DocketNumber： SC 16446
Judges： Borden, Norcott, Zarella
Filed Date： 12/28/2004
Status： Precedential
Modified Date： 11/3/2024
Opinion
TABLE OF CONTENTS
I. THE FACTS................. 131
II. GUILT PHASE ISSUES........... 135
A. Motion to Suppress Statements and Other Tangible Evidence....... 135
1. Entry into the Apartment at 418 Mill Street.............. 141
2. Illegal Seizure............ 148
B. Voir Dire of Prospective Jurors . . . 152
1. Granting of State’s Challenges for Cause................. 152
a. Venireperson J.B........... 158
b. Venireperson K.L........... 161
2. Restrictions on the Scope of Voir Dire.................. 165
a. Venireperson A.M.......... 167
b. Venirepersons J.C. and C.H..... 168
c. Venireperson R.L........... 171
d. Venirepersons J.J. and N.A..... 173
e. Venireperson S.P........... 177
C. Evidentiary Rulings.......... 179
1. Expert Testimony Regarding the Severity of the Victim’s Injuries. . 181
2. Admissibility of the Defendant’s Written Confession to the Police 188
3. Sustaining of Objection During Defense Counsel’s Closing Argument ................. 192
4. Admission of Lieutenant O’Leary’s Testimony.............. 194
5. Admission of Neighbor’s Testimony ................. 196
D. Additional Evidentiary Claims Implicating the Defendant’s Right to Present a Defense............. 197
1. Testimony Regarding the Defendant’s Escape from Police Custody 199
2. Evidence Relating to the Defendant’s Mother’s Felony Conviction 202
3. Exclusion of Evidence of Character for Untruthfulness....... 205
4. Exclusion of Opinion Testimony Concerning Lieutenant O’Leary’s Character for Untruthfulness . . . 209
5. Exclusion of the Statement that Virginia Quintero’s Aunt Had Given to the Police............. 211
6. Exclusion of the Testimony of the Defendant’s Expert Witness .... 213
8. Exclusion of Certain Testimony of Virginia Quintero’s Attorney. . . . 216
9. Cumulative Error.......... 218
E. Jury Instructions............ 218
1. Manslaughter by Omission Instruction .................. 219
2. Accessory Liability Instruction . . 226
3. Instruction Regarding the Defendant’s Attempt to Provide Medical Assistance to the Victim...... 229
4. Instructions Regarding Reasonable Doubt................. 232
F. Prosecutorial Misconduct..... 234
1. The Assertion of Contradictory Theories with Respect to the Victim’s Death.............. 240
2. Questioning Regarding Privileged Attorney-Client Communications 244
3. Prosecutorial Misconduct During Closing and Rebuttal Arguments 247
G. Subpoenas Duces Tecum and the State’s Motion to Quash...... 252
1. Order Compelling Defense Counsel to Turn Over State Police Reports................ 253
2. The Trial Court’s Granting of the State’s Motion to Quash and Its Refusal to Conduct an In Camera Inspection of Certain Documents 260
3. Invitation to Overrule Stale v. Harris................... 266
4. Review of the Privileged Records for Brady Material......... 266
H. Sufficiency of the Evidence .... 269
A. Jury Instructions Regarding the Weighing of the Aggravating and Mitigating Factors............. 274
B. The Trial Court’s Acceptance of the Jury’s Second, Corrected Verdict . . 277
1. Authority of the Trial Court to Recall the Jury Prior to Discharge 281
2. Scrivener’s Error.......... 291
3. Double Jeopardy.......... 293
4. Cruel and Unusual Punishment. . 300
C. Right of Allocution........... 302
1. Right of Allocution under the Common Law, General Statutes and Rules of Practice.......... 305
2. Federal Constitutional Right of Allocution.............. 313
3. State Constitutional Right of Allocution................. 319
D. Evidence of Prior Misconduct .... 327
E. Sufficiency of the Evidence of the Existence of the Aggravating Factor 335
F. Mitigation Evidence.......... 338
1. Evidence of the Defendant’s Childhood and His Demeanor Toward a Friend................ 338
2. Shackles and Handcuffs...... 341
G. Other Jury Instructions During the Penalty Phase............. 342
1. Instructions Regarding Juror Participation in the Weighing Process 343
2. Instructions Regarding § 53a-46a (h) (2)................ 348
3. Instructions Regarding the Requirement of Unanimity with Respect to the Finding of the Existence of Mitigating Factors .... 349
5. Incomprehensibility of the Trial Court’s Instructions......... 354
6. Instructions on the Standard of Reasonable Doubt.......... 354
7. Instructions on the Need for Unanimity Regarding the Defendant’s Sentence............... 355
H. The Special Verdict Form....... 358
IV. JUDICIAL MISCONDUCT CLAIMS .... 362
A. Expression of Impatience During the Penalty Phase............. 363
B. Alleged Improprieties During the Guilt Phase............... 365
V. MISCELLANEOUS CONSTITUTIONAL CLAIMS.................... 370
A. Constitutionality of the “Facts and Circumstances” Language of § 53a-46a (d).................. 370
B. Vagueness Challenge to § 53a-46a (i) (4).................... 376
C. The Trial Court’s Denial of the Defendant’s Request for a Hearing to Consider Racial Disparities in the Administration of the Death Penalty 377
D. Constitutionality of General Statutes (Rev. to 1997) § 53a-54b (9)..... 379
E. Constitutionality of Connecticut’s Death Penalty Statutes........ 382
The defendant, Ivo Colon, appeals from the judgment imposing a sentence of death rendered
I
THE FACTS
The jury reasonably could have found the following facts. In July, 1998, the defendant was residing with his girlfriend, Virginia Quintero, and two of her three children, namely, the victim and her sister, Crystal Tellado, in Quintero’s apartment located on the second floor of 633 South Main Street in Waterbury. On July 17,1998, the defendant left the apartment and returned several hours later with food for Quintero and the two children. After Quintero tried unsuccessfully to get the victim to eat, the defendant attempted to feed the victim by stuffing food in her mouth, which apparently caused the victim to vomit. Quintero then removed the victim’s clothing and proceeded to take her to the bathroom. Before Quintero and the victim made it to the bathroom, however, the defendant grabbed the victim and pulled her into the bathroom. Although Quintero attempted to accompany the defendant and the victim, the defendant prevented Quintero from entering the bathroom by closing the door and blocking it with a chair. Thereafter, the defendant, while standing immediately outside the shower, grabbed the victim by her hair and began hitting the victim’s head against the shower wall. After the victim fell to the shower floor as a result of having her head hit the shower wall, the defendant pulled the victim up by her hair and hit her head against the shower wall again. After the defendant hit the victim’s head against the shower wall several times, the victim began bleeding and became unresponsive. Once the defendant realized that the victim was unresponsive, he allowed Quintero into the bathroom and splashed cold water on the victim. The defendant then brought the victim
Shortly thereafter, the defendant’s mother arrived at Quintero’s apartment. Upon observing the victim, the defendant’s mother drove the victim and Quintero to the emergency room at Saint Mary’s Hospital (hospital) in Waterbury. Before leaving, the defendant told Quintero and his mother to tell hospital personnel that the victim was injured when she fell while playing with her sister. The defendant then took the victim’s sister, who, at that time, was three years old, and went to his mother’s apartment at 418 Mill Street in Waterbury.
At the hospital, the victim was treated by Peter Jacoby, an emergency room physician, who pronounced the victim dead shortly after she arrived at the hospital. In addition to the victim’s injuries to her head, Jacoby noticed the existence of several bruises, scrapes, gouge marks, swelling and discoloration on various parts of the victim’s body, as well as evidence that the victim’s arm had been broken. When Quintero was asked what had happened to the victim, Quintero told hospital personnel that the injuries were a result of a fall. A subsequent autopsy revealed, however, that the cause of death was a subdural hematoma
On the basis of the circumstances surrounding the victim’s death, Jacoby directed hospital personnel to
The defendant was apprehended at his mother’s apartment and went to the police station for questioning. After several hours, the defendant gave both oral and written statements to the police in which he admitted to killing the victim. The defendant subsequently was charged with one count of capital felony and one count of murder. The trial court, Damiani, J., held aprobable cause hearing in accordance with article first, § 8, of the Connecticut constitution, as amended by article seventeen of the amendments,
Prior to trial, the defendant filed a motion to suppress certain statements that he had made to the police during the investigation of the victim’s death and tangible evidence that the police had seized without a warrant. After an evidentiary hearing, the trial court, D’Addabbo, J., denied the motion to suppress. The case then was tried to a jury, which found the defendant guilty of both capital felony and murder. Thereafter, at the conclusion of the penalty phase hearing, the jury found that the state had satisfied its burden of proving the existence of an aggravating factor, namely, that the crime had been committed in an especially heinous, cruel or depraved manner. See General Statutes (Rev. to 1997) § 53a-46a (i) (4). The jury also found that the defendant had satisfied his burden of proving the existence of one or more mitigating factors. The jury determined, however, that the aggravating factor outweighed the mitigating factor or factors and returned a special verdict reflecting that determination. The trial court merged the capital felony conviction and the murder conviction, the latter offense being a lesser included offense of the former offense, and rendered judgment in accordance with the jury’s special verdict, sentencing the defendant to death. This appeal followed. Additional facts will be set forth as necessary.
GUILT PHASE ISSUES A
Motion to Suppress Statements and Other Tangible Evidence
The defendant claims that the trial court improperly denied his motion to suppress (1) oral and written statements that he had given to the police, in which he admitted to killing the victim, and (2) other tangible property that the police had seized from his person, including two rings, a belt and a pair of shoes. Specifically, the defendant claims that the trial court improperly concluded that the entry by police into the apartment of the defendant’s mother at 418 Mill Street was justified under the emergency exception to the warrant requirement of the fourth amendment to the United States constitution. E.g., State v. Magnano, 204 Conn. 259, 266, 528 A.2d 760 (1987); see Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); see also State v. Geisler, 222 Conn. 672, 691, 610 A.2d 1225 (1992) (recognizing exception under state constitution). The defendant further claims that even if the emergency exception to the warrant requirement justified the entry into the apartment, the trial court improperly concluded that the defendant voluntarily had agreed to accompany the officers to the police station and contends, instead, that the police illegally seized him without a warrant or probable cause. We reject the defendant’s claim that the court improperly denied his motion to suppress.
The memorandum of decision of the trial court, D ’Adtdabbo, J., concerning the defendant’s motion to suppress contains the following relevant facts. “On July 17, 1998, [the victim] . . . was presented at [the hospital], At or about 7 p.m., members of the Waterbury
“With this information, [O’Leary] went to 418 Mill Street with other police personnel to locate [the defendant] and the other child, who was later learned to be [the victim’s sister]. A plan was established which sent [Detective Balnis] and . . . Wilson [to] the back door and . . . O’Leary, Officer Tony Olivera, [and] Officer Randolph Velez [to] the front door of the apartment. . . . Velez was and is Spanish speaking. . . . O’Leary’s testimony indicated that upon getting to the top floor of the apartment, he [had] heard a child crying and [had] heard someone running in the apartment. . . . O’Leary knocked on the door . . . [and received] no
“[Ricci] testified that the defendant’s demeanor was quiet and calm, and during the course of the time that the defendant was there he had eaten . . . and drank a soda. The police denied that the defendant [had been] abused or threatened while at the police station. . . . O’Leary was moving between the interviews of . . . Quintero and the defendant. At approximately 11 p.m., on July 17, 1998, [O’Leary] relayed to . . . Ricci that . . . Quintero had implicated the defendant in the homicide of [the victim], and [told Ricci] to convey that to the defendant. . . . Ricci testified that when pre
“The defendant then through . . . Velez orally stated how he had hurt the child .... Ricci and . . . Velez did not view the [victim’s] body at the hospital. The defendant was then handcuffed to the chair. . . .
“After the defendant gave the oral statement, [Ricci] reduced that statement to writing. The process utilized was that the defendant was advised of his rights pursuant to Miranda; these advisements were on the top of the statement. They were translated to the defendant in Spanish by . . . Velez. After each sentence of rights [was] read and translated to [the defendant], he initialed them ‘IC.’ Then . . . Ricci would ask questions, [Velez] would translate in Spanish to [the defendant], [the defendant] responded to Velez in Spanish and Velez translated in English to Ricci who typed it into the computer. . . . Velez viewed the statement as typed on the [computer] screen. When completed, [Velez] read the written statement in Spanish to [the defendant]. [The defendant] was asked if any changes should be made . . . [and] he responded no. [The defendant] was also asked if it was the truth [and] he responded yes. The original statement was signed by the defendant and [was] notarized by . . . O’Leary.”
The trial court’s memorandum of decision also notes that the defendant gave the police a second written statement in the early morning hours of July 18, 1998. The same process that the police utilized in taking the first statement was utilized in taking the second statement, namely, that: (1) Velez advised the defendant of his constitutional rights in Spanish and English; (2) the defendant waived those rights; (3) the defendant was presented with the statement form with the Miranda rights printed on top and they were read to him in Spanish; (4) Ricci then would ask the questions in
In rejecting the defendant’s claims, the trial court specifically credited O’Leary’s testimony that, before the police entered the apartment at 418 Mill Street, O’Leary had viewed the victim’s body at the hospital and noted the severe nature of the injuries that the victim had sustained, and that medical personnel had opined that Quintero’s explanation of the cause of the victim’s injuries was not plausible. The trial court also credited O’Leary’s testimony that he had received information that the victim’s sister was with the defendant at an unknown location after abruptly being taken from Quintero’s apartment, and that O’Leary had received inconsistent information about the defendant’s whereabouts. Moreover, the trial court credited O’Leary’s testimony that when he arrived at 418 Mill Street, he heard a child crying and an adult running around the apartment, and that there was no response to his knock and a verbal declaration that the police were at the door.
On the basis of its findings, the trial court concluded that, in light of the information known to O’Leary at the time of entry, it was reasonable for him to believe that an emergency existed, namely, that a child’s health or welfare was subject to imminent potential harm. Thus, the trial court found that the entry into the home was justified under the emergency exception to the warrant requirement.
The trial court also found that the defendant voluntarily agreed to accompany the police to the station for
1
Entry into the Apartment at 418 Mill Street
Our review of the defendant’s claim is governed by well established principles. “Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality. Wong Sun v. United States, [371 U.S. 471, 485, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)].” (Internal quotation marks omitted.) State v. Blackmun, 246 Conn. 547, 553, 716 A.2d 101 (1998). Thus, on appeal, we must determine whether the trial court properly concluded that the defendant’s statements and other evidence from the defendant’s person were not the product of any police illegality. In addition, “in reviewing a trial court’s ruling on the emergency doctrine, subordinate factual findings will not be disturbed unless clearly erroneous and the trial court’s legal conclusion regarding the applicability of the emergency doctrine in light of these facts will be reviewed de novo.” State v. Geisler, supra, 222 Conn. 694. “Conclusions drawn from [the] underlying facts must be legal
“[A] search conducted without a warrant issued upon probable cause is per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions. . . . Searches conducted pursuant to emergency circumstances are one of the recognized exceptions to the warrant requirement under both the federal and state constitutions. . . . [T]he fourth amendment does not bar police officers, when responding to emergencies, from making warrantless entries into premises and warrantless searches when they reasonably believe that a person within is in need of immediate aid. . . . The extent of the search is limited . . . [to] a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. . . . The police may seize any evidence that is in plain view during the course of the search pursuant to the legitimate emergency activities. . . . Such a search is strictly circumscribed by the emergency which serves to justify it . . . and cannot be used to support a general exploratory search.” (Citations omitted; internal quotation marks omitted.) State v. Blades, 225 Conn. 609, 617-18, 626 A.2d 273 (1993).
“The state bears the burden of demonstrating that a warrantless entry falls within the emergency exception. Mincey v. Arizona, [supra, 437 U.S. 390-91]. An objective test is employed to determine the reasonableness of a police officer’s belief that an emergency situation necessitates a warrantless intrusion into the home. . . . [The police] must have valid reasons for the belief that an emergency exception exists, a belief that must be
Moreover, as we have explained, “the emergency doctrine is rooted in the community caretaking function of the police rather than its criminal investigatory function. We acknowledge that the community caretaking function of the police is a necessary one in our society. [I]t must be recognized that the emergency doctrine serves an exceedingly useful purpose. Without it, the police would be helpless to save life and property, and could lose valuable time especially during the initial phase of a criminal investigation. . . . Constitutional guarantees of privacy and sanctions against their transgression do not exist in a vacuum but must yield to paramount concerns for human life and the legitimate need of society to protect and preserve life .... People v. Mitchell, supra, [39 N.Y.2d] 180.” (Citation omitted; internal quotation marks omitted.) State v. Blades, supra, 225 Conn. 619.
In Blades, we rejected the claim of the defendant, Ivan J. Blades, that the trial court improperly had denied his motion to suppress. See id., 624. In that case, the police had received several telephone calls from relatives of the victim who expressed concern about the victim’s whereabouts. Id., 620. The police also learned that the victim and Blades had been involved in a troubled marriage and that the victim’s mother believed
On appeal, Blades claimed that the trial court improperly had concluded that the emergency exception to the warrant requirement justified entry into the apartment. Id., 617. We concluded that, on the basis of “the empirical facts upon which the police acted at the time of the entry”; id., 621; it was reasonable for police to believe that the victim was in immediate need of aid, and, thus, they were justified in making the warrantless entry. See id. In so concluding, we explained that, “[i]n the cool morning of appellate review we will not ignore the heated passion of immediacy that was the essence of the anxious concerns about the victim’s safety and well-being during those nighttime hours.” Id.
In the present case, the trial court specifically credited the testimony of O’Leary that at or before the time of the entry, he had: (1) viewed the victim’s body and observed the nature and type of injuries that she had sustained; (2) discussed with Quintero the purported cause of those injuries; (3) discussed with hospital personnel their opinion that Quintero’s explanation of the victim’s injuries was not plausible; (4) received inconsistent information about the defendant’s whereabouts; and (5) received information that the defendant abruptly had taken the victim’s three year old sister. Moreover, once the police had arrived at 418 Mill Street, O’Leary heard a child crying and an adult running through the apartment. Furthermore, there was no response to the declaration that the police were present.
The defendant relies on our decision in State v. Geisler, supra, 222 Conn. 672, however, in claiming that the emergency exception applies only when the police have direct evidence that a person is in need of immedi
On appeal, the state claimed that the Appellate Court improperly concluded that the entry was not justified under the emergency exception to the warrant requirement. Id., 681. This court determined, however, that the facts known to the officers at the time of the entry reasonably could not have lead to the “conclusion that the driver might have suffered the type of injury that would require emergency aid.” Id., 695. This determination was based on the fact that the police had observed only minor damage to the car and on the fact that the only other evidence that an emergency existed was that the occupant of the house did not respond when the officers rang the doorbell and declared their presence. Id.
Second, we do not read Geisler to require direct evidence of an emergency situation, as the defendant claims. In Geisler, we merely explained that the officers reasonably could not conclude, on the basis of the facts known to them at the time of entry, that an emergency existed to such an extent that the officers could dispense with the necessity of obtaining a warrant supported by probable cause in accordance with the dictates of the fourth amendment. See id., 695-96. We therefore conclude that the trial court properly determined that the entry into the apartment at 418 Mill Street was justified by the emergency exception to the warrant requirement.
Illegal Seizure
The defendant further claims that, upon entering the apartment, the police illegally seized him without a warrant or probable cause. Specifically, the defendant claims that, once inside the apartment, Velez immediately grabbed the defendant’s arm, and that such action constituted an illegal seizure. In response, the state contends that the seizure of the defendant was proper under the doctrine of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
“[I]n justifying [a] particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant that intrusion. Terry v. Ohio, supra, 392 U.S. 21 .... In determining whether a detention is justified in a given case, a court must consider if, relying on the whole picture, the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity. When reviewing the legality of a stop, a court must examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom.
. . . A recognized function of a constitutionally permissible stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime.’'' (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Lipscomb, 258 Conn. 68, 75-76, 779 A.2d 88 (2001); see also Adams
In addition, “[effective crime prevention and detection . . . [underlie] the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. Terry v. Ohio, supra, 392 U.S. 22. Therefore, [a]n investigative stop can be appropriate even where the police have not observed a violation because a reasonable and articulable suspicion can arise from conduct that alone is not criminal. ... In evaluating the validity of such a stop, courts must consider whether, in light of the totality of the circumstances, the police officer had a particularized and objective basis for suspecting the particular person stopped of criminal activity.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Lipscomb, supra, 258 Conn. 76.
We conclude that the seizure of the defendant, after the justified entry into the apartment, was permissible under Terry v. Ohio, supra, 392 U.S. 1. Velez grabbed the defendant’s arm to prevent the defendant from entering the bedroom in order to detain the defendant briefly and to maintain the status quo of the situation. In addition, in light of the nature of the emergency that justified the entry into the apartment, it is clear that the police officers were entitled to detain the defendant briefly to prevent him from entering another room in order to assess the extent of the emergency.
B
Voir Dire of Prospective Jurors 1
Granting of State’s Challenges for Cause
The defendant next claims that the trial court improperly granted the state’s challenges for cause with respect to three prospective jurors, J.B., K.L. and K.S.,
We begin our analysis of the defendant’s claims with a brief review of the governing law. The sixth amend
Furthermore, “[o]ur constitutional and statutory law permit each party, typically through his or her attorney, to question each prospective juror individually, outside the presence of other prospective jurors, to determine the venireperson’s fitness to serve on the jury. Conn. Const., art. I, § 19; General Statutes § 54-82f;
“In Wainwright v. Witt, [supra, 469 U.S. 412] . . . the United States Supreme Court . . . considered the effect [of] a prospective juror’s beliefs concerning the death penalty ... on that individual’s eligibility to serve as a juror in a capital case . . . [and] clarified the standard for determining whether a venireperson properly may be challenged for cause on the basis of his beliefs regarding the death penalty. Specifically, the court concluded that the federal constitution permits the excusal for cause of venirepersons whose opposition to capital punishment would prevent or substan
“Furthermore, a trial judge’s finding that a particular venire [person] was not biased and therefore was properly seated [is] a finding of fact .... [T]he question whether a [venireperson] is biased has traditionally been determined through voir dire culminating in a
a
Venireperson J.B.
Relying on Wainwright v. Witt, supra, 469 U.S. 424, the defendant contends that the trial court improperly granted the state’s challenge to venireperson J.B.
In response to questioning by defense counsel, venireperson J.B., while conveying his ability to follow the law, specifically expressed doubts that the defendant actually would be executed if he, in fact, were sentenced to death.
Finally, we note that the trial court occupied a unique position to observe and to evaluate J.B.’s demeanor when he answered questions during voir dire, and the court specifically relied upon “the way [J.B.] responded” in making its ruling. “We are mindful . . . that appellate review of a cold record is no substitute for the ability of the trial court to witness firsthand a venireperson’s responses and demeanor.” State v. Hodge, 248 Conn. 207,253-54,726 A.2d 531, cert. denied, 528 U.S. 969, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999).
b
Venireperson K.L.
The defendant next claims that the trial court improperly granted the state’s challenge to venireperson K.L. because K.L.’s responses to questions regarding the death penalty indicated that he could follow Connecticut’s capital sentencing scheme. We do not agree.
During voir dire, the state’s attorney asked K.L. about his views on the death penalty and whether any moral or religious beliefs would prevent or impair his ability to serve on the juiy. K.L. stated that a decision regarding the death penalty would require “a lot of soul searching” and that he had been “brought up [as] a Christian and for the most part . . . believe[d] [that] that’s God’s job, you know, who lives and who dies . . . .” In addition, K.L. stated, in response to questions by the state’s attorney regarding his ability to follow the law even if it conflicted with his personal or religious views, that he “would probably have to go with [his] own personal beliefs.” Subsequently, however, K.L. explained that he “would probably follow the law” and that, despite his
The trial court thereafter excused K.L. for cause, noting the inconsistencies in KL.’s testimony: on the one hand, K.L. testified that he would have “to do a lot of soul searching . . . and for the most part . . . [it’s] God’s job,” but, on the other hand, K.L. stated that “he would follow the law, [and] then change[d] his mind or change[d] his words and [said], but, if my personal beliefs affected it, I would have to follow my personal beliefs. Then he [said], but, I am not sure I would follow the judge’s law.” The trial court concluded that “with the terms and the usage of the words that [K.L.] used and the way he gave answers, especially his personal beliefs he would have to follow, I think that it would affect his ability to be a juror on this case.”
KL.’s reservations about imposing the death penalty on the basis of his personal and religious beliefs, his assertion that he would “rather do things right by [God] than by the law,” and his statement that he would follow his personal beliefs if they conflicted with the law, lead us to conclude that the trial court properly excused K.L. for cause. The trial court deduced from KL.’s testimony that KL.’s religious background would have served to “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath”; (internal quotation marks omitted) Wainwright v. Witt, supra, 469 U.S. 424; and we conclude that the trial court did not abuse its discretion in excluding K.L. for cause.
Venireperson K.S.
The defendant next claims that the trial court improperly excused venireperson K.S. for cause on the basis of her views concerning the death penalty. We disagree.
During voir dire, K.S. first acknowledged that, although it would be difficult for her to participate in the process of deciding whether the defendant would receive the death penalty, she indicated that she probably could do so.
We conclude that the trial court properly excused K.S. for cause on the basis of her equivocation about imposing the death sentence, as well as her admission that she “would end up going with [her] moral beliefs” if her beliefs conflicted with the law as given by the court. K.S. consistently hesitated in stating her ability to overcome her personal beliefs if they conflicted with the law and expressed a likely inability to overcome
2
Restrictions on the Scope of Voir Dire
The defendant further contends that the trial court improperly restricted the scope of defense counsel’s voir dire questioning of seven venirepersons, thereby depriving the defendant of the opportunity fully to explore these potential jurors’ biases or prejudices. Specifically, the defendant claims that the trial court improperly restricted defense counsel’s questioning of venirepersons about: (1) whether they would give more credibility to the testimony of police officers; (2) their philosophical views concerning the function of capital punishment in society and whether such a penalty is a “good thing”; (3) their ability to presume the defendant “completely” innocent of any wrongdoing; and (4) whether they wanted to serve on a capital jury. Additionally, the defendant challenges the trial court’s alleged refusal to allow defense counsel to rehabilitate S.P. and claims that the trial court improperly restricted defense counsel from exploring S.P.’s “ability ... to consider [the defendant’s] mitigation evidence [which] was critical in this case. ” The defendant urges that these purported restrictions violated his rights under the sixth, eighth and fourteenth amendments to the United States constitution, article first, § § 8 and 9, of the constitution of Connecticut, article first, § 19, of the constitu
We have observed that “the purpose of examining members of the venire is twofold: first, to provide information upon which the trial court may decide which prospective jurors, if any, should be excused for cause; and second, to provide information to counsel which may aid them in the exercise of their right to peremptory challenge.” (Internal quotation marks omitted.) State v. Ross, 269 Conn. 213, 252, 849 A.2d 648 (2004). We also have noted that “[t]he court should grant such latitude as is reasonably necessary to fairly accomplish the purposes of the voir dire. Clearly, therefore, if there is any likelihood that some prejudice is in the [prospective] juror’s mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted [to ask] questions designed to uncover that prejudice. This is particularly true with reference to the defendant in a criminal case.” (Internal quotation- marks omitted.) Id.
In addition, we have noted that, “[b]ecause of the wide range of cases submitted to juries and the impossibility of establishing a set pattern of questions appropriate for the voir dire examination of prospective jurors, the trial court is vested with broad discretion in determining the scope of counsel’s inquiry. . . . The court has a duty to analyze the examination of venire members and to act to prevent abuses in the voir dire process .... [Accordingly], the court’s actions ordinarily will not be disturbed unless the court has clearly abused its discretion or it appears that prejudice to one of the parties has resulted.” (Citations omitted; internal quotation marks omitted.) Id., 251-52.
Venireperson A.M.
The defendant claims that the trial court abused its discretion in restricting defense counsel’s questioning of A.M. about the credibility afforded to the testimony of police officers. We disagree.
While questioning A.M., defense counsel improperly characterized as the law, rather than as an instruction, the trial court’s charge that the jurors are to treat the testimony of all the witnesses, even police officers, the same.
Although we have recognized that “[w]hen important testimony is anticipated from certain witnesses whose official or semi-official status is such that a juror might reasonably be more, or less, inclined to credit their testimony, a query as to whether a juror would have such an inclination should be permitted”; (internal quotation marks omitted) State v. Lugo, 266 Conn. 674, 688, 835 A.2d 451 (2003); our review of the record reveals that the trial court did not restrict defense counsel's questioning of A.M. about the credibility she might give to the testimony of police officers. The trial court merely corrected defense counsel’s mischaracterization—a fact to which defense counsel himself conceded—of the court’s instructions as the law, and the court invited defense counsel to correct and to clarify his question to A.M., which he did. Defense counsel thereafter voluntarily ceased this line of questioning, concluding his examination of A.M. by questioning her about her views on different matters in the case. Because the trial court did not restrict the scope of defense counsel's voir dire examination of A.M. with respect to the credibility that she would give to the testimony of police officers, we reject the defendant’s claim.
b
Venirepersons J.C. and C.H.
The defendant claims that the trial court improperly restricted defense counsel’s questioning of J.C. and
During voir dire, defense counsel attempted to ask both J.C. and C.H. about their opinions regarding the purposes that the death penalty serves.
Even though the trial court limited the scope of defense counsel’s voir dire of J.C. and C.H. by precluding questions pertaining to their philosophical views on capital punishment, we conclude that the trial court
c
Venireperson R.L.
The defendant next claims that the trial court improperly sustained the state’s attorney’s objections to defense counsel’s statements to R.L., during voir dire, that “the presumption of innocence says you have to presume [the defendant] innocent, perfectly clean slate as he sits here”; (emphasis added); and that “the jurors have to presume an accused person completely innocent of any wrongdoing.” (Emphasis added.) The defendant maintains that the trial court should have permitted defense counsel to explore R.L.’s “ability to presume [the defendant] completely innocent unless
We conclude that the trial court acted within its broad discretion when it precluded defense counsel from modifying the phrase “presumption of innocence” with the word “completely.” See State v. Ross, supra, 269 Conn. 251 (“[b]ecause of the wide range of cases submitted to juries and the impossibility of establishing a set pattern of questions appropriate for the voir dire examination of prospective jurors, the trial court is vested with broad discretion in determining the scope of counsel’s inquiry” [internal quotation marks omitted]). Additionally, the record reveals that defense counsel, in fact, did explore R.L.’s ability to presume the defendant innocent. After the court had sustained the objections of the state’s attorney, defense counsel asked R.L. if
d
Venirepersons J.J. and N.A.
The defendant contends that the trial court improperly precluded defense counsel from asking venireperson J.J. whether he wanted to serve on a capital jury and, if so, why he wanted to do so.
The defendant further claims that the trial court improperly declined to permit defense counsel to ask J.J. whether, in the present case, he felt that “an eye for an eye is appropriate.”
We previously have cautioned that “[questions addressed to prospective jurors involving assumptions or hypotheses concerning the evidence which may be offered at the trial . . . should be discouraged .... [A]ll too frequently such inquiries represent a calculated effort on the part of counsel to ascertain before the trial starts what the reaction of the venire [person] will be to certain issues of fact or law or, at least, to implant in [the venireperson’s] mind a prejudice or prejudgment on those issues.” (Internal quotation marks omitted.) State v. Lugo, supra, 266 Conn. 684; accord Green v. Johnson, 160 F.3d 1029, 1034 (5th Cir. 1998); Hobbs v. Lockhart, 791 F.2d 125, 129-30 (8th Cir. 1986); Commonwealth v. McGrew, 375 Pa. 518, 525, 100 A.2d 467 (1953); see also 47 Am. Jur. 2d, Jury § 206 (1995), pp. 887-89. Moreover, we have declared that “[s]uch an effort transcends the proper limits of the voir dire and represents an abuse of the statutory right of examination.” (Internal quotation marks omitted.) State v. Lugo, supra, 684.
In the present case, the trial court acted within its discretion and properly limited the scope of defense counsel’s questioning of J.J. insofar as defense counsel improperly sought predictions based on the facts of the case. Moreover, the trial court subsequently permitted defense counsel to ask hypothetical questions of J.J., in response to which J.J. provided informative answers. Accordingly, there was no abuse of discretion.
We conclude that the trial court properly restricted the scope of defense counsel’s question because it
Moreover, as the record reveals, defense counsel nevertheless was able to elicit responses from N.A. that sufficed to apprise defense counsel of N.A.’s ability to keep an open mind with respect to the penalties of death or life imprisonment. Accordingly, we reject the defendant’s claim.
e
Venireperson S.P.
The defendant’s final claim regarding voir dire is that the trial court improperly restricted defense counsel’s scope of examination with respect to S.P. by prohibiting defense counsel from rehabilitating her. Additionally, the defendant claims that the trial court improperly restricted the scope of defense counsel’s examination of S.P. with respect to her consideration of mitigating factors. We do not agree.
A review of the record reveals that the trial court, in fact, did allow defense counsel to attempt to rehabilitate S.P. after both parties had finished questioning her. Upon defense counsel’s request to ask follow-up ques
The record discloses that the trial court permitted defense counsel to rehabilitate S.P., albeit through the trial court. After the trial court questioned S.P., defense counsel stated that the trial court’s inquiry was “[acceptable” to him. Thus, because defense counsel was able to rehabilitate S.P. through the trial court’s follow-up inquiry, we reject the defendant’s claim.
The state’s attorney had objected to what he deemed to be a “confusing question” through which defense counsel asked S.P. whether she would be able to return a verdict indicating that the jury had found an aggravating factor to have existed, “[e]ven though [she is] opposed to the death penalty . . . .” After the trial court had sustained the objection because “it was not an accurate representation of what the process is and ... I don’t want jurors to think of the process one way and then the court instructs them as to another way,” defense counsel resumed his questioning of S.P. Specifically, defense counsel asked S.P. whether she would “openly listen to mitigating factors,” to which S.P. responded, “Absolutely.”
