State v. Peeler
State v. Peeler
Opinion of the Court
Opinion
After a jury trial, the defendant was convicted of one count of murder in violation of
On appeal, the defendant claims that the trial court: (1) improperly instructed the jury that it could convict the defendant of a capital felony based upon a theory of conspiratorial liability under Pinkerton v. United States, 328 U.S. 640, 647-48, 66 S. Ct. 1180, 90 L. Ed. 1489
The second appeal is the state’s appeal from the sentencing portion of the defendant’s conviction. Specifically, the state appeals from: (1) the trial court’s denial of the state’s motion for a mistrial, its dismissal of the penalty phase proceedings, and the subsequent imposition of a sentence of life imprisonment without the possibility of release; and (2) the trial court’s subsequent denial of the state’s request for permission to appeal, pursuant to General Statutes § 54-96.
In response to the state’s claims, the defendant presents four alternate grounds for affirmance. The defendant argues that the judgment of the trial court, sentencing him to life imprisonment, should be affirmed because: (1) § 53a-46a (b) does not permit a trial court to impanel a new juiy after the original jury becomes deadlocked in the penalty phase of a capital case; (2) principles of vicarious liability cannot be used to prove aggravating factors, and, therefore, the state presented insufficient evidence to prove any of the aggravating factors necessary for the imposition of the death penalty; (3) the state failed to produce sufficient evidence to prove beyond a reasonable doubt that the defendant had the particularized mental state required by each aggravating factor; and (4) Pinkerton liability cannot be used to prove aggravating factors, and therefore the state presented insufficient evidence to prove any aggravating factors. We agree with the state’s arguments and reject the defendant’s alternate grounds for affirmance.
I
THE FACTS
The jury reasonably could have found the following facts. In the late 1990s, the defendant and his brother, Adrian Peeler (Adrian), operated a large-scale drug trafficking network that sold crack cocaine (crack) throughout the city of Bridgeport. In 1997, the defendant partnered with Rudolph Snead, Jr., to produce and distribute the crack. Snead’s responsibilities included providing the defendant with powdered cocaine, which the defendant, with the help of several associates, processed into crack and then sold on the streets. The partnership began to sour when, in 1997, the defendant accused Snead of overcharging him for the powdered cocaine. Snead responded to the accusation by “shooting up” a building on Benham Street in Bridgeport that
In September, 1997, the defendant, Corey King, Shawn Kennedy, and the defendant’s cousin, Ryan Peeler (Ryan), were driving in Bridgeport when the defendant noticed Snead’s car parked in the lot of a barber shop. The defendant observed Snead leave the barber shop, get into his car and drive away. At the time, the defendant was aware that two young boys, later identified as Leroy Brown, Jr., and Tyrell Snead (Tyrell), were passengers in Snead’s car.
The defendant’s car followed Snead’s car to the Lindley Avenue entrance ramp to Route 25. As Snead proceeded up the ramp, he slowed down and pulled off to the side. The defendant’s vehicle pulled up next to Snead’s car, and the defendant, who was seated in the right front passenger seat, fired several shots at Snead from a .40 caliber, semi-automatic handgun.
Several of the shots fired by the defendant hit Snead, injuring him, but not so severely that he was unable to drive away. A Bridgeport police officer, who noticed glass falling from Snead’s car as he drove by, stopped the vehicle. After Snead explained what had happened, the officer sent him to St. Vincent’s Medical Center for treatment.
At the hospital, another officer from the Bridgeport police department interviewed Snead and his two young passengers, Brown and Tyrell. The officer’s investigative report included the names of all three interviewees. On the basis of Snead’s identification of the defendant as the person who had shot him, the defendant was arrested and charged with attempted murder.
While investigating Snead’s death, the Bridgeport police department performed ballistics tests comparing the shell casings retrieved from the minder scene with those from the Lindley Avenue shooting. The tests revealed that all of the bullets had been discharged from the same gun. The police were also aware that Brown could identify the defendant as the shooter in the Lindley Avenue shooting, thus linking him directly to Snead’s murder. On the basis of this information, the defendant was arrested and charged with Snead’s murder.
The defendant, however, again secured his release by posting bond. As a condition of his release, the defendant was required to observe a curfew and wear an electronic ankle bracelet to ensure compliance. Despite these precautions, the defendant continued operating his drug trafficking business, albeit from a new location.
In January, 1998, during the course of pretrial discovery in connection with the Lindley Avenue shooting, the state provided defense counsel with the police report identifying Brown and Tyrell as the two passengers in Snead’s car when that shooting had occurred. The trial court, however, ordered counsel to conceal the names of the two children from the defendant to ensure their safety.
During the fall of 1998, the defendant frequently discussed his pending cases with his attorney, and often
The defendant’s suspicions were confirmed when, one day while driving past 207 Earl Avenue in Bridgeport, where Brown lived with his mother, Karen Clarke, the defendant saw Brown playing outside. When Brown saw the defendant, he looked surprised and immediately ran away. As a result, the defendant concluded that Brown was in fact one of the state’s witnesses. The defendant thereafter openly contemplated the possibility of having someone kill Brown and Clarke.
In December, 1998, the defendant told his girlfriend, Angelina Keene, that she should move away from Bridgeport because he was going to start killing the witnesses against him.
The defendant also told his associates that he wanted the witnesses killed with a revolver because, unlike a .40 caliber semi-automatic handgun, the shell casings would not be discharged from the revolver, making it more difficult to link the shootings to the gun.
King testified that at one point after the defendant had gained possession of the gun, the defendant described to several of his associates, including Adrian, what he intended to do with it. He said that he would put the gun to Brown’s head and go “[p]ow,” simulating the sound of a gunshot. The gun eventually was given to the defendant’s brother, Adrian.
At this same time, the defendant and his drug trafficking associates moved their crack production to a house located at 200 Earl Avenue in Bridgeport, across the street from the house in which Clarke and Brown then
Lee testified that on January 6, 1999, the day before the Clarke and Brown murders, the defendant and an associate, later identified as King, were at the house located at 200 Earl Avenue. According to Lee, the two men spent time in the dining room observing Clarke and Brown’s residence. Lee further testified that another of the defendant’s associates, later identified as Gary Gamer, and the defendant’s brother, Adrian, also came by the house that day. At some point, King left Lee’s residence and, thereafter, Lee observed Adrian and the defendant conversing in the dining room.
The defendant and Adrian then entered the kitchen and “cooked” some crack. Lee testified that the defendant asked her if she would “do him a favor . . . [and] kill the woman across the street . . . .” Lee, however, refused to do so. The defendant thereupon asked Adrian if he would kill Clarke and her son. According to Lee, Adrian indicated that he would “take care of it.”
The defendant then asked Lee to keep an eye on the 207 Earl Avenue address and to contact him when Clarke and Brown returned home. Lee agreed to do so, and the defendant wrote down his beeper number for her to call. The defendant then gave Lee a handful of crack cocaine as payment for her cooperation.
The next day, when Lee saw Clarke and Brown return home, she telephoned the defendant’s beeper number and left her number. When the defendant called her back, she informed him that Clarke and Brown had returned home. The defendant said “okay” and hung up the telephone. A few minutes later, Adrian arrived at Lee’s residence holding a gun. Adrian greeted Lee and then immediately departed Lee’s residence. Lee followed him.
Adrian and Lee approached Clarke’s residence and Lee rang the front doorbell while Adrian remained behind her. Lee heard a voice from inside the house ask, “[w]ho is it?” Lee responded, “[t]he girl across the street.” Clarke cracked open the door, at which time Adrian pushed past Lee and forced the door open. Lee testified that she heard the mstle of grocery bags, which were later found strewn across the floor, and the sounds of a stmggle inside. When Lee entered the house, she saw Clarke and Brown running up the stairs trying to escape from Adrian, who was chasing them. According to Lee, once Clarke and Brown reached the top of the stairs, she heard a gunshot, and then heard Brown scream out, “mommy, mommy, mommy, mommy,” from the top of the stairs. Lee then saw Adrian pursue Clarke into a bedroom and heard him mention something about Brown being a witness to a shooting. Lee, who by this time was at the top of the stairs, testified that she had heard another gunshot and, immediately thereafter, observed Adrian emerge from the bedroom. Lee further stated that she saw Adrian shoot Brown in the head. Adrian then ran out of the house. Lee, who was still at the top of the stairs, testified that she initially had stood frozen, but eventually left to return to her residence at 200 Earl Avenue. On her way out of Clarke and Brown’s house, Lee noticed Adrian was gone, as was the car in which Gamer had been sitting. Louis Ellis, who also lived at 200 Earl Avenue, corroborated Lee’s account, testifying that on the evening of the murders, he heard four or five gunshots, and shortly there
On April 14,1999, the defendant was arrested for the murders of Clarke and Brown and charged with one count of murder, two counts of capital felony—one for the murder of Brown, and the second for the double murder—and one count of conspiracy to commit murder. While incarcerated and awaiting trial, the defendant inculpated himself to fellow inmates. Two of those inmates, Audrey Holeman and Thomas Kerr, testified that while each was incarcerated with the defendant, the defendant had bragged about his involvement in the murders. Holman testified that he had overheard the defendant tell another inmate that his brother would not testify against him because the defendant had murdered one person, but his brother had murdered two, and that the defendant was pleased with his brother because Adrian “had done something righteous” for him “that nobody else . . . would do . . . .” Ken- testified that the defendant had told him that “that bitch,” Clarke, rather than the defendant himself, was responsible for both of the deaths, and that “[s]he should have known not to mess with him.”
After a jury trial, the defendant was found guilty on all counts. The state then proceeded to a penalty hearing, in accordance with § 53a-46a (a),
After several unsuccessful attempts by the trial court to obtain a unanimous verdict, which included the giving of a “Chip Smith”
After the trial court denied the state’s motion for a mistrial, the court subsequently dismissed the penalty phase proceedings, rendered a judgment of guilty in accordance with the verdict and, merging the two capital felony counts and the murder count, sentenced the
II
THE DEFENDANT’S APPEAL
A
The defendant first claims that the trial court improperly instructed the jury that it could convict the defendant of a capital felony based on conspiratorial liability under Pinkerton v. United States, supra, 328 U.S. 640.
We conclude that, in the present case, the first two prongs of Golding are satisfied, that is, the record is adequate for review and the claim is of constitutional magnitude. See State v. Coltherst, 263 Conn. 478, 490, 820 A.2d 1024 (2003) (claim of improper jury instruction on Pinkerton liability is of sufficient constitutional magnitude for Golding review); State v. Leroy, 232 Conn. 1, 7, 653 A.2d 161 (1995) (“an improper jury instruction as to an essential element of the crime charged may result in the violation of the defendant’s due process right to a fair trial, and thus require the reversal of a conviction based upon that instruction”). Accordingly, we conclude that the defendant’s claim is reviewable.
We begin by setting forth the appropriate standard of review. “The standard of review for claims of instructional impropriety is well established. [Individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper
Our analysis begins with a brief review of our case law applying the Pinkerton doctrine. “In Pinkerton v. United States, supra, 328 U.S. 647-48, the United States Supreme Court concluded that under the federal common law, a conspirator may be held liable for criminal offenses committed by a coconspirator if those offenses are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy.” State v. Diaz, 237 Conn. 518, 526, 679 A.2d 902 (1996). “This court first explicitly adopted the Pinkerton principle of vicarious liability for purposes of our state criminal law in State v. Walton, 227 Conn. 32, 630 A.2d 990 (1993). . . . The rationale for the [adoption of the] principle [was] that, when the conspirator [has] played a necessary part in setting in motion a discrete course of crimi
“We concluded in Walton that the Pinkerton principle was applicable in state criminal cases, reasoning, first, that Pinkerton liability is not inconsistent with our penal code and, therefore, that we were not prohibited from recognizing that theory of criminal liability as a matter of state common law. See General Statutes § 53[a]-4. Without foreclosing the use of the Pinkerton doctrine in other circumstances, we then concluded that application of the doctrine was appropriate in Walton, in which [1] the defendant was a leader of the conspiracy, [2] the offense for which vicarious liability was sought to be imposed was an object of the conspiracy and [3] the offense was proved by one or more of the overt acts alleged in support of the conspiracy charge. . . .
“In State v. Diaz, supra, 237 Conn. 518, we were required to decide whether to extend the principle of vicarious liability that we adopted in Walton to a case in which not all of [the three Walton] conditions have been met, a question that we expressly reserved in Walton. ... In Diaz, the defendant had been convicted of, inter alia, murder under the Pinkerton doctrine and conspiracy to commit murder. . . . The evidence showed that the defendant, along with several other individuals, had fired multiple gunshots into a motor vehicle occupied by the victim and three others. . . . The victim was struck and killed by a single bullet. . . . The defendant claimed on appeal that the court’s instruction under the Pinkerton doctrine had been improper because, among other reasons, it was broader than the limited version of the doctrine recognized in Walton. . . . This court acknowledged that the state had not proved that the defendant was the leader of the conspiracy to ambush the vehicle and its occupants
“We also acknowledged, however, that there may be occasions when it would be unreasonable to hold a defendant criminally liable for offenses committed by his coconspirators even though the state has demonstrated technical compliance with the Pinkerton rule. ... In such a case, a Pinkerton charge would not be appropriate.” (Citations omitted; internal quotation marks omitted.) State v. Coltherst, supra, 263 Conn. 491-93.
In claiming that the trial court improperly instructed the jury that it could convict the defendant of capital felony under § 53a-54b based upon a theory of conspiratorial liability under the Pinkerton doctrine, the defendant first argues that this court’s conclusions in State v. Harrell, supra, 238 Conn. 828, and State v. Johnson, supra, 241 Conn. 702, preclude such an instruction. Specifically, the defendant argues that, in Johnson, this court implicitly rejected the contention that an “intentional murder committed by [a codefendant] can be used as the predicate murder for the defendant’s capital
Our recent decision in State v. Coltherst, supra, 263 Conn. 478, is dispositive of this argument. “In Coltherst, we considered the defendant’s claim that, under State v. Harrell, [supra, 238 Conn. 839], and State v. Johnson, [supra, 241 Conn. 713-14], he could not be convicted of capital felony under § 53a-54b (5) because his murder conviction was premised on the doctrine set forth in Pinkerton v. United States, [supra, 328 U.S. 640]. [As in the present case, the defendant in Coltherst] argued that, although he had been convicted of intentional murder under § 53a-54a, because the intent to kill had been imputed to him under Pinkerton, he had not committed an intentional murder for purposes of the capital felony statute. State v. Coltherst, supra, [500-502]. [The Coltherst court noted that in] Harrell, we determined as a matter of statutory interpretation that the word murder as used in § 53a-54b means intentional murder as defined by Public Acts 1973, No. 73-137, § 2, now codified as § 53a-54a (a). Therefore, we concluded in Harrell that the defendant’s conviction for arson murder in violation of § 53a-54d could not serve as a predicate murder for purposes of the capital felony statute. . . . State v. Harrell, supra, 839. Similarly, in Johnson, we rejected the state’s claim that the defendant’s conviction of felony murder could serve as the predicate for capital felony when the defendant’s codefendant had
The defendant further argues that “[allowing the use of Pinkerton liability to prove a capital felony would produce an absurd, bizarre and unworkable result.”
Lastly, the defendant argues that this court never has adopted the expansive notion of Pinkerton liability applied by the trial court, and should not do so in the present case. Specifically, he argues that “[t]his court has [never] applied Pinkerton to a defendant who was not actively involved in the murder or was not even at the scene . . . and should not do so in this case . . . .”
