings regarding the existence of any aggravating or mitigating factors. General Statutes § 53a-46a (e). The requirement that the sentencer’s determination be made by setting forth its findings regarding aggravating and mitigating factors merely guides the sentencer’s discretion to achieve a more focused and rational response. Boyde v. California, [494 U.S. 370, 377, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990)]; Blystone v. Pennsylvania, supra, 494 U.S. 304-305.
“The sentencer makes the required moral and individualized determination, under our statute, because it must consider a nonexclusive list of mitigating factors as well as a catchall category consisting of any other
“Furthermore, it is evident that the capital sentencer, either a jury or the court, in making its determination regarding the existence of aggravating and mitigating factors during the separate sentencing hearing is aware that its ‘task [is] the serious one of determining whether a specific human being should die at the hands of the State.’ Caldwell v. Mississippi, supra, 472 U.S. 329. Finally, the death sentence is mandatorily imposed only after the capital sentencer has determined unanimously that at least one aggravating factor exists and no mitigating factors exist, and has come to this unanimous determination by engaging in a full, individualized consideration as to whether death is the appropriate penalty for each defendant. Blystone v. Pennsylvania, supra, 494 U.S. 303-305.
“We conclude, therefore, that our capital sentencing statutes, on their face, give the capital sentencer, either a jury or the court, the proper amount of guided discretion to make the appropriate determination regarding the individual defendant with regard to the defendant’s specific crime. Because the statutes are not impermissibly mandatory, they comply with the eighth and the
O
The Panel’s Verdict Regarding Mitigation
The defendant filed a proposed list of fifteen mitigating factors. The first two were statutory mitigating factors provided by General Statutes (Rev. to 1989) § 53a-46a (g).92 The other thirteen were nonstatutory mitigating factors,93 as permitted by General Statutes (Rev. to 1989) § 53a-46a (d).94
“We have considered all of the defendant’s list of proposed mitigating factors submitted on August 5, 1991, and all evidence that was presented to us in mitigation.
“Considering all of the facts and circumstances of this case, we do not find the defendant has proven by a fair preponderance of the evidence any factor that can be considered as mitigating.”
The defendant claims that the panel, in the part of its special verdict rejecting the nonstatutory mitigating factors, improperly “required [the] defendant not only to prove the factual basis of claimed nonstatutory mitigating factors, but also to prove that they were mitigating in nature.” The defendant contends that whether
The defendant also contends that “if a preponderance burden is placed on the mitigating judgment, then, contrary to this court’s decision in [State v. Ross, supra, 230 Conn. 253-54 n.33], equipoise on that judgment by the capital sentencer in a particular case will result in an automatic death sentence, by default. This is constitutionally unacceptable.” Consequently, the defendant argues, we “should clarify that the capital defendant’s burden of proof regarding mitigating factors applies to factual determinations only and not to the mitigating judgment that must be made by the sentencers with regard to nonstatutory mitigating factors. The court should then declare that the . . . panel here erred and order a new penalty hearing.” (Emphasis in original.) We are not persuaded. We conclude, contrary to the defendant’s claim, that the defendant’s burden of persuasion on a nonstatutory mitigating factor, namely, by a preponderance of the evidence, extends not only to the underlying factual basis of the factor, but also to the determination that the factor is mitigating in nature.
It is important to note what the defendant does not claim. He does not claim that there is anything either unconstitutional or statutorily improper about requiring
We first note our agreement with the defendant’s understanding of the panel’s special verdict. With respect to any claimed nonstatutory mitigating factor, the panel determined either that the defendant: (1) had not established its underlying factual basis; or (2) had not established that it was mitigating in nature. For example, in determining that the defendant had not proven by a preponderance of the evidence that he suffered from a mental disorder, the panel necessarily found that he had not established the underlying factual basis of that assertion. In rejecting the claimed mitigating factor that the defendant was the father of a four year old boy, however, which factually was not disputed, the panel implicitly determined that this fact was not mitigating in nature.
We reject the defendant’s contention that the purported impropriety in the panel’s verdict is constitutional in nature.96 It is well established that there is no
Having concluded that there is no constitutional basis for the defendant’s claim, we therefore turn to the only other arguable basis for the claim, namely, the statute. We conclude that the panel’s special verdict regarding the nonstatutory mitigating factors complied with § 53a-46a.
The defendant’s claim presents a question of statutory interpretation. “The process of statutory inteipretation involves a reasoned search for the intention of the legislature. Frillici v. Westport, 231 Conn. 418, 431, 650 A.2d 557 (1994). In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742 (1997).