The trial court’s ruling sustaining the state’s attorney’s objection notwithstanding, the record reveals that defense counsel asked S.P. whether she would consider mitigating factors and received an unequivocal and affirmative answer to that question. Accordingly, because S.P. clearly indicated that she could consider the existence of mitigating factors, we reject the defendant’s claim.
C
Evidentiary Rulings
The defendant next claims that certain evidentiary rulings of the trial court were improper. Specifically, the defendant claims that the trial court improperly: (1) permitted the physician who conducted the autopsy
Our analysis of the defendant’s evidentiary claims is based on well established principles of law. “The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Dehaney, 261 Conn. 336, 354—55, 803 A.2d 267 (2002), cert. denied, 537 U.S. 1217, 123 S. Ct. 1318, 154 L. Ed. 2d 1070 (2003); accord State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998).
Expert Testimony Regarding the Severity of the Victim’s Injuries
The following facts are relevant to the defendant’s claim. Prior to trial, the defendant filed a motion in limine to exclude, inter alia, testimony from any medical examiners or treating physicians that drew a comparison between the victim’s injuries and any injuries that they had observed in other cases or testimony regarding their personal opinions about their feelings upon observing the victim. Subsequently, the trial court ruled on the defendant’s motion before Ira Kanfer, the physician who performed the autopsy of the victim, testified. The trial court concluded that treating physicians or medical examiners who testified would not be permitted to express their opinions that this case was the worst case of numerous cases involving children who had died as a result of blunt force trauma that they had seen during their careers. The trial court permitted such experts to testify, however, regarding the nature of the injuries that the victim had sustained. The state complied with the trial court’s order during direct examination of Kanfer and refrained from asking Kanfer to compare the victim’s injuries to any injuries that he had observed in other cases in which he had been involved. Thereafter, during cross-examination, defense counsel asked Kanfer how many of the 2500 autopsies he previously had performed involved children who had died of blunt force trauma. In response, Kanfer testified that “[d]ozens and dozens” had involved children who died as a result of blunt force trauma. In addition, during cross-examination, defense counsel inquired as to Kan-fer’s pretrial hearing testimony that, prior to her death, the victim had been in a coma for two days. Kanfer admitted on cross-examination that his prior testimony regarding the victim being in a coma was mistaken.
Thereafter, Kanfer testified that, during his sixteen years of experience and approximately fifty cases of homicidal blunt force trauma to a child, the present case was “the most severe case” that he ever had seen. In addition, on redirect examination, Kanfer testified
On appeal, the defendant claims that the trial court improperly allowed Kanfer to testify that the present case was the most severe that he had observed during his career and that the autopsy was a “stressful event . . . .” Specifically, the defendant claims that the testimony was irrelevant and that its probative value was outweighed by the risk of unfair prejudice. The defendant also claims that the trial court improperly concluded that defense counsel, during cross-examination of Kanfer, had opened the door to the testimony about the severity of the victim’s injuries. The state, in response, claims that the evidence that the victim’s injuries were the most severe was relevant to the defendant’s intent. The state further claims that Kanfer’s testimony that the autopsy was stressful was relevant to explain the reason for his prior mistaken testimony. We conclude that the trial court did not abuse its discretion in allowing Kanfer’s testimony on redirect examination.
“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not
Applying these principles, we conclude that the trial court did not abuse its discretion when it allowed Kanfer to testify that, out of approximately fifty cases that involved a child dying as a result of a blunt force trauma, the present case was the most severe. As the state notes, the fact that the victim’s injuries were the most severe that Kanfer had observed was relevant to the issue of whether the defendant had intended to kill the victim. In other words, the severity of the victim’s injuries had a tendency to make the existence of a fact, namely, the defendant’s intent to kill the victim, more probable than it would have been without the evidence. Thus, the trial court properly determined that Kanfer’s testimony about the severity of the victim’s injuries was relevant. In addition, Kanfer’s explanation of the reason for the error in his prior testimony, namely, because the autopsy of the victim was a stressful event, was relevant evidence as it served to rehabilitate his credibility. See, e.g., State v. Walker, 214 Conn. 122, 130, 571 A.2d 686 (1990) (“[i]n order to avoid the effect of cross-examination a witness may be asked for reasons for acts or conduct on his part, or for inconsistent statements that have been brought out on cross-examination” [internal quotation marks omitted]).
The defendant next claims that the probative value of Kanfer’s testimony regarding the severity of the victim’s injuries was outweighed by the danger of unfair prejudice. “Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial
We conclude that the trial court properly determined that the probative value of Kanfer’s testimony regarding the severity of the victim’s injuries was not outweighed by the risk of unfair prejudice. To the contrary, the trial court made it clear to the state that it would not allow Kanfer to use terms or phrases that could be considered highly prejudicial and inflammatory, such as “the worst” case or “most horrific” beating. In our view, the trial court properly weighed the probative value of Kanfer’s testimony against the danger of unfair prejudice, and the admission of Kanfer’s testimony as to the severity of the victim’s injuries was not unduly prejudicial to the defendant. Moreover, it is unlikely that the brief and passing testimony “arouse[d] the emotions of the jur[ors]”; State v. Sandoval, supra, 263 Conn. 544; especially in light of the numerous autopsy photographs, which illustrated the severity of the victim’s injuries, to which the jury was exposed during trial.
The defendant finally claims that the trial court improperly concluded that defense counsel opened the door to inquiry about the severity of the victim’s injuries when he asked Kanfer on cross-examination how many of his cases involved children who had died as a result of blunt force trauma. “Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party. Even
“The doctrine of opening the door cannot, of course, be subverted into a rule for injection of prejudice. . . . The trial court must carefully consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit it only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence. . . . Thus, in making its determination, the trial court should balance the harm to the state in restricting the inquiry with the prejudice suffered by the defendant in allowing the rebuttal.” (Citations omitted; internal quotation marks omitted.) State v. Graham, 200 Conn. 9, 13-14, 509 A.2d 493 (1986).
Even if we assume that the defendant is correct in claiming that defense counsel did not open the door to Kanfer’s testimony, we conclude that the evidence regarding the severity of the victim’s injuries in comparison to the injuries of other victims of blunt force trauma would have been admissible to establish the intent of the defendant when he killed the victim. We note that “[t]he specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994). In addition, we note that when “the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s
2
Admissibility of the Defendant’s Written Confession to the Police
The defendant next claims that the trial court improperly allowed the state to introduce into evidence the defendant’s written confession to the police. The defendant contends that the evidence was not authenticated properly. The state claims in response that the evidence properly was authenticated by the police officer who translated it and observed the transcription. We agree with the state.
“Authentication is ... a necessary preliminary to the introduction of most writings in evidence .... In general, a writing may be authenticated by a number of methods, including direct testimony or circumstantial evidence. . . .
“Both courts and commentators have noted that the showing of authenticity is not on a par with the more technical evidentiary rules that govern admissibility, such as hearsay exceptions, competency and privilege.
. . . Rather, there need only be a prima facie showing of authenticity to the court. . . . Once a prima facie showing of authorship is made to the court, the evi
Prior to trial, the defendant filed a motion in limine to exclude his written statement to police, claiming that it could not be authenticated properly. The trial court denied the motion, concluding that the document properly was authenticated. Thereafter, the state’s attorney offered the document through Officer Velez, the bilingual police officer who had translated from English to Spanish, and then from Spanish to English, for the defendant and Lieutenant Ricci. Velez testified regarding the process through which the police had taken the defendant’s statement. Specifically, Velez testified that Ricci would ask him the question in English, and Velez would, in turn, translate the question into Spanish and ask the defendant. The defendant then would answer the question in Spanish, and Velez would translate the defendant’s answer into English for Ricci, who then would type the answer into the computer. In addition, the answers would appear on the computer screen, and Velez would read what Ricci had typed. After the defendant finished giving his statement, Velez read it to him in Spanish, and the defendant signed it. In addition, Velez identified the statement that the state’s attorney sought to introduce as the statement that the defendant had given to the police on the night of his arrest.
With this background in mind, we conclude that the trial court did not abuse its discretion in determining that the state’s attorney properly authenticated the written statement that the defendant had given to the police on the night of his arrest. There was sufficient evidence
The defendant relies, however, on our decision in State v. Rosa, 170 Conn. 417, 426, 365 A.2d 1135, cert. denied, 429 U.S. 845, 97 S. Ct. 126, 50 L. Ed. 2d 116 (1976), to support his claim that the statement was not authenticated properly. In Rosa, the defendant, Jose Miguel Rosa, challenged the trial court’s denial of his motion to suppress an oral confession that he had given to a police officer after his arrest for his involvement in a murder. Id., 424. Rosa gave his oral confession to police after giving a written confession that was deemed inadmissible by this court because the written confession was not authenticated. Id., 426-27. Specifically, a few hours after Rosa had been arrested, he told the police that he was prepared to make a formal statement. Id., 421. A Spanish speaking officer thereafter read Rosa bis Miranda warnings, in Spanish and in English, from a printed form, which Rosa signed. See id. The defendant then gave his statement in Spanish, and the Spanish speaking officer translated the statement to English for another officer, who typed the statement in English. Id. When the other officer finished typing the statement, the Spanish speaking officer read it back to Rosa in Spanish, and Rosa signed the document. See id., 421-22.
In discussing Rosa’s challenge to the admission of his subsequent oral statement, we concluded that the trial court properly suppressed the written statement because the state had not established that the statement was authenticated properly. Id., 426-27. Specifically, we stated: “The written confession was an extrajudicial statement offered by the state for the truth of its contents. As such, it required proper authentication, which the state failed to establish, thus justifying [its] exclusion .... Evidence concerning the circumstances at the police station revealed that [Rosa] spoke Spanish
Although, at first blush, our decision in Rosa may seem to be applicable, we are convinced that it does not control the present case. Although the procedure through which the defendant’s statement was obtained is similar to the procedure that the police had employed in Rosa, the procedure employed in the present case included additional steps that did not exist in Rosa. First, Velez testified that he read what Ricci was typing on the computer screen and confirmed that it was, in fact, what he just had translated. Thus, although Ricci spoke only English, Velez verified that the statement that Ricci was transcribing was an accurate representation of what the defendant had stated in Spanish. Second, Velez actually testified at the defendant’s trial, thereby subjecting himself to cross-examination regarding both his translation and his identification of the document as the statement that the defendant had given on the night of his arrest. In addition, the defendant never had challenged—and does not do so on appeal— Velez’ ability as a translator. Accordingly, the facts of the present case are distinguishable from the facts of Rosa, and the trial court did not abuse its discretion in concluding that the defendant’s written statement properly was authenticated. See Commonwealth v. Colon, 408 Mass. 419, 427-28, 558 N.E.2d 974 (1990) (concluding that statement that had been translated from Spanish to English properly was authenticated after translating officer testified as to fairness and accu
3
Sustaining of Objection During Defense Counsel’s Closing Argument
The defendant next claims that the trial court improperly sustained the objection of the state’s attorney during defense counsel's closing argument. Dining closing arguments, defense counsel suggested that the jury should credit the testimony of the defendant’s medical expert, Louis Roh, a forensic pathologist, rather than the testimony of Ira Kanfer, the state’s medical expert, because the state had failed to call additional experts to rebut Roh’s testimony. The state’s attorney objected to this line of argument, claiming that the state was not required to call rebuttal witnesses. The trial court sustained the objection.
Upon review of the record, there is nothing to persuade us that the trial court abused its broad discretion in sustaining the state’s attorney’s objection. As the state notes, the state is not required to call rebuttal witnesses; the state may choose to rely on the testimony adduced during its case-in-chief. Thus, the trial court did not abuse its discretion in sustaining the objection of the state’s attorney.
In support of his claim, however, the defendant relies on State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000). In Malave, we abandoned the missing witness rule in criminal cases; id., 730, 738; which previously had allowed the trial court to instruct the jury that it could draw an adverse inference from the failure of a party to produce an available witness whom the party naturally would have called to testify. Id., 728-29. In abandoning the missing witness rule, however, we
The defendant also relies on Ruiz v. Hamburg-American Line, 478 F.2d 29, 32 (9th Cir. 1973). In Ruiz, the third party plaintiff, Hamburg-American Line (Hamburg), sought indemnification from Jones Stevedoring Company (Jones), the third party defendant. Id., 30. During trial, the district court denied Hamburg’s motion for a continuance in order to seek rebuttal witnesses to address what Hamburg characterized as surprise witnesses produced by Jones. Id., 31. Thereafter, during closing arguments, counsel for Jones repeatedly referred to the fact that Hamburg had failed to call rebuttal witnesses. Id., 33. In addressing Hamburg’s claim on appeal that counsel’s remarks were inappropriate in view of the trial court’s denial of Hamburg’s motion for a continuance, the Ninth Circuit Court of Appeals stated: “Although generally comment on the failure to call available rebuttal witnesses is proper, under these circumstances ... we are convinced that the judgment cannot stand.” (Emphasis added.) Id., 34. The defendant relies on this brief passage to support his claim that defense counsel’s comment regarding the state’s failure to call rebuttal witnesses was proper.
4
Admission of Lieutenant O’Leary’s Testimony
The defendant next claims that the trial court improperly allowed O’Leary to testify that, after speaking with Crystal Tellado, the victim’s three year old sister, at the apartment located at 418 Mill Street, he asked the defendant to come to the police station in order to investigate the victim’s death further.
“An out-of-court statement is hearsay when it is offered to establish the truth of the matters contained therein. ... A statement offered solely to show its effect upon the hearer, [however], is not hearsay.” (Citations omitted; internal quotation marks omitted.) State v. Cruz, 212 Conn. 351, 356-57, 562 A.2d 1071 (1989). In Cruz, this court rejected the claim of the defendant, Jose L. Cruz, that certain testimony of a police officer contained inadmissible hearsay. See id., 357. In Cruz, the police officer testified at trial that, after he interviewed several unidentified parties at the scene of a shooting, he sought a Hispanic male whose street name was “Cheo.” Id., 356. Cruz claimed that the trial court improperly had allowed the police officer to testify concerning the information that the officer had received from several unidentified parties because such testimony contained inadmissible hearsay. See id.
In Cruz, we noted that no testimony actually was elicited as to anything Cruz did or was accused of doing. Id., 357. Specifically, we explained that, had the police officer “been permitted to testify as to the specific contents of [the out-of-court] conversations, that testimony would have been inadmissible.” Id. We observed, however, that the state “offered [the officer’s] testimony
We find the reasoning of Cruz persuasive. As in Cruz, the officer in the present case, namely, O’Leary, did not testify as to anything the victim’s sister actually had said to him. Indeed, the trial court precluded O’Leary from testifying as to the victim’s sister’s statement, which she made in response to questioning about the bruises on her leg, that “[the defendant] did it.” In addition, the state offered the testimony of O’Leary not for the purpose of identifying the defendant as the perpetrator of the victim’s death or the injuries of the victim’s sister, but for the limited purpose of explaining why the police had asked the defendant to accompany them to the police station. O’Leary’s testimony, therefore, was not barred by the hearsay rule, and, consequently, the admission of that testimony did not violate the defendant’s right to confront the witnesses against him. See Tennessee v. Street, 471 U.S. 409, 418, 105 S. Ct. 2078, 85 L. Ed. 2d 425 (1985) (admission of out-of-court statement for “nonhearsay” purposes “raises no Confrontation Clause problems”).
5
Admission of Neighbor’s Testimony
The defendant’s final evidentiary claim is that the trial court improperly allowed Juana Rivera, a neighbor of the victim, to testify that she had seen bruises on the victim’s sister on the day of the victim’s death.
Rivera testified that, on the day of the victim’s death, she saw Virginia Quintero carry the victim’s sister out of Quintero’s apartment. When asked to describe the victim’s sister when she saw her, Rivera testified that she had bruises on her.
We conclude, upon review of the record, that the trial court did not abuse its wide discretion in allowing Rivera’s testimony. In particular, it was highly unlikely that the testimony had the effect of leading the jury to conclude that it was the defendant who had caused the bruises on the victim’s sister in light of the fact that Rivera was the first witness; the jury had no other information that would have led it to conclude that it was the defendant who had inflicted the bruises on the victim’s sister. Accordingly, the trial court’s decision to allow Rivera to testify as to her observations on the day of the victim’s murder was not an abuse of discretion.
D
Additional Evidentiary Claims Implicating the Defendant’s Right to Present a Defense
The defendant next claims that certain of the trial court’s evidentiary rulings deprived him of his right to present a defense. Specifically, the defendant claims that the trial court improperly precluded: (1) him from testifying regarding his escape from police custody; (2)
We begin our analysis of the defendant’s claims with a review of the governing legal principles. “The federal constitution require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The sixth amendment ... includes the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies. . . .
“A defendant is, however, bound by the rules of evidence in presenting a defense. . . . Although exclusionary rules of evidence cannot be applied mechanistically to deprive a defendant of his rights, the constitution does not require that a defendant be permitted to present every piece of evidence he wishes. . . . Thus, our law is clear that a defendant may introduce
In addition, we review the defendant’s claims under the abuse of discretion standard that we previously explained in this opinion. See, e.g., id., 543. “Accordingly, the trial court’s ruling is entitled to every reasonable presumption in its favor . . . and we will disturb the ruling only if the defendant can demonstrate a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) Id.
1
Testimony Regarding the Defendant’s Escape from Police Custody
The defendant claims that the trial court improperly precluded him from testifying regarding his escape from police custody. Specifically, the defendant claims that the testimony was relevant to show his state of mind at the time he signed his statement in which he admitted to killing the victim and that the testimony tended to corroborate his testimony that he signed the statement out of ignorance because he was willing to do anything to leave the police station. The state claims, in response, that no evidence was offered to establish a connection between the defendant’s signing of the confession and the subsequent escape, and, therefore, the evidence was not relevant. In addition, the state contends that, even if the exclusion of such evidence was improper, it nevertheless was harmless.
The following facts are relevant to the defendant’s claim. After being questioned by the police and giving statements, the defendant escaped from the Waterbury police department the day after the victim’s death. The
At trial, the defendant testified before the jury that, while at the police station on the night of the victim’s death, he was nervous and wanted to leave; he also testified that when he asked to leave, the officers gave him some papers and said he could leave when he signed them. The defendant testified that he signed the papers because he wanted to leave. Thus, the defendant’s claim was that the only reason he signed the statements in which he confessed to killing the victim was because he was desperate to leave the police station. After giving this testimony, the defendant sought to testify regarding his escape. The state’s attorney objected to any testimony regarding the escape, however, claiming that it was irrelevant and that it involved a collateral issue. Defense counsel claimed that the evidence was relevant to show that the defendant was desperate to leave the police station in order to obtain drugs and that he would have signed anything, including a confession, just to be able to leave. The trial court sustained the objection and precluded any evidence as to the escape, concluding that it was irrelevant and lacked a proper foundation.
As we discussed previously, “[Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worth or safe to be admitted in the proof of the latter. . . . Evidence is not rendered
We conclude that evidence of the defendant’s escape from police custody was at least minimally relevant to the defendant’s claimed state of mind at the time he signed his confession. Thus, the fact that the defendant escaped from police custody tends to support the relevant claimed fact that the only reason that he signed the confession was that he was desperate to leave the police station in order to find drugs. Because evidence of the defendant’s escape was relevant to his state of mind at the time he signed his confession admitting to killing the victim, the trial court improperly precluded the defendant from testifying regarding his escape.
We conclude that, although the exclusion of the evidence of escape was improper, such impropriety constituted harmless error. We first note that the evidence of escape enjoyed little probative value. The state’s attorney represented, and defense counsel did not dispute, that the escape occurred nearly twelve hours after the defendant had signed the confession. Thus, the connection between the defendant’s state of mind at the time that he signed the confession and his state of mind twelve hours later when he escaped is, at best, tenuous. Moreover, the defendant never testified that he was suffering from the effects of withdrawal or that he was under the influence of drugs when he signed the confession. Instead, the defendant merely testified that he was desperate to leave the police station.
Second, if the trial court had permitted the defendant to testify regarding his escape, the state would have been allowed to seek an instruction to the jury that
2
Evidence Relating to the Defendant’s Mother’s Felony Conviction
The defendant next claims that the trial court improperly precluded Maria Ocasio, the defendant’s mother, from testifying about the details of her felony conviction. Specifically, the defendant claims that the state opened the door to defense counsel’s questions regarding the details of Ocasio’s conviction, which resulted from her actions during the defendant’s escape. The defendant also contends that the trial court improperly precluded defense counsel from introducing certain department of correction records establishing the date of Ocasio’s release from prison. The state claims that the trial court properly excluded this evidence.
On appeal, the defendant claims that the trial court improperly precluded Ocasio from testifying about the details of her conviction because the state had opened the door
The defendant further claims that the trial court improperly precluded defense counsel from introducing into evidence department of correction records corroborating Ocasio’s date of release from prison. During trial, Quintero admitted to sending letters to the defendant from prison, but claimed that she wrote the letters only because Ocasio, her cellmate, had asked her to do so. Defense counsel sought to attack Quintero’s credibility by eliciting testimony from Ocasio that, after she had been released from prison, she received letters from Quintero and that Quintero instructed Ocasio to send those letters to the defendant in jail. Specifically, Ocasio testified that she was released from prison on January 8, 1999, and that she received letters from Quintero in February, March and April of that same year with direction to send them to the defendant. Subsequently, defense counsel offered department of correction records that corroborated Ocasio’s testimony that she had been released from prison in January, 1999. The
We conclude that the trial court did not abuse its discretion in precluding defense counsel from introducing the department of correction records into evidence. In the present case, Ocasio testified that she was released from prison in January, 1999, and that she continued to receive letters from Quintero subsequent to that time. The state never challenged that testimony, and there was no other evidence to indicate that Ocasio was released from prison at a different time than that to which she testified. Therefore, the trial court properly excluded the department of correction records as cumulative of Ocasio’s testimony. See, e.g., State v. Ramos, 261 Conn. 156, 180, 801 A.2d 788 (2002).
3
Exclusion of Evidence of Character for Untruthfulness
The defendant next claims that the trial court improperly precluded defense counsel from asking Detective Jones, Lieutenant O’Leary and Officer Velez certain questions concerning specific instances of conduct that, according to the defendant, were probative of their character for untruthfulness. The defendant further claims that, by precluding these questions, the trial court unduly restricted his ability to cross-examine the witnesses against him, in violation of his confrontation rights. We are not persuaded.
“ [C]ross-examination is the principal means by which the credibility of witnesses and the truth of their testimony is tested.” (Internal quotation marks omitted.) State v. Chance, 236 Conn. 31, 58, 671 A.2d 323 (1996). “The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination.” (Internal
In the present case, defense counsel attempted to cross-examine three state’s witnesses, namely, Jones, O’Leary and Velez, concerning specific acts of misconduct. First, defense counsel sought to ask the witnesses about the contents of an anonymous letter to the editor that had been published in The Waterbury Observer as the basis of certain acts of misconduct by all three witnesses. Second, with respect to O’Leary, defense counsel attempted to ask O’Leary about certain information contained in an internal affairs report.
We are persuaded that the trial court did not abuse its discretion in limiting defense counsel's cross-examination of Jones, O’Leary and Velez. First, we agree with the trial court’s conclusion that an anonymous letter to a newspaper editor, without more, does not serve to establish a good faith basis for the cross-examination of a witness regarding alleged prior misconduct; such an examination would constitute nothing more than a fishing expedition. See, e.g., State v. Barnes, supra, 232 Conn. 749-50 (“[i]t is entirely proper for a court to deny
4
Exclusion of Opinion Testimony Concerning Lieutenant O’Leary’s Character for Untruthfulness
The defendant’s next claim is that the trial court improperly precluded Richard Lyding from offering his opinion as to O’Leary’s character for untruthfulness. We conclude that the trial court did not abuse its discretion.
Defense counsel sought to elicit the opinion testimony of Lyding, a former captain of the Connecticut state police, that O’Leary was untruthful. During
“The veracity of a witness may be attacked by evidence of the witness’ general reputation in the community for veracity. ... A witness’ character for veracity may also be proved by opinion evidence of those who have formed an opinion as to the character of the witness with respect to truth and veracity. . . . Whether a witness has had sufficient contact with a person to be qualified to testify as to a particular character trait is a matter peculiarly within the discretion of the trial court and its ruling will be disturbed only in a clear case of abuse or of some error in law. . . . The witness
The trial court found that Lyding’s only contact with O’Leary had occurred more than four years prior to trial and more than two years prior to O’Leary’s participation in the investigation of the victim’s death. Moreover, Lyding’s opinion primarily was based on a two to three hour interview that was conducted in connection with an investigation of O’Leary’s alleged misconduct and at which O’Leary’s attorney was present. Under these circumstances, we conclude that the trial court did not abuse its discretion in concluding that defense counsel had not laid an adequate foundation for the admissibility of Lyding’s opinion regarding O’Leary’s character for untruthfulness. See State v. Gould, supra, 241 Conn. 20 (opinion regarding witness’ veracity properly excluded when one and one-half years had passed between time opinion was formed and time of trial).
5
Exclusion of the Statement that Virginia Quintero’s Aunt Had Given to the Police
The defendant claims that the trial court improperly excluded a statement that Maria Hernandez, Quintero’s aunt, had given to the police on the night that the victim had died. Specifically, the defendant claims that Hernandez’ statement fell within the residual exception to the hearsay rule.
Defense counsel attempted to introduce the statement of Hernandez, who was deceased at the time of trial, through the testimony of Detective Balnis. Defense counsel claimed that the statement that Hernandez had given to the police revealed that Quintero had spoken
Because Hernandez’ statement contained an additional level of hearsay, namely, what Quintero had told Hernandez, both Quintero’s statement to Hernandez and Hernandez’ statement to the police about what Quintero had told her must be independently admissible under a hearsay exception in order for Hernandez’ statement to be substantively admissible. See Conn. Code Evid. § 8-7 (“[h]earsay within hearsay is admissible only if each part of the combined statements is independently admissible under a hearsay exception” [emphasis added]).
“The residual, or catch-all, exception to the hearsay rule allows a trial court to admit hearsay evidence not admissible under any of the established exceptions if: (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the tradi
We conclude that the trial court did not abuse its discretion in excluding Hernandez’ statement. Quintero’s first written statement to the police, in which she claimed that the victim had died when she fell in the shower and that the victim had thrown up water already was before the jury. Because the fact that Quintero first claimed that the victim’s death had been an accident already was before the jury, it was unnecessary to introduce Quintero’s similar statement to Hernandez through the admission of Hernandez’ statement. See Conn. Code Evid. § 8-9 (hearsay statement admissible under residual exception to hearsay rule only “if the court determines that . . . there is a reasonable necessity for the admission of the statement”). Furthermore, the trial court properly excluded Hernandez’ statement because it contained another level of hearsay, namely, Quintero’s statement to Hernandez, that was not independently admissible under an exception to the hearsay rule.
6
Exclusion of the Testimony of the Defendant’s Expert Witness
The defendant next claims that the trial court improperly precluded the defendant’s expert, Louis Roh, a
During direct examination, defense counsel asked Roh the following question: “The injury that you’ve described as the cause of death, the blow to the right forehead which caused the left side subdural hematoma, would it take a man to inflict that injury or could a woman inflict that injury?” Before Roh could answer, the state’s attorney objected to the question, and the trial court sustained the objection without further explanation. Defense counsel made no further offer of proof and did not ask Roh any further questions with respect to that subject.
The record in the present case does not reveal how Roh would have answered the question or what details he would have provided in answering the question. “It is therefore impossible to determine whether those details were so important to the defendant’s case that their preclusion . . . impaired his constitutional rights.” State v. Smith, 219 Conn. 160,164, 592 A.2d 382 (1991). Moreover, even if the trial court had allowed Roh to answer and his answer would have been that a woman could have caused the victim’s fatal injury, his answer would have been nothing more than speculation in that there was no foundation laid for the basis of his answer. Accordingly, the trial court did not abuse its discretion in precluding Roh from giving his opinion regarding whether a woman could have caused the victim’s fatal injury.
7
Exclusion of the Testimony of Officer Michael Dimaria
The defendant’s next claim is that the trial court improperly excluded the testimony of Officer Dimaria
On appeal, the defendant claims that Dimaria should have been allowed to testify regarding the statement that the defendant had made to him during the arrest because the statement concerned the defendant’s then-existing physical condition or, alternatively, constituted a spontaneous utterance. See Conn. Code Evid. § 8-3 (2) and (3). Our review of the record indicates, however, that the defendant did not raise these claims before the trial court. “Only in the most exceptional circumstances . . . will this court consider a claim that was not raised [below]. . . . Such exceptional circumstances may occur [when] anew and unforeseen constitutional right has arisen between the time of trial and appeal or [when] the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial. ... An exception may also be made [when] consideration of the question is in the interest of public welfare or of justice between the parties.” (Citations omitted; internal quotation marks omitted.) Skrzypiec v. Noonan, 228 Conn. 1, 14-15, 633 A.2d 716 (1993). In the present case, the defendant has not established the existence of any exceptional circumstances warranting
8
Exclusion of Certain Testimony of Virginia Quintero’s Attorney
The defendant claims that the trial court improperly sustained an objection to a question posed by defense counsel to Anthony Wallace, Quintero’s attorney at the proceeding to terminate her parental rights. We are not persuaded.
During trial, defense counsel offered the testimony of Wallace as proof that Quintero expected consideration from the state in her own criminal case
We conclude that the trial court did not abuse its discretion in precluding Wallace from testifying regarding whether anyone had discussed with him the possibility that Quintero would receive any consideration in return for her testimony against the defendant. The purpose of Wallace’s testimony was to illustrate Quintero’s bias or motive for testifying against the defendant. Thus, the trial court allowed Wallace to testify that he had communicated to Quintero the possibility that she could receive some consideration for her testimony. Whether anyone else had told Wallace that Quintero could receive consideration simply was irrelevant to Quintero’s bias or motive for testifying. In addition, the trial court properly allowed the state, on cross-examination, to rebut the implication that the source of Wallace’s statement to Quintero that she could receive some consideration for her testimony against the defendant, was the office of the state’s attorney. Accordingly,
9
Cumulative Error
The defendant’s final evidentiary claim is that, when viewed cumulatively, the trial court’s alleged evidentiary improprieties constitute a violation of his constitutional rights, including the right to testify in his own behalf, the right to confront the witnesses against him, the right to present a defense and the right to be free from cruel and unusual punishments. After a thorough review of the record and consideration of all of the defendant’s claims, we disagree.
In the present case, none of the defendant’s claims of impropriety constituted a violation of any constitutional right. The defendant contends, however, that these claims should be aggregated to form a separate constitutional claim that provides an alternative basis for relief. We rejected a similar argument in State v. Robinson, 227 Conn. 711, 746-47, 631 A.2d 288 (1993), and, therefore, reject the defendant’s claim in the present case. As we explained in Robinson, “[w]e decline to create a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts.” (Internal quotation marks omitted.) Id., 747. Thus, because we have found no evidentiary improprieties, the combined claims cannot give rise to a constitutional violation.
E
Jury Instructions
The defendant claims that the trial court, in instructing the jury at the conclusion of the guilt phase,
In reviewing all the defendant’s claims regarding the trial court’s jury instructions, we utilize a well established standard of review. “[Individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rule of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.” (Citations omitted; internal quotation marks omitted.) State v. Floyd, 253 Conn. 700, 714, 756 A.2d 799 (2000).
1
Manslaughter by Omission Instruction
The defendant claims that the trial court inadequately charged the jury with respect to its manslaughter instruction. Specifically, the defendant claims that the trial court improperly declined to instruct the jury regarding manslaughter by omission. See General Stat
“This court repeatedly has recognized that [t]here is no fundamental constitutional right to a jury instruction on every lesser included offense .... State v. Whistnant, 179 Conn. 576, 583, 427 A.2d 414 (1980). Rather, the right to such an instruction is purely a matter of our common law. A defendant is entitled to an instruction on a lesser [included] offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant;
(2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser;
(3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, whichjustifi.es conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant [not guilty] of the greater offense but guilty of the lesser. Id., 588.” (Internal quotation marks omitted.) State v. Corbin, 260 Conn. 730, 744-45, 799 A.2d 1056 (2002).
“In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra, 179 Conn. 588, we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. ... On appeal, an appellate court must reverse a trial court’s failure to give the
In the present case, the defendant submitted to the trial court a request to charge, which contained proposed instructions for several lesser included offenses, including manslaughter in the first degree under § 53a-55 (a) (1) and (3). With respect to manslaughter in the first degree under § 53a-55 (a) (3), the defendant requested, in addition to an instruction regarding conduct evincing extreme indifference to human life, an alternative instruction, in accordance with this court’s decision in State v. Miranda, 245 Conn. 209, 226, 715 A.2d 680 (1998),
“The second prong of Whistnant derives from our earlier decision in State v. Brown, 163 Conn. 52, 301 A.2d 547 (1972). In Brown, we stated that ‘[c]ourts have taken three approaches in determining whether a crime is a “lesser included crime” when the evidence would support a conclusion that the lesser crime was committed: (1) The included crime may be one consisting solely of elements which must always be present for the greater crime to have been committed; (2) it may be
“That second course comprises the second prong in Whistnant, which encompasses the cognate pleadings approach. ‘The cognate-pleadings approach . . . does not insist that the elements of the lesser offense be a subset of the higher offense. It is sufficient that the lesser offense have certain elements in common with the higher offense, which thereby makes it a “cognate” or “allied” offense even though it also has other elements not essential to the greater crime. [In addition], the relationship between the offenses is determined not by a comparison of statutory elements in the abstract, but by reference to the pleadings in the case. The key ordinarily is whether the allegations in the pleading charging the higher offense . . . include all of the elements of the lesser offense.’ ” (Citation omitted.) State v. Tomlin, 266 Conn. 608, 617-18, 835 A.2d 12 (2003).
In the present case, we conclude that the defendant has not satisfied the second prong of Whistnant. Specifically, it was possible to commit murder, in the manner described in the information and bill of particulars, without first having committed the lesser included offense of manslaughter by omission. The state asserted in the information that the defendant “caused the death of [the victim] by means of blunt force trauma.” Thus, the state alleged in the information that the defendant had committed a physical act against the victim that caused the victim to suffer blunt force trauma and that he had done so with the intention of killing the victim. With respect to manslaughter by omission, our decision in Miranda presumably would have required the state
2
Accessory Liability Instruction
The defendant next claims that the trial court improperly declined to instruct the jury with respect to the credibility of Virginia Quintero’s testimony. Specifically, the defendant contends that the trial court improperly declined to give an instruction characterizing Quintero as an accessory to the crimes for which the defendant was tried. The state contends that the trial court properly declined to give such an instruction.
