Michael B. Ross was put to death at 2:01 on the morning of Friday, May 13, 2005, in Connecticut’s first execution in forty-five years, and he got there by fighting his own lawyers. The last two opinions in this collection were handed down in the four days before: on May 9 the Supreme Court of Connecticut upheld a finding that he was competent to give up his remaining appeals, and on May 12 the Second Circuit turned away his sister, Donna Dunham, who had asked as his “next friend” to stop the execution. Between the first opinion in 1988 and those last days, the Connecticut court and the federal appeals court wrote eleven opinions about him, and two of them are the length of a book.
The crimes were committed in eastern Connecticut between Thanksgiving Day 1983 and June 1984. The court, following Connecticut’s practice for victims of sexual assault, gives them their first names and initials: Robyn S., nineteen, taken from the grounds of Uncas on Thames State Hospital in Norwich; April B. and Leslie S., both fourteen, picked up hitchhiking to Jewett City on Easter Sunday 1984; and Wendy B., seventeen, pulled over a stone wall along Route 12 in Lisbon that June. On June 28, 1984, at the Lisbon town hall, Ross began confessing to the state police. A jury convicted him of six counts of capital felony, and he was sentenced to death in 1987.
The 1994 opinion, the great central document here, affirmed the convictions but ordered a new penalty hearing, because the trial court had kept from the jury evidence the defense said would show his mental illness, including a letter from a court-appointed psychiatrist. He was sentenced to death again in 2000, and the 2004 opinion upheld that sentence. By then Ross wanted to stop appealing. The opinions of January 2005 deal with the efforts of his father, Dan Ross, and others to intervene on his behalf, and with the special counsel the trial court appointed to argue that he was not competent to make the choice. The earliest opinion, from 1988, is about something else entirely: a newspaper’s request for part of his trial transcript.
Ross confessed, and none of these opinions reviews a claim that he did not commit the killings; they are about whether and how Connecticut could put him to death, and after 2004 about whether he could choose to let it. The court’s accounts of his mental condition, including the sexual sadism diagnosis at the center of the mitigation fight, are summaries of competing expert testimony, not findings. The killings he admitted in New York, and the Connecticut counts dismissed for lack of territorial jurisdiction, appear only in the procedural history.
These are public records of the Supreme Court of Connecticut and the Second Circuit. The court printed the four victims under first names and initials, as Connecticut does in sexual assault cases, and we have kept its practice. His father and his sister, who brought proceedings in their own names, are named as the courts named them, and so are the lawyers, special counsel, psychiatrists and psychologists and the victims in the other capital cases the court compared his to. The widow of a psychiatrist who gave a statement about her husband’s letter is given initials.
This is the longest court record in this batch, about 930,000 characters across eleven opinions, and it is printed complete from the Caselaw Access Project text of the Connecticut Reports and the Federal Reporter, in date order. We closed words split across lines only where the joined form appears elsewhere in the text, and nothing has been spell-checked.
State of Connecticut v. Michael Ross
(13416)
Peters, C. J., Shea, Callahan, Glass and Hull, Js.
Argued June 3
decision released July 5, 1988
Alan Neigher, with whom was Judith M. Trutt, for the appellant (movant Connecticut Law Tribune).
C. Robert Satti, Sr., state’s attorney, for the appellee (state).
[OPINION BY Per Curiam. type=majority]
Per Curiam.
The dispositive issue in this case is whether the movant, the Connecticut Law Tribune (Tribune), is entitled to a portion of the transcript of the prosecution of the defendant, Michael Ross, for capital felony murder. In order to obtain access to this transcript, the Tribune filed a motion to intervene in the Ross trial at a time subsequent to its completion, when the defendant’s convictions and sentence were already on appeal to'this court. The trial court denied the motion. This appeal is here by virtue of a certification granted pursuant to General Statutes § 52-265a and Practice Book § 4177.
The facts relevant to this appeal are not at issue. Michael Ross was charged in three cases with having committed capital felony murder. The defendant was convicted as charged, and, after a penalty phase hearing, was sentenced to death on July 6,1987. His murder trial was, in virtually all of its phases, open to the public. In November, 1987, Joseph Calve, a reporter for the Tribune, sought to order specific portions of the Ross trial transcript from the court reporter, Victoria Stockmal. The Tribune offered to pay the court reporter for preparing the transcript on its behalf. After consultation with the trial court, the court reporter’s office refused the Tribune’s request.
The Tribune filed a motion to intervene and for access to certain portions of the Ross transcript in the trial court on January 11,1988. At that time, the transcript had not been filed with the clerk of the court. It was not established whether the reporter’s notes had as yet been transcribed. Neither the defendant nor the state objected to having the transcript made available to the Tribune. The motion was heard on March 10, 1988.
In its denial of the Tribune’s motion, the trial court relied on General Statutes § 51-61 (c). This statute provides: “Each official court reporter and assistant court reporter shall, when requested, furnish to the court, to the state’s attorney, or any assistant state’s, or deputy assistant state’s attorney, and to any party of record, within a reasonable time, a transcript of the proceedings, or such portion thereof as may be desired.” The court determined that it lacked authority to permit the Tribune to intervene in a criminal proceeding for the purposes of the motion then being pursued, and that, as a non party, the Tribune was not entitled, under the terms of § 51-61 (c), to access to the Ross transcript. The court emphasized that, during the Ross trial, the Tribune had “had equal free access to all the proceedings of the subject case.”
In its appeal to this court, the Tribune continues to maintain that it should be afforded immediate access to those portions of the Ross trial transcript that it has requested. It claims that the trial court’s denial of its motion was in error because: (1) it had a right to intervene for this purpose; (2) it had a statutory right to obtain the transcript under § 51-61 (c); and (3) it had a constitutional right to obtain the transcript under the first amendment to the United States constitution.
At oral argument of this appeal, the state’s attorney informed this court that the portion of the transcript sought by the Tribune has now been prepared and will soon be filed with this court in conjunction with the defendant’s appeal in the underlying cases. See Practice Book § 4078. Once a transcript becomes part of a court file, it becomes a court record to which the public and hence the press undoubtedly have a right of access. General Statutes § 52-161; Doe v. Manson, 183 Conn. 183, 188, 438 A.2d 859 (1981).
In our view, these developments enable us to issue an order providing the Tribune access to the relevant portion of the Ross transcript pursuant to the inherent supervisory authority over the appellate process which we may exercise in the interests of justice. State v. Smith, 207 Conn. 152, 162, 540 A.2d 679 (1988); State v. Chung, 202 Conn. 39, 44, 519 A.2d 1175 (1987); State v. Madera, 198 Conn. 92, 99-100, 503 A.2d 136 (1985); State v. Cohane, 193 Conn. 474, 499, 479 A.2d 763, cert. denied, 469 U.S. 990,105 S. Ct. 397, 83 L. Ed. 2d 331 (1984). For present purposes, we can anticipate the fact that the transcript will become a public record in the near future. Our order must, of course, take into account not only the first amendment interests of the public and the press in full access to all aspects of criminal proceedings; see, e.g., Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 106 S. Ct. 2735, 2743, 92 L. Ed. 2d 1 (1986); Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 508-11, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575-81, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980); cf. Branzburg v. Hayes, 408 U.S. 665, 681-83, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972); but also the due process interests of the defendant in a full and timely opportunity to prepare for appellate review. See, e.g., Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S. Ct. 1497, 16 L. Ed. 2d 577 (1966); Gaines v. Manson, 194 Conn. 510, 515-20, 481 A.2d 1084 (1984); D’Amico v. Manson, 193 Conn. 144, 147, 476 A.2d 543 (1984).
Accordingly, we hereby order the chief clerk of this court to make appropriate arrangements for the Tribune to be afforded access to the portion of the transcript that it seeks. Within two weeks of the publication of this opinion, when the relevant portion of the transcript has been made known to the chief clerk, he is ordered to arrange to have the transcript made available to the Tribune, for its inspection and reproduction, at a time and place that does not interfere with the defendant’s preparation of his appeal.
In light of this order, which will provide the Tribune the specific relief that it seeks, there is no need for further exploration of the theoretical thicket that the trial court confronted. In effect, the issues presented by this motion have become moot. Bowen v. Heintz, 206 Conn. 636, 642, 539 A.2d 122 (1988); Board of Education v. Board of Labor Relations, 205 Conn. 116, 124-25, 530 A.2d 588 (1987); Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 496, 522 A.2d 264 (1987); Shays v. Local Grievance Committee, 197 Conn. 566, 571, 499 A.2d 1158 (1985). They are unlikely again to arise in their present form because of the amendment of § 51-61 by the enactment of Public Acts 1988, No. 88-31, which will become effective October 1,1988.
The appeal of the Tribune from the order of the trial court is dismissed as moot.
We have plenary authority to pursue this course sua sponte although this ground for relief was not explicitly articulated below or in the briefs in this court. See State v. Smith, 207 Conn. 152, 163, 540 A.2d 679 (1988); State v. Gilnite, 202 Conn. 369, 373, 521 A.2d 547 (1987); Greenwood v. Greenwood, 191 Conn. 309, 315, 464 A.2d 771 (1983).
As amended, General Statutes § 51-61 (c) will provide: “Each official court reporter and assistant court reporter shall, when requested, furnish to the court, to the state’s attorney or any assistant or deputy assistant state’s attorney, to any party of record and to any other person, within a reasonable time, a transcript of the proceedings, or such portion thereof as may be desired, except that, if the proceedings were closed to the public, such court reporter shall not furnish such transcript or portion thereof to such other person unless the proceedings were commenced on or after the effective date of this act and the court in its discretion determines that such disclosure is appropriate.”
State of Connecticut v. Michael Ross
(13224)
(13225)
(13226)
Peters, C. J., Callahan, Berdon, Norcott and Dupont, Js.
Decision released May 5, 1993
Michael A. Fitzpatrick, special public defender, in support of the motion.
Harry Weller, assistant state’s attorney, in opposition to the motion.
[OPINION BY Per Curiam. type=majority]
Per Curiam.
The defendant, Michael Ross, who has appealed from the judgments of conviction of capital felony and from the imposition of the death sentence after those convictions, has filed a motion for enlargement of the class of similar cases that we will consider in determining whether his death sentence is justified in light of the proportionality requirement of General Statutes § 53a-46b (b) (3). Exercising its rule-making authority, this court has determined to limit the class of similar cases, in accordance with the requirements of the statute, to cases in which the conviction of a capital felony after trial was followed by a hearing to consider the imposition of the death penalty. Practice Book § 4066A (b). In the particular circumstances of this defendant’s appeal, we have allowed the class of similar cases to be enlarged to include the defendant’s two murder convictions for which consecutive life sentences were imposed as a result of his entering pleas of nolo contendere after the original charges of capital felony were reduced.
The defendant now asks that the class of similar cases be further amended in one of two ways. His more expansive proposal is to enlarge the class of similar cases to include any case prosecuted after October 1, 1973, in which the state could have charged the defendant with a capital felony and that resulted in a conviction of not less than manslaughter in the first degree. General Statutes §§ 53a-55, 53a-55a. His more limited proposal is to enlarge the class of similar cases to include all capital felony cases prosecuted after October 1,1973, that resulted in a conviction of not less than manslaughter in the first degree following a plea or a trial.
We unanimously decline to accept the defendant’s more expansive proposal. That proposal does not differ materially from the proposals that we rejected when, in exercising our rule-making authority, we defined the class of similar cases to include “[o]nly those capital felony cases that have been prosecuted in this state after October 1, 1973, and in which hearings on the imposition of the death penalty have taken place... .” Practice Book § 4066A (b).
With regard to the defendant’s more limited proposal, we unanimously agree, in the circumstances of this case, to amend our existing definition of the class of similar cases to add any case in which a capital felony conviction has been obtained and the conviction was followed not by a hearing on the imposition of the death penalty but by an imposition of a sentence other than death, either by virtue of a plea agreement or by virtue of the fact that the state did not seek the death penalty. If this predicate has been met, and if the record contains sufficient information to enable a relevant comparison to be undertaken, then we will consider such cases as part of the class of similar cases.
We decline, however, to include in the relevant class any cases in which the prosecution has failed to establish the commission of a capital felony. In the first appeal from the imposition of a death sentence, it is inevitable that proportionality review will have to be undertaken against the background of a limited number of similar cases. That inevitability warrants intensive scrutiny of the cases that are similar but does not justify distortion of the principle of similarity.
Under the express provisions of General Statutes §§ 53a-35a and 53a-46a, only conviction of a capital felony subjects a defendant to the possible imposition of a death sentence. Only conviction of a capital felony occasions a hearing into mitigating and aggravating factors to determine whether the death penalty should be imposed. Only conviction of a capital felony will put on the record the circumstances that are relevant to the proportionality review mandated by § 53a-46b (b) (3).
In view of this unambiguous statutory pattern, the propriety of a death sentence imposed for conviction of a capital felony cannot appropriately be compared with sentences imposed as the result of convictions of less serious crimes. As a matter of law, sentences imposed as the result of such other convictions have not been “imposed in similar cases,” as § 53a-46b (b) (3) requires.
The motion is granted in part to enlarge the class of similar cases for the purposes of this appeal to include all convictions of a capital felony after October 1,1973, whether such convictions resulted from a trial or from a plea and whether or not such convictions were followed by the imposition of the death penalty.
In this opinion Peters, C. J., Callahan, Norcott and Dupont, Js., concurred.
General Statutes § 53a-46b (b) (3) provides: “review of death sentence....
“(b) The supreme court shall affirm the sentence of death unless it determines that ... (3) the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.”
Practice Book § 4066A (b) provides: “[briefs]—review of death SENTENCES PURSUANT TO GENERAL STATUTES § 53a-46b ....
“(b) For the purpose of reviewing the issue of disproportionality pursuant to Gen. Stat., § 53a-46b (b) (3), the briefs of the parties shall contain appendices setting forth the circumstances of the crimes that are claimed to be similar to that of which the defendant has been convicted and the characters and records of the defendants involved therein so far as these are ascertainable from the transcripts of those trials and hearings on the imposition of the death penalty or may be judicially noticed. Only those capital felony cases that have been prosecuted in this state after October 1, 1973, and in which hearings on the imposition of the death penalty have taken place, whether or not the death penalty has been imposed, shall be deemed eligible for consideration as ‘similar cases,’ unless the court, on application of a party claiming that the resulting pool of eligible cases is inadequate for disproportionality review, shall modify this limitation in a particular case. Any such application shall identify the additional case or cases claimed to be similar and set forth, in addition to the circumstances of the crime and the character and record of the defendant involved, the provisions of the applicable statutes pertaining to the imposition of the death penalty with citations of pertinent decisions interpreting such provisions.
“Any such application shall be filed within thirty days after the delivery date of the transcript ordered by the appellant, or, if no transcript is required or the transcript has been received by the appellant prior to the filing of the appeal, such application shall be filed within thirty days after filing the appeal.”
In the special circumstances of this case, we have granted the defendant’s preliminary motions for permission to file an out-of-time application to expand the universe of cases for proportionality review, and have permitted him to file a supporting memorandum exceeding the normal page limit. We are unpersuaded that oral argument would provide any further enlightenment in deciding the merits of his motion.
General Statutes § 53a-35a provides in relevant part: “imprisonment FOR ANY FELONY COMMITTED ON OR AFTER JULY 1, 1981: DEFINITE SENTENCES; terms authorized. For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows: (1) For a capital felony, a term of life imprisonment without the possibility of release unless a sentence of death is imposed in accordance with section 53a-46a... .”
General Statutes § 53a-46a provides in relevant part: “hearing on imposition of death penalty, aggravating and mitigating factors, (a) A person shall be subjected to the penalty of death for a capital felony only if a hearing is held in accordance with the provisions of this section.
“(b) For the purpose of determining the sentence to be imposed when a defendant is convicted of or pleads guilty to a capital felony, the judge or judges who presided at the trial or before whom the guilty plea was entered shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, including any mitigating factor set forth in subsection (g), and any aggravating factor set forth in subsection (h).”
[OPINION BY Berdon, J., type=dissent]
Berdon, J.,
dissenting. The defendant, Michael Ross, moves to expand the universe of cases because the present rules and case law are inadequate for proportionality review. The defendant lists only fifteen cases that can now be considered (including four cases in which he was a defendant).
I would grant the defendant’s request for oral argument on the motion. Certainly, we should allow both the defendant and the state to supplement their written argument and respond to our questions on a matter as important as determining whether the death penalty should be imposed.
First, I must put the defendant’s request in its proper perspective, as the New Jersey Supreme Court did in State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987). “Proportionality review has a function entirely unique among the review proceedings in a capital proceeding. Proportionality review, in the context of a capital sentencing scheme, is not appellate review to ensure that the aggravating factors outweigh beyond a reasonable doubt all the mitigating factors ... or to determine if the death sentence is disproportionate to the crime in violation of the ban against cruel and unusual punishment. That death is not disproportionate in the sense of being a cruel and unusual punishment is presumed by the nature of the review.... Rather, the purpose of review here is of a different sort. ... It purports to inquire instead whether the penalty is nonetheless unacceptable in a particular case because [it is] disproportionate to the punishment imposed on others convicted of the same crime.
“The heightened concern in a capital case for whether a sentence is disproportionate in this sense is twofold and derives from the finality of the result and the risk that the proceedings are vulnerable to the influence of impermissible considerations. First, the imposition of death by public authority is... profoundly different from all other penalties.... Because of this fundamental distinction between the death penalty and all other punishments, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case. Proportionality review assists us in assuring that we have designed procedures which are appropriate to the decision between life and death and... [that] we have followed those procedures.
“Proportionality review further acts as a check against the random and arbitrary imposition of the death penalty by an aberrant jury.... [G]iven the emotions generated by capital crimes, it may well be that juries, trial judges, and appellate courts considering sentences of death [may be] affected by impermissible considerations.... Discrimination on the basis of race, sex, or other suspect characteristic cannot be tolerated. As the Florida Supreme Court stated: [Proportionality review] by this Court guarantees that the reasons present in one case will reach a similar result to that reached under similar circumstances in another case. No longer will one man die and another man live on the basis of race, or a woman live and a man die on the basis of sex. If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great. Thus, the discretion charged in Furman v. Georgia, [408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972),] can be controlled and channeled until the sentencing process becomes a matter of reasoned judgment rather than an exercise in discretion at all....
“Proportionality review therefore is a means through which to monitor the imposition of death sentences and thereby to prevent any impermissible discrimination in imposing the death penalty.” (Citations omitted; internal quotation marks omitted.) Id., 326-27.
Why this court is so restrictive in expanding the universe of cases to be considered is beyond my comprehension. Allowing a case to be included in the universe under our rules of practice; Practice Book § 4066A (b); does not mean that the case is automatically considered a “similar” case under proportionality review mandated by General Statutes § 53a-46b. Certainly, to grant the defendant’s alternative request disadvantages no one—the state, the defendant or the court— except that it may mean more work for all of us in attempting to sort out those cases that are “similar” from those that are not. I would prefer to rely on the good faith efforts of the parties to include only cases that are similar. When so much is at stake—life or death—we should have all the relevant information before us so we can make a just decision.
The majority of this court today does grant partial relief for the defendant by our sua sponte modification of the request, but we do not have any information as to whether that relief will increase the universe of cases and if so, the extent of the increase. On the basis of the briefs before me today, and without the benefit of oral argument, I would grant the defendant’s alternative proposal, which he estimates would increase the universe by approximately twenty-five additional cases. That proposal would “include all capital felony cases prosecuted in Connecticut after October 1,1973, which likewise resulted in a conviction of at least Manslaughter in the First Degree (General Statutes §§ 53a-55, 53a-55a) following a plea or trial.”
Accordingly, I dissent.
State of Connecticut v. Michael B. Ross
(13224)
(13225)
(13226)
Peters, C. J., Callahan, Berdon, Dupont and E. O’Connell, Js.
Argued February 15
decision released July 26, 1994
Kent Drager, assistant public defender, and Michael A. Fitzpatrick, with whom were G. Douglas Nash and M. Fred DeCaprio, public defenders, and Peter Scillieri and Elizabeth Inkster, assistant public defenders, for the appellant (defendant).
