Opinion
No. CV00-0003239-S
January 25, 2011
MEMORANDUM OF DECISION
On October 2, 2000, the petitioner initiated this matter by filing a pro se petition for a writ of habeas corpus. On March 6, 2002, a motion for appointment of special public defender was filed and granted by the court (Graziani, J.) on March 15, 2002. Thereafter, by and through appointed counsel, the petition was amended several times, with the operative complaint captioned "Fifth Amended Petition for Writ of Habeas Corpus" being filed on December 8, 2004. The Fifth Amended Petition raises claims that the petitioner's detention is unlawful and that his appellate counsel rendered ineffective assistance of counsel. As relief, the petitioner seeks that his conviction and sentence of death in this matter be reversed and that the case be restored to docket number 371150, as well such other relief as law and justice may require. The respondent's return denies petitioner's material allegations and that he is entitled to habeas corpus relief.
The matter thereafter proceeded to trial over four days between December of 2004 and March of 2005. The court permitted both parties to file post-trial briefs. Petitioner's brief was filed on September 15, 2005; respondent's brief was filed on July 14, 2006; and petitioner's reply brief was filed on September 14, 2006. At the request of both parties, the court permitted the parties to present oral argument subsequent to the post-trial briefing. On January 25, 2007, the parties presented their post-briefing arguments and the court reserved judgment.
The court has reviewed the testimonial and documentary evidence and, for the reasons stated more fully below, the petition for a writ of habeas corpus is denied.
FINDINGS OF FACT
Underlying offenses and procedural history
The Supreme Court's opinion contained the following statement of the facts that the jury could reasonably have found and which are not contested in the instant habeas corpus. "On August 24, 1989, the [petitioner's] girlfriend, Rosa Billington, allowed him to borrow her car, a brown Mercury Zephyr bearing the license plate 598-FUT. At approximately noon, the [petitioner] drove Billington's car into the Talcott Plaza parking garage in downtown Hartford. The [petitioner's] finger and palm prints are on a parking stub from the garage, dated August 24, 1989.
"The victim worked at the Talcott Plaza building and, as an employee of Connecticut National Bank, she possessed parking privileges in the parking garage. On August 24, 1989, the victim had a lunchtime appointment with a West Hartford real estate agent. She telephoned the real estate agent for directions at 12:05 pm. At 12:13 p.m., a security camera recorded the victim as she entered an elevator in the Talcott Plaza building. She never arrived at her appointment.
"The [petitioner] abducted the victim at gunpoint from the parking garage, forcing her into his girlfriend's car. Driving for approximately twelve minutes, he took her to Keney Park, which is nearly four miles away from downtown Hartford. At the park, the [petitioner] forcibly removed or forced the victim to remove her shoes, pantyhose and panties. The [petitioner] then attempted to assault the victim sexually. The victim struggled, resulting in rips to her clothing and a scratch to the [petitioner's] face. When she broke free of the [petitioner] and sought to escape, he shot her twice in the back, causing her to fall to the ground. These wounds caused the victim to experience significant hemorrhaging and excruciating pain.
"After she was shot, the victim began crawling away from the [petitioner], screaming as many as six times, `help, help, help, someone please help me, help me.' At some point, she began to cough blood. As she crawled away, the [petitioner] returned to Billington's car and drove it to the victim's location. When there, he exited the car and stood in front of her. At that point, as much as three minutes had passed since the [petitioner] had fired the two shots that had struck the victim in the back. The [petitioner] then shot the victim three more times, once in the chest, once in the ear and, finally, point blank in the face. When he shot her the last time, the [petitioner] bent down and held the gun so close to the victim's face that her skin bore stippling from the hot gunpowder. The [petitioner] then returned to the car and drove out of the park.
"Three witnesses had heard the gunshots and the victim's screams for help, and had seen the brown car leaving the park. One of the witnesses, Anthony Bibbins, followed a Mercury Zephyr with the license plate 598-FUT, until it was parked, and during that time he saw the [petitioner] change his shirt. When Bibbins saw a police cruiser speeding toward Keney Park, he returned to the park. Bibbins then led the police to the neighborhood where he had seen the [petitioner] park Billington's car. They found the car parked on the street where Billington lived. Approximately three minutes before the police arrived, Theresa Thomas had observed the [petitioner], whom she knew, park the car and ride away on a bicycle. Officer Mark Lumpkin, who also knew the [petitioner], saw him riding a bicycle in the area at approximately the same time.
"The police officers who arrived at Keney Park found the victim lying on the ground in a pool of blood. She had been bleeding from her mouth and face, and her clothing was soaked with blood. Her feet and hands were soiled with dirt, and dirt and debris were lodged under her fingernails. Her clothing was torn and her panties, pantyhose and one shoe were found approximately 100 feet from her body. Seven .38 caliber bullet casings were found, six of which were designed for specially enhanced bullets with more power than ordinary .38 caliber ammunition. At least two of the bullets later removed from the victim's body possessed hollow points, which are designed to expand upon contact and cause greater damage to their target than ordinary bullets.
"The [petitioner] voluntarily went to Hartford police headquarters in the late afternoon of the day of the murder. There he was arrested and charged with the murder of the victim. After his arrest, the [petitioner] resisted when police officers attempted to test his hands for gunpowder residue, and the officers were forced to subdue him physically and pry open his hands. Both of the [petitioner's] hands tested positive for lead, one of the three principal elements in gunpowder. Similarly, the outside driver's door handle of Billington's car tested positive for lead, and the inside driver's door handle showed traces of all three principal gunpowder elements, lead, barium and antimony. Fibers removed from the victim's clothing were microscopically similar to fibers taken from the carpet of Billington's car. Hair found inside the car was microscopically indistinguishable from the victim's hair. The victim's fingerprints were discovered on the exterior of the windshield on the passenger side of Billington's car." State v. Webb, 238 Conn. 389, 397-400, 680 A.2d 147 (1996) (en banc; three justices dissenting in two dissenting opinions) ( Webb I).
"In June 1991, the [petitioner] . . . was tried before a jury on charges of capital felony, murder, felony murder, kidnapping in the first degree, criminal attempt to commit sexual assault in the first degree, and criminal possession of a pistol or revolver. The jury returned a verdict of guilty on all counts. In July 1991, the trial court conducted a separate sentencing hearing, pursuant to General Statutes § 53a-46a, before the same jury. The jury returned a special verdict finding that the state had proved two aggravating factors beyond a reasonable doubt, and that the [petitioner] had not proved a mitigating factor by a preponderance of the evidence. After the trial court, Corrigan J., rendered its judgment of conviction in accordance with the jury's verdict, and imposed on the [petitioner] a sentence of death by electrocution, [the petitioner appealed]. The [petitioner] raise[d] claims challenging particular actions of the trial court during the guilt and penalty phases of the trial, challeng[ed] the constitutionality of various aspects of the capital sentencing statutes, and challeng[ed] the constitutionality of the statute providing for mandatory proportionality review by this court of death sentences. [The Supreme Court] affirm[ed] the [petitioner's] conviction on all counts. [The Court] also affirm[ed] the imposition of the sentence of death." Id., at 394-96.
"On appeal, the [the petitioner] raise[d] more than thirty claims that, he assert[ed], require[d the court] to reverse his conviction and the imposition of the death penalty . . . [The Supreme Court] address[ed] the [petitioner's] claims in six main parts. First, [a] . . . facial challenge, under the state constitution, to the constitutionality of the death penalty statutes. Second, . . . claims of error during the guilt phase of his trial. Third, [a] . . . challenge to the constitutionality of the statutory bifurcated trial procedure for determining guilt and penalty in capital felony cases. Fourth, . . . claims of error during the penalty phase of his trial. Fifth, [a] . . . claim that this case should be remanded to the trial court in order to allow him to challenge the constitutionality of execution by lethal injection. Sixth, challenges to the constitutionality of the mandatory proportionality review statute, [as well as a] review [of] the [petitioner's] sentence of death to determine whether it [was] excessive or disproportionate to the penalty imposed in similar cases." Id., at 400.
The Supreme Court affirmed the judgment in all respects. CT Page 3671 Id., at 551. The case was, however, remanded to the trial court to permit the petitioner to challenge the constitutionality of lethal injection, which had subsequent to the petitioner's conviction and sentencing, replaced electrocution as the means of execution as the newly implemented method of execution. Id., at 396-97, 551. The trial court, Corrigan J., heard the petitioner's challenges to the execution regimen and denied all challenges. The petitioner again appealed to the Supreme Court, which affirmed the judgment of the trial court. State v. Webb, 252 Conn. 128, 147, 750 A.2d 448, (en banc; two justices dissenting in two dissenting opinions), cert. denied, 531 U.S. 835, 121 S.Ct. 93, 148 L.Ed.2d 53 (2000) ( Webb II).
Public defenders Fred DeCaprio and Ronald Gold represented the petitioner during both portions (i.e., guilt/innocence phases and penalty phase) of the underlying criminal proceeding. The petitioner was represented in Webb I by attorneys John Williams and Norman Pattis. In Webb II the petitioner was represented by public defender Mark Rademacher.
The representation by attorneys DeCaprio and Gold is not put at issue in petitioner's operative amended petition. Both attorneys did, however, testify during the habeas corpus trial.
The only attorneys who allegedly rendered deficient performance are attorneys Williams and Pattis.
Attorney Rademacher's representation is not at issue in this matter and he did not testify before this court.
Additional facts will be discussed, as necessary, in subsequent sections below.
Habeas corpus petition
The pro se petition filed by the petitioner alleged that he had received ineffective assistance of counsel and that he was actually innocent. The matter was referred to the Office of the Chief Public for appointment of counsel. On March 8, 2002, counsel for the petitioner filed their appearances. On March 19, 2003, the petitioner filed the first amended petition, which raised claims of ineffective assistance by both trial defense and appellate counsel. On April 1, 2003, the petitioner filed a second amended petition, which raised various general constitutional challenges, as well as claims of ineffective assistance by both trial defense and appellate counsel. In response to the respondent's request for a more specific statement, the petitioner on May 16, 2003 filed a third amended petition that with more specificity pleaded the claims already contained in the second amended petition.
On June 13, 2003, the respondent filed, in accordance with Practice Book § 23-29(2) and (5), a motion to dismiss count two and portions of counts three and four of the third amended petition. On August 19, 2003, prior to a ruling on the respondent's motion to dismiss and the petitioner's objections thereto, the court (Fuger, Jr., J.) ordered the bifurcation of the petitioner's claim alleging that racial bias infects Connecticut's capital punishment procedures and transferred said claim to the authority of the Special Master appointed to coordinate the scheduling of hearings of all racial disparity claims in death penalty cases. On September 29, 2003, the motion to dismiss and objection were argued before the court (Fuger, Jr., J.). which in part granted the motion to dismiss as articulated in a memorandum of decision filed October 8, 2003. The respondent then filed a return to the third amended petition on November 6, 2003 denying petitioner's material allegations and raising procedural default as a defense to any of the claims in section 8 of the third amended petition. On January 13, 2004, the petitioner filed a reply denying that he had procedurally defaulted and averring ineffective assistance of trial and appellate as the cause and resulting prejudice to excuse any default.
The bifurcated and transferred claim was identified as Paragraph II(8)(a) in the Third Amended Petition. The petitioner nevertheless continued to incorporate a racial disparity claim in the operative petition, the Fifth Amended Petition, under Paragraph II(8)(a). All claims alleging racial disparity in the death penalty were, subsequent to the transfer of petitioner's racial disparity claim, docketed in a matter captioned "In re Claims of Racial Disparity in Death Penalty Cases" and assigned docket number CV05-4000632 in the judicial district of Tolland. In addition to the petitioner, the following individuals presently also are petitioners in the consolidated habeas matter: Sedrick Cobb; Richard Reynolds; Robert Breton; Robert Courchesne; Eduardo Santiago; Jessie Campbell; Lazale Ashby; Todd Rizzo; Christopher Dimeo; Richard Roszkowski; John Billingslea; Pedro Miranda; Steven Hayes; Leslie Williams; and Joshua Komisarjevsky. The court takes judicial notice of the fact that in CV05-4000632, the instant petitioner on February 27, 2006 filed a Supplemental Petition for Writ of Habeas Corpus alleging racial disparity, as well as that the petitioner is represented in the consolidated racial disparity case by the same counsel who represent him in the instant matter. Because the Supreme Court has explicity ordered that all claims involving racial disparity in the death penalty be adjudicated in the context of the consolidated habeas proceeding; see State v. Reynolds, 264 Conn. 1, 233-34, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004); this court will not address the claim in Paragraph II(8)(a) of the Fifth Amended Petition. The court further notes that the petitioner's amended reply admits that the racial disparity claim was transferred to the consolidated habeas corpus matter.
On October 7, 2004, this court granted petitioner's request for permission to amend the third amended petition. Then, on November 19, 2004, the respondent filed an amended return denying the petitioner's material allegations and raising several defenses: claim preclusion, res judicata and procedural default. Thereafter on December 8, 2004, shortly before the onset of the habeas corpus trial, the petitioner withdrew, after this court's canvass, nineteen claims alleged in the Fourth Amended Petition, as well as four portions of claims that focused on trial defense counsels' representation. The end result of the withdrawal was that the remaining claims almost entirely focused on appellate counsel's representation. The petitioner filed a Fifth Amended Petition, although it differed from the preceding amended petition only by the omission of the claims that were withdrawn. The respondent's amended return (hereafter return) to the Fourth Amended Petition, which remained a complete response to the pared down Fifth Amended Petition (hereafter amended petition), was not further amended, as it remains entirely responsive to the amended petition. On December 16, 2004, the petitioner filed an amended reply (hereafter reply) denying the respondent's asserted defenses.
The matter proceeded to trial beginning on December 16, 2004, at which time the parties stipulated to relevant dates. Over the course of the trial, which spanned four days between December 2004 and March 2005, the petitioner entered a total of fifty exhibits. Witnesses called by the petitioner were Attorneys John Williams, Norman Pattis, public defenders Ronald Gold, Kent Drager and Fred DeCaprio, as well as expert witnesses Attorneys Robert Dunham and David Ruhnke. The respondent entered no exhibits and called no witnesses.
After the completion of the trial portion, the matter entered the post-trial briefing stage, which completed on September 14, 2006, when petitioner filed his reply brief. The court granted the parties' request for oral argument following the completion of post-trial briefing. On January 25, 2007, the parties presented their final oral arguments before the court. The parties have on several occasions explicitly waived the requirement under General Statutes § 51-183b that the court render judgment not later than one hundred and twenty days from the completion of the trial.
DISCUSSION
Petitioner's claims and respondent's defenses
The operative amended petition raises claims under two headings: claims of unlawful detention and ineffective assistance by appellate counsel. The first claim of unlawful detention is premised on racial disparity and as indicated above will not be addressed by this court. The petitioner raises four additional claims that his detention is unlawful, three based on trial court error and one general allegation based on a purported defect in the special verdict form. As to each of the four claims of unlawful detention the petitioner further asserts that he has not procedurally defaulted because of ineffective assistance of appellate counsel. For the reasons that are explained more fully below, the court will not separately address the petitioner's claims of unlawful detention but, instead, addresses them in the context of the claims of ineffective assistance of appellate counsel.
The second grouping of claims is ineffective assistance of appellate counsel, more specifically, that Attorneys Williams and Pattis failed to raise claims that the petitioner's sentence of death was unlawful in that: 1) the trial court improperly failed to require a unanimous verdict on the mitigating factors under General Statutes § 53a-46a, under State v. Daniels, 207 Conn. 374, 542 A.2d 306 (1988) ( Daniels I), after remand for articulation, 209 Conn. 225, 550 A.2d 885 (1988) ( Daniels II), and under Article First, Sections 8 and 19 of the Connecticut Constitution; 2) a "no mitigating factor" response on the special verdict form allowed the jury to report that it had not found the mitigating factors even though its votes on these factors were not unanimous; 3) the trial court's failure to instruct the jury that its finding of the existence of an aggravating factor or factors and the nonexistence of a mitigating factor compelled the court to sentence the petitioner to death violated federal and state constitutional provisions and was in contravention to existing case law; 4) Connecticut's death penalty statute is unconstitutional under both the federal and state constitutions in that it legally authorizes the jury to refuse to consider constitutionally relevant mitigating evidence and that it allows a jury to preclude a finding that the defendant's mitigating evidence is "mitigating in nature" unless there is a nexus between the mitigation and the offense; 5) the petitioner's sentence of death is unlawful under the state and federal constitutions in that the trial court, although requested to do so, failed to instruct the jury that a sentence of life imprisonment precluded any possibility of release, even though this was the only sentencing alternative to death in this matter under General Statutes §§ 53a-35b and 53a-46a(f); and 6) the petitioner's sentence of death is unlawful under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution premised on both trial court error regarding an aggravating factor and Supreme Court error interpreting this state's death penalty statute in accordance with United States Supreme Court precedent.
This claim incorporates the claim in Paragraph II(8)(d) of the Fifth Amended Petition.
This claim incorporates the claim in Paragraph II(8)(e) of the Fifth Amended Petition.
This claim incorporates the claim in Paragraph II(8)(f) of the Fifth Amended Petition.
This claim incorporates the claim in Paragraph II(8)(n) of the Fifth Amended Petition.
The respondent's return filed December 8, 2004, raises several defenses. First, the return correctly asserts that the claim of racial disparity is not before this court. Second, the respondent argues that this court cannot review or grant relief on the petitioner's claim relating to supplementation of the jury panel on May 15, 1991, a claim raised in subparagraph (c). The court notes that petitioner's withdrawal filed with the court on December 8, 2004 withdrew that claim and it is not contained in the amended petition. Thus, the claim is not before the court and respondent's assertion of claim preclusion/res judicata is immaterial, as is any alleged procedural default as to the claim in subparagraph (c).
More precisely, the claim was in Paragraph II(8)(c) of the Fourth Amended Petition.
The respondent further asserts that the petitioner has procedurally defaulted as to the claims in subparagraphs (d), (e), (f) and (n) of II, 8. The amended petition itself alleges that the there is no procedural default because of ineffective assistance by appellate counsel. Additionally, the petitioner's reply to the return also alleges ineffective assistance of counsel as the cause and prejudice for the procedural default It is well-established that an allegation of ineffective assistance by appellate counsel sufficiently asserts cause and prejudice for procedural default on appeal. See, e.g., Valeriano v. Bronson, 209 Conn. 75, 83-85, 546 A.2d 1380 (1988). Consequently, the court concludes that the petitioner has not procedurally defaulted as to the claims in II, 8(d), (e), (f) and (n), and shall address these claims on their merits, albeit in the context of the claimed ineffective assistance of appellate counsel.
Standard for ineffective assistance of appellate counsel
The standard that this habeas court must apply to claims of ineffective assistance of appellate counsel was established by the United States Supreme Court in Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000), and which the Connecticut Supreme Court has followed since its decision in Small v. Commissioner of Correction, 286 Conn. 707, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, U.S., 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
In Small, the Supreme Court expressly overruled Brinkley v. Commissioner of Correction, 222 Conn. 444, 610 A.2d 598 (1992), to the extent it was inconsistent with Smith v. Robbins. See Small v. Commissioner of Correction, 286 Conn. 707, 724, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, U.S., 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
"A criminal defendant's right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution. See, e.g., Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); In re Christina M., 280 Conn. 474, 489, 908 A.2d 1073 (2006). To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a "performance prong" and a "prejudice prong." To satisfy the performance prong, a claimant must demonstrate that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the [s]ixth [a]mendment." [ Id.] To satisfy the "prejudice prong" a claimant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different' Id., 694. The claim will succeed only if both prongs are satisfied." Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct 1368, 164 L.Ed.2d 77 (2006). It is well settled that `[a] reviewing court can find against a petitioner on either ground, whichever is easier.' (Emphasis added.) CT Page 3676 Valeriano v. Bronson, [ supra, 209 Conn. 86]; see also Strickland v. Washington, supra, 697 ('a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant')." Small v. Commissioner of Correction, supra, 286 Conn. 712-13.
"When applying the two part Strickland analysis in the context of a claim of ineffective assistance of appellate counsel, the petitioner must first `establish that appellate counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions . . . Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on the central issue if possible, or at most on a few key issues.' (Internal quotation marks omitted.) DaEria v. Commissioner of Correction, 107 Conn.App. 539, 542, 946 A.2d 249 (2008)." Watson v. Commissioner of Correction, 111 Conn.App. 160, 168, 958 A.2d 782, cert. denied, 290 Conn. 901, 962 A.2d 128 (2008). "Appellate advocates select what in their professional judgment, are the most promising issues for review. It is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment. A reviewing court must be highly deferential to counsel's decision and judge the action from counsel's perspective at the time." (Internal citations and quotation marks omitted.) Tillman v. Commissioner of Correction, 54 Conn.App. 749, 757, 738 A.2d 208, cert. denied, 251 Conn. 913 (1999).
Under the Smith/Small standard for determining prejudice as a result of appellate counsel's deficient performance, a court "must assess whether there is a reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial. The important difference is that, under the Smith paradigm, to determine whether a habeas petitioner had a reasonable probability of prevailing on appeal, a reviewing court necessarily analyzes the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm." Small v. Commissioner of Correction, supra, 286 Conn. 722.