Indeed, the language of the very next subsection of the statute also strongly suggests that the burden of persuasion applies both to the underlying factual basis and to the mitigating nature of the mitigating factor. Section 53a-46a (d) specifically provides for a two step process of determining whether such a factor has been
In addition, as the state correctly argues, in determining whether a set of facts is mitigating in nature, the sentencer is to view those facts through the lens of “fairness and mercy . . . .” General Statutes (Rev. to 1989) § 53a-46a (d). At that point, however, the defendant already has been convicted of a capital felony that the sentencer has determined was accompanied by an aggravating factor. Thus, it is consistent with that scenario for the legislature to impose on the defendant the
The genealogy of the statutory provisions regarding the proof of a mitigating factor also indicates the legislative intent that the burden of persuasion applies to both elements of mitigation. Before 1985, General Statutes (Rev. to 1983) § 53a-46a (c) provided only that: “The burden of establishing any mitigating factor shall be on the defendant.” At that time, there was no statutory provision specifying the nature of a mitigating factor, or the steps which the sentencer should take in determining the existence of such a factor. We held, however, that although the statute did not specify the precise measure of that burden of persuasion, “[a]nalogous principles of criminal law persuade us that . . . the defendant [was required] to establish the existence of a mitigating factor by a preponderance of the evidence.” State v. Daniels, 207 Conn. 374, 385, 542 A.2d 306, following remand, 209 Conn. 225, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989).
In 1985, by Public Acts 1985, No. 85-366, § 1, the legislature enacted what is now § 53a-46a (d). That provision specified, among other things, the two step process regarding the existence of a mitigating factor, namely, that the fact finder determine whether a particular factor “has been established by the evidence,” and next, “whether that factor is mitigating in nature . . . .”
The legislative history of our death penalty statutes also buttresses this interpretation. If there had been a legislative intention to impose a bifurcated burden of persuasion, despite the clear legislative language indicating no such bifurcation, we would expect to see such an intention expressed in the legislative history. We have examined fully the relevant legislative history, and find no such indication. See 28 S. Proc., Pt. 10, 1985 Sess., pp. 3470-75; 28 H.R. Proc., Pt. 17, 1985 Sess., pp. 6111-17; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 5, 1985 Sess., pp. 1386, 1408-23, 1446, 1471-72, 1476-86, 1491, 1493-94, 1500-12.
Finally, our precedents support the conclusion that the statutorily defined burden of persuasion applies to both elements of mitigation. In State v. Daniels, supra, 207 Conn. 385, we held that the defendant’s burden of persuasion on a mitigating factor was the preponderance of the evidence. While acknowledging that the then newly enacted § 53a-46a (d) provided “a useful definition of mitigating factors”; id., 386 n.10; we did not suggest that there was any bifurcation of that burden.
It is trae, as the defendant suggests, that the question of whether a nonstatutory mitigating factor, if established factually, is mitigating in nature involves the exercise of the reasoned moral judgment of the sentencer. That does not mean, however, as the defendant also suggests, that a burden of persuasion may play no useful role in that exercise of judgment. One of the functions of a burden of persuasion is to indicate the degree of certitude that the fact finder must have in order to find in favor of the party with the burden. Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). Thus, rather than leave the sentencer bewildered regarding the degree of certitude that it must have in order to find a mitigating factor, the statute gives the sentencer guidance.
It is also true, as the defendant contends, that in State v. Webb, supra, 238 Conn. 506, we concluded that in performing our appellate responsibility of proportionality review under § 53a-46b (b) (3), “we must perform proportionality review under the statute irrespective of any allocation of [a burden of persuasion], examining the appropriate relevant material and arriving at our best judgment, based on that material and the applicable legal principles.” We are not convinced, however,
P
The Purported Use of the Defendant’s Motion to Suppress his Confession
The defendant next claims that the death sentence improperly was imposed because the panel impermissibly used against him the fact that he had moved to suppress his confession.99 Specifically, the defendant contends that the panel improperly took into consideration “the filing of motions to suppress by his trial counsel, purportedly to rebut [the] defendant’s claim of mitigation based on his confession to the police and his cooperation with the police.” This claim is without merit.
This claim rests solely on the following factual premise. Prior to the penalty hearing, the defendant moved to dismiss the penalty hearing and to sentence him to life imprisonment without the possibility of release, on the following two closely related grounds, both based
Thereafter, one member of the panel, Judge Barnett, engaged in a colloquy with the defendant’s counsel in which Judge Barnett questioned the strength of that argument by pointing out that the defendant also had moved to suppress his confession. The defendant’s counsel countered by contending that (1) it was the defendant’s counsel’s decision to move to suppress, for which the defendant should not be penalized, (2) by cooperating and confessing, and by not presenting a defense in the guilt phase, the defendant “did the functional equivalent of pleading guilty,” and (3) “the court also can conclude that confessing is an indication of remorse . . . and it is an indication of repentance; and I submit that on the basis of that life without possibility of release is the appropriate sentence in this case [and] not a sentence of death.” Immediately thereafter, the state argued against the defendant’s motion. The court initially reserved decision on the motion, and subsequently denied it without comment. During the penalty phase itself, including the panel’s imposition of the death penalty, the fact of the defendant’s motion to suppress the confession was not discussed on the record by any member of the panel.