The defendant’s written request to charge included a proposed instruction that Quintero’s testimony should be scrutinized inasmuch as Quintero also was charged with certain crimes in connection with the victim’s death.
“Generally, a defendant is not entitled to an instruction singling out any of the state’s witnesses and highlighting his or her possible motive for testifying falsely.” State v. Ortiz, 252 Conn. 533, 561, 747 A.2d 487 (2000). An exception to this rule, however, involves the credibility of accomplice witnesses. Id. “[W]here it is warranted by the evidence, it is the court’s duty to caution the jury to scrutinize carefully the testimony if the jury finds that the witness intentionally assisted in the commission, or if [she] assisted or aided or abetted in the commission, of the offense with which the defendant is charged.” (Emphasis in original; internal quotation marks omitted.) Id., 562. In addition, “[i]n order for one to be an accomplice there must be mutuality of intent and community of unlawful purpose.” State v. Boles, 223 Conn. 535, 552, 613 A.2d 770 (1992).
In State v. Ortiz, supra, 252 Conn. 533, the defendants, Angel Luis Ortiz and Julio Diaz-Marrero, claimed that the trial court improperly had declined to instruct the jury regarding the credibility of a witness who had been present during the commission of the crimes with which the defendants were charged. Id., 542, 562. We concluded, however, that the trial court properly had determined that there was insufficient evidence to infer that the witness was an accomplice. See id., 562-63. First, we noted that the witness was not charged with the crimes for which the defendants were tried and that there was no evidence presented at trial that directly linked the witness to the crimes as an accomplice. Id., 562. Second, we explained that the juiy was privy to
In the present case, the trial court determined that there was insufficient evidence from which to conclude that Quintero was an accomplice. Specifically, Quintero was not charged with the crimes for which the defendant was tried and there was no evidence that directly linked Quintero to the crimes as an accomplice. Although Quintero testified that she had been charged with certain crimes in connection with the victim’s death, she was charged with those crimes on the basis of her failure to protect the victim from the defendant. Specifically, Quintero was charged with manslaughter, assault and risk of injury to a child, all stemming from her failure to protect the victim. In addition, there was no evidence that Quintero shared the mental state required for the crime with which the defendant was charged, namely, intentional murder, and there was no evidence that Quintero committed any of the accessorial acts outlined in General Statutes § 53a-8 (a),
3
Instruction Regarding the Defendant’s Attempt to Provide Medical Assistance to the Victim
The defendant next claims that the trial court improperly declined to instruct the jury regarding his attempt to provide medical assistance to the victim. Specifically, the defendant contends that the trial court improperly declined to instruct the jury that it could infer from the evidence that, because the defendant attempted to provide medical assistance to the victim, he did not have the intent to kill her. In response, the state contends that the trial court properly declined to instruct the jury that a finding that the defendant attempted to provide medical assistance to the victim supported an inference that he lacked the intent to kill her.
The defendant’s written request to charge included a proposed instruction that, if the jury found that the defendant had attempted to provide medical assistance to the victim, it was permitted to infer that such conduct evinced a lack of intent on the part of the defendant to kill the victim.
On appeal to this court, the defendant relies on our decision in State v. Sivri, supra, 231 Conn. 115, in support of his claim that the trial court improperly declined to instruct the jury that it could infer from the evidence that the fact that the defendant attempted to resuscitate the victim supported an inference that he did not intend to kill the victim. In Sivri, we concluded that the failure of the defendant, Tevfik Sivri, to summon medical assistance for the victim, who had lost a substantial amount of blood, permitted an inference that Sivri intended to kill the victim. Id., 128, 129. Specifically, we explained that, “if [Sivri] has caused a grievous wound that could cause the victim’s death if not treated promptly, the failure to summon that treatment is consistent with an antecedent intent to cause death.” Id., 129. Thus, the defendant’s claim essentially is that, because our decision in Sivri allows a jury to draw an inference that, as a result of failing to summon medical assistance the defendant had an intent to kill, the inverse of that situation also must be true, namely, that evidence indicating that the defendant attempted to resuscitate the victim permits an inference that the defendant lacked the intent to kill. We disagree.
We first note that, although several states permit a fact finder to infer intent to kill from the failure to summon medical assistance for a victim, the defendant has not referred us to, and ora research has not revealed, any case in which the fact finder was instructed that it could draw an inference that the defen
Similarly, the defendant’s proposed instruction was not a statement of the law applicable to the case but, rather, was argumentative in nature. This court never has concluded that a defendant is entitled to an instruction that the fact finder may draw an inference that the defendant lacked the intent to kill from evidence establishing that the defendant summoned medical assistance for or provided medical assistance to the victim. The determination of whether to give such an instruction is, therefore, a matter within the trial court’s discretion. The defendant’s proposed instruction, therefore, was not an accurate statement of the law but, rather, a matter more appropriately addressed during closing arguments. Accordingly, we conclude that the trial court properly declined to instruct the jury in accordance with the defendant’s proposed instruction.
4
Instructions Regarding Reasonable Doubt
The defendant’s final instructional claim is that the trial court improperly instructed the jury regarding the standard of reasonable doubt.
“It is fundamental that proof of guilt in a criminal case must be beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) .... The [reasonable doubt concept] provides concrete substance for the presumption of innocence— that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law. . . . [Id.], 363. At the same time, by impressing upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused, the [reasonable doubt] standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself. Jackson v. Virginia, [443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)]. [Consequently, the] defendants in a criminal case are entitled to a clear and unequivocal charge by the court that the guilt of the defendants must be proved beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 370-71, 796 A.2d 1118 (2002).
As the defendant acknowledges, we consistently have rejected constitutional challenges to instructional language substantially similar in all material respects to the instructional language that the defendant challenges on appeal. E.g., State v. Betances, 265 Conn. 493, 510,
F
Prosecutorial Misconduct
The defendant next claims that the state’s attorney and the assistant state’s attorney committed misconduct during the guilt phase of the proceedings, thereby depriving the defendant of his right to a fair trial in violation of the due process clause of the fourteenth amendment to the United States constitution. Specifically, the defendant claims that: (1) the state’s attorney improperly pursued contradictory theories with respect to Virginia Quintero’s role in the victim’s death; (2) the state’s attorney improperly questioned the defendant about certain privileged attorney-client communications during cross-examination; and (3) the state’s attorney and the assistant state’s attorney improperly
“Before addressing the merits of the defendant’s claim, we first review the principles that govern our resolution of claims of prosecutorial misconduct. [T]he touchstone of due process analysis in cases of alleged
“As we previously have recognized, prosecutorial misconduct of a constitutional magnitude can occur in the course of closing arguments. . . . When making closing arguments to the jury, [however] [c]ounselmust be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rale and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Moreover, [i]t does not follow . . . that eveiy use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . .
“Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention from the facts of the case. [The prosecutor] is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent. ... By reason of his office, he usually exercises great
Furthermore, “the prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. . . . Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the defendant. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position. . . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence ... it is likely to infer that such matters precipitated the personal opinions. . . .
“Prosecutorial misconduct [also] may occur in the course of cross-examination of witnesses . . . and
“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. . . . Included among those factors are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case. . . .
“Furthermore, whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any of the prosecutor’s improper remarks. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant’s right to a fair trial. . . .
“[E]ven when prosecutorial misconduct is not so egregious as to implicate the defendant’s [due process] right to a fair trial, an appellate court may invoke its supervisory authority [over the administration of justice] to reverse a criminal conviction when the prosecutor deliberately engages in conduct that he or she knows, or ought to know, is improper. . . . Such a sanction generally is appropriate, however, only when the [prosecutor’s] conduct is so offensive to the sound administration of justice that only a new trial can effec
1
The Assertion of Contradictory Theories with Respect to the Victim’s Death
The defendant first claims that the state’s attorney engaged in prosecutorial misconduct by asserting contradictory claims regarding Virginia Quintero’s role in the victim’s death. Specifically, the defendant claims that his due process rights were violated when the state’s attorney claimed at trial that Quintero was held captive by the defendant during the period prior to the victim’s death while charging Quintero with manslaughter, assault and risk of injury to a child in connection with the victim’s death. In response, the state claims that the state’s attorney did not pursue contradictory theories with respect to the role of Quintero in the
In the present case, Lieutenant O’Leary testified that Quintero had been charged with manslaughter, assault in the first degree and risk of injury to a child. O’Leary also testified that these charges were based on Quintero’s failure to protect the victim from the defendant. Thereafter, Quintero testified that the defendant had forced her to stay in the apartment and did not let her leave during the weeks leading up to the victim’s death. The defendant’s claim essentially is that, if the defendant, as the state’s attorney asserted, held Quintero captive during the period leading up to the victim’s death, Quintero could not have been guilty of manslaughter, assault or risk of injury and, therefore, the state’s attorney pursued inherently contradictory theories regarding Quintero’s role in the victim’s death, in violation of the defendant’s constitutional rights.
In support of his claim, the defendant relies on Smith v. Groose, 205 F.3d 1045 (8th Cir.), cert. denied sub nom. Gammon v. Smith, 531 U.S. 985, 121 S. Ct. 441, 148 L. Ed. 2d 446 (2000), in which the Eighth Circuit Court of Appeals concluded that a prosecutor’s use of “inherently factually contradictory theories violates the principles of due process.” Id., 1052. In Smith, a group of juveniles set out to burglarize a house. Id., 1047. When the group reached their intended target, they encountered another group of individuals who already were in the process of burglarizing the same house. Id. After a brief discussion, the two groups both took property from the house. Id. Sometime during the
Subsequently, one of the juveniles, Anthony Lytle, gave a statement (first statement) to the police claiming that the first group of burglars already had killed one of the occupants before the juvenile group entered the house. Id. Two days later, however, Lytle gave a second statement to police in which he claimed that the occupant was killed while the juveniles were inside the house. Id. Specifically, Lytle told the police that he saw James Bowman, one of the juveniles with whom he had planned on burglarizing the house, kneeling over the victim and stabbing him. Id., 1047-48. Lytle subsequently recanted this second statement and testified consistently with his first statement at the trial of one of the juveniles, Jon Keith Smith. Id., 1047. At Smith’s trial, the prosecutor used Lytle’s second statement to prove that the murder occurred while the juveniles were in the house. Id., 1048. The prosecutor’s theory was that Bowman was the murderer and that Smith was guilty of, inter alia, felony murder because the murder had occurred while Smith was in the house committing the burglary. Id. Smith ultimately was found guilty of first degree felony murder. Id.
Subsequently, during the trial of Michael Cunningham, one of the individuals who was in the house before the group of juveniles had arrived, the prosecutor relied on Lytle’s first statement to police and his testimony at Smith’s trial to claim that the victim already was dead when the juveniles entered the home. Id. Thus, the prosecutor’s theory in Cunningham’s trial was that, because Lytle had testified that the victim already was dead when the juveniles had entered the home, Cunningham was the murderer. Id. Cunningham subsequently was found guilty of, inter alia, first degree murder. Id.
2
Questioning Regarding Privileged Attorney-Client Communications
The defendant next claims that the state’s attorney improperly questioned the defendant during cross-examination regarding privileged communications with his attorneys, thereby violating the defendant’s attorney-client privilege. The state claims that the state’s attorney’s cross-examination of the defendant properly was confined to permissible subjects of impeachment, namely, whether the defendant had been “coached” in
The United States Supreme Court has determined that cross-examination constitutes a proper method to address the issue of an attorney’s possible improper influence on a witness’ testimony or the possibility that an attorney coached a witness. See Geders v. United States, 425 U.S. 80, 89, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976). “The opposing counsel in the adversary system is not without weapons to cope with ‘coached’ witnesses. A prosecutor may cross-examine a defendant as to the extent of any ‘coaching’ during a recess, subject, of course, to the control of the court. Skillful cross-examination could develop a record which the prosecutor in closing argument might well exploit by raising questions as to the defendant’s credibility, if it developed that defense counsel had in fact coached the witness as to how to respond on the remaining direct examination and on cross-examination.” Id., 89-90.
As the defendant acknowledges, defense counsel did not object to this line of questioning at trial on the basis of the attorney-client privilege, suggesting that he did not view the line of questioning to be seriously prejudicial at the time.
As we explained in Reynolds, “[i]nasmuch as defense counsel had heard the comments of the state’s attorney when they were made, defense counsel was in a position to assess what impact, if any, the comments may have had on the jury and to determine what remedy to seek.” State v. Reynolds, supra, 264 Conn. 207. “Our rules of procedure do not allow a defendant to pursue one course of action at trial and later, on appeal, argue that a path he rejected should now be open to him. . . . To rule otherwise would permit trial by ambuscade. ... An appellant cannot create a reviewable claim because his appellate counsel disagrees with the strategy of his trial counsel.” (Internal quotation marks omitted.) Id. The defendant in the present case was represented by two attorneys who “presumably [did] not view the alleged impropriety as prejudicial enough
3
Prosecutorial Misconduct During Closing and Rebuttal Arguments
The defendant next claims that the state’s attorney and assistant state’s attorney engaged in misconduct during closing and rebuttal arguments. Specifically, the defendant claims that: (1) the assistant state’s attorney improperly injected her personal opinion by stating that “there can be no real question here about intent”; (2) the assistant state’s attorney improperly commented on the credibility of the defendant by stating that the defendant’s testimony was “a lie”; and (3) the state’s attorney improperly declared, during rebuttal argument, that his interest was “the same as [the jury’s], to see that justice is done . . . .” The state responds by claiming that: (1) defense counsel failed to object to the first two claimed instances of misconduct, suggesting that defense counsel did not deem the arguments as prejudicial; and (2) neither of the remarks made during closing argument was improper. In response to the defendant’s claim regarding the state’s attorney’s rebuttal argument, the state claims, inter alia, that the remark regarding the state’s attorney’s interest in the case was: (1) invited by defense counsel’s closing argument; (2) not improper because it merely “identified] the unique role [that] prosecutors have in our judicial system” (internal quotation marks omitted); (3) not as prejudicial as other statements previously found by this court to be improper; and (4) fleeting and thus had no bearing on the jury’s verdict.
During closing argument, the assistant state’s attorney outlined the evidence establishing the state’s claim
In addition, during closing arguments, the assistant state’s attorney remarked: “[The defendant] tells you that he signed [his] statement [that he gave to the police] because he thought he could go home. Well, ladies and gentlemen, you can’t have it both ways. [The defendant] cannot get on this witness stand and tell you that he didn’t know what was going on, that the police were yelling and screaming at him and pointing ... at him and accusing him and taking him out of Mill Street in handcuffs and police had their guns drawn and yet, he’s going to sign this statement. It’s a lie, ladies and gentlemen. Anybody knew. Anybody knew it was serious. He saw that child. This is what he did to that child. Everybody knew it was serious. He can’t have it both ways.” (Emphasis added.) Defense counsel did not object to this statement.
During rebuttal argument, the state’s attorney remarked: “You know, [defense counsel] says, ‘Well, the police have an interest in this case; the state has an interest in this case.’ You know and we do and I do have an interest in this case and [the assistant state’s attorney] has an interest in this case and the state’s
The defendant first claims that the assistant state’s attorney, in stating that “there can be no real question here about intent,” improperly injected her personal opinion and, therefore, committed prosecutorial misconduct. We reject the defendant’s claim.
“It is not improper for the prosecutor to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom .... We must give the jury the credit of being able to differentiate between argument on the evidence and attempts to persuade them to draw inferences in the state’s favor, on [the] one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the other hand. The [prosecutor] should not be put in the rhetorical straitjacket of always using the passive voice, or continually emphasizing that he is simply saying I submit to you that this is what the evidence shows, or the like.” (Citation omitted; internal quotation marks omitted.) State v. Thompson, 266 Conn. 440, 465-66, 832 A.2d 626 (2003).
A review of the transcript reveals that the assistant state’s attorney’s remark that, “I think there can be no real question here about intent,” followed several
The defendant next claims that the assistant state’s attorney, in stating that the defendant’s testimony was “a lie,” improperly commented on the credibility of a witness’ testimony. As we noted previously, “the prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses.” (Internal quotation marks omitted.) State v. Reynolds, supra, 264 Conn. 163. Nevertheless, “[i]t is not improper for the prosecutor to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom . . . .” (Internal quotation marks omitted.) State v. Thompson, supra, 266 Conn. 465. In addition, “[u]se of the words ‘liar’ and ‘lie’ to characterize disputed testimony when the [witness’] credibility is clearly in issue is ordinarily not improper unless such use is excessive or is likely to be inflammatory.” United States v. Peterson, 808 F.2d 969, 977 (2d Cir. 1987).
The remark that the defendant lied when he testified that he had signed his statement to the police only because the police had told him that he could leave if he did so occurred in the context of the assistant state’s attorney’s discussion of the evidence that would support an inference that the defendant had lied. In particular, the assistant state’s attorney remarked that the defendant had prior experience with the police, that he
Finally, the defendant claims that the state’s attorney, in stating during rebuttal argument that his interest in the case was to see that justice was done, improperly injected his personal opinion into the trial. We acknowledge that it would have been preferable for the state’s attorney to have refrained from using the first person to emphasize that his interest in the case was to see that justice was done. Thus, we turn to the question of whether the impropriety “so infected the trial with unfairness as to make the conviction a denial of due process.” (Internal quotation marks omitted.) State v. Stevenson, 269 Conn. 563, 589, 849 A.2d 626 (2004). We conclude that the misconduct did not so infect the trial with unfairness as to make the defendant’s conviction a denial of due process.
In State v. Williams, 204 Conn. 523, 529 A.2d 653 (1987), we stated that, “[i]n determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument
G
Subpoenas Duces Tecum and the State’s Motion to Quash
The defendant claims that the trial court improperly compelled defense counsel to turn over to the trial court redacted copies of certain state police reports. The defendant further claims that the trial court improperly granted the state’s motion to quash the defendant’s subpoena of certain records from the office of the chief state’s attorney and failed to conduct an in camera
1
Order Compelling Defense Counsel to Turn Over State Police Reports
The defendant first claims that the trial court improperly compelled defense counsel to turn over redacted copies of certain state police internal affairs investigation reports that defense counsel had received from Lieutenant Wayne Rioux of the Connecticut state police force. In response, the state contends that the trial court properly exercised its discretion in requiring defense counsel to turn over the reports so that the trial court could review them. In addition, the state claims that any impropriety was harmless.
The following facts are necessary to our resolution of the defendant’s claim. On August 30, 2000, a subpoena duces tecum was served on Rioux seeking copies of certain state police internal affairs reports. Additional subpoenas were served on the state police and another state office seeking material relating to the alleged misconduct of certain Waterbury police officers. The state thereafter filed a motion to quash the subpoenas.
During argument before the trial court on the state’s motion to quash, defense counsel admitted that he possessed redacted versions of the internal affairs reports. The state claimed that defense counsel improperly possessed the reports because the subpoena duces tecum required Rioux to bring the reports to court instead of sending them directly to defense counsel in redacted form. The trial court also clarified that the subpoena required Rioux to bring the reports to court. During
Later that day, defense counsel sought to use the information in the redacted reports in support of his request for an in camera review of other records, namely, an investigatory file of the office of the chief state’s attorney. At that point, the trial court asked defense counsel to turn over the redacted internal affairs reports, stating that it was “not making any accusations . . . but [that it] need[ed] to know ... if that was something that should not have been given to you, and, if it was, that you’re in possession of something that you may not or should not have had until the court has ruled on it.” Defense counsel thereafter turned over the redacted reports to the court. After reviewing both the redacted and unredacted versions of the internal affairs reports in camera, the trial court released to defense counsel the information that it believed to be
On appeal, the defendant challenges the trial court’s decision to compel defense counsel to turn over the redacted reports. Specifically, the defendant claims that the trial court: (1) lacked the authority to compel defense counsel to turn over the redacted reports; (2) violated the defendant’s right to present a defense; and (3) violated the defendant’s right of free speech.
We first address the standard of review under which we address the defendant’s first claim. The defendant claims that the trial court lacked authority to compel defense counsel to turn over the reports and that our review, therefore, is plenary. The state maintains, however, that the trial court merely was exercising its inherent authority to manage the case before it and to rule on evidentiary matters, and, therefore, its decision to
In Krevis v. Bridgeport, 262 Conn. 813, 818-19, 817 A.2d 628 (2003), we concluded that the determination of whether the trial court had authority to decide a dispositive question of law that the parties had submitted to the court orally and not in compliance with certain rules of practice was subject to an abuse of discretion standard. In so concluding, we noted that trial courts have “the authority to manage cases before it as necessary. . . . Deference is afforded to the trial court in making case management decisions because it is in a much better position to determine the effect that a particular procedure will have on both parties.
. . . The case management authority is an inherent power necessarily vested in trial courts to manage their own affairs in order to achieve the expeditious disposition of cases. . . . The ability of trial judges to manage cases is essential to judicial economy and justice.” (Citations omitted; internal quotation marks omitted.) Id., 819.
In the present case, after the state raised questions about the propriety of defense counsel’s possession of the reports, the trial court compelled defense counsel to turn over the reports and reviewed them in camera. We conclude that, in doing so, the trial court was exercising its inherent case management authority. Accordingly, we review this claim under an abuse of discretion standard.
“We will not disturb a trial court’s decision regarding case management unless after carefully examining the factual circumstances of the case, we determine that there was an abuse of discretion. . . . Abuse is not present if discretion is not exercised arbitrarily or wilfully, but with regard to what is right and equitable
Our review of the record reveals that the trial court did not abuse its discretion in ordering defense counsel to turn over the redacted reports that he had received from Rioux. The subpoena issued to Rioux clear ly indicated that Rioux was to bring copies of the requested reports to the court. For reasons unclear to us from the record, Rioux sent redacted versions of these reports directly to defense counsel. Defense counsel also represented to the trial court that Rioux had told him that he had received the records in accordance with a freedom of information request. As we noted previously, the state acknowledged that the reports were not exempt from disclosure under the act, but asserted that the reports contained confidential information, and, inasmuch as the state did not know what parts were redacted in the copies that defense counsel had received from Rioux, the state asked the court to review the entire reports in camera. The reports also were the subject of the state’s motion to quash. Thus, the propriety of defense counsel’s possession of the reports was in dispute. Accordingly, we conclude that the trial court, acting pursuant to its inherent authority over the management of trials, did not abuse its discretion in ordering defense counsel to turn over the redacted reports.
Even if we assume that the trial court improperly ordered defense counsel to turn over the reports, we conclude that it was harmless error. During voir dire, the trial court permitted defense counsel to ask questions of O’Leary from the material that the trial court had given to defense counsel after its in camera review
Thus, because defense counsel chose not to pursue this avenue of impeachment of O’Leary, and because O’Leary denied all wrongdoing alleged in the internal affairs reports, the reports, in either the redacted or unredacted versions, were irrelevant for purposes of defense counsel’s impeachment of O’Leary. Cf. Conn. Code Evid. § 6-6 (b) (2) (specific instances of conduct probative of witness’ character for untrathfulness may not be proved by extrinsic evidence). Accordingly, even if we assume that the trial court improperly ordered defense counsel to turn over the reports that he had received from Rioux, such action on the part of the trial court constituted harmless error.
We also conclude that the trial court’s decision to compel defense counsel to turn over the redacted copies of the internal affairs reports did not unduly interfere with defense counsel’s representation of the defendant and, thus, did not violate the defendant’s constitutional
Our review of the record, including the reports and the document that defense counsel had received from the trial court after its in camera review of the reports, reveals that defense counsel was given adequate information with which to impeach O’Leary, and that it was O’Leaiy’s denial, during voir dire, of the allegations in the internal affairs reports that led to a less than favorable impeachment of O’Leary by defense counsel. In addition, defense counsel acknowledged at trial that, prior to turning over the redacted reports to the trial court, he thoroughly had reviewed them and understood the nature of the allegations made therein. Specifically, defense counsel stated that “we had the redacted file and we have had it for some time and we’ve been through it in detail . . . .” Thus, in light of the foregoing, it is unclear to us how defense counsel’s representation of the defendant was compromised by the trial court’s order compelling defense counsel to turn over the redacted versions of the internal affairs reports.
Finally, the defendant claims that the trial court’s order compelling him to turn over the reports violated his rights under the first amendment to the United
In support of his contention, the defendant relies on Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S. Ct. 2720,115 L. Ed. 2d 888 (1991). That case is inapposite to the defendant’s claim, however. In particular, Gentile determined the constitutionality of a Nevada court rule that authorized the discipline of attorneys who make certain extrajudicial statements to the press that are likely to prejudice materially an adjudicatory proceeding. See id., 1034. It did not involve, as in the present case, the propriety of an order compelling an attorney to turn over certain documents during a trial. Accordingly, we reject the defendant’s claim.
2
The Trial Court’s Granting of the State’s Motion to Quash and Its Refusal to Conduct an In Camera Inspection of Certain Documents
The defendant next claims that the trial court improperly granted the state’s motion to quash a subpoena seeking from the office of the chief state’s attorney any investigatory materials concerning five Waterbury police officers.
The following facts are necessary to our resolution of the defendant’s claims. On September 5, 2000, a subpoena duces tecum was served on the office of the chief state’s attorney seeking documents related to an investigation into alleged corruption at the Waterbury police department. Specifically, defense counsel sought information regarding certain Waterbury police officers who were listed as potential state witnesses for the defendant’s trial. See footnote 92 of this opinion. The state filed a motion to quash the subpoena on the ground that it sought materials relating to an ongoing investigation that were subject to a qualified law enforcement privilege. The state also claimed that the defendant had not met a threshold showing of cause to overcome that privilege.
In opposition to the motion to quash, defense counsel asserted several instances of alleged misconduct and corruption in the Waterbury police department. The source of these allegations was a published anonymous letter to the editor of a local Waterbury newspaper. Defense counsel asserted that he received a copy of the anonymous letter from the newspaper and that it also had documents attached to it that supported the allegations in the published anonymous letter. Defense counsel also relied on the existence of an ongoing inves
Thereafter, the trial court determined that the defendant had not met his burden of overcoming the law enforcement privilege. Specifically, the trial court found that the sources of the information supporting the defendant’s claim were an anonymous letter to a newspaper and “rumor.”
On appeal, the defendant claims that the trial court improperly granted the motion to quash and committed error in failing to review the entire investigatory file of the office of the chief state’s attorney in camera. We review a court’s conclusion that a defendant has failed to make a threshold showing of entitlement to an in camera review of purportedly privileged records under the abuse of discretion standard. E.g., State v. Betances, supra, 265 Conn. 506. Accordingly, “[w]e must make every reasonable presumption in favor of the trial court’s action. . . . The trial court’s exercise of its discretion will be reversed only where the abuse of discretion is manifest or where injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) Id.
As the state notes, the materials sought by the defendant, namely, documents, letters, and reports regarding any ongoing investigation by the office of the chief state’s attorney, were shielded from disclosure under a law enforcement privilege. We noted in Seebeck v. State, 246 Conn. 514, 717 A.2d 1161 (1998), that “the reason for this privilege is to aid the state’s attorney and the police in conducting investigations by encouraging people to disclose information without fear of embarrassment through subsequent, needless public disclosure.” Id., 546. Because the materials that defense counsel sought were privileged, and were sought for
In State v. Kulmac, 230 Conn. 43, 56, 644 A.2d 887 (1994), the defendant, Steven B. Kulmac, claimed that his right to confrontation had been violated when the trial court declined to conduct an in camera inspection of certain records of the department of children and youth services concerning the victims. After the victims had testified at trial, Kulmac subpoenaed the records in question. Id. Kulmac claimed that he “assumed” the privileged records would contain accounts of the abuse alleged at trial and that they potentially could be inconsistent with the testimony of the victims, thereby providing a basis for impeachment of the victims’ credibility. Id., 57. An agent of the department of children and youth services indicated, however, that nothing in the records was exculpatory or inconsistent with the victims’ testimony. Id. Because of the absence of any preliminary showing of cause by Kulmac other than his assumption that the records would contain something useful, we concluded that the trial court properly declined to review the records in camera. Id., 59.
3
Invitation to Overrule State v. Harris
The defendant also invites us to overrule our decision in State v. Harris, supra, 227 Conn. 751, in which we concluded that the defendant’s confrontational rights had not been violated by the decision of the trial court not to allow the defendant, Silas Harris, access to confidential records of a testifying witness. Id., 763-64. In so doing, we concluded that Harris did not have a constitutional right to view the confidential records, but that an in camera review of the records by the trial court, after a sufficient showing of cause, adequately protected the defendant’s rights. See id., 764. The defendant in the present case invites us to reconsider this approach and allow the defendant to review sealed or privileged records “[as] long as strict protective orders axe issued.” Because the defendant has not offered any compelling reasons for us to reconsider our decision in Harris, we decline his invitation to overrule prior case law.
4
Review of the Privileged Records for Brady Material
The defendant next requests that he be permitted to review the privileged records from the office of the chief state’s attorney to determine if they contain exculpatory material. The defendant also seeks to review the five page document that the state’s attorney had turned over to the trial court, which determined that it did not contain any exculpatory material. Alternatively, the defendant asks this court to review all the foregoing materials for potentially exculpatory information. We conclude that the defendant is not entitled to review
It is axiomatic that the state has an obligation to turn over evidence in its possession that is favorable to the defendant and that is material to guilt or punishment. Brady v. Maryland, supra, 373 U.S. 87. It also is well settled that, “if the trial court discovers material exculpatory evidence in the course of an in camera inspection, it has a duty to disclose it to the defense and the defendant has a due process right to its disclosure.” State v. Harris, supra, 227 Conn. 762. “A defendant’s right to discover exculpatory evidence [however] does not include the unsupervised authority to search through the [state’s] files. . . . Settled practice is to the contrary. In the typical case [in which] a defendant makes only a general request for exculpatory material under Brady ... it is the [s]tate that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court’s attention, the prosecutor’s decision on disclosure is final. Defense counsel has no constitutional right to conduct his own search of the [s]tate’s files to argue relevance.” (Citations omitted; emphasis added.) Pennsylvania v. Ritchie, 480 U.S. 39,59,107 S. Ct. 989,94 L. Ed. 2d 40 (1987).
It is clear to us that the same reasoning applies to the defendant’s request on appeal. We note that the defendant’s claim is not that the state violated Brady by withholding certain exculpatory or material information. Rather, the defendant is seeking an opportunity to sift through the records of the office of the chief state’s attorney in search of a potential Brady violation.
We also reject the defendant’s request that this court review the entire file of the office of the chief state’s attorney. Again, we note that the defendant has not referred us to any authority that would allow this court to review records that the trial court has determined were not subject to discovery by the defendant. In other words, the trial court determined that the defendant had not met his burden of establishing sufficient cause to overcome the law enforcement privilege, which served to exempt the sought-after materials from discovery by the defendant. We know of no authority, nor has the defendant directed us to any, that allows this court, on appeal, to review those records that the trial court never viewed.
Finally, our review of the five page document that the trial court reviewed in camera reveals that the trial court properly determined that it did not contain material, exculpatory information.
H
Sufficiency of the Evidence
The defendant’s final guilt phase claim is that there was insufficient evidence presented at trial to convince a reasonable trier of fact to conclude, beyond a reasonable doubt, that the defendant had intended to kill the victim. In response, the state contends that the evidence was sufficient to establish that the defendant intentionally had killed the victim. We agree with the state.
“Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . Indeed, direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable.” (Citation omitted; internal quotation marks omitted.) State v. Niemeyer, 258 Conn. 510, 517-18, 782 A.2d 658 (2001).
Moreover, “[t]he specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim.” (Internal quotation marks omitted.) State v. Sivri, supra, 231 Conn. 126. With this background in mind, we turn to the defendant’s sufficiency claim.
The defendant relies, however, on our decision in State v. Carpenter, 214 Conn. 77, 570 A.2d 203 (1990), in support of his claim that there was insufficient evidence for a jury reasonably to conclude that he intentionally had killed the victim. In Carpenter, we concluded that the evidence adduced by the state, specifically, that the defendant, Richard T. Carpenter, Jr., had killed the victim, an eighteen month old child, by throwing her into a bathtub, was insufficient to support an inference that Carpenter had the requisite intent to cause the victim’s death. Id., 83. We determined that the evidence was “insufficient to preclude the reasonable hypothesis that [Carpenter], out of frustration, engaged in reckless conduct that caused the death of the victim.”
We first note that, under our established scope of review of sufficiency of evidence claims, “we give deference not to the hypothesis of innocence posed by the defendant, but to the evidence and the reasonable inferences drawable therefrom that support the jury’s determination of guilt. On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” State v. Sivri, supra, 231 Conn. 134.
Ill
PENALTY PHASE ISSUES A
Jury Instructions Regarding the Weighing of the Aggravating and Mitigating Factors
The defendant first claims that the trial court improperly declined to instruct the jury that the aggravating factor found by the jury must outweigh the mitigating factor or factors beyond a reasonable doubt in order to sentence the defendant to death.
In Rizzo, we clarified the differences between the pre-1995, “nonweighing” capital sentencing statute and the current weighing scheme. See generally id., 181-82, 228-31. In contrast to the pre-1995 statute, we explained that the current statute includes an additional step: in addition to a finding of the existence of aggravating and mitigating factors, the jury must weigh the aggravating factors against the mitigating factors. Id., 230. We noted that “[t]his change in our capital sentencing scheme ha[d] effectively expanded the selection phase to include, in addition to the determination of whether the defendant has established mitigation, the weighing of the aggravating factors against the mitigating factors.” Id., 230-31. We further noted that this change had “resulted in a significant gap in the sentencing scheme—namely, unlike our former, nonweighing statute, the current sentencing statute does not require the jury to make its ultimate determination—that the aggravating factors outweigh the mitigating factors, and that, therefore, death is the appropriate sentence—by a level of certitude beyond a reasonable doubt. Indeed, because the legislature was silent as to the required level of certitude imposed on the jury’s weighing determination, there is a statutory lacuna, which . . . should be filled.” Id., 231. This statutory lacuna, we concluded, potentially raised a significant state constitutional question regarding the burden of persuasion and the level of certitude required of a jury in determining whether death is the appropriate punishment in any particular case.