In the present case, the facts reveal that the defendant sufficiently was engaged in the conspiracy so that it is not unreasonable to impose criminal liability on him for the actions of his coconspirator. Indeed, the defendant was the one who had initiated the plan to murder Brown and Clarke in order to prevent them from testifying against him. The evidence at trial established that the defendant believed that Brown had witnessed the Lindley Avenue shooting. As a result, the defendant conspired with his brother, Adrian, to murder Brown and Clarke in order to prevent them from testifying against him at his trial for Snead’s murder. The defen
Accordingly, we conclude that the trial court properly instructed the jury that it could convict the defendant of capital felony based upon conspiratorial liability under the Pinkerton doctrine. Therefore, a constitutional violation does not clearly exist and the defendant’s claim fails under the third prong of Golding.
B
The defendant’s second claim is that the trial court improperly charged the jury on an element of conspiratorial liability under the Pinkerton doctrine by failing to instruct the jury that, in order to find the defendant guilty of murder, it had to find that the coconspirator intentionally caused the victims’ deaths. In other words, the defendant argues that by instructing the jury that it could convict the defendant if it found that he had conspired to murder the victims and a coconspirator “perform[ed] that act that was the proximate cause” of their deaths, the court improperly treated Pinkerton liability as a species of felony murder requiring that a
At the outset, we address the reviewability of this claim. The defendant once more concedes that he failed to preserve this claim, and therefore seeks to prevail under Golding and the plain error doctrine.
We begin our analysis by setting forth the applicable standard of review. As we previously noted herein, “individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.” (Citation omitted; internal quotation marks omitted.) State v. Coltherst, supra, 263 Conn. 490. Accordingly, in reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is “sufficiently correct in law,
As we previously noted herein, the Pinkerton doctrine allows the state to prove the guilt of one defendant through the acts of another committed within the scope of and in furtherance of a conspiracy of which the defendant was a member, provided the acts are reasonably foreseeable as a necessary or natural consequence of the conspiracy. See Pinkerton v. United States, supra, 328 U.S. 647-48. In State v. Diaz, supra, 237 Conn. 531, this court clarified the standard when it stated that when applying Pinkerton liability, “a defendant may not be convicted of murder unless one of his criminal associates acting foreseeably and in furtherance of the conspiracy, caused the victim’s death with the intent to do so.” (Emphasis added.)
On the basis of the totality of the jury instructions, we are not persuaded that the jury was misled to believe that Adrian’s intent was irrelevant in determining whether the defendant was guilty of murder based upon a theory of conspiratorial liability under the Pinkerton doctrine. The jurors specifically were instructed that in order to find the defendant guilty of conspiracy to commit murder, they had to “conclude [that] the defendant was a member of the conspiracy as charged in the second count of the information beyond a reasonable doubt and that another member of that same conspiracy committed the crime of murder, [that then] you farther conclude beyond a reasonable doubt that the murder was in the scope of and the furtherance of this conspiracy, then each and every member of that conspiracy would be guilty of the murder charge whether or not they personally committed the murder.” (Emphasis added.)
The trial court then explained to the jury that murder, by definition, must include an intentional act. Citing
The defendant argues in his brief that, “[o]n six occasions, the court told the jury it only had to find that a coconspirator caused the victims’ deaths and never told the jury that it must find that Adrian committed murder . . . ,”
C
The defendant’s third claim is that the trial court violated his constitutional rights under the sixth
Certain additional facts are relevant to this issue. Prior to trial, the state moved to depose Lee because she was suffering from a terminal illness and might not survive until trial. After reviewing Lee’s medical records
Before Lee’s deposition, the defendant moved for a hearing on Lee’s competency to testify. The defendant argued that because Lee was suffering from an unspecified terminal illness,
At about the same time that the defendant filed his motion for an inquiry into Lee’s competency, he also filed a motion for production requesting all of Lee’s mental health records for impeachment purposes during cross-examination. The defendant argued, among other things, that such documents contained information relevant to Lee’s mental condition that reasonably could affect her credibility at trial. He argued that, at a minimum, such information warranted an in camera review by the court. The trial court denied the motion without comment.
Lee’s deposition began in early November, 1999.
Prior to defense counsel’s cross-examination of Lee, , the defendant renewed his previous motion for permission to use Lee’s medical records during cross-examination.
After hearing Lee testify on direct examination, and having heard argument from all the parties, the trial court concluded that Lee “had feelings of suicide when depressed, and that usually was in conjunction with the development of the use of crack cocaine . . . and/ or alcohol.” Relying on this court’s opinion in Stale v. D’Ambrosio, 212 Conn. 50, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990), the court noted, however, that a witness’ history of drug or alcohol treatment does not automatically provide the key to gain access to that witness’ mental health records. Therefore, the trial court initially concluded that the defendant had not met the threshold burden needed to justify an in camera review of Lee’s mental health records.
Nevertheless, “out of an abundance of caution,” the trial court reviewed all of Lee’s mental health records in camera and concluded that “[t]here is no especially probative feature to be disclosed from [the mental health records] in the court’s judgment of this witness’ capacity to relate the truth or to observe and recollect and narrate relevant occurrences, not only now, but in the course of her developing life as she suffered from physical illness and addiction problems.” The records were then sealed for appellate review, and the deposition proceeded.
Lee subsequently testified before the jury during the defendant’s trial. Lee testified on direct examination that in January, 1999, she had smoked crack on a daily basis. She further testified that she had smoked crack on the day of the murders. During cross-examination, Lee admitted that when she was under the influence of crack, she would experience extreme paranoia, lasting approximately five minutes. When asked what she meant by feeling “paranoid,” she stated that she would get “scared.” The defendant impeached Lee’s credibility with an inconsistent statement from her deposition, wherein she testified that she remained paranoid for fifteen to twenty minutes after ingesting crack. The defendant further impeached Lee with numerous inconsistent statements that she had made to the police about the events surrounding the murders. Due to the court’s order sealing her mental health records, however, defense counsel made no attempt to question Lee about her mental illnesses.
While the appeal in the present case was pending, Adrian’s case went to trial. On a motion by counsel for Adrian, the trial judge in that case, O’Keefe, J., ordered
Because Lee’s mental health records had become part of the public record at Adrian’s trial, the defendant’s appellate counsel subsequently moved to have the records unsealed so their contents could be reviewed and referred to in the present appeal. Lee consented, and the trial court therefore unsealed them.
On appeal, the defendant claims that the trial court abused its discretion by denying disclosure of Lee’s mental health records for purposes of cross-examination. The defendant argues that such an exclusion violated his state and federal constitutional rights to cross-examine Lee about her various hospitalizations, medications and psychiatric conditions, especially as aggravated by her significant crack use, in an effort to challenge her ability to perceive and recall the events surrounding the murders. We have reviewed Lee’s mental health records in connection with our determination of this appeal and we conclude that the defendant should have been given access to portions of the records that bore on Lee’s ability to understand, recall and relate the circumstances of the murders. We further conclude, however, that the failure to afford the defendant access to these records was harmless beyond a reasonable doubt.
“We first set forth the standard of review for determining whether the exclusion of this evidence enti
It is well established that “[a] criminal defendant has a constitutional right to cross-examine the state’s witnesses, which may include impeaching or discrediting them by attempting to reveal to the jury the witnesses’ biases, prejudices or ulterior motives, or facts bearing on the witnesses’ reliability, credibility, or sense of perception. Delaware v. Fensterer, 474 U.S. 15, 19, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985); Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Storlazzi, 191 Conn. 453, 457, 464 A.2d 829 (1983). Thus, in some instances, otherwise privileged records, like the ones in this case, must give way to a criminal defendant’s constitutional right to reveal to the jury facts about a witness’ mental condition that may reasonably affect that witness’ credibility. State v. Hufford, 205 Conn. 386, 401-402, 533 A.2d 866 (1987); State v. Pierson, 201 Conn. 211, 227, 514 A.2d 724 (1986), on appeal after remand, 208 Conn. 683, 546 A.2d 286 (1988), cert. denied, 489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d 193 (1989).” State v. Slimskey, 257 Conn. 842, 853-54, 779 A.2d 723 (2001).
“Upon inspecting the records in camera, the trial court must determine whether the records are especially probative of the witness’ capacity to relate the truth or to observe, recollect and narrate relevant occurrences. ... If the court determines that the records are probative, the state must obtain the witness’ further waiver of his privilege concerning the relevant portions of the records for release to the defendant, or have the witness’ testimony stricken. If the court discovers no probative and impeaching material, the entire record of the proceeding must be sealed and preserved for
“[T]he linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material especially probative of the ability to comprehend, know and correctly relate the truth . . . so as to justify breach of their confidentiality and disclosing them to the defendant in order to protect his right of confrontation.” (Internal quotation marks omitted.) Id., 856-57. “It bears emphasis [however] that any limitation on the impeachment of a key government witness is subject to the most rigorous appellate review.” State v. Colton, 227 Conn. 231, 250, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996).
With this standard in mind, our review of Lee’s mental health records convinces us that portions of these records directly relate to Lee’s ability to perceive, remember and relate events at the time of the murders and, therefore, should have been disclosed by the trial court to the defendant for use for impeachment purposes. Specifically, the records contain information that could call into question Lee’s mental stability at the time of the events in question, and could have created doubt regarding her ability accurately to perceive and relate the events surrounding the murders. See State v. Piskorski, 177 Conn. 677, 736, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). In particular, the records reveal that both prior to and after the murders, Lee was diagnosed with significant mental disorders, including “cocaine induced psychiatric disorder with hallucinations,” “chronic paranoid
The records further reveal that in the year prior to the events in question, while hospitalized, Lee had been placed in four point restraints and medicated with Thorazine, an antipsychotic drag,
On the basis of the foregoing, we conclude that Lee’s mental health records contained information demonstrating that she suffered from conditions that may have “substantially affected [her] ability to observe, recall or narrate events at issue in the trial.” State v. Cardinal, 194 Conn. 114, 119, 478 A.2d 610 (1984). Specifically, Lee’s records reveal a history of mental unsoundness, including hallucinations, delusions, misperception of reality and paranoia, exacerbated by a severe state of substance dependency. The records therefore were probative of Lee’s ability to “comprehend, know and correctly relate the truth,” which, as previously noted, is the linchpin in determining whether disclosure is warranted. (Internal quotation marks omitted.) State v. Slimskey, supra, 257 Conn. 856. Accordingly, we con-
The state argues that the trial court correctly refused the defendant access to Lee’s mental health records because her records solely relate to “her drug and alcohol addiction and treatment, and the resulting depression, despair and suicidal feelings.” On the basis of this court’s conclusion in State v. Bruno, 236 Conn. 514, 529, 673 A.2d 1117 (1996), that “ ‘we have never held that a history of alcohol or drug abuse or treatment automatically makes a witness fair game for disclosure of psychiatric records to a criminal defendant,’ ” the state argues that the trial court did not abuse its discretion in denying the defendant access to Lee’s mental health records. We disagree.
The state mischaracterizes the nature of the defendant’s claim. The defendant does not argue that he should have been given access to Lee’s mental health records because they demonstrate a history of alcohol and drug abuse, and therefore would be relevant to her credibility. Rather, the defendant argues that he should have been given access because the records reflect that Lee suffered from mental instability, before and after the events in question, which was exacerbated by her drug and alcohol abuse. It is this information that the defendant deems strongly probative of Lee’s ability accurately to perceive, recall and relate the events at the time of the murders. We agree with the defendant.
Our conclusion that the trial court improperly denied disclosure of Lee’s mental health records for purposes
In the present case, the trial court refused to disclose Lee’s mental health records, which prevented the jury from evaluating the impact of Lee’s mental condition on her ability accurately to perceive, recall and relate the events in question. Moreover, although the trial court allowed the defendant to question Lee during cross-examination concerning her heavy use of crack and the paranoia she felt while under the influence of crack, the defendant was denied any meaningful opportunity to inquire into Lee’s extensive history of mental illness, and how her admitted drug use may have affected her mental condition, which we previously have determined was relevant to her credibility as a witness. Consequently, we conclude that the trial
“Whether [a confrontation violation] is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial. ... If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless.” (Internal quotation marks omitted.) State v. Rolon, supra, 257 Conn. 174.
In the present case, the state supported its case with a considerable amount of corroborating evidence, significantly limiting its need to rely solely on Lee’s testimony. This evidence included the testimony of several of the defendant’s drug associates corroborating the defendant’s involvement in the murders, several incriminating statements said to, or overheard by, the defendant’s fellow inmates, and the testimony of Keene, the
Kennedy, an associate of the defendant’s who was with him during the Lindley Avenue shooting, testified that after the defendant’s arrest for the murder of Snead, the defendant made a significant effort to discover the identity of the state’s witnesses against him in that homicide. Kennedy testified that the defendant ultimately had told him that he had determined that Brown was the state’s witness against him and that he “was going to kill [him]” to prevent Brown from testifying.
Daniels, an associate who participated in the drug trafficking network with Kennedy and the defendant, testified that he had purchased a .357 Magnum revolver for the defendant, the same type of gun that subsequently was used to commit the murders of Brown and Clarke. Daniels’ testimony was corroborated by that of Michael Lanier, the individual who had sold Daniels the gun.
King testified that once the defendant had obtained possession of the .357 Magnum, the defendant described to Adrian, and several other associates, how he would kill Brown by placing the barrel of the gun to the child’s head and pulling the trigger. Ira Kanfer, the state’s medical examiner, testified that Brown was killed in such a manner; and Marshall Robinson, the state’s firearms expert, testified that Brown and Clarke were both killed by bullets from a .357 Magnum. In addition, Keene testified that sometime in December of 1998, after the defendant had determined that Brown was a state’s witness in the Lindley Avenue shooting, the defendant told her to leave town because he was going to begin murdering witnesses. Specifically, Keene testified that the defendant first told her to move in November, 1998, stating that, “[h]e told me shit was starting to get hot and he [was] about to start getting
Lastly, two of the defendant’s fellow inmates, Aundrey Holeman and Thomas Kerr, testified that while each was incarcerated with the defendant, the defendant had bragged about his involvement in the murders. Holeman testified that he had overheard the defendant tell another inmate that Adrian would not testify against him because the defendant had murdered one person, but Adrian had murdered two,
Moreover, the state presented a significant amount of physical evidence that the jury could have found corroborated Lee’s description of the murders, lessening the state’s need to rely upon her testimony. For example, Lee testified that grocery bags had been strewn against the door when Adrian forced his way into Clarke and Brown’s home. This was confirmed by photographs taken at the scene of the crime. Lee testi
Lastly, a review of the record reveals that even without Lee’s mental health records, the defendant was able to take full advantage of numerous other methods of challenging Lee’s credibility. Defense counsel elicited from Lee herself that she had lied to the police, under oath, on at least ten different occasions. The defendant also put into evidence several letters written by Lee that contradicted and, in some instances, explicitly recanted her accusations regarding the defendant’s complicity in the murders.
Additionally, the defendant mounted a serious attack on Lee’s motive for testifying by exposing the fact that, despite being an accessory to these murders and having pleaded guilty to federal drug offenses, Lee was hoping for a minimal amount of jail time as a result of her testimony. The defendant also revealed that Lee was infatuated with Officer Dwayne McBride, one of the investigating Bridgeport police officers, and wanted to convince him that when she was called to testify, she would tell the real “truth.” Furthermore, the defendant
Finally, even without the use of Lee’s mental health records, the defendant significantly undermined Lee’s credibility concerning her ability to perceive, remember and recall the events in question by highlighting the details of her significant drug habit. In particular, building upon Lee’s testimony during direct examination that she had smoked between $100 and $200 worth of crack per day for a period before and after the murders, the defendant was able to further elicit that while Lee was under the influence of crack, she experienced extreme par anoia.