The short answer to the defendant’s claim is that this record does not support his assertion that in imposing the death penalty, the panel considered and held against him, in connection with his proposed mitigant of his confession, the fact that he had moved to suppress the
Q
The Purported Misapplication of the Concept of Mitigation
The defendant claims that the panel “either misapplied or misunderstood the concept of mitigation.” More specifically, the defendant argues in his brief that when the panel stated, “we do not find [that] the defendant has proven by a fair preponderance of the evidence any factor that can be considered as mitigating”; (emphasis in original); this “statement by the . . . panel does not say that the panel had determined that what [the] defendant had proven was not mitigating, rather the statement says that whatever [the] defendant had proven could not even be considered as mitigating.” (Emphasis in original.) This argument rests on an utter misreading of the panel’s special verdict.
The panel stated more than what the defendant selectively has quoted. After specifically finding that the defendant had not proven the factual basis of two of his claimed nonstatutory mitigating factors, namely, that he was under the influence of emotional disturbance and that he suffered from a mental disorder, the panel stated: “We have considered all of the defendant’s fist of proposed mitigating factors submitted on August 5, 1991, and all evidence that was presented to us in mitigation.
It is clear from this special verdict that, contrary to the defendant’s contention, the panel understood and properly applied the concept of mitigation as provided by § 53a-46a (d). The panel considered all of the defendant’s claimed mitigating factors, and all of the evidence presented in mitigation. With respect to each factor, the panel first determined whether it was established by the evidence, and then whether it was mitigating in nature. The only plausible reading of the special verdict is that, as to each, the panel decided either that its factual basis had not been established or that, given the establishment of its factual basis, it was not mitigating in nature.
R
The Purported Failure to Consider Certain Nonstatutory Mitigating Factors
The defendant next claims that the panel failed to consider what he claims to be a nonstatutory mitigating factor, namely, a “moderate impairment” of his mental capacity and of his capacity to conform to the requirements of the law. We reject this claim.
The state agrees with the defendant, as do we, that if the defendant proves the statutory mitigating factor that “his mental capacity was significantly impaired or his ability to conform his conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution”; General Statutes (Rev. to 1989) § 53a-46a (g) (2); he must be sentenced to life without the possibility of release. The state also agrees with the defendant, as do we, that if a defendant fails to prove a significant impairment, the sentencer may consider any lesser
The defendant, in his list of proposed mitigating factors, listed four factors that involved his mental state— two statutory, and two nonstatutory. The two statutory factors were: “1. At the time of the offense, the defendant’s mental capacity was significantly impaired”; and “2. At the time of the offense, the defendant’s ability to conform his conduct to the requirements of the law was significantly impaired.” (Emphasis added.) See General Statutes (Rev. to 1989) § 53a-46a (g) (2). The two nonstatutory factors were: “3. The defendant committed the offense under the influence of an emotional disturbance”; and “4. The defendant suffers from a mental disorder, i.e., Mixed Personality Disorder.” These two nonstatutory mental impairment mitigating factors can be read only as the functional equivalent of what the defendant now characterizes as a “moderate,” rather than a “significant,” impairment of his mental capacity.
The panel, in its special verdict, specifically addressed and rejected the factual basis of each of the four mental impairment factors, finding that the defendant had not established by a preponderance of the evidence either that (1) his mental capacity or his ability to conform his conduct to the requirements of the law was significantly impaired, or (2) he was under the influence of emotional disturbance or suffered from a mental disorder. The panel then stated that after having “considered all of the defendant’s list of proposed mitigating factors ... all evidence that was presented to [it] in mitigation . . . [and] all of the facts and circumstances of this case, [it did] not find the defendant [had] proven by a fair preponderance of the evidence any factor that can be considered as mitigating.”
It is clear from this trial record, therefore, that the defendant considered that his two nonstatutory mental state mitigating factors constituted a lesser degree of mental impairment than were stated in his two statutory mental state mitigating factors, and that he urged the panel to find that those two nonstatutory factors existed. It is also clear that the panel considered those two nonstatutory factors, and all of the evidence relevant to the defendant’s claimed mental impairment, and found that the defendant had not established the necessary underlying factual bases. Thus, the panel considered and found that the defendant had not established by a preponderance of the evidence that he suffered from a lesser degree of mental impairment than was required by the statutory mitigating factor. Having reached that factual determination, the panel was not required to go further.