This puts a habeas court, a single judge of the Superior Court, in the unenviable position of prognosticating what a panel of appellate jurists would decide on an appeal, a not altogether easy task made more difficult by the fact that reasonable jurists often disagree on the law, its interpretation and its application.
As "to the proper relief to be afforded a habeas petitioner who has satisfied the two-pronged test of Strickland for claims of ineffective assistance of appellate counsel, [the Small court noted] that [its] research reveals that there is a split of authority. One approach is to grant the petitioner a new appeal. See, e.g., Mapes v. Tate, [ 388 F.3d 187, 194 (6th Cir. 2004)]; Turner v. Duncan, [ 158 F.3d 449, 459 n. 13 (9th Cir. 1998); Wilson v. Wainwright, [ 474 So.2d 1162, 1163 (Fla. 1985)] . Another approach, however, recognizes that, in order to analyze the petitioner's claim under Strickland, it is necessary to assess the merits of the underlying appellate issue, and, therefore, it is more appropriate for the court hearing the habeas appeal simply to order the ultimate relief sought, namely, a new trial or reversal of the petitioner's conviction. See, e.g., Milliken v. Stewart, 276 Ga. 712, 713-14, 583 S.E.2d 30 (2003); Browning v. State, [ 120 Nev. 347, 363-65, 372, 91 P.3d 39 (2004)]; cf. Mintun v. State, 168 P.3d 40, 45-46 (Idaho App. 2007) (assessing merits of petitioner's ineffective claim and rejecting claim), review denied, Docket No. 33038, 2007 Idaho LEXIS 183 (September 19, 2007)." Small v. Commissioner of Correction, supra, 286 Conn. 724 n. 9. The Supreme Court in Small did not address the issue of which form of relief is the more appropriate.
Mills claim
The petitioner's allegations in paragraphs IV, 12(b) and (c) are interrelated and shall be combined for purposes of this court's discussion of what shall be referred to as the petitioner's Mills claim. In subsection (d), the petitioner alleges that his "sentence of death is . . . unlawful in that the trial court improperly failed to require a unanimous verdict on the mitigating factors under General Statutes § 53a-46a, under State v. Daniels, [ supra], and under Article First, Section 8 and Section 19 of the Connecticut Constitution. The instructions and verdict form were improper in that they did not properly instruct the jurors on their duty to each individually conclude that the defendant did not prove a mitigating factor. As a result, the instructions and form allowed jurors to vote `no' on the mitigating factors even though each juror might not have so agreed. Had the jury been properly instructed, it is reasonably probable that the results of the penalty phase would have been different." Amended Petition, pg. 5. In subsection (c), the petitioner alleges that his "sentence of death was also unlawful under Article First, Section 8 of the Connecticut Constitution and the Eighth Amendment to the United States Constitution, in that a `no mitigating factor' response on the special verdict form allowed the jury to report that it had not found the mitigating factors even though its votes on these factors were not unanimous. As a result, the imposition of the death penalty in this case is in violation of Mills v. Maryland, 486 U.S. 376[, 108 S.Ct 1860, 100 L.Ed.2d 384 (1988)] and McKoy v. [North Carolina, 494 U.S. 433, 110 S.Ct 1227, 108 L.Ed.2d 369 (1990)] and their progeny." Amended Petition, pgs. 5-6. The petitioner asserts that his appellate counsel rendered ineffective assistance by failing to raise a Mills claim on direct appeal.
Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).
In Mills, the United States Supreme Court noted that "[i]t is beyond dispute that in a capital case `the 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.' Eddings v. Oklahoma, 455 U.S. 104, 110 (1982), quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion) (emphasis in original). See Skipper v. South Carolina, 476 U.S. 1, 4 (1986). The corollary that `the sentencer may not refuse to consider or be precluded from considering "any relevant mitigating evidence'" is equally `well established.' Id. (emphasis added), quoting Eddings, 455 U.S., at 114 . . ." (Footnotes omitted.) Mills v. Maryland, supra, 486 U.S. 374-75.
"Under Maryland's sentencing scheme, if the sentencer finds that any mitigating circumstance or circumstances have been proved to exist, it then proceeds to decide whether those mitigating circumstances outweigh the aggravating circumstances and sentences the defendant accordingly . . . But if petitioner is correct, a jury that does not unanimously agree on the existence of any mitigating circumstance may not give mitigating evidence any effect whatsoever, and must impose the sentence of death . . . Under our decisions, it is not relevant whether the barrier to the sentencer's consideration of all mitigating evidence is interposed by statute, Lockett v. Ohio, supra Hitchcock v. Dugger, 481 U.S. 393 (1987); by the sentencing court, Eddings v. Oklahoma, supra or by an evidentiary ruling, Skipper v. South Carolina, supra. The same must be true with respect to a single juror's holdout vote against finding the presence of a mitigating circumstance. Whatever the cause, if petitioner's interpretation of the sentencing process is correct, the conclusion would necessarily be the same: `Because the [sentencer's] failure to consider all of the mitigating evidence risks erroneous imposition of the death sentence, in plain violation of Lockett, it is our duty to remand this case for resentencing.' Eddings v. Oklahoma, 455 U.S., at 117, n. (O'CONNOR, J., concurring)." (Citations omitted.) Mills v. Maryland, supra, 486 U.S. 375.
"The critical question, then, is whether petitioner's interpretation of the sentencing process is one a reasonable jury could have drawn from the instructions given by the trial judge and from the verdict form employed in this case. See Francis v. Franklin, 471 U.S. 307, 315-16 (1985) (`The question . . . is not what the State Supreme Court declares the meaning of the charge to be, but rather what a reasonable juror could have understood the charge as meaning'), citing Sandstrom v. Montana, 442 U.S. 510, 516-17 (1979). Accord, California v. Brown, 479 U.S. 538 (1987). If the jury understood the verdict form as the Court of Appeals asserted it should have, then every time it marked `no' beside a mitigating circumstance it indicated its unanimous conclusion that petitioner had not proved the relevant facts by a preponderance of the evidence, and thus the court properly upheld the judgment . . . On the other hand, if the jury understood that it should mark `no' when it failed to agree unanimously that a mitigating circumstance existed, then some jurors were prevented from considering `factors which may call for a less severe penalty,' Lockett v. Ohio, 438 U.S., at 605, and petitioner's sentence cannot stand." Mills v. Maryland, supra, 486 U.S. 375-76.
The entire verdict form was appended to the Supreme Court's decision in Mills. Below are the portions from the Mills verdict form most relevant to the instant matter:
Section II
Based upon the evidence we unanimously find that each of the following mitigating circumstances which is marked `yes' has been proven to exist by A PREPONDERANCE OF THE EVIDENCE and each mitigating circumstance marked `no' has not been proven by A PREPONDERANCE OF THE EVIDENCE:
1. The defendant previously (i) has not been found guilty of a crime of violence; and (ii) has not entered a plea of guilty or nolo contendere to a charge of a crime of violence; and (iii) has not been granted probation on stay or entry of judgment pursuant to a charge or a crime of violence. As used in this paragraph, `crime of violence' means abduction, arson, escape, kidnapping, manslaughter, except involuntary manslaughter, mayhem, murder, robbery, or rape or sexual offense in the first or second degree, or an attempt to commit any of these offenses, or the use of a handgun in the commission of a felony or another crime of violence.
___ X
yes no
The victim was a participant in the defendant's conduct or consented to the act which caused the victim's death.
___ X
yes no
3. The defendant acted under substantial duress, domination or provocation of another person, but not so substantial as to constitute a complete defense to the prosecution.
___ X
yes no
4. The murder was committed while the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired as a result of mental incapacity, mental disorder or emotional disturbance.
___ X
yes no
5. The youthful age of the defendant at the time of the crime.
___ X
yes no
6. The act of the defendant was not the sole proximate cause of the victim's death.
___ X
yes no
7. It is unlikely that the defendant will engage in further criminal activity that would constitute a continuing threat to society.
___ X
yes no
8. Other mitigating circumstances exist, as set forth below:
None.
(If one or more of the above in Section II have been marked `yes,' complete Section III. If all of the above in Section II are marked `no,' you do not complete Section III.)
Section III
Based on the evidence we unanimously find that it has been proven by A PREPONDERANCE OF THE EVIDENCE that the mitigating circumstances marked `yes' in Section II outweigh the aggravating circumstances marked `yes' in Section I.
___ ___
yes no
DETERMINATION OF SENTENCE
Enter the determination of sentence either `Life Imprisonment' or `Death' according to the following instructions:
1. If all of the answers in Section I are marked `no' enter `Life Imprisonment.'
2. If Section III was completed and was marked `yes' enter `Life Imprisonment.'
3. If Section II was completed and all of the answers were marked `no' then enter `Death.'
4. If Section III was completed and was marked `no' enter `Death.'
We unanimously determine the sentence to be Death.
"In reviewing death sentences, the Court has demanded even greater certainty that the jury's conclusions rested on proper grounds. See, e.g., Lockett v. Ohio, 438 U.S., at 605 (`[T]he risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty . . . is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments'); Andres v. United States, 333 U.S. 740, 752 (1948) (`That reasonable men might derive a meaning from the instructions given other than the proper meaning of § 567 is probable. In death cases doubts such as those presented here should be resolved in favor of the accused'); . . . accord, Zant v. Stephens, 462 U.S. 862, 884-85 (1983). Unless we can rule out the substantial possibility that the jury may have rested its verdict on the `improper' ground, we must remand for resentencing . . ." (Footnotes omitted.) Mills v. Maryland, supra, 486 U.S. 376-77.
"While conceding that the Court of Appeals' construction of the jury instructions and verdict form is plausible, we cannot conclude, with any degree of certainty, that the jury did not adopt petitioner's interpretation of the jury instructions and verdict form. At the conclusion of the sentencing phase, the judge distributed copies of the form to the jurors . . . After reading aloud the instruction part of the form's Section I and stressing the unanimity requirement, the judge explained: `[Y]ou must consider whether the aggravating circumstance number two has been proven beyond a reasonable doubt. If you unanimously conclude that it has been so proven, you should answer that question yes. If you are not so satisfied then of course you must answer no.' App. 70 (emphasis added). We find it difficult to read into that statement a requirement that the `no' answer, like the `yes' answer, must be unanimous. Indeed, the verdict form establishes at least a rough equivalence between the lack of unanimity to write `yes,' and writing `no:' the jury learns from the form that its failure to write `yes' beside any aggravating circumstance leads to the imposition of a life sentence, the same result that obtains if the jury answers `no' for every aggravating circumstance.
"The judge then moved on to Section II of the form, which addresses the jury's determination of which, if any, mitigating circumstances exist. The language at the beginning of that section is identical to that at the beginning of Section I, except that the standard of proof is by a preponderance of the evidence rather than beyond a reasonable doubt, . . . and we presume that, unless instructed to the contrary, the jury would read similar language throughout the form consistently. The jury was instructed to mark each answer `yes' or `no.' Although it was clear that the jury could not mark `yes' in any box without unanimity, nothing the judge said dispelled the probable inference that `no' is the opposite of `yes,' and therefore the appropriate answer to reflect an inability to answer a question in the affirmative. Nothing in the verdict form or the judge's instructions even arguably is construable as suggesting the jury could leave an answer blank and proceed to the next stage in its deliberations.
"As the dissent ably reports, the trial judge stressed `[o]ver and over again,' . . . that the jury's findings had to be unanimous. But not once in any of those instructions did the trial court explain to the jury that if it could not reach unanimity to answer `yes,' it could do something other than answer `no.' The dissent, like the trial court, confuses repetition with clarity, pronouncing `over and over again' that there was only one way the jury could have understood its instructions . . . Not even the Maryland Court of Appeals believed that . . ."
"The only place on the form where the jury had an opportunity to write anything more than `yes' or `no' was with respect to mitigating circumstance number eight . . . which permits the jury to recognize as mitigating anything, in addition to the enumerated mitigating factors, that petitioner offered as a basis for a sentence less than death. The judge explained to the jury that if it found any such `other' mitigating circumstances, it must list them in the space provided, and `[i]f you find no other mitigating circumstance then you make no entry upon those lines under number eight.' . . . No instruction was given indicating what the jury should do if some but not all of the jurors were willing to recognize something about petitioner, his background, or the circumstances of the crime, as a mitigating factor.
"Ordinarily, a Maryland jury reaches the balancing stage of the deliberation process any time it unanimously finds at least one mitigating circumstance, or, under the interpretation adopted by the Court of Appeals in this case, any time the jury does not unanimously reject all mitigating circumstances. Had the jurors that sentenced petitioner reached Section III, they would have found that even if they had read the verdict form as the Court of Appeals suggests they could have found that even if they had read the verdict form as the Court of Appeals suggests they could have, and marked `yes' or `no' only on the basis of unanimity as to either, they were not free at this point to consider all relevant evidence in mitigation as they balanced aggravating and mitigating circumstances. Section III instructed the jury to weigh only those mitigating circumstances not so marked `yes' in Section II. Any mitigating circumstance not so marked even if not unanimously rejected, could not be considered by any juror. A jury following the instructions set out in the verdict form could be `precluded from considering, as a mitigating factor, [an] aspect of a defendant's character or record [or a] circumstanc[e] of the offense that the defendant proffer[ed] as a basis for a sentence less than death,' Skipper v. South Carolina, 476 U.S., at 4, if even a single juror adhered to the view that such a factor should not be so considered." (Emphasis added.) (Footnotes omitted; footnote renumbered.) Mills v. Maryland, supra, 486 U.S. 377-80.
"The jury in this case apparently never reached the balancing stage of the process. When the jury returned to the courtroom to report its verdict even the judge was confused by their failure to complete Section III, in accordance with the form's instructions . . . The prosecutor suggested, during a colloquy with the court, that the jurors were `hung up on that language . . .'"
"For example, some jurors in this case might have found that petitioner's age, 20 constituted a mitigating factor, i.e., youthfulness, under § 413 (g)(5). Indeed, in his sentencing report the trial judge noted: `There was evidence from which the jury could have found the existence of Mitigating Circumstance No. 5 (youthful age).' . . . Other jurors on the other hand, might have accepted the prosecutor's argument that petitioner was `not youthful in terms of the criminal justice system,' . . . because of his history of criminal activity. Under such circumstances, the lack of unanimity would have prevented the jury from marking that answer `yes.' Regardless of whether the answer was marked `no' or left blank, the instructions in Section III would prevent those jurors who thought petitioner's youthfulness was relevant to the ultimate sentencing decision from giving that mitigating circumstance any weight."
The United States Supreme Court then observed that in Mills, "[t]here [was], of course, no extrinsic evidence of what the jury in this case actually thought. We have before us only the verdict form and the judge's instructions. Our reading of those parts of the record leads us to conclude that there is at least a substantial risk that the jury was misinformed." Id., pg. 381.
"No one on this Court was a member of the jury that sentenced Ralph Mills, or of any similarly instructed jury in Maryland. We cannot say with any degree of confidence which interpretation Mills' jury adopted. But common sense and what little extrinsic evidence we possess suggest that juries do not leave blanks and do not report themselves as deadlocked over mitigating circumstances after reasonable deliberation, . . . unless they are expressly instructed to do so.
"The decision to exercise the power of the State to execute a defendant is unlike any other decision citizens and public officials are called upon to make. Evolving standards of societal decency have imposed a correspondingly high requirement of reliability on the determination that death is the appropriate penalty in a particular case. The possibility that petitioner's jury conducted its task improperly certainly is great enough to require resentencing." (Citation omitted.) Id., pgs. 383-84.
The Mills court summarized its decision as follows: "We conclude that there is a substantial probability that reasonable jurors, upon receiving the judge's instructions in this case, and in attempting to complete the verdict form as instructed, well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance. Under our cases, the sentencer must be permitted to consider all mitigating evidence. The possibility that a single juror could block such consideration, and consequently require the jury to impose the death penalty, is one we dare not risk." Id., pg. 384.
Although the defendant in State v. Colon, 272 Conn. 106, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005), was convicted and sentenced subsequent to Connecticut implementing a weighing statute, the Supreme Court's decision in that case nevertheless contains a useful treatment of Mills and McKoy.
The instant petitioner was convicted and sentenced when Connecticut's death penalty statute was non-weighing, meaning that aggravants and mitigants were not weighed against each other. Instead, if any mitigant was proven, then there was no weighing process and the defendant could not be sentenced to death.
"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, [ supra, 494 U.S. 433], 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 limit[ed] 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 out-weigh 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)], such consideration of mitigating evidence may not be foreclosed by one or more jurors' failure to find a mitigating circumstance . . .' (Emphasis added.) McCoy v. North Carolina, supra, 442-43. In our view, this precedent strongly suggests that once one or more jurors find that the defendant has proven the existence of a mitigating factor by a preponderance of the evidence, the entire jury, and not just those jurors who have found the existence of that mitigating factor, proceed to the weighing process.
"In addition, in a case cited by the defendant [in Colon], the United States Supreme Court explained that, `although a jury must unanimously agree that the [g]overnment 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, . . . which specifically provides for such a process; see 18 U.S.C. § 3593(d) (2000); the process described in Jones, namely, that the entire jury move on to the weighing stage once one or more jurors have found the existence of a mitigating factor, is consistent with our own statutory scheme. Indeed, it would be impractical to separate the jurors into two groups prior to the weighing process, namely, a group of jurors who finds the existence of one or more mitigating factors, and a separate group of jurors who does not find the existence of a mitigating factor. Instead, it is more consistent with our statutory scheme for the entire jury to be involved in the weighing process even though only some of the jurors had found the existence of a mitigating factor.
"Moreover, in our view, it is beneficial for all of the jurors to participate in the discussion during the weighing process because jurors are capable of changing their minds about the existence of a mitigating factor through open dialogue with other members of the jury. Specifically, jury members could find that a mitigating factor exists even if, prior to the weighing process, they did not believe that it did. In addition, we believe it is appropriate for every juror to participate in the final stage of the capital sentencing process. Thus, capital sentencing juries should be instructed that once one or more jurors have found that the defendant has proven the existence of one or more mitigating factors by a preponderance of the evidence, the entire jury then moves on to the weighing process. Accordingly, the trial court's instruction that `[t]hose jurors who have found the existence of a mitigating factor' move on to the weighing process was improper.
"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." (Emphasis in original; footnote omitted.) State v. Colon, supra, 272 Conn. 245-47.
The foregoing discussion in Colon, albeit in the context of a weighing statute, shows the importance of insuring that each and every juror's mitigation determination is given meaningful effect. This is no more evident than the Supreme Court acknowledging that a juror who had not found a mitigant to have been proven could, nevertheless, so conclude during the subsequent weighing stage. At the core of the instant petitioner's Mills claims is the requirement that a jury's decision regarding the non-existence of mitigating factors must be unanimous. Two decisions from the Connecticut Supreme Court are critical to analyzing the petitioner's Mills claim and, therefore, are summarized in greater detail below.
Ross II
In Ross II, the Supreme Court "conclude[d] that an entirely new sentencing hearing must be held. Although there was sufficient evidence to sustain the jury's finding that the state had proved an aggravating factor beyond a reasonable doubt, the jury's finding of `no mitigating factor' cannot stand because of the trial court's evidentiary and instructional rulings that did not comply with the statutory requirements of 53a-46a." State v. Ross, supra, 230 Conn. 257-58. Although the Supreme Court reversed based on such trial court errors and did not specifically address defects in the special verdict form, its decision nevertheless included a discussion important to the instant petitioner's claim.
"[A]n additional claim [made by the defendant in Ross II was] that the trial court's instruction on jury unanimity with respect to the existence of a mitigating factor was misleading. He argue[d] that the trial court improperly failed to charge that unanimity was also required for a finding that no mitigating factor exists. Thus, the defendant argue[d], a jury hung on the existence of a mitigating factor may have believed that a verdict of `no mitigating factor' would be appropriate. [The Supreme Court] agree[d] with the defendant that, at the rehearing, the jury should be given instructions that affirmatively and effectively convey this statutory requirement Our holding in State v. Daniels, supra, 207 Conn. 374, which was decided subsequent to this sentencing hearing, is dispositive of this issue. A jury must be unanimous in its verdict that the defendant has not met his burden of proof on mitigation in order to satisfy the requirement of General Statutes 53a-46a(f) that `no mitigating factor exists.' Id., 392, 394." State v. Ross, supra, 230 Conn. 285.
Although the majority opinion in Ross II did not address the special verdict form provided to the jury, the dissenting opinion by Justice Berdon contains a replication of a portion the form as completed by the jury. State v. Ross, supra, 230 Conn. 321 n. 33. As embodied in the Connecticut Reports, the special verdict form used by the jury in that case contained the following:
SPECIAL VERDICT: EXISTENCE OF AGGRAVATING FACTOR
QUESTION: Has the State of Connecticut proved beyond a reasonable doubt that the Defendant, Michael Bruce Ross, in the commission of the crime of `Murder in the course of kidnapping' in connection with the death of Wendy B., committed the offense in an especially heinous, cruel, or depraved manner?
ANSWER: X YES
___ NO
SPECIAL VERDICT: EXISTENCE OF MITIGATING FACTOR
QUESTION: In connection with the death of Wendy B., has the Defendant, Michael Bruce Ross, proved by a fair preponderance of the evidence a mitigating factor?