On the basis of our careful review of the trial court record in the present case, we are persuaded that the state has satisfied its burden of proving that the trial court’s refusal to order disclosure of Lee’s mental health records and permit their use in cross-examination was harmless beyond a reasonable doubt. The state produced substantial evidence that the crimes had been perpetrated as the defendant had planned, physical evidence reasonably corroborated Lee’s testimony, and the defendant was able to undermine Lee’s credibility extensively without the use of the mental health records. Consequently, we conclude that the state has established, beyond a reasonable doubt, that the disclosure and use of Lee’s mental health records would not “have had a tendency to influence the judgment of the jury . . . .” State v. Rolon, supra, 257 Conn. 174; cf. State v. Cassidy, 236 Conn. 112, 129-30, 672 A.2d 899 (1996) (concluding that state had not met its burden of proving harmlessness beyond reasonable doubt because its case rested “solely on the [uncorroborated] testimony of the victim”); State v. Colton, supra, 227
D
The defendant’s final claim is that by conducting two ex parte
The following facts and procedural history are relevant to this claim. Prior to trial, Lee was incarcerated at a federal penal hospital in Fort Worth, Texas. In December, 1999, near Christmas, Lee sent holiday cards, with letters enclosed, to the three Bridgeport police officers who had befriended her during their investigation of the murders of Brown and Clarke. Simultaneously, she sent a card, with a letter enclosed, to her attorney, Richard Reeve, in which she recanted
Benedict, realizing that the letter contained potentially exculpatory information and that it was most likely an inadvertently disclosed privileged communication, forwarded the letter to the trial court, Thim, J., for an in camera review pursuant to General Statutes § 54-86c (b).
Early in January, 2000, Judge Ford conducted the first of two
During this meeting, which was conducted without the knowledge of the defendant or the state, the court discussed with Reeve the letter’s contents, how the letter came into the state’s possession, and the legal ramifications of its disclosure. In particular, the court asked Reeve whether he believed the defendant would be prejudiced by delaying disclosure to the defendant while Reeve discussed the letter with his client, Lee. Both the trial court and Reeve concluded that, under the circumstances, such a delay was warranted and, therefore, the court directed Reeve to travel to Fort Worth, Texas, where Lee was being held in a federal prison, in order to further discuss the matter with her. The court also requested that Reeve file a memorandum with the court detailing the factual and legal basis for Lee’s claim of privilege after Reeve visited her. The court then sealed all of the documents obtained during the ex parte hearing, as well as the transcript of the proceedings.
On February 15,2000, while the parties were selecting the jury, the trial court took a recess from the proceedings and requested that counsel leave the courtroom so that the trial court could speak privately with Reeve. Although the court did not disclose to either the defendant or the state the purpose of the meeting, both attorneys complied without comment. During this second meeting, Reeve submitted a memorandum to the court confirming that the misdirection of Lee’s recantation letter was inadvertent, as well as providing legal argument for not disclosing the letter to the state’s attorney or defense counsel. The court then discussed with
Three days after that hearing, on February 18, 2000, the court filed a memorandum of decision disclosing to both the state and defense counsel that on January 5, 2000, the court had conducted a hearing to determine whether the recantation letter to Reeve should be disclosed to the defendant, and that on February 15, 2000, Reeve had reported back to the court, noting that Lee had intended the letter to be a private communication
The defendant thereafter filed a motion for an in camera hearing to establish an “appropriate record ... to support [the court’s] decision ... a full record of the facts underlying the invocation of the privilege in this case and to permit the court to explore the exculpatory nature of the information sought by the defendant.” The motion did not challenge, however, the propriety of the trial court’s conducting the previous ex parte proceedings. In a memorandum of decision issued a few days later, the trial court denied the defendant’s request for an evidentiary hearing, concluding that “any further inquiry on the part of the defense into the substance of the letter from [Lee] to her attorney would violate her assertion of the attorney-client privilege . . . .”
In early April, 2000, the trial court was informed that Lee had decided to waive her attorney-client privilege regarding the letter she had intended to send to Reeve. The court therefore unsealed the letter and made it available to defense counsel.
Lee subsequently testified during the defendant’s juiy trial on May 9 and 10, 2000. On the second day of her testimony, during cross-examination, she read the letter she had written Reeve to the jury and the letter was admitted as a full exhibit in the case. In the letter, Lee stated that she had lied when she had implicated both the defendant and his brother, Adrian, in the murders of Brown and Clarke. On redirect examination, the state asked Lee why she had written the letter. Lee testified: “I was very desperate. I didn’t want to die in jail . . . because the doctor told me I had AIDS.” She stated
After this appeal was filed, the transcripts and other documents pertaining to the trial court’s ex parte hearings were released to both the state and the defendant. The defendant then learned for the first time of Reeve’s disclosure to the court that Lee allegedly wrote the recantation letter out of shame and concern over the legacy that she was leaving her children.
1
The defendant first contends that the trial court violated his constitutional rights under the sixth and fourteenth amendments to the United States constitution by conducting two ex parte proceedings with Lee’s attorney, during which the substance of Lee’s reasons for sending the recantation letter was discussed. Specifically, the defendant argues that by excluding both him and his attorney from the proceedings, the defendant was prevented from discovering, and subsequently utilizing, the reasons for the letter, another ground to impeach Lee, in that such information was disclosed only at these ex parte meetings. The defendant contends that the action by the trial court violated his constitutional right to: (1) be present at any stage of trial where his exclusion would interfere with his opportunity for effective cross-examination; (2) be present at all stages of trial where his presence would contribute to the fairness of the proceedings; and (3) have the presence of counsel at every critical stage of a criminal proceeding. The defendant concedes that this claim was not properly preserved at trial and therefore seeks review
At the outset, we briefly review the scope of the defendant’s claims. The defendant is not claiming that his constitutional rights under the sixth and fourteenth amendments were violated because the court failed to inform him that the ex parte proceedings had occurred or to disclose to him the substance of those proceedings. He concedes that the record reflects just the opposite. In mid-February, 2000, only three days after the conclusion of the second and final ex parte proceeding, the trial court issued a memorandum of decision fully disclosing to the parties the fact that it had conducted
The defendant also is not claiming that his constitutional rights were violated because he was not made privy to Lee’s recantation letter. The defendant concedes that in April, 2000, after learning that Lee had waived her privilege, the court unsealed the letter and made the letter available to defense counsel. The letter subsequently was read by Lee to the jury during cross-examination and became a full exhibit at trial.
What the defendant does argue is that, by failing to disclose Reeve’s brief reference to an alternate reason for Lee’s recantation letter until after the transcripts of the ex parte proceedings were released following the filing of the present appeal, the trial court violated the defendant’s constitutional rights under the sixth and fourteenth amendments by depriving him of an alternate ground to impeach Lee. Specifically, the defendant contends that Reeve’s statement that he believed his client wrote the recantation letter because she did not want to “leave [her] children with the shame and the legacy of their mother having been involved in a murder which involved another young child,” was critical to impeaching the state’s key witness in that she gave a different explanation on cross-examination. During cross-examination, Lee testified that the reason she had written the recantation letter was because she “was very desperate . . . [and] didn’t want to die in jail . . . because the doctor told [her she] had AIDS,” a reason different from the one that she had given her attorney, which he later conveyed to the trial court. The defendant contends that the trial court’s failure to allow for
We begin by setting forth the applicable standard of review. Whether the exclusion of the defendant and his counsel from the trial court’s ex parte proceedings violated the defendant’s constitutional rights is a mixed question of law and fact. Accordingly, our review is plenary. Duperry v. Solnit, 261 Conn. 309, 318, 803 A.2d 287 (2002) (“[questions of law and mixed questions of law and fact receive plenary review”).
In the present case, we need not reach the merits of the defendant’s constitutional claims because, even if we were to assume that the defendant’s claims ar e valid, the state has established beyond a reasonable doubt that any impropriety was harmless. A conclusion that a defendant’s sixth and fourteenth amendment rights were violated is subject to harmless error analysis, which will result in a new trial only if the exclusion of the proffered evidence is not harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) (“before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt”); State v. Merriam, 264 Conn. 617, 649, 835 A.2d 895 (2003) (where constitutional violation is subject to harmless error analysis, “state has burden of demonstrating that . . . violation was harmless beyond a reasonable doubt”). Whether a constitutional violation is harmless in a particular case depends upon the totality of the evidence presented at trial. State v. Merriam, supra, 649. “If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless.” (Internal quotation marks omitted.) Id.
Similarly, on the basis of the totality of the evidence produced at trial, we conclude that the defendant’s inability to utilize the alternate ground for impeaching Lee’s testimony concerning the recantation letter—her shame that her children would know that she had been involved in the murder of a child—was harmless beyond a reasonable doubt. First, Lee’s motivation in sending the recantation letter provided only marginal additional exculpatory material. Even without this additional impeachment material, the record reflects that the defendant was able to take full advantage of numerous other methods of challenging Lee’s credibility as well as her motive to testify. See part II C of this opinion. Moreover, even if Lee’s testimony had been stricken from the record entirely, the remaining evidence produced by the state would have been sufficient to convict the defendant beyond a reasonable doubt. Accordingly, we conclude that any misconduct by the trial court was harmless beyond a reasonable doubt and the defendant’s claim therefore fails under the fourth prong of Golding.
The defendant’s final argument is that the trial court’s two ex parte proceedings with Lee’s attorney evidenced a bias against the defendant and, therefore, the trial judge should have, suasponte, recused himself. Specifically, the defendant argues that the trial judge should have recused himself after violating canon 3 (a) (4) (A) of the Code of Judicial Conduct by: (1) failing promptly to disclose to the defendant the substance of the ex parte hearings and allow him reasonable opportunity to respond; and (2) requesting that Reeve perform an independent investigation of the facts of the case when the trial court directed Reeve to travel to Texas to consult with Lee concerning the recantation letter that she had written.
As a preliminary matter, we begin by addressing the reviewability of the defendant’s claims. The defendant concedes that his claim of judicial impropriety was not properly preserved at trial and therefore he seeks review under Golding and the plain error doctrine.
Canon 3 (a) (4) of the Code of Judicial Conduct generally prohibits a presiding judge from initiating, permitting or considering ex parte communications concerning pending or impending proceedings, outside of the presence of the parties. See footnote 46 of this opinion. The canon also contains several explicit exceptions to its general prohibition, one of which provides that “[a] judge may initiate or consider any ex parte communications when expressly authorized by law to do so.” (Emphasis added.) Code of Judicial Conduct, canon 3 (a) (4) (E). The ex parte hearings conducted by the trial court in the present case arose under § 54-86c (b), which expressly provides that “[a]ny state’s attorney, assistant state’s attorney or deputy assistant state’s attorney may request an ex parte in camera hearing before a judge, who shall not be the same judge who presides at the hearing of the criminal case if the case is tried to the court, to determine whether any material or information is exculpatory.”
In the present case, the ex parte hearings, which had been requested by the state’s attorney after Lee’s letter had been turned over to the trial court, were authorized by § 54-86c (b). Therefore, they fall within the expressly enumerated exception in canon 3 (a) (4) (E) for an ex parte proceeding expressly authorized by law. After Judge Thim performed an in camera inspection of the recantation letter, pursuant to § 54-86c (b), he stated that although it was his opinion that the letter contained exculpatory information, the state also might want to present the issue to Judge Ford, the trial judge, for
We acknowledge that the trial court’s inquiry at the ex parte hearings was not limited to whether Lee’s letter contained exculpatory information. The hearings also addressed the issues of whether the letter should remain undisclosed under the attorney-client privilege, and whether that privilege had been waived by the inadvertent disclosure. This broadened scope of the ex parte hearing does not necessarily render the hearings violative of canon 3 (a) (4), however, because, under our common law, ex parte proceedings are authorized to resolve claims of attorney-client privilege.
We have stated that, “[t]he decision of whether to engage in an [ex parte] in camera review of . . . allegedly privileged information is necessarily one for the trial court.” Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 183, 757 A.2d 14 (2000). Furthermore, we have stated that once it has been established that the privilege applies, “the trial court has discretion to determine if a waiver of the attorney-client privilege has occurred and the scope of that waiver”; Harp v. King, 266 Conn. 747, 770, 835 A.2d 953 (2003); and “in certain circumstances, [an ex parte in camera review] may be an appropriate means of examining the allegedly privileged material without abrogating the privilege itself. ” Olson v. Accessory Controls & Equipment Corp., supra, 182-83; see also, e.g., State v. Ortiz, 252 Conn. 533, 557, 747 A.2d 487 (2000) (discussing standard that criminal defendant must meet to obtain in camera inspection of witness’ confidential records sought for
The defendant further claims that, even if the law expressly permitted the trial court’s inquiry into whether Lee’s letter was exculpatory, and whether that letter nonetheless was protected by the attorney-client privilege, the court did not limit its inquiry to these two subjects. Rather, the defendant argues, the trial court also addressed the issue of whether the defendant’s constitutional right to confrontation
“[M]ootness implicates the jurisdiction of the court. ... It is a well-settled general rule that the existence
In the present case, prior to the commencement of trial, Lee waived her attorney-client privilege regarding the recantation letter. The trial court therefore unsealed the letter and made it available to defense counsel, who had the letter admitted as a full exhibit at trial. Consequently, any claim of impropriety concerning the court’s discussion with Reeve about the defendant’s right of confrontation was rendered moot when the letter was fully disclosed to the defendant prior to trial.
Ill
STATE’S APPEAL
At a separate penalty phase hearing with regard to the two capital felonies for which the defendant was convicted, the same jury that convicted the defendant considered evidence of aggravating and mitigating factors as provided in § 53a-46a.
The state now challenges the trial court’s denial of (1) the state’s request for permission to appeal pursuant to § 54-96,
A
The state first claims that the trial court abused its discretion when it denied the state permission to appeal from the denial of its motion for mistrial. Specifically, the state argues that in denying it permission to appeal, the trial court misconstrued the law of unanimity in the context of a capital felony penalty hearing, and by doing so, improperly concluded that the jury in the present case reached a lawful verdict. We agree.
The following facts and procedural history are relevant to this issue. After the defendant’s conviction of
The trial court then submitted to the jury a revised verdict form that allowed the jury to indicate that it unanimously agreed that it could not unanimously agree as to certain findings regarding aggravating and mitigating factors. Neither the defendant nor the state objected to the submission of the revised form to the jury. The jury then resumed deliberations and subsequently filled out the verdict form to indicate as follows: On the capital felony count concerning Brown’s murder, “[w]e the jury unanimously agree that we are unable to unanimously agree that one or more of the proved aggravating factors outweighs one or more of the proved nonstatutory mitigating factors”; and, as to the capital felony count directed to the double homicide of Brown and Clarke, “[w]e the jury unanimously agree that the [s]tate . . . has failed to prove one or more statutory aggravating factors beyond a reasonable doubt.”
After receipt of the revised special verdict form indicating that the jury unanimously agreed that it could not unanimously agree, the trial court ordered the verdict accepted and recorded. The state then orally moved for a mistrial pursuant to Practice Book § 42-45.
Thereafter, the trial court issued a memorandum of decision articulating its rationale for denying the state’s motion for permission to appeal from the denial of its motion for a mistrial.