The defendant’s reliance on Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987), is unavailing. In that case, the United States Supreme Court reversed the death penalty because the trial court had refused to permit the advisory jury, and had itself as the sentencer refused, to consider “evidence of non-statutory mitigating circumstances, and . . . the proceedings therefore did not comport with the requirements of Skipper v. South Carolina, 476 U.S. 1 [106 S. Ct. 1669, 90 L. Ed. 2d 1] (1986), Eddings v.
S
The Purported Failure to Consider the “Catchall” Mitigating Factor
The defendant’s next claim is that the special verdict is flawed because the panel did not consider “whether the defense’s proffered mitigating information contained any mitigating factor other than those specifically claimed by the defense and/or whether there was anything in the case other than what was contained in the defense’s proffer of mitigating information.” (Emphasis added.) Specifically, the defendant contends that the panel did not consider the so-called “catchall” mitigating factor “consisting of any other ‘mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime.’ General Statutes § 53a-46a (b); and see [General Statutes] § 53a-46a (f).” State v. Ross, supra, 230 Conn. 240. We disagree.
“The catchall category of mitigating factors includes those factors which, in fairness and mercy, may be
The record unequivocally establishes that the defendant requested the panel to consider, and that the panel did consider, the catchall category of mitigants. The defendant’s proposed list of mitigating factors requested “the court to deliberate as to the existence of each of the following mitigating factors, as well as any other mitigating factor suggested by the evidence concerning the background, character or history of the defendant or the nature and circumstances of the offense . ...” (Emphasis added.) This introduction was followed by a list of fifteen factors, the last two of which were: “14. Based upon all the mitigating evidence, life imprisonment without the possibility of release is the appropriate sentence in this case. 15. Mercy.” The defendant then orally argued to the panel that number fourteen meant that the panel was “not limited to the mitigating factors proposed on the defendant’s list. Anything suggested by the evidence can be a mitigating factor, if you so determine.” The defendant also contended to the panel that it could base the finding of a mitigating factor on “the totality of the evidence presented concerning [the defendant’s] background
As noted, the panel, in rendering its special verdict, stated that it had “considered all of the defendant’s list of proposed mitigating factors submitted on August 5, 1991 . . . .” This consideration necessarily included “any other mitigating factor suggested by the evidence
T
The Purported Failure to Consider Mercy or Appropriateness of the Death Penalty
The defendant claims that his death sentence is flawed because the panel’s “penalty verdict fails to show, as required, that the . . . panel considered the application of mercy or the inappropriateness of the death sentence as separate, independent mitigating factors.” Recognizing, as he must, that his own list of proposed mitigating factors included both mercy and the inappropriateness of the death penalty; see part V S of this opinion; and that the panel specifically rejected all of the listed factors, the defendant argues that because “mercy and the inappropriateness of the death penalty are matters which are subject to the exercise of sentencing judgment, not the exercise of quantitative proof . . . neither of these factors is subject to being proven or not proven.” (Emphasis in original.) Therefore, the defendant contends, the “panel’s assertion that [the] defendant had not proven ‘any factor’ by a preponderance of the evidence means that the . . . panel did not consider either mercy or the inappropriateness of
This claim rests on the same flawed premise that underlay the defendant’s previous claim that whether a set of facts is mitigating in nature is a matter of judgment, not of fact, and is therefore not susceptible of proof by any burden of persuasion. We rejected that premise before; see part V 0 of this opinion; and we do so here for the same reasons. Therefore, we conclude that the panel did consider, under the applicable and appropriate statutory burden of persuasion, the defendant’s claims that mercy or the inappropriateness of the death penalty should preclude a sentence of death in the present case.100
U
The Purported Failure to Consider the Severity of the Aggravating Factor
The defendant’s next challenge to the panel’s special verdict is that it failed “to show that the . . . panel considered as a mitigating factor whether the aggravating factor found was insufficient to warrant the death penalty.” More specifically, the defendant argues that “the capital sentencers must be able to articulate their determination that death is not appropriate for a specific individual, even where no other mitigation exists, based on the determination by the sentencers in that specific case that the aggravating factor found is not sufficient to warrant or justify the death penalty. The sentencer can only do this by concluding that death is inappropriate in that case and for that defendant and then report this conclusion through the finding of a