In the present case, the trial court properly instructed the jury that “[t]here is no special meaning to be accorded to the word ‘weighing’; it’s given its common, everyday meaning.”
B
The Trial Court’s Acceptance of the Jury’s Second, Corrected Verdict
The defendant next claims that the trial court improperly accepted a corrected verdict from the jury after
The essential facts relevant to the defendant’s claim are set forth in the trial court’s memorandum of decision regarding the reassembly of the jury and the acceptance of the jury’s second, corrected verdict as the sole verdict in the present case. “On October 16,2000, after approximately two and one-half . . . days of deliberation during the penalty phase of the trial, the court received a communication from the jury. The communication indicated that the jury had reached a verdict .... The court reconvened and the clerk inquired of the jur[ors] their findings from the special verdict form. The jur[ors] initially reported that they unanimously agreed: (1) that the state had proved the aggravating factor beyond a reasonable doubt ... (2) that the defendant had not proved, by a preponderance of the evidence, the existence of one or a combination of statutory [mitigating] factors ... (3) that [one or more jurors] had found the existence of a mitigating factor as defined . . . and
“Immediately upon exiting the courtroom, the jury, through a juror, informed the sheriff that there was a problem. The jury was in its deliberation room at this time, together as a group, and not with any outside parties. The sheriff informed the court that the jury had a problem, and the court proceeded to the jury room to inquire of the problem. The court was immediately informed that the problem was with the verdict. The court briefly responded to the inquiry and instructed the clerk, who was present, to inform the jurors to write a note indicating the specific problem. The jurors produced a note for the court .... The court alerted the parties [as] to the jury’s problem and conducted discussions with the attorneys in chambers on how to appropriately address the issue. The court determined that a complete record with the jury had to be established for appellate review.
“The court reconvened, the jury’s note was marked as [an exhibit], and each party was allowed to argue its position regarding the additional proceedings.
“Subsequently, a jury poll was taken and each individual juror indicated that [his or her] intent was to announce that the aggravating factor outweighed the mitigating factor(s). Each individual juror also indicated that the decision concerning [the jury’s] corrected verdict was not a result of any force, threat or outside influence. At the conclusion of these questions, the court instructed the jurors to complete another special verdict form which indicated their intended findings. The court recessed for this purpose. The court reconvened after the jury had completed the [second] special
“The jury was excused. During subsequent hearings [on] the matter, [defense counsel] filed [an] affidavit containing an allegation of judicial contact with the jury. Because of this allegation, the court referred the matter for review by the presiding criminal judge, Damiani, J. (presiding judge). The presiding judge conducted an evidentiary hearing on December 1, 2000, and questioned each of the twelve jurors concerning [his or her] contact with the court. After the hearing, the presiding judge ruled that any contact between the court and the jurors was proven harmless beyond a reasonable doubt.”
Thereafter, the trial court concluded, in its memorandum of decision, that the jury had not been discharged prior to the individual polling of the jury and the correction of its verdict. Consequently, the trial court accepted the second verdict as the jury’s true verdict. In so concluding, the trial court found that, prior to the jury’s reassembly in the courtroom, “the jury [had] remained as an intact unit under the control and supervision of the court.” The trial court also explained that the only individuals with whom the jury had contact after exiting
1
Authority of the Trial Court to Recall the Jury Prior to Discharge
The defendant claims that the trial court improperly concluded that the jury had not been discharged prior to its reassembly and submission of its second verdict. Specifically, the defendant contends that, pursuant to this court’s decision in State v. Pare, supra, 253 Conn. 611, the jury in the present case had separated and dispersed, and had the opportunity to mingle with others before it was reassembled and allowed to submit its second verdict. The defendant also claims that Pare does not sanction the reassembly of a jury for the purpose of allowing it to correct or to change its verdict. The state contends that the jury had not been discharged prior to being reassembled; specifically, the state claims the jury remained a single, undispersed unit that was not subject to any external influence. The state also contends that, because the jury had not been discharged, the trial court properly allowed the jury to reassemble and to correct its verdict.
As a threshold matter, we set forth the standard of review. “The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous.” (Inter
Turning to the merits of the defendant’s claim, we note that, “[w]hen a jury remains as an undispersed unit within the control of the court and with no opportunity to mingle with or discuss the case with others, it is undischarged and may be recalled.” (Internal quotation marks omitted.) State v. Pare, supra, 253 Conn. 630, quoting United States v. Marinari, 32 F.3d 1209, 1214 (7th Cir. 1994); see also Summers v. United States, 11 F.2d 583, 586 (4th Cir.) (“After a verdict has been rendered, and the jur[ors], after being discharged, have separated, thejurfors] cannot be recalled to amend their
In State v. Pare, supra, 253 Conn. 611, the defendant, Joseph Pare, was charged with murder. At trial, following two days of deliberations, the juiy informed the court that it had reached a verdict. Id., 617. Following a sidebar conference between defense counsel and the trial court, the jury was escorted into the courtroom and, thereafter, announced its verdict finding Pare guilty of murder. Id. After the juiy verdict was announced, the clerk asked the members of the jury collectively whether they unanimously had agreed that Pare was guilty of murder. Id. The jurors collectively responded in the affirmative. Id. After reviewing the process through which the jury arrived at its verdict, the trial court instructed the jurors to retire to the deliberation room and to wait for the trial court to speak with them. Id., 617-19. Immediately after the jurors exited the courtroom, defense counsel requested that the trial court individually poll the jurors regarding the verdict. Id., 619. The trial court denied defense counsel’s request. Id.
On appeal, Pare claimed that the trial court had violated his right, under Practice Book § 42-31,
In construing the meaning of “discharged,” as used in Practice Book § 42-31, we first concluded that jurors are not necessarily relieved of their official obligations once they leave the courtroom and, therefore, under certain circumstances, jurors may be recalled for the purpose of submitting to a jury poll. Id., 628-29. Thus, “mere departure from the courtroom does not, in and of itself, discharge a jury from its obligation to render continued service in a particular case.” State v. Murray, 254 Conn. 472, 495, 757 A.2d 578 (2000). In Pare, we went on to discuss when a juror’s obligations are deemed complete such that the jury is no longer within the control of the court. See generally State v. Pare, supra, 253 Conn. 629-34. We concluded that a jury completes its task and relinquishes its status as a judicial body—and, therefore, is discharged—when “its members actually separate or disperse.” (Emphasis added.) Id., 634. In so concluding, we explained that, “[w]hen a jury remains as an undispersed unit within the control of the court and with no opportunity to mingle with or discuss the case with others, it is undischarged and may be recalled.” Id., 630, quoting United States v. Marinari, supra, 32 F.3d 1214. Until the members of the jury actually separate and disperse, “it can be assumed, in the absence of any indication to the contrary, that the delib
In Pare, we concluded that the jury had not been discharged when the trial court denied defense counsel’s request to poll the jurors. State v. Pare, supra, 253 Conn. 634. In support of this conclusion, we explained that the trial judge expressly had “instructed the members of the jury to retire to the jury room and await his arrival.” Id. Moreover, “[t]he jurors had not dispersed and they remained untainted by any outside contact.” (Internal quotation marks omitted.) Id. Therefore, “the jury continued to exist as a judicial body under the control of the court.” (Internal quotation marks omitted.) Id. Accordingly, we concluded that the trial court improperly had denied defense counsel’s request to poll the jury.
Applying the foregoing principles to the present case, we conclude that the jury had not been discharged when the trial court learned of the error in the jury’s first verdict and that, consequently, the trial court properly reassembled the jury to allow it to correct its verdict.
The defendant contends, however, that the jury was discharged because: (1) the trial court never expressly instructed the members of the jury to retire to the jury room and to await his arrival; (2) the jurors in the present case had an opportunity to mingle and to discuss the case with others; and (3) the parties waived their right to have the jurors polled and, thus, the jurors had no outstanding obligations to fulfill.
We also reject the defendant’s claim that the jurors had the opportunity to mingle and to discuss the case with outsiders. In support of this claim, the defendant relies on the fact that the jurors actually discussed their verdict with the sheriff and the judge. As the trial court noted in its memorandum of decision, however, “any contact that took place was initiated by the jury . . . for the sole purpose of alerting the court to [the jury’s] error.” We do not think that contact with court personnel for the sole purpose of alerting the court of a potential error in the verdict constitutes contact with outsiders sufficient to render the jury discharged. The policy supporting a finding of discharge after jurors have had contact with outsiders, namely, the avoidance
On appeal, the defendants claimed that the trial court improperly accepted the jury’s corrected verdicts. Id., 27. The Supreme Judicial Court of Massachusetts began its analysis of the defendants’ claim by explaining that, “once the jury ha[s] been discharged, [it has] no further power to deliberate or to agree to a verdict.” Id., 28. The court went on to state, however, that it has “allowed juries to correct formal and clerical errors in the recording of verdicts to which they had properly agreed. . . . [T]hat principle applies to deny finality to the original verdicts here, since the jury, by [its] own action and without any suggestion from the judge or any one else, immediately indicated that the verdicts reported did not state what [the jurors] had agreed to.” (Citations omitted.) Id., 28-29. Thus, the court concluded that there was “no impropriety in the correction of the verdicts on the murder indictments.” Id., 29. Other courts similarly have permitted juries to correct their verdicts prior to being discharged. E.g., State v. Myers, 318 S.C. 549, 552,459 S.E.2d 304 (1995) (because jury “remained an essentially undispersed unit, and was subjected to no outside influence” between release and reassembly, court properly reassembled jury to allow it to report “the actual verdict reached”); State v. Edwards, 15 Wash. App. 848, 851, 552 P.2d 1095 (1976) (Jury’s corrected verdict properly was received when “[t]he jury did not pass from the control of the court but merely exited the courtroom to the adjacent jury room where it would have to remain until the bailiff entered and unlocked the outside door. No member of the jury had either the time or opportunity to separate from his fellows and commingle with nonmembers of the jury, nor did the jurors renew their deliberations or discuss the merits of the cause.”), review denied, 88 Wash. 2d
2
Scrivener’s Error
The defendant next claims that the trial court incorrectly characterized the jury’s mistake in its initial verdict as a scrivener’s error. In response, the state contends that the trial court correctly characterized the jury’s mistake as a scrivener’s error.
In its memorandum of decision, the trial court concluded “that fairness and justice would not allow a scrivener’s error to thwart a true and accurate jury verdict.” As we noted previously, “[t]o the extent that the trial court has made findings of fact, our review is
Our review of the record in the present case reveals that the trial court’s finding that the initial verdict contained a scrivener’s error was not clearly erroneous. After learning that the jury had made an apparent mistake in returning its initial verdict, the trial court recalled the jury into the courtroom and directed the clerk to poll the jurors as to their intended verdict. Specifically, the trial court stated: “I received your communication . . . which indicates, ‘It must be noted that the jury found the aggravating factors outweigh the mitigating factors.’ And . . . the clerk is going to ask the foreperson ... to basically go through that jury verdict form to find out what you intended if it’s not what’s on that form to be.” In response, the foreperson responded: “We intended to sign . . . ‘yes’ to the aggravating factors overweighing the mitigating factors.” Subsequently, the court clerk asked every juror: “As to the weighing, do you unanimously agree that the aggravating factor proven beyond a reasonable doubt by the state of Connecticut outweighs the mitigating factor or factors found to exist, yes or no?” Every juror responded “yes,” signifying that the jury had intended to mark “yes,” on the initial verdict form in responding to the question of whether the jury unanimously had
3
Double Jeopardy
The defendant next claims that the trial court’s “enforcement” of the jury’s corrected verdict violated his rights against double jeopardy. In response, the state contends that the defendant’s rights against double jeopardy were not violated because “the defendant was not ‘acquitted’ of the death penalty by virtue of the jury’s clerical mistake . . . .”
The fifth amendment to the United States constitution provides in relevant part: “No person shall ... be subject for the same offense to be twice put in jeopardy
“We have recognized that the Double Jeopardy Clause consists of several protections: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. . . . These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense. . . . The Clause operates as a bar against repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent.” (Citations omitted; internal quotation marks omitted.) State v. Miranda, 260 Conn. 93, 119, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002).
In the present case, the defendant claims that the “enforcement” of the jury’s second verdict violated his rights under the double jeopardy clause because the jury’s first verdict constituted “a complete and final judgment” to which jeopardy attached. The issue of whether a correction to a jury’s verdict after the verdict has been recorded, but before the jury has been discharged, violates double jeopardy principles is an issue of first impression for this court. Other courts have addressed the issue, however, and concluded that the acceptance of a jury’s corrected verdict does not violate double jeopardy principles.
In their appeal from the denial of their habeas petitions, the petitioners claimed that their due process rights were violated when the trial court allowed the jurors to correct their verdicts. Brown v. Gunter, supra, 562 F.2d 124. The First Circuit Court of Appeals noted that “two Bill of Rights provisions [were] relevant . . . [namely] the Double Jeopardy Clause of the Fifth Amendment and the right to a jury trial guaranteed by the Sixth Amendment”; id.; both of which are applicable to the states through the fourteenth amendment due process clause. See id. and nn. 3-4, citing Benton v. Maryland, supra, 395 U.S. 784, and Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). The court first noted that “[n] either provision ha[d] been violated on its face. [The petitioners] did receive a jury trial. [Furthermore] [t]he state did not reprosecute them [after] winning the original conviction[s], nor did [the state] impose a second punishment for the same criminal activity.” Brown v. Gunter, supra, 124. The court went on to explain, however, that “[t]he provisions of the Bill of Rights . . . are not empty, meaning
The court then explained that the primary danger against which the double jeopardy clause protects, namely, repeated attempts to prosecute an individual for the same offense, was not implicated when the trial court allowed the jurors to correct the verdicts. See id., 125. Specifically, the court noted that that danger is “far greater than the mere disappointment that will follow from a defendant having thought for a few moments that he had been found not guilty. Moreover, the defendant’s interest is not the only one at stake. We must also consider the societal interest in punishing one whose guilt is clear after he has obtained [a fair] trial. . . . Given that the harm to the [petitioners] is minor and that a jury has found them guilty, we conclude that the purposes of the Double Jeopardy Clause have not been undercut.” (Citation omitted; internal quotation marks omitted.) Id.
Similarly, in United States v. Stauffer, 922 F.2d 508 (9th Cir. 1990), the Ninth Circuit Court of Appeals concluded that the trial court in that case “did not alter the jury’s verdict itself; it simply corrected the verdict form to reflect the jury’s true intent. Clearly, decreasing the impact of a judgment is less problematic to a defendant than expanding its impact. Still ... no possible unfairness can be found in a judgment that reflects the jury’s true intent. Despite [the defendant’s] admirable effort to persuade this [c]ourt that his right to be free from double jeopardy has been violated, the facts do not support a conclusion that the double jeopardy clause has been compromised . . . .” Id., 514.
The defendant nevertheless relies on State v. Green, 995 S.W.2d 591 (Tenn. Crim. App. 1998), in support of his claim that the trial court’s acceptance of the jury’s second verdict violated the double jeopardy clause. In Green, the defendant, Rachel Marie Green, was charged with facilitation of first degree murder and facilitation of attempted first degree murder. Id., 598. The trial court charged the jury with respect to those crimes and the lesser included crimes of facilitation of second degree murder and facilitation of attempted second degree murder. Id., 607. After between one and two days of deliberations, the jury informed the trial court that it had reached a verdict. Id. When the jury entered the courtroom, the trial court asked the jury foreperson what the jury’s verdict was regarding both counts of facilitation, to which the foreperson responded, “Not guilty.” (Internal quotation marks omitted.) Id. The trial court then verbally discharged the jury. Id. Thereafter,
On appeal, Green claimed, inter alia, that the reassembly of the jury violated her rights under the double jeopardy clause. See id., 614. The Tennessee Court of Criminal Appeals first concluded that the jury had been discharged before it had been reassembled to correct its verdict. Id., 613, 614. The court reasoned that most, if not all, of the jury members had exited the courtroom and entered into an area that was occupied by members of the public who were reacting to the outcome of the trial. Id., 613. Thus, the court concluded that there existed a possibility that the jurors had had contact with outsiders, and, therefore, the jury was “discharged” prior to being polled about its intended verdict. Id. The Tennessee Court of Criminal Appeals concluded that, because the jury had been discharged, the trial court improperly permitted the jury to correct its verdict. Id., 614. Accordingly, “[t]he not guilty verdicts reported by the jury, coupled with the discharge
The defendant’s reliance on Green is misplaced. We previously concluded that the trial court properly determined that the jury had not been discharged before being reassembled for the purpose of correcting its verdict. Accordingly, contrary to Green, in which the jury already had been discharged, the trial court’s acceptance of the jury’s corrected verdict in the present case did not violate the double jeopardy clause.
4
Cruel and Unusual Punishment
The defendant finally claims that the trial court’s acceptance of the jury’s corrected verdict violated his right to be free from cruel and unusual punishments under the eighth
It is axiomatic that a capital defendant has an eighth amendment right to “a capital sentencing jury [that] recognizes the gravity of its task and [that] proceeds with the appropriate awareness of its truly awesome responsibility.” (Internal quotation marks omitted.) Caldwell v. Mississippi, 472 U.S. 320, 341, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985). Additionally, in capital cases, the eighth amendment requires a “heightened need for reliability in the determination that death is the appropriate punishment in a specific case.” (Internal quotation marks omitted.) Id., 340; accord State v. Reynolds, supra, 264 Conn. 177. We conclude, however, that the procedures employed by the trial court in the
After the trial court properly reassembled the jury upon discovering its apparent mistake, the trial court polled each juror to determine whether the jurors “unanimously agree[d] that the aggravating factor proven beyond a reasonable doubt by the state of Connecticut outweigh [ed] the mitigating factor or factors found to exist . . . .” Each juror responded affirmatively. The trial court also asked each juror to respond to the following question: “Has anyone forced you or threatened you or influenced any of you in any way in coming back here and saying that [you had found that the aggravating factor outweighed the mitigating factor or factors]?” Each juror responded, “No.” Additionally, when the jurors returned a second time, after completing the second verdict form, the court clerk asked each juror to respond to the following question: “Does the aggravating factor proved beyond a reasonable doubt [by] the state of Connecticut outweigh any mitigating factor or factors known to exist?” Each juror responded affirmatively. The trial court also asked the jurors, as a group, whether they understood what sentence the court would impose as a result of their corrected verdict form. The jury foreperson responded, “[y]es,” and indicated that the jury understood that “[t]he death penalty” would be imposed.
Furthermore, after the corrected verdict had been accepted, the trial court, Damiani, J., held an evidentiary hearing to determine the propriety of the jury’s contact with court personnel before the court had reassembled the jury. At that hearing, each juror testified that his or her intended verdict when initially entering the courtroom was that the defendant receive the death penalty. With this factual background in mind, we conclude that the procedures utilized by the trial court
C
Right of Allocution
The defendant next claims that the trial court improperly denied him his right of allocution. The defendant claims that the trial court’s denial of the right of allocution violated: (1) Practice Book § 43-10 (3)
The following additional facts guide our resolution of the defendant’s claims. At the conclusion of the presentation of evidence at the defendant’s penalty phase hearing, but prior to closing arguments, the defendant filed a motion to schedule an allocution. The defendant asserted that the rules of practice, the sixth, eighth and fourteenth amendments to the federal constitution, and this court’s decision in State v. Strickland, 243 Conn. 339, 354, 703 A.2d 109 (1997), afforded him the right to make a statement to the jury. Thereafter, the trial court
We begin our review of the defendant’s claims by setting forth the applicable standard of review. The issue of whether the right of allocution applies in capital sentencing hearings is a question of law. Accordingly, our review is plenary. See State v. Valendon, 261 Conn. 381, 385, 802 A.2d 836 (2002).
“At common law, [a] defendant in a felony case had a right called ‘allocution’ to be asked formally whether he had any reason to offer why judgment should not be awarded against him. ... To place this right in its correct historical perspective, it must be considered that under the ancient English common law a person on trial for a felony was not allowed counsel and was not a competent witness in his own behalf. . . . The presiding judge theoretically was his counsel but did not represent the accused in the sense of a modem day advocate. If the judge omitted anything which was the right or privilege of the accused, it was considered the act of the court, which could not prejudice the prisoner.
1
Right of Allocution under the Common Law, General Statutes and Rules of Practice
The defendant first claims that both Practice Book § 43-10 (3) and the common law afford capital defendants a right of allocution during the penalty phase.
Our review of those authorities reveals that several courts have concluded that there is no statutory or common-law right of allocution in a capital sentencing hearing. State v. Perkins, 345 N.C. 254, 289, 481 S.E.2d 25 (“a defendant does not have a . . . statutory . . . or common law right to make unsworn statements of fact to the jury at the conclusion of a capital sentencing proceeding”), cert. denied, 522 U.S. 837, 118 S. Ct. 111, 139 L. Ed. 2d 64 (1997); Duckett v. State, 919 P.2d 7, 22 (Okla. Crim. App. 1995) (in capital case, court concluded that “there is no statutory . . . [or] common-law . . . right of a defendant to make a plea for mercy or otherwise address his sentencing jury, in addition to closing argument by counsel”), cert. denied, 519 U.S. 1131, 117 S. Ct. 991, 136 L. Ed. 2d 872 (1997); State v.
In contrast to this approach, some courts have concluded that the common-law right of allocution applies to capital sentencing hearings. The majority of these jurisdictions, however, limit the right of allocution to pleas of mercy or leniency and expressions of future hope. Harris v. State, 306 Md. 344, 359, 509 A.2d 120 (1986) (“under the common law applicable to capital sentencing proceedings at the time [the defendant] was sentenced, a defendant who timely asserts his right to allocute, and provides an acceptable proffer, must be afforded a fair opportunity to exercise this right”); Homick v. State, 108 Nev. 127, 133-34, 825 P.2d 600
Having reviewed the foregoing authorities, we are persuaded that the better course is to conclude that there is no right of allocution within the structured setting of a capital sentencing hearing. In so concluding, we are particularly persuaded by the reasoning of the Pennsylvania Supreme Court in Commonwealth v. Abu-Jamal, supra, 521 Pa. 188. lax Abu-Jamal, a capital case, the defendant, Mumia Abu-Jamal, claimed that the trial court improperly had permitted the state to cross-examine him during his capital sentencing hearing. Id., 211. Abu-Jamal’s claim was premised on his contention that he was exercising his common-law right of allocution and, therefore, should not have been subject to cross-examination. Id., 211-12. In rejecting Abu-Jamal’s claim, the court noted that certain rules of criminal procedure applied specifically to capital cases and that AbuJamal’s reliance on rules that applied to noncapital cases was misplaced. See id., 212. More importantly, however, the court rejected the notion that the com
“It is apparent from the structure provided that this evidentiary hearing is intended to serve as part of the ‘truth-determining process’ to enable the sentencer to discern and apply the facts bearing on the determination of the appropriate sentence. Implicit in the fact that the statute assigns to the defendant the burden of proving mitigating circumstances by a preponderance of evidence is the understanding that the jury is to asses [s] the evidence for credibility. It must be left open for the [commonwealth to challenge the veracity of facts asserted and the credibility of the person asserting those facts, whether that person is a witness or the defendant. We find no reason in law or logic why the defendant’s presentation of evidence in support of his claim that life imprisonment is the appropriate sentence should be shielded from the testing for truthfulness and reliability that is accomplished by cross-examination.” Id.; see also United States v. Hall, supra, 152 F.3d 392-93 (“[federal death penalty statute] counsels against construing [federal rule of criminal procedure permitting allocution] as establishing an unconditional right for the defendant to make an unsworn statement of remorse to the jury . . . [because the death penalty statute] sets
In devising this state’s capital sentencing scheme, the legislature clearly set forth, in detail, the procedures to be followed by the courts in capital sentencing hearings, including the procedure governing the type of evidence that may be admitted. Specifically, General Statutes (Rev. to 1997) § 53a-46a (c) provides in relevant part: “Any information relevant to any mitigating factor may be presented by either the state or the 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 (i) shall be 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. ...” (Emphasis added.) In addition, mitigating factors are those that, “in fairness and mercy, may be considered as tending either to extenuate or reduce the
This point is a particularly apt response to the assertion of Justice Katz in her concurrence and dissent that the defendant has a right to make an unsworn plea for mercy to the jury that is free from cross-examination, albeit subject to extensive oversight and editing by the trial court. We agree with Justice Katz’ suggestion that the principal goal of allocution is the dispensation of mercy. Indeed, we suggested as much in Strickland. See State v. Strickland, supra, 243 Conn. 344-45. In our view, however, that consideration counsels strongly in favor of the conclusion that the defendant has no right of allocution in a penalty phase hearing. The statutory scheme, which permits cross-examination and rebuttal by the state, specifically contemplates mercy as one of the factors for the jury to consider in making its life- or-death decision. See General Statutes (Rev. to 1997) § 53a-46a (c) and (d). It would be fundamentally inconsistent with that scheme, therefore, to afford the defendant the right to make a plea for mercy to the jury through an unsworn statement that is free from cross-examination.
The statute also places the burden of establishing the existence of mitigating factors on the defendant. In doing so, the legislature established a specific structure within which the state is permitted “to challenge the veracity of facts asserted and the credibility of the person asserting those facts.” Commonwealth v. Abu-Jamal, supra, 521 Pa. 213. Moreover, the procedures
2
Federal Constitutional Right of Allocution
The defendant also claims that he possesses a federal constitutional right to ailocute before his capital sentencing jury. Specifically, the defendant claims that the trial court’s denial of his opportunity to make an allocution before the jury deprived him of his right to due process under the fourteenth amendment to the United States constitution and his right to present a defense under the sixth amendment to the United States constitution, which is made applicable to the states through the due process clause of the fourteenth amendment.
We initially note that the United States Supreme Court never has addressed the issue of whether a defendant has a constitutional right of allocution in a capital sentencing hearing. See State v. Carr, supra, 172 Conn. 475. The United States Supreme Court has determined, however, that a trial court’s violation of the Federal Rules of Criminal Procedure by virtue of its failure to ask a defendant whether he wished to make a statement prior to sentencing did not result in a constitutional violation. Hill v. United States, supra, 368 U.S. 428. Specifically, the court determined that the failure of the trial court to ask the petitioner, who was represented by counsel, whether he wanted to exercise his rights under the rule was “an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure.” (Emphasis added.) Id. The court specifically noted, however, that it was not deciding whether a constitutional violation would have existed if the court affirmatively had denied the petitioner’s request to speak during the hearing at which his sentence had been imposed. Id., 429.
Although the United States Supreme Court never has addressed the precise issue of whether a defendant
After determining that a defendant does not have a right of allocution in a capital case under the Federal Rules of Criminal Procedure; see id., 393; the Fifth Circuit then determined that there is no “constitutional right to make an unsworn statement of remorse before the jury that is not subject to cross examination.” Id., 396. The court first noted that, “[n] either the government nor Hall [the defendant] contended] that [he] would not have been permitted to testify at the sentencing hearing and thereby in his own words introduce any information relevant to a mitigating factor.” (Internal quotation marks omitted.) Id. The court further explained: “We simply cannot conclude that fundamental fairness required that Hall be allowed to make such a statement without being sworn or subject to cross-examination.” Id. This point, in addition to the numerous state court decisions rejecting a constitutional right of allocution, led the Fifth Circuit to conclude that a defendant does not possess a constitutional right of allocution. The Fourth Circuit Court of Appeals has adopted the Fifth Circuit’s decision in Hall, also concluding that a defendant does not have a constitutional
In addition, several state courts have concluded that a defendant does not possess a constitutional right to make an allocution before a capital sentencing jury. See, e.g., People v. Robbins, 45 Cal. 3d 867, 889, 755 P.2d 355, 248 Cal. Rptr. 172 (1988) (in light of defendant’s opportunity to present evidence and to take stand to address jury during sentencing phase of capital trial, “we fail to see the need, much less a constitutional requirement, for a corresponding right to address the sentencer without being subject to cross-examination” [internal quotation marks omitted]), cert. denied, 488 U.S. 1034,109 S. Ct. 849,102 L. Ed. 2d 981 (1989); People v. Kokoraleis, 132 Ill. 2d 235, 281, 547 N.E.2d 202 (1989) (in capital case, court concluded that “[t]he failure to provide a defendant the opportunity to make a statement before being sentenced is not a constitutional deprivation”), cert. denied, 497 U.S. 1032, 110 S. Ct. 3296, 111 L. Ed. 2d 804 (1990); State v. Perkins, supra, 345 N.C. 289 (“a defendant does not have a constitutional . . . right to make unsworn statements of fact to the juiy at the conclusion of a capital sentencing proceeding”); Duckett v. State, supra, 919 P.2d 22 (“there is no . . . constitutional right ... to make a plea for mercy or otherwise address [the] sentencing jury”); State v. Stephenson, supra, 878 S.W.2d 551 (“our review of the case law convinces us that a capital defendant does not have a . . . constitutional right to make an unsworn statement to a jury in the sentencing phase of a capital trial”).
We are persuaded by these authorities and conclude that a defendant does not possess a federal constitutional right of allocution in a capital sentencing hearing. It is clear to us that the purpose of allowing allocution, namely, to permit the defendant to introduce to the jury information relevant to the defendant’s plea for mercy,
State Constitutional Right of Allocution
The defendant next claims that, even if we conclude that there is no federal constitutional right of allocution in a capital sentencing hearing, such a right is guaranteed under article first, § 8, of the Connecticut constitution. Specifically, the defendant claims that the command that “the accused shall have a right to be heard by himself and by counsel” provides a state constitutional basis for the right of allocution in a capital sentencing hearing. We disagree.
“The analytical framework by which we determine whether, in any given instance, our state constitution affords broader protection to our citizens than the federal constitutional minimum is well settled. In State v. Geisler, supra, 222 Conn. 684-86, we enumerated the following six factors to be considered in determining that issue: (1) persuasive relevant federal precedents;
(2) the text of the operative constitutional provisions;
(3) historical insights into the intent of our constitutional forebears; (4) related Connecticut precedents; (5) persuasive precedents of other state courts; and (6) contemporary understandings of applicable economic and sociological norms, or as otherwise described, relevant public policies.” (Internal quotation marks omitted.) State v. Rizzo, supra, 266 Conn. 207-208.
The first Geisler factor we consider is persuasive relevant federal precedents. This factor favors a determination that our state constitution does not afford greater protection than the federal constitution because, as we discussed previously, at least two federal circuit courts have concluded that a capital defendant does not have a constitutional right to make an
The next Geisler factor is “the text of the operative constitutional provisions . . . .” (Internal quotation marks omitted.) State v. Rizzo, supra, 266 Conn. 208. The text of article first, § 8, which affords a criminal defendant the “right to be heard by himself and by counsel,” appears neutral. Although the text does provide that the defendant has a right to be heard by himself, there is nothing to suggest that the framers intended that this clause specifically would afford a defendant the right of allocution in a capital sentencing proceeding.
We also consider related Connecticut precedents and any historical insight into the intent of our constitutional forebears. See State v. Rizzo, supra, 266 Conn. 208. We are persuaded that both these factors weigh in favor of a determination that article first, § 8, does not afford greater protection than the federal constitution.
In State v. Gethers, 197 Conn. 369, 370, 497 A.2d 408 (1985), the defendant, David Gethers, was charged with, and subsequently convicted of, tampering with a witness in violation of General Statutes § 53a-151.
In examining the historical background of article first, § 8, we explained that “there [were] two related yet separate legal developments that may have culminated in the original adoption of this provision of the first Connecticut constitution in 1818.
“First, the independent right of an individual accused of the commission of a crime to self-representation had evolved.” Id., 388. Under the common law, “[t]he right to counsel . . . emerged as guaranteeing a choice between representation by counsel and the traditional practice of self-representation. . . .
“Historically, [i]n the American Colonies the insistence upon a right of self-representation was, if anything, more fervent than in England. . . . Because lawyers in colonial America were identified with the Crown, distrust of lawyers was institutionalized as several colonies, including Connecticut, initially prohibited pleading for hire in the [seventeenth] century. ... By the end of that century, however, the right to counsel had been established in Connecticut. . . .
“Thus, by the time of the adoption of our first state constitution in 1818, a defendant in a criminal case had the right to present a defense, including one by counsel,
The second legal development was the evolution of the criminal defendant’s competency to testify at trial. Id. “By 1818 . . . one accused of a crime in our state had no right to testify in his own behalf. He could however, be ‘heard’ in his role as defendant by making an unsworn statement himself. The provision in article first, § 8, that guarantees the accused ‘a right to be heard by himself and by counsel’ may have been intended by the framers ‘to insure that every accused citizen enjoyed the benefit of counsel and a correlative right to be heard in person.’ ” Id., 392. We concluded, however, that we did not need to decide which one of these historical backgrounds was more persuasive because “there [was] scant evidence that the framers ever intended, much less imagined, any such result. [Article first, § 8] has not previously been so construed by this court.” Id., 393.
