DocketNumber： SC 14801
Citation Numbers： 253 Conn. 1, 751 A.2d 298, 2000 Conn. LEXIS 144
Judges： Foti, Katz, McDonald, Schaller
Filed Date： 5/2/2000
Status： Precedential
Modified Date： 11/3/2024
Opinion
The defendant, Terry D. Johnson, was charged with: one count of murder and felony murder in violation of General Statutes §§ 53a-54a and ñSa-ñác;
After the defendant’s guilty plea, a separate sentencing hearing was conducted pursuant to General Statutes (Rev. to 1991) § 53a-46a
The defendant raises twenty-eight issues on appeal. Because we reverse the judgment imposing the death penalty, we need decide only five of those issues: three addressed to the defendant’s guilty plea, one challenging the sufficiency of the evidence of the aggravating
We first address the defendant’s claim that the trial court improperly denied his motions for a competency examination, pursuant to General Statutes (Rev. to 1991) § 54-56d,
The record reveals the following relevant facts. The guilt phase of the defendant’s trial commenced on December 10, 1992, before the trial court. At the start of the proceedings, defense counsel moved for a competency examination of the defendant, pursuant to § 54-56d (c), citing, as the basis of the motion, a letter received from David M. Mantell, a clinical psychologist hired by the defense, which raised concerns about the defendant’s mental competence. The relevant portions of Mantell’s December 9, 1992 letter provided: “During my first examination of [the defendant] on [November 25, 1992] but particularly during [further examination] this morning and this afternoon, I have found symptomatic evidence of psychotic thought process which, if validated, may severely impact on [his] present legal competence.” Defense counsel argued that these concerns required the trial court to halt the guilt phase of the proceedings until completion of a competency examination and determination.
The trial court denied the defendant’s motion for a competency examination, citing the adequacy of a
Immediately after the court’s ruling on the defendant’s motion for a competency examination, the defendant pleaded guilty.
At the conclusion of the canvass, the trial court asked both the state and defense counsel whether they wanted the court to include any additional questions in the canvass. The state requested that the court ask the
Defense counsel also moved for a competency examination on two subsequent occasions. On March 3,1993, during argument on the state’s motion to change psychiatrists, defense counsel noted that the defendant had declined to come to court that day and expressed concern regarding the defendant’s medications and demeanor. Relying on these observations, defense counsel moved for a competency evaluation for the second time.
Defense counsel asserted that the trial court had incorrectly stated the evidentiary burden contained in § 54-56d. Defense counsel argued that the clear and convincing standard, cited by the court, did not apply to a request for a competency heating but, rather, applied only at a later stage when proving the defendant’s incompetence. Other than noting the defendant’s exception, the trial court did not respond to these arguments.
When the proceedings resumed the following day, the trial court noted the defendant’s absence. Defense counsel explained that the defendant was upset and again had declined to attend the proceedings. Additionally, defense counsel reiterated their concerns regarding the defendant’s mental state and again requested a competency evaluation.
Several days later, on March 9,1993, defense counsel again raised the issue of the defendant’s mental competence. During argument on the state’s motions for disclosure and production, defense counsel repeated their concerns about the defendant’s medications and his resulting mental state.
The defendant argues that the trial court’s denial of his motions for a competency hearing deprived him of his due process rights under the state and federal constitutions and his rights pursuant to § 54-56d. The defendant contends that, procedurally, the trial court improperly applied a clear and convincing evidentiary standard to the defendant’s requests for a competency hearing pursuant to § 54-56d. Additionally, the defendant claims that the trial court deprived him of his substantive due process rights because defense counsel had presented substantial evidence that the defendant was incompetent to stand trial.
The state agrees, in both its brief and at oral argument, that the trial court incorrectly required clear and convincing proof of incompetency as a prerequisite to granting a competency hearing. The state asserts, however, that despite this impropriety, the defendant presented insufficient evidence of incompetency, and that the trial court’s subsequent canvass of the defendant
We begin with the undisputed principle that the guilty plea and subsequent conviction of “an accused person who is not legally competent to stand trial violates the due process of law guaranteed by the state and federal constitutions. Conn. Const., art. I, § 8; U.S. Const., amend. XIV, § 1; see Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966).”
“[A] defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.” General Statutes (Rev. to 1991) § 54-56d (a). This statutory definition mirrors the federal
Although § 54-56d (b) presumes the competency of defendants, “when a reasonable doubt concerning the defendant’s competency is raised, the trial court must order a competency examination.” State v. Wolff, supra, 237 Conn. 666. Thus, “[a]s a matter of due process, the trial court is required to conduct an independent inquiry into the defendant’s competence whenever he makes specific factual allegations that, if true, would constitute substantial evidence of mental impairment. Sanders v. United States, 373 U.S. 1, 21, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). Substantial evidence is a term of art. Evidence encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is substantial if it raises a reasonable doubt about the defendant’s competency .... Moore v. United States, 464 F.2d 663, 666 (9th Cir. 1972). State v. Watson, [198 Conn. 598, 605, 504 A.2d 497 (1986)]; see Pate v. Robinson, [supra, 383 U.S.
A
We first examine the defendant’s claim that the trial court improperly required clear and convincing evidence of incompetency before granting an examination under § 54-56d. We agree with the defendant and the state that the trial court evaluated the defendant’s requests for a competency hearing under an incorrect standard and, under the appropriate standard, should have granted the defendant’s motions for a competency evaluation.
Section 54-56d establishes the procedural requirements for competency determinations. A court may undertake a competency examination upon a motion by the defendant or the state and in some circumstances must evaluate the defendant’s competency sua sponte. General Statutes (Rev. to 1991) § 54-56d (c); see Pate v. Robinson, supra, 383 U.S. 385 (court must initiate hearing when aware of facts creating reasonable doubt as to defendant’s competence); State v. Gonzalez, supra, 205 Conn. 686 (“ ‘independent judicial inquiry’ ” required in some circumstances). “If the court finds
Although we agree that generally the discretion to grant a competency hearing lies with the trial court; State v. Wolff, supra, 237 Conn. 664 (decision to grant competency hearing requires exercise of sound judicial discretion); we conclude that, in the present case, the trial court improperly required the defendant to provide clear and convincing evidence of incompetency in his motion for a competency evaluation. Additionally,
In denying the defendant’s initial motion for a competency evaluation, the trial court stated that “[t]he burden provided by subsection (b) [of § 54-56d] is that the burden rests upon the defendant to prove by clear and convincing evidence that he is not competent.” The trial court, however, applied subsection (b) of the statute at the incorrect time in the proceedings and thereby inaccurately stated the evidentiary burden required to satisfy subsection (d).
Section 54-56d (b), which provides the standard that a moving party must meet for proof of incompetency, applies only after a trial court has granted a motion for a competency evaluation or has undertaken an evaluation sua sponte. In deciding whether to grant a motion for a competency examination, the trial court is governed by the provisions contained in subsections (c) and (d) of § 54-56d. Far from requiring a moving party initially to provide clear and convincing evidence of the defendant’s incompetency, these provisions state that if it “appears” that the defendant is not competent, and if the trial court finds that a request for a competency evaluation is “justified,” the court must order a competency examination. We have interpreted this standard as requiring a competency evaluation any time a reasonable doubt is raised regarding the defendant’s competency. See State v. DesLaurier, supra, 230 Conn. 589-90 n.12.
Essentially, in denying the defendant’s request for a competency evaluation, the trial court would have had to conclude that no reasonable doubt existed regarding the defendant’s competency. Our review of the record reveals that Mantell’s letter and defense counsel’s concerns about the defendant’s demeanor and medications
B
Having determined that the trial court improperly denied the defendant’s motions for a competency examination, we next address whether that denial deprived the defendant of substantive due process because he was incompetent to stand trial. Because we conclude that in accepting the defendant’s guilty plea, the trial court implicitly found him competent, and because our own review of the record demonstrates that this finding was not an abuse of discretion, the trial court’s failure to provide a competency evaluation did not deprive the defendant of due process under the state or federal constitutions. Accordingly, we conclude that the impropriety of the trial court’s failure to order a competency evaluation was harmless.
The following facts are relevant to our discussion of this issue. Immediately following the defendant’s first motion for a competency evaluation, the trial court conducted a canvass of the defendant for purposes of his guilty plea. The trial court’s canvass consisted of detailed questions contained in approximately thirty pages of the printed transcript. The trial court questioned the defendant extensively regarding his understanding of the charges against him, his comprehension of the potential penalties he faced by pleading guilty, the constitutional rights he waived by pleading guilty, and whether he made the plea voluntarily and free from
The United States Supreme Court in Godinez v. Moran, 509 U.S. 389, 399, 113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993), established that, for federal constitutional purposes, the standard of competency required to stand trial is the same as the degree of competency required to plead guilty or to waive the right to counsel.
Additionally, prior to Godinez, in Myers v. Manson, 192 Conn. 383, 389-90, 472 A.2d 759 (1984), this court
In the present case, the canvass of the defendant amply supports the trial court’s finding that the defendant was competent to plead guilty.
Applying the Godinez principles to the present case, the same measure of competency applied at the time
C
The defendant also argues that the trial court’s denial of his two subsequent motions for a competency examination and its failure to order a competency examination sua sponte when defense counsel raised the issue on a fourth occasion deprived him of due process because he was incompetent to stand trial. We conclude that the defendant was competent to stand trial on those later occasions.
As explained previously, the defendant was competent when he pleaded guilty. Less than three months passed between the defendant’s guilty plea and his second motion for a competency evaluation. Defense counsel based the later motions for a competency examination on changes in the defendant’s demeanor, an increase in medication and his refusal to attend court proceedings. Although defense counsel’s concerns are an important indicator of a defendant’s incompetency, we do not find that the factors cited by defense counsel here established the defendant’s incompetency. Again,
Similarly, the trial court did not abuse its discretion on March 4,1993, when it denied defense counsel’s third motion for a competency evaluation. On that occasion, defense counsel reiterated their concerns regarding the defendant’s medications and indicated that the defendant again had refused to attend court proceedings. The record shows that the defendant’s refusal to come to court stemmed from his anger with defense counsel’s alleged failure to keep a promise rather than from the defendant’s incompetency. The defendant’s dissatisfaction with defense counsel does not indicate his incompetency. See State v. Johnson, 22 Conn. App. 477, 489, 578 A.2d 1085, cert. denied, 216 Conn. 817, 580 A.2d 63 (1990) (defendant’s “obstreperous, uncooperative or belligerent behavior” including refusal to return to court and hostility toward attorney did not necessarily indicate defendant’s incompetency); Commonwealth v. Logan, 519 Pa. 607, 623-24, 549 A.2d 531 (1988) (refusal to cooperate with defense strategy and display of childish behavior at trial does not necessarily constitute incompetence). Although defense counsel stated that the defendant’s medications may have caused his refusal to cooperate with counsel, the record demonstrates that the medications did not interfere with his ability to consult with defense counsel or to assist in his defense. See United States v. Caldwell, 543 F.2d 1333, 1349 n.70 (D.C. Cir. 1974), cert. denied, 423 U.S.
Finally, the record reveals that the defendant was competent when defense counsel raised the competency issue for the fourth and final time on March 9, 1993. On that occasion, defense counsel simply mentioned the issue of competency in the context of a discussion regarding a change of psychiatrists and the release of medical records. Defense counsel did not make a motion, pursuant to § 54-56d, for a competency evaluation. The trial court did not respond to defense counsel’s comments and defense counsel did not raise the issue thereafter. Again, defense counsel made no specific reference as to why he felt that the defendant was incompetent and, therefore, unable to assist counsel.
D
Because we conclude that in accepting the defendant’s guilty plea, the trial court implicitly found him competent, and because our own review of the record demonstrates that this finding was not an abuse of discretion, the trial court’s failure to provide a competency evaluation did not deprive the defendant of due process under the state or federal constitutions. Accordingly, we conclude that the impropriety of the trial court’s failure to order a competency evaluation was harmless.