Harry Weller, assistant state’s attorney, with whom were C. Robert Satti, Sr., state’s attorney, Jack W. Fischer, Judith Rossi and Susan C. Marks, assistant state’s attorneys, and Mary Thurston, law student intern, for the appellee (state).
James W. Bergenn, Gregory T. D’Auria and David N. Rosen filed a brief for the Connecticut Citizens for Humanizing Criminal Justice et al. as amici curiae.
Helena M. Cook, Christopher Keith Hall, Alice M. Miller, Jane Rocamora, David Weissbrodt, William M. Bloss, Julius Oosthuizen and Catherine A. DeFlorio filed a brief for Amnesty International et al. as amici curiae.
David M. Cohen and Martha Stone filed a brief for the Connecticut Civil Liberties Union Foundation as amicus curiae.
Kathryn Emmett and Deborah Fins filed a brief for the American Friends Service Committee et al. as amici curiae.
Jacob D. Zeldes, Jennifer L. Forrence, Tanina Ros-tain, Jonathan M. Levine and Loftus E. Becker, Jr., filed a brief for Ezra E. H. Griffith et al. as amici curiae.
[OPINION BY Peters, C. J. type=majority]
Peters, C. J.
These consolidated criminal appeals from the imposition of the death penalty upon the defendant, Michael B. Ross, raise numerous issues concerning the validity of his capital felony convictions and the validity of the procedures that resulted in death sentences for each of these convictions. After a trial to determine guilt, a jury convicted the defendant of six counts of capital felony in violation of General Statutes § 53a-54b. At a separate sentencing hearing pursuant to General Statutes § 53a-46a, the same jury considered further evidence and found an aggravating factor and no mitigating factor with respect to each count. As a result, the trial court rendered a judgment imposing the death sentence on the defendant on each count. The defendant has appealed to this court in accordance with General Statutes §§ 51-199 and 53a-46b. We affirm the defendant’s conviction of all counts of capital felony. Because of improprieties in the conduct of the sentencing hearing, however, we reverse the judgments with respect to the imposition of the death penalty and remand for new sentencing hearings on all counts.
The jury could reasonably have found the following facts. On June 13, 1984, the defendant accosted seventeen year old Wendy B. as she was walking along Route 12 in Lisbon. After a short conversation, he pulled Wendy B. over a stone wall, forcing her to go with him into a wooded area that led to an open field. There he sexually assaulted her, forced her to turn over on her stomach, and then strangled her.
On Thanksgiving Day, 1983, the defendant accosted nineteen year old Robyn S. on the grounds of Uncas on Thames State Hospital in Norwich. He forcefully pulled Robyn S. into a wooded area and ordered her to remove her clothing. He then sexually assaulted her and, after ordering her to turn over on her stomach, strangled her. Before leaving, he covered her body with leaves.
On Easter Sunday, 1984, the defendant picked up fourteen year old April B. and fourteen year old Leslie S., who were hitchhiking to Jewett City on Route 138. Once the girls had entered his car, he drove them easterly on Route 165 and, over their protests, past their intended destination. When April B. tried to force the defendant to stop the car by threatening him with a knife, he disarmed her and continued to transport the girls against their will, through eastern Connecticut, to Beach Pond in Rhode Island. At Beach Pond, he parked his car and bound both girls hand and foot. He then untied April B.’s feet and forced her to walk a short distance from his car, where he assaulted her sexually, turned her over on her stomach and strangled her. Returning to the car, the defendant killed Leslie S. without sexually assaulting her. He then placed the bodies of both girls in his car and drove back to Preston, Connecticut, where he deposited their bodies in a culvert.
At his trial, the defendant did not deny having committed the sexual assaults, the kidnappings and the murders described above. His defense was insanity, a defense that the jury rejected by finding him guilty as charged. Additional facts will be discussed as they become relevant to the issues before us.
The defendant’s appeal raises a multitude of issues, which we will address in three main parts. First, we will consider the validity of the defendant’s conviction of six counts of capital felony. Second, we will consider the facial constitutionality, under the federal and state constitutions, of imposing the death penalty upon a person who has been found to have committed, in an especially heinous, cruel or depraved manner; General Statutes § 53a-46a (h) (4); a capital felony under subsection (5) or subsection (7) of § 53a-54b. Third, we will consider the validity, pursuant to § 53a-46a, of the defendant’s sentencing hearing. In light of our remand for a new sentencing hearing because of substantial noncompliance with the statutory requirements of § 53a-46a, we need not review the defendant’s death sentences pursuant to § 53a-46b.
I
Validity of the Convictions
The defendant has raised numerous challenges to the validity of his conviction of six counts of capital felony. On jurisdictional grounds, he maintains that the trial court lacked the authority to try him for the two counts of capital felony involving the two murders committed in Rhode Island. On evidentiary grounds, he maintains that the trial court improperly: (1) denied his motions to suppress his incriminatory statements to the police; and (2) restricted his cross-examination of a police officer. On instructional grounds, he maintains that the trial court improperly charged the jury concerning: (1) the inferences that could be drawn from missing witnesses; (2) the special evidentiary requirements for proof of a capital crime; (3) reasonable doubt; (4) the burden of proving insanity; and (5) the unavailability of a defense of extreme emotional disturbance. In addition, he maintains that the trial court improperly: (1) denied his motion for severance; (2) permitted prejudicial commentary by the prosecuting attorney; and (3) rejected claims of juror prejudice. We agree with the state that none of the defendant’s claims of error warrant reversal of his convictions.
Before addressing the multiple claims raised by the defendant, we should take notice of two claims that he does not make. He does not challenge the sufficiency of the evidence to support the jury’s verdicts that he was guilty, beyond a reasonable doubt, of each of the counts of capital felony with which he was charged under § 53a-54b (5) and (7). He similarly does not challenge the jury’s determination that he failed to establish his defense of insanity by a preponderance of the evidence.
A
JURISDICTIONAL ISSUES
The defendant maintains that the trial court lacked territorial jurisdiction to try him for the capital felonies relating to the deaths of April B. and Leslie S. because these two victims were not killed in Connecticut. The state argues that Connecticut’s continuing jurisdiction over the defendant’s kidnapping of these victims provides authority for Connecticut to prosecute him for the capital felonies arising out of the murders committed in Rhode Island.
When the issue of territorial jurisdiction was initially raised in the trial court by the defendant’s motion to dismiss, the trial court, Hendel, J., after a hearing, made the following findings of fact. The victims were kidnapped in Connecticut and killed in Rhode Island. At the time of their abduction, the defendant had the intention to assault the victims sexually and to kill them. The victims had the ability to observe the defendant throughout their abduction and thus would have been able to identify him.
From these facts, the trial court concluded that it lacked jurisdiction over the capital felony counts charging the defendant with double murder; § 53a-54b (8); and with the sexual assault and murder of April B.; § 53a-54b (7); because the alleged murders and sexual assault had been committed entirely in Rhode Island. The trial court concluded, however, that it had jurisdiction over the capital felony counts charging murder in the course of a kidnapping. General Statutes § 53a-54b (5). Without challenging the trial court’s underlying findings of fact, the defendant argues that its ruling of law was incorrect. We disagree.
Our starting point is the observation that, as a general matter, the Superior Court has no territorial jurisdiction to adjudicate a charge of murder unless the state proves, beyond a reasonable doubt, that the victim was murdered in Connecticut. General Statutes § 51-1a (b); State v. Beverly, 224 Conn. 372, 375-76, 618 A.2d 1335 (1993); State v. Volpe, 113 Conn. 288, 294, 155 A. 223 (1931); A. Spinella, Connecticut Criminal Procedure (1985) § 3A, pp. 18-19. This point of departure is consistent with the common law principle that limits the state’s interest in vindicating its criminal laws to the reach of its territory. State v. Volpe, supra, 294; State v. Grady, 34 Conn. 118, 129-30 (1867); Gilbert v. Steadman, 1 Root 403 (1792). This principle of limited territorial jurisdiction presumably underlay the trial court’s dismissal of the capital felony count charging the defendant with having violated § 53a-54b (8).
The issue before us is whether a different rule should apply to a capital felony that is defined by statute as a “murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety.” General Statutes § 53a-54b (5). The defendant emphasizes that the statute punishes an aggravated form of murder, so that the gravamen of the offense charged is the homicide that occurred in Rhode Island. The state argues, to the contrary, that the statute prescribes a linkage between kidnapping and murder that allows the exercise of territorial jurisdiction over the consequences of a kidnapping that began in Connecticut. The state emphasizes the trial court’s finding of fact that, at the time of their abduction, the defendant had the intention to assault the victims sexually and to kill them.
This specific issue is a matter of first impression for this court. To resolve it, we must examine our common law with respect to territorial jurisdiction, as well as changes brought about by the enactment of the penal code.
Prior to the enactment of the penal code, our common law cases reviewed this state’s exercise of jurisdiction over a number of continuous crimes that had a significant nexus with another state. In those cases, we held that our courts had jurisdiction to consider charges of larceny brought against criminal defendants who are discovered in this state with property stolen in another state. State v. Keeby, 159 Conn. 201, 206, 268 A.2d 652 (1970), cert. denied, 400 U.S. 1010, 91 S. Ct. 569, 27 L. Ed. 2d 623 (1971); State v. Palkimas, 153 Conn. 555, 561-62, 219 A.2d 220 (1966); State v. Pambianchi, 139 Conn. 543, 547, 95 A.2d 695 (1953); State v. Cummings, 33 Conn. 260, 264-65 (1866). Similarly, we held that a defendant had committed the crime of embezzlement in this state when he received bonds in Connecticut, with the present intent to sell them and to appropriate their proceeds, even though the embezzled bonds were actually sold in another state and the proceeds realized there. State v. Serkau, 128 Conn. 153, 156-57, 20 A.2d 725 (1941).
In each of these cases at common law, we construed our statutes to impose criminal liability on the defendants for their conduct in Connecticut. In the larceny cases, we held that our larceny statute imposed criminal liability on the continued retention in Connecticut of stolen property regardless of its provenance. In the embezzlement case, we held that our statute imposed liability on the felonious appropriation of property in Connecticut regardless of the locale of the completion of the defendant’s felonious plan. The defendants in those cases were therefore properly convicted in Connecticut, not because Connecticut was exercising extraterritorial jurisdiction, but because the state had established that each element of the crimes charged had been proven to have occurred in this state. See A. Spinella, supra, pp. 18-21. As the defendant correctly points out, the cited precedents would permit a Connecticut prosecution of a capital felony if a murder occurred in this state following a kidnapping that had begun in another state. They would likewise permit a Connecticut prosecution for a kidnapping that began in Connecticut but continued until the victims were released in another state. Presumably they would also encompass a Connecticut prosecution for a murder commenced by a physical attack on a victim in this state, with the intent to kill, even though the victim actually died in a hospital in Rhode Island. See Pollard v. State, 270 Ind. 599, 388 N.E.2d 496 (1979). Those are not, however, the facts of this case.
Adoption of the penal code abrogated our common law of crimes. Valeriano v. Bronson, 209 Conn. 75, 92, 546 A.2d 1380 (1988). Nothing in the text of the penal code indicates that the legislature addressed questions of extraterritorial jurisdiction. The state urges us to adopt the expanded view of extraterritorial jurisdiction advocated by the Model Penal Code, pursuant to which a state has jurisdiction over any crime whenever at least one element of the crime occurred within the state. See 1 A.L.I., Model Penal Code and Commentaries (1985) § 1.03. Although our penal code commission apparently noted and discussed an earlier version of the Model Penal Code incorporating the same expanded view of jurisdiction; see 1967 Report of the Commission to Revise the Criminal Statutes p. 42; that discussion did not result in any textual articulation of legislative intent. See A. Spinella, supra, § 3A. The defendant urges us to conclude that enactment of our penal code, without a specific adoption of the Model Penal Code as to jurisdiction, limits the jurisdiction of our courts to crimes committed within this state.
The closest that we have come to judicial adoption of the Model Penal Code’s view of jurisdiction is State v. Stevens, 224 Conn. 730, 620 A.2d 789 (1993). In that case, we held that a police officer, after a lawful arrest in Connecticut for a crime committed in this state, did not exceed permissible territorial limitations on his jurisdiction by having blood tests performed on an allegedly intoxicated driver at the nearest emergency medical facility in Rhode Island. Id., 742-43. Citing the Model Penal Code, we began our discussion by stating that there are situations in which “even a criminal statute may have extraterritorial effect. See, e.g., Strass-heim v. Daily, 221 U.S. 280, 284, 31 S. Ct. 558, 55 L. Ed. 735 (1910) (upholding prosecution in Michigan for acts of bribery and obtaining public money under false pretenses by defendant in Illinois, offenses by their nature peculiarly injurious to the state of Michigan); see also People v. Tyler, 7 Mich. 161, 221 (1859) (‘every sovereignty has the right, subject to certain restrictions, to protect itself from, and to punish as crimes, certain acts which are peculiarly injurious to its rights or interests, or those of its citizens, wherever committed’ [emphasis in original]).” Id., 738.
In State v. Stevens, supra, 224 Conn. 739, we nonetheless resolved the issue in favor of jurisdiction on a narrower ground than that advocated by the Model Penal Code when we invoked a test that “balancefd] the legitimate interests of the adjoining sovereignties.” See also State v. Mueller, 44 Wis. 2d 387, 392-93, 171 N.W.2d 414 (1969). We noted that the courts of Rhode Island would have had no jurisdiction over the defendant’s offenses; State v. Stevens, supra, 737; and that the statutes of Rhode Island permit “ ‘any one’ to arrest or to seize evidence after the commission of ‘any offense.’ ” Id., 739. On the Connecticut side of the ledger, we emphasized our state’s “unambiguous policy aimed at ensuring that our highways are safe from the carnage associated with drunken drivers.” Id. Finally, we looked to the language of the governing Connecticut statute, General Statutes § 14-227b. We thought it highly significant that “nothing in the language or legislative history of § 14-227b [suggests] that the legislature intended that a police officer should endanger the life of an arrestee by contravening the judgment of emergency medical personnel and requiring them to transport the arrestee to a more distant hospital so that the officer may gather evanescent evidence on Connecticut soil.” Id., 742.
Stevens is not a controlling precedent because, in that case, we addressed the extraterritorial authority of a Connecticut police officer, rather than the extraterritorial authority of a Connecticut court. Stevens is, nonetheless, significant because, rather than adopting the provisions of the Model Penal Code wholesale, we undertook an examination of the underlying public policy and a close reading of the relevant statutes.
Applying the methodology of Stevens, we note that Stevens assumed that, as a matter of public policy in the realm of criminal law, the General Assembly has the constitutional authority to enact a statute that has an extraterritorial effect. We agree with that assumption. As the Supreme Court of Florida has held, if the legislature so directs, “[a] person who commits a crime partly in one state and partly in another state may be tried in either state under the sixth amendment of the United States Constitution.” Lane v. State, 388 So. 2d 1022, 1028 (Fla. 1980); see also Conrad v. State, 262 Ind. 446, 450, 317 N.E.2d 789 (1974); State v. Harrington, 128 Vt. 242, 250, 260 A.2d 692 (1969). Connecticut does not lack the authority to make it a capital crime in Connecticut to form the intent here to cause the death of a victim elsewhere and to act in furtherance thereof or to commit an underlying felony in this state that results in a murder elsewhere. Lane v. State, supra, 1028; see also Heath v. Jones, 941 F.2d 1126, 1138 (11th Cir. 1991).
The ultimate question is, therefore, as Stevens suggests, a matter of statutory construction. We must decide whether, in enacting § 53a-54b (5), the legislature manifested its intention to give extraterritorial effect to the capital felony it therein defined as a “murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety.” We recognize that, unless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are strictly construed against the state. State v. Russell, 218 Conn. 273, 278, 588 A.2d 1376 (1991); State v. Torres, 206 Conn. 346, 355, 538 A.2d 185 (1988). We are, however, persuaded that the statute, as drafted, unambiguously manifests the legislature’s intent to allow a capital felony prosecution of the defendant in the circumstances of this case.
On its face, the statute requires the state to prove a murder by a kidnapper without requiring that the murder have been committed in Connecticut. The strongest argument against such a literal construction of § 53a-54b (5) is that its language does not parallel the language of the felony murder statute, General Statutes § 53a-54c. The latter statute provides: “A person is guilty of murder when, acting either alone or with one or more persons, he commits... kidnapping... and, in the course of and in furtherance of such crime or of flight therefrom, he... causes the death of a person other than one of the participants... .” When the predicate crime is a kidnapping, the felony murder statute encompasses any killing of the victim that occurs during the victim’s unlawful detention. See State v. Gomez, 225 Conn. 347, 350-51, 622 A.2d 1014 (1993). Presumably, the felony murder statute would encompass such a murder if it occurred in another state. Although the language of the capital felony statute is slightly different, because it penalizes a “murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety”; General Statutes § 53a-54b (5); we are not persuaded that these differences in statutory formulation are sufficient to ascribe an extraterritorial effect to the one statute and not to the other.
An alternate argument contrary to a literal construction of § 53a-54b (5) is premised on the proposition that, because commission of a murder is the major premise for any capital felony under § 53a-54b, the legislature cannot have intended to have Connecticut assume jurisdiction over a murder committed in another state under any circumstances. This argument is unpersuasive for two reasons. Structurally, although most subsections of § 53a-54b require the state to prove the commission of a murder, subsection (6) has no such requirement. See footnote 3. Linguistically, § 53a-54b (5), the subsection presently at issue, speaks of “murder by a kidnapper” and does not prioritize between the commission of the two predicate felonies, kidnapping and murder.
To reach the conclusion that § 53a-54b (5) applies to the Rhode Island murders in the circumstances of this case, we need not embrace the policy of the Model Penal Code in its entirety for all criminal prosecutions. It bears emphasis that in this case we have a defendant who, in this state, intentionally committed two kidnappings with the contemporaneous intent to cause the death of his victims. With that intent, and during the uninterrupted course of the kidnappings, he killed the victims. Although the murders occurred in Rhode Island, the defendant returned the victims’ bodies to Connecticut. This case, therefore, demonstrates an overwhelming factual nexus between the crimes and Connecticut. We are persuaded that the legislature intended the literal language of the statute to apply to a case so closely tied to the public welfare of this state.
In summary, we conclude that the defendant’s jurisdictional defense cannot be sustained in the circumstances of this case. The defendant was properly convicted of the two counts of capital felony arising out of his kidnapping of April B. and Leslie S., even though he murdered them in Rhode Island.
B
EVIDENTIARY ISSUES
The defendant next maintains that several allegedly improper evidentiary rulings entitle him to a new trial. He urges us to conclude that the trial court improperly: (1) denied his motions to suppress his incriminatory statements to the police; and (2) restricted his cross-examination of a police officer. We disagree.
1
On June 28, 1984, while at the Lisbon town hall, the defendant made numerous inculpatory statements to the state police. He admitted, orally and in writing, that he had killed Wendy B. and Robyn S., murders that were committed in New London county. He also confessed to killing April B. and Leslie S. in Rhode Island and to other murders in Windham county.
After an evidentiary hearing, the trial court, Hendel, J., denied the defendant’s motion to suppress his inculpatory statements. In support of its ruling, the trial court made the following findings of fact. The defendant came to the Lisbon town hall voluntarily. He made his first incriminatory statement to detective Michael Malchik before having received Miranda warnings. This statement resulted from an extended conversation in a town hall conference room. During this conversation, the defendant was not physically restrained and twice had been advised that he was free to leave. It was the defendant who initiated an inquiry into the type of person who might have killed Wendy B. and whether such person might receive psychotherapy. The defendant then asked Malchik whether Malchik thought the defendant had killed Wendy B. Malchik replied in the affirmative and told the defendant that he felt that “he [the defendant] would do it again and I thought that was the most important thing, that he didn’t do it again.” Immediately thereafter, without any questioning by Malchik, the defendant admitted to having killed Wendy B. Upon hearing this incriminatory statement, Malchik terminated any further conversation with the defendant and treated him as a custodial suspect. Before asking any further questions, Malchik gave the defendant the required Miranda warnings; Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); and asked the defendant to sign a Miranda waiver, which he did. All the defendant’s subsequent incriminatory statements followed repeated Miranda warnings and waivers.