ANSWER: ___ YES
X NO
Breton II
"In Daniels, [the Supreme Court] conclude[d] that the imposition of the death penalty under § 53a-46a(e) 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.' [ State v. Daniels, supra, 207 Conn. 394]. Thus, the death penalty cannot be imposed under § 53a-46a(e) unless each and every juror finds that the defendant failed to prove the existence of each and every mitigating factor by a preponderance of the evidence. See State v. Ross, supra, 230 Conn. 243-44. If one or more of the jurors believe that the defendant has proven a mitigating factor but the other jurors disagree, a hung jury results. As [the Supreme Court] stated in Daniels, `[f]aced with a jury that is unable to agree unanimously on its findings [under § 53a-46a(e)], the trial court may, in the exercise of its discretion, grant a motion for mistrial by either party' or `enter a judgment "acquitting" the defendant of the death penalty.' State v. Daniels, supra, 207 Conn. 394, 396; see also State v. Ross, supra, 230 Conn. 244." (Emphasis added.) State v. Breton, 235 Conn. 206, 236, 663 A.2d 1026 (1995).
In Breton II, "[t]he defendant's argument regarding lack of unanimity rest[ed] principally upon the alleged ambiguity of the special verdict form and the instructions of the trial court concerning the jury's completion of the form. The special verdict form, as completed by the jury, provide[d] in part:
Special Verdict Form
Mitigating factors
1. Has the defendant, Robert J. Breton, Sr., proved by a preponderance of the evidence that his mental capacity was significantly impaired or his ability to conform his conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution?
___ Yes, we the jury unanimously agree that the Defendant has proved this mitigating factor by a preponderance of the evidence.
X No, we the jury do not unanimously agree that the Defendant proved this mitigating factor by a preponderance of the evidence.
2. Has the Defendant, Robert J. Breton, Sr., proved by a preponderance of the evidence any other mitigating factor concerning his character, background and history or the nature and circumstances of the crime?
___ Yes, we the jury unanimously agree that the Defendant has proved such a mitigating factor by a preponderance of the evidence.
X No, we the jury do not unanimously agree that the defendant proved such a mitigating factor by a preponderance of the evidence.
"The jury was instructed to render its verdict by placing an `X' on the appropriate line, and the jurors were told to sign their names under that answer in the space provided. At the conclusion of its deliberations, the jury returned the special verdict form as indicated above, followed by the jurors' signatures. Construing the jury's two `No' responses, the trial court concluded that the jury had unanimously rejected the defendant's statutory and nonstatutory mitigating factors. Because the jury also had found that the state had proved the existence of an aggravating factor beyond a reasonable doubt, the trial court imposed on the defendant a sentence of death pursuant to subsections (f) and (h) of § 53a-46a.
"The defendant contend[ed] that the statement, `No we the jury do not unanimously agree that the defendant proved [the] mitigating factor', is flawed for two closely related reasons. First, the defendant claim[ed] it is impossible to determine from that response whether the jury had unanimously rejected the mitigating factors or whether the jury merely was unable to agree that the defendant had proved a mitigating factor. Second, the defendant assert[ed], the statement conveyed to the jury the false impression that it could render a verdict of `no mitigating factor' without having unanimously rejected each of the mitigating factors. The defendant [was] correct on both accounts.
"The defendant repeatedly objected to the phraseology of the special verdict form prior to its submission to the jury, claiming, as he does on appeal, that the form's `No' answers to the questions on mitigating factors did not necessarily require a unanimous verdict. The defendant provided the trial court with his own proposed special verdict form and, in the alternative, suggested changes in the form ultimately submitted to the jury. The trial court, however, overruled the defendant's objections."
"The literal meaning of the response, `we the jury do not unanimously agree that the defendant proved [the] mitigating factor,' is plain: the jury was unable to reach unanimous agreement that the defendant had proven the existence of the mitigating factor. Thus, the jury's affirmance of that statement in response to the two questions on mitigating factors definitively established only that one or more of its members had not found the existence of those factors; the answers do not necessarily establish that the jury had unanimously rejected any of the mitigating factors. Although it is possible, in light of the responses to the special verdict form, that the jury had unanimously rejected the mitigating factors, it is equally possible that eleven of the twelve jurors found that the defendant had proved one or more of the mitigating factors. It cannot be determined, therefore, solely upon review of the special verdict form, whether the jury's responses on the statutory and nonstatutory mitigating factors were unanimous. Under our decision in Daniels, however, a capital jury cannot properly render a verdict of `no mitigating factor' unless each and every juror has rejected each and every mitigating factor. Because a sentence of death may not be imposed unless the jury finds at least one aggravating factor and unanimously rejects all of the mitigating factors, the special verdict form must clearly and accurately reflect the jury's vote on those factors. On its face, the special verdict form submitted to and completed by the jury did not satisfy this requirement.
"Furthermore, because of the wording of the `no' answers on the special verdict form, a jury disagreeing on the existence of a mitigating factor nonetheless reasonably could have believed that a verdict of `no mitigating factor' would be appropriate. See State v. Ross, supra, 230 Conn. 285. Thus, the unintended effect of the form's misleading language was to direct the jury to render a verdict by choosing one of the two answers: `Yes,' if the jury had unanimously found a mitigating factor, or `No,' if it had not. `While a defendant is not entitled to an instruction that a jury may "hang" . . . he is entitled to a jury unfettered by an order to decide . . .' (Citations omitted.) State v. Peary, 176 Conn. 170, 184, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S.Ct. 2417, 60 L.Ed.2d 1072 (1979); State v. Ralls, 167 Conn. 408, 421-22, 356 A.2d 147 (1974). The special verdict form violated this principle — and, as a consequence, the requirement of a unanimous verdict — by indicating to the jury that a finding of `no mitigating factor' was the correct verdict so long as at least one juror had rejected a mitigating factor.
"The state acknowledge[d] that the wording of the special verdict form was not ideal and concede[d] that a better formulation of the `no mitigating factor' response would have been `No. We unanimously reject all mitigating factors. The state argue[d], however, that when the special verdict form is read in the context of the jury instructions, the jury could not reasonably have believed that it was permitted to render findings of `no mitigating factor' unless it had unanimously rejected the mitigating factors. [The Supreme Court did] not agree with the state's argument that the jury instructions cured the defect in the special verdict form.
"The following statement also would have sufficed: `No, we unanimously conclude that the defendant has not proved the existence of a mitigating factor.'"
"It is well established that `a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts . . . the test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper . . .' (Citations omitted; internal quotation marks omitted.) State v. Ali, 233 Conn. 403, 422, 660 A.2d 337 (1995)."
"The trial court did, on one occasion, expressly instruct the jury that its verdict on the mitigating factors had to be unanimous. This instruction, given during that portion of the charge wherein the trial court explained to the jury that the defendant need not unanimously convince each juror of the existence of the same mitigating factor, stated as follows: `[The d]efendant has listed for you a number of mitigating factors, the statutory mitigating factor and the other, all of which he's argued to you that he's proved by a preponderance of the evidence. I charge you again that although you must be unanimous in a finding that no mitigating factor has been proven, in the event that all of you agree that a mitigating . . . factor has been proven, it is not necessary that you all agree as to a specific mitigating factor. If each of you agree that he or she is satisfied that one or more mitigating factors have been established, then you would be unanimous in your conclusion that a mitigating factor exists.' The state also points to the trial court's repeated references to the unanimity requirement in its charge on the role of the jury, claiming that the totality of the trial court's instructions provided the jury with sufficient guidance to eliminate any confusion that might have resulted from the special verdict form.
"The trial court's instructions included the following references to unanimity: `Be mindful of the fact, ladies and gentlemen, especially in a capital case, the jury is to serve as the link between contemporary community standards or contemporary community values and standards of decency and the penal system and that a man is not to be condemned unless a fairly selected jury unanimously agrees that he should . . .' Although it's expected and desired that all members of the jury make a frank and full exchange of ideas and views and perspectives on the issues they must decide, and it's true that the goal of such discussions is to reach a unanimous consensus on each of the issues presented, no juror is expected to join in a apparent consensus simply for the purposes of doing so unless his or her conscience compels that result. It would be as much of a violation of one's oath as a juror to subscribe to a verdict with which one did not agree as to refuse to deliberate at all. Indeed, it would practically deny both the state and the defendant their respective rights to the judgment of the entire community as reflected in the makeup of this jury. And if some jurors did not fairly speak their minds and vote their conscience in reaching their unanimous verdict. `Thus, ladies and gentlemen of the jury, discuss all of the matter before you with an eye to reaching unanimous agreement and agree if in conscience you can, but do not abdicate your solemn responsibility to render a honest, personal verdict based on your own views and conscience, based upon your examination and review of the evidence that you heard and the exhibits which will be before you.' Both the state and the defendant are entitled to a jury of twelve, not ten, not eleven or some less than that." (Emphasis added.)"
"[The Supreme Court did not need to] decide whether curative language in the instructions might have been sufficient to remedy the ambiguity created by the wording in the special verdict form of the `No' answers to the interrogatories concerning mitigating factors. The charge, in fact, exacerbated the ambiguity in the verdict form. On two separate occasions, the trial court, in explaining to the jury how it was to answer the questions on statutory mitigating factors, instructed the jury as follows: `Again, you will find a yes, we the jury unanimously agree that the defendant has proved a mitigating factor by a preponderance of the evidence. That is the statutory mitigating factor. If that is your result all twelve will sign under the yes and you will not sign under the no. If that's not the result, that is, if you do not unanimously agree that he's proved this mitigating factor, you will then sign under the no on that mitgating factor.' (Emphasis added.) The court repeated the same instruction in its charge to the jury on nonstatutory mitigating factors. This improper formulation of the issue, in terms identical to the incorrect language of the special verdict form, increased the risk of jury misunderstanding.
"Furthermore, by directing the jury to answer `No' if it was unable to answer `Yes,' the trial court expressly equated the jury's failure unanimously to find a mitigating factor with a `No' answer to the question. In so doing, the court mischaracterized the role of the jury in precisely the same manner as the improper language of the special verdict form: the jury was improperly told that it should answer `No' if it could not unanimously agree on the existence of a mitigating factor. The jury should instead have been told that it could answer `No' to the question of mitigating factors only if it unanimously agreed that the defendant had not proved any mitigating factor. On the whole, therefore, the trial court's instructions, instead of ameliorating the improper language of the special verdict form, focused the jury's attention on the misleading language, thereby compounding the impropriety of the form."
"The state also claims that the trial court's explanation to the jury that the defendant need only establish jury unanimity as to any one mitigating factor further ameliorated the improper language of the special verdict form. That instruction, however, apprised the jury only that the defendant may establish a mitigating factor without unanimity on each factor, and did not explain to the jury that it must unanimously reject all of the mitigating factors before rendering a verdict of `no mitigating factor.' Accordingly, the instruction lends little, if any, support to the state's argument."
"Finally, the state claim[ed] that the individual polling of the members of the jury ensured that they had unanimously rejected all mitigating factors. [The Supreme Court did] not agree. The clerk simply read the special verdict form verbatim, and then inquired of each juror if the form accurately reflected his or her response. Although each juror answered affirmatively, the answers, because they were based solely on the form itself, provide[d] no support whatever for the state's claim.
"When trial error is of a constitutional magnitude, the state bears the burden of establishing that there is no reasonable possibility that the error affected the verdict. If, on the other hand, the error does not rise to the level of a constitutional violation, then a new trial is required only if the accused can demonstrate that the error probably affected the verdict. See State v. Woods, 234 Conn. 301, 308, 662 A.2d 732 (1995); State v. Ali, 233 Conn. 403, 422-23, 660 A.2d 337 (1995). The defendant, relying on our conclusion in Daniels that `[t]he heightened reliability demanded by the Eighth Amendment in the determination whether the death penalty is appropriate . . . convince[d the Supreme Court] that jury unanimity is an especially important safeguard at a capital sentencing hearing'; (citation omitted; internal quotation marks omitted) State v. Daniels, supra, 207 Conn. 389; argue[d] persuasively that the language of the special verdict form and the jury charge constituted error of a constitutional dimension. Even if [the Supreme Court] were to conclude otherwise, however, [it was] convinced, even upon application of a nonconstitutional standard of review, that there was a reasonable probability that the jury was misled by the erroneous language of the jury charge and the special verdict form. State v. Ali, supra, 423. We are unable to say, therefore that the verdict was based upon the juyr's unanimous rejection of the mitigating factors. A death sentence cannot be imposed in such circumstances. State v. Daniels, supra, 389. Consequently, [the court] reverse[d] the judgment with respect to the impositon of the death penalty and remand for a new sentencing hearing. (Emphasis in original.) (Footnotes renumbered.) State v. Breton, supra, 235 Conn. 237-45.
"Although the issue was not raised by the defendant, the special verdict form was defective in a second respect. Under the federal constitution, a capital defendant need not convince each juror of the existence of the same mitigating factor; the death penalty may not be imposed so long as the defendant satisfies each juror of the existence of any mitigating factor. See McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990); Mills v. Maryland, CT Page 3752 486 U.S. 365, 375-76, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). The defendant may not be sentenced to death, therefore, if each juror finds at least one of the statutory or nonstatutory mitigating factors alleged by the defendant. The special verdict form submitted to the jury in this case, however, required the jury first to state whether they were unanimous as to the statutory mitigating factor and then, in a separate question, whether thay had unanimously found a nonstatutory mitigating. As drafted, the form did not allow the jury to report a unanimous verdict in circumstances where one or more of the jurors had found a statutory mitigating factor and all the remaining jurors had found a nonstatutory mitigating factor. The trial court's supplemental jury instructions, moreover, are likely to have exacerbated this problem with the format of the special verdict form. In response to the jury's request for a definition of the statutory and nonstatutory mitigating factors, the court stated: `Now, let me just reiterate one thing and that is with respect to the nonstatutory mitigating factors the law does not require that you all agree as to the existence of a single factor, but it does not require that you all agree that there is in existence a nonstatutory factor which you consider mitigating. In other words, you have to all agree that there is a mitigating factor. You need not agree in point of a fact that is the same one.' (Emphasis added.) These instructions were misleading insofar as they suggested to the jury that the defendant bore the burden of satisfying each juror of the existence of a nonstatutory mitigating factor regardless of whether any such juror had also found a statutory mitigating factor. [The Supreme Court did not need to] consider the issue further in light of [its] determination that a new sentencing hearing was required. At the new hearing, however, the trial court must clearly apprise the jury that the defendant need only satisfy each juror of the existence of any statutory or nonstatutory mitigating factor, and the special verdict form must allow the jury to report any such finding in similarly clear terms." (Emphasis added.)
"At the new sentencing hearing to be held on remand, the state will again bear the burden of proving the existence of an aggravating factor beyond a reasonable doubt; see State v. Ross, supra, 230 Conn. 258; and the defendant will bear the burden of proving the existence of a mitigating factor by a preponderance of the evidence. If the state fails to prove the existence of an aggravating factor, or the defendant proves the existence of a mitigating factor, a sentence of death shall not be imposed. General statutes § 53a-46a(f); cf. Public Acts 1995, No. 95-19."
Additional Facts and Discussion
The parties have stipulated to several relevant dates. On July 2, 1991, the petitioner in this matter was convicted of the commission of a capital felony. The jury returned its verdict in the death penalty phase of the trial on July 25, 1991, and the trial court imposed a sentence of death on September 12, 1991.
In Ross II, Supreme Court docket numbers 13224, 13225 and 13226, the defendant's initial brief was filed on May 15, 1992, and his reply brief was filed on October 22, 1993. The Connecticut Supreme Court heard oral arguments in Ross II on February 15, 1994.
The instant petitioner filed his initial brief in Webb I, Supreme Court docket number 14409, on July 25, 1994. The Connecticut Supreme Court issued its decision in Ross II one day later, on July 26, 1994. Breton II, Supreme Court docket number 13845, was argued before the Connecticut Supreme Court on February 7, 1995. The state's brief in Webb I was filed on March 13, 1995. On August 22, 1995, the Connecticut Supreme Court issued its decision in Breton II. The petitioner's reply brief was filed on September 14, 1995.
On November 3, 1995, a five-judge panel of the Connecticut Supreme Court heard oral arguments in Webb I, with an en banc panel hearing oral arguments on December 1, 1995. The Connecticut Supreme Court issued its decision in Webb I on July 30, 1996.
The court makes the following additional findings of fact The petitioner was represented on appeal in Webb I by Attorneys John Williams and Norman Pattis, who both testified at the habeas corpus trial. Attorney Williams testified that he read the transcripts of the underlying criminal proceedings. Although Attorney Williams could not recall specific discussions with the petitioner's trial attorneys, public defenders Fred DeCaprio and Ronald Gold, he did recall having significant contact with both former trial counsel. Attorney Pattis, who had just graduated from law school and would later be admitted to the bar, began working on the appeal at that time. According to Attorney Williams, Attorney Pattis initially was involved in handling the proportionality review aspect of the case, while Attorney Williams handled the main portion of the appeal. Attorney Pattis's role in the appeal continued to progress and become more involved as time progressed, and Attorney Pattis wrote the initial drafts of both the initial and reply briefs.
Attorney Williams indicated that the petitioner's appeal was the first death penalty in Connecticut since the United States Supreme Court decided Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, reh. denied, 409 U.S. 902, 93 S.Ct. 89, 34 L.Ed.2d 164 (1972). Attorney Williams stated that he had no special training in death penalty cases or appeals and that he did not view himself as a specialist in the death penalty at the time that he assumed representation in the petitioner's direct appeal. He did speak with other attorneys who represented others sentenced to the death penalty and did review briefs prepared in others' appeals, although Attorney Williams could not specifically recall from which appeals. Attorney Williams testified that he tried to keep abreast of developments in both federal and state death penalty cases. He recalled the United States Supreme Court releasing its decision in Simmons shortly before the petitioner's initial brief was filed. Attorney Williams also recalled the Connecticut Supreme Court deciding Ross II one day after the instant ptitioner's initial brief was filed, and that Ross II, which both Attorneys Williams and Pattis reviewed and drew their attention to issues that they wanted to raise as a result of Ross II, impacted the petitioner's direct appeal. Attorney Williams indicated that he did not, however, consult with any of the attorneys handling the Ross II appeal.
In Furman, the United States Supreme Court "had effectually invalidated [Connecticut's] previous death penalty statutes as violative of the federal constitution." State v. McGann, 199 Conn. 163, 174, 506 A.2d 109 (1986).
According to Attorney Williams, there was no strategic reason to not raise claims relying on Simmons, Caldwell, Mills or Daniels. Attorney Williams testified that he did not talk to other death penalty advocates about these cases, although he was aware of the trial court in this case not instructing the jury as requested by the petitioner's trial defense counsel. Attorney Williams could not recall comparing the petitioner's case and comparing to cases such as Mills and Daniels, and reiterated that he could think of no strategic reason to not raise a Mills/Daniels claim in the petitioner's direct appeal, especially in light of the Ross II decision, which emphasized the need for jury unanimity and trial court instructions pertaining to unanimity. Attorney Williams recalled reviewing the Ross II decision, but not the special verdict forms themselves or that trial court's instructions to the jury.
Attorney Williams described his own role in the petitioner's appeal as being very involved in selecting the issues to raise and address in the briefs, and that he was more interested in that aspect of the appeal dealing with the guilty/innocence and penalty phases, as opposed to the proportionality review aspect of the direct appeal. A key aspect in spotting issues to raise on appeal is reviewing the record, in particular items such as request to charge and special verdict forms, with a focus on finding issues preserved by trial counsel's objections. Attorney Williams argued the appeal to the Connecticut Supreme Court, with Attorney Pattis's involvement limited to briefing.
As is routine for appeals arising from death penalty cases, there was no real page limit for the initial brief, nor a limitation on how many issues the petitioner could raise on appeal. Consequently, according to Attorney Williams, there would be no reason to leave out an issue or a claim that had merit. Issues that had no merit or no chance of prevailing on appeal, however, were not raised for strategic reasons. According to Attorney Williams, it was unlikely that issues he and Attorney Pattis considered were not raised in the appeal.
This distinguishes appeals in death penalty cases from most other appeals, where appellate counsel typically winnow out weaker arguments, even if they have merit. See discussion, infra, pgs. 14. In the instant petitioner's direct appeal, more than thirty claims were raised. State v. Webb, supra, 238 Conn. 400. The Supreme Court's decision in Webb I is 181 pages in length; the Webb II decision is 23 pages in length.
Attorney Williams further testified that he raised a claim on appeal that relied on Breton II. Although a claim addressed by the Connecticut Supreme Court in Breton II pertained to Caldwell v. Mississippi, 472 U.S. 320, 341, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Attorney Williams did not raise either Mills or Caldwell issues in the petitioner's direct appeal. Attorney Williams could not recall decisions about attempting to put such claims in the petitioner's reply brief, or seeking permission to do so, or that he and Attorney Pattis intentionally arrived at such omissions after strategic decision making. A colloquy with Justice Berdon about Caldwell during the oral arguments in this case did not prompt Attorney Williams to attempt to somehow supplement the brief or file something with the Supreme Court to address the impact of cases such as Caldwell and Mills.
Caldwell and the failure to raise such a claim are discussed in greater detail below.