II
We next address the defendant’s claim that the trial court improperly accepted his plea of guilty in violation
A
First, we review the defendant’s assertion that he did not understand the law in relation to the facts and,
Before addressing the defendant’s claims, we review the well established standards for valid guilty pleas. It is axiomatic that “[u]nless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983); see McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); State v. Lopez, 197 Conn. 337, 341, 497 A.2d 390 (1985). When a defendant pleads guilty, he waives important fundamental constitutional rights, including the privilege against self-incrimination, the right to a jury trial, and the right to confront his accusers. . . . These considerations demand the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and its consequences. Boykin v. Alabama, [395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)]. State v. Childree, supra, 120.
“We, therefore, require the trial court affirmatively to clarity on the record that the defendant’s guilty plea was made intelligently and voluntarily. State v. Childree, supra, 189 Conn. 120. In order to make a knowing and voluntary choice, the defendant must possess an understanding of the law in relation to the facts, including all relevant information concerning the sentence. State v. Collins, 176 Conn. 7, 9, 404 A.2d 871 (1978). ... A determination as to whether a plea has been knowingly and voluntarily entered entails an
1
The defendant first claims that due to the complex and confusing nature of the information he did not understand the law in relation to the facts of the case.
The defendant also argues that count two was confusing and, therefore, jeopardized his understanding of the
The defendant correctly concludes that felony murder may not serve as a predicate offense for a capital felony charge under § 53a-54b. State v. Harrell, 238 Conn. 828, 831-39, 681 A.2d 944 (1996). The inclusion, however, of the capital felony charge based on felony murder did not render the defendant’s plea unknowing, involuntary or unintelligent. Despite the fact that the capital felony charge predicated on felony murder was invalid, the defendant nonetheless pleaded guilty to an additional capital felony charge predicated on murder pursuant to § 53a-54a. Thus, by pleading guilty to a second capital felony charge the defendant faced either life imprisonment without the possibility of release or the death penalty regardless of the validity of his plea to the felony murder based capital felony. Accordingly, the exclusion of the felony murder based capital felony charge would not have affected the defendant’s decision to plead guilty because he faced the same penalty regardless of the inclusion of that charge.
Additionally, the canvass reveals that the defendant clearly understood the potential penalties for a capital felony conviction. When the trial court asked him
The defendant also alleges that he did not understand the law of the crimes charged in relation to the facts of his case because the trial court did not read to him that portion of the capital felony statute containing the requirement that the victim was “acting within the scope of his duties . . . .” General Statutes (Rev. to 1991) § 53a-54b (1). The defendant argues that the scope of duty element was critical to his understanding of the capital felony charge and that it is not appropriate, in these circumstances, to presume that defense counsel provided an adequate explanation of the charge. We disagree.
We begin by reiterating that “the [defendant’s] plea could not be voluntary in the sense that it constituted an intelligent admission that he committed the offense unless the defendant received real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.” (Internal quotation marks omitted.) Henderson v. Morgan, 426 U.S. 637, 645, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976); see also Paulsen v. Manson, 203 Conn. 484, 490, 525 A.2d 1315 (1987); State v. Eason, 192 Conn. 37, 43-44, 470 A.2d 688 (1984), overruled in part on other grounds, Paulsen v. Manson, supra, 491. However, “[w]e recognize that Henderson . . . falls short of announcing a per se rule that notice of the true nature of a charge always requires a description of every element of the offense. . . . The trial court’s failure to explicate an element renders the plea invalid only where the omitted element is a critical one . . . and only where it is not appropriate to presume that defense counsel has explained the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” (Citations omitted.) State v. Childree, supra, 189 Conn. 123; see also Oppel v. Lopes, 200 Conn. 553, 558, 512 A.2d 888 (1986).
Our careful review of the record reveals that the defendant acquired knowledge of the scope of duty element from sources other than the trial court’s explanation of the charge. First, the information expressly contained the scope of duty element.
Furthermore, during the canvass the defendant repeatedly stated that defense counsel had explained § 53a-54b (1) to him. The trial court specifically asked the defendant whether defense counsel had “read [the capital felony] statute to you or have you read the statute prior to your guilty plea?” The defendant responded, “I have reviewed that with my attorneys and I stand by my plea of guilty as to that point.” Thereafter, when the trial court asked the defendant whether defense counsel had read him the penalty portion of § 53a-54b, he responded that “[m]y attorneys have read me all the statutes.” (Emphasis added.) See Bowers v. Warden, 19 Conn. App. 440, 443, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989) (trial court may rely on defendant’s responses during plea canvass in deciding he was informed adequately of elements of charged offenses). Moreover, later in the canvass, the defendant indicated that he had reviewed his plea with defense counsel for at least one entire day.
On the basis of the foregoing, we conclude that the defendant had been adequately apprised of the scope of duty element in § 53a-54b (1).
The defendant also briefly argues that he was confused about the potential sentencing consequences of his guilty plea. The defendant cites his erroneous responses to several of the trial court’s questions regarding the penalties for particular charges.
We conclude that the defendant was informed adequately of the potential sentencing possibilities and, therefore, that his plea was knowingly made. At several points during the canvass, the defendant corrected himself after initially providing an inaccurate answer regarding the sentencing possibilities. Additionally, the trial court corrected the errors in the defendant’s responses, thus informing him of the correct penalties. Furthermore, the defendant expressly stated that defense counsel had read to him the portions of the statutes pertaining to penalties and had informed him of the potential penalties, including the death penalty, that he faced as a result of his guilty plea. See id., 444 (finding that defendant was aware of potential penalties through defense counsel’s and trial court’s explanations). Thus, the defendant knew the potential penalties and his guilty plea was knowingly and intelligently made.
4
Finally, the defendant claims that his guilty plea was not knowing or voluntary because he did not clearly understand that a guilty plea waives all nonjurisdic-tional defects. Specifically, the defendant asserts that although the trial court provided defense counsel with an opportunity to explain the waiver rule to the defendant during the canvass, the record does not establish exactly what defense counsel instructed on this issue.
It is well established that a voluntary and intelligent guilty plea operates as a waiver of all nonjurisdictionai defects. See State v. Reddick, 224 Conn. 445, 451, 619 A.2d 453 (1993); State v. Suggs, 194 Conn. 223, 227, 478 A.2d 1008 (1984); Cajigas v. Warden, 179 Conn. 78, 81, 425 A.2d 571 (1979). “It is [however] not necessary for the trial court to canvass the defendant to determine that [he] understands that [his] plea of guilty or nolo contendere operates as a waiver of any challenge to pretrial proceedings.” State v. Gilnite, 202 Conn. 369, 383-84, 521 A.2d 547 (1987).
Accordingly, the defendant’s claim that his guilty plea was not made knowingly or intelligently is without merit. Although it was not required to do so, the trial court specifically asked the defendant whether he understood that his guilty plea waived his right to appeal all nonjurisdictionai defects of the conviction. Moreover, when the defendant responded in the negative, the trial court halted the proceedings and permitted defense counsel to meet with the defendant and explain to him the waiver doctrine.
B
We next address the defendant’s claim that the trial court’s canvass failed to comply substantially with the requirements of Practice Book §§ 39-19 and 39-20.
1
The defendant first contends that the trial court failed to ensure that he understood “[t]he nature of the charge to which the plea is offered” as required by § 39-19 (1). In support of his claim, the defendant repeats the arguments set forth in his constitutional challenge to his guilty plea, specifically, that: (1) the charging document
As we have concluded previously, the defendant’s guilty plea was made with knowledge of the charges to which the plea was offered and in accordance with the standards for due process. See part II A of this opinion. Any failure by the trial court to comply strictly with the relevant Practice Book requirements did not affect the defendant’s ability to make a fully informed and voluntary plea decision.
2
The defendant also maintains that the trial court violated § 39-19 (2) and (3) by failing to advise him of the nonsuspendable, mandatory minimum sentence applicable to the burglary charges in count three.
“[B]ecause the determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances . . . the plea may satisfy constitutional requirements even in the absence of literal compliance with the prophylactic safeguards of [§§ 39-19 and 39-20]. . . . Thus, although the trial court never expressly informed the defendant of the mandatory minimum sentence ... as required
Our resolution of the defendant’s claim is guided by our opinion in Domian, wherein we concluded that “[o]ur inquiry . . . must focus upon the effect, if any, that the trial court’s noncompliance with [§ 39-19 (2)] had on the defendant’s ability to make a fully informed and voluntary plea decision. Thus, the ultimate issue to be resolved is whether the defendant was aware of actual sentencing possibilities, and, if not, whether accurate information would have made any difference in his decision to enter a [guilty] plea.” (Internal quotation marks omitted.) Id., 688; see also State v. Wright, supra, 207 Conn. 288 (failure to advise defendant of mandatory minimum sentence did not jeopardize constitutional rights where plea intelligently and voluntarily made).
“[T]here is nothing in the record of the trial court proceedings to suggest that the defendant was unaware of the actual sentencing possibilities and, further, that even if his understanding of the possible sentencing alternatives was less than perfect, the record does not support a claim that any additional information would have made a difference in his decision to plead guilty.” State v. Domian, supra, 235 Conn. 689. The defendant, by virtue of his guilty plea to the other charges, faced a minimum penalty of life imprisonment without the possibility of release. Thus, the trial court’s failure to inform him of a mandatory, nonsuspendable five year sentence for the burglary charge did not mislead the
3
Finally, the defendant argues that the trial court did not fully inquire into whether prior discussions with the prosecutor had affected his decision to plead guilty as required by Practice Book § 39-20.
Ill
The defendant also claims that, with respect to his motion to withdraw his guilty plea, the trial court improperly (1) rejected his motion to withdraw his guilty plea without holding an evidentiary hearing, and (2) declined to appoint new counsel to assist him with the motion.
The following additional facts are relevant to our resolution of these claims. Subsequent to the jury’s verdict in the penalty phase, the trial court convened on June 10,1993, to sentence the defendant. The trial court imposed a sentence for the burglary charge,
Prior to the trial court’s sentencing on the capital felony conviction, defense counsel indicated that the defendant wanted to address the court personally. Defense counsel also indicated that they had not advised the defendant to address the court and that, based upon their knowledge of the defendant’s intended comments, they believed that the trial court should consider appointing additional counsel to represent the defendant. In response, the trial court informed the defendant that, although it was common at that particular time in the proceedings for a defendant to address the court and request a mitigation of his sentence, in the present situation the court was required to impose the death penalty and, therefore, the defendant’s comments could only jeopardize future appeals. After a sidebar conference with defense counsel, the trial court agreed that it was not appropriate to deny the defendant’s request and permitted him to address the court.
The defendant then stated: “Your Honor, I would just like to say that my plea of guilty was not voluntary and . . . was not made with my full understanding and I ask that the court . . . permit me to withdraw my plea
The standard governing the withdrawal of a guilty plea is well settled. “Before a guilty plea is accepted a defendant may withdraw it as a matter of right. . . . After a guilty plea is accepted but before the imposition of sentence the court is obligated to permit withdrawal upon proof of one of the grounds in [Practice Book § 39-27, formerly § 721].”
A
First, the defendant contends that the trial court improperly denied his motion to withdraw his guilty plea without affording him an evidentiary hearing.
“An evidentiary hearing is not required if the record of the plea proceeding and other information in the court file conclusively establishes that the motion is without merit. See Fontaine v. United States, 411 U.S. 213, 215, 93 S. Ct. 1461, 36 L. Ed. 2d 169 (1973). . . .