The trial court concluded that: (1) the police had not illegally detained or arrested the defendant; (2) the defendant had made his statements to the police voluntarily; and (3) there was no Miranda violation in the manner in which the police obtained statements from the defendant. Accordingly, the trial court denied the defendant’s motion to suppress.
On appeal, the defendant does not challenge the trial court’s determination that he came to the Lisbon town hall voluntarily and, while there, made his incriminatory statements voluntarily. His principal claim, rather, is that his noncustodial interview with Malchik was transformed into a custodial detention once Malchik told the defendant that he, Malchik, thought that the defendant had killed Wendy B. Immediately thereafter, according to the defendant, Miranda warnings were required. Because no such warnings were given until after he made his first incriminatory statement, he claims that all his subsequent statements should have been suppressed. We disagree.
To sustain the defendant’s argument, we would have to conclude that the trial court made a clearly erroneous finding of fact when it determined that the defendant was not in custody at the time that he told Malchik that he had killed Wendy B. State v. Northrop, 213 Conn. 405, 414, 568 A.2d 439 (1990); State v. Pittman, 209 Conn. 596, 606, 553 A.2d 155 (1989). “A person is in custody only if, in view of all the surrounding circumstances, a reasonable person would have believed he was not free to leave.... ‘Although the circumstances of each case must certainly influence a determination of whether a suspect is “in custody” for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest... .’” (Citations omitted.) State v. Pittman, supra, 608. “[A]n officer’s [articulated] views concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody,” but such statements are not, of themselves, “dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest.” Stansbury v. California, U.S., 114 S. Ct. 1526, 1530, 128 L. Ed. 2d 293 (1994).
Malchik testified that, just prior to the defendant’s first incriminatory statement, Malchik would have allowed the defendant to leave the conference room had he elected to do so, even though Malchik had felt that the defendant had killed Wendy B. The objective circumstances are in accord with this intent. Malchik came and went from the conference room, leaving the defendant alone on several occasions. Immediately before the interchange between the defendant and Malchik, the defendant had been told that he could leave at any time, and he had responded that he understood he was there voluntarily. Also, when concern was expressed that the defendant would be late for work, the defendant had responded that he did not need to leave for work but was willing to stay and talk. We find it especially probative that, contrary to the facts of the cases on which the defendant relies, it was the defendant, not Malchik, who initiated the discussion of the murder of Wendy B. The defendant deliberately solicited Malchik’s belief that the defendant had killed Wendy B. Immediately thereafter, although no question had been posed by Malchik, the defendant spontaneously offered that he had killed Wendy B. Considering the record of the meeting in its entirety, we are persuaded that the trial court was not clearly erroneous in its determination that a reasonable person in the defendant’s position would have felt free to leave even after Malchik had voiced his belief that the defendant had killed Wendy B.
The defendant also challenges the validity of the Miranda waivers that he executed prior to giving further incriminatory statements. In large part, this argument is predicated upon his contention, which we have rejected, that his first incriminatory statement was inadmissible. The defendant also argues, however, that even if that statement was properly admitted, he was given contradictory directions that undermined his ability to exercise the independent judgment implied in the execution of Miranda waivers. We are convinced, however, that the trial court properly found, in light of all the circumstances, that the defendant had knowingly, intelligently and voluntarily waived his rights. The defendant was both a college graduate and a person with prior experience with the criminal justice system. He adduced no persuasive evidence of police overreaching or coercion.
2
Alternatively, the defendant claims that the trial court’s findings at the suppression hearing should be set aside because the trial court improperly: (1) restricted his opportunity to cross-examine Malchik during the suppression hearing; and (2) denied his subsequent motion to open the suppression hearing. Both claims relate to the defendant’s efforts to link the reliability of Malchik’s testimony concerning the admissibility of the defendant’s incriminatory statements to the reliability of Malchik’s testimony concerning his investigatory efforts to ascertain the geographical location of the murders that were committed in Rhode Island. We reject both claims.
During the suppression hearing, the defendant attempted to challenge the credibility of Malchik’s testimony that the defendant had not been in police custody prior to his first incriminatory statement. The defendant sought, in this regard, to question Malchik about his failure immediately to investigate and locate the scene of the murders that had occurred in Rhode Island. Although the trial court originally sustained an objection by the state on the ground of immateriality, it thereafter reversed its ruling and permitted the defendant to pursue his inquiry. The only question ultimately excluded related to Malchik’s failure to ask the defendant to take the police to the place where the crimes had been committed. Because that question did not impugn Malchik’s motive, interest, bias or prejudice, the trial court’s ruling did not deprive the defendant of his constitutional rights under the sixth amendment to the United States constitution. State v. Vitale, 197 Conn. 396, 402-403, 497 A.2d 956 (1985); State v. Talton, 197 Conn. 280, 284, 497 A.2d 35 (1985). Having afforded the defendant his constitutional rights, the trial court did not abuse its discretion by excluding this one question on the ground that it related to matters immaterial to the suppression hearing. See State v. Dobson, 221 Conn. 128, 137, 602 A.2d 977 (1992).
At a hearing held, a year later, on the defendant’s motion to dismiss the counts relating to the Rhode Island murders for lack of territorial jurisdiction, Malchik was again questioned about his failure immediately to ascertain the geographical location of these murders. During the hearing, the trial court expressed its concern that Malchik had not offered a credible explanation for this investigatory delay. As a result of the questions raised at the dismissal hearing, the defendant moved to open the suppression hearing.
In a posttrial articulation, after having reviewed the relevant transcripts, the trial court withdrew its criticism of Malchik’s investigation and stated that, in its view, Malchik had testified truthfully during the suppression hearing. In light of the articulation, we conclude that the trial court’s denial of the motion to open the suppression hearing was not an abuse of its discretion. The court could reasonably have concluded that Malchik’s credibility concerning his investigatory activities subsequent to the defendant’s confessions was collateral to his credibility about the events leading up to the confessions. The defendant’s offer of proof, in support of his motion to open, consisted solely of the representations of counsel and centered on the defendant’s contention that Malchik had taken him into custody as soon as Malchik invited him to drive with Malchik to the town hall, a claim that has now been abandoned.
We have examined the defendant’s challenges to the admissibility of his incriminatory statements under the principles established by the United States constitution and Connecticut common law. Although the defendant’s brief adverts to independent rights under the Connecticut constitution, no such arguments have been briefed and they are therefore deemed to have been waived. See State v. Hamilton, 228 Conn. 234, 246 n.10, 636 A.2d 760 (1994). We conclude, therefore, that the trial court properly admitted the defendant’s incriminatory statements into evidence.
3
During the trial to adjudicate the defendant’s guilt of the crimes with which he had been charged, the defendant renewed his effort to cross-examine Malchik about his investigatory efforts with respect to the Rhode Island murders. Although the defendant characterized this inquiry as relevant to Malchik’s credibility, the trial court, Ford, J., could reasonably have concluded, as did the trial court, Hendel, J., at the suppression hearing, that the motive for Malchik’s delay in going to the scene of these crimes was collateral and immaterial. Considering the breadth of the defendant’s cross-examination of Malchik, we are persuaded that the defendant’s constitutional rights were not impaired, and that the trial court’s ruling was not an abuse of its discretion.
c
INSTRUCTIONAL ISSUES
The defendant also maintains that he is entitled to a new trial to determine his guilt because the trial court, Ford, J., misinstructed the jury. He claims that the trial court improperly: (1) charged the jury on inferences that might be drawn from his failure to call two witnesses concerning his mental status; (2) failed to charge the jury with respect to the special evidentiary requirements for proof of a capital crime; (3) diluted the charge to the jury on what constitutes proof beyond a reasonable doubt; (4) imposed on the defendant the burden of proving insanity by a preponderance of the evidence and did not fully inform the jury about the consequences of a verdict of not guilty by reason of insanity; and (5) refused to charge the jury on the availability of the defense of extreme emotional disturbance. Because we are unpersuaded that the instructions given by the trial court deprived the defendant of a fair trial, we conclude that reversal of his convictions is not required.
1
The defendant asserts that the trial court improperly gave a Secondino charge instructing the jury that it might draw inferences unfavorable to the defendant because two psychiatric experts whom he had consulted were not called to testify as witnesses on his behalf. In Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960), this court held that “[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.” (Internal quotation marks omitted.) The Secondino rule applies to criminal prosecutions. State v. Grant, 221 Conn. 93, 105, 602 A.2d 581 (1992); State v. Watley, 195 Conn. 485, 488, 488 A.2d 1245 (1985). Although the defendant does not deny that the state has established the procedural prerequisites for a Secondino charge, he maintains that a Secondino charge is fundamentally inconsistent with his privilege to consult psychiatric experts in furtherance of his insanity defense. In the circumstances of this case, he maintains, therefore, that the Secondino charge was both improper and harmful. Although we recognize the seriousness of the defendant’s claim of privilege, we are persuaded that the Secondino charge was not sufficiently prejudicial to warrant reversal of the defendant’s convictions.
In State v. Toste, 178 Conn. 626, 628, 424 A.2d 293 (1979), we joined the majority of jurisdictions in holding that “[wjhere a psychiatric expert, whether psychiatrist or psychologist, is retained by a criminal defendant or by his counsel for the sole purpose of aiding the accused and his counsel in the preparation of his defense, the attorney-client privilege bars the state from calling the expert as a witness.” The defendant urges us to extend this holding to preclude a jury instruction permitting an adverse inference to be drawn from the defendant’s failure to call such a psychiatric expert as a witness at trial. The state urges us to hold, to the contrary, that when the other prerequisites for a Secondino charge have been satisfied, the existence of an attorney-client privilege does not bar an instruction permitting the jury to draw whatever inference it deems proper from the absence of an expert psychiatric witness.
Although we have never squarely addressed the overall relationship between a missing witness instruction and an evidentiary privilege, we have in fact applied the Secondino rule in a number of contexts despite the possible existence of a privilege restricting the applicability of the rule. In the very case in which we articulated the missing witness rule, Secondino v. New Haven Gas Co., supra, 147 Conn. 676, we held that the trial court had improperly refused to give a missing witness instruction when the plaintiff, in a personal injury action, had failed to call her treating physician as a witness. In State v. McLaughlin, 126 Conn. 257, 261, 10 A.2d 758 (1939), we held that it was proper for the prosecutor to comment on the failure of the defendant’s spouse to testify. More recently, in D’Amico v. Manson, 193 Conn. 144, 153, 476 A.2d 543 (1984), we indicated that the Secondino rule in a habeas corpus proceeding might, in the proper circumstances, permit an adverse inference to be drawn from the defendant’s failure to call his trial attorney.
These holdings are not dispositive, however, because they contain no explicit consideration of the relationship between a missing witness instruction and the attorney-client privilege. This question is therefore an issue of first impression for this court. Courts in other jurisdictions are divided. Compare State v. Holsinger, 124 Ariz. 18, 601 P.2d 1054 (1979) (privilege bars adverse inference), O’Connor v. Detroit, 160 Mich. 193, 125 N.W. 277 (1910) (adverse inference permitted), Daniels v. Beeson, 312 So. 2d 441 (Miss. 1975) (spousal privilege bars adverse inference), and George v. State, 98 Nev. 196, 644 P.2d 510 (1982) (adverse comment on any claim of privilege barred per statute), with Epper-son v. State, 650 S.W.2d 110 (Tex. App. 1983) (adverse inference permitted); see also annot., 26 A.L.R.4th 9 (1983); annot., 34 A.L.R.3d 775 (1970); annot., 32 A.L.R.3d 906 (1970); annot., 116 A.L.R. 1170 (1938), for extensive documentation of conflicting authorities.
The proper resolution of the defendant’s claim of privilege requires a balancing of significant competing interests. These interests include the defendant’s need for access to expert psychiatric advice to enable him to establish his insanity defense, the state’s need for information to enable it to respond to an insanity defense, and the jury’s need to consider all relevant, probative and reliable evidence to enable it to exercise its truth finding function.
It cannot be gainsaid that expert psychiatric advice is critical to a lawyer planning an insanity defense. “[T]he assistance of a psychiatrist may well be crucial to the defendant’s ability to marshall his defense. In this role, psychiatrists gather facts, through professional examination, interviews, and elsewhere, that they will share with the judge or jury; they analyze the information gathered and from it draw plausible conclusions about the defendant’s mental condition, and about the effects of any disorder on behavior; and they offer opinions about how the defendant’s mental condition might have affected his behavior at the time in question. They know the probative questions to ask of the opposing party’s psychiatrists and how to interpret their answers.” Ake v. Oklahoma, 470 U.S. 68, 80, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985).
We have, however, repeatedly recognized that the state must be afforded a fair opportunity “to acquire information that will enable it to respond intelligently to defenses that concern a defendant’s mental status.” (Internal quotation marks omitted.) State v. Manfredi, 213 Conn. 500, 515, 569 A.2d 506, cert. denied, 498 U.S. 818, 111 S. Ct. 62, 112 L. Ed. 2d 37 (1990). A defendant waives many significant rights when he chooses to assert a defense of insanity. See, e.g., State v. Jarrett, 218 Conn. 766, 776-78, 591 A.2d 1225 (1991); State v. Steiger, 218 Conn. 349, 362-66, 590 A.2d 408 (1991); State v. Manfredi, supra, 513; State v. Fair, 197 Conn. 106, 109, 496 A.2d 461 (1985), cert. denied, 475 U.S. 1096, 106 S. Ct. 1494, 89 L. Ed. 2d 895 (1986); see also Buchanan v. Kentucky, 483 U.S. 402, 421-24, 107 S. Ct. 2906, 97 L. Ed. 2d 336, reh. denied, 483 U.S. 1044, 108 S. Ct. 19, 97 L. Ed. 2d 807 (1987). Specifically, a defendant’s assertion of an insanity defense requires at least a partial waiver of his attorney-client privilege because, under Practice Book §§ 759 and 760, he must disclose defense psychiatric reports and submit to a court-ordered psychiatric examination on behalf of the state.
Furthermore, the Secondino charge serves important evidentiary interests. In contradistinction to an invocation of privilege, “the Secondino inference derives from the maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted.” (Internal quotation marks omitted.) State v. Shashaty, 205 Conn. 39, 44, 529 A.2d 1308 (1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 753, 98 L. Ed. 2d 766 (1988). Permitting consideration of all relevant evidence that bears a reasonable assurance of reliability advances the truth finding function of the jury. See State v. Borrelli, 227 Conn. 153, 159, 629 A.2d 1105 (1993).
The particular facts of this case make it unnecessary for us to strike the definitive balance between these interests today, for even if the missing witness instruction was improper, it was, at best, harmless. Because the instruction relates to a claim arising under state law and does not involve any constitutional right, the defendant bears the burden of proving harmful error if the instruction were deemed to be improper. See State v. Silva, 201 Conn. 244, 250, 513 A.2d 1202 (1986); State v. Conroy, 194 Conn. 623, 627, 484 A.2d 448 (1984). “In order to meet his burden of proving that [an] unwarranted Secondino charge constituted harmful error, the defendant must show that the charge was likely to have affected the verdict. State v. Brown, 187 Conn. 602, 611, 447 A.2d 734 (1982); State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).” State v. Shashaty, supra, 205 Conn. 44. We evaluate the harmfulness of a nonconstitutional error on the record as a whole. State v. Brown, 187 Conn. 602, 611, 447 A.2d 734 (1982); State v. Tropiano, 158 Conn. 412, 427, 262 A.2d 147 (1969), cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288 (1970). An improper instruction is not automatically harmful merely because it adversely affects a defense. State v. Cooper, 182 Conn. 207, 212-14, 438 A.2d 418 (1980); State v. Ruth, 181 Conn. 187, 196-200, 435 A.2d 3 (1980). We are persuaded that the defendant has not met his burden.
Direct and substantive evidence concerning the missing witnesses was presented to the jury during the course of the defendant’s trial. The state’s cross-examination of the defense psychiatric experts elicited from them the information that the defendant had also consulted with Bruce Freedman, a clinical psychologist, and Howard Zonana, a psychiatrist. With regard to Freedman, Walter Borden, a psychiatrist who testified on the defendant’s behalf, told the jury that he had referred the defendant to Freedman for a quick screening involving numerous psychological tests. Borden acknowledged that Freedman’s diagnosis was that the defendant suffered from “intermittent explosive disorder,” and that this diagnosis did not comport with his own diagnosis or that of John Cegalis, a clinical psychologist, who also testified on behalf of the defendant. As Borden told the jury, Freedman did not find that the defendant suffered from psychotic thinking or a loss of contact with reality, and further found that the defendant knew what he was doing when he killed the women. With regard to Zonana, Borden testified that he knew the defendant had seen Zonana, that those interviews had been taped, and that they had taken place after Borden had first seen the defendant. Cegalis testified that he knew Zonana and that, although he had not reviewed Zonana’s taped interviews of the defendant, he had talked briefly with Zonana subsequent to Cegalis’ first interview with the defendant. The involvement of Freedman and Zonana in the defendant’s diagnosis, and their absence from the witness stand, was therefore evident to the jury.
The testimony concerning Freedman and Zonana is significant in two respects. First, it reveals that the adverse inference instruction did not weave evidence favorable to the state out of whole cloth, but instead merely highlighted information that had previously been brought out directly, particularly with regard to Freedman. Second, the testimony reveals that the missing witnesses were not insignificant. See Dent v. United States, 404 A.2d 165, 172 (D.C. App. 1979) (repeated references to persons whose absence was not significant more likely to cumulate prejudice to point of distortion).
Furthermore, the psychiatric testimony presented by the defendant’s experts cut two ways. While Borden testified that he believed the defendant to have been legally insane at the moment that he killed, and Cegalis testified that he was mentally ill and out of control at that time, both also gave testimony that supported a contrary conclusion. In essence, their testimony was that the defendant’s kidnap/rape/murders were ritualistic in nature, and that once the ritual of killing had begun, the defendant could not control himself. Borden initially testified that the killing ritual began when the defendant saw his victim, and later testified that it began when the defendant removed his glasses. When pressed on cross-examination, however, Borden testified that the defendant’s urge to kill became uncontrollable only after the defendant had completed the rape, but he could not pinpoint whether it occurred before or after the defendant actually began to strangle his victim. Borden also testified that the defendant was fully aware of all his actions and that he was not psychotic, while Cegalis testified that he could not conclude that the defendant was psychotic.
Although Borden and Cegalis relied on the similarity among all the murders to support their conclusions that the killings were “ritualistic,” the evidence presented was inconsistent. Borden testified to at least four incidents when the defendant did not complete the kidnap/rape/murder ritual after his assault had begun, and testified also that the defendant commonly stalked women without ever initiating an assault. Borden also agreed, on cross-examination, that his theory of sexual sadism was inconsistent with the defendant’s killing to avoid detection. The jury had substantial evidence before it, including the defendant’s confession, that would support a conclusion that the defendant had killed to avoid detection.
Finally, we note that the defendant bore the burden of proof on the issue of insanity. State v. Joyner, 225 Conn. 450, 464-65, 472, 625 A.2d 791 (1993). Consequently, there was no risk that the missing witness inference might have led the jury to distort the proper allocation of the burden of proof, as might have been the case had the state borne the burden. See State v. Brewer, 505 A.2d 774, 777 (Me. 1985); State v. Schneider, 402 N.W.2d 779, 788 (Minn. 1987); State v. Peterson, 266 Minn. 77, 84, 123 N.W.2d 177 (1963).
We reiterate that we do not dismiss lightly the defendant’s claim that a Secondino charge was inconsistent with his statutory psychiatric privilege and consequently with that part of his attorney-client privilege relating to his unfettered ability to present an insanity defense. Considering all the evidence that was presented to the jury, we nonetheless conclude that, even if the missing witness instruction should not have been given, it was harmless.