Attorney Pattis also testified at the habeas corpus proceeding. Attorney Pattis testified that the task of issue identification as to what to raise on appeal was his, subject to review and oversight by Attorney Williams. Attorney Pattis acknowledged that he was relatively inexperienced at the time he began working on the petitioner's appeal, although he had been in the University of Connecticut School of Law Appellate Clinic. Similar to Attorney Williams, he had no special training in death penalty cases or appeals therefrom.
Attorney Pattis recalled contacting Attorney Kent Drager, a public defender assigned to the Legal Services Unit, Office of the Chief Public Defender, who had significant experience with appeals arising from death penalty cases. Attorney Pattis was unsure, however, if he contacted Attorney Drager in the context of the petitioner's appeal or some other case. Attorney Pattis did not recall contacting trial counsel or other attorneys involved in death penalty appeals. Additionally, although Attorney Pattis did not attend any oral arguments, he did have and reviewed some briefs from other death penalty cases. Attorney Pattis indicated that there were no decisions made to leave out issues or claims due to space or page limitations. With claims such as the Caldwell claim, Attorney Pattis stated that there was no strategic decision made to not raise such claims, as it was clear to him that the jury was aware of its role. Attorney Pattis did acknowledge, however, that he now knows that the jury can have no doubt about its role and various responsibilities in capital cases, as well as that he did not look into claims such as Caldwell as well as he should have. Simply put Attorney Pattis did not appreciate the significance of certain cases, such as Caldwell.
Attorney Pattis testified that he and Attorney Williams discussed issues pertaining to jury unanimity. The release of the Ross II likely triggered Attorney Pattis considering jury unanimity claims and looking at the special verdict form used in the instant case. Attorney Pattis indicated that he likely talked to Attorneys Drager and Rademacher about such claims, but ultimately he and Attorney Williams raised no jury unanimity claims because they concluded that such claims had no merit. Similarly, Attorney Pattis recalled discussing with Attorney Drager issues that pertained to Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), but similarly raised no claim premised on Clemons. According to Attorney Pattis, if there was a colorable legal claim, he attempted to raise it in the petitioner's direct appeal.
Clemons is discussed in greater detail below.
Although the petitioner withdrew all claims directed at trial counsel's performance, Attorney Ronald Gold testified at the habeas corpus trial. Attorney Gold and Attorney Fred DeCaprio, an attorney in the Capital Defense Unit Office of the Chief Public Defender, represented the petitioner until the appeal was filed on November 2, 1991. Attorney Gold testified that he was not contacted by either Attorneys Williams or Pattis regarding the appeal and issues to raise therein. Attorney Gold was not sure if he was present at a meeting conducted at the Office of the Chief Public Defender regarding appellate issues.
This meeting is discussed in more detail below in the context of Attorney Drager's testimony.
Attorney Kent Drager also testified at the habeas corpus proceeding. Attorney Drager had considerable experience in appeals, including representing Michael Ross. Attorney Drager filed the appeal in the instant petitioner's case and continued to monitor the case, as he initially was going to be preparing the appellate brief. Attorney Drager was replaced by Attorneys Williams and Pattis, however, and transferred all materials from the underlying criminal trial to them. An undated memorandum from Attorney Drager to Attorneys Williams and Pattis details the transmittal of these materials, as well as that Attorney Drager was providing substitute appellate counsel with a courtesy copy of the brief he prepared and filed in Ross II. See Petitioner's Exhibit 42. Attorney Drager recalled delivering boxes of transcripts to Attorney Pattis while he was studying for the bar examination.
This memorandum is noteworthy for several other reasons. First, it emphasized that there were a number of issues in Ross II that were directly relevant to the instant petitioner's appeal. Second, Attorney Drager referenced a telephone call to substitute counsel and reiterated his willingness to meet with them to discuss the issues in Ross II and how they related to the petitioner's appeal. Lastly, Attorney Drager indicated that the Supreme Court would allow the filing of an initial brief — 200 pages in length — in this case. Id. The memorandum ends with Attorney Drager making himself, as well as trial defense counsel, available to appellate counsel. Attorney Drager testifled that there was, however, no real contact after he dropped off the materials and that Attorney Pattis never contacted him regarding any of the challenges to the death penalty mentioned in the memorandum.
Attorney Drager testified that he helped arrange a meeting subsequent to the oral arguments in the instant petitioner's direct appeal. The purpose of this meeting, conducted in the Office of the Chief Public Defender, Capital Defense Unit was to discuss with Attorneys Williams and Pattis how to approach issues not raised in the briefs and had even arisen during oral arguments. For example, Justice Berdon had raised a question about the jury instructions/ Caldwell issue that were not briefed. Attorney Drager recalled Attorney Pattis asking about filing a motion for permission to file a supplemental brief, which Attorney Drager advised him to file with the Supreme Court. Attorney Drager testified that he asked Attorney Pattis what happened to the Mills/McKoy issue regarding jury unanimity of mitigants. According to Attorney Drager, who had briefed such a claim in Ross II, Attorney Pattis was not clear what Attorney Drager meant by his question about the Mills/McKoy issue, and nothing further was said about this issue at the meeting.
Attorney DeCaprio, who at the time of the petitioner's criminal case had already represented individuals such as Ross and Daniels in other capital cases, testified about the role of defense counsel. One such important role in death penalty cases is preserving issues for appellate review through requests to charge, pre-trial motions and objections. According to Attorney DeCaprio, several claims were preserved for appellate review in this case, including the Mills and Caldwell claims. Daniels, a case in which Attorney DeCaprio had provided representation, significantly impacted the Mills issue in Connecticut. Attorney DeCaprio had preserved issues in both Ross and Daniels for subsequent appellate review, including the Supreme Court's Mills treatment in Ross II. The preservation of issues includes being aware of issues percolating in federal courts, in particular the United States Supreme Court, and led Attorney DeCaprio to preserve what later would come to be known as a Simmons claim in the instant petitioner's case.
Simmons v. South Carolina, 512 U.S. 154, 169, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (defendant has due process right to rebut claim of future dangerousness by informing jury that he will be ineligible for parole).
Attorney DeCaprio noted that he frequently has contact with appellate counsel regarding important legal issues in cases where he provided representation. According to Attorney DeCaprio, there were a lot of issues in the instant case that he thought should be raised on appeal, but that were not raised. He also could not recall being contacted by Attorneys Williams and Pattis.
On cross-examination, Attorney DeCaprio acknowledged that the voir dire panels in the petitioner's case were instructed that the jury would be responsible for imposing either the death penalty or life without the possibility of release. Attorney DeCaprio also acknowledged that here the state made no statements or arguments similar to what was found improper in Caldwell and Simmons, and that he and Attorney Gold made it clear to the jury that they would be deciding whether the petitioner would receive either a sentence of death or life without the possibility of release. Lastly, Attorney DeCaprio noted that the states in those two cases were weighing states, meaning that juries would weigh aggravants and mitigants, while Connecticut's pre-1995 capital felony statute was a non-weighing statute.
The petitioner presented testimony from two expert witnesses, Attorneys Robert Dunham and David Ruhnke, whose testimonies will be discussed in turn. Attorney Dunham has handled appeals and habeas corpus cases arising from capital felony convictions since 1994. According to Attorney Dunham, appellate counsel here were deficient because they failed to raise five issues/claims that were preserved by the record.
The first such issue, as identified by Attorney Dunham, is the Mills/McKoy issue of jury unanimity on mitigating factors. This issue was preserved by trial counsel's request to charge. Attorney Dunham noted that Mills, a case decided by the United States Supreme Court in 1988, was considered an important case in death penalty jurisprudence and was well-established at the time of the instant petitioner's direct appeal. Thus, reasonably effective appellate counsel should have raised a Mills claim in the petitioner's direct appeal. Attorney Dunham testified that the American Bar Association Standards (ABA Standards), both those in effect in 1989 and those adopted in 2003 subsequent to the petitioner's direct appeal, embody the duties of appellate counsel to raise all arguably meritorious issues, especially in capital felony cases.
According to Attorney Dunham, in Connecticut at the time of the petitioner's direct appeal, Ross II, Breton II and especially Daniels were the relevant cases. Daniels requires that a jury makes two unanimous findings: the existence of one or more aggravants, as well as the non-existence of any mitigants. While the decision in Ross II does not contain an extensive treatment of Mills in the manner of Breton II, the latter being released shortly before the briefing in the instant appeal was completed, Attorney Dunham opined that appellate counsel here should have employed all reasonable efforts to bring the Mills issue to the Supreme Court's attention. This could have been done via supplemental briefing upon requesting and receiving permission to file supplemental briefs in light of the recently released Breton II decision.
Attorney Dunham also testified that while the special verdict form used in the instant petitioner's criminal case indicates that the jury agreed there was a collective decision, the form does nothing to indicate the unanimity of the jurors regarding the non-existence of mitigants. The polling conducted by clerk, which was of the entire jury and not of individual jurors, also does nothing to indicate the necessary jury unanimity on the non-existence of mitigants. Attorney Dunham likened the problem to asking a double negative, leading Attorney Dunham to testify that in his opinion, there was a reasonable likelihood of confusion stemming from the special verdict form.
On cross-examination, Attorney Dunham acknowledged that the trial court brought up the issue of jury unanimity during the voir dire of each of the three panels that the eventual jurors were selected from, as did Attorney Gold. Additionally the trial court also mentioned jury unanimity on several occasions during the trial. Defense counsel also brought up the issue of jury unanimity during the penalty phase and the jury was polled subsequent to announcing its verdict. Attorney Dunham admitted that the special verdict form itself does not contain a double negative.
See, respectively, Petitioner's Exhibit 15, pg. 143; Petitioner's Exhibit 16, pgs. 1805-06; and Petitioner's Exhibit 17, pgs. 3604-05.
Defense counsel argued the following: "Unlike your verdict on aggravating factors, unlike your verdicts in the first portion of the trial, you do not have to be unanimous as to which mitigating factor exists. If twelve of you decide each that a particular mitigating factor exists — if there's twelve different mitigating factors for example but you all agree that a mitigant, whatever it may be, exists that is enough. You just have to be unanimous that twelve of you agree mitigation exists; not all twelve on one single mitigating factor." Petitioner's Exhibit 1H, pg. 3570.
The other expert witness presented by the petitioner was Attorney Ruhnke, who at the time of his testimony had tried fourteen death penalty cases to verdict, and has been involved in other capital cases. Attorney Ruhnke estimated the total number of capital felony cases that he had been involved in between thirty and thirty-five. Additionally, Attorney Ruhnke had testified as an expert witness in capital felony cases in both state and federal courts and is well-acquainted with the ABA Standards and the norms of representation in death penalty cases.
Attorney Ruhnke reviewed the materials from the underlying criminal case and the ensuing appeal. This review led him to two conclusions: first, that trial defense counsel had not rendered ineffective assistance; second, that appellate counsel had rendered ineffective assistance of counsel Furthermore, the ineffective assistance by appellate counsel pertained to issues arising out of the penalty phase and not the guilty/innocence phase.
According to Attorney Ruhnke, the instant case presented a clear violation of Mills and that it was not even arguable that such a claim was without merit. The Mills claim was, in Attorney Ruhnke's words, a winning issue if framed and presented properly on appeal. Attorney Ruhnke highlighted the trial court's instruction to the jury about mitigating factors as being a Mills error, which was compounded by the court's general statement that the jury's verdict had to be unanimous. Petitioner's Exhibit 30, pg. 3624. Such general statements by a trial court are insufficient under Mills to remedy the failure to specifically instruct the jury on reaching verdict that is unanimous as to the absence of any mitigants. The lack of an express instruction by the court is a Mills violation, according to Attorney Ruhnke, and can lead to a jury verdict such as the one in this case meaning that the jury concluded that the petitioner did not unanimously prove a mitigant. According to Attorney Ruhnke, Daniels and its progeny, such as State v. Ross, supra, 230 Conn. 285, amplify the unanimity requirement and go beyond what Mills requires. Stated somewhat differently, there must be absolute clarity that the jury unanimously rejected all mitigants. That absolute clarity is missing in the instant petitioner's case.
The trial court provided the following instruction: "Now, by virtue of the wording of the Statute that any mitigating factor will be sufficient, it is not necessary for you to unanimously agree on the same factor as long as all of you agree that you have found a mitigating factor . . ." Petitioner's Exhibit 30, pg. 3621.
See, e.g., Mills v. Maryland, supra, 486 U.S. 378 n. 11. "As the dissent ably reports, the trial judge stressed `[o]ver and over again,' . . . that the jury's findings had to be unanimous. But not once in any of those instructions did the trial court explain to the jury that if it could not reach unanimity to answer `yes,' it could do something other than answer `no.' The dissent like the trial court confuses repetition with clarity, pronouncing `over and over again' that there was only one way the jury could have understood its instructions . . . Not even the Maryland Court of Appeals believed that . . ."
Attorney Ruhnke emphasized that there was no meaningful difference between the special verdict forms at issue in Ross II and the special verdict forms in the instant case. Reasonably effective appellate counsel in the instant petitioner's direct appeal should have looked at the special verdict forms from the Ross criminal trial and compared them to what was used in the petitioner's criminal case. The fact that there were twelve signature lines on the petitioner's special verdict form does not dispel the possibility that there was a substantial risk that the jury was misinformed about having to unanimously find that was not any mitigant proven. The polling of the jury by clerk after its verdict, according to Attorney Ruhnke, similarly does not impact the meritoriousness of the Mills claim in this case.
From all the documentary evidence and the foregoing testimony, the court concludes that it was deficient performance by Attorneys Williams and Pattis to not raise a Mills claim. The issue was preserved by trial defense counsel. This court agrees the assessments provided by Attorneys Dunham, Ruhnke and Drager, that reasonably competent and effective appellate counsel would have raised a Mills claim in the petitioner's direct appeal. Cases such as Mills, Daniels, Ross II and Breton II clearly demonstrated the importance and viability of a Mills claim in the petitioner's direct appeal. But this court must then further attempt to assess whether or not this deficient performance ultimately prejudiced the petitioner's direct appeal.
The special verdict forms used by the jury in the instant case are attached as an appendix to this court's memorandum of decision. Most relevantly, the special verdict form on mitigants when given to the jury provided as follows:
MITIGATING FACTOR
HAS THE DEFENDANT PROVED BY A PREPONDERANCE OF THE EVIDENCE A MITIGATING FACTOR?
___Yes ___No
The jury completed the foregoing form by marking an "X" next to "No" and by all twelve jurors affixing their signatures. All twelve jurors had also marked an "X" next to "Yes" when answering whether the state had proven beyond a reasonable doubt several, but not all, aggravating factors.
A notable aspect of the special verdict form on mitigating factors is that the form itself does not use the term "unanimous." The form plainly identifies the petitioner's burden of proof and asks whether he has proven "a" mitigating factor. Similarly, the special verdict form on aggravating factors does not use the term "unanimous" to describe the type of verdict that the jury must reach as to the aggravants. The absence of this critical term, therefore, places even more importance on the instructions given by the court to the jury.
The trial court here gave the following relevant instructions to the jury as to the aggravating factors, the first determination the jury had to make.
"You must consider each of the aggravating factors separately on its own evidence. If you find that the State has proved an aggravating factor beyond a reasonable doubt then all of you must sign the appropriate special verdict form and mark the line where the word under the aggravating factor set out thereon before the word [`]yes[']. You mark it with an `x.' So that you find — you'll find each of the aggravating factors set out on the verdict form which is the special verdict form containing the aggravating factors. And under each aggravating factor there is a line in front of the word `yes' and the word `no.'
"On the other hand if you find that the State has failed to prove the aggravating factor beyond a reasonable doubt all of you must sign the appropriate special verdict form and mark an `x' before the word `no.'
"As to the second aggravating factor, the verdict form is broken down into the respective alternatives. And I would ask that you place an `x' before that which you have found, whether it's `yes' or `no.' So each of the alternatives is broken down under the second aggravating factor in the way of especially cruel, yes, no; especially heinous, yes, no; and especially depraved, yes, no. And at the end of the verdict form is a space for each of you to sign.
"Now, if you find that the State has failed to prove either of the aggravating factors beyond a reasonable doubt you need go no further. You don't have to determine the mitigating factor. "On the other hand if you find that the State has proved an aggravating — one of the aggravating factors beyond a reasonable doubt you must then consider the evidence on the mitigating factor.
"Now, the Statute concerning mitigating factors that is pertinent to this case reads as follows: `The Court shall not impose the sentence of death on the defendant if the Jury finds by special verdict that any mitigating factor exists. The mitigating factors to be considered concerning the defendant shall include but not be limited to the following: that at the time of the offense 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 the prosecution. Now, I've only read that one because that's the only one of the ones set out in the Statute that is claimed on the list of mitigating factors by the defendant.
Another portion of the Statute provides that the hearing shall be conducted to determine the existence of any mitigating factor concerning the defendant's character, background, and history or the nature and circumstances of the crime.
"The Statute places the burden of establishing any mitigating factor on the defendant. When a burden is placed upon a defendant such as here the standard of proof is by the preponderance of the evidence. So the burden on the defendant to prove a mitigating factor is not — and I emphasize the word not — proof beyond a reasonable doubt.
"Now, proof by a preponderance of the evidence is that level of proof where it has been shown that the mitigating factor is more likely to have been or more probable to have occurred and is more weighty to your persuasion.
"Now, the defendant has prepared a list of mitigating factors which he has presented for your consideration which will be with you during your deliberation. A mitigating factor is not a circumstance which justifies or excuses the offense, but is a circumstance which may be drawn from the evidence produced concerning the defendant's character, background or history or the nature and circumstances of the crime, if considered with fairness and mercy — that is, the due concern for human life — reduces the degree of blame for the offense or provides a basis for sentence less than death.
"You must consider all the evidence which has been presented. You'll note from the list of factors set out by the defendant that one is part of the specifically set out — part of a mitigating factor specifically set out in the Statute, his mental capacity was significantly impaired . . .
"All the other factors fall under the umbrella language of the Statute. And that umbrella language is any mitigating factor.
"The Statute does specifically set out that being under the age of eighteen is a mitigating factor. You will recall that there was a birth certificate of the defendant marked as Defendant's Exhibit 12, that his birth date was July 21st, 1963. That would have made him twenty-six years old on August 24, 1989, and therefore this statutory mitigating factor does not apply. However, this does not prevent you from considering evidence of his youthful age or that his mental and/or emotional development was below his chronological age at the time of the offense.
"Now, by virtue of the wording of the Statute that any mitigating factor will be sufficient, it is not necessary for you to unanimously agree on the same factor as long as all of you agree that you have found a mitigating factor. You must consider all the factors which the defendant listed and any other factors which might arise from the evidence and ask yourself is there a circumstance or factor which you can draw from the evidence of the defendant's character, background, and history or the nature or circumstances of the crime which provides a basis for a penalty less than death. You must approach this decision considering with fairness and mercy the standards which should apply in this case or the community. Your consideration must be applied without passion or prejudice.
"Concerning the other mitigating — the evidence concerning the other mitigating factors, the nature of the evidence that you should consider — and I'm not limiting it to any particular evidence but reminding you that you should consider the testimony of Doctor Cassens for all other mitigating factors, the records of the Board of Education as well as the testimony of the school personnel for the mitigating factors not specifically set out in the Statute. Here you may consider the testimony of the defendant's sister, Diane Bryant, about their relationship and the help the defendant gave to his disabled father; the relationship testified by the defendant's nephew, Ralph Bryant. And the testimony of Rosa Billington concerning the defendant's concern for a continued relationship with their child. And of his mother who testified that she regarded him as Dennis the menace, but did love him and had asked for help.
"If you find that the defendant has proved by a preponderance of the evidence a mitigating factor, place an `x' before the `yes.' If you find that the defendant has failed to so prove a mitigating factor place an `x' before the word `no.'
"Now, there are two separate verdict forms, one is for the aggravating factors and one is for the mitigating factors. The one for the mitigating factors simply sets out `Do you find the defendant proved a mitigating factor beyond — or by a fair preponderance of the evidence, yes or no?'
"And again, there are spaces for all of you to sign.
"Now, I've referred to certain evidence only to illustrate my instructions of law. I haven't meant to emphasize certain evidence and to avoid others. You must consider all the evidence and where your recollection differs from mine it is your recollection which must determine your verdict. Your Foreman will give everyone an opportunity of participating and will chair your discussions. He likewise will have you mark the appropriate spaces on the respective verdict forms and will have you sign your name to them. He will be the one to return those verdict forms to the Courtroom and when requested by the Clerk will deliver them up in Court. You will have with you during your deliberation all of the evidence from both phases of the trial, along with the notice of aggravating factors filed by the State and a list of the mitigating factors filed by the defense. In this State there is no principle of law for less than a unanimous verdict. So that in order to have an effective verdict all of you must agree in the same verdict . . ." (Emphasis added.) Petitioner's Exhibit 30, pgs. 3616-24.
The foregoing completed the trial court's instructions and jury began the penalty phase deliberations. The jury subsequently forwarded several communications to the court. First, "Can the Court please repeat its definition of heinous, cruel, depraved?" Id., pg. 3640. The trial court reinstructed the jury as follows: "The language of the Statute is in the alternative, cruel, heinous or depraved. So it's not necessary that the crime be committed in all three ways, one being sufficient. Either especially heinous or especially cruel or especially depraved.