In the present case, the defendant failed to satisfy his burden of setting forth sufficient facts to require an evidentiary hearing on his motion to withdraw his guilty plea. The defendant simply made the vague and conclusory statement that his plea was not “voluntary . . . and was not made with [his] full understanding . . . .” The defendant failed to set forth any additional facts supporting this statement and failed to advance any specific reason why his plea was involuntary and made without his full understanding. See State v. Cooper, 55 Conn. App. 95, 105, 738 A.2d 1125 (1999) (motion to withdraw contained no facts to support; defendant’s claim); State v. Peterson, 51 Conn. App. 645, 652, 725 A.2d 333 (1999) (defendant’s “bare assertion” that he was using drugs at time of plea did not warrant evidentiary hearing); State v. Casado, 42 Conn. App. 371, 375, 680 A.2d 981, cert. denied, 239 Conn. 920, 682 A.2d 1006
Additionally, the defendant’s assertion that his plea was not voluntarily and intelligently made contradicts the detailed plea canvass conducted by the trial court, in which the defendant expressly stated that he understood the implications of his plea, had received advice and assistance of counsel in preparing to plea, and had entered the guilty plea voluntarily. See People v. Williams, 178 App. Div. 2d 570, 577 N.Y.S.2d 656 (1991) (defendant’s claims in motion for withdrawal of guilty plea did not require hearing where refuted by record of plea canvass). In light of the comprehensive canvass conducted by the trial court; see, e.g., footnotes 37, 41 and 47 of this opinion; and our previous conclusion that the defendant’s plea was entered voluntarily with full knowledge of the consequences of his plea, the defendant’s bare and unsupported assertion in support of his motion did not warrant an evidentiary hearing. In this situation the trial court was entitled to rely on its knowledge of the canvass, which it had conducted itself. See Fluitt v. Superintendent, 480 F. Sup. 81, 85 (1979) (noting that only in rare situations will defendant be entitled to evidentiary hearing). Accordingly, the trial court acted within the legitimate bounds of its discretion in not undertaking an evidentiary hearing regarding the defendant’s motion to withdraw his plea.
B
The defendant also argues that the trial court improperly denied his request for appointment of new counsel to assist him with his motion to withdraw his guilty plea. We conclude that the trial court did not abuse its discretion in declining to appoint new counsel.
First, we reiterate the standard under which we consider the defendant’s claim. “Whether the circumstances warrant the appointment of new counsel is within the discretion of the trial court. . . . [A]bsent a factual record revealing an abuse of [the court’s] discretion, the court’s failure to allow new counsel is not reversible error.” (Citation omitted; internal quotation marks omitted.) State v. Crenshaw, supra, 210 Conn. 314; see also State v. Drakeford, 202 Conn. 75, 83, 519 A.2d 1194 (1987).
In State v. Cooper, supra, 55 Conn. App. 95, and State v. Casado, supra, 42 Conn. App. 371, the Appellate Court rejected claims similar to the defendant’s arguments. In Cooper, the defendant had moved to withdraw her plea of guilty to manslaughter in the first degree and risk of injury to a child, claiming that she had received ineffective assistance of counsel and that her plea was unknowing and involuntary. State v. Cooper, supra, 101. The trial court refused defense counsel’s request for appointment of new counsel to represent the defendant on the motion to withdraw her plea. Id., 102-103. On appeal, the Appellate Court affirmed the trial court’s refusal to appoint new counsel, concluding that the trial court had acted within its discretion despite the
In Casado, the Appellate Court affirmed the trial court’s refusal to appoint new counsel to assist with the defendant’s motion to withdraw her plea of nolo contendere to assault in the first degree and risk of injury to a child. State v. Casado, supra, 42 Conn. App. 380-81. In that case, the defendant had moved to withdraw her plea at her sentencing hearing on the ground that defense counsel had pressured her to enter the plea. Defense counsel informed the court that the defendant no longer wanted him to represent her and suggested that the trial court appoint new counsel and provide an evidentiary hearing. The trial court denied both requests. Id., 373-74.
The Appellate Court affirmed the denial of an eviden-tiary hearing and the refusal to appoint new counsel, concluding that the trial court had not abused its discretion in refusing to appoint new counsel to press the defendant’s motion to withdraw her plea. Id., 379. The Appellate Court noted that “[t]he constitutional right to counsel does not necessarily include the unbridled right to discharge counsel and have new counsel appointed.” Id., 378. The Appellate Court concluded that, by denying the defendant’s request for an eviden-tiary hearing, the trial court had rejected explicitly the defendant’s assertions of pressure and, therefore, appointment of new counsel was not required. Id., 379.
As in Casado and Cooper, the trial court in the present case acted within its discretion when it declined to appoint new counsel. It is clear from the record that the defendant had consulted with defense counsel prior to addressing the court. Defense counsel assisted as much as they thought was appropriate, and even requested a sidebar conference to inform the court of the content of the defendant’s proposed statement and
The defendant also claims a violation of Practice Book § 44-3, which requires that the trial court question the defendant before accepting a waiver of the right to counsel. See footnote 48 of this opinion. As explained previously, defense counsel made statements to the court regarding the possible need for additional counsel. The defendant now claims that he was not represented when he made his motion to withdraw his guilty plea. The transcript reveals that the defendant had not waived counsel in connection with his motion, and had not declined the assistance of defense counsel who had represented him at trial. Moreover, that same defense counsel continued to assist the defendant subsequent to the denial of the motion to withdraw. Accordingly, we conclude that the defendant was represented at the time that the trial court imposed a sentence and, therefore, the trial court was not required to undertake an inquiry pursuant to § 44-3. See State v. Casado, supra, 42 Conn. App. 379-82.
Under our capital offense sentencing scheme, a capital defendant may not be sentenced to death unless the state establishes the existence of an aggravating factor beyond a reasonable doubt, and the defendant fails to establish a mitigating factor by a preponderance of the evidence. General Statutes § 53a-46a (f). In the present case, the jury rejected the aggravating factor of “especially depraved,” but did find as an aggravating factor that the defendant had committed the offense of capital felony in an “especially cruel and heinous manner.” See General Statutes (Rev. to 1991) § 53a-46a (h) (4). The jury’s verdict also indicated that it had found no mitigating factor. The defendant claims that the evidence adduced at trial did not support the jury’s finding of an aggravating factor. We are constrained to agree. Consequently, principles of double jeopardy require us to reverse the judgment imposing the death penalty and to remand the case to the trial court with direction to impose on the defendant a sentence of life imprisonment without the possibility of release. State v. Daniels, 207 Conn. 374, 397-99, 542 A.2d 306, after remand for articulation, 209 Conn. 225, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989).
A
In deciding whether the evidence adduced at trial failed to support the jury’s finding of an aggravating factor, we begin with a recitation of the evidence supporting the jury’s verdict. In June, 1991, Bagshaw was a state trooper assigned to Troop K in Colchester. His duties included conducting security checks of commercial establishments located on his patrol route. On June 5, 1991, Bagshaw was assigned to patrol Windham and nearby towns. Part of his patrol ran along Route 6. One of the businesses located on that road in North
At approximately 3:15 a.m., Richard Serwanski spotted Bagshaw’s cruiser outside the Land and Sea. Ser-wanski, who occasionally worked at the Land and Sea, summoned its owner Steven Winick, who lived nearby. Joined ten minutes later by Winick, together the two men approached Bagshaw’s cruiser. They found both the right rear passenger window and the driver’s side window shattered, the strobe lights flashing, the headlights and spotlight still on, the gearshift still in drive, and the vehicle stationary, resting against a boat. Bag-shaw’s body was in the front seat slumped over toward the passenger side, his weapon still in his gunbelt. Ser-wanski saw that Bagshaw had been shot and attempted to render medical assistance, but despite his efforts and those of additional police, fire and medical personnel, Bagshaw was pronounced dead at the scene.
Before closing and alarming the store for the evening on June 4,1991, Winick had locked up two large pistols, a Wilkinson “Linda” and a Thompson “Contender,” along with several rifles and shotguns. None of the weapons was loaded. Subsequently, it was discovered that the alarm and telephone wires, located on the outside of the west wall of the shop, had been ripped out or cut, the cash register lay empty on the floor, drawers and cabinets were open, and several knives were missing from the display case. A cable that Winick had run through the trigger guards of the rifles for security purposes had been cut, and twenty-two firearms were missing. Some long guns remained in the rack and oth
Ballistic evidence revealed that the weapon used to kill Bagshaw was a Wilkinson Linda, a semiautomatic nine millimeter pistol that has a magazine capacity of thirty-one rounds, and a trigger pull of six and one-half to six and three-quarters pounds. To operate the weapon, cartridges are manually inserted into the magazine, and the magazine is then inserted into the handgrip area of the pistol. In order to “chamber” the first cartridge, the shooter must pull back the bolt; thereafter, each squeeze of the trigger discharges a shot and automatically chambers another cartridge. The gun can be fired as quickly as one can pull the trigger, and with each shot, a cartridge case is ejected from the gun.
The fatal bullet recovered from Bagshaw’s body was identified as a copper jacketed, Federal Hydra-Shok hollow point nine millimeter bullet, which had been fired from the Wilkinson Linda. According to Wayne Carver, chief state medical examiner, the bullet entered through the left arm hole of Bagshaw’s bulletproof vest. The fatal bullet did not pass through Bagshaw’s left arm. Because the bullet had passed through either the metal door or the glass window of the cruiser before striking the trooper, the bullet was deformed and the entry wound was “atypical” and “asymmetrical” in that “the bullet was not round when it hit the skin.” Consequently, the fatal bullet did not exhibit any mushrooming effect.
Carver explained that Bagshaw essentially had bled to death. Most of the bleeding was internal, and the loss of blood was fairly rapid. Carver testified that the wound was mortal “the instant [the bullet] went through him” because the sequence that caused Bagshaw’s death was “irrevocably started,” and there was no “medical procedure that could have repaired this wound to his heart.” According to Carver, Bagshaw remained conscious for anywhere from five seconds to one and one-half minutes after suffering the wound. Because people’s responses vary, Carver could not determine precisely how long Bagshaw had remained conscious. He testified that Bagshaw survived “anywhere from large hunks of minutes to several minutes — and then the more minutes you tack on [while bleeding] the less likely, as you get up to ten, fifteen, or so forth.” Because Bagshaw’s brain showed no sign of swelling from lack of oxygen, which takes twenty to twenty-five minutes to occur, Carver could state with certainty that the trooper did not survive that long.
There was extensive testimony regarding the crime scene. As described previously, the driver’s side window of Bagshaw’s cruiser was smashed, along with the right rear passenger window. There were a large number of bullet holes in the driver’s door and front quarter panel, and a bullet hole through the front windshield. There were bullet fragments, inside the cruiser, and some fragments were embedded in the driver’s side door post and in the rear passenger door. Three bullet fragments were found outside the cruiser: one on Route
Based in part on bullet trajectories that had been provided to him by the state police forensic laboratory, Robert Mantho, a state trooper who specialized in traffic accident reconstruction, testified as to the position and path of Bagshaw’s cruiser during the time that the trooper was under attack. Based upon Mantho’s testimony, the evidence supported the inference that Bagshaw’s cruiser had traveled in a straight path for approximately thirty to thirty-five feet before coming to rest against the boat. According to Mantho’s measurements, the shooter was probably twenty-five to thirty feet away from the cruiser when the shots were fired. The cruiser was moving very slowly or was almost stopped when the first bullet struck. It was also possible that the cruiser was stationary when the firing began and then began to accelerate, to one to three miles per hour, until it collided with the boat. The cruiser traveled approximately ten feet between the first bullet strike and the last. Mantho testified that, if the cruiser had traveled at the rate of one mile per hour, the time between the first strike and the last was about 6.6 seconds.