2
The defendant requested the trial court to instruct the jury, in accordance with the terms of General Statutes § 54-83, that “[n]o person maybe convicted of any crime punishable by death without the testimony of at least two witnesses, or that which is equivalent thereto.” The trial court instead instructed the jury that, in order to convict the defendant, it would have to find that there was “material and substantial evidence apart from the statement of the accused that the particular crimes charged were committed by the accused.” The jury was told that it had to determine that such evidence “substantially corroborate[d] the admissions or the confessions of the accused.” The defendant maintains that these instructions so deviated from the requirements of § 54-83 that he is entitled to a new trial. We disagree.
First enacted in 1672, § 54-83 has been construed, in this century, to have a dual function. The statute not only imposes an additional evidentiary burden on the state but requires the finder of fact, upon proper instructions, to determine whether the state has met its burden. The defendant therefore has a statutory entitlement to an instruction informing the jury that, in capital cases, the state has an additional evidentiary burden above and beyond its obligation to prove its case beyond a reasonable doubt. See State v. Cots, 126 Conn. 48, 58, 9 A.2d 138 (1939); State v. Williams, 90 Conn. 126, 129, 96 A. 370 (1916); State v. Marx, 78 Conn. 18, 22, 60 A. 690 (1905).
The evidentiary burden imposed on the state by § 54-83 does not, however, preclude a finding of guilt in capital cases in which the state cannot produce two eyewitnesses to the crime. Because the statute allows the state to have recourse to “equivalent” evidence, the state can satisfy its statutory burden by producing more than one witness to provide circumstantial evidence from which the jury may infer the defendant’s guilt. State v. Malm, 142 Conn. 113, 118-19, 111 A.2d 685 (1955); State v. Taborsky, 139 Conn. 475, 483-85, 95 A.2d 59 (1953); State v. Cots, supra, 126 Conn. 57; State v. Chin Lung, 106 Conn. 701, 705, 139 A. 91 (1927); State v. Schutte, 97 Conn. 462, 468-69, 117 A. 508 (1922).
The defendant in this case accordingly does not claim that the state adduced insufficient evidence to prove his guilt beyond a reasonable doubt. With respect to all his victims, the defendant’s confessions were corroborated by the presence of the girls’ bodies and clothing at the locations to which the defendant led the police. In addition, medical testimony confirmed that all but one of the victims had been sexually assaulted and that all had been strangled.
The defendant maintains, nonetheless, that, in light of his request for an instruction pursuant to § 54-83, the trial court improperly failed to inform the jury of the state’s additional evidentiary burden under the statute. We agree that the trial court should have instructed the jury expressly in accordance with the language of the statute. In explaining the applicability of the statute to the circumstances of this trial, the trial court would, appropriately, however, have gone beyond the statutory language. State v. Gabriel, 192 Conn. 405, 419, 473 A.2d 300 (1984). An appropriate explanation of the statute would have presented to the jury substantially those instructions that the trial court actually gave. The trial court’s description of the evidentiary burden imposed by the statute closely paralleled the instructions concerning § 54-83 that we approved in State v. Taborsky, supra, 139 Conn. 484-85.
Even when a defendant requests an instruction that is legally correct, “a court need not tailor its charge to the precise letter of such a request. ... If a requested charge is in substance given, the court’s failure to give a charge in exact conformance with the words of the request will not constitute a ground for reversal.... Whether a charge is possibly misleading depends on the substance rather than the form of what is said.” (Citations omitted; internal quotation marks omitted.) State v. Ortiz, 217 Conn. 648, 662, 588 A.2d 127 (1991). Deviation from a requested instruction is, at most, harmless error so long as the trial court’s instructions include the material portions of the defendant’s request and provide the jury with “a clear understanding of the issues presented for [its] consideration, under the offenses charged and upon the evidence.. ." State v. Harden, 175 Conn. 315, 322-23, 398 A.2d 1169 (1978); State v. Harrell, 199 Conn. 255, 269-71, 506 A.2d 1041 (1986). We are persuaded that, in the circumstances of this case, the defendant was not harmed by the form in which the trial court responded to his request for an instruction pursuant to § 54-83.
3
During its instructions on reasonable doubt, the trial court told the jury that “[pjroof beyond a reasonable doubt can probably best be described as that proof which leaves you with a strong and abiding conviction that the accused is guilty of the crimes with which he has been charged.” Although no exception was taken to this charge at trial, the defendant urges us to conclude that the language employed by the court so diluted the standard of proof beyond a reasonable doubt that the defendant was deprived of his fundamental constitutional right to due process. We disagree. “This court has previously reviewed similar language in jury charges on reasonable doubt and has consistently rejected the proposition that such language amounts to a constitutional error.” State v. Adams, 225 Conn. 270, 291, 623 A.2d 42 (1993); see also State v. Kelley, 229 Conn. 557, 567-68, 643 A.2d 854 (1994).
4
The trial court instructed the jury, in accordance with the provisions of General Statutes §§ 53a-12 and 53a-13, that the defendant bore the burden of proving his affirmative defense of mental disease or defect by a preponderance of the evidence. The defendant argues that the statutes imposing this burden of proof upon him violate the due process clause contained in article first, §§ 8 and 9, of the Connecticut constitution. We disagree. The defendant’s argument principally relies on contentions that we have expressly considered and rejected in State v. Joyner, supra, 225 Conn. 465, 472. We are unpersuaded by his further suggestion that a capital felony prosecution inherently requires a higher standard of due process than would be appropriate for any other serious criminal prosecution.
Also in connection with the defense of mental disease or defect, the trial court instructed the jury, in accordance with the provisions of General Statutes § 54-89a, concerning the consequences of a verdict of not guilty by reason of insanity. The defendant had expressly exercised his right to refuse to waive the requirement that the jury be told the consequences of such a verdict. The court, however, denied the defendant’s request to inform the jury, in its instructions, that he previously had been convicted of capital felonies in Windham and, in those cases, had already been sentenced to two life terms of imprisonment totaling 120 years. The court’s refusal of the defendant’s request to charge was justified by our holding in State v. Wood, 208 Conn. 125, 144, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988), that § 54-89a should be strictly construed. The statute mandates only that the jury learn the consequences of the matters directly before it, to enable it “to reach a determination based on the evidence... unaffected by sympathy, fear or other inappropriate and irrelevant concerns.” Id. The trial court was, therefore, not required to inform the jury concerning the consequences of the defendant’s prior convictions.
5
The trial court further instructed the jury, in accordance with the defendant’s request, that it could consider whether the defendant’s culpability for capital felony should be reduced because of evidence that he suffered from an extreme emotional disturbance. See General Statutes §§ 53a-54a (a) and 53a-55 (a) (2). In its original instructions, the court informed the jury that it was to consider this defense only if it had rejected guilt on the capital felony offenses and was considering the defendant’s culpability of murder as a lesser included offense. In response to exceptions to this charge, the trial court reinstructed the jury that, if it found that “an extreme emotional disturbance had been established, that may be taken into consideration by you in determining whether or not capital felony murder has been established. You may determine it has not because of an extreme emotional disturbance... .” The defendant again excepted, claiming that the curative instruction was confusing.
On appeal, the defendant continues to maintain that the jury was inadequately instructed on the defense of extreme emotional disturbance, while the state maintains that extreme emotional disturbance is not a defense to a capital felony. The state relies on State v. Chicano, 216 Conn. 699, 716-17, 584 A.2d 425, cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), in which we held that extreme emotional disturbance is not an affirmative defense to felony murder as that crime is defined by General Statutes § 53a-54c. We need not, however, resolve the applicability of the defense in this case. If the defense applies, the defendant received its benefit, because the trial court’s supplemental instructions adequately informed the jury of its relationship to the capital felonies with which he was charged. The defendant cannot complain of alleged instructional misstatements that are corrected by a timely supplemental instruction. State v. Dolphin, 195 Conn. 444, 450-51, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); State v. Spates, 176 Conn. 227, 237, 405 A.2d 656, cert. denied, 440 U.S. 922, 99 S. Ct. 1248, 59 L. Ed. 2d 475 (1979). Indeed, a supplemental charge is likely to enjoy special prominence in the minds of the jurors because it is fresher in their minds when they deliberate. State v. Williams, 199 Conn. 30, 41, 505 A.2d 699 (1986).
D
OTHER CLAIMS OF UNDUE PREJUDICE
In addition to the foregoing claims of impropriety at his trial, the defendant claims that he is entitled to a new trial because the trial court: (1) denied his motion for severance; (2) permitted prejudicial commentary by the prosecuting attorney; and (3) refused to overturn the verdicts against him on the ground of juror prejudice. We are not persuaded.
1
The defendant maintains that the trial court improperly denied his motion to sever the three cases that were consolidated for trial. He maintains that the state’s joint presentation of the three cases so intermingled the evidence that the jury was encouraged to rely on a cumulation or aggregation of the evidence in arriving at its verdict. Because each of the cases charged the defendant with crimes that were factually similar and of a violent nature, he contends that the joint trial caused him irreparable prejudice and that the prejudice was not cured by the trial court’s instruction to the jury to treat the three informations as three separate offenses.
The defendant’s claim arose in the following procedural context. The trial court’s initial ruling to consolidate the three cases against the defendant resulted from the defendant’s express representation that he had no preference about whether the cases should be consolidated for trial. Approximately nine months later, the defendant stated on the record that he wanted to try the cases together. Subsequently, however, the defendant made a motion to sever the Rhode Island murders from the other two cases. That motion was premised on the defendant’s expressed desire to testify concerning the jurisdictional facts relating to the Rhode Island murders. In fact, the defendant did not testify at trial.
Even though this procedural history does not definitively establish that the defendant has waived his claim for severance; State v. Herring, 210 Conn. 78, 97, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989); he cannot succeed on its merits. On appeal, our review of a trial court’s order of consolidation is limited to determining whether the trial court has manifestly abused its discretion. State v. Jennings, 216 Conn. 647, 657, 583 A.2d 915 (1990); State v. Herring, supra, 94-95. In this case, the trial court could reasonably have concluded that the three cases involved charges that were factually discrete and easily distinguishable, that the violence involved in each of them would not have led to juror confusion or undue prejudice, and that the joint trial would not have substantially exacerbated the duration and the complexity of the trial. See State v. Boscarino, 204 Conn. 714, 722-23, 529 A.2d 1260 (1987). The defendant did not contest that he was the person who had killed each of the victims. His defense of insanity included references to all the killings, including those that had occurred in Windham county, with respect to which his guilt had already been established. In light of the insanity defense, of which the court had notice when it denied the motion to sever, the jury might well have received evidence about the Rhode Island killings even if those cases had been severed. See State v. Pollitt, 205 Conn. 61, 72, 530 A.2d 155 (1987). The defendant has, therefore, failed to meet his heavy burden of proving an abuse of discretion.
2
The defendant next claims that his constitutional rights were violated by a single statement during the prosecutor’s closing argument. The prosecutor told the jury: “You have a defendant sitting in front of you— and just incidentally, you may take into account whatever you observe in this courtroom about the defendant Michael Ross in your deciding whether or not he was mentally ill at the time that he committed the offenses. You may take that into account.” Although the defendant did not object to the prosecutor’s argument at trial, he now maintains that we should review his claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and find a violation of his due process rights and his rights to representation by counsel under the fifth and sixth amendments to the United States constitution.
While we have recognized the possibility that prosecutorial misconduct of constitutional proportions may arise during the course of closing argument, we have never held that a single questionable prosecutorial statement is sufficient to implicate the fairness of the trial itself. See State v. Joyner, supra, 225 Conn. 473; State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990). Even if it were appropriate to grant broader review to some unpreserved claims in a death penalty case, this claim would not warrant such special consideration in the absence of a showing of significant prejudice. The defendant cannot prevail on this Golding claim.
3
The defendant’s final contention with respect to his guilt of the crimes charged is that he presented sufficient evidence of juror prejudice to require the trial court to grant his motion to set aside the verdicts and for a new trial. The motion was grounded principally on two allegations: (1) the jury’s very brief period of deliberation; and (2) the conduct of one juror, who “smiled broadly” at the father of one of the victims at the time of the verdicts. The defendant also informed the court that, following the verdicts, the mother of one of the victims had verbally thanked the jury. The trial court denied the defendant’s request for an evidentiary hearing into these allegations of prejudice and denied his motion on its merits.
“Appellate review of a trial court’s decision granting or denying a motion for a new trial must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided.... [W]e have... accordingly confined our role to a determination of whether there has been an abuse of discretion.” State v. Hammond, 221 Conn. 264, 269-70, 604 A.2d 793 (1992). Claims of juror misconduct fall within this rule of limited review. State v. Asherman, 193 Conn. 695, 735-36, 478 A.2d 227, cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).
The fact that jury deliberations took only a little more than one hour does not establish the defendant’s claim of juror prejudice. In the absence of a claim of external influence or juror misconduct, “[t]he length of time that a jury deliberates has no bearing on nor does it directly correlate to the strength or correctness of its conclusions or the validity of its verdict.” State v. Hernandez, 28 Conn. App. 126, 136, 612 A.2d 88, cert. denied, 223 Conn. 920, 614 A.2d 828 (1992); State v. Dubina, 164 Conn. 95, 101, 318 A.2d 95 (1972).
The limited postverdict contacts between the jurors and the victims’ parents similarly do not establish that there were any impermissible communications to or by the jurors during the course of the trial or during their deliberations. In response to the trial court’s inquiry, the defendant acknowledged that he had no other information relevant to his allegations of juror prejudice. On this record, the defendant has offered insufficient allegations of actual bias to require the trial court either to hold an evidentiary hearing or to set aside the jury’s verdicts. State v. Almeda, 189 Conn. 303, 313, 455 A.2d 1326 (1983).
In summary, we have examined each of the defendant’s claims relating to his guilt, under § 53a-54b (5) and (7), of the six capital felony counts relating to his murder of Wendy B., Robyn S., April B. and Leslie S. We find no reason for reversing the verdicts of the jury on any of these counts.
II
Facial Validity of the Death Penalty Statute
The defendant next challenges the facial validity of the provisions of the death penalty statute both under the federal constitution and under the state constitution. Although the defendant also raises constitutional issues with respect to the application of § 53a-46a in his particular circumstances, we will consider those issues, to the extent required, in part III of this opinion.
With respect to the federal constitution, the defendant maintains that § 53a-46a impermissibly: (1) fails to provide for an individual decision by a capital sentencer; (2) fails to provide an opportunity for a full individualized consideration of himself as defendant; (3) requires the defendant to prove the existence of a mitigating factor by a preponderance of the evidence; (4) embodies a presumption that death is the appropriate penalty; (5) authorizes an aggravating factor that is unconstitutionally vague; and (6) requires juror unanimity before a mitigating factor can be given effect. In light of the governing federal precedents, we find none of these claims persuasive.
With respect to the state constitution, the defendant maintains that: (1) any imposition of the death penalty constitutes cruel and unusual punishment, and such a penalty is barred as a matter of substantive due process; and (2) the statutory procedures contained in § 53a-46a violate procedural due process. We are not persuaded that state constitutional analyses or precedents support either of these claims.
A
FEDERAL CONSTITUTIONAL ISSUES
1
Analysis of the defendant’s specific claims that our death penalty statute fails to conform to federal constitutional mandates must begin with an overview of the applicable law under the eighth and fourteenth amendments to the federal constitution. Since Gregg v. Georgia, 428 U.S. 153, 186-87, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), the death penalty is not per se unconstitutional as a matter of federal law. As the United States Supreme Court stated in California v. Ramos, 463 U.S. 992, 999, 103 S. Ct. 3446, 77 L. Ed. 2d 1171 (1983), “[i]n ensuring that the death penalty is not meted out arbitrarily or capriciously, the Court’s principal concern has been more with the procedure by which the State imposes the death sentence than with the substantive factors the State lays before the jury as a basis for imposing death, once it has been determined that the defendant falls within the category of persons eligible for the death penalty.” (Emphasis in original.)
Recognizing the unique nature of the death penalty and the need for heightened reliability in death penalty deliberations; Sumner v. Shuman, 483 U.S. 66, 72, 107 S. Ct. 2716, 97 L. Ed. 2d 56 (1987); California v. Brown, 479 U.S. 538, 543, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987); Caldwell v. Mississippi, 472 U.S. 320, 329, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985); California v. Ramos, supra, 463 U.S. 998-99; Roberts v. Louisiana, 428 U.S. 325, 333-36, 96 S. Ct. 3001, 49 L. Ed. 2d 974 (1976); Woodson v. North Carolina, 428 U.S. 280, 303-306, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976); Jurek v. Texas, 428 U.S. 262, 271-72, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976); Proffitt v. Florida, 428 U.S. 242, 252-53, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976); Gregg v. Georgia, supra, 428 U.S. 188-95; the United States Supreme Court has derived from the eighth amendment’s proscription of cruel and unusual punishment two principal prerequisites to assure the propriety of the imposition of the death penalty in any particular case. “First, sentencers may not be given unbridled discretion in determining the fates of those charged with capital offenses. The Constitution instead requires that death penalty statutes be structured so as to prevent the penalty from being administered in an arbitrary and unpredictable fashion.... Second, even though the sentencer’s discretion must be restricted, the capital defendant generally must be allowed to introduce any relevant mitigating evidence regarding his character or record and any of the circumstances of the offense.... Consideration of such evidence is a constitutionally indispensable part of the process of inflicting the penalty of death.” (Citations omitted; internal quotation marks omitted.) California v. Brown, supra, 541. “[A] system of capital punishment [must be] at once consistent and principled but also humane and sensible to the uniqueness of the individual.... [It must] serve both goals of measured, consistent application and fairness to the accused.” Eddings v. Oklahoma, 455 U.S. 104, 110-11, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982); see also Spaziano v. Florida, 468 U.S. 447, 459-60, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984).
The first prerequisite prohibiting unbridled discretion requires death penalty statutes to be structured so that the death penalty is imposed in a consistent and reliable manner. In deciding to authorize capital punishment, a state “has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty [including] defining] the crimes for which death may be the sentence in a way that obviates standardless sentencing discretion.” (Internal quotation marks omitted.) Godfrey v. Georgia, 446 U.S. 420, 428, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980). A statutory requirement that, before death may be imposed, the sentencer must find at least one statutorily mandated aggravating circumstance is a constitutionally permissible response to the need to avoid standardless sentencing discretion and to narrow the class of persons eligible for the death penalty. Blystone v. Pennsylvania, 494 U.S. 299, 302, 110 S. Ct. 1078, 108 L. Ed. 2d 255 (1990); Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988); Jurek v. Texas, supra, 428 U.S. 270-71, 276; Proffitt v. Florida, supra, 428 U.S. 251-53; Gregg v. Georgia, supra, 428 U.S. 198.
The eighth amendment’s mandate that the death penalty may only be imposed in a manner that is consistent and reliable also imposes other conditions on the validity of a death penalty statute. A constitutional concern for accurate sentencing information requires that the defendant be afforded access to and an opportunity to rebut all relevant sentencing information. Gardner v. Florida, 430 U.S. 349, 357-58, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977) (plurality opinion); Gregg v. Georgia, supra, 428 U.S. 190. To focus attention on the importance of sentencing decisions, a death penalty may not constitutionally be imposed without a bifurcated hearing that addresses the appropriate sentence separately from the determination of guilt. Gregg v. Georgia, supra, 190-92, 195. Finally, to provide a check against having a death sentence imposed under the influence of passion or prejudice, or in a random and arbitrary manner, there must be an opportunity for meaningful appellate review. Jurek v. Texas, supra, 428 U.S. 276; Proffitt v. Florida, supra, 428 U.S. 258-60; Gregg v. Georgia, supra, 198, 207; see also Pulley v. Harris, 465 U.S. 37, 44-45, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984) (proportionality review not constitutionally required).