As a matter of the meaning of our statutory capital sentencing scheme, the defendant’s contention is simply incorrect. “In General Statutes §§ 53a-46a through 53a-46c, the legislature has established a three-tiered pyramid, in which each tier narrows the class of defendants that may be found eligible for the death penalty. At the first tier above the base of the pyramid, our statute separates capital felony homicides from other homicides, and authorizes bifurcated death penalty hearings only for those who have been found guilty of or have pleaded guilty to a capital felony. General Statutes § 53a-46a (b). At the second tier, the statute further limits the death penalty by requiring the sentencer to find, beyond a reasonable doubt, the existence of at least one statutorily delineated aggravating factor. General Statutes § 53a-46a (b), (e), (f) and (h); State v. Daniels, [supra, 207 Conn. 384]. At the third and final tier, our statute separates, from all cases in which a penalty of death may be imposed, those cases in which it shall be imposed; Zant v. Stephens, [462 U.S. 862, 871, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983)]; by requiring a sentencer to find, by a preponderance of the evidence, whether a mitigating factor exists. General Statutes § 53a-46a (e). In making this determination, the capital
“In their overall configuration, our death penalty statutes facially satisfy the constitutional requirements of the eighth and fourteenth amendments to the United States constitution. The multitiered pyramid meets the prerequisite of consistency and reliability by guiding the capital sentencer’s discretion with clear and objective standards that narrow the class of defendants eligible for the death penalty and by providing a meaningful basis for distinguishing between those cases in which the death penalty is imposed and those in which it is not. The third tier in the pyramid meets the individualization prerequisite by requiring the sentencer to consider any relevant mitigating information so as to enable the sentencer to make the reasoned moral judgment that death is the appropriate punishment in a particular case. See Walton v. Arizona, supra, 497 U.S. 647-49; Boyde v. California, supra, 494 U.S. 373-78; Blystone v. Pennsylvania, supra, 494 U.S. 305; Zant v. Stephens, supra, 462 U.S. 879; Eddings v. Oklahoma, supra, 455 U.S. 110-12; Lockett v. Ohio, supra, 438 U.S. 601-605; Gregg v. Georgia, [428 U.S. 153, 189, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976)]. Notably, because our statute does not permit the weighing of aggravating and mitigating factors but permits the death sentence to be imposed only if no
Thus, contrary to the defendant’s contention, under our statute, once the sentencer has found an aggravating factor proven beyond a reasonable doubt, there is no requirement that it go further and make an additional determination that the presence of that factor justifies the imposition of the death penalty. In effect, the legislature has stated that as a matter of fundamental policy, the presence of such a factor requires the imposition of that penalty unless a mitigating factor is found. “If the sentencer fails to find the existence of a mitigating factor, after having found the existence of an aggravating factor, the court must sentence the defendant to death.” Id., 237-38; see also id., 241 (“the death sentence is mandatorily imposed only after the capital sentencer has determined unanimously that at least one aggravating factor exists and no mitigating factors exist, and has come to this unanimous determination by engaging in a full, individualized consideration as to whether death is the appropriate penalty for each defendant”).
The requirement that the sentencer make a reasoned moral and individualized determination regarding whether the death penalty should be imposed in a given case is satisfied by the statutory role played by the mitigating factors. “The United States Supreme Court
“Under § 53a-46a (b), the capital sentencer is either a jury or the court. The sentencer determines whether the defendant, who has been convicted of a capital felony, should receive the punishment of death by making findings regarding the existence of any aggravating or mitigating factors. General Statutes § 53a-46a (e). The requirement that the sentencer’s determination be made by setting forth its findings regarding aggravating and mitigating factors merely guides the sentencer’s discretion to achieve a more focused and rational response. Boyde v. California, supra, 494 U.S. 377; Blystone v. Pennsylvania, supra, 494 U.S. 304-305.
“The sentencer makes the required moral and individualized determination, under our statute, because it must consider a nonexclusive list of mitigating factors as well as a catchall category consisting of any other mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime. General Statutes § 53a-46a (b); and see [General Statutes] § 53a-46a (f). The catchall category of mitigating factors includes those factors which, in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of [the defendant’s] culpability or blame for the offense or to otherwise constitute a basis for a sentence less than death. General Statutes § 53a-46a (d). The ability to consider an unrestricted set of mitigating factors satisfies federal constitutional requirements for a
“Furthermore, it is evident that the capital sentencer, either a jury or the court, in making its determination regarding the existence of aggravating and mitigating factors during the separate sentencing hearing is aware that its task [is] the serious one of determining whether a specific human being should die at the hands of the State. Caldwell v. Mississippi, supra, 472 U.S. 329. Finally, the death sentence is mandatorily imposed only after the capital sentencer has determined unanimously that at least one aggravating factor exists and no mitigating factors exist, and has come to this unanimous determination by engaging in a full, individualized consideration as to whether death is the appropriate penalty for each defendant. Blystone v. Pennsylvania, supra, 494 U.S. 303-305.” (Emphasis added; internal quotation marks omitted.) State v. Ross, supra, 230 Conn. 240-41.