Henry Lee, chief criminalist and director of the state forensic laboratory, reconstructed the crime scene. On
The evidence also supported the inference that the cruiser was in motion when the bullets hit it. The seventeen bullets were fired in two separate sequences. The first group was discharged at an angle of approximately thirty to forty degrees in relation to the cruiser, and the final group of nine shots was “a direct hit at ninety degrees” near the center of the driver’s side door. The first shot missed the cruiser completely, hitting a boat instead. The second and third shots hit the windshield. The fatal shot was fired as part of the second group and went through the driver’s window before hitting Bagshaw. Relying on bloodstains, fingerprints and shoe prints on the boat as well as other evidence, Lee testified that the burglary had been committed by two persons, one who wore Nike sneakers and a second who wore Reebok sneakers.
There was ample evidence linking the defendant to the crime. On June 7, 1991, the police searched the basement area of a house where the defendant resided. The house was located a few hundred yards from the Land and Sea. The police seized, among other items,
On June 5, 1991, at 3:45 a.m., Scott Ilewicz, a friend of the defendant, received a telephone call from the defendant asking to meet him because he needed to dispose of some weapons. Ilewicz drove to the designated rendezvous spot where the defendant gave him numerous guns that, based upon their tags, Ilewicz assumed had been stolen. He turned the weapons over to the police after he learned of Bagshaw’s death.
Also on June 5,1991, the defendant told a close friend that he had killed a policeman during the course of a burglary of a gun shop. He admitted that, after cutting the alarm wires at the shop, and after removing the weapons, he looked around a comer of the shop and saw a trooper with his lights on. The defendant said he had an Uzi with a forty round clip, which he thought was an automatic. He pulled the trigger but only one shot discharged. He heard the officer say “Oh, my God,” and he continued to fire upon the car. The defendant confessed to others as well. He told Marjorie Shanaber-ger, the mother of his daughter, that he shot Bagshaw because, had he not, the officer would have shot him. He cried throughout most of this conversation and told her that he shot Bagshaw twenty-eight times because he was scared.
While he was at the Hartford correctional center, the defendant boasted to Brian Parisella, another inmate, that he had shot Bagshaw and that the trooper had gotten what he deserved. The defendant further stated that he had shot Bagshaw during the course of the burglary because he did not want to get caught and
The jury also heard evidence from which it reasonably could have concluded that the defendant had burglarized the Land and Sea in October, 1990, that he had completed basic training with the National Guard in 1989, that he had qualified as a sharpshooter on the M-16 rifle in March, 1991, and that at the end of his National Guard service he had qualified as an expert shooter.
B
In reviewing a claim that “the evidence fail[ed] to support the finding of an aggravating factor specified in subsection (h) of section § 53a-46a”; General Statutes (Rev. to 1991) § 53a-46b (b) (2); we subject that finding “to the same independent and scrupulous examination of the entire record that we employ in our review of constitutional fact-finding, such as the voluntariness of a confession; State v. Medina, 228 Conn. 281, 294, 636 A.2d 351 (1994); State v. Smith, 200 Conn. 465, 478, 512 A.2d 189 (1986); or the seizure of a defendant. State v. Greenfield, 228 Conn. 62, 68-69, 634 A.2d 879 (1993); State v. Northrop, 213 Conn. 405, 414, 568 A.2d 439 (1990).” State v. Ross, 230 Conn. 183, 259, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995). However, “[e]ven with the heightened appellate scrutiny appropriate for a death penalty case, the defendant’s challenge to the sufficiency of the evidence of aggravating circumstances must be reviewed, in the final analysis, by considering the evidence presented at the defendant’s penalty hearing in the light most favorable to sustaining the facts impliedly found by the jury.” Id., 264. Furthermore, “[i]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with [the existence of the aggravating factor] and is not required to draw only those inferences consistent with [its nonexistence]. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks
Moreover, in reviewing a claim under § 53a-46b (b) (2) that the evidence failed to support the finding of an aggravating factor specified in subsection (h) (4) of § 53a-46a, we recognize that a person of ordinaiy sensibility fairly could characterize almost every murder as vile and horrible. Our role, however, is to “differentiate among murders on the basis of their respective brutality, winnowing case by case those which are merely heinous, atrocious or cruel, from those which the jury could find are especially so. It is a grisly duty.” State v. Stanley, 310 N.C. 332, 337, 312 S.E.2d 393 (1984).
C
Before we review the evidence adduced by the state, we again define the standard by which it is to be measured. As we acknowledged in State v. Breton, 212 Conn. 258, 265, 562 A.2d 1060 (1989), the phrase “in an especially heinous, cruel or depraved manner” from § 53a-46a (h) (4) contains an arguably subjective standard that runs the risk of being unconstitutionally vague. Therefore, to avoid constitutional jeopardy for this aggravating factor, we adopted a limiting construction of that statutory language. Focusing on the meaning of “especially cruel,” we concluded that an acceptable core construction of this term “must include the intentional infliction of extreme pain or torture above and beyond that necessarily accompanying the underlying killing.” State v. Breton, supra, 270.
The Breton decision did not address, however, two additional issues concerning the proper construction of § 53a-46a (h) (4): (1) whether the “extreme pain or torture” that is at the core of “especially cruel” includes the infliction of psychological anguish as well as physical pain; and (2) whether § 53a-46a (h) (4) envisages
Thereafter, in State v. Ross, supra, 230 Conn. 260, we answered the first question affirmatively, concluding that “[a] defendant cannot intentionally engage in conduct that inflicts extreme psychological trauma and then claim that his victims’ mental distress was unintended or unforeseeable.” This court in Ross also concluded that § 53a-46a (h) (4) does not set forth three separate aggravating factors, but instead describes a “unitary aggravating factor.” Id.., 261. We concluded that, in reviewing the sufficiency of the evidence to support the jury’s finding of an aggravating factor under § 53a-46a (h) (4), the focus must be on whether the state has proved, beyond a reasonable doubt, that the defendant engaged in intentional conduct that inflicted extreme physical or psychological pain or torture on the victim above and beyond that necessarily accompanying the underlying killing,
D
Finally, before we determine whether the evidence in this case was sufficient to satisfy this burden, brief comment on the death penalty scheme established by the legislature is warranted. As distinct from those jurisdictions where the murder of a law enforcement officer is, in itself, a statutorily enumerated aggravating circum
E
The defendant fired seventeen hollow point bullets at Trooper Bagshaw in a period of 6.6 seconds. Based on the forensic evidence, it was determined that the fatal shot was fired in the final nine shots. Bagshaw remained conscious for five to ninety seconds after sustaining the fatal bullet wound, during which time he experienced the physical pain associated with the injury and the psychological pain associated with the knowledge that he had been shot. Although, fortunately, he was conscious only briefly, he lived anywhere from one to fifteen minutes.
The state theorized that the homicide was especially cruel in that Bagshaw suffered extreme pain in addition to the pain caused by the fatal shot. According to the state, this extreme pain was evidenced in two forms. First, that Bagshaw uttered “Oh, my God,” and lived long enough to turn on the switch to activate the strobe light indicated that he suffered mental pain and anguish during the short period of time in which he remained conscious. Second, the state claims that he suffered pain caused by the shrapnel in his arm that was over and above the pain associated with the fatal shot.
The defendant contends that the state failed to sustain its burden. The requisite physical or psychological pain above and beyond that necessarily accompanying the underlying killing must be extreme. State v. Ross, supra, 230 Conn. 260-61; State v. Breton, supra, 212 Conn. 270. “ ‘[T]he term “extreme” refers to the greatest degree of intensity away from the norm for that individual.’ ” State v. Crespo, 246 Conn. 665, 681, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999). “Extreme” has also been defined as “[b]eing in or attaining the greatest or highest degree . . . extending far beyond the norm . . . [o]f the greatest severity . . . .” American Heritage Dictionary (2d College Ed. 1992).
In this case, the absence of “extreme pain or torture above and beyond that necessarily accompanying the killing”; States v. Breton, supra, 212 Conn. 270; is attributable both to the instrument of death and the rapidity with which unconsciousness and death ensued. Although the § 53a-46a (h) (4) aggravating factor can
To qualify for the imposition of the death penalty, a murder by shooting must be distinguished somehow from the “norm” of murders. Lewis v. State, 398 So. 2d 432, 438 (Fla. 1981) (multiple rifle and shotgun wounds
Given the manner in which Bagshaw was murdered and the speed with which he died, as reprehensible as the attack was, there is no principled way to distinguish this case from the “ordinary” gunshot death or to differentiate it from the norm of capital felonies. See Kearse v. State, 662 So. 2d 677, 686 (Fla. 1995) (where defendant grabbed police officer’s weapon and fired nine shots into officer’s body and four shots into his bulletproof vest, killing did not satisfy heinous, atrocious or cruel aggravating circumstances); Reaves v. State, 639 So. 2d 1, 6 (Fla.), cert. denied, 513 U.S. 990, 115 S. Ct. 488, 130 L. Ed. 2d 400 (1994) (where defendant fired seven shots at deputy sheriff, striking him with four, crime was not heinous, atrocious or cruel); Robertson v. State, 611 So. 2d 1228, 1233 (Fla. 1993) (where woman was shot several times during robbery, murder not heinous, atrocious or cruel); McKinney v. State, 579 So. 2d 80, 84 (Fla. 1991) (although victim shot seven times, “murder is not heinous, atrocious or cruel without additional facts to raise the shooting to the shocking level”); Raulerson v. State, 420 So. 2d 567, 571-72 (Fla. 1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3572, 77 L. Ed. 2d 1412 (1983) (killing not heinous, atrocious or cruel where during robbery, defendant shot officer in chest and after officer cried out that he was hurt, defendant fired five more shots, shooting officer in heart, killing him); Fleming v. State, 374 So. 2d 954, 959 (Fla. 1979) (where police officer killed by single shot, during struggle, crime not
Indeed, as many courts have determined, “[ordinarily, an instantaneous or near-instantaneous death by gunfire does not satisfy the aggravating circumstance of heinous, atrocious or cruel.” Robinson v. State, 574 So. 2d 108, 112 (Fla.), cert. denied, 502 U.S. 841, 112 S. Ct. 131, 116 L. Ed. 2d 99 (1991); see State v. Graham, 135 Ariz. 209, 210, 660 P.2d 460 (1983) (murder not committed in especially cruel, heinous or depraved manner where defendant “fired twice in rapid succession through” closed screen door, hitting victim “once in the head and once in the chest”; victim “rendered unconscious immediately, died within five minutes and did not suffer”); Kearse v. State, supra, 662 So. 2d 686 (gunshot killing not heinous, atrocious or cruel where police officer victim “could have remained conscious for short time or rapidly gone into shock”); Burns v. State, 609 So. 2d 600, 606 (Fla. 1992) (murder not especially heinous, atrocious or cruel where, during struggle with highway patrol trooper, motorist got hold of trooper’s revolver, stood over trooper and fired one fatal shot; “the wound would have caused rapid unconsciousness followed within a few minutes by death”); Richardson v. State, 604 So. 2d 1107, 1109 (Fla. 1992) (killing not heinous, atrocious or cruel where victim “was shot suddenly in the heart, lost consciousness, and died within moments”); Rivera v. State, 545 So. 2d 864, 866 (Fla. 1989) (murder not especially heinous, atrocious or cruel where defendant fired five shots at police officer, hitting
Although there are cases in which a near instantaneous death by gunfire could satisfy the § 53a-46a (h) (4) factor, typically such cases have involved extreme
The state also points to the shrapnel arm wound to support the finding of the § 53a-46a (h) (4) factor. As the aforementioned cases further demonstrate, however, the fact that the victim sustained more than one wound does not, by itself, establish an aggravating factor. See Shere v. State, 579 So. 2d 86, 96 (Fla. 1991) (that defendant fired multiple gunshots insufficient to support finding of cruel, heinous or atrocious); McKinney v. State, supra, 579 So. 2d 84 (although victim was shot multiple times, murder is not heinous, atrocious or cruel without additional facts to raise shooting to shocking level required by this factor). This is particularly so when each shot was fired in a manner to kill; Cannady v. State, 620 So. 2d 165, 169 (Fla. 1993); and the elapsed time between the shots was temporally insignificant. See Brown v. State, 526 So. 2d 903, 907
Moreover, with regard to Bagshaw’s shrapnel arm wound, the evidence does not demonstrate whether that wound preceded or followed the fatal chest wound, and thus it is uncertain whether Bagshaw was even conscious when that wound was inflicted. Consequently, this nonfatai wound could not support the aggravating factor in issue. See State v. Cobb, supra, 251 Conn. 446-50; see also State v. Jiminez, 165 Ariz. 444, 453, 799 P.2d 785 (1990) (“[t]o support a finding of cruelty, the state must prove beyond a reasonable doubt that the victim was conscious and suffered pain or distress at the time of the offense”); Perry v. Oklahoma, 893 P.2d 521, 534 (Okla. Crim. App. 1995) (in prosecution under especially heinous, atrocious or cruel aggravating circumstance, “[i]t is . . . critical that the State prove that the victim consciously suffered before death”). Finally, even assuming that Bagshaw was conscious when he sustained the arm wound, there was no evidence that the wound would have caused the extreme pain required for the finding of the aggravating factor. In fact, the state implicitly acknowledged the absence of such extreme pain in its closing argument.