The second prerequisite for a valid death penalty statute is that, in addition to achieving consistency and reliability, it must also focus the sentencer’s attention on “the character and record of the individual offender and the circumstances of the particular offense... .” Woodson v. North Carolina, supra, 428 U.S. 304. “ ‘[T]he Eighth and Fourteenth Amendments require that the sentencer... 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.’ ” (Emphasis in original.) Eddings v. Oklahoma, supra, 455 U.S. 110, quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) (Burger, C. J., for plurality); see also Payne v. Tennessee, 501 U.S. 808, 822, 111 S. Ct. 2597, 115 L. Ed. 2d 720, reh. denied, 501 U.S. 1277, 112 S. Ct. 28, 115 L. Ed. 2d 1110 (1991); Sumner v. Shuman, supra, 483 U.S. 75-76; Hitchcock v. Dugger, 481 U.S. 393, 394, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987); Skipper v. South Carolina, 476 U.S. 1, 4, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986); Zant v. Stephens, 462 U.S. 862, 879, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983); Jurek v. Texas, supra, 428 U.S. 271-72; Gregg v. Georgia, supra, 428 U.S. 189. The sentence imposed at the penalty stage “should reflect a reasoned moral response to the defendant’s background, character, and crime.” (Emphasis in original; internal quotation marks omitted.) Penry v. Lynaugh, 492 U.S. 302, 319, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989). “In contrast to the carefully defined standards that must narrow a sentencer’s discretion to impose the death sentence, the Constitution limits a State’s ability to narrow a sentencer’s discretion to consider relevant evidence that might cause it to decline to impose the death sentence.” (Emphasis in original.)McCleskey v. Kemp, 481 U.S. 279, 304, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987).
Although this second prerequisite demands that the sentencer “ ‘must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background and character or the circumstances of the crime’ "; Blystone v. Pennsylvania, supra, 494 U.S. 304-305, quoting Penry v. Lynaugh, supra, 492 U.S. 328; the federal constitution does not require “unfettered sentencing discretion .... States are free to structure and shape consideration of mitigating evidence in an effort to achieve a more rational and equitable administration of the death penalty.” (Internal quotation marks omitted.) Boyde v. California, 494 U.S. 370, 377, 110 S. Ct. 1190, 108 L. Ed. 2d 316, reh. denied, 495 U.S. 924, 110 S. Ct. 1961, 109 L. Ed. 2d 322 (1990); Saffle v. Parks, 494 U.S. 484, 492-93, 110 S. Ct. 1257, 108 L. Ed. 2d 415, reh. denied, 495 U.S. 924, 110 S. Ct. 1960, 109 L. Ed. 2d 322 (1990). Federal precedents have upheld the constitutionality of state statutes that, like our own, permit the imposition of the death penalty: (1) if the sentencer finds the existence of at least one aggravating factor and no mitigating factor, as long as the sentencer could consider a broadly phrased and nonexclusive list of mitigating factors; Boyde v. California, supra, 373-78; Blystone v. Pennsylvania, supra, 304-307; and (2) if the sentencer finds that the defendant has not proved the existence of a mitigating factor by a preponderance of the evidence. Walton v. Arizona, 497 U.S. 639, 649-51, 110 S. Ct. 3047, 111 L. Ed. 2d 511, reh. denied, 497 U.S. 1050, 111 S. Ct. 14, 111 L. Ed. 2d 828 (1990); Blystone v. Pennsylvania, supra, 306 n.4. The determination of whether death is the appropriate punishment should be based on a “reasoned moral response... rather than an emotional one.” (Citation omitted; internal quotation marks omitted.) Saffle v. Parks, supra, 493; California v. Brown, supra, 479 U.S. 542-43.
“In sum, [the United States Supreme Court’s] decisions [regarding its eighth amendment jurisprudence] since Furman [v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972),] have identified a constitutionally permissible range of discretion in imposing the death penalty. First, there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decisionmaker’s judgment as to whether the circumstances of a particular defendant’s case meet the threshold. Moreover, a societal consensus that the death penalty is disproportionate to a particular offense prevents a State from imposing the death penalty for that offense. Second, States cannot limit the sentenced s consideration of any relevant circumstances that could cause it to decline to impose the penalty. In this respect, the State cannot channel the sentencer’s discretion, but must allow it to consider any relevant information offered by the defendant.” McCleskey v. Kemp, supra, 481 U.S. 305-306.
2
Bearing these federal constitutional principles in mind, we now turn to an assessment of the facial validity of our death penalty statutes in light of the defendant’s claims. The defendant claims that § 53a-46a is unconstitutional on its face because it: (1) fails to provide for an individual decision by a capital sentencer; (2) fails to provide an opportunity for a full individualized consideration of himself as defendant; (3) requires the defendant to prove the existence of a mitigating factor by a preponderance of the evidence; (4) embodies a presumption that death is the appropriate penalty; (5) authorizes an aggravating factor that is unconstitutionally vague; and (6) requires juror unanimity before a mitigating factor can be given effect. We disagree.
In our assessment of whether the statute passes constitutional muster, we proceed from the well recognized jurisprudential principle that “[t]he party attacking a validly enacted statute... bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute’s constitutionality. ... In choosing between two constructions of a statute, one valid and one constitutionally precarious, we will search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent.... We undertake this search for a constitutionally valid construction when confronted with criminal statutes as well as with civil statutes.” (Citations omitted.) State v. Breton, 212 Conn. 258, 269, 562 A.2d 1060 (1989). The burden of proving unconstitutionality is especially heavy when, as at this juncture, a statute is challenged as being unconstitutional on its face. State v. Floyd, 217 Conn. 73, 78, 584 A.2d 1157 (1991).
We cannot review the defendant’s specific claims of unconstitutionality without placing them into the context of our 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 sentencer to find, beyond a reasonable doubt, the existence of at least one statutorily delineated aggravating factor. General Statutes § 53a-46a (b), (e), (f) and (h); State v. Daniels, 207 Conn. 374, 384, 542 A.2d 306 (1988). At the third and final tier, our statute “ ‘separates, from all cases in which a penalty of death may be imposed, those cases in which it shall be imposed’ "; Zant v. Stephens, supra, 462 U.S. 871; by requiring a sentencer to find, by a preponderance of the evidence, whether a mitigating factor exists. General Statutes § 53a-46a (e). In making this determination, the capital sentencer 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 sentencer fails to find the existence of a mitigating factor, after having found the existence of an aggravating factor, the court must sentence the defendant to death. General Statutes § 53a-46a (f). Otherwise, the court must impose a sentence of life imprisonment without possibility of release.
In their overall configuration, our death penalty statutes facially satisfy the constitutional requirements of the eighth and fourteenth amendments to the United States constitution. The multitiered pyramid meets the prerequisite of consistency and reliability by guiding the capital sentencer’s discretion with clear and objective standards that narrow the class of defendants eligible for the death penalty and by providing a meaningful basis for distinguishing between those cases in which the death penalty is imposed and those in which it is not. The third tier in the pyramid meets the individualization prerequisite by requiring the sentencer to consider any relevant mitigating information so as to enable the sentencer to make the reasoned moral judgment that death is the appropriate punishment in a particular case. See Walton v. Arizona, supra, 497 U.S. 647-49; Boyde v. California, supra, 494 U.S. 373-78; Blystone v. Pennsylvania, supra, 494 U.S. 305; Zant v. Stephens, supra, 462 U.S. 879; Eddings v. Oklahoma, supra, 455 U.S. 110-12; Lockett v. Ohio, supra, 438 U.S. 601-605; Gregg v. Georgia, supra, 428 U.S. 189. Notably, because our statute does not permit the weighing of aggravating and mitigating factors but permits the death sentence to be imposed only if no mitigating circumstances are found; General Statutes § 53a-46a (e) and (f); it is more stringent than the Pennsylvania sentencing statute that was found constitutional in Blystone v. Pennsylvania, supra, 299. Furthermore, because our statute mandates this court’s review of the relevant factual findings and scrutiny of the record to assure that the death penalty was not “the product of passion, prejudice or any other arbitrary factor”; General Statutes § 53a-46b (b) (1); it satisfies the constitutional requirement of meaningful appellate review. Gregg v. Georgia, supra, 198, 207.
The defendant, however, raises six specific constitutional challenges to the facial validity of our death penalty statutes. The defendant’s first two claims are interrelated. He claims both that our death penalty sentencing system fails to provide for an individualized decision that the death penalty is the appropriate sentence by an appropriate sentencer, and that our sentencing system imposes a mandatory death sentence on a particular class of defendants without the full, individualized consideration by the sentencer of whether death is the appropriate penalty for each defendant. As a facial challenge to the validity of our death penalty sentencing statutes, these claims of a lack of appropriately guided discretion are not tenable under the federal constitution.
The United States Supreme Court has stated that the capital sentencer must make a reasoned moral and individualized determination based on the defendant’s background, character and crime that death is the appropriate punishment. Penry v. Lynaugh, supra, 492 U.S. 319; Caldwell v. Mississippi, supra, 472 U.S. 330-32; see also Saffle v. Parks, supra, 494 U.S. 492-93; California v. Brown, supra, 479 U.S. 541, 543. Our death penalty statutes fulfill this requirement.
Under § 53a-46a (b), the capital sentencer is either a jury or the court. The sentencer determines whether the defendant, who has been convicted of a capital felony, should receive the punishment of death by making findings regarding the existence of any aggravating or mitigating factors. General Statutes § 53a-46a (e). The requirement that the sentencer’s determination be made by setting forth its findings regarding aggravating and mitigating factors merely guides the sentencer’s discretion to achieve a more focused and rational response. Boyde v. California, supra, 494 U.S. 377; Blystone v. Pennsylvania, supra, 494 U.S. 304-305.
The sentencer makes the required moral and individualized-determination, under our statute, because it must consider a nonexclusive list of mitigating factors as well as a catchall category consisting of any other “mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime.” General Statutes § 53a-46a (b); and see § 53a-46a (f). The catchall category of mitigating factors includes those factors “which, in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of [the defendant’s] culpability or blame for the offense or to otherwise constitute a basis for a sentence less than death.” General Statutes § 53a-46a (d). The ability to consider an unrestricted set of mitigating factors satisfies federal constitutional requirements for a moral and individualized decision. Blystone n. Pennsylvania, supra, 494 U.S. 305.
Furthermore, it is evident that the capital sentencer, either a jury or the court, in making its determination regarding the existence of aggravating and mitigating factors during the separate sentencing hearing is aware that its “task [is] the serious one of determining whether a specific human being should die at the hands of the State.” Caldwell v. Mississippi, supra, 472 U.S. 329. Finally, the death sentence is mandatorily imposed only after the capital sentencer has determined unanimously that at least one aggravating factor exists and no mitigating factors exist, and has come to this unanimous determination by engaging in a full, individualized consideration as to whether death is the appropriate penalty for each defendant. Blystone v. Pennsylvania, supra, 494 U.S. 303-305.
We conclude, therefore, that our capital sentencing statutes, on their face, give the capital sentencer, either a jury or the court, the proper amount of guided discretion to make the appropriate determination regarding the individual defendant with regard to the defendant’s specific crime. Because the statutes are not impermissibly mandatory, they comply with the eighth and the fourteenth amendments to the United States constitution.
The defendant’s next two claims are that our death penalty statute is facially unconstitutional because, first, as construed in State v. Daniels, supra, 207 Conn. 385, the statute requires the defendant to prove the existence of a mitigating factor by a preponderance of the evidence and, second, the statute embodies a presumption of death once the state proves the existence of an aggravating factor. Both claims are foreclosed by the United States Supreme Court’s recent decision in Walton v. Arizona, supra, 497 U.S. 649-52.
The defendant next claims that the aggravating factor that the state charged, and that the jury found to have been proven in this case, is unconstitutionally vague on its face. The § 53a-46a (h) (4) aggravating factor provides that “[i]f no mitigating factor is present, the court shall impose the sentence of death on the defendant if the jury... finds... that... the defendant committed the offense in an especially heinous, cruel or depraved manner.” (Emphasis added.) The United States Supreme Court has held the terms “heinous, atrocious, or cruel” to be unconstitutionally vague; Maynard v. Cartwright, 486 U.S. 356, 363-65, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988); see also Godfrey v. Georgia, supra, 446 U.S. 428-33 (holding the terms “outrageously or wantonly vile, horrible or inhuman” as unconstitutionally vague); unless they have been appropriately construed and limited by the state’s court. Maynard v. Cartwright, supra, 359-60; Godfrey v. Georgia, supra, 428-29; Proffitt v. Florida, supra, 428 U.S. 255-56. In State v. Breton, supra, 212 Conn. 270, we adopted a limiting definition of the term “especially cruel” in our construction of the § 53a-46a (h) (4) aggravating factor. Similarly, the terms “heinous” and “depraved” are susceptible of limiting constructions in conjunction with our definition of “especially cruel.” See part III A 1. So construed, § 53a-46a (h) (4) is not unconstitutionally vague under the eighth and fourteenth amendments to the federal constitution.
The defendant’s final claim is that our death penalty system, as construed in State v. Daniels, supra, 207 Conn. 374, is facially unconstitutional because it requires the jury to be unanimous in finding the existence of a mitigating factor before an individual juror can give effect to any mitigating factor. The defendant finds support for his position in McKoy v. North Carolina, 494 U.S. 433, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), in which North Carolina’s death penalty sentencing statute was held to be unconstitutional because the jury, acting as the capital sentencer, could consider only those mitigating circumstances found unanimously when it weighed mitigating circumstances against aggravating circumstances in deciding whether to impose the death penalty. This unanimity requirement was declared to be unconstitutional because it impermissibly prevented each juror from considering and giving effect to all mitigating evidence. Id., 437-38.
Although in State v. Daniels, supra, 207 Conn. 388-89, we held that the jury had to be unanimous in its finding that the defendant had proven the existence of a mitigating factor by a preponderance of the evidence, that holding arose in the context of a hung jury. In those circumstances, we stated that, in “death penalty cases in which a trier of fact cannot come to a unanimous finding about the existence of mitigating factors.... [T]he statute neither authorizes imposition of the death penalty nor requires the imposition of a life sentence.... [T]he 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. A unanimous jury verdict that the defendant did not prove that a mitigating factor exists fulfills the statutory requirement that the death penalty not be imposed unless ‘no mitigating factors exist’ within the meaning of § 53a-46a (e).... Faced with a jury that is unable to agree unanimously on its findings, the trial court may, in the exercise of its discretion, grant a motion for mistrial [pursuant to Practice Book § 889,] by either party [or] enter a judgment ‘acquitting’ the defendant of the death penalty [pursuant to Practice Book § 883.]” Id., 394-96.
Our holding in Daniels did not imply that individual jurors are precluded from considering and giving effect to all mitigating evidence in a death penalty sentencing hearing. The unanimity requirement in our statute requires unanimity only in the sense that each juror must find at least one mitigating factor that was proved by a preponderance of the evidence. The jury need not unanimously find the same mitigating factor to have been proven by a preponderance of the evidence. So construed, our death penalty sentencing statute avoids the unanimity problem identified in McKoy, because our unanimity requirement does not interfere with the ability of each individual juror to consider and to give effect to any mitigating factor of which he or she is convinced by a preponderance of the evidence. McKoy v. North Carolina, supra, 494 U.S. 439-44. With respect to this claim as well, therefore, we conclude that our death penalty statutes are not unconstitutional on their face as a matter of federal constitutional law.
B
STATE CONSTITUTIONAL ISSUES
The defendant contends, in the alternative, that our death penalty statutes facially violate article first, §§ 8 and 9 of the state constitution. This contention is advanced on two theories. Broadly, the defendant maintains that our state constitution impliedly forbids any punishment that is cruel and unusual and that imposition of the death penalty invariably constitutes cruel and unusual punishment. More narrowly, the defendant maintains that certain specific statutory procedures contained in § 53a-46a violate procedural due process as defined by the state constitution. We are not persuaded that applicable state constitutional analyses or precedents support either claim.
1
The defendant broadly claims that our state constitution forbids any imposition of the death penalty because such a penalty, regardless of the circumstances, constitutes cruel and unusual punishment. He maintains that a proper construction of the provisions of our state constitution requires rejection of the contrary holding of the United States Supreme Court in Gregg v. Georgia, supra, 428 U.S. 153. We disagree.
In order to resolve this claim, we must address two issues. We must first decide whether our state constitution contains any prohibition of cruel and unusual punishment. If that question is decided in the affirmative, we must then decide whether imposition of the death penalty invariably violates such a constitutional prohibition.
Unlike the eighth amendment to the federal constitution, no provision in our state constitution specifically proscribes cruel and unusual punishment. Nonetheless, we are free to interpret the due process guarantees contained in our state constitution to prohibit governmental infliction of cruel and unusual punishments. See State v. Kreminski, 178 Conn. 145, 153 and n.4, 422 A.2d 294 (1979); State v. Kyles, 169 Conn. 438, 442-44, 363 A.2d 97 (1975).
In determining the scope of our state constitution’s due process clauses, we have taken as a point of departure those constitutional or quasi-constitutional rights that were recognized at common law in this state prior to 1818. This is the analysis that we undertook when the question was whether our state constitution protects criminal defendants from double jeopardy. Despite the absence of an express constitutional provision on the subject, we held that our due process clause impliedly includes a right to protection against double jeopardy, because protection against double jeopardy was recognized as a fundamental right in the common law of this state. State v. Rawls, 198 Conn. 111, 113 n.3, 502 A.2d 374 (1985); Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962); see also E. Peters, “Common Law Antecedents of Constitutional Law in Connecticut,” 53 Alb. L. Rev. 259 (1989).
Applying the same analysis to this case, we are persuaded that our due process clauses impliedly prohibit punishment that is cruel and unusual. Prior to the adoption of the state constitution in 1818, the common law in Connecticut recognized that the state did not have unlimited authority to inflict punishment for the commission of a crime. See State v. Smith, 5 Day (Conn.) 175, 178-79 (1811); see also 2 Z. Swift, A Digest of the Laws of the State of Connecticut (1822) pp. 268-69, 362, 418-19 (“[A]nd though the law invests goalers with all the powers necessary for the interest of the commonwealth, yet they are not to behave with the least degree of wanton cruelty to their prisoners”; rules against execution of the insane and pregnant women). Accordingly, we have routinely assumed that our constitution includes a prohibition against cruel and unusual punishment. State v. Dupree, 196 Conn. 655, 665, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985); State v. Kreminski, supra, 178 Conn. 153 and n.4 (article first, § 8); State v. Kyles, supra, 169 Conn. 442-44 (article first, § 9); State v. Levy, 103 Conn. 138, 148, 130 A. 96 (1925) (unspecified); cf. Cinque v. Boyd, 99 Conn. 70, 94-95, 121 A. 678 (1923) (article first, § 10, now § 9, pertaining to juvenile detention). The state does not seriously argue to the contrary.
The unresolved question is whether, construed to bar punishment that is cruel and unusual, the due process clauses of our state constitution forbid any enactment of a death penalty for all cases and under all circumstances. Before addressing the merits of that question, we note preliminarily that our state constitutional inquiry may proceed independently from the decisions of the United States Supreme Court upholding the constitutionality of the death penalty. “We may find greater protection of individual rights under our state constitution than that provided by the federal constitution. It is well established that federal constitutional law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights.... Moreover, we have held that in the area of fundamental civil liberties—which includes all protections of the declaration of rights contained in article first of the Connecticut constitution— we sit as a court of last resort. In such constitutional adjudication, our first referent is Connecticut law and the full panoply of rights Connecticut citizens have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but they are to be followed by Connecticut courts only when they provide no less individual protection than is guaranteed by Connecticut law.... Recognizing that our state constitution is an instrument of progress ... is intended to stand for a great length of time and should not be interpreted too narrowly or too literally ... we have concluded in several cases that the state constitution provides broader protection of individual rights than does the federal constitution.” (Citations omitted; internal quotation marks omitted.) State v. Miller, 227 Conn. 363, 379-80, 630 A.2d 1315 (1993).