We are persuaded that the right encompassed by article first, § 8, as we explained in Gethers, is that of self-representation and not a right to make an allocution
In addition, construing article first, § 8, as affording a criminal defendant a right to make an allocution to a capital sentencing jury would be inconsistent with other Connecticut precedent. In State v. Carr, supra, 172 Conn. 459, the defendant, Benjamin Carr, Jr., who had been convicted of bribing public servants, claimed that the trial court improperly had denied him a right of allocution. Id., 459-60, 473. After examining the origins of the common-law right of allocution, we noted that a trial court’s failure to ask a defendant if he has something to say is “not an error of constitutional dimensions.” Id., 475, citing Hill v. United States, supra, 368 U.S. 428. We also noted that, “[although our state constitution, article first, § 8, provides that an ‘accused shall have a right to be heard by himself and by counsel,’ we have never precisely construed this provision. Similar provisions in other states have not been construed to entitle an accused as a matter of right to be heard by both himself and by counsel.” State v. Carr, supra, 475. We went on to conclude that the trial court did not improperly deny the defendant the right to make an allocution prior to being sentenced. Id., 477. Thus, in Carr, we impliedly rejected the notion that the right
The next Geisler factor is “persuasive precedents of other state courts . . . .” State v. Rizzo, supra, 266 Conn. 208. Our research reveals that at least two states have concluded that similar state constitutional provisions do not afford a criminal defendant the right to make an allocution to a capital sentencing jury. In State v. Stephenson, supra, 878 S.W.2d 530, the Supreme Court of Tennessee rejected a claim that article first, § 9, of the constitution of Tennessee
Similarly, in Duckett v. State, supra, 919 P.2d 7, the defendant, Robert Don Duckett, claimed that his due
The final Geisler factor is that of relevant public policies. State v. Rizzo, supra, 266 Conn. 208. We conclude that this factor also militates against the defendant’s claim that the right of allocution in capital sentencing hearings is guaranteed by our state constitution. In our view, § 53a-46a, which affords the capital defendant an opportunity to present any information relevant to mitigation, adequately protects the defendant’s rights during a capital sentencing hearing. Accordingly, because none of the Geisler factors favors the defendant’s claim that article first, § 8, guarantees him the right of allocution in a capital sentencing hearing, we conclude that the trial court’s denial of the defendant’s request to make an allocution during the penalty phase did not violate article first, § 8, of the Connecticut constitution.
D
Evidence of Prior Misconduct
The defendant next claims that the trial court improperly permitted the state to introduce evidence of the defendant’s misconduct toward the victim during the week prior to the victim’s death. Specifically, the defen
The following additional facts are relevant to the resolution of the defendant’s claim. On the first day of the defendant’s penalty phase hearing, the state offered the testimony of Peter Jacoby, the emergency room physician who treated the victim on the day of her death.
Jacoby also noted that, when the victim arrived at the hospital, a bone in her arm was fractured. Jacoby explained that the victim had suffered a spiral fracture, which typically involves some kind of force and counter force. Jacoby also explained that there is a nerve located “right in the middle of the bone, which is right where the fracture is.” Jacoby indicated that the bone had been fractured before the injuries that led to the victim’s death were inflicted.
Jacoby testified as to the existence of bruising throughout the victim’s body, including both arms and legs. Jacoby opined that these areas of bmising were at different stages of healing due to the different coloration of the bruises. Jacoby also noted that the victim had significant injuries to her buttocks, which were of “varying ages . . . .” According to Jacoby, the autopsy photographs also revealed “pattern” injuries to the victim’s right arm, legs and buttocks. Jacoby testified that a “pattern” injury is one that may have been caused by the use of a specific type of instmment. Jacoby testified that these pattern injuries likely were inflicted at the
In addition to Jacoby’s testimony, the state offered a statement that the defendant had given to the police on the night that he was arrested for the victim’s murder.
During the penalty phase of the defendant’s trial, the state offered the evidence of the defendant’s prior abuse of the victim to prove the defendant’s intent to torture the victim by engaging in a continuous course of abuse that culminated in her death. The state claimed that this evidence also was relevant to prove the victim’s state of mind at the time of the offense.
“As a general rule, evidence of a defendant’s prior crimes or misconduct is not admissible. . . . We have, however, recognized exceptions to the general rule if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. . . . [Prior misconduct] evidence may also be used to corroborate crucial prosecution testimony. . . . Moreover, we have held that such evidence may be used to complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings. . . .
“To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, we have adopted a two-pronged analysis. . . . First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence.” (Internal quotation marks omitted.) State v. Vega, 259 Conn. 374, 396-97, 788 A.2d
“Our standard of review on such matters is well established. The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . The problem is . . . one of balancing the actual relevancy of the other crimes evidence in light of the issues and the other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence.” (Internal quotation marks omitted.) State v. Vega, supra, 259 Conn. 397.
In the present case, the state sought to prove the existence of an aggravating factor, namely, that “the defendant committed the offense in an especially heinous, cruel or depraved manner . . . .” General Statutes (Rev. to 1997) § 53a-46a (i) (4). We previously have interpreted § 53a-46a (i) (4) to require proof that “the defendant engaged in intentional conduct that inflicted extreme physical or psychological pain [suffering] or torture on the victim above and beyond that necessarily accompanying the underlying killing, and that the defendant specifically intended to inflict such extreme pain [suffering or] torture . . . or . . . the defendant was callous or indifferent to the extreme physical or psychological pain, suffering or torture that his intentional conduct in fact inflicted on the victim.” (Emphasis in original; internal quotation marks omitted.) State v. Courchesne, supra, 262 Conn. 545.
We conclude that the trial court properly allowed the state to introduce evidence of the defendant’s prior
We also conclude that the probative value of the prior misconduct was not outweighed by the risk of unfair prejudice. Although we acknowledge that the evidence of the victim’s injuries was disturbing, the prejudicial effect of that evidence during the penalty phase was negligible because the same jury already had seen, during the guilt phase, graphic autopsy photographs of the victim, which revealed the full extent of her injuries. Moreover, although the evidence of the victim’s injuries likely had an effect on members of the jury, there is nothing to support the claim that the evidence unduly aroused the jurors’ emotions or sympathy. Thus, the probative value of the evidence of misconduct was not outweighed by the risk of unfair prejudice.
Sufficiency of the Evidence of the Existence of the Aggravating Factor
The defendant next claims that the evidence was insufficient to establish beyond a reasonable doubt that he had murdered the victim in “an especially heinous, cruel or depraved manner,” as required by General Statutes (Rev. to 1997) § 53a-46a (i) (4). We disagree.
As we previously noted, we have inteipreted the aggravating factor set forth in § 53a-46a (i) (4) to require proof that “the defendant engaged in intentional conduct that inflicted extreme physical or psychological pain [suffering] or torture on the victim above and beyond that necessarily accompanying the underlying killing, and that the defendant specifically intended to inflict such extreme pain [suffering or] torture ... or . . . the defendant was callous or indifferent to the extreme physical or psychological pain, suffering or torture that his intentional conduct in fact inflicted on the victim.” (Emphasis in original; internal quotation marks omitted.) State v. Courchesne, supra, 262 Conn. 545.
“In reviewing a claim that the evidence failfed] to support the finding of an aggravating factor specified in [§ 53a-46a (i)]; [General Statutes § 53a-46b (b) (2)];
“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.” (Citations omitted; internal quotation marks omitted.) State v. Reynolds, supra, 264 Conn. 92-93.
“[Finally], [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes [the existence of an aggravating factor] in a case involving substantial circumstantial evidence.
. . . Indeed, direct evidence of the defendant’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Internal quotation marks
The evidence adduced at the penalty phase hearing established that, on the day that the victim, who was merely two years old, was killed, the defendant dragged the victim into the bathroom and repeatedly thrust the victim’s head into the shower wall. When the victim fell to the floor and was unable to stand up, the defendant pulled her up by her hair, causing clumps of her hair to detach from her scalp. Moreover, the defendant committed this crime with the knowledge that the victim already had been physically abused and was suffering from severe injuries inflicted by the defendant during the days leading up to the victim’s death. Specifically, the defendant caused a spiral fracture in the victim’s arm, various lacerations, scratches and gouges on her face, multiple layers of bruising throughout her body, deep, bum-like wounds on her shoulders, and wounds stemming from his assault of the victim with a belt, all within a week of the victim’s death. The defendant admitted in his statement to the police that he had inflicted these injuries. In addition, the evidence revealed that the defendant had permitted his mother and Virginia Quintero to seek medical attention for the victim only after they agreed to lie to medical personnel regarding the cause and source of the victim’s injuries.
We conclude that the evidence supported the jury's finding that the victim had experienced extreme physical and psychological pain and suffering during the commission of the crime, above and beyond that necessary to accomplish the killing. The jury reasonably could have found that the victim likely already was terrified of the defendant in light of the severe abuse leading up to the killing. This terror likely was intensified due to the victim’s young age and complete helplessness to act in her own defense. In addition, we need not elaborate on the victim’s probable state of mind or
The evidence also supports the jury’s finding that, in engaging in this course of conduct, the defendant had the requisite intent. The jury reasonably could have found that the defendant intended to inflict on the victim the extreme physical and psychological pain and suffering that she in fact had endured. “It is axiomatic that the fact finder may infer intent from the natural consequences of one’s voluntary conduct.” State v. Cobb, 251 Conn. 285,450, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841,121 S. Ct. 106,148 L. Ed. 2d 64 (2000). The jury reasonably could have found that the defendant’s entire course of conduct was intentional. The jury also reasonably could have found that the defendant “was callous and indifferent to the extreme physical and psychological pain and suffering that he was . . . inflicting on [the victim]”; id.; when, knowing the condition of the victim, he dragged her into the bathroom and repeatedly thrust her head against the shower wall and pulled her hair out of her scalp. Thus, we conclude that there was sufficient evidence to support the finding that the defendant murdered the victim “in an especially heinous, cruel or depraved manner . . . .” General Statutes (Rev. to 1997) § 53a-46a (i) (4).
F
Mitigation Evidence
1
Evidence of the Defendant’s Childhood and His Demeanor Toward a Friend
We review the defendant’s claim regarding the admission of mitigation evidence under the abuse of discre
The defendant claims that the trial court improperly sustained two objections made by the state’s attorney during the presentation of the defendant’s mitigating evidence. The first objection came during the testimony of Israel Colon, the defendant’s uncle. Defense counsel asked Israel Colon about his observations regarding how his brother, the defendant’s father, had raised the defendant. Israel Colon responded by stating that “[e] very thing that is happening to [the defendant] . . . was [the father’s fault] . . . .” Before Israel Colon could explain further, the state’s attorney objected on the ground that the answer was in the form of a narrative. The trial court sustained the objection on that ground.
The next objection arose during the testimony of Veronica Rivera, an eleven year old with whom the defendant had formed a friendship. Defense counsel asked Rivera whether the defendant ever had been mean to her. The state’s attorney objected to the question, and the trial court sustained the objection.
We conclude that the trial properly sustained the objection to the narrative testimony of Israel Colon. In
Because Rivera may testify similarly at the defendant’s penalty phase hearing on remand, we address whether the trial court properly sustained the objection of the state’s attorney to Rivera’s testimony. We conclude that Rivera’s testimony was relevant to prove the defendant’s character in mitigation. Thus, the trial court abused its discretion in sustaining the objection to Rivera’s testimony.
Shackles and Handcuffs
The defendant next claims that the trial court improperly precluded him from appearing before the juiy in shackles and handcuffs during the penalty phase. Specifically, the defendant maintains that the trial court’s order to remove the shackles and handcuffs violated his right to present relevant mitigating evidence to the jury. We disagree.
At the commencement of the penalty phase of the defendant’s trial, the state’s attorney objected to the defendant’s wearing of shackles and handcuffs during the penalty phase. In response, defense counsel argued that the jury should be able to see what they had “done” to the defendant, that is, sentenced him to at least life in prison. The trial court ordered that the defendant’s shackles and handcuffs be removed so that he could assist defense counsel.
“In reviewing a shackling [or restraints] claim, our task is to determine whether the trial court’s decision . . . constituted a clear abuse of discretion.” State v. Tweedy, 219 Conn. 489, 506, 594 A.2d 906 (1991). We conclude that the trial court did not abuse its discretion in ordering that the defendant’s shackles and handcuffs be removed. Although the defendant claims that the trial court’s order to remove the shackles and handcuffs precluded him from presenting relevant mitigating evidence to the jury, he has not pointed to any specific mitigating factor that would have been bolstered by his appearance in shackles and handcuffs. Moreover, the cases upon which the defendant relies in support of his claim involved the propriety of disallowing a defendant to appear in court unmedicated when the defense of
G
Other Jury Instructions During the Penalty Phase
The defendant next challenges certain aspects of the trial court’s instructions to the jury during the penalty phase. As a preliminary matter, we set forth the standard of review governing each of these claims. “The standard of review for constitutional claims of improper jury instructions is well settled. In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon
1
Instructions Regarding Juror Participation in the Weighing Process
The defendant claims that the trial court improperly instructed the jurors that “they were only to weigh the mitigating factors that they individually found against the aggravating factor unanimously found [by the jurors].” Specifically, the defendant contends that the trial court should have instructed the jurors that they were required, or at least free, to weigh all the mitigating factors found by one or more jurors against the aggravating factor unanimously found by the jurors.
The trial court gave the following instruction regarding the mitigating factors: “In deciding whether a mitigating factor has been proven by the preponderance of the evidence, it is not necessary that you all agree as to what [the] particular mitigating factor is ... . Now, should any of you determine that the defendant has proven by a preponderance of the evidence the existence] of one or more mitigating . . . factors, you must then engage in the weighing process.” During deliberations, the jury sent a note to the trial court, asking: “How are the mitigation factors settled, by those in question or also by the entire jury? And may the entire jury influence those with a mitigating factor?” In response, the trial court reread some of its charge to
In claiming that the defendant failed to preserve his claim for appellate review, the state contends that the defendant had conceded at trial that the weighing process was individualized and required that each juror weigh only those mitigating factors that he or she individually finds.
We note that the trial court gave a potentially misleading instruction to the jury in the present case. The trial court, in one instance, instructed the jurors that, “should any of you determine that the defendant has proven by a preponderance of the evidence the existence] of one or more mitigating . . . factors, you must then engage in the weighing process.” In another instance, however, the trial court instructed the jurors that, “[t]hose jurors who have found the existence of a mitigating factor in his or her own mind must determine whether the aggravating factor that the jury has already unanimously found to exist beyond a reason
In instructing the jury, the trial court should make clear that, as long as one juror has found the existence of one or more mitigating factors, the entire jury then proceeds to the weighing process. It is not the case that only those jurors who have found the existence of a mitigating factor then proceed to the weighing process; rather, we conclude that, once one or more jurors determine that one or more mitigating factors exist, the entire jury participates in the weighing process. Not only does this conclusion represent the most logical approach, but it also finds support in the case law of the United States Supreme Court. In McCoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), the court concluded that North Carolina’s capital sentencing statutory scheme, which required a unanimous jury determination of the existence of a mitigating factor prior to the weighing process; see id., 439; “impermissibly limitfed] jurors’ consideration of mitigating evidence” in violation of the eighth amendment. Id., 444. In so concluding, the court explained that the constitution “requires that each juror be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death. This requirement means that . . . each juror must be allowed to consider all mitigating evidence in deciding . . . whether aggravating circumstances outweigh mitigating circumstances, and whether the aggravating circumstances, when considered with any mitigating circumstances, are sufficiently substantial to justify a sentence of death. Under Mills [v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988)],
In addition, in a case cited by the defendant, the United States Supreme Court explained that, “although a jury must unanimously agree that the [gjovemment established the existence of an aggravating factor beyond a reasonable doubt . . . the jury may consider a mitigating factor in its weighing process so long as one juror finds that the defendant established its existence by preponderance of the evidence . . . .” (Citations omitted; emphasis added.) Jones v. United States, 527 U.S. 373, 377, 119 S. Ct. 2090, 144 L. Ed. 2d 370 (1999). Although we acknowledge that the court in Jones was interpreting the federal death penalty statute,
This is not to suggest, however, that an individual juror must give any weight to a mitigating factor that he or she previously has rejected. As we have explained, the process of determining the existence of a mitigating factor is a highly individualized one. In addition, the import of the trial court’s instructions reveals a now self-evident principle, namely, that an individual juror must weigh, against the aggravating factors unanimously found to exist, any mitigating factors individually found by him or her to exist, regardless of how many other jurors also have found that same mitigating factor to exist. We merely clarify, however, that the entire jury must participate in the weighing process, even if a particular juror who has not found the existence of a mitigating factor thereafter gives no weight to any mitigating factor found by any other juror to exist.
Instructions Regarding § 53a-46a (h) (2)
The defendant next claims that the trial court improperly instructed the jury that he was required to prove that he “had a significant mental impairment,” rather than that “his mental capacity was significantly impaired . . . .” General Statutes (Rev. to 1997) § 53a-46a (h) (2).
The trial court instructed the jury with respect to § 53a-46a (h) (2) as follows: “This statutory factor . . . states that, at the time of the offense, the defendant’s mental capacity was significantly impaired or his ability to conform his conduct to the requirements of law was significant[ly] impaired, but not so impaired as to constitute a defense to prosecution. This statutory factor requires the defendant to establish by a preponderance of the evidence that his mental capacity was significantly impaired . . . .” Thereafter, the trial court stated in relevant part: “If you unanimously find by a fair preponderance of the evidence that the defendant had a significant mental impairment at the time of the offense . . . then you have found this statutory factor set out in the statute and claimed by the defendant.”
3
Instructions Regarding the Requirement of Unanimity with Respect to the Finding of the Existence of Mitigating Factors
The defendant claims that the trial court improperly instructed the jury that a finding of the existence of a mitigating factor must be unanimous. The defendant refers to the following instruction by the trial court: “You need not all agree on the same mitigating factor or factors ... as long as you all agree that a mitigating factor exists and that you all agree that the aggravating factor does not outweigh the mitigating factor or factors.” We agree with the defendant.
Because we conclude that the trial couit’s instruction reasonably could have misled the jurors regarding their role in finding the existence of mitigating factors, we again take this opportunity to clarify the law.
We acknowledge that, in State v. Daniels, 207 Conn. 374, 387-88, 542 A.2d 306 (1988), this court concluded, in the context of interpreting the pre-1995, nonweighing death penalty statutory scheme, that the jury’s determination that no mitigating factors exist must be unanimous. Specifically, we stated: “[A] jury verdict in the penalty phase of a capital case must comport with the guidelines that govern the validity of jury verdicts generally, including the requirement of unanimity.” Id. In Daniels, we reasoned that juror unanimity in a capital sentencing hearing was essential to ensuring the heightened reliability demanded by the eighth amendment in death penalty cases. Id., 389. Our conclusion in Daniels made sense under the nonweighing statutory scheme because the ultimate decision of whether the defendant would be sentenced to death or life in prison often hinged on the jury’s decision regarding mitigation. See General Statutes (Rev. to 1995) § 53a-46a (f) (under nonweighing scheme, if jury found existence of even one mitigating factor, defendant would be sentenced to life imprisonment without possibility of release). In the present case, however, the ultimate decision depended not on the jury’s finding of one or more mitigating factors, but on the outcome of the weighing process. Thus, in our view, it is no longer necessary for
4
Instructions Regarding the Requirement of Unanimity with Respect to the Determination of Whether the Defendant Has Proven Any Statutory Bars to the Imposition of the Death Penalty
The defendant next claims that the trial court improperly instructed the jury that its determination with respect to whether the defendant had proven any statutory bars to the imposition of the death penalty had to be unanimous.
The defendant argues that, under the trial court’s instructions, “if one or more (but not all) the jurors found a statutory bar, none of the jurors could consider that statutory bar when weighing the aggravating factor against the mitigating factors.” The premise of the defendant’s argument is flawed, however. Under our statutory scheme, the jurors would proceed to the weighing process only if the jury unanimously had concluded that a statutory bar to the imposition of the death penalty did not exist. In other words, the jury never could be in the situation that the defendant describes, namely, one in which some jurors find the existence of a statutory bar but are not able to consider that bar in the weighing process, because the weighing process cannot even commence until a unanimous decision has been made regarding the statutory bars to the imposition of the death penalty. Thus, if, as the
5
Incomprehensibility of the Trial Court’s Instructions
The defendant claims that the trial court’s instructions were “incomprehensible” and “created a constitutionally intolerable risk that the jurors imposed a death sentence in spite of factors which may call for a less severe penalty . . . .” (Internal quotation marks omitted.) In support of his claim, the defendant refers to the trial court’s instruction that he claims required the jury’s determination of the existence of a mitigating factor to be unanimous. We previously resolved a substantially similar claim in part III G 3 of this opinion and, therefore, need not address the defendant’s “incomprehensibility” claim here.
6
Instructions on the Standard of Reasonable Doubt
The defendant claims that the trial court improperly instructed the jury on the definition of reasonable doubt. The trial court’s instructions on reasonable doubt during the penalty phase mirrored its instructions on reasonable doubt during the guilt phase. We previously concluded that the trial court’s instructions on reasonable doubt during the guilt phase were not improper. See part II E 4 of this opinion. Accordingly, we reject this claim.
Instructions on the Need for Unanimity Regarding the Defendant’s Sentence
Finally, the defendant claims that the trial court improperly instructed the jury “regarding the need for unanimity with respect to a life sentence . . . .” The defendant claims that our capital sentencing scheme requires the court to impose a sentence of life imprisonment without the possibility of release when the jury cannot reach a unanimous decision on whether to sentence a defendant to death or life imprisonment. The defendant further claims that, because “there [was] a reasonable possibility that [the] jury interpreted the court’s charge to mean that the defendant would receive a life sentence only if the jury reached a unanimous life verdict,” the trial court’s instruction “was highly misleading.” We disagree.
The defendant cites to the following portions of the trial court’s charge in support of his claim: “If your deliberations result in a unanimous agreement that the aggravating factor outweighs any mitigating factor or factors, you would indicate that on the verdict sheet and end your deliberations upon the finding. Upon that finding, the court will sentence the defendant to death. If your deliberations result in [a] unanimous agreement that the aggravating factor does not outweigh any mitigating factor or factors, you would indicate that on the verdict sheet .... Upon that finding, the court will impose a sentence of life imprisonment without the possibility of release.” In claiming that the foregoing instruction was improper, the defendant urges us to overrule State v. Daniels, supra, 207 Conn. 374. We decline to do so.
In Daniels, the state claimed, under the pre-1995, nonweighing statutory scheme, that once the jury found the existence of an aggravating factor, the death penalty
In Daniels, we concluded that a verdict may be reached in a capital sentencing hearing only if the ultimate decision was unanimous. Id., 388. We then addressed Daniels’ claim that the court must impose a sentence of life imprisonment unless the jurors unanimously agree that no mitigating factor exists. Id., 390-94. In rejecting his claim, we concluded that the statutory scheme “does not mandate a determinate outcome for death penalty cases in which a trier of fact cannot come to a unanimous finding about the existence of mitigating factors. In such circumstances, the statute neither authorizes imposition of the death penalty nor requires the imposition of a life sentence. Lest any misperception occur, our holding is that the imposition of the death penalty under [the statutory scheme] must be premised on two unanimous findings by the trier of fact: that the state has proved beyond a reasonable doubt that an aggravating factor exists and that the defendant has not proved by a preponderance of the evidence that a mitigating factor exists. A unanimous jury verdict that the defendant did not prove that a mitigating factor exists fulfills the statutory requirement that the death penalty not be imposed unless no mitigat
In urging us to overrule Daniels, the defendant relies on Jones v. United States, supra, 527 U.S. 373. In Jones, the United States Supreme Court concluded that, under the federal death penalty statutory scheme, in the event that the jury is unable to arrive at a unanimous verdict with respect to a capital defendant’s sentence, the sentencing determination passes to the court, which then must impose a sentence of life imprisonment without the possibility of release. Id., 380, citing 18 U.S.C. § 3594.
We first note that the United States Supreme Court based its decision on the federal death penalty statutory scheme, which specifically provides for the imposition of a life sentence after the jury has failed to reach a unanimous verdict with respect to a capital defendant’s sentence. Id., 380; see 18 U.S.C. § 3594 (2000). In contrast, our sentencing scheme does not contemplate such a result; see State v. Daniels, supra, 207 Conn. 394; and, as we have explained, “[w]hether our decision [in
H
The Special Verdict Form
The defendant next claims that the trial court improperly rejected the defendant’s proposed special verdict form. We disagree.
At the conclusion of the penalty phase hearing, the defendant requested that the court give the jurors a special verdict form requiring them to indicate, for each of the mitigating factors alleged by the defendant, whether they had found a factual basis for each of the alleged mitigating factors and, if so, whether one or more jurors had found that factor to be mitigating in nature. The trial court rejected the defendant’s proposed form in favor of one that required the jurors to indicate only whether they had found that the defendant had proven the existence of any mitigating factor by a preponderance of the evidence. On appeal, the defendant claims that the special verdict form that the court submitted to the jury did not provide sufficient information for meaningful review of the jury’s verdict with respect to the mitigating factors.
“We rejected a virtually identical claim in State v. Cobb, supra, 251 Conn. 426, [in which] the defendant
The defendant raises four additional claims with regard to the special verdict form. The defendant first claims that the special verdict form improperly required the jurors to be unanimous with respect to whether the defendant had proven the existence of a statutory bar to the imposition of the death penalty. We addressed a nearly identical claim in part III G 4 of this opinion. Because we previously have rejected this claim within the context of the defendant’s challenge to the trial court’s instructions, we similarly reject the defendant’s claim within the context of a challenge to the special verdict form.
Next, the defendant claims that the special verdict form was improper because it did not define or otherwise limit the meaning of the term “especially heinous, cruel or depraved . . . .” General Statutes (Rev. to 1997) § 53a-46a (i) (4). We note that the trial court specifically instructed the jury regarding the limited meaning of that term as construed by this court. In particular, the trial court instructed the jury: “In order for the state to prove this aggravating factor, that the defendant committed the crime in an especially heinous, cruel or depraved manner, the state must prove beyond a reasonable doubt that the defendant intended to, and in fact did, inflict extreme physical or psychological pain, suffering or torture on the victim, or that he was callous or indifferent to the extreme physical or psychological pain, suffering or torture that his intentional conduct, in fact, inflicted on the victim.” The trial court further detailed the exact elements of the
The defendant also contends that the special verdict form improperly required the jurors to be unanimous with respect to both a life sentence or a death sentence. This claim mirrors the defendant’s claim that, under our statutory scheme, a nonunanimous verdict with respect to the defendant’s sentence automatically results in a sentence of life imprisonment without the possibility of release, which the defendant made in the context of challenging the trial court’s penalty phase instructions. See part III G 7 of this opinion. We rejected that claim and, accordingly, reject it within the context of a challenge to the special verdict form as well.
Finally, the defendant claims that the special verdict form was improper because it did not inform the jurors that, in order to sentence the defendant to death, they had to find that the aggravating factor outweighed the mitigating factor or factors beyond a reasonable doubt. We concluded, in part III A of this opinion, that the trial court improperly declined to instruct the jury that, in order to sentence the defendant to death, it must be persuaded beyond a reasonable doubt that the aggravating factor or factors outweigh the mitigating factor or factors and that, accordingly, it is persuaded beyond a reasonable doubt that death is the appropriate punishment. Thus, the defendant’s claim essentially is resolved by virtue of our conclusion in part III A of this opinion, and the facts in the present case do not require us to determine whether a trial court’s proper instruction in this regard would obviate the need to repeat such an instruction in a special verdict form.
JUDICIAL MISCONDUCT CLAIMS
The defendant next claims that the trial court deviated from proper standards of judicial conduct during both the guilt and penalty phases of the defendant’s trial. Specifically, the defendant claims that, during the penalty phase, the trial court improperly expressed impatience with defense counsel during his direct examination of two witnesses. The defendant also claims that, during the guilt phase, the trial court improperly indicated that it was going to deal with the state’s allegations that defense counsel had engaged in misconduct after the trial, thereby unnerving defense counsel and hindering their ability to represent the defendant. The defendant contends, inter alia, that, as a consequence of these actions, the trial court deprived him of a fair trial as guaranteed by the federal and state constitutions.
“Due process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. U.S. Const., amend. XIV; Conn. Const., art. I, § 8 .... In a criminal trial, the judge is more than a mere moderator of the proceedings. It is [the judge’s] responsibility to have the trial conducted in a manner which approaches an atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding. . . . However, when it clearly appears to the judge that for one reason or another the case is not being presented intelligibly to the jury, the judge is not required to remain silent.
A
Expression of Impatience During the Penalty Phase
The defendant claims that, during the penalty phase, the trial court improperly expressed impatience during defense counsel’s direct examination of two witnesses. We disagree.
During the penalty phase, defense counsel offered the testimony of Maria Ocasio, the defendant’s mother. During her testimony, Ocasio revealed the existence of marital problems between her and the defendant’s father. After Ocasio explained the marital problems at length, the state’s attorney objected on the basis of relevancy. In response to the objection, the trial court asked defense counsel whether he could “put this into perspective . . . .” When defense counsel responded affirmatively, the trial court overruled the state’s attorney’s objection but stated that, “[t]he issue is that, at some point in time, you’ve got to bring it into focus, and I just want to know if it’s coming . . . .” Thereafter,
The defendant also challenges the trial court’s conduct during the testimony of Geisha Santiago, the defendant’s former girlfriend. Santiago testified regarding an alleged incident during which the defendant had thrown a frying pan at her during an argument. During this testimony, defense counsel asked Santiago who had decided that she should go to the police. The state’s attorney objected, claiming that the question had been asked and answered. In response, the trial court stated: “The aunt. Remember the aunt, [defense counsel]?” Thereafter, defense counsel acknowledged his mistake, stating: “Oh, that’s right .... I didn’t take it down.” The trial court thereupon sustained the state’s attorney’s objection.
Although we recognize that the task of determining judicial misconduct is difficult because we are “not given the benefit of witnessing the juxtaposition of personalities which may help prevent reading too much into the cold black and white of a printed record”; (internal quotation marks omitted) State v. Woodson, 227 Conn. 1, 31, 629 A.2d 386 (1993); it is clear to us that, when viewed in the greater context of the entire penalty phase, the record reveals no improprieties on the part of the trial court during defense counsel’s direct examination of Ocasio and Santiago. To the contrary,
B
Alleged Improprieties During the Guilt Phase
The defendant claims that the trial court “repeatedly threatened defense counsel that [it] was going to deal with their perceived misconduct at a later time” and that, consequently, “a cloud of contempt hovered over [the] trial.” The defendant refers to several instances during the guilt phase of the trial in which the trial court allegedly threatened defense counsel. The first incident arose during a hearing, which was conducted outside the presence of the jury, on the state’s motion to quash a subpoena served on Lieutenant Rioux. The subpoena, which had been issued by the defense, sought any information, including investigative reports, regarding allegations of unprofessional conduct by several Waterbury police officers. The trial court noted that, although the subpoena directed Rioux to bring the information into court, defense counsel received the information directly from Rioux in redacted form. The trial court then stated: “The appropriateness of this receipt
The next instance arose during Virginia Quintero’s testimony. In accordance with the trial court’s granting of the defendant’s motion to exclude evidence of the defendant’s prior alleged abuse of Quintero, the trial court struck Quintero’s testimony that the defendant had punched the victim the same night he struck Quintero. At another point in her testimony, Quintero again asserted that the defendant previously had hit her, and the trial court, outside the presence of the jury, cautioned Quintero not to discuss the defendant’s prior misconduct.
Thereafter, on cross-examination, defense counsel attempted to inquire of Quintero about the allegations that the defendant had hit her. The trial court instructed defense counsel that he could only ask Quintero about the allegations that were elicited during direct examination. Thereafter, defense counsel asked the court if he could make an offer of proof concerning a photograph of Quintero that the police had taken on the day of the victim’s death. Outside the presence of the jury, the state contended that the sole purpose of the photograph was to show that Quintero had a long fingernail and that she could have been the source of some of the victim’s injuries. The trial court stated that, although it had tried “to be fair to both the state . . . and to the defendant ... [it did not] want to be put in a position where [it felt] like [it was] set up. That’s the feeling I have on this situation.” The trial court also reiterated that it was defense counsel who, in fact, had requested that the trial court exclude evidence of the defendant’s alleged abuse of Quintero.
Another instance arose during defense counsel's offer of proof on evidence relating to the defendant’s escape
The final instance occurred during the state’s attorney’s cross-examination of Ocasio. Defense counsel objected to a portion of the assistant state’s attorney’s cross-examination of Ocasio. After defense counsel asked to be heard on the issue, the trial court excused the jury. Thereafter, outside the presence of the jury, the state’s attorney took issue with defense counsel’s conduct, noting that defense counsel had made a speech in conjunction with his objection even after the trial court repeatedly had instructed both parties simply to state their objections so as not to influence the jury. In response, the trial court stated: “I understand [the state’s concerns] . . . and it’s frustrating up on the bench myself .... I’m going to take some action and I know you’re frustrated . . . because I’m not taking action now, but it is clear law in the state of Connecticut that you don’t take action concerning counsel in the middle of a trial.” (Emphasis added.) Defense counsel thereafter asked the trial court to take immediate action, if it deemed it appropriate, because counsel could not proceed under “a cloud of, ‘I’m going to take some action.’ ” The trial court declined to do so.
The defendant claims, however, that, notwithstanding the fact that the comments were made outside the
The defendant cites Gionfriddo for the proposition that, even though the trial court’s comments were made outside the presence of the juiy, the trial court’s conduct nevertheless was improper and violated the defendant’s right to a fair trial. Our decision in Gionfriddo, however, does not support the defendant’s claim because the defendant’s case in Gionfriddo was tried to the court rather than a jury. Id., 91. Moreover, the actions of the trial court in Gionfriddo were more egregious than those of the trial court in the present case. For instance, the trial court in the present case in no way interfered with the examination of witnesses and refrained from admonishing defense counsel until after the jury had exited the courtroom. Thus, Gionfriddo is inapposite. We conclude that the defendant was not deprived of a fair trial.
MISCELLANEOUS CONSTITUTIONAL CLAIMS
A
Constitutionality of the “Facts and Circumstances” Language in § 53a-46a (d)
The defendant claims that the language of § 53a-46a (d)
Turning to the merits of the defendant’s claims, we note that “[t]he United States Supreme Court has made clear that the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. . . . Woodson v. North Carolina, [428 U.S. 280, 304, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976)]. Under both the eighth and fourteenth amendments, a sentencer may not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. . . . Lockett v. Ohio, [438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978)]. A sentencer also may not refuse to consider, as a matter of law, any relevant mitigating evidence.
. . . Eddings v. Oklahoma, [455 U.S. 104, 114, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982)]. [I]t does not follow from Lockett and its progeny that a [s]tate is precluded from specifying how mitigating circumstances are to be
The first and third of the defendant’s claims are based on the structure of the death penalty statute. The defendant claims that, because § 53a-46a (d) requires the sentencer to consider the facts and circumstances of the case in making its determination of whether the proposed mitigating evidence is mitigating in nature, the statute allows the jury to refuse to consider relevant mitigating evidence. The defendant also contends that the facts and circumstances language “screen[s] out” mitigating evidence from the weighing process.