To the extent that the state relies on extreme psychological pain, we also disagree that the evidence was
Although Bagshaw’s last words certainly evoke great sympathy, such words do not demonstrate extreme psychological pain above and beyond that necessarily accompanying any killing that is not absolutely instantaneous. Moreover, the ability to activate the lights merely demonstrates that the trooper was conscious. Even if these combined factors show an awareness of his situation, we cannot conclude that “the mere apprehension of death, immediately before [or after] the fatal wounds are inflicted, amounts to serious psychological abuse prior to death.” Phillips v. State, 250 Ga. 336, 341, 297 S.E.2d 217 (1982).
In Phillips, the defendant approached his estranged wife at her place of employment. When she saw that he was carrying a rifle, “she screamed ‘Oh, no!’ before [the defendant] fired [five] times in rapid succession”; she was hit by four of the shots, and “lived at least [five] minutes from the onset of the injuries.” Id., 339-40. The court rejected the state’s claim that, because the victim had “suffered pain and anticipated the prospect of death, she suffered serious physical and psychological abuse before death.” Id., 340; see also Clark v. State, 609 So. 2d 513, 514 (Fla. 1992) (where “fatal shot came almost immediately after the initial shot to the chest,” and “there [was] no indication that the crime was committed in such a manner as to cause unnecessary and prolonged suffering to the victim,” insufficient proof that victim was aware of impending death so as to satisfy aggravating factor); Shere v. State, supra, 579 So. 2d 96 (“there was no prolonged apprehension of death,” and no “prolonged suffering,” where, without
We conclude that there is no evidence that the defendant in the present case inflicted mental suffering upon Bagshaw “beyond that ordinarily suffered by anyone who is shot to death.” State v. Stanley, supra, 312 S.E.2d 398.
Finally, the state claims that the homicide was especially heinous because it was senseless,
V
The defendant also claims that the trial court deprived him of a fair determination of probable cause in violation of article first, § 8, of the constitution of Connecticut, and General Statutes § 54-46a. He further contends that he was deprived of the right to due process of law, the right of confrontation and the right to the assistance of counsel in violation of the fifth, sixth and fourteenth amendments to the constitution of the United States, and article first, §§ 8 and 9, of the constitution of Connecticut. Specifically, the defendant asserts that the trial court deprived him of a fair determi
The following additional facts are pertinent to this claim. The defendant’s probable cause hearing commenced on September 23, 1991, before Judge Potter, the same judge who had issued the defendant’s arrest warrant. The defendant did not raise the issue of Judge Potter’s disqualification. The probable cause hearing was held jointly with that of the defendant’s brother, Duane, who was also charged with capital felony.
At the hearing, the state offered Duane’s statement, and over the defendant’s objection, the court admitted
On December 10, 1992, the defendant pleaded guilty to the crimes of murder in violation of §§ 53a-54b (1), 53a-54a (a) and (c), and 53a-54c, and burglary in the first degree in violation of § 53a-101 (a) (1) and (2). The state claims that because the defendant’s claims are nonjurisdictional in nature, he waived his right to raise them when he pleaded guilty. We agree.
It is well established that an unconditional plea of guilty, made intelligently and voluntarily, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings. Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973). In general, the only allowable challenges after a plea are those relating either to the voluntary and intelligent nature of the plea or the exercise of the trial court’s jurisdiction. Id.; State v. Niblack, 220 Conn. 270, 276-77, 596 A.2d 407 (1991). In this case, the defendant’s challenges to the finding of probable cause were waived, because neither of these claims is relevant to the validity of his pleas, nor do they challenge the trial court’s subject matter jurisdiction.
The vile nature of the crime committed by the defendant in this case cannot be overstated, either from the standpoint of Bagshaw’s family, friends and colleagues or from the perspective of the community at large. When a peace officer is murdered in the course of his or her duties, the community rightly demands that the perpetrator of that atrocious deed be dealt with in the most severe terms permitted by law. It therefore is understandable that our statutory scheme defines the murder of a police officer as a capital felony, which carries, at a minimum, a sentence of life imprisonment without the possibility of release.
That same statutory scheme, however, authorizes a sentence of death only when the state has proven beyond a reasonable doubt one of the statutorily defined aggravating circumstances, which, in this case, was alleged to be that the murder was committed in an especially cruel, heinous and depraved manner. As judges, it is our sworn responsibility to apply the law in an objective, reasoned and dispassionate manner. We bear this responsibility equally in all cases, whoever the parties and however unpopular the result. Thus, we are obligated to determine whether there was sufficient evidence that the defendant in fact caused the victim extreme pain and torture above and beyond that necessary to cause his death.
In this case, there was not sufficient evidence to support those facts. Therefore, the discharge of our judicial duty in this case compels the conclusion that, under our law, the sentence of death imposed on the defendant cannot stand.
The judgment is reversed with respect to the imposition of the sentence of death and the case is remanded to the trial court with direction, pursuant to § 53a-46a (g), to impose a sentence of life imprisonment without
In this opinion BORDEN, PALMER and CALLAHAN, Js., concurred.
General Statutes § 53a-54a provides in relevant part: “Murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime. . . .”
General Statutes § 53a-54c provides: “Felony murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (1) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (2) was not armed with a deadly weapon, or any dangerous instrument; and (3) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (4) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”
Because murder and felony murder are contained in separate statutes; General Statutes §§ 53a-54a and 53a-54c; the two crimes could have been charged in separate counts of the information. The information in the present case, however, charged the defendant with murder and felony murder in a single count.
General Statutes (Rev. to 1991) § 53a-54b provides in relevant part: “Capital felony. A person is guilty of a capital felony who is convicted of any of the following: (1) Murder of a member of the division of state police within the department of public safety or of any local police department, a chief inspector or inspector in the division of criminal justice, a sheriff or deputy sheriff, a constable who performs criminal law enforcement duties, a special policeman appointed under section 29-18, an official of the department of correction authorized by the commissioner of correction to make arrests in a correctional institution or facility, or any fireman . . . while such victim was acting within the scope of his duties . . . .”
Unless otherwise indicated, references hereinafter to § 53a-54b are to the 1991 revision.
General Statutes § 53a-101 (a) provides: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument, or (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”
General Statutes § 53a~119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”
General Statutes § 53a-124 (a) provides in relevant part: “A person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-119 and... (2) the value of the property or service exceeds one thousand dollars . . . .”
General Statutes § 53a-212 provides: “(a) A person is guilty of stealing a firearm when, with intent to deprive another of his firearm or to appropriate the same to himself or a third party, he wrongfully takes, obtains or withholds a firearm, as defined in subdivision (19) of section 53a-3.
“(b) Stealing a firearm is a class D felony.”
General Statutes (Rev. to 1991) § 53a-46a provides in relevantpart: “Hearing on imposition of death penalty. Aggravating and mitigating factors, (a) A person shall be subjected to the penalty of death for a capital felony only if a hearing is held in accordance with the provisions of this section.
“(b) For the purpose of determining the sentence to be imposed when a defendant is convicted of . . . a capital felony, the judge . . . who presided at the trial . . . shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, including any mitigating factor set forth in subsection (g), and any aggravating factor set forth in subsection (h). . . . Such hearing shall be conducted (1) before the jury which determined the defendant’s guilt, or (2) before a jury impan
“(c) In such hearing the court shall disclose to the defendant or his counsel all material contained in any presentence report which may have been prepared. No presentence information withheld from the defendant shall be considered in determining the existence of any mitigating or aggravating factor. Any information relevant to any mitigating factor may be presented by either the state or tire defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but the admissibility of information relevant to any of the aggravating factors set forth in subsection (h) shall he governed by the rules governing the admission of evidence in such trials. The state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any mitigating or aggravating factor. The burden of establishing any of the factors set forth in subsection (h) shall be on the state. The burden of establishing any mitigating factor shall be on the defendant.
“(d) In determining whether a mitigating factor exists concerning the defendant’s character, background or history, or the nature and circumstances of the crime, pursuant to subsection (b) of this section, the jury . . . shall first determine whether a particular factor concerning the defendant’s character, background or history, or the nature and circumstances of the crime, has been established by the evidence, and shall determine further whether that factor is mitigating in nature, considering all the facts and circumstances of the case. Mitigating factors are such as do not constitute a defense or excuse for the capital felony of which the defendant has been convicted, but which, in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of his culpability or blame for the offense or to otherwise constitute a basis for a sentence less than death.
“(e) The jury . . . shall return a special verdict setting forth its findings as to the existence of any aggravating or mitigating factor.
“(f) If the jury . . . finds that one or more of the factors set forth in subsection (h) exist and that no mitigating factor exists, the court shall sentence the defendant to death. If the jury . . . finds that none of the factors set forth in subsection (h) exists or that one or more mitigating factors exist, the court shall impose a sentence of life imprisonment without the possibility of release.
“(g) The court shall not impose the sentence of death on the defendant if the jury . . . finds by a special verdict, as provided in subsection (e), that any mitigating factor exists. The mitigating factors to be considered
“(h) If no mitigating factor is present, the court shall impose the sentence of death on the defendant if the jury . . . finds by a special verdict as provided in subsection (e) that ... (4) the defendant committed the offense in an especially heinous, cruel or depraved manner . . . .”
The legislature repealed § 53a-46a and replaced it with a new death penalty statute, effective October 1,1995, pursuant to Public Acts 1995, No. 95-19, § 1. Unless otherwise indicated, all references hereinafter to our death penalty statute are to the 1991 revision of § 53a-46a, the revision in effect at the time of the commission of the offenses here.
General Statutes § 51-199 provides: “Jurisdiction, (a) The Supreme Court shall have final and conclusive jurisdiction of all matters brought before it according to law, and may carry into execution all its judgments and decrees and institute rules of practice and procedure as to matters before it.
“(b) The following matters shall be taken directly to the Supreme Court: (1) Any matter brought pursuant to the original jurisdiction of the Supreme Court under section 2 of article sixteen of the amendments to the Constitution; (2) an appeal in any matter where the Superior Court declares invalid a state statute or a provision of the state Constitution; (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, for which the maximum sentence which may be imposed exceeds twenty years; (4) review of a sentence of death pursuant to section 53a-46b; (5) any election or primary dispute brought to the Supreme Court pursuant to section 9-323 or section 9-325; (6) an appeal of any reprimand or censure of a probate judge, pursuant to section 45a-65; (7) any matter regarding judicial removal or suspension pursuant to section 51-51j; (8) an appeal of any decision of the
“(c) The Supreme Court may transfer to itself a cause in the Appellate Court. Except for any matter brought pursuant to its original jurisdiction under section 2 of article sixteen of the amendments to the Constitution, the Supreme Court may transfer a cause or class of causes from itself, including any cause or class of causes pending on July 1, 1983, to the Appellate Court,. The court to which a cause is transferred has jurisdiction.”