"Especially means something more than being cruel or heinous or depraved. Especially is defined as distinctive.
"Now, cruel has its ordinary meaning, that is disposed to inflicting or suffering. It includes not only physical pain but also mental distress. So the striking of a person which causes physical pain or the helpless anticipation of impending can cause conscious suffering. Where it is intended it is cruel. Where a person receives pain from a repeated striking or mental distress from the anticipation of impending pain or death it can be especially cruel.
"Heinous has its ordinary meaning, that is hatefully or shockingly evil. It involves the senselessness of the crime and the helplessness of the victim.
"Depraved likewise has its ordinary meaning that is debased, corrupt, perverse, relishing in the acts causing the pain, the mental distress and the killing.
"And with that — I understand the Clerk likewise has your copies of the aggravating factors and the mitigating factors and the first part of the inventory. All that she has to do now is the last page, which would include the State's Exhibits that have been introduced in the second phase.
"So, with that instruction and that advice I'll ask you to resume your deliberations." Id., pgs.3641-42.
The jury resumed deliberations until the trial court received a second communication, which was as follows: "With respect to a verdict on aggravating factors, charge two, on each of the individual charges, especially heinous, especially cruel, and especially depraved, is a unanimous vote required to issue an `X' yes verdict? Is a unanimous vote required to issue an `X' no verdict?" Id., pgs. 3614-45. The court informed counsel that its "intention [was] to indicate that the verdict form is made out for the aggravating factor that reads that the defendant committed the offense in an especially heinous, cruel or depraved manner and a yes or no — a yes vote would be on any one of the alternatives unanimously. And that a no vote would require a finding that the State failed to prove any one of the alternatives beyond a reasonable doubt unanimously. And that the individual breakdown is to determine which of the alternatives wa[s] found unanimously." Id., pg. 3645.
The jury again returned to the courtroom to receive the requested clarification. The court gave the following clarification: "If I understand your question, in the breakdown of the Statute — as I indicated and instructed you — the first question that is asked under two is that the defendant committed the offense in an especially heinous, cruel or depraved manner. So that if you have a unanimous vote on any one of the three alternatives you could answer if you found that the State proved any one of the three alternatives beyond a reasonable doubt you could answer that question yes. You can answer that question no if the State failed to prove any one of those alternatives beyond a reasonable doubt. As to the breakdown, what the Court is asking is if you — on each one of those, in order to answer, you do have to have a unanimous verdict. So if you were to answer especially heinous all of you'd have to agree in the same verdict to answer yes or no. And the same as to especially cruel. In order to have a verdict on especially cruel you all have to agree yes or no. So for especially heinous, especially cruel and especially depraved you do have to have a unanimous verdict yes or no to mark those questions.
"Now, suppose you had a yes vote for especially heinous and a no vote for especially cruel and depraved, then you could indicate yes to the first question because one of the alternatives was found yes. If you have — in order to have a no vote you'd have to have a no vote on each of the individual questions, especially heinous, especially cruel, and especially depraved.
"So again, to go over it, if you find that the State proved beyond a reasonable doubt any one of the alternatives — especially heinous, especially cruel, or especially depraved — you have found a yes for the first answer, that the defendant committed the offense in an especially heinous, cruel or depraved manner. If you found that the State has failed to prove any one of the alternatives beyond a reasonable doubt — in other words, all three of the alternatives beyond a reasonable doubt — then, of course, you would have to find or indicate no. But for each of the breakdowns there has to be a unanimous verdict, whether it be yes or no. And that likewise is effective to your first question because you can't — unlike the mitigating factor, you can't find any factor. You must find — be unanimous on the factor that you find." (Emphasis added.) Id., pgs 3646-48.
The trial court here was emphasizing that as compared to the mitigating factors where the jury did not need to be unanimous as to which mitigant had been proven (i.e., jurors can vary on which mitigant had been proven), each of the specific aggravants required unanimity.
The jury left to continue its deliberations until a third communication was received by the trial court. The jury's third note asked the following: "With respect to a verdict on aggravating factors charge two, is a yes or no answer required on all three items, especially heinous, especially cruel, and especially depraved?" Id., pg. 3649. The prosecutor requested that the trial court specify the clarification it intended to give to the jury. The trial court noted that: "It'll be clear. So clear you won't have any problem." Id., pg. 3650. The prosecutor asked whether "the Court [was] going to instruct that if they are unable to come to agreements on, for example, two but they had an agreement on — is the Court going to cover that eventuality?" Id. The trial court responded: "Right. Yes and no. It's going to cover yes and no which they ask for." Id. That response led to the prosecutor to ask the trial court if it was to cover the situation where they're able to come to a unanimous decision on one of the parts — . . . — but not achieve unanimity on the others." Id. The court responded: "Right. But it's different on each." Id.
The jury was brought in again and the trial court gave the following clarification to the third communication: "In answer to your question, in order to make it a little more simple, if you have a unanimous verdict of yes to especially heinous, especially cruel or especially depraved you would have a yes answer to that which is labeled that the defendant committed the offense in an especially heinous, cruel or depraved manner. In order to have a unanimous verdict as to no on that first statement, that the defendant committed the offense in an especially heinous, cruel or depraved manner, you would have to have three unanimous verdicts to the questions especially heinous, especially cruel and especially depraved. And that the reason for that is because they are in the alternative. So to an effective verdict you all must agree in the same verdict. And because they are three alternatives, a yes — a unanimous yes vote on any one of the alternative verdicts results in a yes vote on that aggravating factor. In order to have a unanimous verdict — an effective unanimous verdict, however, on all three alternatives, which is no, you have to answer all individual alternatives no. I see a couple of Jurors indicating their affirmation they now understand. And rather than confuse you further I will ask you to resume your deliberations." Id., pgs. 3652-53. The jury continued deliberations and submitted no further communications prior to reaching its verdict.
The clerk read the jury's verdict: "Special verdict form. Has the State proved beyond a reasonable doubt the following mitigating — I mean aggravating factors. That the defendant committed the offense of capital felony during the commission of or during the immediate flight from the attempted commission of a sexual assault in the first degree and has previously been convicted of a sexual assault in the first degree? The answer is yes. That the defendant committed the offense in especially heinous, cruel or depraved manner. The answer is yes. Especially heinous. yes. Especially depraved, no marking." (Emphasis added.) Id., pgs. 3656-57. All twelve jurors affixed their individual signatures to the special verdict form for the aggravating factors. The trial court then ordered the verdict accepted and recorded. The jury responded affirmatively to all of them having concluded that the state proved the first aggravant, as well as that it had proven both the especially heinous and especially cruel aggravants. Id., pgs. 3657-58.
The clerk then asked about the special verdict form on mitigation. Id., pg. 3658. The jury unanimously responded that the petitioner had not proven a mitigating factor. As with the special verdict for aggravating factors, all twelve jurors affixed their individual signatures to the special verdict form for the mitigating factors. The jury's verdict on mitigation was ordered accepted and recorded and the jury again unanimously responded in the affirmative when asked about their verdict that the petitioner had not proven a mitigating factor. Id. The jury was then discharged. Id., pg. 3659.
"The critical question, then, is whether petitioner's interpretation of the sentencing process is one a reasonable jury could have drawn from the instructions given by the trial judge and from the verdict form employed in this case. See Francis v. Franklin, 471 U.S. 307, 315-16 (1985) (`The question . . . is not what the State Supreme Court declares the meaning of the charge to be, but rather what a reasonable juror could have understood the charge as meaning'), citing Sandstrom v. Montana, 442 U.S. 510, 516-17 (1979). Accord, California v. Brown, 479 U.S. 538 (1987)." Mills v. Maryland, supra, 486 U.S. 375-76.
From the foregoing recitation of the trial court's instructions to the jury, the three jury communications and the trial court's clarifying instructions, as well as the manner in which the jury completed both special verdict forms, this court concludes that the jury was properly guided to reaching unanimous verdicts. There is no discernable arbitrariness, nor is there a substantial risk that the jury was misinformed. The keystone to these conclusions is the fact that the jury knew how to indicate that it was not unanimous and, in fact, did so indicate by marking neither the "yes" nor the "no" spaces for the depraved aggravant.
Thus, from the totality of the evidence, in particular the trial court's instructions in the penalty phase, the jury's three inquiries, the court's additional clarifying instructions, as well as how the jury completed the special verdict forms, this court concludes that it would be entirely unreasonable to conclude that the jury was unaware that it had to be unanimous every time it marked either "yes" or "no." Stated somewhat differently, the court concludes that the petitioner has failed to show that the jury's verdicts, as indicated by the special verdict forms, were not unanimous. The jury demonstrated its ability to communicate a non-unanimous verdict by leaving blank the depraved aggravant portion. Contrary to Mills, the jury's marking of "No" in the special verdict form on mitigants cannot reasonably be interpreted as being a "hung no." That is, "No" meant no mitigant had been proven, not that the jury was unable to reach unanimity.
Particularly relevant for example, is defense counsel's own argument to the jury before it began its penalty phase deliberations. "Unlike your verdict on aggravating factors, unlike your verdicts in the first portion of the trial, you do not have to be unanimous as to which mitigating factor exists. If twelve of you decide each that a particular mitigating factor exists — if there's twelve different mitigating factors for example but you all agree that a mitigant, whatever it may be, exists that is enough. You just have to be unanimous that twelve of you agree mitigation exists; not all twelve on one single mitigating factor." Petitioner's Exhibit 1H, pg. 3570.
Accordingly, and based upon the foregoing, the court concludes that the petitioner has failed to prove that he would have prevailed on appeal had appellate counsel in fact raised a Mills/McKoy claim. The claim of ineffective assistance of appellate counsel for failure to raise a claim based on Mills/McKoy, or premised upon Daniels/Ross/Breton requirements of jury unanimity, is denied.
Caldwell Claim
The petitioner next claims, in paragraph IV, 12(d), that "[t]he trial court's failure to instruct the jury that its finding of the existence of an aggravating factor(s) and the nonexistence of a mitigating factor compelled the court to sentence the Petitioner to death violated Article First, Section 8 of the Connecticut Constitution and the Eighth Amendment to the United States Constitution in that the jury was not informed of its determinative role in our capital sentencing process, in violation of Caldwell v. Mississippi, 472 U.S. 320, [ 105 S.Ct. 2633, 86 L.Ed.2d 231] (1985, and State v. Breton, [ supra], and their progeny." Amended Petition, p. 6. The petitioner further asserts that appellate counsel rendered deficient performance because they did not raise a Caldwell claim on direct appeal.
"In Caldwell v. Mississippi, [ supra], the United States Supreme Court expressly concluded that `it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere.' In that case, the defendant challenged the prosecution's statement in its closing argument that, under Mississippi's capital sentencing scheme, an appellate court ultimately would decide if the defendant were to live or die. Id., 324-26. The Supreme Court vacated the defendant's death sentence reasoning that, `under the [e]ighth [a]mendment the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination . . . Accordingly, many of the limits that this [c]ourt has placed on the imposition of capital punishment are rooted in a concern that the sentencing process should facilitate the responsible and reliable exercise of sentencing discretion . . .
"`In evaluating the various procedures developed by [s]tates to determine the appropriateness of death, this [c]ourt's [e]ighth [a]mendment jurisprudence has taken as a given that capital sentencers would view their task as the serious one of determining whether a specific human being should die at the hands of the [s]tate. Thus, as long ago as . . . McGautha v. California, 402 U.S. 183, [ 91 S.Ct. 1454, 28 L.Ed.2d 711] (1971), [the court has assumed] . . . that jurors confronted with the truly awesome responsibility of decreeing death for a fellow human will act with due regard for the consequences of their decision . . . Belief in the truth of the assumption that sentencers treat their power to determine the appropriateness of death as an awesome responsibility has allowed this [c]ourt to view sentencer discretion as consistent with and — indeed as indispensable to — the [e]ighth [a]mendment's need for reliability in the determination that death is the appropriate punishment in a specific case. Woodson v. North Carolina, [ 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)] (plurality opinion). See also Eddings v. Oklahoma, [ 455 U.S. 104. 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)]; Lockett v. Ohio, [ 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)] .' (Citations omitted; internal quotation marks omitted.) Caldwell v. Mississippi, supra, 472 U.S. 329-30." (Footnote renumbered.) State v. Peeler, 271 Conn. 338, 418-20, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S.Ct. 94, 163 L.Ed.2d 110 (2005).
". . . [The majority in Peeler] recognize[d] that Caldwell presented a different factual circumstance than the present case [before the Supreme Court]. [They] believe[d], however, that Caldwell is illustrative of the applicable law, namely that `[i]t is imperative . . . that the jury instructions in a capital case clearly and unequivocally explain to the jury that it is solely responsible for determining whether the defendant will receive the death penalty or, instead, a sentence of life imprisonment without the possibility of release.' (Citations omitted.) (Emphasis added; internal quotation marks omitted.) State v. Reynolds, [ 264 Conn. 1, 125, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed. 2d 254 (2004).]"
In Breton II, the defendant raised a Caldwell claim, but this claim was not addressed on the merits because the Supreme Court on other grounds reversed the sentence of death and remanded the case for a new penalty phase. Nevertheless, the Supreme Court "[took the] opportunity . . . to recognize that great care must be taken by the trial court to ensure that a capital sentencing jury fully appreciates the momentous nature of its duty and, in particular, that the jury not be `led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere.' Caldwell v. Mississippi. supra, 329." State v. Breton, supra, 235 Conn. 245-46.
"Under § 53a-46a(f), the jury does not impose the death penalty; as in other criminal cases, the actual imposition of sentence in a capital case is the province of the court. The jury similarly does not expressly decree that the death penalty shall be imposed. The jury does, however, make specific findings on aggravating and mitigating factors from which the imposition of the death penalty or, in the alternative, a sentence of life without the possibility of release, necessarily follows. Thus, under our statutory scheme, the jury, and not the court, determines whether a defendant who has been convicted of a capital crime will be sentenced to death or to life imprisonment without the possibility of release. In view of the `[e]ighth [a]mendment's heightened "need for reliability in the determination that death is the appropriate punishment in a specific case'"; Caldwell v. Mississippi, supra, 472 U.S. 323, quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); see State v. Ross, supra, 230 Conn. 230; "the jury must be fully aware of its determinative role in our capital sentencing process." State v. Breton, supra, 235 Conn. 246.
In Breton II, "[t]he defendant claim[ed] that the trial court's jury instructions conveyed the false impression that the jury was not ultimately responsible for deciding the defendant's fate. Specifically, the defendant point[ed] to several portions of the jury charge wherein the trial court explained that the court, rather than the jury, was responsible for imposing sentence on the defendant . . .
"Other portions of the trial court's instructions, however, contained several express references to the fact that the nature of the defendant's sentence would be determined by the jury . . . In addition, the trial court carefully explained to the jury the extraordinary importance of its role in light of the unique nature of the penalty faced by the defendant . . .
"We need not decide whether, on balance, the trial court instructions accurately described the functions of the court and the jury without leading the jury to believe that it was not ultimately responsible for the sentencing decision. It is imperative, however, that the jury instructions in a capital case clearly and unequivocally explain to the jury that it is solely responsible for determining whether the defendant will receive the death penalty or, instead, a sentence of life imprisonment without the possibility of release. We therefore caution the trial court at the new hearing to refrain from the use of any language suggesting that the judge's responsibility extends beyond merely implementing the jury's findings. To this end, any instruction by the trial court indicating that the court rather than the jury will actually impose sentence should also repeat the instruction that the court is bound to impose sentence in accordance with the jury's findings on mitigating and aggravating factors and, consequently, that the responsibility for deciding whether the defendant will receive a sentence of death or life imprisonment without the possibility of release rests with the jury.
"Furthermore, in view of the determinative role of the jury in our capital sentencing scheme, we are persuaded that the special verdict form submitted to the jury should contain a prefatory statement briefly reiterating the nature of the jury's responsibility. Accordingly, under our inherent supervisory power over the administration of justice; see State v. Patterson, 230 Conn. 385, 397, 645 A.2d 535 (1994); State v. Ross, 208 Conn. 156, 158-59, 543 A.2d 284 (1986); we direct that the special verdict form shall include the following introductory statement: `As you have been instructed, your factual findings will determine whether the defendant will be sentenced to death (the defendant will receive the death penalty if you unanimously find that the state has proved the existence of an aggravating factor beyond a reasonable doubt and you unanimously find that the defendant has not proved the existence of any mitigating factor by a preponderance of the evidence) or to life imprisonment without the possibility of release (the defendant will be sentenced to life imprisonment without the possibility of release if you unanimously find that the state has not proved the existence of an aggravating factor beyond a reasonable doubt or if you unanimously find that the defendant has proved any one of the mitigating factors by a preponderance of the evidence, although you need not agree on which of the mitigating factors the defendant has proved). Accordingly, your answers to the following questions on aggravating and mitigating factors shall constitute your verdict in this case.' . . ." (Emphasis added.) (Footnotes omitted.) State v. Breton, supra, 235 Conn. 246-50.
In the instant case, citing to Caldwell as authority, trial counsel requested an instruction that included language that the jury was responsible for determining the sentence to be imposed:
We have now reached the stage of this penalty or sentencing proceeding where I, as the judge, instruct you as to the law that will govern the deliberations you are about to undertake. It is important that you understand the difference between the deliberations you are about to start and those in which you previously found the defendant guilty of the capital charge in this case. In your prior deliberations, you served as the trier of fact, that is as a fact-finder, and you determined whether certain facts required by our law had been proved, for example, whether the State had proven the elements of the capital offense beyond a reasonable doubt. In the present proceeding, although you will be presented with certain factual questions for your resolution, the central task you are about to undertake is not primarily one of fact-finding. Instead, what our law now asks you to undertake is exercise of your judgment as to what the appropriate sentence is for the defendant in this case. In arriving at your determination as to what the appropriate sentence is, you will be asked to return special verdicts setting forth your findings as to the existence of aggravating factors and mitigating factors, which I will define for you later on.
You are probably aware that in most criminal cases, if the jury finds the defendant guilty of a crime, the jury's job is then done and it is the job of the judge to decide what punishment within the limits set by the law should be imposed. But because of the serious nature of the crime in this case, out legislature has decided that in this case, the determination of sentence is not my job; it is your job. In assigning such a heavy responsibility to you, the legislature has given you some guidance as to the factors you should consider in making the decision and the legislature can tell you when you can and cannot impose a certain sentence but the legislature does not and cannot control the sentencing decision you make. It is in your power to make the sentencing decision in this case according to the law I give you and it is your responsibility to do so. In assigning you this task, the legislature is looking to you as representatives of the community at large to reflect the conscience and humanity of the community.
Now it is important to understand that because you have already found the defendant guilty of a capital crime, he is now facing only two possible sentences: 1. He can be sentenced to death 2. He can be sentenced to life in prison without possibility of release. This second sentence, life imprisonment without possibility of release, means just what it says, that the defendant will be sentenced to spend the rest of his natural life imprisoned by the State of Connecticut. This sentence of life imprisonment without the possibility of release is a very severe sentence, it is more than someone may be sentenced to for a non-capital murder and it is the minimum sentence the defendant is now facing because you have found him guilty of a capital crime. The real question before you today, therefore, is whether the defendant should be incarcerated for the rest of his natural life by the State of Connecticut or should he be put to death by the State of Connecticut.
Petitioner's Exhibit 25, pgs. 1-3.
The trial court did not give the requested instruction. Furthermore, the trial court's instructions do not specifically trigger the type of problem that arose in Caldwell: the jury being led to believe that responsibility for imposition of the death penalty lay not with the jury itself, but with the appellate tribunal reviewing the matter on appeal. Caldwell v. Mississippi, supra, 472 U.S. 323.
It bears emphasis that the problem in Caldwell emanated from "a prosecutor urg[ing] the jury not to view itself as determining whether the defendant would die, because a death sentence would be reviewed for correctness by the State Supreme Court." Id. Defense counsel in Caldwell had stressed to the jury that it was deciding the defendant's fate and that this was an "awesome responsibility." Id., pg. 324. "In response, the prosecutor sought to minimize the jury's sense of the importance of its role. Indeed, the prosecutor forcefully argued that the defense had done something wholly illegitimate in trying to force the jury to feel a sense of responsibility for its decision." Id., pg. 325. Caldwell itself thus stands for the proposition that an uncorrected suggestion — either state-induced or induced in some other manner — that the responsibility for imposition of the death penalty is somehow shifted away from the jury violates constitutional standards.
In the instant case, the prosecutor in no way suggested that the responsibility for the imposition of a sentence of death lay anywhere but with the jury. In his arguments to the jury, the prosecutor emphasized, in the context of rendering the jurors of the jury selection process, that this case's penalty phase would result in either a sentence of death or life without the possibility of release. Petitioner's Exhibit 1H, pgs. 3524-25. The prosecutor further noted ". . . that the punishments would be imposed based upon [the jury's] special verdicts, [its] findings to the basic questions: has the State proven one or more aggravating factors beyond a reasonable doubt? Has the defense proven a mitigating factor by a fair preponderance of the evidence?
"On voir dire you all indicated that you would not automatically answer your special verdicts in such a way as to impose the death penalty merely because of a capital felony conviction. That would be against the law. We're in this phase as you see now. The State must prove at least one aggravating factor beyond a reasonable doubt. And if the State doesn't, then it's life in prison.