In Rizzo, the defendant, Todd Rizzo, claimed “that, because § 53a-46a (d) requires the sentencer to consider
In addition, in Rizzo, we explained that we also had rejected a similar’ claim in State v. Cobb, supra, 251 Conn. 285. State v. Rizzo, supra, 266 Conn. 294-95. In Cobb, we rejected a claim that the sentencer improperly had failed to find the existence of a mitigating factor. State v. Cobb, supra, 486-87. “In rejecting [that] . . . claim ... we stated that the mere establishment of the factual bases of mitigating evidence does not compel a conclusion, as a matter of law, that a defendant has proved the existence of mitigation. Id., 492-93. Indeed, the interpretation suggested by the defendant in Cobb would have effectively read out of § 53a-46a (d) the requirement that the sentencer determine whether the factor is mitigating in nature, rendering that language
Thus, in Rizzo, we concluded that, “[d] espite [Rizzo’s] attempt ... to distinguish Cobb and Ross, because both of those decisions addressed the effect of the phrase ‘considering all the facts and circumstances of the case’ in a nonweighing context, the addition of the weighing provision to § 53a-46a does not alter our analysis of the impact of the facts and circumstances language on the capital sentencing process. The addition of the weighing provision does not change the nature of the jury’s determination of mitigation— it merely changes what happens after the jury finds mitigation. Under the pre-1995 death penalty scheme, a [jury’s] finding of mitigation required the imposition of a life sentence; now such a finding triggers the weighing process. This change in § 53a-46a (d) does not affect the requirement that the sentencer determine whether a proposed mitigating factor is mitigating in nature ‘considering all the facts and circumstances of the case,’ which merely defines the phrase ‘mitigating in nature’ and provides the jury with guidance in making its determination of the existence of mitigation. Rather than impermissibly limiting what the sentencer may consider as mitigating circumstances, the phrase ‘considering all the facts and circumstances of the case’ in § 53a-46a (d) simply specifies ‘how mitigating circumstances are to be proved.’ ” (Emphasis in original.) Id., 296.
Moreover, we noted that “[Rizzo’s] suggested interpretation of the statute, which would allow any evidence that establishes ‘something good’ about the defendant to be considered a mitigating factor and therefore to be considered in the weighing process,
Accordingly, our resolution of the defendant’s claims in the present case is guided by the principles that we articulated in Rizzo. Thus, we conclude that the facts and circumstances language of § 53a-46a (d) is a constitutionally permissible method of defining how mitigating circumstances are to be established in the context of our current weighing statutory scheme, and therefore, we reject the defendant’s first and third claims regarding the constitutionality of § 53a-46a (d).
B
Vagueness Challenge to § 53a-46a (i) (4)
The defendant next seeks to prevail, under State v. Golding, supra, 213 Conn. 239-40, on his claim that the
C
The Trial Court’s Denial of the Defendant’s Request for a Hearing to Consider Racial Disparities in the Administration of the Death Penalty
We next consider the defendant’s claim that the trial court improperly denied his motion for a continuance of his sentencing and for a hearing to determine whether racial disparities in the administration of the death penalty statute violated his constitutional rights and the statutory requirement that a death sentence not be “the product of passion, prejudice or any other arbitrary factor . . . .” General Statutes § 53a-46b (b) (1). We disagree.
We addressed this identical claim in State v. Reynolds, supra, 264 Conn. 232-34. For the same reasons that we articulated in Reynolds, we believe that the proper course is not to require the trial court on remand to conduct a preliminary evidentiary hearing “but, rather, to afford the defendant an opportunity to renew his claim by way of a habeas corpus petition. ... As long as the defendant has such recourse, he will not be prejudiced in any way by the denial of an evidentiary hearing in the trial court.”
D
Constitutionality of General Statutes (Rev. to 1997) § 53a-54b (9)
The defendant next claims, inter alia, that General Statutes (Rev. to 1997) § 53a-54b (9),
The defendant concedes that he did not preserve this claim but nevertheless seeks to prevail under State v. Golding, supra, 213 Conn. 239-40. We conclude that the record is adequate for review and the claim is of constitutional magnitude. Accordingly, the claim is reviewable. The defendant cannot prevail on the merits of his claim, however.
“When a statute is challenged on equal protection grounds . . . the reviewing court must first determine the standard by which the challenged statute’s constitutional validity will be determined. If, in distinguishing between classes, the statute either intrudes on the exercise of a fundamental right or burdens a suspect class of persons, the court will apply a strict scrutiny standard [under which] the state must demonstrate that the challenged statute is necessary to the achievement of a compelling state interest. ... If the statute does not touch upon either a fundamental right or a suspect class, its classification need only be rationally related to some legitimate government purpose in order to withstand an equal protection challenge.” (Internal quotation marks omitted.) Ramos v. Vernon, 254 Conn. 799, 829, 761 A.2d 705 (2000). The defendant in the present case concedes that the classification does not implicate
We previously have concluded that the distinction between the intentional murder of victims who are under sixteen years of age and the intentional murder of victims who are sixteen years of age or older is supported by a rational basis. In State v. Higgins, 265 Conn. 35,826 A.2d 1126 (2003), which was decided after the defendant had filed his brief in the present case, the defendant, Sheldon Higgins, was convicted of capital felony in connection with the murder of a thirteen year old. Id., 40,41. On appeal, Higgins challenged the constitutionality of what is now § 53a-54b (8); see footnote 155 of this opinion; claiming, inter aha, that the statute violated the equal protection clauses of the federal and state constitutions because it treated classes of defendants differently on the basis of the victim’s age. State v. Higgins, supra, 62,65. We concluded that the legislature had a rational basis for classifying the intentional murder of a person under the age of sixteen as a capital felony. Id., 67. In particular, we noted that “the state has a legitimate interest in protecting the lives of the most defenseless of our citizens and the most vulnerable.” (Internal quotation marks omitted.) Id. Moreover, “ [t]hat interest rationally is advanced by holding offenders who intentionally kill innocent persons liable for capital felony if their victims are under the age of sixteen. The fact that the state is not required to prove that the defendant knew that the victim was under the age of sixteen does not affect our conclusion. As we have noted, by providing that intentional killers take their victims as they find them, the legislature has created a strong incentive for potential killers to avoid even the risk of killing a child.” Id.
E
Constitutionality of Connecticut’s Death Penalty Statutes
The defendant challenges the constitutionality of this state’s death penalty statutes under the federal and state constitutions. He contends that the statutory scheme is unconstitutional because it: (1) requires the defendant to shoulder the burden of proving the existence of a mitigating factor by a preponderance of the evidence; (2) calls for the imposition of the death penalty without allowing the jurors to determine whether, in the particular case at issue, the death penalty is appropriate on the basis of the aggravating factor or factors alleged by the state; (3) embodies a presumption that death is the appropriate sentence; (4) fails to provide for a capital sentencer who makes an individualized, reasoned and moral decision on the appropriateness of the death penalty; (5) provides for a standardless and unreviewable determination regarding the existence of nonstatutory mitigating factors; (6) authorizes the capital sentencer to reject mitigating evidence on irrelevant and improper grounds by directing the sentencer to consider “the facts and circumstances of the case” in
We previously have considered and rejected each of these claims. Specifically, in State v. Reynolds, supra, 264 Conn. 1, we rejected claims identical in all material respects to the first five claims and the seventh claim raised by the defendant. Id., 236-37; see also State v. Ross, supra, 230 Conn. 229, 239-41 and n.24, 243-44, 256. Moreover, we recently rejected a claim identical in all material respects to defendant’s sixth claim in State v. Breton, 264 Conn. 327, 414-15, 824 A.2d 778, cert. denied, 540 U.S. 1055, 124 S. Ct. 819, 157 L. Ed. 2d 708 (2003). Although the defendant acknowledges that we previously have rejected all of his constitutional claims, he asks us to reconsider our earlier conclusions. Because we are not persuaded that any of our previous determinations are incorrect, we reject the defendant’s invitation to reconsider our conclusions in those previous cases.
The judgment is reversed insofar as it imposes a sentence of death and the case is remanded to the trial court for a new penalty phase hearing; the judgment is affirmed with respect to the defendant’s conviction of capital felony and murder.
In this opinion PALMER, VERTEFEUILLE and LAVERY, Js., concurred.
General Statutes (Rev. to 1997) § 53a-54b provides in relevant part: “A person is guilty of a capital felony who is convicted of . . . (9) murder of a person under sixteen years of age.”
General Statutes § 53a-54a provides in relevant part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”
General Statutes (Rev. to 1997) § 53a-46a provides: “(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 or pleads guilty to a capital felony, the judge or judges who presided at the trial or before whom the guilty plea was entered shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, and any aggravating factor set forth in subsection (i). Such hearing shall not be held if the state stipulates that none of the aggravating factors set forth in subsection (i) of this section exists or that any factor set forth in subsection (h) exists. Such hearing shall be conducted (1) before the jury which determined the defendant’s guilt, or (2) before a jury impaneled for the purpose of such hearing if (A) the defendant was convicted upon a plea of guilty; (B) the defendant was convicted after a trial before three judges as provided in subsection (b) of section 53a-45; or (C) if the jury which determined the defendant’s guilt has been discharged by the court for good cause, or (3) before the court, on motion of the defendant and with the approval of the court and the consent of the state.
“(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 the 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*128 set forth in subsection (i) shall be 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 aggravating factors set forth in subsection (i) 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 or, if there is no jury, the court 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 or, if there is no jury, the court shall return a special verdict setting forth its findings as to the existence of any factor set forth in subsection (h), the existence of any aggravating factor or factors set forth in subsection (i) and whether any aggravating factor or factors outweigh any mitigating factor or factors found to exist pursuant to subsection (d).
“(f) If the jury or, if there is no jury, the court finds that (1) none of the factors set forth in subsection (h) exist, (2) one or more of the aggravating factors set forth in subsection (i) exist and (3) (A) no mitigating factor exists or (B) one or more mitigating factors exist but are outweighed by one or more aggravating factors set forth in subsection (i), the court shall sentence the defendant to death.
“(g) If the jury or, if there is no jury, the court finds that (1) any of the factors set forth in subsection (h) exist, or (2) none of the aggravating factors set forth in subsection (i) exists or (3) one or more of the aggravating factors set forth in subsection (i) exist and one or more mitigating factors exist, but the one or more aggravating factors set forth in subsection (i) do not outweigh the one or more mitigating factors, the court shall impose a sentence of life imprisonment without the possibility of release.
“(h) The court shall not impose the sentence of death on the defendant if the jury or, if there is no jury, the court finds by a special verdict, as provided in subsection (e), that at the time of the offense (1) he was under the age of eighteen years or (2) his mental capacity was significantly impaired or his ability to conform his conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense*129 to prosecution or (3) he was criminally liable under sections 53a-8, 53a-9 and 53a-10 for the offense, which was committed by another, but his participation in such offense was relatively minor, although not so minor as to constitute a defense to prosecution or (4) he could not reasonably have foreseen that his conduct in the course of commission of the offense of which he was convicted would cause, or would create a grave risk of causing, death to another person.
“(i) The aggravating factors to be considered shall be limited to the following: (1) The defendant committed the offense during the commission or attempted commission of, or during the immediate flight from the commission or attempted commission of, a felony and he had previously been convicted of the same felony; or (2) the defendant committed the offense after having been convicted of two or more state offenses or two or more federal offenses or of one or more state offenses and one or more federal offenses for each of which a penalty of more than one year imprisonment may be imposed, which offenses were committed on different occasions and which involved the infliction of serious bodily injury upon another person; or (3) the defendant committed the offense and in such commission knowingly created a grave risk of death to another person in addition to the victim of the offense; or (4) the defendant committed the offense in an especially heinous, cruel or depraved manner; or (5) the defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value; or (6) the defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value; or (7) the defendant committed the offense with an assault weapon, as defined in section 53-202a.”
All references to § 53a-46a throughout this opinion are to the 1997 revision unless otherwise noted.
As we will discuss subsequently in this opinion; see part III B of this opinion; the jury initially returned a verdict finding that the aggravating factor did not outweigh the mitigating factor or factors. After one or more jurors determined that the jury had made an error, they notified the court, which reassembled the jury. The jury submitted a second special verdict finding that the aggravating factor did outweigh the mitigating factor or factors, and the trial court ultimately accepted the second verdict as the verdict of the case.
The defendant appealed to this court pursuant to General Statutes §§51-199 (b) (3) and (4), and 53a-46b (a).
We note that our decision in Rizzo was released long after the defendant’s trial. Accordingly, we underscore the fact that the trial court in the present case did not have the benefit of our decision in Rizzo when it instructed the jury regarding the weighing process.
A subdural hematoma is the accumulation of blood between certain membranes surrounding the brain. See Mosby’s Medical, Nursing and Allied Health Dictionary (6th Ed. 2002) p. 1646. According to the medical examiner who conducted the autopsy of the victim, a subdural hematoma involving a large accumulation of blood can lead to compression of the brain, which, in turn, can result in the cessation of brain function and death. A subdural hematoma also can indicate that the brain has been subject to the application of enough force to cause brain swelling, which also can lead to the cessation of brain function and ultimate death.
Article first, § 8, of the constitution of Connecticut, as amended by article seventeen of the amendments, provides in relevant part: “No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law . . .
General Statutes § 54-46a provides in relevant part: “(a) No person charged by the state, who has not been indicted by a grand jury prior to May 26, 1983, shall be put to plea or held to trial for any crime punishable
The trial court further concluded that, even if there had been a seizure of the defendant in the apartment, it was not illegal because probable cause existed for the seizure. Probable cause existed, according to the trial court, because of the statements of the victim’s sister, in response to Wilson’s question regarding the bruises that appeared on the body of the victim’s sister, that the defendant “did it.”
In People v. Malczewski, 744 P.2d 62 (Colo. 1987), the wife of the defendant, Jerry Malczewski, flagged down a police officer and reported that Malczewski had taken their baby from her. Id., 64. She expressed concern for the safety of the baby because Malczewski had been drinking. Id. With this knowledge, the police officer went to Malczewski’s apartment and knocked on the door. Id. The police officer could hear the baby crying but Malczewski refused to open the door. Id. Malczewski then took the baby in his arms and went to the door. Id. After Malczewski opened the door, the police officer entered the apartment. Id. Under these circumstances, the Colorado Supreme Court concluded that the police officer reasonably could have determined that an immediate emergency existed with respect to the baby. Accordingly, the court determined that the entry was justified under the emergency exception to the warrant requirement. Id.
The defendant also claims that we should reconsider our prior cases and define more narrowly the emergency exception to the warrant requirement. Specifically, the defendant contends that we should adopt the three-pronged test set forth in People v. Mitchell, supra, 39 N.Y.2d 173. In that case, the New York Court of Appeals summarized the elements of the exception as follows:
“(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.
“(2) The search must not be primarily motivated by intent to arrest and seize evidence.
“(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.” Id., 177-78.
The defendant further claims that if this court declines to adopt the entire three-pronged test of Mitchell, it nevertheless should adopt the second prong, which, according to the defendant, would require the state to establish that the officers’ entry into the apartment at 418 Mill Street was not a pretext for an entry for which they did not have probable cause. We again conclude that our reasonable belief standard sufficiently addresses the concerns that the second prong of Mitchell addresses. If the facts known to the police officer at the time of entry would not lead a reasonable police officer to believe that an emergency situation exists, then reliance on the emergency exception to the warrant requirement is not justified. Thus, if the trier of fact concludes that the entry was not reasonable, or that it was merely a pretext for a warrantless entry, the emergency doctrine will not apply and the warrantless entry will not withstand constitutional scrutiny. Accordingly, we do not adopt the three-pronged test espoused by the New York Court of Appeals in Mitchell.
The state also claims that, even if it is assumed that the temporary seizure of the defendant was unlawful, the evidence subsequently obtained was sufficiently attenuated so as to purge the taint. In light of our conclusion that the seizure was lawful, we need not reach the issue of attenuation.
In discussing the emergency exception, Professor Wayne R. LaFave explains: “The officer’s post-entry conduct must be carefully limited to achieving the objective which justified the entry—the officer may do no more than is reasonably necessary to ascertain whether someone is in need
After Velez grabbed the defendant’s arm, Wilson asked the victim’s sister, who caused the bruises on her legs? The victim’s sister responded that “[the defendant] did it.”
“The results of the initial stop may arouse further suspicion or may dispel the questions in the officer’s mind. If the latter is the case, the stop may go no further and the detained individual must be free to go. If, on the contrary, the officer’s suspicions are confirmed, or further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances.” (Emphasis added; internal quotation marks omitted.) State v. Rodriguez, 239 Conn. 235, 247, 684 A.2d 1165 (1996). Thus, on the basis of the victim’s sister’s response to Wilson’s question, the police officer’s suspicions were aroused further and the prolonged seizure was justified. In any event, the*152 findings of the trial court suggest that, after Velez briefly detained the defendant pursuant to Terry v. Ohio, supra, 392 U.S. 1, the defendant voluntarily went with the police to the station to assist the police in their investigation of the victim’s death. Specifically, the trial court found that: “The police confronted the defendant moving down the hallway. When he was asked in English and then in Spanish if he would come to the police station to discuss [the victim’s] injuries, he nodded yes. There were no guns drawn, or any evidence of threats, or physical force. The evidence that the court finds credible is that the defendant was not handcuffed. He was placed in an unmarked police cruiser, without a cage, and taken to police headquarters. The defendant’s demeanor was calm and [he was] under control. Although the police did not tell the defendant [that] he could refuse to go to the police station, he did not object or request to go to the police station at another time.” Thus, after the brief Terry stop, the defendant agreed to go to the police station for questioning. Even if it is assumed the defendant did not voluntarily agree to go to the station because he had been illegally seized prior to agreeing to go to the station, the police had probable cause to arrest the defendant as a result of the statement of the victim’s sister that “[the defendant] did it.” The subsequent statements he gave to the police, therefore, were not the result of any illegal entry or seizure under the fourth amendment.
The defendant further claims that his oral and written statements and the items taken from his person were “fruits of the poisonous tree” and, therefore, must be suppressed. In light of our conclusion that both the entry into 418 Mill Street and the subsequent seizure of the defendant did not violate his constitutional rights, we need not address this claim.
We refer to all venirepersons in this opinion by using their initials to protect their legitímate privacy interests. E.g., State v. Reynolds, 264 Conn. 1, 116 n.109, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).
The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a . . . trial, by an impartial jury . . .
The six! h amendment right to a trial by an impartial jury is made applicable to the states through the fourteenth amendment due process clause. See, e.g., Ring v. Arizona, 536 U.S. 584, 597, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
The eighth amendment to the United States constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
“We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court ttirough an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory at.( ention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003), quoting Merchant v. State Ethics Commission, 53 Conn. App. 808, 818, 733 A.2d 287 (1999). Because the defendant has offered no analysis of his eighth amendment claim, we decline to review it. Id.
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; nor deny to any person within its jurisdiction the equal protection of the laws. . . .”
Article first, § 8, of the Connecticut constitution provides in relevant pari: “[T]he accused shall have aright. . . in all prosecutions by indictment or information, to a . . . trial by an impartial jury. 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.”
Article first, § 10, of the constitution of Connecticut provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”
Article first, § 20, ofthe constitution of Connecticut provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin.”
Article first, § 19, of the constitution of Connecticut, as amended by article four of the amendments, provides in relevant part: “The right to question each juror individually by counsel shall be inviolate.”
We decline to review the defendant’s state constitutional claims because he has not briefed them adequately. In State v. Geisler, supra, 222 Conn. 684—85, we set forth six things that should be considered in examining state constitutional claims: (1) the text of the state constitutional provision; (2) holdings and dicta of this court and the Appellate Court; (3) federal precedent; (4) sister state decisions; (5) the history of the provision, including the historical constitutional setting and the debates of the framers; and (6) economic and sociological considerations. We repeatedly have emphasized that “we expect counsel to employ [the Geisler analysis] [i]n order to [allow us to] construe the contours of our state constitution and [to] reach reasoned and principled results . . . .” (Internal quotation marks omitted.) State v. Joyce, 229 Conn. 10, 16 n.7, 639 A.2d 1007 (1994). When a party fails to analyze these factors separately and distinctly, “[w]e have made clear that ... we are not bound to review the state constitutional claim.” Id., 16.
Moreover, even in capital cases, we have held that, “[although the defendant’s brief adverts to independent rights under the [state] constitution, [when] no such arguments have been briefed . . . they are . . . deemed to have been waived.” State v. Ross, 230 Conn. 183, 208, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165,115 S. Ct. 1133,130 L. Ed. 2d 1095 (1995); see also State v. Rizzo, supra, 266 Conn. 290 n.69; State v. Webb, 238 Conn. 389, 423 n.32, 680 A.2d 147 (1996).
We note that we have not yet decided whether the Witherspoon or Witt standards should be applied under the state constitution. See State v. Webb, supra, 238 Conn. 438. The defendant has made no attempt to broach this issue, and his entire argument regarding his state constitutional claims consists of a single sentence in which he simply asserts that the trial court’s rulings violated various provisions of the state constitution. The defendant’s failure to engage in a Geisler analysis and his failure to analyze his state constitutional claims independently of his federal constitutional claims precludes our review of his state constitutional claims.
As the court in Morgan observed, “due process alone has long demanded that, if a jury is to be provided the defendant . . . the jury must stand impartial and indifferent to the extent commanded by the Sixth Amendment ” Morgan v. Illinois, supra, 504 U.S. 727.
General Statutes § 54-82f provides: “In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parlies thereto. If the judge before whom the examination is held is of the opinion from the examination that any juror would be unable to render a fair and impartial verdict, the juror shall be excused by the judge from any further service upon the panel, or in the action, as the judge determines. The right of such examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of said action.”
Practice Book § 42-12 provides: “Each party shall have the right to examine, personally or by counsel, each juror outside the presence of other prospective jurors as to qualifications to sit as a juror in the action, or as to interest, if any, in the subject matter of the action, or as to relations with the parties thereto. If the judicial authority before whom such examination is held is of the opinion from such examination that any juror would be unable to render a fair and impartial verdict, such juror shall be excused by the judicial authority from any further service upon the panel, or in such action, as the judicial authority determines. The right of such examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of the trial.”
“As the court stated in [ Witt], this standard does not require that ajuror’s bias be proved with unmistakable clarity. This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the matter of a catechism. What common sense should have realized experience has proved: many venire[persons] simply cannot be asked enough questions to reach the point where their bias has been made unmistakably clear; these venire[persons] may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. . . . [Consequently] deference must be paid to the trial judge who sees and hears the [prospective] juror.” (Internal quotation marks omitted.) State v. Reynolds, supra, 264 Conn. 118 n.113.
The defendant also asserts that J.B. “was not treated in a similar manner as other prospective jurors, and [that] his excusal violated his rights to equal protection of the law under the fourteenth amendment to the United States constitution and article first, § 20, of the Connecticut constitution.” The defendant further claims that “the trial court’s and the state’s attorney’s treatment of [J.B.] violated his rights to equal protection of the law.” Inasmuch as the record reveals that J.B. was a minority venireperson, we glean from the defendant’s brief that the defendant is raising a claim, for the first time on appeal, that the trial court excused J.B. in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), a case that the defendant does not even cite in his brief.
“In Batson . . . the United States Supreme Court recognized that a claim of purposeful racial discrimination on the part of the prosecution in selecting a jury raises constitutional questions of the utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole. . . . The court concluded that [although a prosecutor ordinarily is entitled to exercisepermittedperemptory challenges for any reason at all, as long as that reason is related to his [or her] view concerning the outcome of the case to be tried . . . the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race . . . .” (Internal quotation marks omitted.) State v. Dehaney, 261 Conn. 336, 344, 803 A.2d 267 (2002), cert. denied, 537 U.S. 1217, 123 S. Ct. 1318, 154 L. Ed. 2d 1070 (2003).
Challenges to the removal of a potential juror under Batson occur within the context of the state’s use of peremptory challenges. The trial court excused venireperson J.B. for cause, however. According to the state, it challenged J.B. for cause on the basis of J.B.’s assertion that he did not
During voir dire, the following exchanged occurred:
“[Defense Counsel]: Do you think if the jury decided that death was the appropriate penalty that [the defendant would] actually be executed?
“[J.B.]: No.
“[Defense Counsel]: Why?
“[J.B.]: I can say why should you kill him. Like I said, if he’s in jail for the rest of his life, it’s just as worse.
“[Defense Counsel]: Yes, I understand. But you’d be willing to follow the law as the judge gives it to you, and you’d be willing to sit on this case?
“[J.B.]: Yeah.”
The state’s attorney maintained that “ [t]he law of the state of Connecticut and the case law is that 1 he juror must presume that the law will be followed. And if [the jurors] return a verdict of death, death will indeed mean death. If they return a verdict of life in prison without the possibility of release, that’s what will occur. And to say, if we come back with the death penalty, I don’t think that the death penalty will be followed I think is reason enough for the . . . [prospective] juror to be excused.”
Specifically, the trial court concluded: “I think that my concern is— what he said is—I just think that it comes to this type of case when the venireperson indicates—the way he responded that he never thought that [the defendant] would get the death penalty. I think that the jurors sitting
The defendant also claims that the trial court improperly denied his request to rehabilitate J.B. Defense counsel, however, asked to rehabilitate J.B. after the trial court already had granted the state’s motion to excuse J.B. for cause. Once the trial court granted the motion of the state’s attorney to excuse J.B. for cause, that ruling became binding, and, therefore, any request by defense counsel to ask additional questions was presented too late. We therefore reject the defendant’s claim.
In response to a similar question posed by defense counsel, K.L. stated that he would follow the court’s instructions and would act fairly with respect to the state and the defendant.
Specifically, after stating that she was not in favor of the death penalty “for everything,” K.S. stated that it “would be difficult to have . . . that control over someone else’s life.” In response to the state’s attorney’s further questions about her ability to serve on the jury, K.S. stated: “I probably could if, you know, that’s what I had to do. I probably could.”
Specifically, the following exchange occurred during the questioning of K.S.:
“[State’s Attorney]: Knowing that, the way you feel, do you think this is a case where you could sit as a juror and be a fair and impartial juror? That’s fair not only to the defendant, of course, but fair to the state . . . and we’re seeking the death penalty in this case.
“[K.S.]: I probably [would] have to say no then.”
In response to the question of the state’s attorney as to whether K.S. would “personally hesitate in any way from walking out of that jury room, walking back into this jury box, standing up, looking over upon the defendant, and pronouncing the verdict that . . . will ultimately lead to [the defendant’s] death by lethal iqjection ... at the hands of the state,” K.S. stated that “[t]here might be some hesitation.”
“The Court: . . . You and the rest of the jurors consider all the evidence and listen to the law and the procedure [on which] the court instructs you and you come back and you and the rest of the jurors agree that based upon your consideration of the evidence that you return a verdict that would lead to the imposition of the death penalty. . . . Putting it in that circumstance, would you be able to do that?
“[K.S.]: I—I think so, but I’m not—I’m—I’m not positive.
* ** *
“The Court: It’s down the road and it’s—We need to know your answer and that’s the confusion that—that I have that I would like you to see if you can do the best you can at clearing it up for me. And could you—do I have to repeat it or do you understand?
“[K.S.]: I—I understand what you’re asking me, but I—I’m not sure I can give you a yes or no. I—I would like to say that I would try to do the best that I was, you know, I was instructed.”
We decline to address the defendant’s state constitutional claims because they were not adequately briefed. See footnote 26 of this opinion.
See footnote 28 of this opinion.
For instance, the following colloquy occurred:
“[Defense Counsel]: . . . [L]et me go somewhere else for a minute. Being a criminal case, there’s a strong likelihood that there would [be] police officers who come in and testily on this case. Okay? Did you get the sense from [the judge] yesterday that jurors are to treat all witnesses the same?
“[A.M.]: Yes. lie made that very clear.
“[Defense Counsel]: Okay. And for some people, again, that’s what you should do. But some people will tell us, I know that’s the law and I know that a police officer’s not going to be given any more or less credibility just because he’s a police officer, but I don’t know if I’ll be able to follow the law. Other people say I can follow that law. How do you—
“[State’s Attorney]: Objection ....
“The Court: Instruction .... Objection is sustained. Instruction
“[Defense Counsel]: Oh, did I misspeak? Okay. I’m sorry." (Emphasis added.)
Defense counsel thereafter continued to question A.M.
“[Defense Counsel]: Would—do you feel you’d be able to follow that instruction, to treat all witnesses including police officers the same? No one gets more or less credibility based on who they are or what they are?
“[A.M.]: Yes.
“[Defense Counsel]: Okay.
“[A.M.]: He made it very clear.
“[Defense Counsel]: Okay. But that’s the law.
“[A.M.]: No. He made it clear that—did I get this right?
“[State’s Attorney]: I’m going to object. It’s not the law, it’s an instruction.”
Defense counsel asked J.C., “What does it do for us to have a death penalty?” Defense counsel asked C.H., “Why do you think [the death penalty is] a good thing?”
With regard to J.C., the trial court stated: “I’ll let you get into areas of the death penalty, but asking this [prospective] juror what could the death penalty do for us, I think, is a little bit beyond the scope of the proper questioning. You can get into areas why you feel the way about the death penalty, you understand that other states don’t have it, things of that sort. But what does it do for us, I think that question is not relevant.”
With respect to C.H., the trial court noted: “[G]etting into the questions of, so tell me about the death penalty, [that] type of thing, I think, is a little bit too much—as far as this court’s concerned, a little bit too philosophical. ... I think you can get into the area of how they feel about the death penalty, do they think it applies in certain cases, would they—would it affect their ability to be . . . fair and impartial jurorfs], do they understand Connecticut has a death penalty. I think that’s all fair and appropriate, but getting into the philosophical aspect is the part that’s concerning me. I expressed that yesterday. . . . I’m going to sustain the objection because I think it is a little bit too . . . philosophical . . . .”
Specifically, J.C. stated that she “accepted] [the death penalty] as part of our judicial system . ...” In addition, the following exchange occurred:
“[Defense Counsel]: This particular case, and you know already what the information says, what the state claims [it’s] going to prove. Do you think in this particular case if the state is able to prove to you beyond a reasonable doubt that there was the intentional murder of a two and one-half year old child by blunt force trauma, that she was beaten to death, that you would think that this is a particularly appropriate case for the death penalty?
“[J.C.]: It would have to be. If those are the choices, death penalty or in jail for the rest of your life, we’d have to make that call, correct? Those are the two choices.
“[Defense Counsel]: [W]ould you be already predisposed towards death as a penalty?
“[J.C.]: No.
“[Defense Counsel]: Okay, so you’d be willing to enter into the penalty phase with an open mind?
“[J.C.]: Yes. I’d have to wait for my instructions.
“[Defense Counsel]: . . . [I]f you were convinced in your heart that [the state] proved [its case] beyond a reasonable doubt and [it] also proved that aggravating factor that it was especially heinous, cruel or depraved, would death be the only appropriate penalty for you?
“[J.C.]: If they had something they wanted me to listen to, would I listen to it after it? I would listen to it.”
C.H. stated that she felt that the death penalty was an appropriate penally in any murder case. She also admitted that her mind may be made up after the defendant was found guilty and might not be able to remain open-minded about the defendant’s alleged mitigating factors.
The defendant does not claim that the trial court improperly “forced [the defendant] to use peremptory challenges on persons who should have been excused for cause” in violation of his state constitutional right to a trial by an impartial jury. (Citations omitted; internal quotation marks omitted.) State v. Tucker, 226 Conn. 618, 632, 629 A.2d 1067 (1993).
The exchange at issue unfolded as follows:
“[Defense Counsel]: Well, you know, some people come in and they have a sense of—well, where there’s smoke, there’s fire. So they have it in their mind already that somewhere in their mind they think, well, he did something to get here. If the presumption of innocence says you have to presume him innocent, perfectly clean slate as he sits here—
“[State’s Attorney]: I object to that, Your Honor. Misstatement. Obviously he wasn’t just picked up off the street and brought here.
“The Court: I will sustain—I’m going to sustain the objection. Why don’t you rephrase? I’m going to sustain the objection.
“[Defense Counsel]: The law says people charged with a crime, even as they sit here right now, that the jurors have to presume an accused person completely innocent of any wrongdoing.
“[State’s Attorney]: I’m going to object to that also, Your Honor.
“[Defense Counsel]: Can you do it?
* ** *
“[State’s Attorney]: Presumption of innocence, period.
* * *
“The Court: Just . . . don’t modify the term. Just say what the term is. The presumption of innocence, [defense counsel]. Objection is sustained. Go ahead . . . ask the question.
“[Defense Counsel]: You see what we’re getting at? Can you presume? Can you presume him innocent?
“[R.L.]: Yes, I think so.” (Emphasis added.)
After the state’s attorney had examined R.L., he exercised a peremptory challenge, and the trial court thereafter excused R.L.
With respect to the defendant’s first claim regarding defense counsel’s inquiry of whether J.J. wanted to serve as a juror in the case, the relevant exchange unfolded as follows:
“[Defense Counsel]: Do you want to sit on this case?
“[Assistant State’s Attorney]: Objection.
“The Court: I’m going to sustain that ....
“[Defense Counsel]: Do you have any reason why you wouldn’t want to sit on this case?
“[J.J.]: Time wise, I guess.
“[Defense Counsel]: Time wise, just the job concerns that you said earlier?
“[J.J.]: Yes.
“[Defense Counsel]: Are you willing to sit [on] this case?
“[Assistant State’s Attorney]: Objection.
“The Court: I’ll allow it.
“[J.J.]: Yes.”
In particular, the following exchange occurred:
“[Defense Counsel]: You feel like that’s legitimate, an eye for an eye? If somebody commits a murder, then they should be executed?
“[J.J.]: It depends on the certain type of case, I believe.
“[Defense Counsel]: Well, you know what the allegations are in this case?
“[J.J.]: Yes, I do.
“[Defense Counsel]: The charge is that [the defendant] intended to murder a two and one-half year old child, and that he did so by blunt force trauma. Is that the type of case that you feel an eye for an eye is appropriate?