General Statutes (Rev. to 1991) § 53a-46b provides: “Review of death sentence, (a) Any sentence of death imposed in accordance with the provisions of section 53a-46a shall be reviewed by the supreme court pursuant to its rules. In addition to its authority to correct errors at trial, the supreme court shall either affirm the sentence of death or vacate said sentence and remand for imposition of a sentence in accordance with subdivision (1) of section 53a-35a.
“(b) The supreme court shall affirm the sentence of death unless it determines that: (1) The sentence was the product of passion, prejudice or any other arbitrary factor; (2) the evidence fails to support the finding of an aggravating factor specified in subsection (h) of section 53a-46a; or (3) the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.
“(c) The sentence review shall be in addition to direct appeal and if taken, the review and appeal shall be consolidated for consideration. The court shall then render its decision on the legal errors claimed and the validity of the sentence.”
Unless otherwise indicated, references hereinafter to § 53a-46b are to the 1991 revision.
The issues that we do not need to decide are essentially as follows: (1) Did the special verdict form on mitigating factors and the trial court’s instructions allow the jury to return a verdict finding that the defendant failed to prove the existence of a mitigating factor without unanimously rejecting each mitigating factor claimed by the defense?
(2) Did the trial court properly instruct the jury regarding the § 53a-46a (h) (4) aggravating factor?
(3) Did the trial court properly admit evidence relating to the underlying burglary and the defendant’s background and history?
(4) Did the trial court properly deny the defendant’s motion to suppress certain statements made by the defendant to a correction officer?
(5) Did the trial court improperly allow the state to include within its allegation of capital felony the alternative allegation that this crime was committed by the felony murder of a police officer, in addition to the predicate felony of intentional murder?
(6) Did the trial court properly instruct the jury that it could find the existence of an aggravating factor based upon a theory that was neither argued by the state nor supported by the evidence?
(7) Did the trial court properly instruct the jury on its role as sentencer?
(8) Did the trial court properly decline to instruct the jury that it could find the existence of a mitigating factor if it determined that death was not the appropriate sentence?
(9) Did the trial court properly instruct the jury that it could consider the defendant’s guilty plea as a mitigating factor if it determined that the plea was motivated by “rehabilitation or sorrow”?
(10) Did the trial court’s instructions adequately distinguish between statutory and nonstatutory mitigating factors?
(11) Did the trial court’s instructions properly require the defendant to prove not only the factual basis of his claimed nonstatutory mitigating factors, but also that they were mitigating in nature?
(12) Did the trial court properly decline to provide the jury with a special verdict form that required the jury to indicate, for each claimed nonstatutory mitigating factor, first, whether any of the jurors found the factual basis of the factor and, second, whether those jurors who found the factor to be proven factually also found the factor to be mitigating in nature?
(13) Did the trial court properly instruct the jury on the meaning of the alternative sentence of life imprisonment without the possibility of release?
(14) Did the trial court’s instructions to the jury regarding the nonstatutory mitigating factors adequately explain the meaning and importance of the “any other,” or catchall, mitigating factor?
(15) Did the trial court properly decline to instruct the jury to consider the cumulative impact of all the mitigating evidence presented before rendering a verdict on mitigation?
(17) Did the trial court properly limit the defendant’s cross-examination of the state’s rebuttal witnesses?
(18) Was sufficient evidence presented to establish the existence of a mitigating factor?
(19) Did the trial court properly deny the defendant’s motion for a change of venue in the absence of an evidentiary hearing?
(20) Did the trial court properly deny the defendant’s motion for a new penalty phase hearing without holding an evidentiary hearing or otherwise investigating the defendant’s claims, based on posttria.1 statements of two jurors?
(21) Pursuant to this court’s mandatory death sentence review under § 53a-46b, should the defendant’s death sentence be affirmed where he claims that the sentence was the product of passion, prejudice and other arbitrary factors?
(22) Is Connecticut’s death penalty statute unconstitutional?
General St atutes (Rev. to 1991) § 54-56d provides in relevant part: “Competency to stand trial, (a) Competency required. Definition. A defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.
“(b) Presumption of competency. A defendant is presumed to be competent. The burden of proving that the defendant is not competent by clear and convincing evidence and the burden of going forward with the evidence are on the party raising the issue. The burden of going forward with the evidence shall be on the state if the court raises the issue. The court may call its own witnesses and conduct its own inquiry.
“(c) Request for examination. If at any time during a criminal proceeding it appears that the defendant is not competent, counsel for the defendant or for the state, or the court, on its own motion, may request an examination to determine the defendant’s competency.
“(d) Examination of defendant. Report. If the court finds that the request for an examination is justified and that, in accordance with procedures established by the judges of the superior court, there is probable cause to believe that the defendant has committed the crime for which he is charged, the court shall order an examination of the defendant as to his competency. The court either may appoint one or more physicians specializing in psychiatry to examine the defendant or it may order the commissioner of mental health to conduct the examination either by a clinical team consisting of a
“(e) Hearing. The court shall hold a hearing as to the competency of the defendant no later than ten days after it receives the written report. Any evidence regarding the defendant’s competency, including the written report, may be introduced at the hearing by either the defendant or the state. If the written report is introduced, at least one of the examiners must be present to testify as to the determinations in the report, unless his presence is waived by the defendant and the state. Any member of the clinical team shall be considered competent to testify as to the team’s determinations. A defendant and his counsel may waive the court hearing only if the examiners, in the written report, determine without qualification that the defendant is competent.
“(f) Court finding of competency or incompetency. If the court, after the hearing, finds that tire defendant is competent, it shall continue with the criminal proceedings. If it finds that the defendant is not competent, it shall also find whether there is substantial probability that the defendant, if provided with a course of treatment, will regain competency within the maximum period of any placement order permitted under this section. . . .”
Unless otherwise indicated references hereinafter to § 54^56d are to the 1991 revision.
Specifically, the defendant claims a violation of his due process rights under the fifth, sixth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the constitution of Connecticut.
The fifth amendment to the United States constitution provides in relevant part: “No person shall ... be deprived of life, liberty, or property, without due process of law . . . .”
The sixth amendment to the United States constitution provides in relevant
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 . . .
Article first, § 8, of the constitution of Connecticut, as amended by article seventeen of the amendments, provides in relevant part: “No person shall be . . . deprived of life, liberty or property without due process of law . . .
Article first, § 9, of the constitution of Connecticut provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
The defendant has not provided an independent analysis of his state constitutional claims. Accordingly, we do not address those claims. See, e.g., State v. Pinder, 250 Conn. 385, 429 n.4, 736 A.2d 857 (1999).
General Statutes § 54-82 (b) provides: “If the accused is charged with a crime punishable by death or imprisonment for life and elects to be tried by the court, the court shall be composed of three judges to be designated by the Chief Court Administrator, or his designee, who shall name one such judge to preside over the trial. Such judges, or a majority of them, shall have power to decide all questions of law and fact arising upon the trial and render judgment accordingly.”
The defendant pleaded guilty to counts one through three of the amended information. Count one charged the defendant with murder in violation of § 53a-54a, and felony murder in violation of § 53a-54c. Count two charged him with capital felony in violation of §§ 53a-54b (1), 53a-54a (a) and (c), and 53a-54c. Count three charged him with burglary in the first degree in violation of § 53a-101 (a) (1) and (2).
Practice Book § 39-19, formerly § 711, provides: “ — Acceptance of Plea; Advice to Defendant
“The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
“(1) The nature of the charge to which the plea is offered;
“(2) The mandatory minimum sentence, if any;
“(3) The fact that 1he statute for the particular offense does not permit the sentence to be suspended;
“(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
“(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”
Practice Book § 39-20, formerly § 712, provides: “ — Ensuring That the Plea is Voluntary
“The judicial authority shall not accept a plea of guilty or nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting authority and the defendant or his or her counsel.”
See footnotes 37, 41 and 47 of this opinion for a recitation of tire relevant portions of the plea canvass.
The defendant notes in Ms brief that the trial court previously asked oMy about “drugs and alcohol,” but not medications. We do not find tMs difference to be dispositive. See footnote 27 of tMs opimon.
Defense counsel stated: “And we rntend, either today or tomorrow, to move the court for a competency evaluation. We have had personal commumeation with the attending psycMatrist . . . concerning medications admimstered to the defendant. . . . AndattMspointwearereportmg to the court that we do have a concern that we believe is legitimate and well founded as to the competence of [the defendant] to proceed with tMs trial at the present time. We would report to the court that Ms refusal to partake of the proceedings today was a heretofore unexpected event and one wMch had not happened previously .... [W]e are aware that another psycMatrist mcreased [the defendant’s] medications over the weekend. . . . [My cocounsel] and I have both noted a change m our client’s demeanor in the courtroom over the last I would say five days, Your Honor. And we don’t believe we should comment on that any further because of our concern for the attomey/client privilege — but we do report to the court that we have noted a change m demeanor, Your Honor. We feel that given the seriousness and importance of tMs proceeding . . . that a motion to evaluate [the defendant’s] legal competence should be granted, Your Honor, for the grounds presented. That is that we have a good faith belief that something — some
The trial court stated: “[T]he court is still guided by the requirements of § 54-56d with particular reference to [subsection (b)], which is that [the defendant’s] competency is presumed and the one asking for such examination must show by clear and convincing evidence the need for such examination.” Additionally, the court explained that “to respond to [defense counsel’s] comments that there has been no observation by the court, to warrant the court, on its own motion, to have [the defendant] examined for competency . . . that the court is still going to require clear and convincing evidence before it does.”
Defense counsel informed the court that the defendant’s physicians in prison had changed his medications, and that at least one physician had recommended a review of those medications. Additionally, defense counsel explained that the defendant was upset because he had not been seen by a physician and had not been served lunch that day as defense counsel had assured him he would. Defense counsel stated: “In our opinion ... his mood has changed dramatically. Yesterday, although there was some diffi
The trial court stated that “[b]y virtue of what I indicated yesterday, I noted from time to time the presence of the defendant in the courtroom and I have indicated on the record yesterday my reluctance to order a § 54-56d without some knowledge of his being incompetent. I have not observed him being less than competent. Without further evidence I would not order a competency exam. I will, however, [accede] to the fact that the defendant is upset with you and perhaps this can be righted by having the proceedings delayed until Tuesday after the promised examination by [a prison physician].”
Defense counsel stated: “[W]e continue to be concerned about the competency of our own client. We have learned . . . that as a result of the mittimus issued in this court, all medication . . . was halted on Thursday. No medication, again, was given until last night. And it’s my understanding that the. . . treating psychiatrist was exceedingly upset that the medication was stopped. He had not seen [the defendant]. He didn’t discontinue his medication. It was stopped by the jail somehow, in the dispensary, based
The defendant claims that if we conclude that the trial court improperly denied his first motion for a competency evaluation, we should invalidate his subsequent guilty plea and capital felony conviction. Alternatively, the defendant contends that, if we find that the trial court properly denied his first request for a competency evaluation but should have granted a subsequent request, we should invalidate his sentence of death because, although he had already pleaded guilty, the penalty was imposed while the defendant was not competent.
The constitutional principle prohibiting the criminal trial of incompetent defendants has deep roots in the common law. See Cooper v. Oklahoma, 517 U.S. 348, 356-58, 116 S. Ct. 1373, 134 L. Ed. 2d 498 (1996) (discussing common-law prohibition); see also note, “Competence to Plead Guilty: A New Standard,” 1974 Duke L.J. 149, 151-52.