"The defense has an opportunity to find or to persuade you that there exists a mitigating factor by a fair preponderance of the evidence. Should they do so, again, the death penalty will not ensue.
"Nor would it be proper for you to enter your deliberations right now or later on today with your minds already made up as to the proper penalty for this case. You would be working backwards. We can't allow that. You must answer the special verdicts according to the evidence as you find it and the law that's given you by [the judge]." Id., pg. 3525.
Later in the argument, when addressing the petitioner's failure to prove mitigation, the prosecutor asked of the jury: "Hasn't the defendant failed to show any mitigating factor, which in fairness or 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? Hasn't the State shown the presence of two aggravating factors here?
"Follow the law, ladies and gentlemen; assess the evidence; give it the credit you deem appropriate; apply the law to that evidence; and answer your special verdicts accordingly. And when you have done so say to yourselves, so be it. These verdicts, say to yourselves, are required by the law and the evidence. Do justice, ladies and gentlemen. Do justice. We can ask no more of you. We demand no less." Id., pg. 3553-54. The prosecutor thereby concluded his argument to the jury.
The petitioner's defense counsel began his argument to the jury by highlighting that the proceeding had ". . . now reached the time in this long trial where you have to decide whether Dan Webb lives or dies. And I want to make it clear to you what the alternative to death is.
"As you were instructed or questioned during voir dire each individually by counsel on both sides and by the Judge, the alternative to death by electrocution is life imprisonment without possibility of release. And the without possibility of release is extremely important for you to know and understand. It means what it says. There's no legalese that has another meaning to it.
"By virtue of your verdict in the first phase of the trial wherein you convicted Mr. Webb of capital felony you have taken him out of the class of what we would for a lack of a better term call a regular murder. If convicted of murder the, not a capital felony, the normal sentence would be sixty years. And you probably read about the overcrowding problem and about early release. There's a thing called good time to which people are entitled which could even shorten a sentence. So this sentence of sixty years is finite obviously and it could be shortened. Again, by virtue of your verdict, convicting him of capital felony, you've taken him out that category and he's in a more select class. He, if you decide that he should live, he'll be locked up for the rest of his life without possibility of release.
"Now, we're moving on to determine whether aggravating factors exist, whether mitigating factors exist. We're moving on to that portion of the trial where you decide whether he comes into a more select class. And that is those people convicted of capital felony who should be put to death as opposed to being locked up for the rest of their life." Id., pp. 3557-59.
Subsequently, defense counsel addressed the jury's decision regarding aggravants and mitigants. "If you do not find that either aggravating factor exists your job is over because without an aggravating factor the sentence is life without possibility of release. However, if you do find that either one or both of the aggravating factors exist you must consider whether we, the defense, have proven a mitigating factor by a preponderance of the evidence. Have we [tipped] those scales of justice? Remember the fifty-one percent/forty-nine percent we all talked about? That's a significantly lower standard than beyond a reasonable doubt. Have we tipped those scales proving a mitigating factor? [The judge] will instruct you as to what those mitigating factors are when he gives you — or excuse me — what those standards of proof are when he give you his instructions.
"Unlike your verdict on aggravating factors, unlike your verdicts in the first portion of the trial, you do not have to be unanimous as to which mitigating factor exists. If twelve of you decide each that a particular mitigating factor exists — if there's twelve different mitigating factors for example but you all agree that a mitigant, whatever it may be, exists that is enough. You just have to be unanimous that twelve of you agree mitigation exists; not all twelve on one single mitigating factor." Id., pgs. 3568-70.
While summarizing the evidence present in support of mitigation, defense counsel asked: "And where is [the defendant] today? As you well know, he's either going to be locked up for the rest of his life without possibility of release or he's going to be electrocuted." Id., at 3587. At a later point while still addressing mitigation evidence, defense counsel accentuated that ". . . mitigation goes to what the punishment is. If I'm — if you read me to say give Dan Webb a break, the break is lock him up for the rest of his life. No matter what happens, that's where he's going to be. He's going to be locked up. He's going to be punished severely and by his acts he's already forfeited his right to live in a free society with the rest of us. What does that mean? All right. If you agree with the defense and you find a mitigating factor then he doesn't get the electric chair. He'll be at Somers for the rest of his life, the State prison. He'll be confined with four bare walls . . . He has no freedom to do anything without jailer's permission. And justly so . . .
"Now, you recall the voir dire when you said that you would remain fair and impartial at the penalty hearing, that you would not automatically impose the death penalty if you found Dan Webb guilty of capital felony. I remind you of that . . ." Petitioner's Exhibit 29, pgs. 3596-97.
Defense counsel again highlighted the jury's duty in determining the aggravants and mitigants and the punishment that would result from the jury's determinations. "Also, if you find aggravating factors exist, one or both, we ask you to consider lingering doubt as to whether death is the appropriate punishment in this case. If there is that lingering doubt then death, we submit, is not appropriate punishment. So you do have to find the aggravating factors beyond a reasonable doubt. If you do that, at the end of everything, after you've heard the mitigation, think about where there's a lingering doubt, is death appropriate based on Dan Webb's character and background, the facts and circumstances of this case.
"Now, we try to be as thorough as we possibly can. We try to raise whatever mitigation we think is warranted by the record. But we're not perfect. If there's something that you think of, based on Dan Webb's character and background, based on the facts and circumstances in this case that warrants mitigation — in other words, that warrants a sentence of less than death, please feel free to find it. Please do our job if we've dropped the ball.
"Now, finally, our legislature by virtue of the Statute that it wrote, has reserved the death penalty for only those few people — those few people who have committed a capital felony for whom there's absolutely no mitigation in their backgrounds. So as I told you at the outset how we narrow this case, this case has already, by virtue of your verdict, determined that Dan Webb is going to be treated differently than other murderers. Now the State is asking that he be treated differently than some of the other capital felonies. In other words, put him to death as opposed to lock him up. We think that there is sufficient mitigation, that there is mitigation in Dan Webb's character and background that he does not deserve to die. And I ask you to return a verdict that would allow him to live . . ." Petitioner's Exhibit 1H, pg. 3598-99.
In its instructions to the jury, as part of explaining the special verdict forms on aggravants and mitigants, the trial court gave the following relevant instructions: "Now, the Statute concerning mitigating factors that is pertinent to this case reads as follows: `The Court shall not impose the sentence of death on the defendant if the Jury finds by special verdict that any mitigating factor exists . . ." Petitioner's Exhibit 30, pp. 3617-18.
The trial court then instructed the jury but did not, of course, give the type of instruction the Connecticut Supreme Court implemented in State v. Breton, supra, 235 Conn. 250, as that decision was released several years after the petitioner's criminal trial. The question then becomes whether the jury somehow was led to believe, whether through the court's instructions, arguments by counsel or the special verdict forms, that ultimately it was not responsible for the imposition of the death penalty. The trial court here did not state anything that would lead the jury to believe the court would do more than merely implement the jury's findings. A fair reading of the underlying record does not support the conclusion that the jury was somehow led to believe that it was not responsible as the ultimate determiner of whether the petitioner would be executed or serve a sentence of life without the possibility of release. There is nothing here that somehow indicates that the jury failed to act with due regard for the consequences of their decision, nor that the jury's awesome responsibility was not lived up to, nor that the jury's determination that death is the appropriate punishment is unreliable.
Attorneys Williams and Pattis testified that they did not raise a Caldwell claim and that they could not recall making a strategic decision to leave out such a claim. Attorney Williams recalled the colloquia with Justice Berdon during oral argument regarding Breton II and the jury being clear that it was responsible for imposing the penalty of death. Attorney Williams acknowledged that he did not supplement the petitioner's appellate brief with a letter citation to Caldwell and its bearing on the petitioner's case. According to Attorney Pattis, it was clear to him from a review of the record that the jury was aware of its role, but conceded that he now is aware that the jury can have no doubt regarding its role. Attorney Pattis admitted that he did not appreciate the significance of Caldwell and did not look into the Caldwell issue as well as he should have.
Expert witness Attorney Dunham testified that in the instant case, the trial judge told the jury not to worry about sentencing and never told the jury it was their duty to make the sentencing determination. Thus the jury may have been left with the impression that it was only a fact-finder and not responsible for imposing the death penalty. The petitioner's other expert witness, Attorney Ruhnke, testified that in his opinion the first paragraph of the trial court's instructions do not conform with Caldwell. Attorney Ruhnke, as did Attorney Dunham, testified that reasonably competent appellate counsel would have raised a Caldwell claim in the petitioner's direct appeal.
The first paragraph is as follows: "Ladies and gentlemen, my compliments to counsel for the thoroughness in which they've presented their respective causes to you. And now, ladies and gentlemen, you'll recall that when you were first questioned concerning your selection on this case that in the event the Jury returned a verdict of guilty on the charge of capital felony that you would be required to hear evidence concerning aggravating and mitigating factors and to make a decision as to their existence or lack of existence." Petitioner's Exhibit 1H, pg. 3603. This court disagrees with Attorney Ruhnke's description that this language somehow violates Caldwell. The trial court in no way told the jury it was merely a fact-finder. The jury's decision regarding the existence or non-existence of aggravating and mitigating factors would determine whether the petitioner was sentenced to death or life without the possibility of release. It is not reasonable to conclude that the jury thought that someone else or some other entity was ultimately responsible for the petitioner's sentence of death.
Given all of the foregoing, this court is unable to distinguish the instant case from Breton II. While the trial court's instructions here did not explicitly advise the jury in such a way as to avoid a Caldwell violation, the court's failure did not rise to the level of violating Caldwell. As evidenced by Breton II, it was reasonable for appellate counsel to raise a Caldwell claim on appeal. The court finds, therefore, that appellate counsel were deficient for failure to raise such a claim in the instant petitioner's direct appeal. This court is unable to conclude, however, that the petitioner would have prevailed on appeal. Had a Caldwell claim been raised, the outcome in this case would have been the identical or similar to Breton II: the Supreme Court giving prophylactic prospective guidance and directing trial courts to use specific language in special verdict forms so that Caldwell violations are never triggered.
Accordingly, the petitioner's claim that appellate counsel rendered ineffective assistance for failure to raise a Caldwell claim must be denied. Although reasonably competent appellate counsel should have raised such a claim, the petitioner has failed to show that the Supreme Court would have reversed and remanded the matter for a new penalty phase proceeding.
Simmons Claim
The petitioner next claims in paragraph IV, 12(m) that his "sentence of death is unlawful under Article First, Section 8 of the Connecticut Constitution and the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, in that the trial court, although requested to do so, failed to instruct the jury that a sentence of life imprisonment precluded any possibility of release, even though this was the only sentencing alternative to death in this matter under Conn. Gen. Stat § 53a-35b and Conn. Gen. Stat. § 53a-46a(f)." Amended Petition, pgs. 6-7. This claim is best referred to as a Simmons claim, as it relies upon Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (defendant has due process right to rebut claim of future dangerousness by informing jury that he will be ineligible for parole). The petitioner alleges that appellate counsel were ineffective because they did not raise a claim on direct appeal challenging the trial court's failure to give the requested instruction.
"In Simmons v. South Carolina, supra, 512 U.S. 157, the prosecutor argued to the jury that it should consider the petitioner's future dangerousness to society when fixing the appropriate punishment. Concerned that the jury might not understand that the future threat to society would be minimal if the defendant were not sentenced to death because the alternative sentence was life in prison without possibility of parole, the defendant requested that the court define `life imprisonment' to the jury. Id., 158. The trial court refused to give the requested instruction. Id., 159-60. Ninety minutes into its deliberations, the jury sent a note to the judge inquiring whether a life sentence carried with it the possibility of parole. The judge then gave the following instruction: `You are instructed not to consider parole or parole eligibility in reaching your verdict. Do not consider parole or parole eligibility. That is not a proper issue for your consideration. The terms life imprisonment and death sentence are to be understood in their [plain] and ordinary meaning.' Id., 160. The plurality of the United States Supreme Court found that the `instruction actually suggested that parole was available but that the jury, for some unstated reason, should be blind to this fact. Undoubtedly, the instruction was confusing and frustrating to the jury . . .' Id., 170. The plurality concluded that `[b]ecause truthful information of parole ineligibility allows the defendant to "deny or explain" the showing of future dangerousness, due process plainly requires that he be allowed to bring it to the jury's attention by way of argument by defense counsel or an instruction from the court.' Id., 169." State v. Johnson, 253 Conn. 1, 99, 751 A.2d 298 (2000).
In Simmons itself, the United States Supreme Court stressed that "[t]he Due Process Clause does not allow the execution of a person `on the basis of information which he had no opportunity to deny or explain.' Gardner v. Florida, 430 U.S. 349, (1977). In [ Simmons], the jury reasonably may have believed that petitioner could be released on parole if he were not executed. To the extent this misunderstanding pervaded the jury's deliberations, it had the effect of creating a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration. This grievous misperception was encouraged by the trial court's refusal to provide the jury with accurate information regarding petitioner's parole ineligibility, and by the State's repeated suggestion that petitioner would pose a future danger to society if he were not executed. Three times petitioner asked to inform the jury that, in fact, he was ineligible for parole under state law; three times his request was denied. The State thus succeeded in securing a death sentence on the ground at least in part, of petitioner's future dangerousness, while at the same time concealing from the sentencing jury the true meaning of its non-capital sentencing alternative namely, that life imprisonment meant life without parole. We think it is clear that the State denied petitioner due process . . ." (Emphasis added.) (Footnote omitted.) Simmons v. South Carolina, supra, 512 U.S 161-62.
Although the Simmons court concluded that a due process violation had occurred, this violation did not occur merely because the petitioner's future dangerousness was presented to the jury. "This Court has approved the jury's consideration of future dangerousness during the penalty phase of a capital trial, recognizing that a defendant's future dangerousness bears on all sentencing determinations made in our criminal justice system. See Jurek v. Texas, 428 U.S. 262, 275 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (noting that `any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose'); California v. Ramos, 463 U.S. 992, 1003, n. 17 (1983) (explaining that it is proper for a sentencing jury in a capital case to consider `the defendant's potential for reform and whether his probable future behavior counsels against the desirability of his release into society')." (Emphasis added.) Simmons v. South Carolina, supra, 512 U.S. 162.
"[T]he federal and state criminal systems have accorded different weights at different times to the penological goals of retribution, deterrence, incapacitation, and rehabilitation." State v. Higgins, 265 Conn. 35, 63, 826 A.2d 1126 (2003); see also Harmelin v. Michigan, 501 U.S. 957, 999, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J. concurring). Future dangerousness, in some fashion, clearly factors into all these goals, albeit least into pure retribution. Rehabilitation centers on preventing future dangerousness, while deterrence and incapacitation most obviously involve assessing a defendant's future threat to society.
The instant petitioner argues that trial counsel "anticipated" the Simmons holding, which was released approximately three years after the petitioner's penalty phase, and "requested a charge that informed the jury that `life imprisonment without possibility of release means just what it says, that the defendant will be sentenced to spend the rest of his natural life imprisoned by the state of Connecticut' (Defendant's Request to Charge, ¶ I). This charge was not given. Nor was the jury instructed that life imprisonment in Connecticut meant that there was no possibility of release. In the charge, the trial court never defined life imprisonment, nor did the court inform the jury what would happen if they found a mitigating factor — other than that the sentence imposed by the court would be `a penalty less than death' (TT 3621)." Petitioner's Pre-trial brief, pg. 24.
The defendant's request to charge for the penalty phase is Petitioner's Exhibit 25. The requested language is found at page 3 of that exhibit.
Acknowledging that this case is distinguishable from Simmons, because here there was no explicit or overt statement by the prosecutor emphasizing the petitioner's future dangerousness, the petitioner argues that no express argument of future dangerousness is needed for a Simmons violation. In support of this argument the petitioner cites to Shafer v. South Carolina, 532 U.S. 36, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001), and Kelly v. South Carolina, 534 U.S. 246, 256, 122 S.Ct 726, 733, 151 L.Ed.2d 670 (2002), which are progeny of Simmons.
In Shafer,"[d]uring the sentencing proceeding in Shafer's case, the State introduced evidence of his criminal record, past aggressive conduct, probation violations, and misbehavior in prison. The State urged the statutory aggravating circumstance that Shafer had committed the murder in the course of an attempted robbery while armed with a deadly weapon . . . The defense presented evidence of Shafer's abusive childhood and mental problems.
"Near the completion of the parties' sentencing presentations, the trial judge conducted an in camera hearing on jury instructions. Shafer's counsel maintained that due process, and our decision in Simmons v. South Carolina, 512 U.S. 154 (1994), required the judge to instruct that under South Carolina law a life sentence carries no possibility of parole. The prosecutor, in opposition, urged that Shafer was not entitled to a Simmons instruction because `the State has not argued at any point . . . that he would be a danger to anybody in the future, nor will we argue [that] in our closing argument . . .' . . . Shafer's counsel replied: `The State cannot introduce evidence of future dangerousness, and then say we are not going to argue it and [thereby avoid] a charge on the law . . . They have introduced [evidence of a] post arrest assault, [and] post arrest violations of the rules of the jail . . . If you put a jailer on to say that [Shafer] is charged with assault . . . on [the jailer], that is future dangerousness.' . . . Ruling that `the matter of parole ineligibility will not be charged,' the trial judge stated: `I find that future dangerousness [was] not argued[;] if it's argued [in the prosecutor's closing], it may become different' . . ." (Citations omitted.) Shafer v. South Carolina, supra, 532 U.S. 41-42.
Several hours into their sentencing deliberations, the jurors sent asking for clarification on two parole-related questions that clearly indicated the jury was contemplating the possibility of Shafer's release. Shafer's counsel asked that the court to instruct the jury, in accordance with state statute, that "life imprisonment" meant, inter alia, until the person's natural death, as well ineligibility for parole, early release, and sentence reduction credits. The court did not give the requested instruction. Instead, the court instructed the jury that: "[The state statute] as applies to this case in the process were in, states that, quote, for the purposes of this section life imprisonment means until the death of the offender, end quote. `Parole eligibility or ineligibility is not for your consideration.'" Id., at pg. 44.
The United States Supreme Court observed that "South Carolina has consistently refused to inform the jury of a capital defendant's parole ineligibility status." (Footnote renumbered.) Id., pg. 48. Post- Simmons, South Carolina amended the law governing the sentencing proceeding in capital felony cases and the Shafer case arose out of the new statutory scheme. The Supreme Court went on to "hold that whenever future dangerousness is an issue in a capital sentencing proceeding under South Carolina's new scheme, due process requires that the jury be informed that a life sentence carries no possibility of parole." Id., pg. 51.
"At the time [the Supreme Court] decided Simmons v. South Carolina, 512 U.S. 154 (1994), South Carolina was one of only three States — Pennsylvania and Virginia were the others — that `ha[d] a life-without-parole sentencing alternative to capital punishment for some or all convicted murderers but refuse[d] to inform sentencing juries of th[at] fact.' Id., at 168 n. 8. Since Simmons, Virginia has abandoned this practice . . ."
In Schafer "[the] jury left no doubt about its failure to gain from defense counsel's closing argument or the judge's instructions any clear understanding of what a life sentence means. The jurors sought further instruction, asking: `Is there any remote chance for someone convicted of murder to become elig[i]ble for parole?' . . . cf. Simmons, 512 U.S., at 178 (O'Connor, J.) (`that the jury in this case felt compelled to ask whether parole was available shows that the jurors did not know whether or not a life-sentenced defendant will be released from prison') . . .
"The jury's comprehension was hardly aided by the court's final instruction: `Parole eligibility or ineligibility is not for your consideration.' . . . That instruction did nothing to ensure that the jury was not misled and may well have been taken to mean `that parole was available but that the jury for some unstated reason should be blind to this fact.' Simmons, 512 U.S., at 170 (plurality opinion) . . .
"In sum, a life sentence for Shafer would permit no `parole, community supervision . . . early release program . . . or any other credits that would reduce the mandatory life imprisonment . . . this reality was not conveyed to Shafer's jury by the court's instructions or by the arguments defense counsel was allowed to make." (Emphasis added; internal citations omitted.) Shafer v. South Carolina, supra, 532 U.S. 53-54.
In Kelly, yet another case emanating out of South Carolina only a year after Shafer, the South Carolina Supreme Court construed evidence presented by the prosecutor ". . . as going, not to future dangerousness, but `to [Kelly's] character and characteristics' . . . The error in trying to distinguish Simmons this way lies in failing to recognize that evidence of dangerous `character' may show `characteristic' future dangerousness, as it did here. This, indeed, is the fault of the State's more general argument before us, that evidence of future dangerousness counts under Simmons only when the State `introduc[es] evidence for which there is no other possible inference but future dangerousness to society' . . . (emphasis in original). Evidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms.
"The prosecutor accentuated the clear implication of future dangerousness raised by the evidence and placed the case within the four corners of Simmons. He had already expressed his hope that the jurors would `never in [their] lives again have to experience . . . [b]eing some thirty feet away from such a person' as Kelly . . . The State Supreme Court made no mention of this, despite its thrust: since the jurors were unlikely to be spending any time in prison, they would end up 30 feet away from the likes of Kelly only if he got out of prison, as he might if parole were possible. The argument thus echoed the one made in Simmons itself that the imposition of the death penalty was an act of `self-defense.' Both statements `implied that petitioner would be let out eventually if the jury did not recommend a death sentence.' 512 U.S., at 178 (O'Connor, J., concurring in judgment) (emphasis in original).