We begin our analysis by setting forth the appropriate standard of review that guides our resolution of this issue. “As a general proposition ... § 54-96 authorizes the state to appeal questions of law in a criminal case only if the trial court grants permission to appeal. Section 54-96, however, does not preclude an appeal by the state when the denial was so arbitrary as to constitute an extreme abuse of discretion rendering the denial ineffective. In such cases the statute’s condition requiring the court’s permission to appeal cannot serve to insulate a trial court from review by this court; rather, the statute as a whole remains operative to allow appeal by the state. . . . Although we accord great deference
“[I]n the context of evaluating whether a court has abused its discretion in denying requests for certification or permission to appeal, we repeatedly have applied the criteria set forth in Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). See, e.g., State v. James, 261 Conn. 395, 405-10, 802 A.2d 820 (2002) (denial of state’s request for permission to appeal from court’s ruling that police lacked probable cause to arrest); Seebeck v. State, 246 Conn. 514, 534, 717 A.2d 1161 (1998) (denial of request for certification to appeal from denial of petition for new trial); Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994) (denial of petition for certification to appeal from denial of writ of habeas corpus). The Lozada inquiry was established in order to determine whether a petitioner has made the requisite substantial showing of the denial
In the present case, we conclude that the state has met its burden of satisfying at least one of the Lozada criteria, namely, that the issue is adequate to “deserve encouragement to proceed further.” (Internal quotation marks omitted.) Id., 430. This court’s resolution of issues challenging the general requirement of jury unanimity has long been regarded as fundamental to maintaining the consistency and reliability of the judicial system as a whole, and the ultimate verdict in a criminal trial in particular. See generally State v. Sawyer, 227 Conn. 566, 580, 630 A.2d 1064 (1993); State v. Aparo, 223 Conn. 384, 388, 614 A.2d 401 (1992), cert. denied, 507 U.S. 972, 113 S. Ct. 1414, 1415, 122 L. Ed. 2d 785
The issue in the present case, namely, whether in denying the state permission to appeal, the trial court misconstrued the law of unanimity in the context of a capital felony penalty hearing, and by doing so, improperly concluded that the jury reached a valid verdict, plainly fits this category. Moreover, the fact that this court has not had an opportunity previously to address this specific issue renders it even more worthy of review. Consequently, we conclude that the issue presented by the state “deserve[d] encouragement to proceed further”; (internal quotation marks omitted) Lozada v. Deeds, supra, 498 U.S. 432; and therefore the trial court abused its discretion in denying the state’s motion for permission to appeal.
The state’s second, and principal, claim on appeal is that the trial court abused its discretion by denying the state’s motion for a mistrial after improperly instructing the jury that if it remained deadlocked, the trial court would be required to impose a sentence of life imprisonment “without the benefit of release.”
The following additional facts and procedural history inform our resolution of this issue. On the third day of deliberations in the penalty phase of the defendant’s trial, the jury sent to the court a note in reference to the questions on the verdict form dealing with the murder of Brown. The jury requested instructions on how to proceed if it was unable to agree on whether the non-statutory mitigating factor or factors outweighed the aggravating factor or factors. Commenting on the note outside the jury’s presence, the trial court told the parties that the jury must “strive to reach a unanimous verdict. If they become deadlocked on [the issue of weighing] . . . I’ll impose life without the benefit of release.” In response, the state argued that if the jury was deadlocked on this issue, the court would have to declare a mistrial rather than sentence the defendant to life in prison. The trial court, however, disagreed stating: “[I]f it’s deadlock, it means that you haven’t met your burden,” and “the defendant would get the benefit of it.”
The jurors were then recalled to the courtroom and the court reinstructed them on the possible verdicts. The court reiterated that at each point in its deliberations, the jury must be unanimous. Specifically, the court stated that the jury had to agree unanimously that aggravating factors outweighed mitigating factors for death to be imposed, or in the alternative, it had to agree unanimously that mitigating factors either outweighed or were in equipoise with aggravating factors for a life sentence to be imposed. The trial court concluded its substantive re-instruction by stating: “If you continue to deliberate on this issue and at the final
Later that day, the jury sent a second note to the court stating that, with regard to the murder of Brown, it still was deadlocked on the issue of whether the nonstatutory mitigating factors outweighed the aggravating factors. In response, the trial court instructed the jury to put the issue aside and to move on to the questions on the verdict form dealing with the double murder of Brown and Clarke. The court implored the jurors to strive to answer the remaining questions. The court then repeated to the jury the action the court would take if the jury were to become deadlocked on the second issue: “I’ve already told you, if you cannot agree, then I will impose a sentence which is in accord with the inability of the state to satisfy the burden of proof beyond all reasonable doubt in respect to the aggravating factor and your consideration of the mitigating factor. So there’s no puzzle.” (Emphasis added.) The state again indicated to the court that it disagreed with the court’s proposed disposition. The state argued that the jury’s notes merely indicated that it was deadlocked and, therefore, imposing a life sentence would be improper. The court adhered to its position.
Shortly thereafter, the jurors sent a third note to the court indicating that they also were deadlocked on the issue of whether the state had proven an aggravating factor pertaining to the double homicide. The trial court indicated to the parties that it would respond to the note by giving a “Chip Smith” instruction to the jury in an effort to nudge the jury toward unanimity. When the state inquired as to how the court interpreted the jury’s deadlock on the aggravating factors pertaining to the
Later that same afternoon, the jury sent a fourth, and final, note to the court stating: “We still have a problem with the word unanimous .... Some of us feel the state has proven one or more statutory aggravating factors and some of us feel the state has failed to prove one or more statutoiy aggravating factors.” In response, the court provided the jury with an “Official Revised” version of the verdict form which permitted the jurors to “unanimously agree that [they] are unable to unanimously agree” on both counts of capital felony. All twelve jurors chose this new option for both counts.
Immediately after the jury announced that it had agreed to disagree, the trial court ordered the verdict accepted and recorded. The state then orally moved, pursuant to Practice Book § 42-45, for a mistrial. The state’s motion, however, was denied by the court.
We begin our analysis by setting forth our standard of review. “The principles that govern our review of a trial court’s ruling on a motion for a mistrial are well established. Appellate review of a trial court’s decision granting or denying a motion for a [mistrial] must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . Thus, [a] motion for a [mistrial] is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds. . . . In our review of the denial of a motion for mistrial, we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been
In reviewing a claim of abuse of discretion, we have stated that “[discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Internal quotation marks omitted.) State v. Onofrio, 179 Conn. 23, 29, 425 A.2d 560 (1979). In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors. See id. Therefore, “[i]n those cases in which an abuse of discretion is manifest or where injustice appears to have been done, reversal is required.” State v. Avcollie, supra, 174 Conn. 111.
The state first contends that the trial court’s instruction that, if the jury remained deadlocked, the court would be required to sentence the defendant to life imprisonment without the possibility of release, was improper. Specifically, the state argues that the instruction was based upon the unsound legal premise that, under Connecticut law, during the penalty phase of a capital case a deadlocked jury necessarily signifies that the trial court must sentence the defendant to life imprisonment because the state has failed to sustain its burden of proof. We agree with the state.
“It is settled doctrine in Connecticut that a valid jury verdict in a criminal case must be unanimous. ... A nonunanimous jury therefore cannot render any finding of fact.” (Internal quotation marks omitted.) State v. Aparo, supra, 223 Conn. 388. Indeed, where a jury is deadlocked, a court cannot rightfully record a verdict “because [as a matter of law] no such verdict can be found to have existed . . . .” State v. Goodman, 35
This court addressed a similar issue in State v. Daniels, supra, 207 Conn. 394, wherein the court concluded that under our death penalty statute, a deadlocked jury in the penalty phase of a capital trial “neither authorizes imposition of the death penalty nor requires the imposition of a life sentence.” The court stated that, “[b]ecause the record in this case reveals an unchallenged finding that an aggravating factor exists, but no unanimous finding that the defendant has proved that a mitigating factor exists, the defendant was not entitled as a matter of law to a sentence of life imprisonment . . . .” Id., 393. Under Connecticut law, therefore, we concluded that a deadlocked jury authorizes neither a life sentence nor the death penalty. Id., 394.
The state further contends that this improper instruction tainted the jury’s subsequent deliberations. We agree. The United States Supreme Court and this court continuously have recognized “the need for heightened reliability in death penalty deliberations . . . .” (Citations omitted.) State v. Ross, 230 Conn. 183, 230-31, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115
In Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985), the United States Supreme Court expressly concluded that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests else
“In evaluating the various procedures developed by [sjtates to determine the appropriateness of death, this [c]ourt’s [e]ighth [a]mendment jurisprudence has taken as a given that capital sentencers would view their task as the serious one of determining whether a specific human being should die at the hands of the [sjtate. Thus, as long ago as . . . McGautha v. California, 402 U.S. 183 [91 S. Ct. 1454, 28 L. Ed. 2d 711] (1971), [the court has assumed] . . . that jurors confronted with the truly awesome responsibility of decreeing death for a fellow human will act with due regard for the consequences of their decision .... Belief in the truth of the assumption that sentencers treat their power to determine the appropriateness of death as an awesome responsibility has allowed this [c]ourt to view sentencer discretion as consistent with—and indeed as indispensable to—the [e]ighth [a]mendment’s need for reliability in the determination that death is the appropriate punishment in a specific case. Woodson v. North Carolina, [428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976)] (plurality opinion). See also Eddings v. Oklahoma, [455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982)]; Lockett v. Ohio, [438 U.S. 586, 98 S. Ct. 2954,
Similarly, in the present case, the trial court’s instruction to the jury tainted the subsequent deliberations by diluting the jury’s appreciation of its role in the sentencing phase of a capital trial. The trial court instructed the jury that if it remained deadlocked, “[the court] would be required to impose a sentence of life without the benefit of release . . . which is in accord with the inability of the state to satisfy the burden of proof beyond all reasonable doubt in respect to the aggravating factor and your consideration of the mitigating factor." (Emphasis added.) These instructions created a “reasonable likelihood”; Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990) (where it is claimed that instruction is subject to erroneous interpretation, “proper inquiry ... is whether there is a reasonable likelihood that the jury has applied the challenged instruction” erroneously); that the jury did not fully appreciate the “momentous nature of its duty” and “its determinative role in our capital sentencing process . . . .” (Internal quotation marks omitted.) State v. Reynolds, supra, 264 Conn. 124-25. In other words, by charging the jury that if it were to remain deadlocked, the ultimate decision as to the defendant’s sentence would be removed from its
The trial court’s instructions further tainted the jury’s deliberations by reinforcing the likelihood of deadlock, thereby denying the state its right to fair and thorough deliberations by a jury attempting to reach a unanimous result. It is unquestionable that a defendant has a substantial liberty interest at stake in any criminal trial. State v. Sawyer, supra, 227 Conn. 578-79. “That does not mean, however, that the defendant’s liberty interest is the only substantial interest at stake .... The state also has a substantial interest, namely, its interest in securing a [determination of the imposition of the death penalty]” through the jury’s thoughtful deliberation to a unanimous verdict. Id., 579; see also State v. Malcolm, 257 Conn. 653, 658, 778 A.2d 134 (2001) (recognizing “the state’s right to seek a judgment against the defendant”); State v. James, 247 Conn. 662, 674, 725 A.2d 316 (1999) (“[t]he [state], like the defendant, is entitled to resolution of the case by verdict from the jury” [internal quotation marks omitted]). A jury instruction that implies that a jury need not deliberate to a unanimous decision “neglects the state’s interest in the resolution of the charges on which it presented the defendant.” State v. Sawyer, supra, 578. Indeed, “[a jury] should
In the present case, after the jury reported being deadlocked, the trial court instructed the jury that, if it remained deadlocked, the trial court would sentence the defendant to life imprisonment without the possibility of release. This instruction was reasonably likely to have influenced those jurors who, at that point in the deliberations, were inclined to vote against the imposition of the death penalty, to resist further deliberations aimed at reaching a unanimous verdict. In other words, those jurors who favored sentencing the defendant to life imprisonment improperly were informed by the court that they could ensure a sentence of life imprisonment simply by refusing to deliberate further, in which event the court would impose a life sentence.
After improperly instructing the jury as to the sentence that it would be required to impose if the jury were to remain deadlocked, the trial court denied the state’s motion for mistrial. The trial court’s instruction in the present case impermissibly led the jury to believe that it was not solely responsible for determining the appropriate sentence for the defendant. Moreover, the improper instruction increased the likelihood that the jury would remain deadlocked, as it did, in violation of the state’s right to fair and thorough deliberations by
IV
DEFENDANT’S ALTERNATE GROUNDS FOR AFFIRMANCE
In response to the state’s claims, the defendant presents four alternate grounds to affirm the trial court’s judgment sentencing the defendant to life imprisonment without the possibility of release. The defendant argues that the trial court’s sentence should be upheld because: (1) § 53a-46a (b)
A
The defendant first claims that the trial court’s judgment denying the state’s motion for a mistrial, and the subsequent imposition of a life sentence, was proper because § 53a-46a (b) does not permit a trial court to impanel a new jury after the original jury becomes deadlocked in the penalty phase of a capital case. Specifically, the defendant argues that, pursuant to the plain language of § 53a-46a (b), a trial court may impanel a new jury for a second sentencing hearing only upon a showing of “good cause,” and the fact that a jury was unable to reach a unanimous decision on the appropriate punishment cannot be considered “good cause” when interpreted in relation to similar statutes. Consequently, the defendant argues, because § 53a-46a (b) bars the impanelment of a new jury for a second sentencing hearing in the case of a deadlocked jury, and because the declaration of a mistrial by the court would have allowed for such an impaneling, the trial court properly denied the state’s motion for a mistrial and subsequently imposed a sentence of life imprisonment.
The question of whether § 53a-46a (b) prohibits the impaneling of a new jury after the original jury becomes deadlocked in the penalty phase of a capital case is a question of statutory interpretation over which our review is plenary. See Waterbury v. Washington, 260 Conn. 506, 546-47, 800 A.2d 1102 (2002).
“The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and
Section 53a-46a (b) provides in relevant part that a penalty hearing shall be conducted “(1) before the jury which determined the defendant’s guilt, or (2) before a jury impaneled for the purpose of such hearing . . . (C) if the jury which determined the defendant’s guilt has been discharged by the court for good cause . . . .” (Emphasis added.) Although the statute, and the Penal Code in general,
Our conclusion finds further support in our decision in State v. Daniels, supra, 207 Conn. 374. In Daniels, both the defendant and the state challenged the trial court’s sentencing of the defendant to two consecutive terms of life imprisonment for capital felony and murder after the jury unanimously found the existence of an aggravating factor, but was unable to agree unanimously on the existence of a mitigating factor. Id., 378. The state argued that § 53a-46a required that “once it has established the existence of an aggravating factor,
Furthermore, the legislature’s failure to amend § 53a-46a after our decision in Daniels, leads us to presume that the legislature agreed with our interpretation of the statute in that case. We have noted that, although
In Daniels, where this court concluded that § 53a-46a mandates the imposition of neither a life nor death sentence in the event of a deadlocked jury, but, rather, permits a trial court, among other things, to declare a mistrial, and subsequently impanel a new jury for a retrial of the penalty phase, the court “freely acknowledge^] that [its] construction of § 53a-46a places Connecticut alongside a very small minority of jurisdictions with regard to the proper procedure to be followed when the jury cannot unanimously agree. The majority of states have statutorily provided for an automatic sentence of less than death in the event of a deadlocked jury.” State v. Daniels, supra, 207 Conn. 393. The court then invited the legislature to address the issue if it disagreed: “Whether our decision . . . calls for corrective action is a matter that only the legislature can decide.” Id., 394. Despite numerous substantive changes to Connecticut’s capital sentencing scheme since the Daniels decision, the legislature has failed to act on this court’s invitation.
The defendant attempts to overcome Webb and Daniels by relying on the United States Supreme Court case of Jones v. United States, 527 U.S. 373, 380-81, 119 S. Ct. 2090, 144 L. Ed. 2d 370 (1999), in which the court concluded that the phrase “ ‘good cause,’ ” within the federal death penalty statute; 18 U.S.C. § 3593;
In Jones v. United States, supra, 527 U.S. 381, the court held that, “[t]he phrase ‘good cause’ in § 3593 (b) (2) (C) plainly encompasses events such as juror disqualification, but cannot be read so expansively as to include the jury’s failure to reach a unanimous deci
B
The defendant’s second claim is that the trial court’s judgment sentencing the defendant to life imprisonment should be upheld because principles of accessorial liability cannot be used to prove the existence of aggravating factors, and the state therefore presented insufficient evidence to prove any aggravating factors needed for the imposition of the death penalty.