“[Assistant State’s Attorney]: Objection, Your Honor.
“The Court: Sustained.
“[Defense Counsel]: Well, [in] what type of cases do you think an eye for an eye is appropriate . . . ?
“[J.J.]: Well, I don’t know really. I guess I [would] have to be presented with one first.
“[Defense Counsel]: Are there any in your mind before you even came in here that you feel certain types of murders or homicides deserve the punishment of death?
“[J.J.]: I guess maybe [there are] a few.
* * *
“[Defense Counsel]: Can you tell me what those few are?
“[J.J.]: I guess the most violent ones.”
Specifically, defense counsel was permitted to ask: “I want to ask you to assume something hypothetically. I’m not asking you to predict what you’re going' to do. . . . So the question is if you and your other eleven jurors decide unanimously that the state has proven beyond a reasonable doubt that this young man killed that little girl intentionally by blunt force trauma and you convict him of capital felony, do you think that this is the type of case that requires a death penalty?” In response, J.J. stated: “Possibly, yes.”
The trial court stated: “I’ve been very concerned about putting [prospective] jurors in the position of predicting or telling us where they’re going to vote. ... I don’t like that question because I think that [it] is too close to prediction. It wasn’t objected to before. I’ve let it go because both offices are professional. ... I think this is not a question that gets into their feelings about the death penalty, but gets into their feelings about the death penalty about this case. And I think it’s a prediction, and if it wasn’t objected to before, then it wasn’t objected to, but my rulings have been clear that my concerns have been clear about predictions .... That question . . . I think, is inappropriate. I’ll sustain the objection.”
For example, defense counsel stated: “And that’s why I’m asking you to assume that you heard the evidence and the evidence convinced you [that the defendant] beat to death his two and [one-half] year old girl. Could you still be open-minded as to the penalties?” N.A. responded, “Yes.” In addition, defense counsel inquired: “Even if we got to the second phase and [the state] prove[s] an aggravating factor, you would still be open to listen to the rest of the evidence in order to make the decision about which of the two [penalties is] appropriate?” N.A. responded, “Yes.”
The trial court stated: “My practice is that I don’t allow the recalling of prospective jurors by the attorneys. However, if there is a question that the court feels ought to be clarified, the way this court reacts is that if I get the question, I will bring the [prospective] juror in and I will ask the question. That’s what I will do. . . . Just tell me the question you want me to ask her.”
The trial court questioned S.P. as follows:
“The Court: . . . What I’m trying to determine is while you’re sitting there you’ve also expressed to us what your feelings are against capital punishment and the death penalty, right?
“[S.P.]: Yes.
“The Court: Now, having that expression, your feelings that you have indicated for us, would you vote against the death penalty ....
“[S.P.]: Yes.
“The Court:-—without regard to the consideration of the evidence developed and everything in the case? Would it just be—Your decision would be based—based upon your feelings of the death penalty?
“[S.P.]: Yes. It would have to be. . . . It’s a moral issue for me.”
Specifically, the trial court ruled as follows: “Number one, as indicated, the question was asked on cross-examination, the number of children [that Kanfer] has performed autopsies on that died as a result of blunt force trauma. By the offer of proof, there [were] questions asked as to . . . that these were all human agents, they were not accidents. The questions that were asked by [the assistant state’s attorney] in the offer of proof involved why this was a—compared to them as to very severe injuries and why they are severe. The prejudicial issue comes into the terms, the description of terms such as horrific and things of that sort which the court has maintained throughout its rulings and that was the request of the offer of proof. I think the questions that [the assistant state’s attorney] is posing to this witness and the anticipated answers are within the scope of the redirect based on the questions that have been asked on cross and do not involve any prejudicial terms or remarles.”
On the basis of this testimony, defense counsel moved for a mistrial, claiming that Kanfer’s testimony created “substantial, irreparable prejudice to the defendant’s case.” The trial court denied defense counsel’s motion.
Specifically, Kanfer stated: “I think a reasonable explanation why I made this mistake was that, at the time I did this autopsy on this two year old child, I, myself, had a six month old child and, in addition to being a physician and a medical examiner, I’m also a father, a husband, and it was an extremely disturbing case, [and] my assistant . . . had a daughter similar [in] age to the deceased, and he was also extremely upset due to the nature of . . . the injuries, and it was an extremely stressful situation doing this autopsy. True, we are professionals. True, we are doctors. But we still are fathers, husbands, and I think under those circumstances, it may have caused me to err in my interpretation of what [the detective] had told me.”
The following colloquy occurred at trial:
“[State’s Attorney]: Good afternoon, Lieutenant O’Leary. I believe prior to lunch where we left off is that you were down ... on Mill Street at the apartment there?
“[O’Leary]: Yes, sir.
“[State’s Attorney]: And you viewed Crystal Tellado?
“[O’Leary]: Yes, sir.
“[State’s Attorney]: And did you have a conversation with Crystal Tellado?
“[O’Leary]: Yes, sir.
“[State’s Attorney]: And based on that conversation what did you do next?
“[O’Leary]: I asked [the defendant] through the interpreter, [Officer] Velez, if he would accompany us to the Waterbury police department as we were investigating injuries to [the victim], and he agreed to come with us voluntarily.”
Rivera also testified that the victim’s sister looked “[l]ike she was abused.” The trial court struck this testimony, however, and instructed the jury to disregard it.
As we stated in State v. Kelly, 256 Conn. 23, 770 A.2d 908 (2001), “[i]t is a well settled evidentiary principle that flight, when unexplained, tends to prove a consciousness of guilt. . . (Internal quotation marks omitted.) Id., 54.
At trial, defense counsel acknowledged that, if evidence of the defendant’s escape were admissible, the state would be permitted to have the trial court instruct the jury on the defendant’s consciousness of guilt. Specifically, defense counsel acknowledged: “We know consciousness of guilt escaping from the police department and we’re not going to stop that from coming in. We’ll never be able to stop that from coming in under the existing law in the state of Connecticut alone . . . and there’s no doubt in anyone’s mind, I would think, that the state would have every opportunity to bring that in, and if the defendant were going to object during the state’s casein-chief, [he] wouldn’t have a leg to stand on.”
Ocasio also testified that she had been convicted because “[her] son escaped.” The trial court struck this testimony, however.
As we noted previously; see part II C 1 of this opinion; “[generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence. . . . This rule operates to prevent a defendant from successfully excluding inadmissible prosecution evidence and then selectively introducing pieces of this evidence for his own advantage, without allowing the prosecution to place the evidence in its proper context. . . .
“The doctrine of opening the door cannot, of course, be subverted into a rule for injection of prejudice. . . . The trial court must carefully consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit it only to the extent necessary to remove*204 any unfair prejudice which might otherwise have ensued from the original evidence. . . . Thus, in making its determination, the trial court should balance the harm to the state in restricting the inquiry with the prejudice suffered by the defendant in allowing the rebuttal.” (Citations omitted; internal quotation marks omitted.) State v. Graham, supra, 200 Conn. 13-14.
During defense counsel’s offer of proof, the following colloquy occurred outside the presence of the jury:
“[Defense Counsel]: Did you go to Ontario, California, with Trooper Joseph Vokett on a marijuana investigation?
* ** *
“[O’Leary]: Yes.
“[Defense Counsel]: Did you tell police officers in Ontario, California, that that marijuana case was related to the murder of a police officer?
“[O’Leary]: No.
“[Defense Counsel]: Did you speak to the Illinois state police ... an Illinois state police Sergeant Brugermann while you were out in California in connection with that case?
“[O’Leary]: Yes.
*207 “[Defense Counsel]: Did you tell Sergeant Brugermann that a man they had in custody in Illinois was related to the murder of a police officer— that he was a witness to or that he was present during the murder of a Connecticut state police officer?
“[O’Leary]: Absolutely not.
“[Defense Counsel]: Did you speak to Trooper Heminghouse of the Illinois state police?
“[O’Leary]: Yes.
“[Defense Counsel]: And did you tell him that the marijuana case that you were working on in California was connected to the case that they had in Illinois and that it was related to the murder of a police officer?
“[O'Leary]: Absolutely not.
“[Defense Counsel]: Did you talk to Deputy Sheriff Kfieke . . . also an Illinois police authority, during the course of that time you were investigating this marijuana case?
“[O'Leary]: No, I don’t think so.
“[Defense Counsel]: You didn’t talk to him at all?
“[O’Leary]: No.
“[Defense Counsel]: . . . Did you talk to Assistant United States Attorney Susan Wisman about that marijuana investigation and about a man they had in custody in Illinois for marijuana?
“[O’Leary]: Yes, yes I did.
“[Defense Counsel]: Did you tell her that [the] man they had in custody was related to and observed or participated in the execution style murder of a Connecticut state police officer?
“[O’Leary]: Absolutely not.
“[Defense Counsel]: Did you tell any of those four people [namely] Brugermann, Heminghouse, Krieke or Wisman that the person they had in custody was connected to a Jamaican drug organization?
“[O’Leary]: No.
“[Defense Counsel]: That the person they had in custody was connected to the homicide of a police officer in any fashion?
“[O’Leary]: No.
“[Defense Counsel]: That the person they had in custody in Illinois was connected to a wire tap investigation that you had been working on?
“[O’Leary]: No.
“[Defense Counsel]: Do you have a condominium on Cape Cod?
“[O’Leary]: Yeah.
“[Defense Counsel]: Did you go there on January [22] and January [23] of 1996?
“[O’Leary]: Yeah.
“[Defense Counsel]: Did you collect your police pay while you were there in Cape Cod at your condominium?
“[O’Leary]: I'd have to look and see. I don’t know.”
Defense counsel also asked O’Leary, during the offer of proof, whether he had taken a beeper from a prisoner and used it for his personal use.
The trial court allowed defense counsel to malte an offer of proof regarding whether Velez once had driven a car that contained a stolen engine. The offer of proof revealed that Velez had driven the car but did not know that the car housed a stolen engine.
The trial court allowed defense counsel to ask, in the presence of the jury, all of the questions that he had asked during his offer of proof except for two. Specifically, the trial court precluded defense counsel from asking O’Leary about his ownership of a condominium in Massachusetts and about O’Leary’s use of a prisoner’s beeper. See footnote 64 of this opinion. The trial court concluded that these questions were not relevant to O’Leary’s character for untruthfulness. Defense counsel chose not to ask the remaining questions before the jury.
The defendant sought to ask Velez two questions, namely, whether he had driven the car and whether he knew the car contained a stolen engine. The trial court permitted defense counsel to ask Velez: “On July [3], 1996, did you drive a car knowing it had a stolen motor in it?” Defense counsel chose not to ask this question before the jury.
Specifically, the trial court stated: “The information that’s being offered here, first of all, the inconsistency in . . . Quintero’s testimony has been brought out both by her testimony and by other witnesses. . . . [T]he offer—the court sees it also as a double hearsay issue so, as a result of that, the court feels that . . . this is not a situation where the residual hearsay rule was established. Based on the offer, the court . . . will sustain the objection.” In addition, the trial court stated: “This court rules that it doesn’t come in under the residual—the only way that this could come in, because it is hearsay, would be under the residual hearsay [exception] and the court feels that it has not been—the necessity factor has not been met . . . .”
Dimaria’s testimony would have revealed that the defendant was holding a glassine bag when he was arrested for possession of heroin and that he stated to Dimaria that he needed to use the bag because he was sick.
Even if we were to address the merits of the claim and assume that the testimony improperly was excluded, the exclusion would be harmless. The statement that the defendant sought to admit was relevant to the defendant’s drug use during the months prior to the victim’s death. There already was evidence before the jury, however, of the defendant’s drug use. Specifically, the defendant previously had testified that he was addicted to heroin. Accordingly, the statement that the defendant was sick and needed the drugs he was found in possession of merely would have been cumulative of other evidence admitted at trial.
Quintero had been charged with certain crimes in connection with the victim’s death. See part II E 2 of this opinion.
Specifically, the trial court stated: “The court’s ruling is as follows: Mr. Wallace can testify. However, the scope of his testimony is very limited. It’s limited to the following as it relates to what ... he told . . . Quintero as it relates to any consideration that she may receive if she were to testily. It’s not to address who was there, what happened next, things of that sort. It’s limited on that focus of what he said to her as to any consideration that she may receive if she were to testify. The court feels that that goes to her state of mind which the jury ought to be able to hear as it relates to interest, motive and or bias.” Subsequently, the trial court stated: “The only relevance that the court sees is what [it has] ruled: Did [Wallace] represent to [Quintero] that there were going to be any considerations made for her testimony. That’s the relevancy. If [the state’s attorney] wants to inquire as to where
General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”
In State v. Miranda, supra, 245 Conn. 209, we concluded that the defendant, Santos Miranda, who had established a familial relationship with the victim’s mother and her children and who had assumed the role of a father in the victim’s life, “assumed . . . the same legal duty to protect the victim from the abuse as if he were, in fact, the victim’s guardian.” Id., 226. In addition, we concluded that “to require [Miranda] as a matter of law to take affirmative action to prevent harm to the victim or be criminally responsible imposes a reasonable duty.” Id. We recognize, however, that Miranda was convicted of assault in the first degree rather than manslaughter.
Specifically, the defendant requested the following charge: “If you find from the evidence that the defendant has assumed the role of parent then you may also find that he had a duty under the law to protect the child. If he failed to protect the child from abuse inflicted by another, then you may consider whether that failure to protect constitutes reckless conduct demonstrating an extreme indifference to human life, and if so, whether the defendant is guilty of manslaughter in the first degree.”
The trial court’s charge with respect to manslaughter in the first degree under § 53a-55 (a) (3) was as follows: “The lesser included offense is reckless indifference manslaughter in the first degree in violation of [§] 53a-55 (a) (3). A person is guilty of reckless indifference in the first degree when under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person. There is no element of intent involved in this crime. Do not apply my instructions regarding intent. In order to prove a person guilty of the crime of reckless indifference manslaughter in the first degree, the state must prove that:
“1. the defendant recklessly engaged in conduct which created a grave risk of death to [the victim] and;
“2. he did so under circumstances which evinced or demonstrated an extreme indifference to human life; and
“3. he thereby caused the death of the victim.
“The first element is that the defendant recklessly engaged in conduct creating a grave risk of death to [the victim]. A person acts recklessly with respect to result or to circumstances described by statute defining an offense when he is aware of and consciously disregards a substantial and uryustifiable risk that just a result will occur or such a circumstance exists. The risk must be of such a nature and degree that disregarding it constitutes a gross deviation from the standard that a reasonable person would observe in that situation. Recklessness then means being aware of a substantial and unjustifiable risk and consciously disregarding the risk. It’s more than failing to perceive such a risk .... There must be an awareness of the risk and a conscious disregard of it.
“The risk must be substantial and unjustifiable. Furthermore, the risk must be of such a nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in that situation.
“This requires that I define for you what is meant by the standard of conduct that a reasonable person would observe in this situation. The standard of conduct of a reasonable person in the same situation as the defendant is doing of something which a reasonably prudent person would do under*223 the circumstances or the omitting to do what a reasonably prudent person would not do under the circumstances.
“Deviating from the standard of conduct of a reasonable person or failing to observe that a standard of conduct is a failure to exercise reasonable care. Reasonable care is care which a reasonably prudent person would use in view of all the circumstances. You must determine the question of reasonable care [by placing] an ordinarily prudent person in the situation and circumstances in which the defendant found himself and then ask yourself, what would a reasonably prudent person have done or not have done in such a situation and under such circumstances.
“Having determined [what] a reasonable person’s conduct would have been in that circumstance, you must then compare that conduct with the defendant’s conduct in order for there to be recklessness on the part of the defendant. It is necessary that his conduct in disregarding the substantial and unjustifiable risk constituted a gross deviation from the standard of conduct that a reasonable person would have observed in this situation. A gross deviation is a great or substantial deviation . . . not just a slight or moderate deviation. Whether a risk is substantial and unjustifiable is a question of fact for you to determine under all the circumstances.
“The second element and circumstances under which the defendant engaged in such reckless conduct demonstrated an extreme indifference to human life. The phrase ‘extreme indifference to human life’ has its ordinary meaning. Mere carelessness is not enough, nor is ordinary recklessness sufficient to constitute demonstrating extreme indifference to human life. You must find circumstances showing extreme indifference to human life.
“And the third element is that the defendant’s conduct caused the death of [the victim]. And you will recall and apply my instructions [on] cause which I have already given to you.”
The defendant claims that the trial court improperly characterized the issue as one involving an instruction on a lesser included offense. The defendant argues that, because the trial court instructed the jury with respect to manslaughter in the first degree under § 53a-55 (a) (1) and (3), the issue is that the instruction itself was inadequate because it did not contain the defendant’s requested charge on manslaughter by omission.
The defendant’s claim is foreclosed by our decision in State v. Tomlin, 266 Conn. 608, 835 A.2d 12 (2003). In Tomlin, we concluded that “the term ‘offense,' as it is used in Whistnant, refers to each distinct method, which maybe comprised of different elements, by which a crime may be completed. The term ‘offense’ does not refer to the title of the crime encompassing each of those distinct methods.” Id., 624. Thus, because the “offense” that the defendant claims improperly was not included in the charge to the jury, namely, manslaughter by omission under § 53a-55 (a) (3), is a distinct method by which the crime of manslaughter may be completed, the trial court properly analyzed the issue under State v. Whistnant, supra, 179 Conn. 588.
We initially conclude that the defendant has satisfied the first prong of Whistnant. “It is well settled that ... [a] proposed instruction on a lesser included offense constitutes an appropriate instruction for purposes of the first prong of Whistnant if it complies with Practice Book [§ 42-18]. . . . We previously have held, in the context of a written request to charge on a lesser included offense, [that the] requirement of [§ 42-18] is met only if the proposed request contains such a complete statement of the essential facts as would have justified the court in charging in the form requested.” (Internal quotation marks omitted.) State v. Smith, 262 Conn. 453, 465, 815 A.2d 1216 (2003). In addition, however, the first prong of Whistnant also is satisfied “when the record indicates that the trial court knew the precise point to which the defendant wished to call attention.” (Internal quotation marks omitted.) Id., 466. Accordingly, the first prong is satisfied when “the trial court is informed adequately of the factual and legal bases for the instructional request.” Id.
First, the defendant’s written request to charge included a section entitled, “APPLICABLE EVIDENCE,” which asserted a factual basis for the instruction on manslaughter by omission. Moreover, during the charging conference, defense counsel further explained the basis for the instruction. Specifically, defense counsel contended that the charge was warranted because of Virginia Quintero’s testimony that the defendant was toilet training the victim and that the defendant was living with her at the time of the victim’s death, thereby demonstrating that he had established a familial relationship with the victim and her mother. Moreover, the trial court acknowledged that the instruction properly had been requested. Accordingly, we conclude that the defendant has satisfied the first prong of Whistnant.
The defendant proposed the following instruction: “The jury has the duty to scrutinize the testimony offered by . . . Quintero carefully. As you have heard, [Quintero] is also charged with crimes arising out of the death of [the victim]. The jury must scrutinize this testimony in the light of any
General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids anotherperson to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
The defendant proposed the following instruction: “In this case the defendant has offered evidence that he did attempt emergency resuscitation efforts, and that he did seek medical attention for the child. Under our law, if a defendant fails to seek medical attention for the victim of a homicide
We also note that the evidence that, according to the defendant, permitted an inference that the defendant lacked the intent to kill the victim was vigorously contested by the state. In fact, although there was evidence that the defendant attempted to resuscitate the victim after repeatedly hitting her head against the shower wall, there also was evidence that the defendant did not call an ambulance but, rather, used a telephone at his neighbor’s house to call his mother after the victim became unresponsive. In addition, there was evidence that, although the defendant allowed his mother and Virginia Quintero to take the victim to the hospital after the victim became unresponsive, he told them to lie about the cause of the victim’s injuries. Moreover, the state argued at trial that the fact that the defendant called
The trial court instructed the jury in relevant part: “The phrase beyond reasonable doubt has no technical or unusual meaning. The meaning of reasonable doubt can be arrived at by emphasizing the word ‘reasonable.’ It is not a surmise, a guess or mere conjecture. It is not a doubt suggested by counsel or a jury which is not warranted by the evidence. Reasonable doubt is a doubt for which there exists a reasonable basis arises [sic] out of the evidence or lack of evidence. It is such a doubt that in the serious affairs that concern you, you would heed, that is, such a doubt as would cause a reasonable man and woman to hesitate to act upon it in matters of importance. It is not hesitation springing from feelings of pity or sympathy for the accused, or any other person who might be affected by your decision. It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence. It is a doubt that is honestly entertained, is reasonable in light of the evidence after fair comparison and careful examination of the entire evidence.
“Proof beyond a reasonable doubt does not mean proof beyond all doubt. The law does not require absolute mathematical certainty on the part of the jury before it returns a verdict of guilty. Absolute certainty in the affairs of life is almost never obtainable. The state does not have to prove guilt beyond all doubt or to a mathematical certainty, or to an absolute moral certitude. The law requires that after hearing all the evidence, if there is something in the evidence or lack of evidence which leaves in the minds of the jur[ors], as reasonable men and women, a reasonable doubt about the guilt of the accused, then the accused must be given the benefit of the*233 doubt and acquitted. If there is no reasonable doubt, then the accused must be found guilty.”
In Golding, we held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following 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.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.
Although the defendant seeks to prevail on his unpreserved claims of prosecutorial misconduct under Golding, our recent decision in State v. Stevenson, 269 Conn. 563, 849 A.2d 626 (2004), counsels that Golding is inapplicable to unpreserved prosecutorial misconduct claims. Instead, “a reviewing court must apply the [factors enumerated in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987)] to the entire trial, because there is no way to determine whether the defendant was deprived of his right to a fair trial unless the misconduct is viewed in light of the entire trial.” State v. Stevenson, supra, 573. “[Fallowing a determination that prosecutorial misconduct has occurred, regardless of whether it was objected to, an appellate court must apply the Williams factors to the entire trial.” Id., 575.
We noted, however, that “[t]his does not mean . . . that the absence of an objection at trial does not play a significant role in the application of the Williams factors. To the contrary, the determination of whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any [incident] of the prosecutor’s improper [conduct]. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to seriously jeopardize the defendant’s right to a fair trial. . . . Moreover, ordinarily, when a defendant who raises an objection to the allegedly improper remarks of a prosecutor elects to pursue one remedy at trial instead of another, he will not be permitted to claim on appeal that the remedy he pursued was insufficient. ... In other words, the fact that defense counsel did not object to one or more incidents of misconduct must be considered in determining whether and to what extent the misconduct contributed to depriving the defendant of a fair trial and whether, therefore, reversal is warranted.” (Citations omitted; internal quotation marks omitted.) Id., 575-76.
The plain error doctrine is set forth in Practice Book § 60-5, which provides in relevant part: “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. . . .”
We repeatedly have noted, however, that “[pjlain error review is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . [Thus, a] defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Citation omitted; internal quotation marks omitted.) State v. Whipper, 258 Conn. 229,279-80, 780 A.2d 53 (2001), overruled in part on other grounds, State v. Cruz, 269 Conn. 97, 848 A.2d 445 (2004).
“We may review a claim of prosecutorial misconduct under our inherent supervisory authority over the administration of justice even though the alleged impropriety does not rise to the level of a constitutional violation.” State v. Reynolds, supra, 264 Conn. 160 n.144. “Appellate courts possess an inherent supervisory authority over the administration of justice. . . . The standards that [are] set under this supervisory authority are not satisfied by observance of those minimal historic safeguards for securing trial by reason which are summarized as due process of law .... Rather, the standards are flexible and are to be determined in the interests of justice. . . . [0]ur supervisory authority is not a form of free-floating justice, untethered to legal principle. . . . Rather, the integrity of the judicial system serves as a unifying principle behind the seemingly disparate use of our supervisory powers. . . .
“Although [w]e previously have exercised our supervisory powers to direct trial courts to adopt judicial procedures ... we also have exercised our authority to address the result in individual cases, notably those involving instances of prosecutorial misconduct because we recognize that such conduct, although not rising to the level of constitutional magnitude, is unduly offensive to the maintenance of a sound judicial process.” (Citations omitted; internal quotation marks omitted.) State v. Anderson, 255 Conn. 425,438-39, 773 A.2d 287 (2001).
See footnote 84 of this opinion. Because we conclude that there was no impropriety, we need not address the Williams factors. See State v. Stevenson, 269 Conn. 563, 575, 849 A.2d 626 (2004) (“following a determination that prosecutorial misconduct has occurred, regardless of whether it was objected to, an appellate court must apply the Williams factors to the entire trial”).
See footnote 84 of this opinion. Again, because we conclude that the state’s attorney’s cross-examination of the defendant was not improper, we need not address the Williams factors.
Defense counsel objected several times during this line of questioning, but never on the basis of the attorney-client privilege. For instance, defense counsel objected to the state’s attorney’s question regarding the defendant’s claim that, during an hour long discussion, defense counsel showed the defendant only one photograph, by claiming that the state’s attorney was misleading the jury. In addition, defense counsel claimed that the state’s attorney was “assuming facts not in evidence . . . .” Subsequently, defense
Specifically, defense counsel stated during closing arguments: “Lieutenant O’Leary testified 100 times. [The defendant] never testified before. I wonder . . . how many defendants or people [the state’s attorney] has cross-examined in his . . . career that he told you about. Consider that when you scrutinize [the defendant’s] testimony and you should scrutinize it. He has an interest in this case. No doubt about it. And I ask you to hear it played back if you need to. But he’s not the only person who has an interest in this case and he’s not the only witness who needs their [sic] testimony scrutinized in this case.” (Emphasis added.)
The first amendment to the United States constitution provides in relevant part: “Congress shall make no law . . . abridging the freedom of speech . . . .”
This prohibition is made applicable to the states under the due process clause of the fourteenth amendment. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n.1, 116 S. Ct. 1495, 134 h. Ed. 2d 711 (1996).
Specifically, the subpoena sought “any and all materials, hard copies, electronically or otherwise recorded, including but not limited to documents, letters, reports, tapes, or investigative summaries, relating to allegations of corruption against the following members of the Waterbury police department . . . including but not limited to allegations of payroll abuse, overtime
The list of members of the Waterbury police department included Lieutenants O’Leary and Ricci, Detective Jones, and Officer Velez.
The state’s memorandum of law in support of its motion to quash stated that, “[w]hile the [chief state’s attorney] cannot confirm the identity of individual officers under investigation, the chief state’s attorney corroborates that there is presently pending an open investigation of several members of the Waterbury police department being conducted by the statewide prosecution bureau of the office of the chief state’s attorney. At this point, no arrests have occurred as a result of the investigation, nor can it be disclosed at this point in the investigation whether arrests will be forthcoming.”
The defendant also challenges the trial court’s granting of the state’s motion to quash on the basis of what the defendant claims is a false characterization of the source of the information as “rumor.” We note that, during trial, defense counsel suggested that “rumor” was involved in making the decision to seek the investigatory material from the office of the chief state’s attorney. Specifically, the following colloquy took place in the trial court:
“The Court: . . . What is the source of this information to you [defense counsel]?
“[Defense Counsel]: The letter was received by a local newspaper and provided to me by the publisher of the local newspaper. I can also indicate, Your Honor, and I have the original article . . . [that] this article is from The Waterbury Observer, August, 2000, a monthly newspaper. This article, along with, well, basically rumor, started our inquiries.” (Emphasis added.)
Thus, the defendant’s claim lacks merit.
We specifically are referring to the entire file of the office of the chief state’s attorney, less the five page document that the state’s attorney had turned over to the trial court. See footnote 96 of this opinion.
As we noted previously, after the trial court granted the state’s motion to quash the subpoena seeking any records from the office of the chief state’s attorney concerning the investigation of certain Waterbury police officers, the state’s attorney asked the court to review, in camera, a five page document from the file that he determined might contain exculpatory
We further note that the legal principles utilized in Carpenter were clarified in our decision in Sivri. In Sivri, we stated: “We believe . . . that there are two reasons that explain the apparent contradiction between the Carpenter principles and the principles regarding our traditional scope of review. The first reason is that the Carpenter principles, although not irrelevant to the appellate function of reviewing a claim of evidentiary insufficiency, are more properly viewed as principles that relate to the jury’s function of applying the concept of proof beyond a reasonable doubt than to the function of an appellate court in reviewing the jury’s verdict. That is, the jury, in sorting out the evidence and determining whether the state has proved its case beyond a reasonable doubt, must be instructed to, and must in fact, view the evidence in such a way that it cannot render a guilty verdict unless it is satisfied that the evidence meets the standards articulated in Carpenter. Once the jury has done that, however, and has determined that, in its best judgment, the hypothesis or hypotheses of innocence posed by the defendant are no more than ‘possible’ as opposed to ‘reasonable’ . . . that jury determination is entitled to deference on appeal. It would be inconsistent with the entire process of trial fact-finding for an appellate court to do otherwise. Thus, viewed through this prism, the Carpenter principles have their primary operation as rules of law for the guidance of the fact finder, rather than for the guidance of appellate courts in reviewing the sufficiency of evidence regarding the fact finder’s verdict.
“The second reason involves the appropriate . . . role that Caipenter principles do play on the appellate level. Rather than contradict the traditional scope of review, those principles supplement that scope of review in the following way. The appellate court’s first task, in responding to a claim of evidentiary insufficiency, is to apply the traditional scope of review to the evidence. . . . We then determine the sum of that evidence and the inferences, and for purposes of analysis, we assume that the facts established by that sum are true.
*273 “If those facts, taken as true, are sufficient to have met the state’s burden of proving all of the elements of the crime charged beyond a reasonable doubt, the verdict must stand. In that circumstance, the Carpenter principles do not come into play, because to do so would be to engage in the inherently contradictory process described above, and would in effect permit an appellate court to substitute a different view of the evidence from the reasonable view taken by the jury. Put another way, once those facts are taken as true for purposes of an appellate challenge to the sufficiency of the evidence, those facts necessarily preclude the hypothesis of innocence posed by the defendant, because if those facts are true then the defendant’s hypothesis becomes only possible as opposed to reasonable.
“There are cases, however, in which those facts, taken as true, do not establish all of the elements of the crime charged. In such a case, the Carpenter principles do come into play, and require a judgment of acquittal. Under this view, therefore, the application of the Carpenter principles, as applied to an evidentiary insufficiency claim on appeal, require[s] the conclusion that the evidence did not preclude all reasonable hypotheses of innocence. . . . Put another way, an appellate conclusion that the evidence adduced falls short of establishing any element of the crime charged means, by hypothesis, that the evidence was consistent with a rational conclusion other than guilt.” (Citation omitted.) State v. Sivri, supra, 231 Conn. 134-36. Thus, because of our conclusion that the evidence adduced at trial permitted the jury reasonably to conclude that the defendant intentionally had killed the victim, the defendant’s reliance on Carpenter is misplaced.
The defendant proposed the following jury instruction: “Each juror must weigh the aggravating factor with all the mitigating factors he or she has found. Weighing does not mean that you compare the relative number of the aggravating and mitigating factors. Nor does it mean that you assign numerical weights to each factor. The factors must be considered in terms of their substantiality and persuasiveness. Each juror must determine in his or her own judgment the cumulative weight, i.e., the substantiality and persuasiveness, of the mitigating factors proven; then each juror must determine in his or her own judgment whether the aggravating factor outweighs or does not outweigh all the mitigating factors proven beyond a reasonable doubt.
“The state must prove that the aggravating factor outweighs the mitigating factors beyond a reasonable doubt. The reasonable doubt standard here means something different than it does when applied to fact-finding. Weighing is not fact-finding but the exercise of judgment. The beyond-a-reasonable-doubt standard represents the level of confidence you must have in your judgment as to the appropriate sentence. It represents the highest possible degree of certainty that society requires because of the severity and irrevocable nature of the death penalty. It is meant to [convey] the solemnity of the task before you and the necessity for the highest possible degree of certitude before you may impose the death penalty.”
See footnote 6 of this opinion and accompanying text.
As we explained in Rizzo, onr decision in State v. Ross, 230 Conn. 183, 252, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995), “may be read as standing for the proposition that, under our state constitution, our overarching concern for consistency and reliability in the imposition of the death penalty extends to the ultimate
The trial court instructed the jury regarding the weighing process as follows: “Now, I am going to instruct you on the weighing process. That must be undertaken if any one of you determines that a mitigating factor exists. You must then determine whether the aggravating factor outweighs any mitigating factors found to be established. There is no special meaning to be accorded to the word ‘weighing’; it’s given its common, everyday meaning. In comparison, you will ask which one is greater. Those jurors who have found the existence of a mitigating factor in his or her own mind must determine whether the aggravating factor the jury has already unanimously found to exist beyond a reasonable doubt outweighs the mitigating factor or factors that the individual juror has determined to exist.
“If you had not unanimously found [that] the state proved the aggravating factor beyond a reasonable doubt, you would not be at this process. Weighing does not involve the mere comparison of the number of aggravating or mitigating factor[s] or assign any numerical weight to each factor. Weighing is the application of your individually reasoned judgment to your findings concerning the aggravating factor, the mitigating factor or factors that you have found proven.
“As stated by the jurors who have found the existence of a mitigating factor or factors would determine whether the aggravating factor that the*277 jury has already unanimously found to [exist] outweighs the mitigating factor or factors that the individual juror has determined to exist. That is, you must weigh the aggravating factor against any mitigating factor found to exist.
“Now, if the jury unanimously finds that the aggravating factor does outweigh the mitigating factor or factors, then your deliberations will end and the verdict form will be marked accordingly, [and] you also [sign] the verdict form to show your unanimity, and the court will sentence the defendant to death.
“The jury’s unanimous determination that the aggravating factor outweighs any mitigating factor or factors must be based upon each individual juror’s belief that no mitigating factor exists, or that any mitigating factor or factors established are outweighed by the aggravating factor.
“If the jury unanimously finds that the aggravating factor found to exist does not outweigh the mitigating factor or factors, then your determinations will end, you will mark the verdict sheet accordingly, and you will all sign the verdict sheet to show your unanimity, and the court will impose the sentence of life imprisonment without release.”