"And there was more. The state court to be sure considered the prosecutor's comparison of Kelly to a notorious serial killer, variously calling him a `dangerous' `bloody' `butcher.' The court nonetheless thought it could somehow cordon off these statements as raising nothing more than a call for retribution . . . But the import of the argument simply cannot be compartmentalized this way. Characterizations of butchery did go to retribution, but that did not make them any the less arguments that Kelly would be dangerous down the road . . . They complemented the prosecutor's submissions that Kelly was `more frightening than a serial killer' . . . and that `murderers will be murderers,' . . . Thus was Kelly's jury, like its predecessor in Simmons, invited to infer `that petitioner is a vicious predator who would pose a continuing threat to the community.' Simmons, supra, at 176 (O'Connor, J., concurring in judgment)." (Footnotes and internal citations omitted.) Kelly v. South Carolina, supra, 254-56.
Both Attorneys Williams and Pattis testified that they tried to keep abreast of both federal and state developments that impact cases in which they represent clients. Attorney Williams testified that he was aware Simmons was released close to the date the petitioner's brief was filed. Attorney Pattis could not recall if he was aware of the holding in Simmons prior to filing the petitioner's initial brief. Attorney Pattis testified that a Simmons claim was addressed in State v. Ross, 269 Conn. 213, 849 A.2d 648 (2004), which was officially released on June 1, 2004. Appellate counsel did not, however, raise a claim premised on Simmons in the instant case.
The United States Supreme Court decided Simmons on June 17, 1994. The petitioner filed his initial brief on July 25, 1994.
The Connecticut Supreme Court's discussion of the Simmons claim can be found at pages 339-41.
Attorney Dunham testified that appellate counsel in capital cases have a duty to be aware of cases that are pending on appeal, as well as the issues percolating in such cases. Thus, reasonably diligent appellate counsel would know the capital cases pending in the United States Supreme Court, such as Simmons was at the time of the petitioner's direct appeal. Given that Simmons was released while the petitioner's appeal was pending, the holding in Simmons applied to pending appeals such as the petitioner's. Attorney Dunham acknowledged that there was no explicit future dangerousness argument made during the petitioner's penalty phase proceeding, but that Simmons itself also did not involve an explicit argument, just a generalized statement about future dangerousness. According to Attorney Dunham, the aggravants charged by the state in this case, combined with the prosecutor's arguments could lead the jury to think that the petitioner was a recidivist and that his level of violence was escalating, thereby implicitly triggering concerns about the petitioner's future dangerousness.
The petitioner's other expert witness, Attorney Ruhuke, testified that the Simmons issue was very apparent to him because the trial judge did not give a specific instruction addressing future dangerousness. Attorney Ruhnke also conceded that the prosecutor here never explicitly argued the petitioner's future dangerousness to the jury. Although the facts of the petitioner's criminal case were very different from those in Simmons itself, Attorney Ruhnke opined that such differences should not have prevented appellate counsel from raising a Simmons claim. Attorney Ruhnke saw no tactical reason to omit a Simmons claim.
In the instant matter, the petitioner acknowledges that there was no express argument of future dangerousness, but argues that "there was ample evidence introduced by the state to cause the jury to consider future dangerousness. First, there was evidence of the defendant's previous conviction for sexual assault 1st in 1983. Finding that a defendant again attempted to rape a woman, after having been previously convicted of this crime, would easily persuade jurors of petitioner's future dangerousness. Second was the nature of the crime itself, where the state alleged and the jury found that the defendant committed the offense in an especially heinous, cruel or depraved manner." Petitioner's Pre-trial Brief, pg. 26.
It is particularly noteworthy that the state and the defendant stipulated to the fact that the defendant had previously been convicted of sexual assault in the first degree. This stipulation severely undermines the petitioner's present argument that evidence of this prior conviction, a valid statutory basis for the state seeking the death penalty, was also some impermissible indication of future dangerousness.
It is both easily discernable and readily apparent that the petitioner's argument, in essence, attempts to elevate the aggravants proven by the state into being the "overt" examples of future dangerousness. Stated somewhat differently, the petitioner's argument converts the charged aggravants that support the imposition of the death penalty — absent proven mitigation — to be the cause of a due process violation. Simmons and its progeny demonstrate, however, that the ultimate concern regarding unchecked suggestions of future dangerousness is the risk that the jury makes a "false" choice based on a misunderstanding. Although both defense counsel and the prosecutor correctly argued to the jury that the only alternative to a sentence of death was incarceration for life without the possibility of release, the petitioner faults the court for not giving a future dangerousness instruction. Again, as evidenced by Simmons, Shafer and Kelly, a trial court does not have an obligation to give such an instruction until it needs to correct a potential misunderstanding that could lead to the jury making a "false" choice. Here, any such obligation was never triggered.
For example, the petitioner's own defense counsel emphasized to the jury that the only alternative to the death penalty was life without the possibility of release. See, e.g., Petitioner's Exhibit 1H, pgs. 3559, 3587 and 3596.
Given the foregoing, the court cannot conclude that appellate counsel were deficient for failing to raise a claim on appeal premised on Simmons and the trial court's failure to instruct the jury that a sentence of life imprisonment precluded any possibility of release. It is not reasonable to conclude that the jury was somehow mislead to thinking that the petitioner might be released into the community. Both trial counsel emphasized that the petitioner would either be sentenced to death or be incarcerated for life without the possibility of release, the latter being the only sentencing alternative to death. Applying the Smith/Small standard, the petitioner has shown neither deficient performance nor, even if proven, that an appellate tribunal would have concluded that there was trial court error The Simmons claim is without merit.
Clemons Claim
The petitioner also claims in paragraph IV, 12(o) of his amended petition that his "sentence of death is unlawful under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, in that (1) the trial court improperly instructed the jury concerning the aggravating factor of `especially cruel, heinous or depraved,' set forth in Conn. Gen. Stat. § 53(a)-46a(h)(4); (2) that Connecticut's death penalty statute was in fact a `weighing' statute, as defined under Clemons v. Mississippi, 494 U.S. 738, [ 110 S.Ct. 1441, 108 L.Ed.2d 725] (1990), Richmond v. Lewis, 506 U.S. 40 . . . (1992); (3) that the Connecticut Supreme Court had incorrectly concluded that Connecticut's death penalty statute was not a `weighing' statute in State v. Ross, [ supra], 230 Conn. 183 (1994); and (4) that the state failed to demonstrate beyond a reasonable doubt that a properly instructed jury would have concluded that the error was harmless under the standards articulated in Clemons v. Mississippi, 494 U.S. at 753-54." The petitioner faults appellate counsel for not raising these claims on appeal.
In Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), the court reviewed a death sentence imposed by the jury after it found two aggravating factors and weighed those factors against the mitigating circumstances. Although one of the two aggravants was subsequently invalidated, the Mississippi Supreme Court upheld the imposition of the death penalty. Id., 743-44. The United States Supreme Court held that the federal constitution permitted the state appellate court to affirm the validity of the sentence either by reweighing the sentencing evidence or by reviewing the sentencing proceeding for harmless error. Id., 745-54[.]" State v. Webb, supra, 238 Conn. 481. The petitioner's appellate attorneys here did raise a Clemons claim, which was denied by the Supreme Court after it applied harmless error analysis.
The Supreme Court "note[d] that overwhelming evidence supported the jury's finding of the aggravating factor set forth in § 53a-46a(h)(1). To find this factor, the jury was required to conclude only that the murder of the victim occurred in the course of an attempted sexual assault or during the flight from that crime. The evidence in this case unequivocally supported the jury's conclusion that the defendant murdered the victim during the commission of or flight from an attempted sexual assault. In the circumstances of this case, we are convinced beyond a reasonable doubt that the trial court's improper instructions concerning the `especially heinous, cruel or depraved' aggravating factor did not affect the jury's deliberations concerning the other alleged aggravant. The defendant, therefore, was not harmed by the trial court's improper instruction." (Footnote renumbered.) State v. Webb, supra, 238 Conn. 483.
"This is not to say that improper instructions regarding an aggravating factor may never result in the invalidation of the death sentence if the jury's verdict also includes the finding of a valid aggravating factor. Rather, we conclude that, if the state meets its burden of demonstrating beyond a reasonable doubt that the jury's finding of a valid aggravating factor was not improperly affected by the evidence or instructions concerning the invalid aggravant, the imposition of the death penalty may stand despite the constitutional error. Whether the invalid aggravant affected the jury's deliberations must be determined on a case-by-case basis."
The petitioner's Clemons claim in his habeas corpus petition hinges on the determination of whether Connecticut's death penalty statute was either weighing or non-weighing. As evident from the petitioner's own allegations in the amended petition, the Connecticut Supreme Court determined in Ross II that the death penalty statute at the time of the petitioner's offense and subsequent conviction was a non-weighing statute. This court is, of course, obviously bound by the Supreme Court's determination.
"Although the doctrine of stare decisis permits a court to overturn its own prior cases in limited circumstances, the concept of binding precedent prohibits a trial court from overturning a prior decision of an appellate court. This prohibition is necessary to accomplish the purpose of a hierarchical judicial system. A trial court is required to follow the prior decisions of an appellate court to the extent that they are applicable to facts and issues in the case before it, and the trial court may not overturn or disregard binding precedent. See, e.g., Stuart v. Stuart, 297 Conn. 26, 45-46, 996 A.2d 259 (2010) (`it is manifest to our hierarchical judicial system that [the Supreme Court] has the final say on matters of Connecticut law and that the Appellate Court and Superior Court are bound by our precedent'); Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195, 676 A.2d 831 (1996) (`It is axiomatic that a trial court is bound by Supreme Court precedent . . . This principle is inherent in a hierarchical judicial system . . . [R]evision of Supreme Court precedent is not the trial court's function.' [Citations omitted.])." Potvin v. Lincoln Service and Equipment Company, 298 Conn. 620, 650, 6 A.3d 60 (2010).
Attorney Dunham testified that Attorneys Williams and Pattis did a good job raising the substance of the Clemons claim on appeal, but not as to the harmfulness aspect of the claim. A more successful challenge about the harmfulness, according to Attorney Dunham, would have entailed, among other things, asking the Supreme Court to reconsider its holding in Ross II that Connecticut's death penalty statute at the time was a weighing statute. Attorney Dunham concluded that appellate counsel were deficient for not asking the Supreme Court to reconsider that holding.
This court's own research has located another decision in which a habeas corpus claim was raised that appellate counsel rendered deficient performance for failure to challenge the Connecticut Supreme Court's determination that the death penalty statute was non-weighing. See Cobb v. Commissioner of Correction, Superior Court, judicial district of Tolland, Docket No. CV 00-0003238 (November 8, 2004, Fuger, Jr., J.) ( 2004 Ct.Sup. 17427). Although detailed and extensive, the habeas court's discussion of the Clemons claim in Cobb v. Commissioner of Correction is helpful and highly persuasive and, therefore, is repeated below in its entirety.
This court takes judicial notice that an appeal was filed in Cobb v. Commissioner of Correction on December 7, 2004, and assigned docket number A.C. 26090. On February 8, 2005, the respondent filed a motion to transfer the appeal to the Supreme Court, which was granted on April 1, 2005, and the matter was assigned docket number S.C. 17401. Mr. Cobb, as is the instant petitioner, is a litigant in the consolidated habeas corpus matter, In re: Claims of Racial Disparity in Death Penalty Cases.
The petitioner in Cobb v. Commissioner of Correction "`contend[ed] that [the petitioner] received ineffective assistance of counsel on appeal as a result of the failure of his appellate counsel, [Attorney Kent Drager,] to raise a federal constitutional challenge, under Clemons v. Mississippi, 494 U.S. 738 (1990), to the validity of his death sentence based on the sentencing panel's finding and reliance on an erroneous and invalid aggravating factor (`especially heinous')' . . .
"Initially, it must be noted that one of the claims the petitioner raised on direct appeal was `that § 53a-46a, the statute governing sentencing in capital felony cases, is unconstitutionally vague. Specifically, the [petitioner] maintain[ed] that the provision in subsection (d) of § 53a-46a directing the capital sentencing authority to consider "all the facts and circumstances of the case" in determining the existence of mitigation authorizes the capital sentencing authority to reject evidence regarding mitigation on irrelevant and improper grounds.' State v. Cobb, 251 Conn. 285, 482-83, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S.Ct. 106, 148 L.Ed.2d 64 (2000) ( Cobb II).
"In Buchanan v. Angelone, 522 U.S. 269, 275-77, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998), the United States Supreme Court stated: Our cases have distinguished between two different aspects of the capital sentencing process, the eligibility phase and the selection phase. In the eligibility phase, the sentencing authority narrows the class of defendants eligible for the death penalty, often through consideration of aggravating circumstances. In the selection phase, the sentencing authority determines whether to impose a death sentence on an eligible defendant. It is in regard to the eligibility phase that we have stressed the need for channeling and limiting the sentencing authority's discretion to ensure that the death penalty is a proportionate punishment and therefore not arbitrary or capricious in its imposition. In contrast in the selection phase, we have emphasized the need for a broad inquiry into all relevant mitigating evidence to allow an individualized determination.
"In the selection phase, our cases have established that the sentencing authority may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. However, the state may shape and structure the capital sentencing authority's consideration of mitigation so long as it does not preclude the sentencing authority from giving effect to any relevant mitigating evidence. Our consistent concern has been that restrictions on the sentencing determination not preclude the sentencing authority from being able to give effect to mitigating evidence. Our decisions suggest that at the selection phase, complete discretion is constitutionally permissible.' (Emphasis in original.) (Internal citations and quotation marks omitted.) State v. Cobb, supra, 251 Conn. 483-84.
"The Connecticut Supreme Court went on to note in Cobb II that ` although § 53a-46a is not a balancing statute, the federal constitution permits a state to adopt a death penalty scheme that requires the capital sentencing authority to balance aggravating factors against mitigating factors at the sentencing hearing. Obviously, in order to balance aggravating factors against mitigating factors, a capital sentencing authority first must be permitted to consider evidence regarding aggravation. Thus, the federal constitution necessarily permits a capital sentencing authority to consider evidence relating to aggravation at the selection phase of a sentencing hearing. Consequently, the defendant's argument that § 53a-46a(d) violates the constitution by permitting a capital sentencing authority to consider evidence regarding the circumstances of the crime and aggravation is without merit.' (Emphasis added.) (Internal citations omitted.) Id., at 485-86.
"Death penalty statutes have been identified as being either `weighing' or `non-weighing.' In weighing states such as Mississippi at the time of Clemons, `the finding of aggravating factors is part of the jury's sentencing determination, and the jury is required to weigh any mitigating factors against the aggravating circumstances. Clemons v. Mississippi, supra, 494 U.S. 745. In states that have adopted non-weighing death penalty statutes, `aggravating circumstances serve only to make a defendant eligible for the death penalty and not to determine the punishment, [and] the invalidation of one aggravating circumstance does not necessarily require an appellate court to vacate a death sentence and. remand to a jury.' Id., discussing Zant v. Stephens, 462 U.S. 862, 103 S.Ct 2733, 77 L.Ed.2d 235 (1983).
"The petitioner correctly indicates that `[i]n Clemons the [United States] Supreme Court held that under death penalty schemes where aggravating factors play a "weighing" role in the determination of punishment, it is constitutional error under the Eighth and Fourteenth Amendments for the sentencing authority to give weight to an unconstitutionally vague aggravating factor even if other valid aggravating factors exist. Clemons, 494 U.S. at 748-52; accord. Stringer v. Black, 503 U.S. 222 (1992); Richmond v. Lewis, 506 U.S. 40 (1992).' . . .
"In Clemons, `[t]he Mississippi Supreme Court upheld the death sentence imposed on Chandler Clemons even though the jury instruction regarding one of the aggravating factors pressed by the State, that the murder was especially heinous, atrocious, or cruel," was constitutionally invalid in light of [the United States Supreme Court's] decision in Maynard v. Cartwright, 486 U.S. 356 (1988). Although . . . the Federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless error review, [the United States Supreme Court] vacate[d] and remand[ed], because it [was] unclear whether the Mississippi Supreme Court correctly employed either of these methods.' Clemons v. Mississippi, supra, 494 U.S. 741.
"The central finding in Clemons was that `the opinion below [was] unclear with respect to whether the Mississippi Supreme Court did perform a weighing function, either by disregarding entirely the "especially heinous" factor and weighing only the remaining aggravating circumstance against the mitigating evidence, or by including in the balance the "especially heinous" factor as narrowed by its prior decisions and embraced in [ Clemons].' Id., at 751.
"Additionally, the United States Supreme Court noted that `the court's statement, [that a remaining valid aggravating circumstance will nonetheless support the death penalty verdict after one aggravating circumstance is found to be invalid or unsupported by evidence,] can be read as a rule authorizing or requiring affirmance of a death sentence so long as there remains at least one valid aggravating circumstance. If that is what the Mississippi Supreme Court meant, then it was not conducting appellate reweighing as [the U.S. Supreme Court] understand[s] the concept. An automatic rule of affirmance in a weighing State would be invalid under Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings v. Oklahoma, 455 U.S. 104 (1982), for it would not give defendants the individualized treatment that would result from actual reweighing of the mix of mitigating factors and aggravating circumstances. Additionally, because the Mississippi Supreme Court's opinion is virtually silent with respect to the particulars of the allegedly mitigating evidence presented by Clemons to the jury, we cannot be sure that the court fully heeded . . . cases emphasizing the importance of the sentencing authority's consideration of a defendant's mitigating evidence." (Internal citation omitted.) Clemons v. Mississippi, supra, 494 U.S. 751-52.
"The import of the difference between weighing and non-weighing states is no more evident than when an invalid aggravating circumstance was utilized in arriving at a death sentence. In a weighing state, the mix of mitigating factors and aggravating circumstances is altered by the `removal' of an invalid aggravating circumstance. As the United States Supreme Court stated in Stringer v. Black, 503 U.S. 222, 232, 112 S.Ct 1130, 117 L.Ed.2d 367 (1992), `when the sentencing body is told to weigh an invalid factor in its decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death's side of the scale. When the weighing process itself has been skewed, only constitutional harmless error analysis or reweighing at the trial or appellate level suffices to guarantee that the defendant received an individualized sentence.'
"In a non-weighing state, contrary to a weighing state, there is no `thumb' that is removed via the invalidation of an aggravating circumstance. A removal of — an invalid aggravating circumstance, so long as there is at least one other aggravating circumstance, would leave in place the death penalty. `With respect to the function of a state reviewing court in determining whether or not the sentence can be upheld despite the use of an improper aggravating factor, the difference between a weighing State and a non-weighing State is not one of semantics . . . but of critical importance. In a non-weighing State, so long as the sentencing body finds at least one valid aggravating factor, the fact that it also finds an invalid aggravating factor does not infect the formal process of deciding whether death is an appropriate penalty.' Id., at 231-32.
"It is important to note that this is the eligibility phase, as distinguished from the selection phase. Potential ramifications, CT Page 3757 if there [are] any, would impact the eligibility phase, not the selection phase."
"[I]n Georgia, [a non-weighing state,] the jury must find the existence of one aggravating factor before imposing the death penalty, but aggravating factors as such have no specific function in the jury's decision whether a defendant who has been found to be eligible for the death penalty should receive it under all the circumstances of the case. Instead, under the Georgia scheme, in making the decision as to the penalty, the fact finder takes into consideration all circumstances before it from both the guilt-innocence and sentence phases of the trial. These circumstances relate both to the offense and the defendant.' (Internal quotation marks omitted.) Stringer v. Black, supra, 503 U.S. 229-30.
"In Georgia, unlike some other States, the jury is not instructed to give any special weight to any aggravating circumstance, to consider multiple aggravating circumstances any more significant than a single such circumstance, or to balance aggravating against mitigating circumstances pursuant to any special standard. Thus, in Georgia, the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion apart from its function of narrowing the class of persons convicted of murder who are eligible for the death penalty.' Zant v. Stephens, supra, 462 U.S. 873-74.
"In State v. Ross, 230 Conn. 183, 238 n. 22, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995) ( Ross II), the Connecticut Supreme Court identified after comparison to Georgia's statute at issue in Zant, the death penalty sentencing system in effect in Connecticut at the time of the instant petitioner's underlying criminal matter as `non-weighing.' `The finding of an aggravating factor only plays a role in narrowing the class of persons who are eligible for the death penalty and does not guide the capital sentencing authority in exercising its discretion as to whether death is the appropriate punishment in any specific case.' (Emphasis added.) Id., citing Zant v. Stephens, supra, 462 U.S. 873-75.
"The Ross II court noted the following in another footnote: `Structurally, our statute resembles the death penalty system that was enacted in Georgia and found constitutional in Zant v. Stephens, supra, 462 U.S. 870-72.' State v. Ross, supra, 230 Conn. 236 n. 19."