The defendant urges us to exercise our independent authority under the state constitution to declare any imposition of the death penalty invalid as cruel and inhuman punishment because it no longer comports with contemporary standards of decency and civilization. He maintains that the death penalty can never be constitutional for three overlapping reasons: the death penalty violates the fundamental value and dignity of life itself; it cannot be carried out without the infliction of inhuman pain; and it serves no valid or compelling state purpose. The state urges us to conclude to the contrary, for two related reasons: the prohibition of cruel and inhuman punishment is grounded solely in article first, § 9; and, as a matter of constitutional history and contrary to State v. Lamme, 216 Conn. 172, 178-82, 579 A.2d 484 (1990), article first, § 9, confers the authority to determine what constitutes cruel and unusual punishment solely on the Connecticut legislature and not on the courts.
If the state were correct in its construction of our constitutional prohibition of cruel and inhuman punishment, that would end the matter. We are not, however, prepared to overlook article first, § 8, as a constitutional basis for the prohibition. We are likewise unprepared to overrule our holding in Lamme that, in contemporary constitutional jurisprudence, article first, § 9, has “independent substantive significance” that may protect constitutional rights not embodied in the form of a statute. State v. Lamme, supra, 216 Conn. 182; see State v. White, 229 Conn. 125, 152-55, 640 A.2d 572 (1994). Although we should exercise our authority with great restraint, this court cannot abdicate its nondelegable responsibility for the adjudication of constitutional rights.
We turn therefore to the defendant’s contention that we should declare the death penalty to be unconstitutionally unacceptable on its face. In our analysis of issues arising, for the first time, under the state constitution, we have identified six factors to be considered: (1) the text of the constitutional provisions; (2) related Connecticut precedents; (3) persuasive federal precedents; (4) persuasive precedents of other state courts; (5) historical insights into the intent of our constitutional forebears; and (6) contemporary understandings of applicable economic and sociological norms. State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992).
The first five factors do not support the defendant’s argument. In article first, § 8, and article first, § 19, our state constitution makes repeated textual references to capital offenses and thus expressly sustains the constitutional validity of such a penalty in appropriate circumstances. Connecticut case law has recognized the facial constitutionality of the death penalty under the eighth and fourteenth amendments to the federal constitution. See, e.g., State v. Davis, 158 Conn. 341, 358, 260 A.2d 587 (1969), vacated and remanded on other grounds, 408 U.S. 935, 92 S. Ct. 2856, 33 L. Ed. 2d 750 (1972). Federal constitutional law does not forbid such a statute outright. Gregg v. Georgia, supra, 428 U.S. 153. Courts in the overwhelming majority of our sister states have rejected facial challenges to the death penalty under their state constitutions. Finally, Connecticut’s history has included a death penalty statute since 1650, when it was incorporated into Ludlow’s Code; see 3 N. Osborn, History of Connecticut (1925) pp. 24-25; and such a penalty was considered constitutional at the time of the adoption of the constitution of 1818.
We must therefore decide whether contemporary understandings of applicable economic and sociological norms compel the conclusion that any death penalty constitutes cruel and unusual punishment. The question is not whether any one of us would vote to enact a death penalty if our role were that of a legislator. It is, rather, whether the defendant is correct in his contention that the death penalty is so inherently cruel and so lacking in moral and sociological justification that it is unconstitutional on its face because it is fundamentally offensive to evolving standards of human decency. Stated so categorically, we are unpersuaded by the defendant’s contention. Judicial evaluation of evolving standards of human decency cannot proceed in a vacuum. Community standards of acceptable legislative policy choices are necessarily reflected in the text of our constitutional document, in our history and in the teachings of the jurisprudence of our sister states as well as that of the federal courts. While we should not blindly follow a beaten path, we agree with the New Jersey Supreme Court’s cogent observation: “When, in the course of a decade, thirty-seven states call for the death penalty, the probability that the legislature of each state accurately reflects its community’s standards approaches certainty.” State v. Ramseur, 106 N.J. 123, 173, 524 A.2d 188 (1987).
To say that imposition of the death penalty is not cruel and unusual punishment in all circumstances is not to say, however, that the death penalty can be imposed without any constitutional constraints. Community standards of acceptable legislative choices do not go that far. In State v. Lamme, supra, 216 Conn. 184, we observed that “federal constitutional precedents [may] appropriately illuminate open textured provisions in our own organic document” and that reasoned adoption of such precedents “in no way compromises our obligation independently to construe the provisions of our state constitution.” Accordingly, we hold that the due process clauses of our state constitution incorporate the principles underlying a constitutionally permissible death penalty statute that the United States Supreme Court has articulated in cases such as California v. Brown, supra, 479 U.S. 541, Eddings v. Oklahoma, supra, 455 U.S. 110-12, and Lockett v. Ohio, supra, 438 U.S. 602-605. These principles require, as a constitutional minimum, that a death penalty statute, on the one hand, must channel the discretion of the sentencing judge or jury so as to assure that the death penalty is being imposed consistently and reliably and, on the other hand, must permit the sentencing judge or jury to consider, as a mitigating factor, any aspect of the individual defendant’s character or record as well as the circumstances of the particular offense. Our death penalty statute, § 53a-46a, meets these minimum state constitutional law requirements.
2
In addition to his contention that the death penalty violates the constitutional prohibition of cruel and unusual punishment, the defendant also challenges several specific provisions of § 53a-46a as facially unconstitutional as a matter of due process under the state constitution. These claims can be grouped as follows. First, the death penalty statutes violate due process because they fail to provide for an individualized decision maker, or for an individualized decision about the propriety of the death sentence in any particular case. Second, the death penalty statute unconstitutionally requires the defendant to prove the existence of a mitigating factor and thereby embodies a presumption of death. Third, the aggravating factor that the defendant committed the capital felony “in an especially heinous, cruel or depraved manner”; General Statutes § 53a-46a (h) (4); is unconstitutionally vague. Fourth, the requirement of juror unanimity in finding the existence of a mitigating factor unconstitutionally requires jurors to agree on the weight that each will assign to mitigating evidence. These claims mirror the specific contentions that the defendant raised as a matter of federal constitutional law and that we have found unpersuasive in light of the applicable federal precedents. We find them equally unpersuasive as a matter of state constitutional law.
The defendant’s state constitutional claims that § 53a-46a lacks the required individualized decision maker and the required individualized decision to impose the death penalty are misconstructions of the structure of the statute. As we noted in discussing this claim under the federal constitution, our statute identifies the capital sentencer as being either the jury or the court. The statute thereafter provides the capital sentencer with sufficient latitude to make a reasoned moral and individualized determination, based on the defendant’s background, character and crime, that death is the appropriate punishment. See part II A. The statute enables a jury, with appropriate instructions, to make this awesome decision in a manner that is appropriately wide-angled and open-textured. So construed, the statute is “entirely consonant with the general contours of a constitutional safeguard rooted in flexible principles of due process.” State v. Lamme, supra, 216 Conn. 178; State v. Joyner, 225 Conn. 450, 470-72, 625 A.2d 791 (1993). Other state courts have come to the same conclusion. People v. Brown, 40 Cal. 3d 512, 538-44, 726 P.2d 516, 230 Cal. Rptr. 834 (1986), rev’d on other grounds, 479 U.S. 538, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987); State v. Bey, 112 N.J. 123, 162-63, 548 A.2d 887 (1988).
The defendant maintains that § 53a-46a facially violates his right to due process because, as that statute was construed in State v. Daniels, supra, 207 Conn. 383, he bore the burden of establishing the existence of a mitigating factor by a preponderance of the evidence. Assigning this burden of proof to him, he maintains, is per se unconstitutional and means that the statute in effect embodies a presumption of death whenever the jury finds that an aggravating factor has been established. We rejected a similar argument in State v. Joyner, supra, 225 Conn. 470-72, in which we found no constitutional impediment to requiring a defendant to bear the burden of proving his insanity. In Joyner, we found it significant that a “defendant is much more likely than the state to be able to produce reliable evidence of his own mental status.” Id., 471-72. That reasoning applies equally to the defendant’s superior access to mitigating information in a death penalty case. The defendant’s claim to the contrary has been rejected not only by the United States Supreme Court in Walton v. Arizona, supra, 497 U.S. 639, but also by a substantial number of state courts. See State v. Richmond, 136 Ariz. 312, 316, 666 P.2d 57, cert. denied, 464 U.S. 986, 104 S. Ct. 435, 78 L. Ed. 2d 367 (1983); State v. Charboneau, 116 Idaho 129, 154, 774 P.2d 299 (1989), overruled in part on other grounds, State v. Card, 121 Idaho 425, 825 P.2d 1081 (1991); People v. Bean, 137 Ill. 2d 65, 138-40, 560 N.E.2d 258 (1990), cert. denied, 499 U.S. 932, 111 S. Ct. 1338, 113 L. Ed. 2d 270 (1991); Ake v. State, 663 P.2d 1, 10-11 (Okla. Crim. App. 1983), rev’d on other grounds, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). We concur with their holdings that, once guilt has been established and the state has proved the existence of an aggravating factor, “due process is not offended by requiring the already guilty defendant to carry the burden of showing why he should receive leniency.” State v. Watson, 120 Ariz. 441, 447, 586 P.2d 1253 (1978), cert. denied, 440 U.S. 924, 99 S. Ct. 1254, 59 L. Ed. 2d 478 (1979).
The defendant next claims that the death penalty statute is unconstitutionally vague because of inherent ambiguity in the aggravating factor contained in § 53a-46a (h) (4). We have addressed this claim in State v. Breton, supra, 212 Conn. 268-71, by requiring death penalty jurors to be given appropriately limiting instructions to correct the unconstitutional infirmity in the phrase “in an especially heinous, cruel or depraved manner.” Such limiting instructions have been upheld elsewhere, both as a matter of federal law; Maynard v. Cartwright, supra, 486 U.S. 359-60; Godfrey v. Georgia, supra, 446 U.S. 428-29; Proffitt v. Florida, supra, 428 U.S. 255-56; and as a matter of state law. See, e.g., State v. Greenway, 170 Ariz. 155, 165-67, 823 P.2d 22 (1991); State v. Dixon, 283 So. 2d 1, 9 (Fla. 1973), cert. denied sub nom. Hunter v. Florida, 416 U.S. 943, 94 S. Ct. 1950, 40 L. Ed. 2d 295 (1974); State v. Charboneau, supra, 116 Idaho 151-53; State v. Sonnier, 402 So. 2d 650, 658-59 (La. 1981), cert. denied, 463 U.S. 1229, 103 S. Ct. 3571, 77 L. Ed. 2d 1412 (1983); State v. Ryan, 233 Neb. 74, 140-44, 444 N.W.2d 610 (1989), cert. denied, 498 U.S. 881, 111 S. Ct. 216, 112 L. Ed. 2d 176 (1990); State v. Goodman, 298 N.C. 1, 24-26, 257 S.E.2d 569 (1979); State v. Pritchett, 621 S.W.2d 127, 137-39 (Tenn. 1981); State v. Wood, 648 P.2d 71, 85-86 (Utah 1981), cert. denied, 459 U.S. 988, 103 S. Ct. 341, 74 L. Ed. 2d 383 (1982); Smith v. Commonwealth, 219 Va. 455, 477-78, 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967, 99 S. Ct. 2419, 60 L. Ed. 2d 1074 (1979); but see People v. Superior Court of Santa Clara County, 31 Cal. 3d 797, 801-802, 647 P.2d 76, 183 Cal. Rptr. 800 (1982). Appropriately limited by a suitable instruction, § 53a-46a (h) (4) does not violate the defendant’s right to due process under the state constitution.
The defendant’s final claim is that the unanimity requirement that we construed to be part of our death penalty statute in State v. Daniels, supra, 207 Conn. 388-89, undermines his right to due process. As we noted in our discussion of the defendant’s parallel claim under the federal constitution, we disagree with the premise that underlies this contention. See part IIA 2. Nothing in the statute or in our decision in Daniels limits the ability of any juror to consider any fact offered in support of mitigation. In order to arrive at a decision that a mitigating factor has been proven, the jurors need not agree on the same mitigating factor. All that unanimity requires is that each juror must be persuaded of the existence of a mitigating factor. Due process requires no less and no more. As a matter of federal law see McKoy v. North Carolina, supra, 494 U.S. 433; and as a matter of state law see People v. Rodriguez, 794 P.2d 965, 980-82 (Colo. 1990), cert. denied, 498 U.S. 1055, 111 S. Ct. 770, 112 L. Ed. 2d 789 (1991), and State v. Smith, 781 S.W.2d 761, 767-68 (Mo. 1989), vacated, 495 U.S. 916, 110 S. Ct. 1944, 109 L. Ed. 2d 306, aff’d on remand, 790 S.W.2d 241 (Mo. 1990).
We therefore conclude that the Connecticut death penalty statutes are not unconstitutional on their face on any of the grounds alleged by the defendant, either under the United States constitution or under the Connecticut constitution. The statutes authorize the death penalty only in defined circumstances that impose a heavy burden on the state to justify the death penalty and that permit the defendant wide latitude to persuade the sentencer to the contrary. The statutes therefore do not violate the prohibition of cruel and unusual punishment and do not infringe upon the defendant’s rights to due process.
III
Validity of the Sentencing Hearing in this Case
The defendant challenges the validity of the death sentences imposed upon him on the ground that the sentencing hearing in this case failed to comply with the requirements of § 53a-46a. As a matter of evidentiary sufficiency, he maintains that the trial court improperly: (1) failed to set aside the jury’s finding that the state had adduced sufficient evidence to prove an aggravating factor beyond a reasonable doubt; and (2) failed to set aside the jury’s finding of insufficient evidence to prove a mitigating factor by a fair preponderance of the evidence. As a matter of evidentiary rulings, he maintains that the trial court improperly: (1) excluded mitigating evidence; and (2) permitted irrelevant or prejudicial evidence to be presented to prove the aggravating factor. As a matter of jury instructions, he maintains that the trial court improperly charged the jury with regard to: (1) the definition of the aggravating factor that the crime had been committed “in an especially heinous, cruel or depraved manner”; (2) the two witness requirement of § 54-83; (3) reasonable doubt; (4) permissible inferences from missing witnesses; and (5) statutory and nonstatutory mitigating factors. Furthermore, the defendant maintains that the trial court improperly: (1) permitted prejudicial commentary by the prosecuting attorney; (2) denied the defendant’s motion for mistrial; (3) failed to merge two capital convictions for one victim into one capital felony conviction; (4) failed to sever the sentencing hearing into three separate hearings; (5) denied the defendant’s motion for surrebuttal on the issue of mitigation; and (6) rejected the defendant’s claim of juror prejudice.
We conclude 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.
A
SUFFICIENCY OF THE EVIDENCE
In our assessment of the validity of the penalty phase proceedings that were in fact held in this case, the first issue is the sufficiency of the evidence upon which the trial court relied in imposing the death penalty upon the defendant. General Statutes § 53a-46b (b) (2). Under § 53a-46a (f), a court may sentence a person to death only if the trier of fact has found that the state has established the existence of an aggravating factor beyond a reasonable doubt and that the defendant has failed to establish a mitigating factor by a preponderance of the evidence. State v. Daniels, supra, 207 Conn. 384-85. In these cases, the jury found that the state had met its burden of proof that the defendant, as charged, had committed the offenses “in an especially heinous, cruel or depraved manner.” General Statutes § 53a-46a (h) (4). If, as the defendant contends, the state failed to prove this aggravating factor, or he proved a mitigating factor, principles of double jeopardy would require us to remand this case to the trial court with direction to impose life sentences upon the defendant. State v. Daniels, supra, 397-99.
The defendant urges us to employ a heightened standard of review in our determination, on appeal, of whether the state has presented sufficient evidence to prove the existence of an aggravating factor. He maintains that § 53a-46b (b) (2) confers upon this court discretionary authority comparable to that vested in the sentence review division by General Statutes § 51-195. See State v. Nardini, 187 Conn. 109, 118-22, 445 A.2d 304 (1982); Consiglio v. Warden, 153 Conn. 673, 676-77, 220 A.2d 269 (1966). We disagree. Section 53a-46b (b) (2) requires only a determination of whether “the evidence fails to support the finding of an aggravating factor specified in subsection (h) of section 53a-46a.” That language gives no indication that the legislature intended a fundamental alteration in the standard of review that generally governs a criminal defendant’s challenge of the sufficiency of the evidence of his guilt at trial. See State v. Francis, 228 Conn. 118, 127, 635 A.2d 762 (1993); State v. Joyner, supra, 225 Conn. 455. Nonetheless, because of the seriousness of any death penalty determination, we will subject a finding of an aggravating factor to the same independent and scrupulous examination of the entire record that we employ in our review of constitutional fact-finding, such as the voluntariness of a confession; State v. Medina, 228 Conn. 281, 294, 636 A.2d 351 (1994); State v. Smith, 200 Conn. 465, 478, 512 A.2d 189 (1986); or the seizure of a defendant. State v. Greenfield, 228 Conn. 62, 68-69, 634 A.2d 879 (1993); State v. Northrop, 213 Conn. 405, 414, 568 A.2d 439 (1990).
1
In support of its allegation that it proved that the defendant had acted “in an especially heinous, cruel or depraved manner”; General Statutes § 53a-46a (h) (4); the state makes two arguments. It contends that the defendant acted in an especially heinous or depraved manner because of the defendant’s state of mind when he kidnapped, raped and strangled his victims. Furthermore, the state contends that the defendant acted in an especially cruel manner because of the physical and mental pain that he intentionally inflicted on each victim.
Before we review the evidence adduced by the state, we must clarify the standard by which it is to be measured. As we acknowledged in State v. Breton, supra, 212 Conn. 265, the phrase “in an especially heinous, cruel or depraved manner” contains an arguably subjective standard that runs the risk of being unconstitutionally vague. To avoid constitutional jeopardy for this aggravating factor, we adopted a limiting construction of § 53a-46a (h) (4). Focusing on the meaning of “especially cruel,” we concluded that an acceptable core construction of this term “must include the intentional infliction of extreme pain or torture above and beyond that necessarily accompanying the underlying killing.” Id., 270.
Our decision in Breton did not address two further issues concerning the proper construction of § 53a-46a (h) (4). First, does the “extreme pain or torture” that is at the core of “especially cruel” include the infliction of psychological anguish as well as physical pain? Second, does § 53a-46a (h) (4) envisage three separate aggravating factors, so that an independent core meaning must be assigned to “depraved” and “heinous,” or are these terms to be read conjointly to describe a single aggravating factor?
The defendant argues in this appeal that “extreme pain or torture” cannot be psychological. We disagree. A defendant cannot intentionally engage in conduct that inflicts extreme psychological trauma and then claim that his victims’ mental distress was unintended or unforeseeable. Breton did not exclude mental anguish from actionable “extreme pain or torture” and we decline to do so now. See Walton v. Arizona, supra, 497 U.S. 646-47. No different analysis is required as a matter of state constitutional law.
The state argues that § 53a-46a (h) (4) permits the state to prove an aggravating factor premised on “especially heinous or depraved” that focuses solely on the defendant’s state of mind when he kidnapped, raped and strangled his victims. We are not persuaded that we can discern a core meaning for these individual terms solely as a mental state that will shield them from unconstitutional vagueness. More important, however, as a matter of statutory construction, we are not persuaded that § 53a-46a (h) (4) was intended to encompass more than one unitary aggravating factor. In our view, the terms “heinous or depraved” address the defendant’s state of mind in intentionally inflicting on his victim extreme pain or torture above and beyond that necessarily accompanying the underlying killing. So construed, § 53a-46 (h) (4) passes constitutional muster under the United States constitution; see Proffitt v. Florida, supra, 428 U.S. 255-56; and under our state constitution.
A construction of § 53a-46a (h) (4) as a unitary aggravating factor that focuses on the infliction of extreme pain or psychological or physical torture on the victim finds support in the structure of § 53a-46a (h) and in accepted principles of statutory analysis. Structurally, each of the separate clauses of subsection (h) defines a discrete set of aggravating circumstances. Analytically, under the doctrine of noscitur a sociis, “[i]f two or more words are grouped together, it is possible to ascertain the meaning of a particular word by reference to its relationship with other associated words and phrases... .” State v. Indrisano, 228 Conn. 795, 811, 640 A.2d 986 (1994); Staples v. Palten, 214 Conn. 195, 199-200, 571 A.2d 97 (1990); State v. Roque, 190 Conn. 143, 152-53, 460 A.2d 26 (1983).