Practice Book § 42-31 provides: “After a verdict has been returned and before the jury have been discharged, the jury shall be polled at the request of any party or upon the judicial authority’s own motion. The poll shall be conducted by the clerk of the court by asking each juror individually whether the verdict announced is such juror’s verdict. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or they may be discharged.”
In Pare, we went on to reject the state’s claim that a denial of a request to poll the jury is subject to a harmless error analysis. State v. Pare, supra, 253 Conn. 637-39. We explained that, “because the purpose of permitting an individual poll is to protect the accused’s constitutional right to an acquittal in the absence of the full consensus of each juror, the denial of a timely request to poll is of substantial and unique magnitude.” Id., 636. Consequently, we concluded that “a defendant’s right to poll the jury, if not waived, is absolute, and its denial requires reversal even though the remainder of the trial may be error-free.” (Internal quotation marks omitted.) Id., 638-39.
We note the fallacy in the defendant’s argument that the parties had waived their right to poll the jurors and that, consequently, the jury could
We also note that, at a subsequent hearing to determine the propriety of the trial court’s contact with the jury, the court, Damiani, J., concluded that the judicial communication with the jury was harmless beyond a reasonable doubt. Specifically, the court stated: “In this matter, for the state to avoid a new penalty hearing, it must be shown beyond a reasonable doubt that the [jury’s] communication was harmless. Now, based upon the questioning today of these jurors and based upon their answers, there’s no question [that] the state has met its burden [of proving] beyond a reasonable doubt that any communication was harmless.
“The jurors’ initial verdict was death. They realized the mistake. One juror said . . . less than five minutes, three minutes; [another juror said] two minutes; [another juror], thirty seconds; [another juror], less than five minutes; [another juror] right away; [another juror], thirty seconds; [another juror], thirty seconds; [another juror], twenty seconds, [another juror], short time; [another juror] either said immediately or instantaneously; [the jury foreperson] said seconds. They—no question in this court’s mind—realized a mistake was made without any conversation from any outside person. It was only when that confusion was communicated to each other [that] the judge was called, and the judge simply went there to inquire what the problem was, and when the judge found out that the problem was a legal problem, not a physical problem with one of the jurors, the judge backed out. [The jury foreperson] said he was there some twenty seconds and he said, ‘Put it in a note.’
“Therefore, the court finds that any contact was harmless. It’s been proven beyond a reasonable doubt.” Thus, it is clear that the jury initiated contact with the trial court for the sole purpose of alerting the trial court of the jury’s error and that such contact did not have the effect of tainting the deliberative process.
Specifically, the crime of “aimed entry” required proof that the accused entered a dwelling while armed and committed an assault therein with the intent to commit another felony, such as robbery or larceny. See Commonwealth v. Brown, supra, 367 Mass. 26.
In addition, several other courts have recognized the authority of a trial court to recall an undischarged jury for the purpose of allowing it to correct its verdict, but have concluded that the jury already had been discharged at the time the jury had been recalled. See Montanez v. People, 966 P.2d 1035, 1036-37 (Colo. 1998) (explaining that “a jury may change or modify its verdict up to the point the verdict is accepted by the court and the jury is formally discharged” but that jury already had been discharged because one juror was about to exit courthouse and another already had been outside and that both had opportunity to mingle and to discuss case with outsiders when trial court recalled jury to correct its verdict); Burchett v. Commonwealth, 734 S.W.2d 818, 820 (Ky. 1987) (recognizing that “a trial court has the authority before accepting a verdict and before discharging a jury to send [the jury] back to correct a mistake in its verdict” but concluding that jury had been discharged because jury was allowed to return to court on following day and was allowed to deliberate same issue it previously had decided); State v. Green, 995 S.W.2d 591, 613 (Tenn. Crim. App. 1998) (jury was discharged after rendering initial mistaken verdict because most, if not all, of jurors had left courtroom and exited into area that “was open to and occupied by members of general public, interested in and reacting to the outcome of the case”).
Sattazahn addressed the double jeopardy implications of a retrial after the defendant’s successful appeal of his conviction. The defendant, David Allen Sattazahn, was convicted of first, second and third degree murder, among other crimes. Sattazahn v. Pennsylvania, supra, 537 U.S. 103. During the penalty phase, during which the commonwealth of Pennsylvania sought to prove the existence of one statutory aggravating factor, namely, the commission of the murder while in the perpetration of a felony, the jury informed the trial court that it was hopelessly deadlocked regarding the appropriate penalty. Id., 104. In accordance with Pennsylvania law, the trial court discharged the jury as hung and sentenced the defendant to life imprisonment. Id., 104-105. Thereafter, Sattazahn successfully challenged his minder conviction on direct appeal. Id., 105. At Sattazahn’s retrial, the commonwealth again sought the death penalty and also sought to prove, during the penalty phase, a second aggravating factor, namely, the defendant’s significant history of prior felony convictions involving violence or the threat of violence. Id. At the second trial, the defendant was found guilty of first degree murder, but this time the jury “imposed a sentence of death.” Id.
On appeal to the United States Supreme Court, Sattazahn claimed that the double jeopardy clause barred the commonwealth from seeking the death penalty on retrial. See id., 115. The court rejected the defendant’s claim, explaining that “the touchstone for double-jeopardy protection in capital-sentencing proceedings is whether there has been an ‘acquittal.’ [Sattazahn] . . . cannot establish that the jury or the court ‘acquitted’ him during his first capital-sentencing proceeding. As to the jury: The verdict form returned by the foreman stated that the jury deadlocked 9-to-3 on whether to impose the death penalty; it made no findings with respect to the alleged aggravating circumstance. That result—or more appropriately, that non-result—cannot fairly be called an acquittal ‘based on the findings sufficient to establish legal entitlement to the life sentence.’ ” Id., 109.
Moreover, the United States Supreme Court determined that the imposition of the life sentence at Sattazahn’s first trial also was not an “acquittal”
See footnote 19 of this opinion.
The eighth amendment’s prohibition against cruel and unusual punishments is made applicable to the states through the due process clause of the fourteenth amendment. See, e.g., Estelle v. Gamble, 429 U.S. 97, 101, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976).
Practice Book § 43-10 provides in relevant part: “Before imposing a sentence or making any other disposition after the acceptance of a plea of guilty or nolo contendere or upon a verdict or finding of guilty, the judicial authority shall, upon the date previously determined for sentencing, conduct a sentencing hearing as follows:
“(3) The judicial authority shall allow the defendant a reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence. . . .”
The constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel . . . .”
In denying the defendant’s motion, the trial court stated: “First of all, I respect the position raised by the defense concerning that this is a sentencing phase of the trial and, therefore, the defendant should have the right [of] allocution. The court, however, in reviewing the statute, feels that this is a different sentencing phase than the one that was presented in the Strickland case, which is the supporting authority. . . . This is ... [a case] that is based upon the jury’s determination of [its] finding of facts and factors and then a weighing process. In this hearing there . . . are . . . burdens of proof. The state has the burden of proof beyond a reasonable doubt on the aggravating factor. The defendant has [the burden] of proof as it relates to the statutory factors in mitigation. Those . . . burdens are not present in a sentencing hearing. I understand that the rules of evidence, as [they relate] to the [defendant’s] presentation, as to admissibility are not applied, but that doesn’t say in the statute any unchallenged evidence. The defendant . . . did testify in the guilt phase. He did have the ability to testify in this [penalty] phase. So for those reasons, the court will deny the [motion].”
We elaborated further on the right of allocution in State v. Strickland, supra, 243 Conn. 344-45, in which we concluded that the right applied in the disposition phase of probation revocation proceedings. Id., 354. We noted: “Modem day justifications for preserving the practice focus on tailoring punishment to individual circumstances, providing an avenue through which a defendant may ask for mercy based on factors that might not otherwise be brought to the court’s attention, and promoting safety, certainty and equity in sentencing and the judicial process overall. [T]he opportunity to plead for mercy is another provision in a procedural body of law designed to enable our system of justice to mete out punishment in the most equitable fashion possible, to help ensure that sentencing is particularized and reflects individual circumstances. . . . Aside from its practical role in sentencing, the right has value in terms of maximizing the perceived equity of the process. . . . The right of allocution affords a criminal defendant the opportunity to make a final plea to the judge on his own behalf prior to sentencing. . . . Ancient in law, allocution is both a rite and a right. It is designed to temper punishment with mercy in appropriate cases .... [AJllocution provides a defendant the opportunity to meaningfully participate in the sentencing process and to show that he or she is a complex individual and not merely an object to be acted upon.” (Citations omitted; internal quotation marks omitted.) Id., 344-45.
We note that Practice Book § 43-10 (3) codifies the common-law right of allocution. See State v. Strickland, supra, 243 Conn. 344-46 and n.4 (construing Practice Book, 1978-97, § 919 [3], which is predecessor to Practice Book § 43-10 [3]). Accordingly, on the basis of our conclusion that Practice Book § 43-10 (3) does not apply to capital sentencing hearings, the defendant’s reliance on the common law is misplaced. Thus, the justification
Practice Book § 43-10 is part of a group of rules that is contained within the portion of the Practice Book designated, “Superior Court—Procedure in Criminal Matters.” See generally Practice Book §§ 36-1 through 44-37.
See footnote 3 of this opinion.
In Hall, the Fifth Circuit Court of Appeals also concluded that the trial court had not violated the federal rule of criminal procedure permitting the defendant, Orlando Cordia Hall, to make a statement and to present information in mitigation of his sentence when it asked him if he wished to make his statement after the jury had returned its sentencing recommendation but before the court imposed the sentence. United States v. Hall, supra, 152 F.3d 392. In this regard, the court concluded that allowing Hall “to make an unsworn statement of remorse to the jury that is not subject to cross-examination would in no sense increase the accuracy and reliability of the capital-sentencing process. When the [trial] court receives . . . statements] in allocution, it recognizes the legal effect of the fact that the statements are not sworn and the attendant potential effect of this fact upon the credibility of the defendant’s statements; the same cannot be said for a jury.” Id., 393.
In State v. Strickland, supra, 243 Conn. 354, we concluded that Practice Book, 1978-97, § 919 (3), the predecessor of Practice Book § 43-10 (3), afforded a defendant the right of allocution in the disposition phase of a probation revocation proceeding. In so concluding, we first noted that Practice Book, 1978-97, § 943, now Practice Book § 43-29, which prescribed certain procedures that were to be followed in probation revocation proceedings, “[did] not purport to govern probation proceedings exclusively, and in fact [did] not address the procedure to be followed during the disposition phase of the hearing . . . .” State v. Strickland, supra, 349. In addition, we explained that, “[although the defendant [Greg Strickland] had an opportunity to make a statement on his own behalf at his original sentencing, that opportunity did not allow him meaningfully to attempt to influence the exercise of another judge’s discretion with regard to the consequences to be imposed for the subsequent violation of probation.” Id., 353. Thus, we concluded that the right of allocution, as prescribed by the rules of practice, applied in the disposition phase of a probation revocation proceeding. Id., 354.
As the state notes, Strickland is distinguishable from the present case. First, unlike the rules of practice at issue in Strickland, § 53a-46a exclusively governs capital sentencing hearings and specifically prescribes the procedure to be followed during such hearings. Second, unlike probation revocation proceedings, in which the defendant does not have the opportunity “to attempt to influence the exercise of another judge’s discretion with regard to the consequences to be imposed for the subsequent violation of probation”; id., 353; a capital defendant is permitted to present any information relevant to mitigation during the penalty phase hearing, regardless of its admissibility under the evidentiary rules that govern criminal trials generally. General Statutes (Rev. to 1997) § 53a-46a (c). Thus, the justification for applying Practice Book § 43-10 (3) to probation revocation proceedings does not exist in the context of a capital sentencing hearing.
We also reject, the defendant’s claim that the text of § 53a-46a affords him a right of allocution in a capital sentencing hearing. Alt hough we concede that the language of the statute allows the defendant to present “[a]ny information relevant to any mitigating factor”; General Statutes (Rev. to 1997) § 53a-46a (c); the statute also specifically allows the state to rebut that information. In particular, the statute provides that the state “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 . . . factor.” General Statutes (Rev. to 1997) § 53a-46a (c). Thus, because the state is permitted to rebut the information offered by the defendant to establish the existence of any mitigating factors, the plain text of § 53a-46a simply does not contemplate the right of a defendant to make a statement to the jury that is not subject to cross-examination. In addition, we previously have endorsed the state’s authority to rebut mitigation evidence with any information, regardless of its admissibility under the evidentiary rules generally applicable to criminal trials. See State v. Ross, 251 Conn. 579, 589, 742 A.2d 312 (1999).
In addition to these claims, the defendant also contends that the right of allocution is guaranteed by the eighth amendment’s prohibition of cruel
We also reject the defendant’s equal protection claim. The defendant specifically claims that the denial of the right of allocution in capital cases violates the capital defendant’s equal protection rights inasmuch as defendants in other criminal and quasi-criminal proceedings are afforded such a right.
In People v. Christiansen, 116 Ill. 2d 96, 127-28, 506 N.E.2d 1253, cert. denied, 484 U.S. 873, 108 S. Ct. 208, 98 L. Ed. 2d 160 (1987), a capital case, the defendant, Edgar Christiansen, claimed, inter alia, that a statute denying him the right of allocution during the penalty phase of his capital trial violated his equal protection rights. In rejecting Christiansen’s claim, the Supreme Court of Illinois stated: “[W]e are not persuaded that the statutory prohibition of allocution applicable only to capital defendants violates the guarantee of equal protection. This court has held that the normal deference to legislative classifications should not be departed from unless the classification either impinge [s] on some right deemed fundamental or [is] directed against a suspect class. . . . [A]llocution is not a fundamental right; therefore, on that point, its denial does not raise an equal protection issue. And, obviously, the capital-noncapital classification established by the statute does not categorize persons on the basis of arbitrary characteristics such as race, sex, or national origin. In the absence of an invidious classification, our deference to the legislature presumes that a statutory classification is rational and, absent a showing of irrationality, the scheme will be upheld. [There was] ... no showing that the statutory classification at issue is
Although Christiansen involved a statutory denial of allocution during penalty phase hearings, we conclude that the reasoning also applies in the present case, in which we have concluded that our capital sentencing scheme does not contemplate the right of allocution in capital sentencing hearings. Thus, we reject the defendant’s equal protection claim.
The defendant relies, however, on two federal circuit court decisions in support of his claim that the denial of his right of allocution resulted in a constitutional violation. In Ashe v. State, 586 F.2d 334 (4th Cir. 1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2416, 60 L. Ed. 2d 1072 (1979), the defendants, who had been convicted of safecracking and larceny, sought habeas corpus relief, claiming that the trial court’s denial of their right of allocution resulted in a violation of their due process rights. Id., 335, 336. The Fourth Circuit Court of Appeals noted that “a defendant has no constitutional right to be asked if he wishes to address the court before sentencing.” Id., 336. The court concluded, however, that “when a defendant effectively communicates his desire to the trial judge to speak prior to the imposition of sentence, it is a denial of due process not to grant the defendant’s request.” Id.
Similarly, in Boardman v. Estelle, 957 F.2d 1523 (9th Cir.), cert. denied, 506 U.S. 904, 113 S. Ct. 297, 121 L. Ed. 2d 221 (1992), the defendant, who had pleaded guilty to various crimes involving the sexual assault of children, sought habeas corpus relief, claiming that the trial court had violated his due process rights in denying him his right of allocution. Id., 1524. Relying on Ashe, the Ninth Circuit Court of Appeals agreed and concluded “that allocution is a right guaranteed by the due process clause of the [constitution.” Id., 1530.
We first note that the foregoing cases are distinguishable in that they both involved convictions for noncapital crimes. We previously have noted the distinction between noncapital cases and capital cases, the latter of which offer defendants an opportunity, during the penalty phase, to present any information relevant to mitigation. Thus, the cases on which the defendant relies “[may] be correct in . . . [that] a defendant may not be denied [the] opportunity [to allocute] when he requests it. The sentencing phase of a capital trial, on the other hand, specifically provides for such testimony. The defendant is allowed to present evidence as well as take the stand and address the sentencer.” People v. Robbins, supra, 45 Cal. 3d 889. Thus, for all of the reasons that we previously have discussed, we conclude that there is no federal constitutional right of allocution in a capital sentencing proceeding.
General Statutes § 53a-151 provides in relevant part: “(a) A person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony, elude legal process summoning him to testify or absent himself from any official proceeding. . . .”
In Gethers, we described “hybrid representation” “as the ultimate product of a criminal defendant’s ‘partial waiver’ of both his . . . right [under Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975)] to sell-representation and his right to assistance of counsel.” State v. Gethers, supra, 197 Conn. 383. In addition, we described hybrid representation as “the joint presentation of [the defendant’s] defense by him and by his counsel.” Id.
Swift wrote: “We have never admitted that cruel and illiberal principle of the common law of England, that when a man is on trial for his life, he shall be refused counsel, and denied those means of defence which are allowed, when the most trifling pittance of property is in question. The flimsy pretense, that the court are to be counsel for the prisoner will only heightened our indignation at the practice: for it is apparent to the least consideration, that a court can never furnish a person accused of a crime with the advice, and assistance necessary to make his defense.” 2 Z. Swift, supra, pp. 398-99.
In State v. Gethers, supra, 197 Conn. 392, the court relied on State v. Burkhart, 541 S.W.2d 365,371 (Tenn. 1976), sad Landers v. State, 550 S.W.2d 272 (Tex. Crim. App. 1977), in support of the proposition that the right of a defendant to make an unsworn statement may have been what was intended under that part of article first,, § 8, that guarantees an accused “a right to be heard by himself and by counsel . . . .” Conn. Const., art. I, § 8. We note, however, that the court in Burkhart concluded that there was no constitutional right to make an unsworn statement. State v. Burkhart, supra, 371. Instead, “[t]he Burkhart court opined that the Tennessee constitutional provision [affording a criminal defendant the right to be heard by himself and his counsel] might now read: In all criminal prosecutions the accused has the right to testify as a witness in his own behalf and to be represented by counsel.” (Emphasis added; internal quotation marks omitted.) State v. Stephenson, supra, 878 S.W.2d 552. The court in Stephenson concluded that a capital defendant did not have a constitutional right to make an unsworn statement to the capital sentencing jury. Id. Thus, the court’s reliance on Burkhart in Gethers appears to be misplaced.
The historical background of the enactment of article first, § 8, reveals that that provision was passed without much debate. See, e.g., W. Horton, “Annotated Debates of the 1818 Constitutional Convention,” 65 Conn. B.J. SI-31 (1991).
We also observe the court’s conspicuous use of the word “may” when describing the framers’ alleged intent with respect to the “right to be heard in person.” (Internal quotation marks omitted.) State v. Gethers, supra, 197 Conn. 392. Thus, in Gethers, we were not explicitly articulating our view of the framers’ intent, but hypothesizing, for discussion purposes, what it could have been.
Article first, § 9, of the constitution of Tennessee provides in relevant part: “[I]n all criminal prosecutions, the accused hath the right to be heard by himself and his counsel . . .
Article second, § 20, of the Oklahoma constitution, which applies to “all criminal prosecutions,” provides in relevant part: “[The accused] shall have the right to be heard by himself and counsel . . . .”
We acknowledge that some courts have concluded that the right of allocution is guaranteed by their respective state constitutions. State v. Chow, 77 Haw. 241, 247, 883 P.2d 663 (App. 1994) (“the right of allocution is a right guaranteed under the due process clause, article I, section 5, of the Constitution of the state of [Hawaii]”); DeAngelo v. Schiedler, 306 Or. 91, 94, 757 P.2d 1355 (1988) (“it requires almost no interpretive work on our part to decide that [the] defendant has the right, not only procedural, but constitutional, to be heard at sentencing, since the Oregon Constitution unambiguously grants the accused the right to be heard during the entire criminal prosecution”); Robalewski v. Superior Court, 97 R.I. 357, 360, 197 A.2d 751 (1964) (“the constitutional liberty [guaranteed by article I, § 10, of the constitution of Rhode Island] includes the right of an accused, as he stands at the bar after conviction awaiting imposition of sentence, to bring to the attention of the court those matters which one in his position could at common law have spoken when inquiry was made as to why sentence should not be imposed”).
We first note that none of these cases involved defendants who were tried for capital felonies, such as the present case. See State v. Chow, supra, 77 Haw. 243 (traffic offenses); DeAngelo v. Schiedler, supra, 306 Or. 93 (theft and forgery); Robalewski v. Superior Court, supra, 97 R.I. 358 (escape from
Jacoby also testified regarding the victim’s prior injuries during the guilt phase of the defendant’s trial. The defendant filed a motion in limine to exclude Jacoby’s testimony at trial, which the trial court denied. The court reasoned that evidence of the victim’s injuries and the defendant’s prior abuse of the victim was relevant to establish the defendant’s intent. That ruling is not at issue in this appeal.
The defendant’s statement provides: “I Ivo Colon of 418 Mill St. Waterbury Connecticut do give this statement voluntarily to [Lieutenant] Ricci. I do not speak English, but I understand English a little bit. My statement is being interpreted by Officer Velez. I have been advised of my constitutional rights and I have waived these rights. For about the last 6 months I have been staying with my girlfriend Virginia Quintero on and off at 633 South Main St. on the first floor. Virginia has three children. Their names are Tasha age 1 1/2, [the victim] age 2 1/2 and Crystal age 3 1/2. [The victim] and Crystal stay with me and Virginia and Tasha lives with her grandmother because she has asthma real bad. Several weeks ago we began to train [the victim] to go to the bathroom on her own. [The victim] was slow at learning this and I would get mad when she went to pee or potty on herself. About one week ago I came home at night and came into the apartment after hanging around outside. I checked on [the victim] and Crystal and found that [the victim] had gone potty on herself while she was sleeping in the playpen. I took [the victim’s] clothes off and started to spank her with my hand. I then took [the victim] out of the playpen and took my belt off and started to hit her with my brown belt that I had been wearing on my pants. I took [the victim] into the bathroom and turned on the shower and made her get in the shower and hit her with my wet belt on the butt. Virginia was yelling at me to stop but I did not listen to her. After I finished spanking [the victim] I took her into the living room. I was still mad and was pinching [the victim] on the shoulders and the side of the neck and this made a little bum mark on her neck from my pinching her. A couple [of] days ago [the victim] wet on herself again and I was upset by this and I started to slap her in the face and took her out of her playpen. While I was slapping [the victim] she sat on the ground. I told [the victim] to get up but she would not get up. I grabbed her left arm and jerked her up off of the bedroom floor. When I grabbed her arm I heard something go pop, but I thought that her arm was out of place. [The victim’s] mother Virginia came into the bedroom when I was looking at [the victim’s] arm, and we saw that the arm was swollen and Virginia wanted to take [the victim] to the hospital. I told Virginia that we were not taking [the victim] to the hospital because of the marks and cuts on her butt which I had made when I hit her with my wet belt. We did not take [the victim] to the hospital but I did put [an] ACE
General Statutes § 53a-46b (b) provides in relevant part: “The Supreme Court shall affirm the sentence of death unless it determines that ... (2) the evidence fails to support the finding of an aggravating factor specified in subsection (i) of section 53a-46a.”
See Commonwealth v. Louraine, 390 Mass. 28, 35, 41, 453 N.E.2d 437 (1983) (reversing murder conviction because trial court declined to permit defendant to appear in court unmedicated when defense based on defendant’s alleged insanity).
See State v. Murphy, 56 Wash. 2d 761, 767-68, 355 P.2d 323 (1960) (reversing death sentence of defendant who involuntarily was medicated and testified while medicated as defendant’s demeanor was important to jury’s responsibility of assessing defendant’s credibility).
Specifically, the state contends that the defendant conceded as much by virtue of his request to charge the jury, which provides in relevant part: “hi undertaking [the weighing] process, each juror must determine whether in his or her judgment the aggravating factor outweighs the mitigating factors he or she found.” (Emphasis added.)
See generally 18 U.S.C. § 3591 et seq. (2000 & Sup. H 2002).
General Statutes (Rev. to 1997) § 53a-46a (h) provides in relevant part: “The court shall not impose the sentence of death on the defendant if the jury . . . finds by a special verdict . . . that at the time of the offense . . . (2) his mental capacity was significantly impaired or his ability to conform his conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution . . . .”
We note that the trial court’s instructions, when read as a whole, were not entirely improper. For example, the trial court also instructed the jury: “[Sjhould any of you determine that the defendant has proven by a prepon
Justice Borden concludes in his concurring opinion that the text and legislative history of Public Acts 1995, No. 95-19, § 1 (P.A. 95-19), support the proposition that, when the legislature converted the nonweighing death penalty statutory scheme to a weighing scheme, it did not intend to change the requirement that the existence of any particular mitigating factor be found unanimously by the trier of fact. Nevertheless, he concludes that this requirement of unanimity in the new weighing statutory scheme would “be subject to serious constitutional question.” Justice Borden therefore concurs in the result reached by the majority. We disagree with this analysis, principally for two reasons. First, we believe that the legislative history does not “strongly suggest” that the legislature intended to preserve the requirement that there be a unanimous finding with respect to the existence or nonexistence of a mitigating factor. Indeed, despite the passing comment of Representative Michael J. Jarjura, to which Justice Borden refers in his concurrence, the legislative history strongly suggests otherwise. The legislative history is replete with references to the need to make the then existing, nonweighing death penalty statute more “workable” due to the number of juries that had been unable to reach a unanimous conclusion on the existence or nonexistence of mitigating factors. Furthermore, Justice Borden’s view of the legislative history of P.A. 95-19 would not result in a more workable statutory scheme but, instead, would lead to a bizarre result. “We cannot presume that the legislature intended to create such a bizarre result, but [rather] intended a sensible statutory construction.” (Internal quotation marks omitted.) DeMilo v. West Haven, 189 Conn. 671, 679, 458 A.2d 362 (1983). In effect, Justice Borden’s view of the effect of P.A. 95-19 is that it took the then existing statutory scheme that the legislature determined to be “unworkable” and added to it the additional requirement of weighing. This clearly could not have made the statute more workable, nor could it have been the legislature’s intent. Both Representatives Peter A. Nystrom and Dale W. Radcliffe referred to a number of death penalty cases tried under the nonweighing statutory scheme that resulted in hung juries because of the inability of the jurors to agree unanimously on the existence or nonexistence of mitigating factors. Representative Radcliffe predicted that, if a weighing statutory scheme had been in effect, those juries potentially would not have deadlocked. This prediction could only be realized if the requirement of unanimity that existed under the nonweighing statutory scheme did not survive the conversion to a weighing scheme.
Second, Justice Borden concludes: “[I]f we were to interpret our death penalty scheme to permit a hung jury on the question of the existence of a nonstatutory mitigating factor, the statute would, at the least, be subject to serious constitutional question.” He therefore concurs in the result reached in this opinion. It is difficult to fathom why Justice Borden, in reaching this conclusion, does not impute to the legislature the same knowl
The defendant requested that the trial court give the following charge: “The jury does not have to unanimously agree on the same statutory bar. Each juror must decide for his or her self whether a statutory bar to the death penalty exists. If a juror finds that a statutory bar exists [then] that juror has reached a verdict and he or she must report to the court that he
Furthermore, we note that the special verdict form confirms that the jurors unanimously agreed that the defendant had failed to prove the existence of a statutory bar to the death penalty by a preponderance of the evidence.
Title 18 of the United States Code, § 3594, which is part of the Federal Death Penalty Act of 1994, Pub. L. No. 103-322, tit. VI, § 60002, 108 Stat. 1959 (1994) (codified as amended at 18 U.S.C. § 3591 et seq.), provides in relevant part: “Upon a recommendation . . . that the defendant should be sentenced to death or life imprisonment without possibility of release, the court shall sentence the defendant accordingly. Otherwise, the court shall impose any lesser sentence that is authorized by law. Notwithstanding any other law, if the maximum term of imprisonment for the offense is life imprisonment, the court, may impose a sentence of life imprisonment without possibility of release.” 18 U.S.C. § 3594 (2000).
The defendant claims specifically that the trial court’s actions resulted in a violation of his rights under the sixth, eighth and fourteenth amendments to the United States constitution, and article first, §§ 8 and 9, of the Connecticut constitution. Because the defendant has failed to provide an independent analysis under the state constitution, we limit our review to the defendant’s federal constitutional claims. E.g., State v. Peeler, 271 Conn. 338, 372 n.34, 857 A.2d 808 (2004).
The record reveals that, during the penalty phase, defense counsel did not object to the trial court’s alleged improprieties. The defendant claims, however, that his claim was preserved in a motion for mistrial, which was made at the conclusion of the penalty phase. We note that the basis for the motion was that the state had engaged in prosecutorial misconduct, but we acknowledge that, during arguments on that motion, defense counsel alluded to the trial court’s interference with the trial. For instance, defense counsel argued that the trial court had “a limited view of what mitigation is” and that it had “guid[ed] [the] witnesses as they’re trying to show emotion . . . .” Thus, for the purposes of this appeal, we conclude that the claim properly was preserved.
After Quintero testified, for the second time, that the defendant had hit her, defense counsel moved for a mistrial, which the trial court denied.
In response to this statement, defense counsel asked the court to address the issue immediately because he could not “operate under a cloud of something going to happen later about something I did . . . The trial court declined defense counsel’s invitation to address the issue.
Moreover, even if some of the trial court’s statements toward defense counsel had been made in the presence of the jury, the trial court clearly instructed the jury to refrain from considering any opinions of the trial court in its deliberations. Specifically, the trial court instructed the jury: “If the court has expressed or intimated any opinions as to the facts, you are not bound by that opinion. What [the] verdict shall be is your sole and exclusive duty and responsibility.” “In assessing the impact of a judge’s actions, jury instructions can be a means of allaying potential prejudice.” Logue v. Dore, 103 F.3d 1040, 1046-47 (1st Cir. 1997).
See footnote 3 of this opinion for the text of § 53a-46a (d).
The defendant also claims that § 53a-46a unfairly favors the determination of aggravating factors over the determination of mitigating factors because, according to the defendant, the determination of the existence of an aggravating factor involves only two hurdles whereas the determination of the existence of a mitigating factor involves “four hurdles . . . .” According to the defendant, these four hurdles involve determinations that: (1) the defendant has established the mitigating factor by a preponderance of the evidence; (2) the factor is mitigating in nature; (3) the factor should be considered as tending to extenuate or to reduce the degree of the defendant’s culpability or blame; and (4) the mitigating factor is outweighed by the aggravating factor. The defendant’s claim lacks merit. The determination of the existence of a mitigating factor involves a two step process. First, the sentencer must determine that the defendant has established the factual bases of the mitigating factor by a preponderance of the evidence. Second, the sentencer must determine that the proposed evidence is mitigating in nature, which requires the sentencer to consider the facts and circumstances of the case. The sentencer then proceeds to the weighing process, which involves consideration of both the aggravating factor or factors and the
By example, the defendant claims that, “if a crime is perceived to be extremely heinous, the facts and circumstances of that crime might well screen out substantial, important and compelling mitigating evidence preventing the fact finder from considering such evidence in the weighing process.”
We similarly reject the defendant’s challenge to the trial court’s instructions to the jury that, “[i]n determining whether a factor is mitigating in nature, you must consider it in the context of the all the facts and circumstances of the case.” The defendant had requested the trial court to instruct the jury “that in considering whether a particular fact or set of facts are [sic] mitigating in nature, you may not consider the aggravating factor you may have found or the fact of the capital felony conviction itself.” We rejected a similar challenge in Rizzo, concluding that “the [trial court’s] instruction [in Rizzo, which was identical in all material respects to the one given in the present case] correctly reflected the requirement of § 53a-46a (d), that the jury make its determination of whether the proposed mitigating
As we explained in Reynolds, “since our decisions in [State v. Cobb, supra, 234 Conn. 735 (Cobb I), and State v. Cobb, supra, 251 Conn. 285 (Cobb II)], subsequent events have overtaken both the claim that the defendant [Richard Reynolds] raises . . . and the same claim made by [Sedrick] Cobb in his case. These events reaffirm our conclusion that [Reynolds] should be required to pursue his claim in a habeas corpus proceeding in the trial court. We affirmed Cobb’s conviction and his death sentence. Cobb II, supra, [521], In the course of that opinion, we reaffirmed our earlier conclusion in Cobb I, supra, [762-63], that Cobb would be permitted to raise his statistical claim by way of a petition for a writ of habeas corpus. Cobb II, supra, 499.
“At some time after our decision in Cobb I, which was released in 1995, the office of the public defender began to collect the data that it deemed necessary to establish the claim. In November, 2002 . . . the office of the public defender informed this court that it had completed its collection of
“It is apparent, therefore, that neither the office of the public defender nor the state is ready to litigate the merits of this claim in the immediate future. It is also apparent that judicial economy, as well as fairness to both defendants and the state, mandates that this claim be litigated before the same habeas judge and in the same general, consolidated hearing, on behalf of all defendants who have been sentenced to death.
“Our conclusion applies to [Reynolds] .... [Reynolds] will have a full opportunity to present his claim in the habeas court and, as we previously have indicated, is not prejudiced in any way by the relegation of his claim to that forum.” State v. Reynolds, supra, 264 Conn. 232-33.
See footnote 1 of this opinion for the text of General Statutes (Rev. to 1997) § 53a-54b (9). We note that § 53a-54b has since been amended and what was subdivision (9) in the 1997 revision is now subdivision (8). See General Statutes (Rev. to 2003) § 53a-54b.
As we noted previously, “[bjecause a validly enacted statute carries with it a strong presumption of constitutionality, those who challenge its constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt.” (Intemal quotation marks omitted.) State v. Rizzo, supra, 266 Conn. 291.
An analytical predicate to the consideration of an equal protection claim is the determination of whether the allegedly disparately treated groups are similarly situated. See State v. Wright, 246 Conn. 132, 141, 716 A.2d 870 (1998). In the present case, we assume without deciding that the class of defendants who have intentionally murdered persons under the age of sixteen is similarly situated to the class of defendants who have intentionally murdered persons who are sixteen years of age or older.
In Higgins, we rejected the “claim that there was no rational basis for the line drawn between victims who are sixteen or older and victims under the age of sixteen.” State v. Higgins, supra, 265 Conn. 67. As we explained,