We also reject the defendant’s concomitant claim, without the additional requirement that he perceives, that our statute “is unconstitutional under the authority of cases such as Penry v. Lynaugh, [supra, 492 U.S. 326-28], because our capital sentencers would not have the mechanism or vehicle to express the determination that death was not the appropriate sentence in all cases.” First, this claim is foreclosed by Ross, in which, after fully analyzing the statute, including a citation to Penry v. Lynaugh, supra, 319, we stated: “We conclude, therefore, that our capital sentencing statutes, on then-face, give the capital sentencer, either a jury or the court, the proper amount of guided discretion to make the appropriate determination regarding the individual defendant with regard to the defendant’s specific crime. Because the statutes are not impermissibly mandatory,
Second, there is nothing in Penry that requires a different, conclusion. In that case, the court reversed the death penalty because, although the defendant was permitted to introduce certain mitigating evidence, namely, his mental retardation and history of childhood abuse, under the limiting instructions by the trial court, the jury was not permitted to give effect to that evidence “in determining whether death was the appropriate punishment.” Penry v. Lynaugh, supra, 492 U.S. 323. In the present case, there was no such limitation, and the panel took all of the mitigating evidence into account in rendering its special verdict.
V
The Purported Failure to Consider the Cumulative Impact of Mitigation
The defendant next claims that the panel’s verdict is flawed because it “fails to show that the panel separately considered the cumulative effect of all of the mitigating information presented.” Specifically, the defendant asserts that, by stating that it did “not find the defendant has proven by a fair preponderance of the evidence any factor that can be considered as mitigating”; (emphasis added); the panel indicated that it had not considered the cumulative effect of the mitigating evidence. We disagree.
Among the defendant’s listed factors were, as we previously have indicated, the catchall category, namely, “any . . . mitigating factor suggested by the evidence concerning the background, character or history of the defendant or the nature and circumstances of the offense . . . .” In addition, the fourteenth and fifteenth listed factors were the inappropriateness of
In rendering its verdict, the panel stated: “We have considered all of the defendant’s list of proposed mitigating factors submitted on August 5, 1991, and all evidence that was presented to us in mitigation.” The panel also stated: “Considering all of the facts and circumstances of this case, we do not find the defendant has proven by a fair preponderance of the evidence any factor that can be considered as mitigating.”
Under these circumstances, the record reasonably supports the conclusion that the panel considered, not only each specific mitigating factor individually, but the cumulative effect of all of the mitigating evidence. Indeed, at no time did the defendant claim otherwise in the trial court. Thus, that the panel undertook such a cumulative consideration was clear to those who heard the verdict, and it is clear to us on review of it.
W
The Purported Vagueness of § 53a-46a
The defendant next contends that § 53a-46a, the statute governing sentencing in capital felony cases, is unconstitutionally vague. Specifically, the defendant maintains that the provision in subsection (d) of § 53a-46a directing the capital sentencer to consider “all the facts and circumstances of the case” in determining the existence of mitigation authorizes the capital sentencer to reject evidence regarding mitigation on irrelevant
We begin our analysis by reiterating that, in this context, constitutional vagueness analysis involves the application of the eighth amendment, and that it does not involve the due process fair notice principle. The purpose of the eighth amendment vagueness doctrine is to channel the capital sentencing decision sufficiently so as to ensure that the decision is not made arbitrarily and capriciously. Put another way, the eighth amendment vagueness doctrine requires that a death penalty statute adequately inform the capital sentencer regarding what it must find in order to impose the death penalty. See Breton I, supra, 212 Conn. 264. Moreover, eighth amendment vagueness analysis applies only to the eligibility phase and not to the selection phase of the sentencing hearing of a capital felony trial. The due process vagueness principle, however, requires fair warning as to whether conduct constitutes a crime, and clarity of the prohibited conduct sufficient to prevent arbitrary enforcement. It therefore is not relevant at the sentencing phase of a capital trial. See part V J of this opinion.