In Indrisano, we relied upon the doctrine of noscitur a sociis to find limiting constructions of our disorderly-conduct statute; General Statutes § 53a-182 (a); to save that statute from unconstitutional vagueness. We construed the language “[ejngages in fighting or in violent, tumultuous or threatening behavior” as a prohibition of physical fighting and physically violent, threatening or tumultuous behavior. State v. Indrisano, supra, 228 Conn. 812. We held that the statutory phrase “ ‘by offensive or disorderly conduct’ ” was to be read as a unitary phrase in which each adjective complements the meaning of the other. Id., 817-18. Our application of this rule of statutory construction was consistent with earlier decisions holding that, in our robbery statute; General Statutes § 53a-133; “the three words ‘taking,’ ‘obtaining,’ and ‘withholding’ are inseparable.” State v. Pelletier, 209 Conn. 564, 576, 552 A.2d 805 (1989); State v. John, 210 Conn. 652, 688-89, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).
In a review of the sufficiency of the evidence to support the jury’s finding of an aggravating factor under § 53a-46a (h) (4), we hold, therefore, that the focus must be on whether the state has proved, beyond a reasonable doubt, that the defendant engaged in intentional conduct that inflicted extreme physical or psychological pain or torture on each of his victims above and beyond that necessarily accompanying the underlying killing. Evidence of the defendant’s callousness or indifference to his victims’ suffering would substantiate such a finding, but it would not suffice without some showing of the infliction of extreme pain, suffering or torture on the victims. We conclude that the state has met its evidentiary burden in this case.
The jury reasonably could have found, for each of the defendant’s four victims in the circumstances of these cases, that their manual strangulation by the defendant was an especially cruel way of inflicting death. In the cases of Wendy B. and Robyn S., the defendant’s cruelty was exacerbated when their strangulation was prolonged by the cramping of the defendant’s hands, which caused him to stop before resuming the strangulation. For each of these young and emotionally vulnerable victims, moreover, the jury reasonably could have found that the conjoining of the kidnapping with the strangulation would have produced extreme anxiety, fear and uncertainty as to her ultimate fate. See State v. Havican, 213 Conn. 593, 599-600, 569 A.2d 1089 (1990); Fairbanks v. State, 143 Conn. 653, 660, 124 A.2d 893 (1956). Except in the case of Leslie S., the jury reasonably could have inferred that the victims’ terror would have been increased by the defendant’s sexual assaults upon them. For Leslie S., the jury reasonably could have found that she would have been terrified by sitting in the defendant’s car, bound hand and foot, and coming to understand that her best friend, April B., was being sexually abused and then killed. Finally, the jury reasonably could have found that the defendant’s lack of remorse substantiated a finding that his infliction of suffering upon his victims was intentional. Such findings have probative force even though they are based on inferences rather than on direct evidence; State v. Medina, supra, 228 Conn. 309; State v. Greenfield, supra, 228 Conn. 76-77; and even though the jury might have drawn contrary inferences. State v. Francis, supra, 228 Conn. 127; State v. Grant, 219 Conn. 596, 604, 594 A.2d 459 (1991).
We reject the defendant’s contention that the evidence adduced by the state does not prove that his conduct was “especially heinous, cruel or depraved,” as a matter of law, because his conduct did not go beyond that which is necessarily encompassed by the capital felonies of which he was convicted. The defendant focuses on the fact that the use or the threat of use of force is a predicate element of the kidnapping and of the sexual assault aspects of these capital felonies. He maintains, therefore, that in using force on his victims, and in threatening them with the use of force, he was not inflicting “extreme pain or torture above and beyond that necessarily accompanying the underlying killing.”
The defendant cannot prevail on this argument because the state presented ample evidence at the penalty hearing to show that, for each capital felony count, there were aggravating circumstances beyond the elements of the crimes charged. With respect to Wendy B. and Robyn S., the jury received evidence about the effect of the kidnapping as an aggravating factor for the capital felony count predicated on a sexual assault, and evidence about the effect of the sexual assault as an aggravating factor for the capital felony count predicated on a continuing kidnapping. On this record, the jury reasonably could have found an aggravating factor for each of these capital felony counts because of the proof of an added element from the other felony count. See State v. Murphy, 65 Ohio St. 3d 554, 578, 605 N.E.2d 884 (1992). With respect to April B., her sexual assault by the defendant was likewise an aggravating factor above and beyond the kidnapping and the murder that were elements in the capital felony as charged. With respect to Leslie S., an aggravating factor of special cruelty was the exacerbated psychological anguish inflicted upon her by her own bondage and her fear for the fate of her best friend.
Even with the heightened appellate scrutiny appropriate for a death penalty case, the defendant’s challenge to the sufficiency of the evidence of aggravating circumstances must be reviewed, in the final analysis, by considering the evidence presented at the defendant’s penalty hearing in the light most favorable to sustaining the facts impliedly found by the jury. On the basis of these implied factual findings about the defendant’s conduct and its likely impact on the victims in these cases, we conclude that the jury reasonably could have concluded that the cumulative effect of the evidence established beyond a reasonable doubt the existence of an aggravating factor as defined by § 53a-46a (h) (4) for each of the six capital felony counts with which the defendant was charged. See State v. Francis, supra, 228 Conn. 127; State v. Joyner, supra, 225 Conn. 455.
2
The defendant also maintains that he presented sufficient evidence of statutory and nonstatutory mitigating factors to meet his burden of proving mitigation by a preponderance of the evidence. Although the jury found to the contrary, he maintains that an independent review of the evidence of mitigation by this court will establish that the trial court improperly imposed the death penalty upon him. This claim focuses on the testimony of the defendant’s three psychiatric experts that the defendant’s mental impairment, stemming from his disturbed family background and aberrant sexual development, was a mitigating factor in his crimes.
The state responds that such appellate review is unauthorized as a matter of law and unwarranted in the circumstances of this case. We need not decide today the legal question of whether the specific authority to review a finding of an aggravating factor; General Statutes § 53a-46b (b) (2); necessarily implies a legislative intent to preclude appellate review of a finding that there is no mitigating factor. For this appeal, it suffices to recognize that the defendant’s right to present evidence by way of mitigation does not compel a jury to find that evidence credible. Even without countervailing expert evidence of its own, the state can weaken the force of the defendant’s presentation by cross-examination and by pointing to inconsistencies in the evidence. See State v. Medina, supra, 228 Conn. 309-10; State v. Steiger, 218 Conn. 349, 381, 590 A.2d 408 (1991); State v. Murphy, supra, 65 Ohio St. 3d 569-70. The defendant cannot prevail on this issue.
B
EVIDENTIARY ISSUES RELATING TO THE PENALTY HEARING
The defendant has raised numerous evidentiary claims relating to the penalty phase of his trial. We conclude that improper evidentiary rulings by the trial court substantially limited the defendant’s right to present mitigating evidence and require a new sentencing hearing.
1
The defendant first asserts that, in violation of General Statutes § 53a-46a (c), the trial court improperly excluded evidence relevant to mitigation. Although the statute expressly permits the presentation of “[a]ny information relevant to any mitigating factor,” the trial court precluded the defendant from submitting to the jury: (a) a letter written by Robert Miller, a court appointed psychiatric expert who had evaluated the defendant for the state, which reflected the fact that he had changed his position about the mitigating role of the defendant’s psychopathology; and (b) a report by Miller, which reflected his corroboration of the diagnosis of the defendant contained in the reports of defense psychiatric experts.
On appeal, the state contends that the proffered evidence was properly excluded as not “relevant to any mitigating factor” because it was unauthenticated hearsay and unreliable. Unless the statute impliedly authorizes a trial court to exclude unreliable evidence, the state maintains that the statute would infringe on constitutional principles of separation of powers.
We agree with the defendant that the mandate of § 53a-46a (c) required the trial court to admit the mitigating evidence that he proffered in this case. The statute plainly provides that, in a penalty hearing conducted pursuant to § 53a-46a, “[a]ny information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters... .’’(Emphasis added.) On its face, this language authorizes a judge presiding over a penalty hearing to exclude mitigating evidence only on the basis of a lack of relevancy.
“It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent.... All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 194, 567 A.2d 1156 (1989). Where the language of a statute is clear and unambiguous, reference to its history and purpose is unnecessary. Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 538, 582 A.2d 1174 (1990). It is the duty of the court to interpret statutes as they are written... and not by construction read into statutes provisions which are not clearly stated.” (Citations omitted; internal quotation marks omitted.) State v. Johnson, 227 Conn. 534, 541-42, 630 A.2d 1059 (1993); Forsyth v. Rowe, 226 Conn. 818, 828, 629 A.2d 379 (1993); State v. Dupree, 196 Conn. 655, 660, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985). Accordingly, we decline the state’s invitation to read into the statute a foundational requirement of reliability for admissibility of mitigating evidence at a capital penalty phase hearing. See also C. Tait & J. La Plante, Connecticut Evidence (2d Ed. 1988) § 3.5.8 (b) (distinguishing relevancy, competency and authenticity of evidence).
We disagree with the state’s contention that a literal reading of § 53a-46a (c) puts the statute at constitutional risk of violating applicable principles of separation of powers. See Moscone v. Manson, 185 Conn. 124, 128, 440 A.2d 848 (1981). “A statute violates the constitutional mandate for a separate judicial magistracy only if it represents an effort by the legislature to exercise a power which lies exclusively under the control of the courts.... Bartholomew v. Schweizer, [217 Conn. 671, 676, 587 A.2d 1014 (1991)].” (Citations omitted; internal quotation marks omitted.) State v. Campbell, 224 Conn. 168, 177, 617 A.2d 889 (1992), cert. denied, U.S., 113 S. Ct. 2365, 124 L. Ed. 2d 271 (1993). “[T]he rules of evidence... have never in this state been regarded as exclusively within the judicial domain.” State v. James, 211 Conn. 555, 560, 560 A.2d 426 (1989).
The state nonetheless argues that a construction of § 53a-46a (c) that limits the trial court’s role, with respect to mitigating evidence, to an assessment of relevance “defies logic [and] impairs the essential function of the judiciary.” We disagree. Although we have “held unconstitutional statutes modifying the rules of evidence in such manner as to defy logic,” we have not done so in reliance “upon any grant of exclusive authority to the courts under article second to promulgate rules of evidence but upon other constitutional principles, such as due process and equal protection.” State v. James, supra, 211 Conn. 561-62. The exclusion of considerations of reliability does not per se undermine a trial court’s authority to preserve the integrity of the proceeding.
The broad sweep of § 53a-46a (c) reflects a balance struck by the legislature between a defendant’s eighth amendment right to receive individualized consideration when faced with the death penalty; see Lockett v. Ohio, supra, 438 U.S. 606; and a trial court’s need to exercise appropriate control over courtroom proceedings. The state’s rhetoric does not specify in what particular manner this balance “significantly interferes with the orderly functioning of the Superior Court’s judicial role.” State v. Campbell, supra, 224 Conn. 178. We are persuaded that a relevance standard retains sufficient discretion for the court to enable it to exercise proper control over the admissibility of evidence. State v. Pollitt, 205 Conn. 61, 91, 530 A.2d 155 (1987).
The state argues, in the alternative, that, read as a whole, § 53a-46a (c) must be construed to allow only “relevant evidence whose reliability can be tested before the jury.” This argument is premised on additional language in § 53a-46a (c) permitting the “[t]he state ... to rebut any information received at the hearing and [giving the state] fair opportunity to present argument as to the adequacy of the information to establish... any mitigating... factor.” Acceptance of the state’s position would make the test for the defendant’s right to present mitigating evidence turn on the state’s right to undertake an effective rebuttal by way of cross-examination or otherwise. As the defendant correctly observes, such a limitation on the admissibility of mitigating information in capital penalty hearings would be more restrictive than that generally governing rules of evidence. We therefore reject the state’s construction. The language quoted by the state creates a temporal opportunity for the state to rebut mitigating evidence and permits argument on the weight of such evidence. It does not, however, limit the scope of the mitigating information that the defendant may present to the trier at the penalty phase hearing.
Turning now to the specific claims of error, we conclude that the trial court improperly excluded both the letter and report of Miller, because both were relevant to mitigation. General Statutes § 53a-46a (c). The concept of relevancy is well established in our criminal jurisprudence. “[R]elevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. State v. McClendon, 199 Conn. 5, 8-9, 505 A.2d 685 (1986). Evidence is irrelevant if there is ‘such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in proof of the latter.’ State v. Kelly, 77 Conn. 266, 269, 58 A. 705 (1904).” State v. Jeffrey, 220 Conn. 698, 704, 601 A.2d 993 (1991), cert. denied, U.S., 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992).
The letter and report in question were produced by a psychiatrist appointed by the court to evaluate the defendant for the state. The letter reflects not only Miller’s change of position in favor of “psychopathology playing a sufficient role in [the] defendant’s behavior to mitigate the type of penalty,” but also Miller’s extreme reluctance to make himself available to testify. Miller’s report corroborated the defense psychiatric experts’ opinions that the defendant suffered from sexual sadism. Not only did this evidence bear directly on the question of whether, at the time of the offense, the defendant’s “mental capacity was significantly impaired” so as to warrant mitigation; General Statutes § 53a-46a (g) (2); but it could have appeared more objective and worthy of belief than evidence adduced by the defendant from his own expert witnesses. See Brennan v. State, 766 P.2d 1385, 1386-87 (Okla. Crim. App. 1988) (harmful error to exclude letter from state’s psychiatric expert). The fact that it was the defendant’s burden to prove mitigation by a preponderance of the evidence persuades us that the improper exclusion of this unique evidence was more likely than not to have affected the result of the sentencing hearing. State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991); State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988). Accordingly, we conclude that exclusion of the report and letter violated § 53a-46a (c) and was harmful. A new penalty hearing is therefore required.
2
The defendant also claims that the trial court improperly allowed the state to introduce irrelevant or prejudicial evidence to prove aggravation and to rebut mitigation. Specifically, the defendant contends that it was harmful error to permit the state to introduce: (a) testimony by a state’s expert about rape trauma syndrome; (b) testimony of Warden Richard Orszak regarding good time credits, minimum security institutions, and the possibility of pardon, and testimony of Fred Berlin, a psychiatrist, regarding the defendant’s potential dangerousness if ever released; and (c) evidence about the victims including testimony on their physical characteristics and personalities and photographs of their appearance both before and after their murders. We address these claims only to the extent that they are likely to arise again at a new sentencing hearing.
The admissibility of evidence in a capital sentencing hearing is governed by § 53a-46a (c). In the absence of applicable statutory mandates, evidentiary rulings are within the sound discretion of the trial court and are reversible only “if there is an abuse of discretion and a showing of substantial prejudice or injustice to the defendant. State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990).” State v. Colton, 227 Conn. 231, 260, 630 A.2d 577 (1993). Because a new hearing is required, however, we need not engage in harmless error analysis with respect to these claims.
The defendant’s first challenge to the evidence that was admitted over his objection is to the state’s presentation of expert testimony regarding rape trauma syndrome. The state’s expert testified that every victim of sexual assault, to some degree, experiences “feelings of helplessness, powerlessness, fear, panic, horror; feelings of personal intrusion, violation; feelings of being entrapped ... a sense of not being able to be rescued, a feeling of isolation, abandonment,” and that these emotions exist from just before the assault until shortly thereafter. The defendant asserts that this evidence was not relevant to aggravation, because it described the feelings experienced by every rape victim, and did not serve to distinguish these particular rapes as “heinous, cruel or depraved.” General Statutes § 53a-46a (h) (4).
The state does not dispute the generic nature of the expert testimony but argues that the testimony was relevant to show aggravation for the capital felony counts that were based on kidnapping and murder. We agree with the state. A sexual assault that occurs during the course of a kidnapping that results in murder is relevant evidence for the jury to consider in determining whether the state has proven aggravation of that kidnap/murder. The additional fact of a sexual assault is relevant irrespective of whether the sexual assault, in and of itself, was especially cruel. The trial court properly admitted this testimony over the defendant’s objection on grounds of relevance.
The defendant’s second claim is that the court improperly permitted the state to cross-examine two of the defendant’s witnesses to rebut his evidence on mitigation. In the defendant’s presentation to prove mitigation, Orszak testified for the purpose of showing “an inmate’s ability to do useful and productive work while incarcerated.” Over the defendant’s objections, the state cross-examined Orszak regarding good time credits, minimum security institutions, and the possibility of pardon. Later, again over the defendant’s objections, the state cross-examined Berlin, a defense psychiatric expert, on whether the defendant would be dangerous if released in ten years. The defendant asserts that, because such cross-examination related to future dangerousness, it was not relevant to rebut the defendant’s case for mitigation. The state argues to the contrary that this evidence rebutted an assumption underlying the defendant’s claim that he would be a good prisoner by contending that the defendant would not actually remain a prisoner. To the extent that these issues may arise at the sentencing rehearing, the court should be guided by the general rule limiting the scope of cross-examination to the matters elicited on direct examination. State v. McCarthy, 197 Conn. 247, 260, 496 A.2d 513 (1985); see People v. Garcia, 97 Ill. 2d 58, 87-88, 454 N.E.2d 274 (1983), cert. denied, 467 U.S. 1260, 104 S. Ct. 3555, 82 L. Ed. 2d 856 (1984).
The defendant finally asserts that the trial court improperly admitted, as evidence of aggravation, testimony and exhibits concerning the physical characteristics and personalities of the victims, all of which the defendant claims to have been irrelevant and highly prejudicial. The evidence at issue consisted of testimony describing the victims, studio-type photographic portraits of how they looked before the murders, and postmortem photographs showing their bodies after the murders. The state proffered this evidence to enable it to meet its burden of proving the aggravating factor that the defendant’s crimes were “especially cruel” under § 53a-46a (h) (4). To meet this burden, the state must show “the intentional infliction of extreme pain or torture above and beyond that necessarily accompanying the underlying killing.” State v. Breton, supra, 212 Conn. 270. On appeal, we must determine whether the trial court abused its discretion in admitting this evidence as more probative than prejudicial. State v. Woodson, 227 Conn. 1, 17, 629 A.2d 386 (1993).
The state introduced testimony briefly describing each of the victims as a petite young teenager who was a caring, sensitive and trusting person. In addition, the state introduced exhibits consisting of photographs of the victims before and after abduction, including those of the severely decomposed bodies of Leslie S. and April B. The trial court admitted all this evidence, impliedly finding that it was more probative than prejudicial. The evidence at issue demonstrated a gross disparity in size between the defendant and the victims, and corroborated evidence relating to the manner in which the crimes had occurred. The testimony regarding the age and emotional makeup of these girls reflected a level of maturity that could elevate the degree of terror a jury might believe they would have experienced during the assaults.
The defendant does not take issue with the standard of appellate review that governs discretionary evidentiary rulings of the trial court. He nonetheless maintains that, in capital sentencing proceedings, there should be heightened concern for potential prejudice, especially from inflammatory photographs, citing State v. Pitts, 116 N.J. 580, 638-39, 562 A.2d 1320 (1989) (cautioning courts to exercise discretion in admitting photographs of crime victims with careful consideration of state’s burden of proof, other evidence adduced by state, and rules of evidence). We urge such careful consideration upon the trial court at the sentencing rehearing. See State v. Haskins, 188 Conn. 432, 453, 450 A.2d 828 (1982). We note, however, that even gruesome photographs are admissible if they would prove or disprove a material fact in issue, or illuminate a material inquiry. Id., 452.