"The petitioner argues, however, that the Connecticut Supreme Court's `characterization' of this state's death penalty statute, at the time of Ross II and the instant matter, as `non-weighing' is flawed. The petitioner reasons as follows: [T]hat characterization was based on the portion of the pre-1995 statute providing that a finding of a single mitigating factor precluded imposition of a death sentence without regard to the number and weight of the statutory aggravating factors found in Gen. Stats. § 53a-46a(g) (Rev. to 1989). That aspect of the statute was properly deemed "non-weighing" because once a mitigating factor was found to exist, no weighing was required.
"Under the pre-1995 statute, the underlying determination of whether a non-statutory mitigating factor existed did, however, require the sentencing authority to engage in a weighing process. Gen. Stats. § 53a-46a(d) provides that in order to determine whether the evidence presented was sufficient to establish a non-statutory mitigating factor, the sentencing authority was required to evaluate that evidence in light of `all of the facts and circumstances of the crime.' The `facts and circumstances' to be considered specifically included consideration of any aggravating factors found. As the parties discussed in colloquy with the court, the process required under § 53a-46a(d) has been described as `internal weighing.'
"In Richmond, the Supreme Court held that statutory language in Arizona that, like § 53a-46a(d), required the sentencing authority to determine if the evidence of mitigating circumstances was `sufficiently substantial to call for leniency' in light of the aggravating circumstances, created a `weighing' statutory scheme. In Richmond, the sentencing court had found two statutory aggravating factors, one of which (`especially heinous and cruel') was improperly found. Applying in its prior precedent in Richmond, the Court held the resulting death sentence invalid and sustained habeas corpus relief.' (Emphasis in original.) (Internal citation omitted.) . . .
"In essence, the petitioner posits that while Connecticut's pre-1995 death penalty statute is a non-weighing statute, it nevertheless encompasses weighing because the process of determining whether a mitigant exists involves the consideration of both aggravants and mitigants. This argument at first glance appears to have merit, because aggravating and mitigating circumstances are being simultaneously considered. Upon closer analysis, however, it is evident that this argument is without merit. See State v. Cobb, supra, 251 Conn. 485-86.
"In Ross II, the Supreme Court reviewed the pre-1995 `death penalty statutory provisions as a whole. In General Statutes §§ 53a-46a through 53a-46c, the legislature has established a three-tiered pyramid, in which each tier narrows the class of defendants that may be found eligible for the death penalty. At the first tier above the base of the pyramid, our statute separates capital felony homicides from other homicides, and authorizes bifurcated death penalty hearings only for those who have been found guilty of or have pleaded guilty to a capital felony. General Statutes § 53a-46a(b). At the second tier, the statute further limits the death penalty by requiring the sentencing authority to find, beyond a reasonable doubt, the existence of at least one statutorily delineated aggravating factor. General Statutes § 53a-46a(b), (e), (f) and (h). At the third and final tier, our statute separates, from all cases in which a penalty of death may be imposed, those cases in which it shall be imposed by requiring a sentencing authority to find, by a preponderance of the evidence, whether a mitigating factor exists. General Statutes § 53a-46a(e). In making this determination, the capital sentencing authority must consider the existence of each of the mitigating factors listed in the statute at § 53a-46a(g) and of any other mitigating factor concerning the defendant's character, background and history, or the nature and circumstances of the crime. General Statutes § 53a-46a(b). If the sentencing authority fails to find the existence of a mitigating factor, after having found the existence of an aggravating factor, the court must sentence the defendant to death. General Statutes § 53a-46a(f). Otherwise, the court must impose a sentence of life imprisonment without the possibility of release.' (Emphasis added; internal citations omitted.) State v. Ross, supra, 230 Conn. 236-38.
Particularly noteworthy is the fact that the 1995 amendments to the death penalty statute added a fourth pier to the pyramid. State v. Rizzo, 266 Conn. 171, 230, 833 A.2d 363 (2003). "This change in our capital sentencing scheme has effectively expanded the selection phase to include, in addition to the determination of whether the defendant has established mitigation, the weighing of aggravation factors against the mitigating factors. It has also resulted in a significant gap in the sentencing scheme — namely, unlike our former 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.' (Emphasis added.)"
"The petitioner's claim that Connecticut's pre-1995 non-weighing statute nevertheless involves weighing focuses on what the Ross II court called the third and final tier. Specifically the claim goes to the portion of the third-tier process (i.e., selection phase) in which a. determination is made as to whether the death penalty shall be imposed, based on a a consideration of all statutory and non-statutory mitigating factors. General Statutes (Rev. 1989), § 53a-46a(b), (g) and (h). It is the unrestricted holistic process of determining whether there is any potential mitigating non-statutory factor that is the focus of the petitioner's argument that there is `internal weighing.'
"In the parlance of federal death penalty jurisprudence, the second tier was known as the `eligibility phase,' and the third tier was known as the `selection phase.'" State v. Rizzo, supra, 266 Conn. 230.
"As identified by the Ross II court, the third tier separates those cases in which the death penalty shall be imposed from all cases in which a penalty of death may not be imposed. This reduction is accomplished by having the sentencing authority find, by a preponderance of the evidence, whether a mitigating factor exists. While the sentencing authority must consider the existence of all statutory and non-statutory mitigants in making this determination, and this consideration ultimately may incorporate what also provides the basis for aggravating factors by way of considering the `nature and circumstances of the crime,' such consideration is not akin to the discretion in weighing. The consideration goes not to whether the aggravants outweigh the mitigants, or vice versa, but to whether a mitigant has been proven by a preponderance of the evidence.
"The petitioner cites to Richmond for the proposition that Connecticut's death penalty statute is similar to Arizona's, a weighing statute. A careful review of Richmond as well as the underlying decision in Richmond v. Lewis, 948 F.2d 1473 (9th Cir. 1990), leads this court to conclude that the Arizona statute at issue in Richmond is distinguishable from Connecticut's death penalty statute. The Arizona statute at issue in CT Page 3740 Richmond `require[d] the sentencing authority to weigh aggravating and mitigating circumstances — to determine the relative substance of the two kinds of factors.' (Emphasis added.) Richmond v. Lewis, supra, 506 U.S. 47. A death sentence arrived at after a weighing determination of the `relative substance' of both aggravating and mitigating factors is discernable from the non-weighing statutory scheme in Connecticut.
"`The Arizona sentencing statute provides: In determining whether to impose sentence of death the court shall take into account the aggravating and mitigating circumstances included in . . . this section and shall impose a sentence of death if the court finds one of more of the aggravating circumstances . . . and that there are no mitigating circumstances sufficiently substantial to call for leniency.' (Emphasis added.) Richmond v. Lewis, supra, 506 U.S. 47. The emphasized language clearly adds a weighing or balancing dimension absent from Connecticut's statute for purposes of the instant petition."
The Rizzo Court had the following to say regarding the weighing process: `The words "outweigh" and "are outweighed by" [in CGS § 53a-46a(f] very strongly suggest a balancing scale being the greater, more weighty, more compelling, more important, or more significant, than the other side. All of the relevant dictionary meanings of the word "outweigh" that we have consulted disclose a meaning consistent with this suggestion . . .' In addition, the legislative history of PA 95-19 firmly buttresses this very strong linguistic indication. That history is replete with considered statements that the legislature intended the weighing process to incorporate a balance whereby the aggravant was merely more significant or weighty than the mitigants.' State v. Rizzo, supra, 266 Con. 202-03."
"From the foregoing, in particular the discussions in Ross II of Connecticut's death penalty statute and the eligibility and selection phases in Cobb II, this court concludes that it is incorrect to refer to this process of consideration as `internal weighing.' Such a label is a misnomer and should not be applied to the third-tier mitigant determination. The consideration during the selection phase of whether some mitigant has been proven, which permits the consideration of the nature and circumstances of the crime, is clearly distinguishable from the discretion-infused balancing in the eligibility phase of weighing statutes. The result of the foregoing analysis and this court's conclusions is that there was — and is — no legal basis for a Clemons-based challenge on petitioner's direct appeal. This result finds further support in Attorney Drager's testimony, which the court finds highly credible.
"Attorney Drager testified that he attempted to raise a challenge based on the Clemons, Stringer and Richmond line of cases . . . Because the Connecticut Supreme Court previously had held in Ross II that Connecticut is not a weighing state, appellate counsel avoided directly raising a Clemons claim. Instead of a frontal assault based on Clemons, Mr. Drager used what is best described as a flanking maneuver. A critical aspect of this flanking maneuver was specifically and intentionally not raising a Clemons-based weighing claim.
"Attorney Drager deliberately strove `to avoid using the word "weighing" because . . . the court already said it's not weighing, and [he] was trying to get [the Supreme Court] to see that even if you don't call it weighing, there's still some kind of an internal balancing, whatever word you want to use, that an invalid aggravant is still going to have some effect on the mitigating finding. That's what [he] was trying to persuade [the court] here without calling it weighing.' . . .
"Mr. Drager drew attention to issue 41E. in petitioner's brief on direct appeal. In that issue, he contended that:
Defendant also questions the conclusion by the Ross Court that there is no internal weighing process in our statutory scheme. See Ross, 230 Conn. at 239. Other schemes that are just like Connecticut's have been determined as a matter of federal law to include internal weighing in the mitigation decision. See Richmond v. Lewis, 506 U.S. 40 (1992) (re: internal weighing in Arizona's scheme); Smith v. McCormick, 914 F.2d 1153, 1164 (9th Cir. 1990) (re: internal weighing in Montana's scheme); Espinosa v. Florida, 505 U.S. 1079 (1992) (re: indirect weighing in Florida); see also People v. Bean, 560 N.E.2d 258, 291-92 (Ill. 1990) (re: internal weighing in Illinois scheme). To the extent that such internal weighing actually exists, it is unconstitutional because it is standardless and unreviewable. Indeed, to the extent it actually exists, it is certainly clear that defendant in this case is entitled to a new penalty hearing because of the three-judge panel's erroneous and invalid finding of the separate `especially heinous' aggravating factor. The placement of such an erroneous and invalid aggravant on death's side of the scale clearly renders the resulting death sentences invalid. Stringer v. Black, 503 U.S. 222 (1992) . . . (so holding).
"Mr. Drager also testified that he attempted to utilize issues XXI and XXII to similarly raise an indirect Clemons claim."
"Without specifically citing to Clemons, Attorney Drager astutely and purposefully attempted to avoid a weighing-based argument and sought to have the Supreme Court `consider the [harmful] effect of the erroneous aggravation finding on . . . the mitigation finding.' . . . His strategy was to somehow challenge the `internal weighing `without directly doing so. The tactics he had to employ in this challenge, however could not involve a direct attack premised on weighing. The Connecticut Supreme Court's prior holding that the death penalty statute at issue was a non-weighing statute doomed such a direct frontal attack to failure. State v. Ross, supra, 230 Conn. 239; State v. Webb, 238 Conn. 389. 481-83, 680 A.2d 147 (1996) ( Webb II). The petitioner now attempts to attack this clever oblique approach as ineffective.
"In this case, Attorney Drager carefully considered how best to raise the `internal weighing' claim. The tactical decisions he made to effectuate this strategy demonstrate a keen and insightful understanding of the federal constitutional standards and their application to Connecticut's death penalty statute. The court cannot conclude, after judging Mr. Drager's actions from his perspective at the time, that his performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law. The petitioner has not affirmatively shown that Mr. Drager's choice not to directly raise a Clemons claim resulted in a miscarriage of justice. The claim ineffective assistance of appellate counsel must fail, therefore." (Citations omitted; footnotes renumbered.) Cobb v. Commissioner of Correction, supra, 2004 Ct. Sup. 17457-66.
"Indeed, the approach by counsel on appeal showed a thorough and subtle approach to an issue that ultimately proved unsuccessful, but was nonetheless a highIy sophisticated, cogent move on his part."
This court finds the foregoing discussion and treatment from Cobb v. Commissioner of Correction to be highly persuasive. Given the Supreme Court's explicit determination that the applicable death penalty statute was non-weighting, this court concludes that the petitioner's Clemons [claims are without merit. Appellate counsel did not render deficient performance for failure to ask the Supreme Court to reconsider its determination that Connecticut had a non-weighing death penalty statute at the time of the instant petitioner's offense and conviction. Nor did appellate counsel render deficient performance as otherwise asserted in this claim. Even if this court were to assume that the petitioner has shown deficient performance, which he has not, the petitioner has failed to show that he would have prevailed on appeal had such a claim in fact been raised.
Lockett/Penry Claim
The final claim to be addressed is the petitioner's claim in paragraph IV, 12(l), namely that "Connecticut's death penalty statute is unconstitutional under both the Connecticut and the United States Constitutions in that it legally authorizes the jury to refuse to consider constitutionally relevant mitigating evidence and that it allows a jury to preclude a finding that the defendant's mitigating evidence is `mitigating in nature' unless there is a nexus between the mitigation and the offense. This portion of the death penalty statute is found at Con. Gen. Stat. § 53a-46a(d). Because the statute is therefore unconstitutional, Petitioner's sentence of death is invalid and had appellate counsel raised this claim, the penalty decision would have been reversed." Amended Petition, pg. 6. This claim is best identified as a Lockett/Penry claim because it is premised on Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and progeny such as Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) ( Penry I).
"Underlying Lockett and Eddings is the principle that punishment should be directly related to the personal culpability of the criminal defendant. If the sentencer is to make an individualized assessment of the appropriateness of the death penalty, `evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.' . . . Moreover, Eddings makes clear that it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence . . . Only then can we be sure that the sentencer has treated the defendant as a `uniquely individual human bein[g]' and has made a reliable determination that death is the appropriate sentence . . . `Thus, the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime.' . . ." (Citations omitted.) Penry v. Lynaugh, 492 U.S. 319.
"`[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, [ supra, 438 U.S. 604]. A sentencer also may not refuse to consider, as a matter of law, any relevant mitigating evidence . . . Eddings v. Oklahoma, [ supra, 455 U.S. 114]. [I]t does not follow from Lockett and its progeny that a [s]tate is precluded from specifying how mitigating circumstances are to be proved . . . Walton v. Arizona, 497 U.S. 639, 649, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), overruled in part on other grounds, Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). The United States Supreme Court has never . . . held that the state must affirmatively structure in a particular way the manner in which juries consider mitigating evidence. Buchanan v. Angelone, [ 522 U.S. 269, 276-77, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998)] . Nor has the court ever suggested that jury consideration of mitigating evidence must be undirected and unfocused . . . [or] concluded that [s]tates cannot channel jury discretion in capital sentencing in an effort to achieve a more rational and equitable administration of the death penalty. Franklin v. Lynaugh, 487 U.S. 164, 181, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988).' (Emphasis in original; internal quotation marks omitted.) State v. Rizzo, supra, 266 Conn. 291-92." State v. Colon, 272 Conn. 106, 371-72, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 1265 S.Ct. 102, 163 L.Ed.2d 116 (2005).
"[W]hen a legislature broadly defines capital offenses and provides for the narrowing of culpability for those offenses by jury findings of aggravating circumstances, as the Connecticut legislature has chosen to do here; see General Statutes § 53a-46a; the only other constitutional requirement under the eighth amendment at the sentencing phase is the jury's consideration of mitigating factors. Penry v. Lynaugh, [ supra, 492 U.S. 319-28]. The jury must be allowed to consider and give effect to mitigating evidence relevant to a defendant's character, record, or the circumstances of the offense in order that the punishment be directly related to the personal culpability of the defendant. Id., 327-28; see also Franklin v. Lynaugh, [ supra, 487 U.S. 179]; Eddings v. Oklahoma, supra, 455 U.S. 113-15 . . . [T]he only requirement of the eighth amendment is that the jury must be allowed `to consider and give effect to mitigating evidence relevant to a defendant's character or record or the circumstances of the offense.' Penry v. Lynaugh, supra, 327-28." State v. Peeler, supra, 271 Conn. 449.
The petitioner claims that a Lockett/Penry violation occurred as a result of the prosecutor's argument to the jury and the trial court's failure to properly instruct the jury. In his argument to the jury, the prosecutor indicated that the jury would be going through a two-step process to determine the existence of non-statutory mitigants. "First, you shall determine whether the particular factor concerning the defendant's character, background or history or the nature and circumstances of the crime has been established by the evidence. Second, you shall determine further whether that factor is mitigating in nature considering all the facts and circumstances of the case. The Statute continues, 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 to either extenuate or reduce the degree of his culpability or blame for the offense or to otherwise constitute a basis for a sentence less then death. The burden of establishing a mitigating factor is on the defendant." Petitioner's Exhibit 1H, pp. 3537-38.
The petitioner acknowledges, as he must, that the prosecutor's comments describing the two-step process were not incorrect as a matter of law. Petitioner's Post-trial Brief, pg. 58 n. 27, citing to State v. Cobb, supra, 251 Conn. 486. ("Section 53a-46a(d) simply directs the sentencer to make its determination as to whether a proven factor is mitigating in nature in light of all of the evidence that has been presented in the case; it cannot reasonably be construed to authorize a capital sentencer to base its determination on non-evidentiary factors"). The trial court did not, in fact, instruct the jury to follow such a two-step process regarding mitigation. Nevertheless, the petitioner asserts that "the trial court's instructions, coupled with the state's argument, created a reasonable probability that jurors believed that they were authorized under law to refuse to consider and give effect to what is inherently mitigating evidence. In particular, a jury cannot be misled as to what is inherently mitigating evidence, or how such evidence is to be assessed in making the ultimate determination on whether death is the appropriate sentence. The instruction here misled the jury." Petitioner's Post-trial Brief, pg. 60.
The Connecticut Supreme Court has rejected similar challenges that General Statutes § 53a-46a(d) is unconstitutional. See, e.g., State v. Ross, 269 Conn. 213, 347, 849 A.2d 648 (2004); State v. Rizzo, 266 Conn. 171, 291, 833 A.2d 363 (2003); State v. Ross, 230 Conn. 183, 283-84, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995). The petitioner cites to and relies on the United States Supreme Court decision in Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004), which was decided June 24, 2004. The petitioner also acknowledges "that the [Connecticut] Supreme Court was . . . requested to reconsider its ruling in State v. Ross, 269 Conn. 213 (2004), in light of the Tennard decision. That request was denied without discussion." Petitioner's Post-trial Brief, pg. 61 n. 28.
The petitioner concedes that "his argument, and the testimony of Attorney Dunham, do ask this Court to rule on a matter previously decided in a contrary manner by our Supreme Court. With respect to this claim, however, the intervening Tennard decision has never been expressly discussed by that Court with respect to this claim." Id., pg. 61. Attorney Dunham testified that although the trial court's instructions regarding mitigation were not a constitutional violation, a constitutional violation occurs as a result of the manner in which the jury was allowed to deliberate. This is so, according to Attorney Dunham, because the jury may have been led to believe that it was to consider the mitigants on an individual basis instead of collectively. Furthermore, had the non-statutory mitigants been considered collectively, the jury could have concluded that the mitigants "outweighed" the aggravants given the circumstances of the case. Attorney Dunham opined that reasonably competent appellate counsel would have raised a Lockett/Penry claim premised on the prosecution's affirmative misstatement that was not corrected by the trial court. This court disagrees with Attorney Dunham's conclusions.
As discussed previously, Connecticut was not a weighing state at the time of the petitioner's offenses and trial. "Weighing" used in this context means viewing the mitigants together in the aggregate.
Based upon the foregoing, and in light of the jurisprudence from this state's Supreme Court, this court cannot conclude that appellate counsel were deficient in not raising a Lockett/Penry claim on direct appeal. The prosecutor's remarks and the trial court's instructions did not create a nexus that required a mitigant to relate to the offense. The jury in this case was not prevented from considering and giving effect to mitigating evidence relevant to the petitioner's character or record or the circumstances of the offense. The petitioner's claim premised on Lockett/Penry is without merit. The petitioner has demonstrated neither that appellate counsel were deficient for raising such a claim on direct appeal, nor that he would have prevailed on appeal if a Lockett/Penry claim had in fact been raised.
CONCLUSION
Based upon all the foregoing, the petition for a writ of habeas corpus is denied. Judgment shall enter in favor of the respondent.
APPENDIX
SPECIAL VERDICT FORM
HAS THE STATE PROVED BEYOND A REASONABLE DOUBT THE FOLLOWING AGGRAVATING FACTORS?
I. THAT THE DEFENDANT COMMITTED THE OFFENSE OF CAPITAL FELONY DURING THE ATTEMPTED COMMISSION OF/OR DURING THE IMMEDIATE FLIGHT FROM THE ATTEMPTED COMMISSION OF A SEXUAL ASSAULT IN THE FIRST DEGREE AND HE HAS PREVIOUSLY BEEN CONVICTED OF A SEXUAL ASSAULT IN THE FIRST DEGREE.
X Yes ___ No
II. THAT THE DEFENDANT COMMITTED THE OFFENSE IN AN ESPECIALLY HEINOUS, CRUEL OR DEPRAVED MANNER
X Yes ___ No
ESPECIALLY HEINOUS?
X Yes ___ No
ESPECIALLY CRUEL?
X Yes ___ No
ESPECIALLY DEPRAVED?
X Yes ___No
/S/ SIGNATURES OF EACH JUROR
MITIGATING FACTOR
HAS THE DEFENDANT PROVED BY A PREPONDERANCE OF THE EVIDENCE A MITIGATING FACTOR?
___ Yes X No
/S/ SIGNATURES OF EACH JUROR