In Buchanan v. Angelone, 522 U.S. 269, 275-77, 118 S. Ct. 757, 139 L. Ed. 2d 702 (1998), the United States Supreme Court stated: “[0]ur cases have distinguished between two different aspects of the capital sentencing process, the eligibility phase and the selection phase. Tuilaepa v. California, 512 U.S. 967, 971 [114 S. Ct. 2630, 129 L. Ed. 2d 750] (1994). In the eligibility phase, the [sentencer] narrows the class of defendants eligible for the death penalty, often through consideration of aggravating circumstances. [Id.] In the selection phase, the [sentencer] determines whether to impose a death
“In the selection phase, our cases have established that the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. Penry v. Lynaugh, [supra, 492 U.S. 317-18]; Eddings v. Oklahoma, [supra, 455 U.S. 113-14]; Lockett v. Ohio, [supra, 438 U.S. 604], However, the state may shape and structure the [capital sentencer’s] consideration of mitigation so long as it does not preclude the [sentencer] from giving effect to any relevant mitigating evidence. Johnson v. Texas, 509 U.S. 350, 362 [113 S. Ct. 2658, 125 L. Ed. 2d 290] (1993); Penry [v. Lynaugh, supra, 326]; Franklin v. Lynaugh, 487 U.S. 164, 181 [108 S. Ct. 2320, 101 L. Ed. 2d 155] (1988) . Our consistent concern has been that restrictions on the . . . sentencing determination not preclude the [sentencer] from being able to give effect to mitigating evidence. . . . [0]ur decisions suggest that [at the selection phase], complete . . . discretion is constitutionally permissible. See Tuilaepa [v. California, supra, 512 U.S. 978-79] (noting that at the selection phase, the state is not confined to submitting specific propositional questions to the [capital sentencer] and may indeed allow [it] unbridled discretion); [Zant v. Stephens, supra, 462 U.S. 875] (rejecting the argument
It is equally well settled that the federal constitution permits a capital sentencer to “consider the circumstances of the crime in deciding whether to impose the death penalty.” Tuilaepa v. California, supra, 512 U.S. 976; see also Monge v. California, 524 U.S. 721, 731-32, 118 S. Ct. 2246, 141 L. Ed. 2d 615 (1998); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976). Further, although § 53a-46a is not a balancing statute; see State v. Ross, supra, 230 Conn. 239; the federal constitution permits a state to adopt a death penalty scheme that requires the capital sentencer to balance aggravating factors against mitigating factors at the sentencing hearing. See Tuilaepa v. California, supra, 979; Clemons v. Mississippi, supra, 494 U.S. 745; Blystone v. Pennsylvania, supra, 494 U.S. 305; McCleskey v. Kemp, supra, 481 U.S. 313-15 n.37. Obviously, in order to balance aggravating factors against mitigating factors, a capital sentencer first must be permitted to consider evidence regarding aggravation. Thus, the federal constitution necessarily permits a capital sentencer to consider evidence relating to aggravation at the selection phase of a sentencing hearing.
Furthermore, the defendant’s claim that § 53a-46a (d) unconstitutionally authorizes a capital sentencer to reject a factor that has been proposed as a mitigant on improper grounds, such as the respective races of the defendant and the victim, is unpersuasive. Section 53a-46a (d) simply directs the sentencer to make its determination as to whether a proven factor is mitigating in nature in light of all of the evidence that has been presented in the case; it cannot reasonably be construed to authorize a capital sentencer to base its determination on nonevidentiary factors. The defendant, moreover, has presented absolutely no evidence that in the present case, the panel based its determination that the defendant had not proven the existence of a mitigating factor on any improper ground.
X
The Purported Improper Failure to Find Mitigation
The defendant next claims that the panel arbitrarily and erroneously failed to find mitigation. Specifically, the defendant maintains that, as a matter of law, the
As to statutory mitigating factors, the defendant claims to have proven that: (1) at the time of the offense, his mental capacity was significantly impaired; and (2) at the time of the offense, his ability to conform his conduct to the requirements of the law was significantly impaired. See General Statutes (Rev. to 1989) § 53a-46a (g). The defendant also claims that, as a matter of law, his evidence in mitigation established that he should be spared the death penalty for one or more of the following nonstatutory reasons: (3) he committed the offense under the influence of an emotional disturbance; (4) he suffers from a mental disorder, namely, mixed personality disorder; (5) he is the father of a four year old son; (6) he served his country as a member of the United States Army; (7) he has a history of steady and reliable employment; (8) he graduated from high school and was a contributing member of his class; (9) he has been affected adversely by problems of racial identity; (10) he has a family that cares about him and that will provide him emotional support while incarcerated; (11) he has many positive qualities that are recognized by others; (12) he confessed to the crime; (13) he has adjusted well to incarceration and would be adaptable to life imprisonment; (14) based upon all the mitigating evidence, life imprisonment without the possibility of release is the appropriate sentence in this case; and (15) mercy.