The United States Supreme Court has concluded that other states’ statutes, containing protections similar to those found in § 54-56d, jealously guard the right of an incompetent defendant not to stand trial. See Drope v. Missouri, 420 U.S. 162, 173, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975) (Missouri “jealously guards” this right); Pate v. Robinson, supra, 383 U.S. 385 (“Illinois jealously guards this right”).
Our review of whether the trial court properly interpreted § 54-56d is plenary. See Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995).
We note that the clear and convincing evidentiary standard cited by the trial court here no longer applies to a moving party’s burden of proving incompetency to stand trial. Although the clear and convincing standard existed in the 1991 revision of § 54-56d in effect at the time of the relevant proceedings, the United States Supreme Court has since held that standard unconstitutional. The court, in Cooper v. Oklahoma, supra, 517 U.S. 369, ruled that requiring a defendant to prove incompetency by clear and convincing evidence impermissibly burdened the defendant’s due process rights. Accordingly, in 1996, the Connecticut General Assembly replaced the clear and convincing standard with the preponderance of the evidence standard currently contained in § 54-56d. See Public Acts 1996, No. 96-215. In commenting upon Senate Bill No. 295, which changed the language in § 54-56d, Senator Thomas F. Upson explained that the recent decision in Cooper necessitated the change from a standard of clear and convincing evidence to that of a preponderance of the evidence. Senator Upson also noted that, at that time, Connecticut was one of only four states with the clear and convincing standard. 39 S. Proc., Pt. 9, 1996 Sess., pp. 3047-50.
Prior to the decision in Godinez, courts disagreed about whether certain aspects of the criminal proceeding required higher levels of competency. See State v. Day, 233 Conn. 813, 825 n.8, 661 A.2d 539 (1995); Myers v. Manson, 192 Conn. 383, 390-91, 472 A.2d 759 (1984). In particular, the Ninth Circuit Court of Appeals had held that a guilty plea required a higher degree of competency than that required for a defendant to stand trial. See Chavez v. United States, 641 F.2d 1253, 1259-60 (9th Cir. 1981); Sieling v. Eyman, 478 F.2d 211, 214-15 (9th Cir. 1973).
Unlike the first part of this claim addressed to the trial court’s interpretation of § 54-56d; see part I A of this opinion; we review the trial court’s determination of competency to plead guilty under an abuse of discretion standard. Essentially, we examine the relevant record to determine whether the trial court reasonably could have concluded that the defendant was competent to plead guilty. In doing so, we give deference to the trial court’s findings of fact because the trial court has the benefit of firsthand review of the defendant’s demeanor and responses during the canvass. See State v. Wolff, supra, 237 Conn. 665 (trial court did not abuse discretion in denying competency hearing); State v. DesLaurier, supra, 230 Conn. 586 (reviewing denial of competency hearing under abuse of discretion standard).
The defendant claims on appeal that his uncertainly regarding the penalty for intentional murder versus the penalty for felony murder and his lack of knowledge that a guilty plea constituted a waiver of all nonjurisdictional defects, demonstrated his incompetence. We recognize that these are difficult and complex legal concepts. The defendant, however, simply expressed the confusion that any layperson experiences in attempting to understand fully these issues. The trial court’s careful review of these topics with the defendant, combined with the fact that the defendant was represented by counsel, effectively eliminated any legitimate concern.
The defendant also points to the fact that he was taking medication as evidence of his incompetency. The fact that he was receiving medication did not automatically render him incompetent. See State v. Gonzalez, supra, 205 Conn. 688 (antipsychotic drugs did not render defendant incompetent); State v. DeAngelis, 200 Conn. 224, 230, 511 A.2d 310 (1986) (medication does not render defendant incompetent). Indeed, we have found that even mental illness or the use of illegal drugs does not invariably render a defendant incompetent. See State v. DeAngelis, supra, 230 (defendant may be mentally ill yet competent to stand trial); State v. Lloyd, 199 Conn. 359, 363, 507 A.2d 992 (1986) (allegations of cocaine use did not entitle defendant to competency hearing). Additionally, we note that in the present case the state, not defense counsel, asked the court to inquire about the defendant’s medications.
See footnotes 37, 41 and 47 of this opinion for examples of the defendant’s dialogue with the trial court during his guilty plea canvass.
Specifically, the defendant claims a violation of his due process rights under the fifth, sixth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the constitution of Connecticut. The defendant has not provided an independent analysis of his state constitutional claims. Accordingly, we do not address those claims. See, e.g., State v. Pinder, 250 Conn. 385, 429 n.4, 736 A.2d 857 (1999).
See footnote 13 of this opinion for the text of §§ 39-19 and 39-20.
The defendant failed to raise these constitutional claims before the trial court. He nevertheless argues that he should prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), in which we concluded that a defendant may prevail on an unpreserved constitutional claim if all of the following four conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Even if we were to assume that the first two conditions have been satisfied, as we conclude herein, the defendant has failed to demonstrate that his constitutional rights were violated.
Because the defendant’s claims do not merely challenge the court’s failure to comply “literally” with the rules of practice, but, rather, assert a lack of substantive compliance with the constitutionally based norms set forth in those sections, he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the doctrine of plain error as set forth in Practice Book § 60-5, formerly § 4061. Section 60-5 provides: “Review by the Court; Plain Error; Preservation of Claims
“The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
“The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court.
“If the court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s factual findings or decision.
“It is the responsibility of the appellant to provide an adequate record for review as provided in Section 61-10.” Once again, as we conclude herein, the defendant failed to demonstrate that the alleged constitutional violations existed or that the trial court’s “decision [was] otherwise erroneous in law.” Practice Book § 60-5.
See footnote 12 of this opinion.
The defendant asserts, in a footnote in his brief, that his incompetency also contributed to his confusion regarding the charges contained in the information. Because we previously have determined that the defendant was competent to stand trial and enter a plea; see part I B of this opinion; we reject this claim.
Count two charged the defendant with capital felony in violation of §§ 53a-54b (1), 53a-54a (a) and (c), and 53a-54c.
The defendant also raised this issue at trial during his probable cause hearing.
The following colloquy between the trial court and the defendant took place during the plea canvass:
“The Court: And as to the second count of capital felony, the statute to which you’ve pleaded guilty to in the second count, is as follows: ‘A person is guilty of capital felony who is convicted of any of the following: Murder of a member of the division of state police within the department of public safety.’ Did your attorneys read that statute to you or have you read that statute prior to your guilty plea?
“The Defendant: I have reviewed that with my attorneys and I stand by my plea of guilty as to that point.
“The Court: And do you know what the penalty for a violation of that statute is?
“The Defendant: Life imprisonment. Life imprisonment.
“The Court: And there is an alternative.
“The Defendant: Ah’m — and/or the death penalty.
“The Court: And the death penalty. And do you recall discussing with your attorneys that if you are found guilty of this statute the only possible penalty is life imprisonment without possibility of release, unless the death penalty is imposed?
“The Defendant: I’ve reviewed that with my attorneys and I stand by my plea of guilty as to that point.
“The Court: Well, I asked you the specific question. Were you read that portion as to the penalty?
“The Defendant: Yes. My attorneys have read me all the statutes.
“The Court: And you understand that those are the only penalties that you can be given concerning a violation of that statute of capital felony? Either life imprisonment without possibility of release or death.
“The Defendant: My attorneys have informed me.
“The Court: And that was prior to your plea of guilty to that statute?
“The Defendant: I believe so. Yes, sir.
“The Court: Aren’t you sure?
“The Defendant: Well, it’s been a long — it’s been — I’ve seen them on countless occasions and I can’t recall which—
“The Court: It was prior to today?
“The Defendant: Prior to today. Yes, sir.
“The Court: It was prior to your plea of guilty to this offense?
“The Defendant: Yes, sir."
The trial court stated: “And as to the second count of capital felony, the statute to which you’ve pleaded guilty to in the second count, is as follows: "A person is guilty of capital felony who is convicted of any of the following: Murder of a member of the division of state police within the department of public safety.’ ” See footnote 37 of this opinion.
Count two of the amended information dated December 9, 1992, provides: “And the above State's Attorney further accuses and charges that the said Terry Johnson did commit the crime of CAPITAL FELONY in violation of [§§] 53a-54b (1), 53a-54a (a) and (c), and 53a.-54c of the Connecticut General Statutes in that on or about the fifth day of June, 1991, in the early morning hours, in the town of Windham, Connecticut, the said TERRY JOHNSON, with the intent to cause the death of another person, to wit, Connecticut State Trooper Russell Bagshaw, caused the death of Trooper Russell Bagshaw, who was a member of the Division of State Police within the Department of Public Safety, while Trooper Russell Bagshaw was acting within the scope of his duties, and that said TERRY JOHNSON, on or about the fifth day of June, 1991, in the early morning hours, in the town of Windham, Connecticut, acting either alone or with one or more other persons, committed or attempted to commit Burglary, and in the course of and in furtherance of such Burglary or of the flight therefrom, he, or another participant, if any, caused the death of another person, to wit: Connecticut State Trooper Russell Bagshaw, who was other than one of the participants in said Burglary, and who was a member of the Division of State Police within the Department of Public Safety, whils Trooper Russell Bagshaw was acting within the scope of his duties.” (Emphasis added.)
Specifically, the defendant refers to his erroneous responses regarding the penalties for murder versus the penalties for felony murder. See footnote 27 of this opinion.
The following colloquy took place regarding the waiver rule:
“The Court: You recognize that your plea waives — or forgoes any norvjuris-dictional defects in your prosecution?
“The Defendant: No, sir. I do not understand that.
“The Court: Do you want to consult your attorney about it.
“The Defendant: I reviewed that with my . . .
“[Raymond Canning, Defense Counsel]: We simply haven’t discussed that issue at all with our client ....
“The Court: Could you then explain to [the defendant] now what nonjuris-dictionai defects might be?
“Mr. Canning: If I can have a few minutes I will certainly do so, Your Honor. . . .
“The Court: You may. Right now. I’ll wait for you.”
After the pause in the proceedings, the following colloquy occurred:
“The Court: Yourecognize your plea waives orforgoes allnonjurisdictional defects in the prosecution?
“The Defendant: My lawyers have explained things to me and I really don’t have a clue but they assure me that those things are not. . . a problem. . . .
“The Court: They’re not your problem? In other words, they felt that it was their problem? . . .
“The Defendant: They explained it. I really — I don’t understand it but they assure me that—
“The Court: That it wouldn’t be a problem?
“The Defendant: —it isn’t going to be a problem. A problem at all.”
See footnote 13 of this opinion for the text of §§ 39-19 and 39-20.
The defendant pleaded guilty to first degree burglary in violation of § 53a-101 (a) (1) and (2). General Statutes § 53a-101 (c) provides: “Burglary in the first degree is a class B felony provided any person found guilty under subdivision (1) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”
We note that the present situation differs dramatically from cases wherein the trial court failed to inform the defendant of the maximum potential sentence. See State v. James, 197 Conn. 358, 497 A.2d 402 (1985); State v. Bowden, 53 Conn. App. 243, 729 A.2d 795 (1999). The record of the plea canvass here unmistakably demonstrates that the defendant was aware of the maximum penalty to which his plea exposed him.
The defendant acknowledges in his brief that “it is not certain” that knowledge of the five year mandatory minimum sentence for burglary would have made any difference in his decision to plead guilty.
The defendant refers specifically to the following discussion:
“The Court: Was any force used upon you to make you plead guilty to these counts?
“The Defendant: No, sir.
“The Court: Was any threat used? Threat of force?
“The Defendant: No, sir.
“The Court: And were any promises made as to — well, this morning you heard [Mark S. Solak, state’s attorney] indicate, when you pleaded guilty to the first three counts, that he wasn’t going to proceed on the rest of the counts, which amounted to larceny counts. Other than that were any other promises made — as to the sentence to be imposed, or dropping any other charges?
“The Defendant: He promised that.
“The Court: Pardon?
“The Defendant: Mr. Solak promised that.