The following additional facts and procedural history are relevant to our resolution of this issue. The state relied upon four aggravating factors, in accordance with § 53a-46a (i), in seeking the death penalty for the murder of Brown. These were: (1) in the course of Brown’s murder, Clarke was placed at a grave risk of death; (2) the murder was committed in an especially heinous, cruel or depraved manner; (3) the defendant paid Lee with cocaine to help commit the crime; and (4) the defendant paid money to Gamer, the person who drove Adrian to and from the murder scene, to help commit the crime. With respect to the second count of capital felony, i.e., the double homicide of Brown and Clarke, the state alleged three aggravating factors, the same as those alleged for Brown’s murder, with the exception of the first.
At the beginning of the penalty hearing, the defendant moved to strike each aggravating factor. He argued that: (1) nothing in Connecticut’s death penalty statutory framework allows principles of vicarious liability to be used to prove aggravating factors; (2) the state failed to produce evidence that the defendant instructed Adrian on how the murders were to be carried out, and therefore he did not know that they would be committed in a heinous, cruel or depraved manner; and (3) under the eighth amendment to the United States constitution, the defendant cannot be sentenced to death for the acts of another.
The defendant first argues that the plain language of § 53a-8 indicates that principles of accessorial liability cannot be used to prove aggravating factors in the penalty phase of a capital case. The defendant contends that because § 53a-8 limits its application to an “offense,” which is defined by General Statutes § 53a-24 (a) as any “crime or violation,”
As a preliminary matter, we set forth our applicable standard of review. The question of whether principles
“When the statute in question is one of a criminal nature, [however] we are guided by additional tenets of statutory construction. First, it is axiomatic that we must refrain from imposing criminal liability where the legislature has not expressly so intended. State v. Breton, 212 Conn. 258, 268-69, 562 A.2d 1060 (1989). Second, [c]riminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant. . . . State v. Jones, 234 Conn. 324, 340, 662 A.2d 1199 (1995). Finally, unless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are to be strictly construed against the state. State v. Ross, [supra, 230 Conn. 200].” (Internal quotation marks omitted.) State v. Davis, 255 Conn. 782, 788-89, 772 A.2d 559 (2001). It is, however, equally understood that despite the nature of the statute, it “must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant . . . .” (Internal quotation marks omitted.) State v. Szymkiewicz, 237 Conn. 613, 621, 678 A.2d 473 (1996). In other words, “[n]o part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase ... [so that] no word [or
With these standards in mind, we begin by examining the text of § 53a-8. The statute provides in relevant part: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.” General Statutes § 53a-8 (a). By its express terms, the statute provides that a person may be prosecuted and punished as the principal without actually committing the offense himself. The defendant’s interpretation, however, would have this court focus solely upon the use of accessorial liability to prosecute a defendant as if he were a principal, and ignore the statute’s mandate that an accessory shall also be punished as if he were the principal. Our well established rules of statutory construction prohibit us from interpreting a statute in such a way as to ignore some of the express wording enacted by the legislature.
Moreover, the defendant’s proffered interpretation would vitiate one of the clearly stated, overarching purposes of the statute, i.e., the punishment of a person as if he were the principal, when, with the requisite mental state, he solicits, requests, commands, importunes or intentionally aids the person who physically committed the crime. General Statutes § 53a-8 (a); see also State v. Davis, supra, 255 Conn. 792 (“[t]he accomplice liability statute permits an accessory to be ‘prosecuted and punished as if he were the principal
This court has addressed a similar issue in State v. Davis, supra, 255 Conn. 792, where we concluded that “[t]he fact that [a statute] is a sentence enhancement provision rather than a separate and distinct offense ... is of no consequence to [whether § 53a-8 applies].” (Citation omitted.) In Davis, the defendant claimed that General Statutes § 53-202k,
Similar to the statute at issue in Davis, § 53a-46a is analogous to a sentence enhancement statute. See generally Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002); Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The statute sets forth the procedure for the enhancement of a defendant’s penalty for a capital felony conviction from life imprisonment without the possibility of release to death through jury findings based on the state having proven certain aggravating factors beyond a reasonable doubt. See General Statutes § 53a-46a (f) and (i).
The text of the revision of the statute in effect at the time of the commission of the offenses in the present case provides in relevant part: “The aggravating factors to be considered shall be limited to the following . . . (3) the defendant committed the offense and in such commission knowingly created a grave risk of death to another person in addition to the victim of the offense; or (4) the defendant committed the offense in an especially heinous, cruel or depraved manner; or (5) the defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value . . . .”
“In making such an assertion, the defendant attempts to draw a distinction between principal and accessorial
“This principle is apparent throughout our state’s criminal statutes. General Statutes § 53a-54a (a), for example, provides that [a] person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person .... The fact that our murder statute prohibits specified criminal conduct of the principal actor, without ever expressly including accomplices, does not preclude its application to accomplices. Although, by its terms, our murder statute encompasses only the principal actor, it undoubtedly applies to all participants in the crime. See, e.g., State v. Henry, 253 Conn. 354, 358, 752 A.2d 40 (2000); State v. Delgado, 247 Conn. 616, 622, 725 A.2d 306 (1999). . . .
“[Additionally] [b]ecause the legislature is presumed to know the state of the law when it enacts a statute; State v. Dabkowski, 199 Conn. 193, 201, 506 A.2d 118 (1986); we can assume that, absent an affirmative statement to the contrary, it did not intend to change the existing law to create a distinction between accessories and principals when it enacted [§ 53a-46a(i)]. . . . Had
The defendant’s final argument is that the use of accessorial liability to prove an aggravating factor violates the eighth and fourteenth amendments to the United States constitution. Specifically, the defendant contends that using accessorial liability to prove an aggravating factor would violate the eighth amendment by: (1) depriving the defendant of the constitutionally required individualized consideration of the appropriate punishment for him; and (2) defining a class of death-eligible defendants in a manner unrelated to their individual moral blameworthiness, thereby making death a disproportionate punishment.
The eighth amendment to the United States constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In recognizing “the unique nature of the death penalty and the need for heightened reliability in death penalty deliberations”; State v. Ross, supra, 230 Conn. 230; the United States Supreme Court
Although the issue of whether the eighth amendment precludes the application of principles of accessorial liability to prove aggravating factors in the penalty phase of a capital case is an issue of first impression for this court, the United States Supreme Court has addressed a similar issue and, in doing so, implicitly answered the question before us. In Tison, where the defendants were charged with murder based upon accessory liability similar to the present case, the Supreme Court concluded that “major participation in the [murders] committed, combined with reckless indifference to human life” demonstrated culpability sufficient for imposition of the death penalty. Id., 158. In that case, the defendants, who were brothers, planned and carried out the escape of their father from prison, with the help of another brother, where the father was serving a life sentence for having killed a correction officer during a previous escape. Id., 139. After the defendants’ father and another inmate were freed, the group of five men flagged down a passing automobile after their own automobile became disabled. The four occupants of the automobile that stopped to help the defendants were overtaken, driven into the desert and brutally executed by the defendants’ father and his fellow escapee. Id., 139-41.
The defendants in Tison individually were tried for and convicted of, among other things, capital murder under Arizona’s felony murder and accessorial liability statutes. Id., 141-42. During the penalty phase of the
The defendants appealed, claiming, among other things, that the state had failed to prove that the defendants had “ ‘inten[ded] to kill’ ” the victims, as required by Enmund v. Florida, 458 U.S. 782, 797-98, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982). Tison v. Arizona, supra, 481 U.S. 143. On appeal, the United States Supreme Court concluded “that the [e]ighth [a]mendment did not preclude imposing the death penalty on two brothers who participated substantially in their father’s armed prison breakout and in a related kidnaping and robbery that resulted in four murders, even though neither defendant took any act which he desired to, or was substantially certain would, cause death. . . . [The court] found that the [defendants’] involvement in
Although the Tison court did not address expressly the narrow issue before this court, i.e., whether principles of accessorial liability may be used to prove aggravating factors under the eighth amendment, in broadly concluding that the eighth amendment did not preclude the imposition of the death penalty based on accessorial liability when there is “major participation” by the defendant and he evidences a “reckless indifference to human life”; Tison v. Arizona, supra, 481 U.S. 152, 158; the court acknowledged that the eighth amendment does not preclude using accessorial liability to prove aggravating factors. By explicitly recognizing the trial court’s finding of aggravating factors established through principles of accessorial liability, and thereafter concluding that an accessory could be sentenced to death, the Supreme Court in Tison implicitly concluded that the eighth amendment permitted the use of accessorial liability to prove aggravating factors. Id. In other words, by answering the broader question, i.e., whether the eighth amendment permitted imposing the death penalty on an accessory, the Tison court necessarily decided the more narrow issue that is presently
Furthermore, we can conceive of no reason why a statutory scheme that requires a jury to evaluate aggravating factors need face a more stringent requirement under the eighth amendment when principles of accessorial liability are being used to prove those aggravating factors rather than the commission of the crime itself. In other words, because the eighth amendment does not mandate that the fact finder evaluate aggravating factors for a capital punishment statutory scheme to be constitutionally valid, and because the death penalty has been upheld as constitutional despite the application of accessorial liability to the crime of capital murder; see id., 158; there should be no greater standard under the eighth amendment when principles of accessorial liability are used to prove aggravating factors that could lead to the imposition of the death penalty, as compared to being used to prove the commission of a crime that could result in the imposition of the death penalty.
The United States Supreme Court has emphatically stated that, “[a]ny argument that the [c]onstitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this [cjourt.” Clemons v. Mississippi, 494 U.S. 738, 745, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990); see also Spaziano v. Florida, 468 U.S. 447, 459, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984) (concluding that neither sixth amendment, nor eighth amendment, nor any other constitutional provision provides defendant with right to have jury determine appropriateness of capital sentence). For example, in Jurek v. Texas, supra, 428 U.S. 270, the court concluded that the Texas death penalty statute did not violate the eighth amendment or any other section of the federal constitution although the
Because the United States Supreme Court clearly has stated in Tison that principles of accessorial liability may be used to prove the crime of capital felony under the eighth amendment, and the eighth amendment does not require that a death penalty scheme must mandate that a juiy consider aggravating factors, we can conceive of no reason why a statutory scheme that requires a jury to determine the existence of aggravating factors need face a more stringent requirement under the eighth amendment when principles of accessorial liability are being used to prove those aggravating factors rather than the commission of the crime itself.
Turning to the facts of the present case, the jury reasonably could have found that the defendant’s involvement in the crimes was not minor, but, rather, was substantial and that he evidenced a reckless disregard for human life. Far from merely asking his brother Adrian to murder the two victims, the defendant was “actively involved ... in the entire sequence of criminal activity culminating in the murder of [Brown and Clarke] . . . .” Id. The defendant planned every detail of the crime. This included soliciting the commission of the murders by Adrian, purchasing the gun that eventually was used by Adrian to commit the crimes, and paying Lee to inform him when both Brown and Clarke were at home so that the murders could be committed simultaneously. The defendant even demonstrated to Adrian how he wanted Brown to be killed. Such participation in these murders clearly rises to the level of major participation that evidences “a reckless disregard for human life.” Id.
The defendant argues that, despite the United States Supreme Court’s conclusion in Tison, the use of accessorial liability to prove an aggravating factor would define a class of death-eligible defendants in a way unrelated to their individual moral blameworthiness, thereby making death a disproportionate punishment in violation of the eighth amendment. Specifically, the
As we previously noted herein, when a legislature broadly defines capital offenses and provides for the narrowing of culpability for those offenses by jury findings of aggravating circumstances, as the Connecticut legislature has chosen to do here; see General Statutes § 53a-46a; the only other constitutional requirement under the eighth amendment at the sentencing phase is the jury’s consideration of mitigating factors. Penry v. Lynaugh, 492 U.S. 302, 319-28, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989). The jury must be allowed to consider and give effect to mitigating evidence relevant to a defendant’s character, record, or the circumstances of the offense in order that the punishment be directly related to the personal culpability of the defendant. Id., 327-28; see also Franklin v. Lynaugh, 487 U.S. 164, 179, 108 S. Ct. 2320, 101 L. Ed. 2d 155 (1988); Eddings v. Oklahoma, supra, 455 U.S. 113-15. The fact that aggravating factors may be established through principles of accessorial liability therefore is irrelevant to the eighth amendment’s requirement that punishment be related to the personal culpability of the defendant. Rather, the only requirement of the eighth amendment is that the jury must be allowed “to consider and give effect to mitigating evidence relevant to a defendant’s character or record or the circumstances of the offense.” Penry v. Lynaugh, supra, 327-28. In this case, it is clear from the trial court’s jury instruction that the jury was
Specifically, the jury was instructed: “The defendant has a whole list [of mitigating factors], and there is nothing that bars anything from your consideration, even things beyond the list [he] submit[s] that come to you in your consideration, your judgment, of the totality of the facts developed here before you in the case.” The trial court then reiterated this instruction near the end of its charge stating: “In addition to any of the mitigating factors claimed by the defendant, you may give a mitigating force to any fact taken alone or in conjunction with facts presented providing, of course, you are persuaded that the fact or facts exist by a preponderance of the evidence and that the fact or facts are mitigating in nature, as that term had been defined for you.” We conclude that such instructions were sufficient to satisfy the requirements of the eighth amendment.
C
The defendant’s third argument is that, even if accessory liability may be used to prove aggravating factors, the state failed to produce sufficient evidence to prove beyond a reasonable doubt that the defendant had the particularized mental state required by each aggravating factor and, therefore, the trial court’s judgment of life imprisonment without the possibility of release should be upheld. Specifically, the defendant claims that the state failed to prove that the defendant: (1) knew that, in killing Brown, another person would be subject to a grave risk of death; (2) intended to or was callously indifferent to the fact that the victims would be killed in an “especially heinous, cruel or depraved manner”; General Statutes (Rev. to 1997) § 53a-46a (i) (4); and
The following additional facts are relevant to our resolution of this issue. During the penalty phase of the defendant’s trial, the jury indicated on the final verdict form that, in reference to count two, i.e., the death of Brown, it had agreed unanimously that the state had proven one or more aggravating factors beyond a reasonable doubt, that the defendant had failed to prove any statutory mitigating factors, and that at least one member of the jury found the existence of one or more nonstatutory mitigating factors. The form further indicated, however, that the jury was unable to agree unanimously that one or more of the proved statutory aggravating factors outweighed one or more of the proved nonstatutory mitigating factors.
We begin by briefly reviewing what is required under our death penalty statute for the imposition of a sentence of life imprisonment. Section 53a-46a (g) provides that a judgment of life imprisonment without the possibility of release shall be imposed by a trial court when the fact finder unanimously finds that: (1) one or more statutory mitigating factors, as set forth in § 53a-46a (h), exists; (2) none of the aggravating factors, as set forth in § 53a-46a (i), exists; or (3) one or more of the aggravating factors and one or more nonstatutory mitigating factors exist, but the aggravating factor or factors do not outweigh the mitigating factor or factors. If the jury does find one or more aggravating factors and one or more nonstatutory mitigating factors, § 53a-46a (e) sets forth the required weighing process. That subsection provides that, “[t]he jury or, if there is no jury, the court shall return a special verdict setting forth its findings as to the existence of any factor set forth in subsection (h), the existence of any aggravating factor or factors set forth in subsection (i) and whether any aggravating factor or factors outweigh any mitigating factor or factors found to exist pursuant to subsection (d).” (Emphasis added.) General Statutes § 53a-46a (e).