Before turning to the merits of the defendant’s claim, we address the standard of review applicable to a capital sentencer’s findings regarding the existence of mitigation. The state maintains that we may not properly review the panel’s findings regarding the claimed non-statutory factors. We previously have concluded, however, that § 53a-46b (a) “authorizes us to determine
In its special verdict, the panel concluded that the defendant had not proven the underlying factual bases of the first four claimed factors. Specifically, the panel concluded that the defendant had failed to prove by a preponderance of the evidence that: (1) the defendant’s mental capacity had been substantially impaired at the time of the offense; (2) the defendant’s ability to conform his conduct to the requirements of the law had been substantially impaired at the time of the offense; (3) the defendant had been under the influence of a mental disturbance at the time of the offense; or (4) the defendant had suffered or suffers from a mental disorder. With respect to the eleven remaining claimed factors, all of which were nonstatutory factors, the panel found in effect that the defendant had failed to prove that any such factor was mitigating in nature.
1
Claimed Mitigating Factors Regarding the Defendant’s Psychological State
The defendant’s second expert witness, Jeffrey Gardere, a clinical psychologist, conducted two two hour interviews with the defendant. Based primarily on those interviews as well as on the results of the psychological tests that Phillips had administered to the defendant, Gardere testified that the defendant suffered from a mixed personality disorder with paranoid and borderline features, a diagnosis Gardere acknowledged is not specified in the DSM III. Gardere also opined that the defendant suffered from poor racial identification
To rebut the existence of these four claimed factors relating to the defendant’s psychological status, the state relied primarily on its cross-examination of the defendant’s expert witnesses. On cross-examination, Phillips testified that she was unaware that I.Q. testing previously had indicated that the defendant’s I.Q. was ninety-three, which placed him in the average range of intelligence. Phillips acknowledged that she could not rule out the possibility that in his responses to the psychological tests, the defendant had feigned psychological problems. Phillips also acknowledged that she had altered the content of one of the standardized tests that she had administered to the defendant, and that her interpretation of the results of that test was completely subjective. Gardere testified on cross-examination that he was not aware that Phillips had altered the content of one of the standardized tests administered to the defendant.
Although the state did not offer any independent evidence to rebut the existence of these four claimed factors relating to the defendant’s psychological status, that alone is not a reason to overturn the panel’s findings regarding those claimed factors. “As we have recently stated in this very context, ‘the state can weaken the force of the defendant’s presentation by cross-examination and by pointing to inconsistencies in the evidence.’ State v. Ross, supra, 230 Conn. 265-66. Furthermore, the general rule that a [finder of fact] is free either to accept or reject, in whole or in part, the evidence presented by the defendant’s witnesses; see, e.g., State v. Medina, [228 Conn. 281, 310, 636 A.2d 351 (1994)]; State v. Steiger, 218 Conn. 349, 590 A.2d 408 (1991); State v. Perez, 182 Conn. 603, 438 A.2d 1149 (1981); has particular applicability where, as here, the state has
In the present case, the testimony elicited by the state on cross-examination of the defendant’s expert witnesses raised questions as to the reliability of the psychological testing on which the experts had based their opinions regarding the defendant’s psychological status. Moreover, the defendant’s evidence concerning the existence of the first four claimed factors regarding his psychological status was not “so clear and so compelling that the [panel], in the exercise of reasoned judgment, could not have rejected it.” Id., 229. Thus, the defendant’s evidence left room for the panel reasonably to find that he had failed to satisfy his burden of persuasion regarding the existence of those factors.
2
Claimed Nonstatutory Mitigating Factors
The defendant also maintains that the panel reasonably could not have rejected the remaining claimed nonstatutory factors. Specifically, the defendant argues that the evidence conclusively established that he: (1) was affected adversely by problems of racial identity; (2) served his country as a member of the United States Army; (3) is the father of a four year old son; (4) confessed to the crime; (5) has a history of steady and reliable employment; (6) graduated from high school and was a contributing member of his class; (7) has a family that cares about him and that will provide him emotional support while incarcerated; (8) has many positive qualities that are recognized by others; and (9) has adjusted well to incarceration and is adaptable to
We do not dispute that the evidence established the underlying factual bases of all but the first of the nine claimed nonstatutory factors on which the defendant now relies.102 We do not agree, however, that the evidence established the factual basis of the first claimed nonstatutory factor, namely, that the defendant was affected adversely by problems of racial identity. To support that claimed factor, the defendant relies primarily upon Phillips’ testimony that the defendant felt unaccepted by the black race and unaccepted by the white race, and upon Gardere’s testimony that the defendant suffered from poor racial identification attributable to having been raised in a predominately white environment. There was also testimony, however, that the defendant had been a contributing member of his high school class, that he had a good sense of humor, that he had been popular in high school, that he had been happy in high school, and that he had not experienced racial problems in high school. Thus, there was evidence that expressly undercut the testimony provided by Phillips and Gardere regarding the defendant’s alleged racial identity problems. The evidence regarding those problems was not “so clear and so compelling that the [panel], in the exercise of reasoned judgment, could not have rejected it.” Breton II, supra, 235 Conn. 235.
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