“The Court: Well he promised, apparently—
“The Defendant: To drop the—
“The Court: —to drop the larceny charges. Were there any other charges that he indicated he would drop or any sentence he would recommend?
“The Defendant: Not that I know of.
“The Court: So you can’t think of any promises as to anybody recommending sentence or dropping any other charges?
“The Court: You have no reason to believe then there are such promises.
“The Defendant: Not to my knowledge.”
The defendant claims a violation of his rights under the fifth, sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut. The defendant also claims that the trial court violated Practice Book §§ 39-19 et seq. and 44-3.
Practice Book § 44-3, formerly § 961, provides: “ — Waiver of Right to Counsel
“A defendant shall be permitted to waive the right to counsel and shall be permitted to represent himself or herself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant:
“(1) Has been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when so entitled;
“(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself;
“(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional fads essential to a broad understanding of the case; and
“(4) Has been made aware of the dangers and disadvantages of self-representation.”
See footnote 13 of this opinion for the text of §§ 39-19 and 39-20; see also footnotes 51 and 52 of this opinion.
The trial court imposed a twenty year sentence for the burglary count to ran concurrently with the sentence to be imposed for the capital felony count.
By the time the defendant moved to withdraw his guilty plea, the trial court already had sentenced him on the burglary count. He nevertheless maintains that the claims addressed in his motion to withdraw his guilty plea apply to the burglary sentence as well as the capital felony sentence. Although “[a] defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed”; Practice Book § 39-26, formerly § 720; see footnote 52 of this opinion; and although he already had been sentenced on the burglary count, the sentencing proceeding itself had not yet concluded.
Practice Book § 39-27, formerly § 721, provides: “ — Grounds for Allowing Plea Withdrawal
"The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows:
“(1) The plea was accepted without substantial compliance with Section 39-19;
“(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
“(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the judicial authority had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;
“(4) The plea resulted from the denial of effective assistance of counsel;
“(5) There was no factual basis for the plea; or
“(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.”
Practice Book § 39-26, formerly § 720, provides: “Withdrawal of Plea; When Allowed
“A defendant may withdraw his or her plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his or her plea upon proof of one of the grounds in Section 39-27. A defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed.”
We note that the defendant did not specifically request an evidentiary hearing when he made his motion to withdraw his guilty plea. Despite his failure to request an evidentiary hearing, we review the defendant’s claim. See State v. Safford., 22 Conn. App. 531, 534, 578 A.2d 152, cert. denied, 216 Conn. 823, 581 A.2d 1057 (1990) (motion to withdraw guilty plea and briefing of issue preserved claim despite failure to request hearing); see also State v. Watson, supra, 198 Conn. 612-13 (defendant’s claim reviewed despite failure to request evidentiary hearing at any time); State v. Peterson, 51 Conn. App. 645, 648-49, 725 A.2d 333 (1999) (defendant’s claim reviewed despite failure to request hearing at time of motion).
Federal Hydra-Shok hollow point bullets are designed to mushroom and expand on impact, thereby breaking the copper jacket into pieces. Testimony indicated that “that is the bullet that you would use if you wanted to kill something.”
Although on appeal the defendant has raised the propriety of the admissibility of this evidence, for purposes of deciding the issue of whether there was sufficient evidence to support the finding of an aggravating factor; see part. IV of this opinion; we presume it was properly admitted. We nevertheless conclude that the evidence was insufficient to establish the presence of an aggravating factor.
Qualifying as a sharpshooter meant that out of forty shots at a range of300 meters, the defendant hit a target thirty-two to thirty-six times. Qualifying as an expert meant that he hit a target thirty-six out of forty times at ranges from fifty to 300 meters.
Notwithstanding the cases from Alabama cited by the state and Chief Justice McDonald’s dissent; see, e.g., Bush v. State, 695 So. 2d 70 (Ala. Crim. App. 1995); execution-style killings evincing a calculated design to kill, even when perpetrated to avoid later identification, do not, without more, satisfy the § 53a-46a (h) (4) requirements. Noticeably absent from Alabama’s “heinous, atrocious or cruel” calculus is a concern about whether the victim suffered extreme physical or psychological pain or torture or whether such suffering was the defendant’s conscious objective.
Although the defendant’s trial preceded our decision in Boss, the trial court here instructed the jury as follows: “The commission of the crime must have the nature of being committed without pity or conscience and must include the intentional infliction of extreme pain or torture above and beyond that necessarily accompanying the underlying killing. So the defendant must intend to cause extreme pain or torture to the victim above and beyond that necessary to cause the death in order to have the element of an aggravating factor as noticed in this case.”
Therefore, unlike the cases from Arizona cited by the state; State v. Bolton, 182 Ariz. 290, 896 P.2d 830 (1995); State v. Runningeagle, 176 Ariz. 59, 859 P.2d 169 (1993); State v. Greenway, 170 Ariz. 155, 823 P.2d 22 (1991); in Connecticut, the state must prove more than that the victim’s pain was a foreseeable consequence of the defendant’s acts.
It is therefore evident that § 53a-46a (h) (4) has been interpreted narrowly, indeed far more so than similar provisions from either Mississippi or Illinois, two states relied upon by the state and Chief Justice McDonald’s dissent. The broad interpretation of the state’s “especially heinous, atrocious or cruel” aggravating factor by the Mississippi Supreme Court was noted in Clemons v. Mississippi, 494 U.S. 738, 760-61, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990) (Blackmun, J., concurring and dissenting). Similarly, the Illinois statute has been interpreted liberally to allow premeditation to be a part of the “wanton cruelty” calculus. See People v. Johnson, 154 Ill. 2d 356, 368, 609 N.E.2d 294 (1993); People v. Lucas, 132 Ill. 2d 399, 446, 548 N.E.2d 1003 (1989).
See Ariz. Rev. Stat. § 13-703 (F) (10) (1989) (“[t]he murdered individual was an on duty peace officer who was killed in the course of performing his official duties and the defendant knew or should have known, that the victim was apeace officer”); Fla. Stat. c. 921.141 (5) (j) (1999) C'[t]he victim of the capital felony was a law enforcement officer engaged in the performance of his or her official duties”); Ga. Code Ann. § 17-10-30 (b) (8) (1997) (“[t]he offense of murder was committed against any peace officer, corrections employee, or fireman while engaged in the performance of his official duties”); La. Rev. Stat. Ann. § 905.4 (A) (2) (West 1997) (“[t]he victim was a fireman or peace officer engaged in his lawful duties”); Mo. Ann. Stat. § 565.032 (2) (8) (West 1999) (“[t]he murder in the first degree was committed against any peace officer, or fireman while engaged in the performance of his official duty”).
Because eligibility for the death sentence depends upon the state’s ability to prove the existence of an aggravating factor, it is that very factor that plays the constitutional role of distinguishing between those who may be sentenced to death and those who may not be and, as such, it must be objectively understandable. Stringer v. Black, 503 U.S. 222, 233-36, 112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992); Maynard v. Cartwright, 486 U.S. 356, 362-64, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988); State v. Breton, supra, 212 Conn. 263-64. Therefore, to the extent that the state claims that there is no eighth amendment justification for a restrictive interpretation of the statutory language constitutionally required in a one-tiered state, or that the term “heinous and cruel” demands a stricter interpretation when it is an element of the murder as opposed to the aggravant, we disagree.
To the extent that the stale claims that the § 53a-46a (h) (4) tactor can be satisfied in a case in which death has been inflicted by a gunshot wound, it misinterprets the defendant’s argument. Indeed, the defendant does not suggest otherwise. Rather, the defendant contends that there must be something more about the killing to distinguish it from “the norm of [intentional] murders.” Lewis v. State, 398 So. 2d 432, 438 (Fla. 1981).
To prove that the defendant had intended to inflict pain and suffering above and beyond that necessarily accompanying the underlying killing, the state noted the following factors. The defendant was enraged that Bagshaw interrupted his elaborate burglary scheme. Having been alerted by his brother Duane Johnson that the trooper making his rounds might return to the store, the defendant chose to stay to complete the theft rather than escape. The defendant continued to shoot at Bagshaw even after the trooper cried out. The defendant also chose a bullet with great destructive power and the defendant failed to render assistance to Bagshaw, instead leaving him to die. In addition, the defendant hated police and lacked remorse for the killing. The defendant fired seventeen shots, although he could have killed Bagshaw “instantly.” Because we determine that the state failed to prove the defendant’s conduct did in fact inflict extreme physical or psychological pain or torture on Bagshaw above and beyond that necessarily accompanying the underlying killing, we need not decide whether the state proved beyond a reasonable doubt that the defendant specifically intended to inflict such extreme pain and torture.
Similarly, in State v. Webb, 238 Conn. 389, 487, 680 A.2d 147 (1996), we concluded that the jury reasonably found that the victim experienced extreme physical and psychological pain beyond that necessary to accomplish her death. This court related the following evidence: “Prior to her death, [the victim] experienced a prolonged abduction during which she was held at gunpoint while the defendant drove, for approximately twelve minutes, to a park nearly four miles away from the point of abduction. . . . Once they arrived at the park, the defendant either forcibly removed or forced the victim to remove her shoes, pantyhose and panties, and he attempted to assault her sexually. . . . After the victim escaped from the defendant, he shot her twice in the back. These wounds caused 1he victim to suffer excruciating pain and hemorrhaging, caused her to aspirate blood from her mouth, and rendered her unable to walk. . . . While repeatedly crying for help, the victim then began crawling away from the defendant, and crawled for a distance' of approximately thirty-three yards. ... As the victim crawled away and cried repeatedly for help, the defendant got into the car and drove to where the victim had crawled. The defendant got out of the car, walked over to the victim and, standing directly in front of her, shot her three more times: in the chest, in the ear and, bending over the prostrate victim, point blank in the face. This last shot finally killed the victim. As much as three minutes may have passed between the time the defendant first wounded the victim and when he shot her for the last time.
. . . Finally, the bullets used by the defendant were specially designed to generate a high velocity and, as a result, had greater destructive capacity than ordinary bullets. At least two of the bullets were designed with hollow points, which caused them to expand upon impact and cause greater damage than ordinary bullets.” Id., 486-87.
These cases, like the present case, are markedly different from State v. Chaney, 141 Ariz. 295, 312, 686 P.2d 1265 (1984), the case upon which Chief Justice McDonald’s dissent is anchored. In Chaney, “[a]t least one shot from behind was from such short range that powder bums were left on his body. After the attack, the victim, who was a doctor, was conscious for approximately 30 minutes. He was slowly bleeding to death, and he knew it. He told the medics, ‘I’m dying, I’m dying.’ His left arm was almost severed by a bullet, it hung to the body by a muscle; the victim looked at what remained of his arm. Before help arrived, he could hear the radio transmissions and the fact that no one was sure where he was for several minutes. It [was] not necessary to speculate about the victim’s mental anguish; he helplessly and uselessly begged and waited for help.” Id.
The state simply argued that “the actual piece of shrapnel that went up into his arm . . . caused pain in addition to the pain of the bullet . . . .”
In this regard, the state claims that the defendant was familiar with the premises and the surrounding area, that his brother Duane Johnson warned him the first time the trooper drove by and that he could have left before Bagshaw returned. According to the state, the combination of these factors demonstrates that the lolling was senseless.
Duane Johnson was convicted of felony murder in violation of § 53a-54c, capital felony in violation of § 53a-54b, burglary in the first degree in violation of §§ 53a-101 (a) and 53a-8, larceny in the third degree in violation of §§ 53a-119, 53a-124 (a) (2) and 53a-8, and twenty counts of stealing a firearm in violation of §§ 53a-212 and 53a-8. On appeal, we vacated Duane Johnson’s convict ion on the capital felony count but affirmed his conviction on all of the remaining counts. See State v. Johnson, 241 Conn. 702, 706, 699 A.2d 57 (1997).