Consequently, in applying these precepts to the present case, if we were to determine that there is evidence in the record to support beyond a reasonable doubt
We begin by setting forth the appropriate standard of review. “[B]ecause of the seriousness of any death
The defendant argues that the state failed to produce sufficient evidence to prove beyond a reasonable doubt that the defendant intended that the offense be committed in such a way as to knowingly create a grave risk of death to another person in addition to the victim. Specifically, the defendant claims that the state failed to prove that he knew that, in carrying out the murder of Brown, Clarke would be exposed to a “grave risk of death . . . .” General Statutes (Rev. to 1997) § 53a-46a (i) (3). The defendant further claims that the state failed to prove beyond a reasonable doubt that the defendant made payment with crack cocaine and cash in exchange for assistance in the commission of the double murder, as articulated in § 53a-46a (i) (5). We disagree with both claims.
Before we review the evidence adduced by the state in the present case, we define the standard by which it is to be measured. Neither this court nor the legislature, however, has had an occasion to define the phrase
In the present case, as to the first capital felony count, the jury reasonably could have found that the defendant intended to have someone kill not only Brown, but also Clarke, thereby clearly subjecting Clarke to a grave risk of death. The defendant first asked Taylor to kill “two nobodies.” (Emphasis added.) After Taylor declined, the defendant proceeded to ask both Lee and Adrian if either of them would murder both Brown and Clarke. Furthermore, the evidence reveals that the defendant asked Lee to tell him when both Brown and Clarke arrived home, demonstrating an intent that he wanted the crimes to be committed together. Finally, at the time of the murder, the defendant knew that Brown was a young child, approximately eight years old. On the basis of this fact, the jury reasonably could have inferred that the defendant knew, or should have known, that there was a strong possibility that Brown’s mother would be in close proximity to him, wherever he went, and, therefore, if the defendant intended to have Brown killed, he also would subject Clarke to a substantial risk of death. On the basis of this evidence, we conclude that there is sufficient evidence in the
As to the double murder count, the jury reasonably could have found beyond a reasonable doubt that the defendant gave crack cocaine to Lee during the commission of the double murder, in exchange for her assistance in alerting the defendant when the victims arrived at their home and in helping the defendant gain access to the victims’ home, which is an aggravating factor as articulated in § 53a-46a (i) (5). Further, there was evidence that the defendant directed Keene, his girlfriend, to give money to Gamer, who drove the getaway vehicle, in exchange for his assistance in the double murder. Thus, there was substantial evidence of the existence of an aggravating factor according to § 53a-46a (i) (5).
Consequently, because we conclude that the record contains sufficient evidence to prove beyond a reasonable doubt at least one aggravating factor applicable to each capital felony count, we need not address the remaining aggravating factors, and therefore we reject the defendant’s alternate ground for affirmance.
D
The defendant’s final argument is that the trial court’s judgment sentencing the defendant to life imprisonment without the possibility of release should be upheld because Pinkerton liability cannot be used to prove aggravating factors, and the state therefore presented insufficient evidence to prove any aggravating factors required for the imposition of the death penalty. To support this claim, the defendant argues that: (1) the application of Pinkerton liability to aggravating factors is inconsistent with the plain language of § 53a-46a; (2) Pinkerton liability is inconsistent with the mental state requirements of aggravating factors; and (3) the use of Pinkerton liability to prove a capital murder, which could result in the imposition of the death penalty,
Our review of the record in the present case, however, reveals that the trial court’s instructions to the jury during the penalty phase of the trial were completely devoid of any instruction on Pinkerton liability.
The judgment is affirmed with respect to the defendant’s conviction; the judgment is reversed with respect to the sentence of life imprisonment without the possibility of release and the case is remanded for a new penalty phase hearing.
In this opinion BORDEN, PALMER and ZARELLA, Js., concurred.
General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception . . . .”
General Statutes (Rev. to 1999) § 53a-54b provides in relevant part: “A person is guilty of a capital felony who is convicted of . . . (8) murder of two or more persons at the same time or in the course of a single transaction; or (9) murder of a person under sixteen years of age.”
General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”
General Statutes § 53a-46a (b) provides in relevant part: “For the purpose of determining the sentence to be imposed when a defendant is convicted of or pleads guilty to a capital felony, the judge or judges who presided at the trial or before whom the guilty plea was entered shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, and any aggravating factor set forth in subsection (i).
. . . Such hearing shall be conducted (1) before the jury which determined the defendant’s guilt, or (2) before a jury impaneled for the purpose of such hearing if (A) the defendant was convicted upon a plea of guilty; (B) the defendant was convicted after a trial before three judges as provided in subsection (b) of section 53a-45; or (C) if the jury which determined the defendant’s guilt has been discharged by the court for good cause, or (3) before the court, on motion of the defendant and with the approval of the court and the consent of the state.”
The trial court merged the murder count and the two capital felony counts and rendered judgment sentencing the defendant to life imprisonment without the possibility of release on the merged counts and twenty years on the conspiracy count. The court further ordered that the sentence on the merged count run consecutively to the defendant’s unrelated federal sentence and that the sentence on the count of conspiracy ran concurrent to the sentence on the merged count, thereby imposing a total effective sentence of life imprisonment without the possibility of release.
General Statutes § 51-199 (b) provides in relevant part: “The following matters shall be taken directly to the Supreme Court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, lor which the maximum sentence which may be imposed exceeds twenty years . . . .”
The trial court denied the state permission to appeal, and the state appeals from that denial as well as from the trial court,’s denial of its motion for mistrial. See part III of this opinion.
Pursuant to a motion by the defendant, the two appeals were consolidated by this court for the purpose of preparing a single record and setting the briefing schedule. The court chose to treat the defendant’s appeal as a cross appeal and, accordingly, the defendant was designated the appelleeappellant and the state was designated the appellant-appellee.
We note that the judgment file reflects that the trial court imposed a sentence of life imprisonment “without the possibility of parole.” In the trial court’s instructions to the jury and on the special verdict form provided to the jury, the sentence is correctly referred to as life imprisonment “without the possibility of release.” We refer herein to life imprisonment without the possibility of release in accordance with General Statutes §§ 53a-35a (1) and 53a-46a (g). Shorthand references herein are to life imprisonment.
General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the Superior Court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.”
The defendant, in his brief, makes three additional alternate grounds for affirmance. First, he argues that a retrial of the penalty phase is barred by the double jeopardy clause of the fifth amendment to the United States constitution because the trial judge acquitted the defendant of the death penalty. This argument is fully addressed as part of the state’s claims on appeal; see part III B of this opinion; and, therefore, we need not address
We hereinafter refer to this incident as the Lindley Avenue shooting.
Specifically, Keene testified that the defendant first told her to move in November, 1998. She stated that, “[the defendant] told me shit was starting to get hot and he [was] about to start getting witnesses, witnesses—wait a minute. First he told me witnesses [were] about to get killed.” She further testified that the defendant warned her again on Christmas day in 1998 stating: “[The defendant] was talking in an opening to everybody, but, like me mainly . . . I’m telling her she better move. Shit about to start getting hot, meaning people starting to get killed.” Finally, Keene testified that, when the defendant spoke about killing witnesses, he quoted the following lyrics from a rap song: “[NJiggers want to lie, niggers wonder why, niggers gonna die.”
Although there was no direct evidence presented at trial that the defendant knew that the state had used the shell casings left behind at the Lindley Avenue shooting to link that shooting to Snead’s murder, the jury reasonably could have inferred that while preparing his defense to the Snead murder case, the defendant was informed by his counsel that the state intended to use the discarded shell casings to link him to Snead’s murder.
General Statutes § 53a-46a (a) provides: “A person shall be subjected to the penalty of death for a capital felony only if a hearing is held in accordance with the provisions of this section.”
“A Chip Smith instruction reminds the jurors that they must act unanimously, while also encouraging a deadlocked jury to reach unanimity. See State v. Smith, 49 Conn. 376 (1881); see also 5 Connecticut Practice, D. Borden & L. Orland, Connecticut Criminal Jury Instructions (1986) § 4.8.” (Internal quotation marks omitted.) State v. Saunders, 267 Conn. 363, 390 n.29, 838 A.2d 186 (2004).
See footnote 5 of this opinion.
In the course of its charge, the trial court instructed the jury on conspiratorial liability, stating, “[i]n this case the state has not produced evidence that the defendant in fact shot [Brown or Clarke]. . . . The state relies on what the law calls . . . vicarious liability. There are two ways that vicarious liability may be demonstrated in a case .... One of them is . . . conspiratorial liability. . . . [A]nd that conspiracy is the conspiracy to commit minder.”
The court further informed the jury that conspiratorial liability applied to the murder count, to the capital felony counts and “particularly [to] the fourth count [of conspiracy to commit murder] as well.” The court then proceeded to charge the jury on Pinkerton liability, without referring to the doctrine by name, by instructing the jury that if it found that the defendant was “guilty of conspiracy to commit murder,” but had not killed the victims, it also would have to find that another member of the conspiracy murdered the victims. Specifically, the court stated that, “[t]here is a doctrine in our law that provides that once a defendant’s participation in a conspiracy is established, he is then responsible for each of the criminal acts of the other coconspirators which is within the scope of and in furtherance of the conspiracy.
“This means in this case that if you conclude the defendant was in fact guilty of conspiracy to commit murder, as I will define that for you, but he did not in fact kill [Brown or Clarke], then you must determine whether sufficient evidence has been provided to show you beyond a reasonable doubt that another member of that same conspiracy did in fact perform that act that was the proximate cause of their deaths. If such other member of the conspiracy did perform that act and if that act was in the scope of the furtherance of the conspiracy, then the defendant would be guilty of murder and capital felony as well.
“To reiterate, if you conclude [that] the defendant was a member of a conspiracy as charged in the second count of the information beyond a reasonable doubt and that another member of that same conspiracy commit
“It does not matter whether [the murder] that resulted from the . . . coconspirator’s act be intended by [the defendant]. When the deaths of the victims caused by the . . . coconspirator’s conduct is a foreseeable and natural result of that conduct, the law considers the [chain] of legal causation unbroken and holds the defendant’s . . . coconspirators and thus the defendant criminally responsible.”
The jurors were admonished, however, that finding the defendant guilty of conspiracy to commit murder was insufficient to convict him of a capital felony under the theory of Pinkerton liability unless the state proved all of the other elements of those crimes. Specifically, the court stated that, “[a] verdict of guilty for the crime of conspiracy to commit the murder does not automatically result in a verdict of guilty for the crime of murder or capital felony,” unless the state proves all of the other elements of the crimes charged. The jury repeatedly was instructed that it must decide whether the defendant intended to commit the murders, the alleged underlying object of the conspiracy. In particular, in the court’s supplemental instructions, it told the jury that these are “specific intent crime[s]. All four charges require the finding by a jury unanimously that the intent of the actor during the course of the conduct is intentional conduct.”
The court then defined the crime of murder as follows: “A person is guilty of murder, [when] with intent to cause the death of another person, he causes the death of such person.”
The defendant makes two additional arguments in his brief. First, the defendant argues that, in light of the United States Supreme Court’s decisions in Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982), Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987), and their progeny, “the use of Pinkerton to prove a capital murder would call
Practice Book § 60-5 provides in relevant part: “The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...” Because we conclude that the defendant’s argument fails on its merits, we need not address the defendant’s claim of plain error. See State v. Cobb, 251 Conn. 285, 343 n.34,743 A.2d 1 (1999) (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”), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); State v. Rouleau, 204 Conn. 240, 243, 528 A.2d 343 (1987) (declining to address claim of plain error when reviewable under predecessor of Golding).
We note that the state has not argued that the claim is unreviewable, and has briefed the claim on its merits.
The defendant argues that this claim poses a question of statutory interpretation. Because the defendant posits no discernible argument as to why this is a statutory interpretation issue, we decline to address it as such. See City Recycling, Inc. v. State, 257 Conn. 429, 455, 778 A.2d 77 (2001) (claims not properly briefed will not be reviewed); State v. Spigarolo, 210 Conn. 359, 388, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989) (same).
Our resolution of this issue is consistent with the resolution of an identical issue in State v. Garner, 270 Conn. 458, 483-86, 853 A.2d 478 (2004).
To the extent that the defendant also argues that the trial court’s instruction on Pinkerton liability was improper because, “[u]nder State v. Harrell, supra, 238 Conn. 828, and State v. Johnson, supra, 241 Conn. 702, an unintentional murder cannot support a capital felony conviction,” we deem such an argument irrelevant in the context of this case. (Emphasis added.) The defendant was convicted of murder in violation of § 53a-54a (a), which is necessarily an intentional crime, and it was this conviction that provided the foundation for his capital felony conviction.
The defendant also argues that our reasoning in State v. Harrell, supra, 238 Conn. 828, “shows that the legislature never intended that Pinkerton liability could provide a predicate for a capital conviction.” Under the facts of the present case, as in Coltherst, “[t]here is no occasion ... as there was in Harrell and Johnson, to inquire into the legislature’s intent in enacting § 53a-54b.” State v. Coltherst, supra, 263 Conn. 501. Instead, the question before us is whether our prior precedents adopting and delineating the parameters of the Pinkerton doctrine preclude the state from proving a capital felony through use of the Pinkerton doctrine. Therefore, we decline to address the defendant’s argument regarding the legislature’s intent.
Our opinion in State v. Coltherst, supra, 263 Conn. 478, did not specifically address this issue.
The defendant further claims that this court “has not considered the impact of extending Pinkerton on capital felony, particularly the extra element of the offense that makes the crime a capital felony as opposed to murder and should not do so in this case where the state also relied on [accessorial] liability.” The defendant, however, fails to provide any analysis to support this claim, and we therefore decline to review it. See footnote 21 of this opinion.
See footnote 17 of this opinion for the relevant portion of the trial court’s jury instruction.
Because we conclude that the defendant’s argument fails on its merits, we need not address the defendant’s claim of plain error. See footnote 19 of this opinion.
The defendant argues 1hat a failure properly to instruct on an essential element of the crime, i.e., intent, impermissibly would reduce the state’s burden of proof under In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), Üiereby creating an issue of constitutional magnitude. We agree.
We note that the state has not argued that the claim is unreviewable, and has briefed the claim on its merits.
The defendant argues that the following statements by the trial court misled the jury: (1) the coconspirator must have “perform[ed] that act that was the proximate cause of their deaths”; (2) the defendant would be liable for murder if a coconspirator “perform[ed] that act [of causing death]”; (3) “[t]he state has satisfied its burden of proof for the crime of murder under the theory of conspiratorial liability when it is demonstrated to you beyond a reasonable doubt that the defendant is in fact guilty of conspiracy to commit murder . . . [and] another member of the same conspiracy . . . performed the act that was the proximate cause of the death of [Clarke]”; (4) “that another member ... of the same conspiracy performed the act that was the proximate cause of [Brown’s] death and the proximate cause of the death of [Clarke]”; (5) “that whoever was the one who committed the crime” did so within the scope of and in furtherance of the conspiracy; and (6) “[t]he state has satisfied its burden of proof for the crime of capital felony on the third count under the theory of conspiratorial liability when it demonstrates to you that the defendant is in fact guilty of conspiracy to commit murder . . . [and] another member ... of the same conspiracy performed the act that was the proximate cause of both [victims’ deaths] in the same transaction and at the same time.” The defendant fails, however, to acknowledge the trial court’s instruction that murder requires an intent to cause the death of another person.
The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall er\joy the right ... to be confronted with the witnesses against him . . . and to have the assistance of counsel for his defense.” The sixth amendment right of confrontation and right to counsel is made applicable to the states through the due process clause of the fourteenth amendment. See Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965), and Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), respectively.
Article first, § 8, of the Connecticut constitution provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... to be confronted by the witnesses against him . . . .”
The defendant offers no independent analysis under the state constitution. We therefore confine our analysis to the issues raised under the federal constitution. See State v. Rizzo, 266 Conn. 171, 243 n.40, 833 A.2d 363 (2003).
The state does not dispute the fact that Lee was an “invaluable” witness to the state.
The defendant argues for the first time in his reply brief that the issue on appeal is not whether the trial court abused its discretion when it failed to disclose Lee’s mental health records to the defense because Lee’s subsequent consent to disclosure of the records renders the issue moot. Rather, the defendant argues, the issue is “whether the defendant’s rights to present a defense and to confrontation were violated when he was prevented from impeaching Lee with her psychiatric records,” and therefore “until the sixth amendment is satisfied, the trial court has no discretion to prevent the defendant from using the information critical to presenting his defense . . . .” (Emphasis added.) This argument, however, presents two problems. First, “[w]e generally do not consider issues raised for the first time in a reply brief.” Celentano v. Oaks Condominium Assn., 265 Conn. 579, 587 n.6, 830 A.2d 164 (2003); see also Bovat v. Waterbury, 258 Conn. 574, 585 n.11, 783 A.2d 1001 (2001) (“[i]t is a well established principle that arguments cannot be raised for the first time in a reply brief’ [internal quotation marks omitted]). Second, Lee’s consent to the release of her mental health records occurred in the subsequent trial of Adrian, well after the alleged denial of access occurred. The fact that the defendant was given access to the documents after his trial was complete does not affect our inquiry into whether the denial of access during the trial was improper. Therefore, we decline to review this new claim.
The fact that Lee was suffering from human immunodeficiency virus was not disclosed to the defense until after the trial court allowed the defense to review Lee’s mental health records in preparation for her competency hearing.
These included records from Bridgeport Hospital, Bridgeport Area Regional Mental Health Center, Southwest Community Health Center, Inc., Gosnold Treatment Center/Emerson House in Falmouth, Massachusetts, St. Vincent’s Medical Center Alcohol and Drug Recovery Centers, Inc. (otherwise known as Blue Hills Hospital in Hartford), Greater Bridgeport Community Mental Health Center, Connecticut Valley Hospital, Mt. Diablo Medical Center in Concord, California, and the Federal Bureau of Prisons.
Because the trials of Adrian and the defendant had not yet been severed, both counsel for Adrian and counsel for the defendant participated in taking Lee’s testimony.
A renewed motion for disclosure of Lee’s records was filed by counsel for Adrian on October 28, 1999. The record reflects, however, that the trial court, counsel for Adrian and counsel for the defendant agreed that from that point forward, in an effort to promote judicial economy, a motion filed by one defendant automatically would be adopted by the other defendant, unless it was agreed otherwise. Therefore, although this particular motion was filed by counsel for Adrian, it necessarily was adopted by the defendant.
This claim is reviewable because it was preserved sufficiently by the defendant during pretrial proceedings by filing a motion for disclosure of Lee’s records, and through subsequent oral argument on that motion.
The Physicians’ Desk Reference (35th Ed. 1985) p. 1691, describes Thorazine, as a drug used in the “management of manifestations of psychotic disorders.”
Holeman testified that he had overheard the defendant state that, “his brother wouldn’t roll on him because he has two and he has one, meaning [Adrian] has two and [the defendant] says he has one.” When asked what the meaning of this was, Holeman stated that it is “street language,” for “bodies.”
An “ex parte proceeding” generally refers to a “judicial or quasi judicial hearing in which only one party is heard”; (emphasis added) Black’s Law Dictionary (6th Ed. 1990); and therefore usually does not include the situation where only a witness or the witness’ attorney is present. In the present case, we construe “party” broadly as “[a] person involved in a legal transaction or court proceeding.” Id. Therefore, in this opinion, we refer to the proceedings between the attorney for the state’s witness and the trial court as ex parte.
Section 1 of the fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .” The United States Supreme Court, in Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987), interpreted the fourteenth amendment to guarantee a defendant “the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” See also Snyder v. Massachusetts, 291 U.S. 97, 105-106, 54 S. Ct. 330, 78 L. Ed. 674 (1934) (concluding that due process clause provides defendant with right “to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge”).
See footnote 32 of this opinion for the relevant text of the sixth amendment to the United States constitution.
Canon 3 (a) (4) of the Code of Judicial Conduct provides in relevant part: “A judge shall not initiate, permit or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:
“(A) Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized; provided:
“(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and
“(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond. . . .”
The defendant also argues that the trial court’s ex parte hearings violated canon 3 (c) (1) of the Code of Judicial Conduct by demonstrating an appearance of impropriety. Because we conclude that the ex parte hearings were expressly authorized by law, in accordance with canon 3 (a) (4) (E), we need not address the defendant’s alternate claim. See Spears v. Garcia, 263 Conn. 22, 32, 818 A.2d 37 (2003) (statutes should be interpreted so as not to conflict); Nizzardo v. State Traffic Commission, 259 Conn. 131, 157, 788 A.2d 1158 (2002) (same); see also State v. Pare, 253 Conn. 611, 622, 755 A.2d 180 (2000) (principles of statutory construction apply to judicially enacted rules); Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984) (same).
General Statutes § 54-86c (b) provides: “Any state’s attorney, assistant state’s attorney or deputy assistant state’s attorney may request an ex parte in camera hearing before a judge, who shall not be the same judge who presides at the hearing of the criminal case if the case is tried to the court, to determine whether any material or information is exculpatory.”
The defendant contends that Judge Ford conducted a third proceeding with Reeve over the telephone. The record contains no reference to such a conversation, and therefore we address only the two instances reflected in the record.
The defendant further argues that he never had a realistic opportunity either to object to the ex parte hearings or to file a motion for recusal because he was not given notice of the hearings, nor did the court disclose the full content of these hearings or that there were transcripts of the proceedings. Therefore, the defendant argues that, when there was no meaningful opportunity to object at trial, it cannot reasonably be argued that the defendant has waived his right to raise the issue on appeal. Because we conclude that the issue is reviewable under the first two prongs of Golding, we need not address this argument.
Furthermore, because we conclude that any alleged impropriety was harmless, we need not address the defendant’s claim of plain error. See footnote 19 of this opinion.
See part II A of this opinion for a discussion of the requirements of Golding.
The defendant argues that the “[d]enial of the right to counsel, and to be present at [all critical stages of] trial” are of constitutional magnitude. We agree. See State v. Simino, 200 Conn. 113, 125, 509 A.2d 1039 (1986) (“[a] criminal defendant has a constitutional right to be present at all critical stages of his trial”); State v. Harman, 198 Conn. 124, 128 n.3, 502 A.2d 381 (1985) (stating that defendant’s right to assistance of counsel during all critical stages of trial involves fundamental constitutional right).
Because the defendant fails to provide any analysis to support, his claim of reviewability under the plain error doctrine, we decline to review it. See footnote 19 of this opinion.
See part II A of this opinion for a discussion of Golding and its requirements.
The defendant argues that due process requires that a judge possess neither actual nor apparent bias. We agree. See In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955) (absence of actual or probable impropriety by trial judge is basic requirement of due process); Petrowski v. Norwich Free Academy, 199 Conn. 231, 238, 506 A.2d 139, appeal dismissed, 479 U.S. 802, 107 S. Ct. 42, 93 L. Ed. 2d 5 (1986) (same).
The United States Supreme Court, in Kentucky v. Stincer, 482 U.S. 730, 740, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987), interpreted the confrontation clause of the sixth amendment to guarantee a defendant the right to be present at any stage of a trial where his or her exclusion would “[interfere] with his opportunity for effective cross-examination.”
See footnotes 4 and 14 of this opinion.
See footnote 9 of this opinion.
See footnote 15 of this opinion.
Practice Book § 42-45 provides: “The judicial authority shall declare a mistrial in any case in which the jury are unable to reach a verdict.”
Following its oral ruling on the state’s motion for a mistrial and motion for permission to appeal, the court issued a written memorandum of decision.
“Since it would be a useless procedure to remand this case to the trial court with direction to grant the state permission to appeal, we will address the remaining questions on appeal at this time.” State v. Bergin, supra, 214 Conn. 663 n.5; see also State v. Avcollie, supra, 174 Conn. 111-12.
The state makes four additional arguments in support of its claim regarding its motion for a mistrial. The state argues that: (1) the trial court improperly provided the jury with a revised verdict form that permitted it to respond that it “unanimously agree[d] that [it was] unable to unanimously agree” on the sentencing issues; (2) when the jury responded that it “unanimously agree[d] that [it was] unable to unanimously agree,” the trial court compounded its error by mislabeling this result as a “unanimous jury verdict”; (3) the trial court’s reliance on State v. Daniels, supra, 207 Conn. 374, to dismiss the penaltyphase proceedings was improperbecause, by sanctioning a court’s exercise of discretion pursuant to General Statutes § 54-56, Daniels violates the constitutional doctrine of separation of powers, as set forth in article second of the state constitution, as amended by article eighteen of the amendments, and therefore should be overruled; and (4) even if this court declines to overrule Daniels, the trial court abused its discretion when it dismissed the death penalty proceedings pursuant to § 54-56. Because we conclude that the trial court abused its discretion in denying the state’s motion for a mistrial on different grounds, we need not address the state’s additional arguments.
The state further argues that the trial court committed plain error by failing to instruct the jury properly that it must be unanimous with respect to any individual aggravating factor, as opposed to unanimously agreeing that at least one aggravating factor exists. Specifically, the state contends that such an instruction was “vital in a capital case so that this [c]ourt could review the sufficiency of the aggravating factors as required by ... § 53a-46b (b) (2).” We agree. Because we resolve this appeal in the state’s favor on alternate grounds, however, we need not further address the state’s claim of plain error.
See part IV A of this opinion for a more detailed discussion of State v. Daniels, supra, 207 Conn. 374.
We disagree with the characterization by Chief Justice Sullivan in his concurring and dissenting opinion of our use of Caldwell v. Mississippi, supra, 472 U.S. 320, as controlling on this matter. We recognize that Caldwell presented a different factual circumstance than the present case. We believe, however, that Caldwell is illustrative of the applicable law, namely that “[i]t is imperative . . . that the jury instructions in a capital case clearly and unequivocally explain to the jury that it is solely responsible for determining whether the defendant will receive the death penalty or, instead, a sentence of life imprisonment without the possibility of release.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Reynolds, supra, 264 Conn. 125.
See footnote 4 of this opinion for the relevant text of § 53a-46a (b).
The defendant further argues that “[o]ur legislature did not intend to authorize new penalty trials simply because a death-qualified jury could not agree that the defendant’s life should be spared.” The defendant, however, fails to provide any analysis to support this claim, and therefore we decline to review it. See footnote 21 of this opinion.
Public Act 03-154, § 1, was enacted in order to overrule our rejection of the plain meaning rule in State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003).
Although the Penal Code does not define “good cause,” General Statutes § 1-1, entitled “[wjords and phrases,” does provide in relevant part that “(a) [i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly. ...” Therefore, when a phrase previously has been defined by judicial opinion, the meaning “shall be construed and understood accordingly.” General Statutes § 1-1 (a).
Connecticut has a long history of requiring unanimity in jury verdicts, especially in capital sentencing cases. See State v. Gannon, supra, 75 Conn. 226-32 (tracing history of right to jury trial and unanimous verdicts). Furthermore, this court has stated that “[t]he heightened reliability demanded by the [ejighth [ajmendment in the determination whether the death penalty is appropriate; Sumner v. Shuman, 483 U.S. 66, 72, 107 S. Ct. 2716, 97 L. Ed. 2d 56 (1987); convinces us that jury unanimity is an especially important safeguard at a capital sentencing hearing.” (Internal quotation marks omitted.) State v. Daniels, supra, 207 Conn. 389.
Although the Daniels court did not explicitly address the issue of whether § 53a-46a (b) authorizes a retrial of the penalty phase of a capital case before a new jury when the first jury was discharged after being deadlocked, it implicitly did so in holding that in the event of a jury deadlock, “the trial court may, in the exercise of its discretion, grant a motion for mistrial”; State v. Daniels, supra, 207 Conn. 394; thereby allowing for the impaneling of a second jury to retry the penalty phase, absent double jeopardy concerns. Id., 394-95.
Daniels was decided in 1988. Since then, the legislature has amended § 53a-46a on three occasions. None of the amendments, however, has addressed the court’s conclusion in Daniels. See Public Acts 1993, No. 93-306, § 12 (amending subsection [h] to add as aggravating factor that defendant committed offense with assault weapon); Public Acts 1995, No. 95-19, § 1 (revising section to require, among other tilings, weighing of aggravating factors against mitigating factors in determining defendant’s sentence); and Public Acts 2001, No. 01-151, §§ 1 and 2 (amending subsection [h] to bar imposition of death sentence for mentally retarded defendants and subsection [i] to include additional aggravating factors).
Section 3593 of title 18 of the United States Code provides in relevant part: “(b) Hearing Before a Court or Jury.—If the attorney for the government has filed a notice as required under subsection (a) and the defendant is found guilty of or pleads guilty to an offense described in section 3591, the judge who presided at the trial or before whom the guilty plea was entered, or another judge if that, judge is unavailable, shall conduct a separate sentencing hearing to determine the punishment to be imposed. The hearing shall be conducted—
“(1) before the jury that, determined the defendant’s guilt;
“(2) before a jury impaneled for the purpose of the hearing if . . .
“(C) the jury that determined the defendant’s guilt was discharged for good cause . . . .”
The defendant argues that “[t]he two statutes descended directly from Senate Bill [No.] 1401, which was originally proposed in 1973,” and therefore should be read in a similar manner. Although it may be true that the same proposed federal bill originally served as a model for both the federal and Connecticut death penalty statutes, current differences in their respective texts are so numerous as to render the analogy unworkable in the present context.
The state argues that the defendant was the principal, rather than an accessory, in two aggravating factors in violation of General Statutes (Rev. to 1997) § 53a-46a (i) (5), namely, the procuring of the murders of Brown and Clarke by payment of crack to Lee and money to Gamer, and, therefore, the defendant’s accessorial liability claims provided no impediment to the trial court presenting these aggravating factors to the jury. Because we conclude that the defendant’s arguments concerning the application of accessorial liability in proving aggravating factors lack merit, we need not
General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
General Statutes (Rev. to 1997) § 53a-46a (i) provides: “The aggravating factors to be considered shall be limited to the following: (1) The defendant committed the offense during the commission or attempted commission of, or during the immediate flight from the commission or attempted commission of, a felony and he had previously been convicted of the same felony; or (2) the defendant committed the offense after having been convicted of two or more state offenses or two or more federal offenses or of one or more state offenses and one or more federal offenses for each of which a penalty of more than one year imprisonment may be imposed, which offenses were committed on different occasions and which involved the infliction of serious bodily ipjury upon another person; or (3) the defendant committed the offense and in such commission knowingly created a grave risk of death to another person in addition to the victim of the offense; or (4) the defendant committed the offense in an especially heinous, cruel or depraved manner; or (5) the defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value; or (6) the defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value; or (7) the defendant committed the offense with an assault weapon, as defined in section 53-202a.”
We reference herein the 1997 revision of § 53a-46a (i) due to the fact that the defendant’s activities in furtherance of his conspiracy to commit the murders of Brown and Clarke began in 1998 and continued into January, 1999, when the murders were committed. We also note that the 1997 and 1999 revisions of the statute are identical. In 2001, subsequent to the proceedings in the present case, an eighth aggravating factor was added to § 53a-46a (i). See Public Acts 2001, No. 01-151, § 1.
The eighth amendment to the United States constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” It was made applicable to the states through the due process clause of the fourteenth amendment to the United
The defendant also argues that the use of accessorial liability to prove an aggravating factor violates a similar provision of our state constitution. The defendant, however, fails to provide independent analysis under the state constitution and, therefore, we confine our analysis to the issue raised under the federal constitution. See State v. Rizzo, supra, 266 Conn. 243 n.40.
General Statutes § 53a-24 (a) provides in relevant part: “The term ‘offense’ means any crime or violation which constitutes a breach of any law of Ibis state or any other state, federal law or local law or ordinance of a political subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction. The term ‘crime’ comprises felonies and misdemeanors. Every offense which is not a ‘crime’ is a ‘violation’. . . .”
General Statutes § 53-202k provides: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”
General Statutes § 53a-46a (f) provides: “If the jury or, if there is no jury, the court finds that (1) none of the factors set forth in subsection (h) exist, (2) one or more of the aggravating factors set forth in subsection (i) exist and (3) (A) no mitigating factor exists or (B) one or more mitigating factors exist but are outweighed by one or more aggravating factors set forth in subsection (i), the court shall sentence the defendant to death.”
Subsection (i) of § 53a-46a enumerates the aggravating factors to be considered. See footnote 77 of this opinion.
The defendant also argues that “[w]here the aggravating factor relies on the record or status of the killer, [namely § 53a-46a (i) (1) and (2)] the legislature clearly never envisioned that accomplice liability would apply,” because doing so would produce “bizarre, absurd and unworkable results.” Because the state has not asserted that § 53a-46a (i) (1) and (2) applied to the defendant, we need not decide whether aggravating factors relying upon the record or the status of a person accused of murder may be proven through principles of accessorial liability. See State v. Coltherst, supra, 263 Conn. 502.
See footnote 77 of this opinion for the full text of General Statutes (Rev. to 1997) § 53a-46a (i).
The defendant further argues that, “[t]he use of accessorial liability to prove an aggravating factor results in overly broad aggravating factors that violate the eighth amendment vagueness doctrine.” The defendant, however, fails to brief this claim adequately and, therefore, we decline to review it. See footnote 21 of this opinion.
Similar to our death penalty statute, “Arizona law . . . [then] provided for a capital sentencing proceeding, to be conducted without a jury, to determine whether the crime was sufficiently aggravated to warrant the imposition of death sentence. Ariz. Rev. Stat. Ann. § 13-454 (A) (Supp. 1973) (repealed 1978).” Tison v. Arizona, supra, 481 U.S. 142.
Article 1257 of the Texas Penal Code Annotated (1973), prescribed the punishment for murder as follows: “(a) Except as provided in subsection (b) of this Article, the punishment for murder shall be confinement in the penitentiary for life or for any term of years not less than two.
“(b) The punishment for murder with malice aforethought shall be death or imprisonment for life if:
“(1) the person murdered a peace officer or fireman who was acting in the lawful discharge of an official duty and who the defendant knew was a peace officer or fireman;
“(2) the person intentionally committed the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, forcible rape, or arson;
“(3) the person committed the murder for remuneration or the promise of remuneration or employed another to commit the murder for remuneration or the promise of remuneration;
“(4) the person committed the murder while escaping or attempting to escape from a penal institution;
“(5) the person, while incarcerated in a penal institution, murdered another who was employed in the operation of the penal institution.
“(c) If the jury does not find beyond a reasonable doubt that the murder was committed under one of the circumstances or conditions enumerated in Subsection (b) of this Article, the defendant may be convicted of murder, with or without malice, under Subsection (a) of this Article or of any other lesser included offense.” (Internal quotation marks omitted.) Jurek v. Texas, supra, 428 U.S. 265-66 n.1.
Other federal and state courts have applied criteria similar to those espoused in Tison to affirm the application of accessorial liability in proving aggravating factors. See White v. Wainwright, 809 F.2d 1478, 1484 (11th Cir. 1987) (death penalty upheld even though defendant was nonshooter because defendant contemplated lethal force and actively participated in activities that culminated in victim’s death); Ross v. Kemp, 756 F.2d 1483, 1489 (11th Cir. 1985) (en banc) (same); Haney v. State, 603 So. 2d 368, 386-87 (Ala. Crim. App. 1991) (concluding that application of aggravating factors justified even though defendant was not present when killing occurred because defendant fulfilled Tison factors); Ex parte Bankhead, 585 So. 2d 112, 125 (Ala. 1991) (“heinous, atrocious or cruel” aggravating factor upheld based on manner of killing and not on defendant’s actual participation); Owens v. State, 13 S.W.3d 742, 762 (Tenn. Crim. App. 1999) (vicarious application of “heinous, atrocious and cruel” aggravating factor upheld because defendant was major participant in crime and evidenced reckless indifference); but see Omelus v. State, 584 So. 2d 563, 566 (Fla. 1991)
The trial court instructed the jury that it was to consider principles of conspiratorial liability in its deliberations, stating that “one who conspires with another is responsible as though they committed the acts in furtherance of the conspiracy where they are committed for the purpose of enhancing or facilitating the object of the conspiracy and it is done knowingly by the parties who are subject to the agreement that a crime be committed.” The court, however, failed to instruct the jury specifically on Pinkerton liability by neglecting to charge that, in addition to the previously cited language, the jury also must find that the acts of the coconspirator were “reasonably foreseen as a necessary or natural consequence of the [conspiracy]. ” Pinkerton v. United States, supra, 328 U.S. 648; State v. Diaz, supra, 237 Conn. 526. Although we do not conclude that a court must use this exact language to effectuate aproperPm/cerion. instruction, we do conclude that the instruction must be sufficiently correct in law for the jury to understand its responsi
Concurring in Part
concurring in part and dissenting in part. I agree with parts I and II of the majority opinion, which address the defendant’s appeal. With respect to part III of the majority opinion, which addresses the
I
The majority first asserts that the court’s statements are grounds for a mistrial because they led the jury to
In Caldwell v. Mississippi, supra, 472 U.S. 324, defense counsel, during closing argument, spoke of the jury’s awesome responsibility in deciding whether the defendant would live or die. The prosecutor, in response, argued that the defense inappropriately had suggested that the jury was solely responsible for its decision. Id., 325. The prosecutor further stated that the jury’s decision was not “the final decision”; id.; because it was reviewable automatically by the Mississippi Supreme Court. Id., 325-26. On appeal, the United States Supreme Court concluded that the prosecutor’s comments had violated the defendant’s eighth amendment right to reliable imposition of the death penalty because “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” (Emphasis added.) Id., 328-29.
In the present case, the death penalty was not imposed. Thus, the Caldwell court’s concerns with respect to the reliable imposition of the death penalty
Moreover, the Caldwell court was particularly concerned with the bias in favor of the death sentence created by the prosecutor’s comments.
The majority also asserts that the court’s statements are grounds for a mistrial because they gave the jurors in favor of a life sentence an incentive to cut deliberations short, thereby increasing the likelihood that the jury would remain deadlocked. I conclude that the state was not prejudiced by the court’s statements.
Accordingly, I conclude that the court’s statements to the jury did not create circumstances such that the court’s denial of the state’s motion for a mistrial constituted a manifest abuse of discretion.
II
I, therefore, would reach the state’s claim that the court abused its discretion by denying its motion for mistrial and by dismissing the proceedings pursuant to General Statutes § 54-56. The defendant claims that the court did not abuse its discretion when it dismissed the proceedings, and, in the alternative, that the court was not dismissing the proceedings pursuant to § 54-56, but, rather, was acquitting the defendant pursuant to Practice Book § 42-40 or § 42-50. Having carefully reviewed the record, I believe that it is simply unclear whether the court was acquitting the defendant or dismissing the case. Accordingly, bearing in mind the double jeopardy concerns with respect to acquittal, I would remand the case for further articulation.
The following additional facts and procedural history are necessary for the resolution of this issue. Immediately after the court ordered the jury’s special verdict accepted and recorded, the state made an oral motion for a mistrial pursuant to Practice Book § 42-45. The state argued that a mistrial was necessary because the jury was deadlocked, but the court denied the state’s motion. The state then asked for permission to appeal, and the court reserved ruling on the issue until the day of sentencing.
At the sentencing hearing, the court denied the state’s motion for permission to appeal and reiterated its asser
In a subsequent memorandum of decision on the court’s denial of the motion for permission to appeal, the court further articulated its reasons for denying the state’s motion for a mistrial. The court first noted that it could take one of three courses of action in response to the jury’s inability to agree, pursuant to State v. Daniels, 207 Conn. 374, 394-97, 542 A.2d 306 (1988). Specifically, the court stated that it could: “(1) declare a mistrial; (2) make factual findings ‘acquitting’ the defendant of the death penalty; or (3) exercise its discretion pursuant to General Statutes § 54-56 to dismiss the death penalty proceedings.” The court then stated: “Because the jury was unable to unanimously agree as to whether the proved aggravating factor or factors outweighed the proved mitigating factor or factors, the court found that the state failed to sustain its burden of proof. Anything beyond this conclusion is mere speculation. Indeed, the verdict, as exemplified by the questions posed by the jury and the formulation of the special verdict form, which was accepted by both the state and the defendant, indicates that the state was unable to overcome the mitigating factor or factors found by the jury. Consequently, the court, exercising its discretion, denied the state’s motion for a mistrial
In State v. Daniels, supra, 207 Conn. 380-81, the court imposed a life sentence after the jury could not unanimously agree as to the presence or absence of a mitigating factor. On appeal, after determining that the court had three options for disposing of the case after the jury deadlocked (acquit, dismiss or declare a mistrial), this court concluded that the record was ambiguous as to which action the court had taken and why. Id., 401-403. We could not ascertain whether the court acquitted the defendant on the basis of its assessment of the facts or imposed a life sentence because it thought it was required to do so. Id., 402. We refused to entertain the state’s remaining claims because, in the event that the court’s imposition of a life sentence constituted an acquittal, further review of the state’s claim would have been barred by double jeopardy. Id. “If the trial court’s imposition of a life sentence amounts to an ‘acquittal’ of the death penalty then double jeopardy bars a second capital sentencing proceeding.” Id., 398. The effect of an acquittal is particularly important in the context of the state’s claim that the court imposed a life sentence on the basis of erroneous legal conclusions, because, “[t]he fact that an acquittal is based in whole or in part on an erroneous construction of the governing law is of no import. That fact affects the accuracy of that determination, but it does not alter its essential character.” (Internal quotation marks omitted.) Id., 399.
Accordingly, I respectfully dissent.
KATZ, J., with whom NORCOTT, J., joins, dissenting. Adhering to my view that the death penalty is, in all circumstances, cruel and unusual punishment prohibited by the constitution, I reaffirm my position that our “society should not have the authority to sustain an institution the nature of which is to destroy its own members. If our status as moral creatures is to survive, the termination of our ability to accomplish a deliberate institutionalized method of execution heads my list of desiderata for this society.” State v. Webb, 252 Conn. 128, 150, 750 A.2d 448 (Katz, J., dissenting), cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000).
As I have stated before, the issue “is not whether the defendant. . . has the right to life, but whether we as a society have the right to kill. ” Id. Certainly the defendant who has committed such hideous atrocities did not have that right. His acts of violence, however, do not
I also agree with former Justice Berdon and Justice Norcott, both of whom, in separate dissenting opinions, have expressed their opposition to the death penalty because it allows for arbitrariness and racial discrimination in the determination of who shall live or die at the hands of the state. See State v. Cobb, 251 Conn. 285, 530-36, 545-48, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000). In the years following the United States Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), serious efforts were made to comply with its mandate, and legislatures and appellate courts struggled to provide judges and juries with sensible and objective guidelines for determining life and death. We have attempted to define who is “deserving” of the death penalty through the use of carefully chosen adjectives, reserving the death penalty for the “worst of the worst.” But the Furman promise of consistency and the requirement of individualized sentencing; see Lockett v. Ohio, 438 U.S. 586, 605, 98 S. Ct. 2954, 57 L.
Furthermore, even under the most sophisticated death penalty statutes, race continues to play a major role. We have not eliminated the biases and prejudices that infect society generally; therefore, it should not be suiprising that such problems continue to influence the determination of who is sentenced to death, even within the narrower pool of death-eligible defendants selected according to so-called objective standards. Finally, even the most sophisticated death penalty schemes are unable to prevent human error from condemning the innocent. Innocent persons have been executed. See H. Bedau & M. Radelet, “Miscarriages of Justice in Potentially Capital Cases,” 40 Stan. L. Rev. 21, 36 (1987).
Accordingly, I respectfully dissent because to do otherwise would perpetuate yet another killing, sadly this one state sponsored.
The majority notes two problematic statements made to the jury. “If you continue to deliberate on this issue and at the final analysis you are not able to agree, then you report that, and in that event your deliberations would cease and by your action I would be required to impose a sentence of life without the benefit of release.” “I’ve already told you, if you cannot agree, then I will impose a sentence which is in accord with the inability of the state to satisfy the burden of proof beyond all reasonable doubt in respect to the aggravating factor and your consideration of the mitigating factor.”
General Statutes § 54-56 provides: “All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and ciiminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.”
Practice Book § 42-40 provides in relevant part: “After the close of the prosecution’s case in chief or at the close of all the evidence, upon motion of the defendant or upon its own motion, the judicial authority shall order the entry of a judgment of acquittal as to any principal offense charged and as to any lesser included offense for which the evidence would not reasonably permit a finding of guilty. Such judgment of acquittal shall not apply to any lesser included offense for which the evidence would reasonably permit a finding of guilty.”
Of the six Connecticut Supreme Court cases that have mentioned Caldwell, all are cases in which the defendant has been sentenced to death. State v. Ross, 269 Conn. 213, 344 n.79, 849 A.2d 648 (2004); State v. Rizzo, 266 Conn. 171, 228, 833 A.2d 363 (2003); State v. Reynolds, 264 Conn. 1, 123, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004); State v. Cobb, 251 Conn. 285, 454, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); State v. Breton, 235 Conn. 206, 245, 663 A.2d 1026 (1995); State v. Ross, 230 Conn. 183, 230, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995).
The United States Supreme Court stated that “there are specific reasons to fear substantial unreliability as well as bias in favor of death sentences when there are state-induced suggestions that the sentencing jury may shift its sense of responsibility to an appellate court.” Caldwell v. Mississippi, supra, 472 U.S. 330. The court gave four reasons for its concerns. First, it noted that “[b]ias against the defendant clearly stems from the institutional limits on what an appellate court can do . . . .” Id. Second, prosecutorial argument of this nature “presents an intolerable danger of bias toward a
The majority relies on State v. Sawyer, 227 Conn. 566, 579, 630 A.2d 1064 (1993), for the novel proposition that “ ‘[t]he state . . . has a substantial interest, namely, its interest in securing a [determination of the imposition of the death penalty]’ through the jury’s thoughtful deliberation to a unanimous verdict.” This court stated in Sawyer. “The state also has a substantial interest, namely, its interest in securing a conviction on the most serious charge that the evidence will reasonably support.” Id.
The court apparently did not find that the jury was deadlocked. The court stated: “I don’t find the juiy hung in your language. I find that they intelligently answered the question posed to them [on the revised verdict form] that they were unanimous in their ability to determine that they unanimously agreed they could not agree on the proof of the mitigating factor. ... So I believe the case is over from that point of view .... [The jury] did their job, their sworn duty to determine whether or not the state has met its burden, and they found that they could not do that. That’s not hung; that’s a determination by the numbers allowed that the overwhelming evidence of the mitigating factor did not fail to rise to a level in the minds of one or more that outweighed the aggravating factor.”
The court stated: “[T]he court finds that the state failed to sustain its burden of proof.”
Reference
- Full Case Name
- State of Connecticut v. Russell Peeler
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- 157 cases
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- Published