C
INSTRUCTIONAL ISSUES RELATING TO THE PENALTY HEARING
Because we have already decided that a new sentencing hearing must be held to determine whether the death penalty should be imposed on the defendant, we will address the defendant’s numerous challenges to the trial court’s penalty phase jury instructions only with the view to giving guidance for the conduct of the new sentencing hearing. With regard to aggravation, the defendant maintains that the trial court improperly charged the jury on: (1) the definition of the aggravating factor contained in § 53a-46a (h) (4) requiring a showing that the crime was committed “in an especially heinous, cruel or depraved manner”; (2) the two witness requirement of § 54-83; and (3) reasonable doubt. With regard to mitigation, the defendant maintains that the trial court improperly charged the jury on: (1) permissible inferences from missing witnesses; and (2) statutory and nonstatutory mitigating factors.
1
None of the issues raised by the defendant with regard to the trial court’s instructions on aggravation warrants extended consideration in the present posture of this case. Some have already been dealt with previously in this opinion.
We have described a constitutionally appropriate narrowing of the definition of “especially heinous, cruel or depraved” in the discussion of the state’s proof of the aggravating factor in part III A. That discussion should suffice to guide the trial court in the future.
We have discussed the scope of the instructions required by the two witness rule of § 54-83 in part I dealing with the defendant’s guilt. We agree, however, with the state that § 54-83 applies only to the guilt phase and not to the penalty phase of a capital felony trial. Section 54-83 provides: “No person may be convicted of any crime punishable by death without the testimony of at least two witnesses, or that which is equivalent thereto.” (Emphasis added.) Unless the context indicates the contrary, the word “conviction” means “a finding of the party guilty by verdict or plea of guilty, and not to a sentence in addition.” Quintard v. Knoedler, 53 Conn. 485, 488, 2 A. 752 (1885). In the prefatory language of § 53a-46a (b), our death penalty statute expressly incorporates the traditional distinction between the processes of convicting and sentencing. The statute reads: “For the purpose of determining the sentence to be imposed when a defendant is convicted of or pleads guilty to a capital felony... ." (Emphasis added.) We assume that the legislature knew and intended to adopt the longstanding judicial construction of the word “conviction” when it revised the death penalty statutes in 1973, and revised § 54-83 in 1980. State v. Dabkowski, 199 Conn. 193, 201, 506 A.2d 118 (1986). Construing the statute as it is written; State v. Johnson, 227 Conn. 534, 541-42, 630 A.2d 1059 (1993); Forsyth v. Rowe, 226 Conn. 818, 828, 629 A.2d 379 (1993); State v. Dupree, 196 Conn. 655, 660, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985); we conclude that § 54-83 has no application to a capital sentencing hearing.
The defendant also challenges the trial court’s penalty phase instruction on reasonable doubt. This instruction was identical to that given during the guilt phase. We have concluded that its wording did not amount to constitutional error. See part I C 3 of this opinion. Because the defendant did not preserve this claim at trial, it warrants no further discussion.
2
With regard to mitigation, the defendant contends that the trial court improperly charged the jury on: (a) the permissible inferences to be drawn from the defendant’s failure to call his parents to testify; and (b) nonstatutory and statutory mitigating factors. Some of these contentions warrant serious consideration at the new sentencing hearing.
The defendant first asserts that the trial court improperly gave a Secondino charge instructing the jury that it might draw inferences unfavorable to the defendant because he failed to call his parents at the penalty phase hearing. The defendant argues that he presented evidence of his parents’ mistreatment of him as a child as a contributing cause of his psychological problems and that, consequently, his parents were hostile witnesses and not ones the defendant would naturally call. See State v. Grant, 221 Conn. 93, 104-107, 602 A.2d 581 (1992); D’Amico v. Manson, 193 Conn. 144, 153, 476 A.2d 543 (1984); State v. DePaola, 5 N.J. 1, 19-20, 73 A.2d 564 (1950). The defendant also argues that his parents were cooperating with the state during the trial, and were equally available to the state, making a Secondino inference improper in these circumstances. In light of these uncontroverted facts, the trial court at the penalty phase rehearing should reconsider the propriety of a Secondino instruction.
The defendant also challenges the manner in which the trial court instructed the jury on the definition of nonstatutory mitigating factors. The defendant maintains that the trial court improperly charged the jury on § 53a-46a (d) and inadequately charged the jury on other aspects of the evidence relating to mitigation. Finally, the defendant argues that the trial court improperly explained the requirement for unanimity in their findings. Bearing in mind that we review instructions to the jury in their entirety, we will address only those claims that raise issues that are likely to recur at, a rehearing.
Although the crimes were committed in 1983 and 1984, the court utilized the language of Public Acts 1985, No. 85-366, § 1 (d), now codified at General Statutes § 53a-46a (d) (subsection [d]). The defendant contends: (i) that subsection (d) cannot be applied in his case to nonstatutory mitigating factors without violating Connecticut law and the prohibition against ex post facto laws contained in article one, § 10, of the United States constitution; and (ii) that subsection (d) cannot constitutionally be applied in any case because it calls for an internal balancing of mitigants against aggravants that is unreviewable, or standardless and arbitrary. We disagree with both of these contentions.
“The rules of law that underlie the defendant’s [first] claim under the United States constitution are well established. The prohibition of ex post facto laws forbids the enactment of ‘any law “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Cummings v. Missouri, [71 U.S. (4 Wall.)] 277, 325-26, 18 L. Ed. 356 (1867).’ Weaver v. Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981); see also W. LaFave & A. Scott, Criminal Law (1972) § 12; 2 R. Rotunda, J. Nowak & J. Young, Treatise on Constitutional Law: Substance and Procedure (1986) § 15.9 (b); L. Tribe, American Constitutional Law (1978) §§ 10-2, 10-3. Under the applicable federal cases, ‘two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.’ (Emphasis in original.) Weaver v. Graham, supra, 29.” State v. Rollinson, 203 Conn. 641, 646, 526 A.2d 1283 (1987).
The law in Connecticut is also well established. “A statute ‘affecting substantial changes in the law’ is not to be given a retrospective effect unless it clearly and unequivocally appears that such was the legislative intent.” (Emphasis added.) State v. Paradise, 189 Conn. 346, 351, 456 A.2d 305 (1983). A procedural statute, however, will be applied retroactively without a legislative imperative to the contrary unless “considerations of good sense and justice dictate that it not be so applied.” Id.
Accordingly, both under federal precedents and under the law of Connecticut, a statute may have retroactive effect if the legislature so intends and if the statute does not enact a substantive change in the law. The defendant does not challenge this general principle. He maintains, however, that subsection (d) addS'“some sort of weighing or balancing process to our statutory scheme and [that this] places substantive limitations on the definition of a nonstatutory mitigating factor” and that the subsection therefore may not be applied retroactively. We disagree. Subsection (d) merely codifies the definition for mitigating factors utilized in capital cases prior to the enactment of Public Acts 1985, No. 85-366, § 1. See State v. Wood, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 48729 (sentencing hearing of July 24, 1984, utilizing jury instructions on mitigating factors indistinguishable from subsection [d]); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 5, 1985 Sess., pp. 1537-38 (testimony of Joseph Shortall, chief public defender); see also State v. Daniels, supra, 207 Conn. 386 n.10.
Even if it is assumed, arguendo, that subsection (d) represents a change in the law, the change is at most procedural in nature. See State v. Almeda, 211 Conn. 441, 454, 560 A.2d 389 (1989). “[C]hanges in procedural law do not ordinarily give rise to violations of the prohibition against ex post facto laws in article one, § 10 of the United States constitution. ‘[T]he constitutional provision was intended to secure substantial personal rights against arbitrary and oppressive legislation... and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance.’ Beazell v. Ohio, 269 U.S. 167, 171, 46 S. Ct. 68, 70 L. Ed. 216 (1925); see also Collins v. Youngblood, 497 U.S. 37, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990).” Payne v. Fairfield Hills Hospital, 215 Conn. 675, 683, 578 A.2d 1025 (1990). Utilization of subsection (d) for the definition of a mitigating factor is therefore not improper.
We are equally unpersuaded by the defendant’s argument that the jury should not have been charged on subsection (d) because that subsection unconstitutionally impairs the jury’s opportunity to consider all the mitigating circumstances in his individual case. Under subsection (d), a fact is mitigating if “in fairness and mercy, [it] 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.” In our view, this statutory language codifies the defendant’s constitutional right to consideration of “ ‘[those] compassionate or mitigating factors stemming from the diverse frailties of humankind.’ ” Caldwell v. Mississippi, supra, 472 U.S. 330; Eddings v. Oklahoma, supra, 455 U.S. 104; Lockett v. Ohio, supra, 438 U.S. 586. Furthermore, the trial court did not infringe upon the defendant’s constitutional rights by instructing the jury to apply subsection (d) “considering all the facts and circumstances of the case.” A jury that is entrusted with the awesome responsibility for deciding whether the death penalty should be imposed cannot be asked to find facts in a vacuum. The instructions as given did not preclude the jury from giving mitigating force to any fact, taken alone or taken in conjunction with any other facts presented.
The defendant makes an additional claim that the trial court’s instruction on jury unanimity with respect to the existence of a mitigating factor was misleading. He argues that the trial court improperly failed to charge that unanimity was also required for a finding that no mitigating factor exists. Thus, the defendant argues, a jury hung on the existence of a mitigating factor may have believed that a verdict of “no mitigating factor” would be appropriate. We agree 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 § 53a-46a (f) that “no mitigating factor exists.” Id., 392, 394.
D
OTHER ISSUES RELATING TO THE PENALTY HEARING
Although we recognize that the defendant has raised numerous other issues concerning the conduct of his sentencing hearing, we are persuaded that they need not be addressed at this time. Furthermore, we need not undertake a review of the proportionality of the defendant’s death sentences until there has been a proper determination by a sentencing jury that death sentences are warranted on any or all of the six capital felony counts of which the defendant stands convicted.
IV
Summary
In summary, the defendant’s convictions are affirmed in their entirety. The defendant kidnapped and killed four young girls, and sexually assaulted three of them, in a manner that was especially cruel, heinous or depraved. Imposition of the death penalty, however, requires more. Even a defendant who has offered no persuasive legal excuse for his felonious conduct is entitled to have a sentencing jury consider extenuating circumstances that may explain his behavior and mitigate his moral culpability and may therefore counsel against the ultimate sanction of death. Because evidentiary rulings by the trial court impaired the defendant’s ability to prove the existence of such mitigating factors, a new sentencing hearing must be held.
The defendant’s convictions are affirmed with respect to his guilt of six counts of capital felony. The judgments are, however, reversed with respect to the imposition of the death penalty, and the cases are remanded to the trial court for an entirely new sentencing hearing pursuant to § 53a-46a.
In this opinion Callahan, Dupont and E. O’Connell, Js., concurred.
We reject the dissenting justice’s suggestion that plenary consideration of the defendant’s appeals should have been postponed to some indefinite time in the future. No other death penalty case is presently ready to be heard, without disqualifications, en banc or even by five justices of this court. There is no prospect that any such appeal will be ready in this calendar year. It is entirely unclear when any such appeal will be ready. Concern for fairness in the administration of justice requires the prompt reversal of a trial court judgment that improperly imposes the death penalty. It is anomalous for the dissenting justice to take the position that the death penalty is unconstitutionally cruel on its face, in part because of the inevitable delay in its implementation, and simultaneously to urge indefinite extension of the uncertainty and anxiety of a criminal defendant who is presently improperly being held on death row.
Furthermore, we disagree with the dissenting justice’s contention that the members of the Appellate Court who sit with this court in this case by designation, pursuant to General Statutes § 51-207 (b), lack the institutional competence to decide this case. Although General Statutes § 51-199 (b) directs that appeals in death penalty cases, as in other serious criminal cases, are to be filed in this court, § 51-199 (c) permits all such appeals to be transferred to the Appellate Court. While General Statutes § 53a-46b confers jurisdiction on the Supreme Court to review the validity of a death sentence, that statute does not, either expressly or by implication, determine who shall sit as the Supreme Court in order to hear the appeal. In short, the legislature has not appointed the individual members of this court as a special constitutional court. Indeed, members of the Appellate Court, like members of this court, frequently decide appeals raising grave questions of constitutional law. The Supreme Court is the final arbiter of state constitutional law only because a court system is necessarily hierarchical. It demeans the importance of serious jurisprudential differences to devalue the contribution of any properly selected member of the court.
The state originally charged the defendant with having committed eight counts of capital felony. After a finding of probable cause on all counts, the trial court, Hendel, J., dismissed the count charging the defendant with capital felony in the rape and murder of April B. and dismissed the count charging the defendant with capital felony based on a double homicide committed in one transaction, for lack of territorial jurisdiction.
General Statutes § 53a-54b provides in relevant part: “capital felony. A person is guilty of a capital felony who is convicted of any of the following... (5) murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety; (6) the illegal sale, for economic gain, of cocaine, heroin or methadone to a person who dies as a direct result of the use by him of such cocaine, heroin or methadone; (7) murder committed in the course of the commission of sexual assault in the first degree; (8) murder of two or more persons at the same time or in the course of a single transaction.”
General Statutes § 53a-46a provides in relevant part: “hearing on imposition OF DEATH PENALTY. AGGRAVATING AND MITIGATING FACTORS, (a) A person shall be subjected to the penalty of death for a capital felony only if a hearing is held in accordance with the provisions of this section.
“(b) For the purpose of determining the sentence to be imposed when a defendant is convicted of ... a capital felony, the judge... who presided at the trial... shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, including any mitigating factor set forth in subsection (g), and any aggravating factor set forth in subsection (h).... Such hearing shall be conducted (1) before the jury which determined the defendant’s guilt, or (2) before a jury impaneled for the purpose of such hearing if (A) the defendant was convicted upon a plea of guilty; (B) the defendant was convicted after a trial before three judges as provided in subsection (b) of section 53a-45; or (C) if the jury which determined the defendant’s guilt has been discharged by the court for good cause or, (3) before the court, on motion of the defendant and with the approval of the court and the consent of the state.
“(c) In such hearing the court shall disclose to the defendant or his counsel all material contained in any presentence report which may have been prepared. No presentence information withheld from the defendant shall be considered in determining the existence of any mitigating or aggravating factor. Any information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but the admissibility of information relevant to any of the aggravating factors set forth in subsection (h) shall be governed by the rules governing the admission of evidence in such trials. The state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any mitigating or aggravating factor. The burden of establishing any of the factors set forth in subsection (h) shall be on the state. The burden of establishing any mitigating factor shall be on the defendant.
“(d) In determining whether a mitigating factor exists concerning the defendant’s character, background or history, or the nature and circumstances of the crime, pursuant to subsection (b) of this section, the jury... shall first determine whether a particular factor concerning the defendant’s character, background or history, or the nature and circumstances of the crime, has been established by the evidence, and shall determine further whether that factor is mitigating in nature, considering all the facts and circumstances of the case. Mitigating factors are such as do not constitute a defense or excuse for the capital felony of which the defendant has been convicted, but which, in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of his culpability or blame for the offense or to otherwise constitute a basis for a sentence less than death.
“(e) The jury... shall return a special verdict setting forth its findings as to the existence of any aggravating or mitigating factor.
“(f) If the jury... finds that one or more of the factors set forth in subsection (h) exist and that no mitigating factor exists, the court shall sentence the defendant to death. If the jury... finds that none of the factors set forth in subsection (h) exists or that one or more mitigating factors exist, the court shall impose a sentence of life imprisonment without the possibility of release.
“(g) The court shall not impose the sentence of death on the defendant if the jury... finds by a special verdict, as provided in subsection (e), that any mitigating factor exists. The mitigating factors to be considered concerning the defendant shall include, but are not limited to, the following: That at the time of the offense (1) he was under the age of eighteen or (2) his mental capacity was significantly impaired or his ability to conform his conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution or (3) he was under unusual and substantial duress, although not such duress as to constitute a defense to prosecution or (4) he was criminally liable under sections 53a-8, 53a-9 and 53a-10 for the offense, which was committed by another, but his participation in such offense was relatively minor, although not so minor as to constitute a defense to prosecution or (5) he could not reasonably have foreseen that his conduct in the course of commission of the offense of which he was convicted would cause, or would create a grave risk of causing, death to another person.
“(h) If no mitigating factor is present, the court shall impose the sentence of death on the defendant if the jury... finds by a special verdict as provided in subsection (e) that ... (4) the defendant committed the offense in an especially heinous, cruel or depraved manner... .”
We recognize that, for the purposes of this appeal, the statute applicable to the defendant’s trial was General Statutes (Rev. to 1983) § 56a-46a. For the sake of uniformity and clarity, however, our references are to the statute as it is currently codified. Except where otherwise noted, there have been no substantive changes in the applicable text of the statute since its 1983 codification.
General Statutes § 51-199 provides in relevant part: “JURISDICTION.... (b) The following matters shall be taken directly to the supreme court ... (3) an appeal in any criminal action involving a conviction for a capital felony... .”
General Statutes § 53a-46b provides: “REVIEW OF death sentence. (a) Any sentence of death imposed in accordance with the provisions of section 53a-46a shall be reviewed by the supreme court pursuant to its rules. In addition to its authority to correct errors at trial, the supreme court shall either affirm the sentence of death or vacate said sentence and remand for imposition of a sentence in accordance with subdivision (1) of section 53a-35a.
“(b) The supreme court shall affirm the sentence of death unless it determines that: (1) The sentence was the product of passion, prejudice or any other arbitrary factor; (2) the evidence fails to support the finding of an aggravating factor specified in subsection (h) of section 53a-46a; or (3) the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.
“(c) The sentence review shall be in addition to direct appeal and, if an appeal is taken, the review and appeal shall be consolidated for consideration. The court shall then render its decision on the legal errors claimed and the validity of the sentence.”
The state has not appealed this ruling. See footnote 2.
The statutes at issue in Lane v. State, supra, 388 So. 2d 1022, were §§ 910.005 and 910.01, Florida Statutes Annotated (1977). Section 910.005 provided in relevant part: “(1) A person is subject to prosecution in this state for an offense that he commits, while either within or outside the state, by his own conduct or that of another for which he is legally accountable, if: (a) The offense is committed wholly or partly within the state ....
“(2) An offense is committed partly within this state if either the conduct that is an element of the offense or the result that is an element, occurs within the state. In homicide, the ‘result’ is either the physical contact that causes death, or the death itself; and if the body of a homicide victim is found within the state, the death is presumed to have occurred within the state.”
Secondino v. New Haven Gas Co., supra, 147 Conn. 675, set forth two prerequisites that must be established before an adverse inference can be drawn from the failure of a party to produce a witness: “The witness must be available, and he must be a witness whom the party would naturally produce.” In Secondino, this court defined a witness who would naturally be produced by a party as a person who “by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.” Id.
The defendant also makes two further Secondino claims. The first charges prosecutorial misconduct by the state in its closing argument to the jury about Secondino inferences with respect to the psychiatric experts. Our resolution of the issue on the instructions to the jury applies equally to the prosecutor’s argument.
The defendant also argues that it was improper for the state to suggest Secondino inferences to the jury with regard to the defendant’s failure to call his parents to testify on his behalf during the guilt phase. We decline to consider this issue because it was not properly preserved at trial. Rather than object at trial, the defendant chose to make his own Secondino argument against the state for its failure to call his parents. Despite this tactical choice, the defendant now seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), the plain error rule and a “special capital rule,” contending that the obvious error of allowing a Secondino charge with regard to his parents during the penalty phase reflects similar error in the guilt phase. It is well established that “[a] party who fails to make a timely objection to the giving of a Secondino charge will be deemed to have waived the issue for appeal. The giving of a Secondino charge is purely an evidentiary issue and is not a matter of constitutional dimensions.” State v. Anderson, 212 Conn. 31, 41-42, 561 A.2d 897 (1989).
State v. Toste, supra, 178 Conn. 626, did not reach, nor has this defendant raised, the question of whether a violation of a defendant’s attorney-client privilege in this context also violates his right to counsel under the sixth amendment to the federal constitution. See United States v. Talley, 790 F.2d 1468 (9th Cir.), cert. denied, 479 U.S. 866, 107 S. Ct. 224, 93 L. Ed. 2d 152 (1986); United States ex. rel. Edney v. Smith, 425 F. Sup. 1038, 1053 (E.D.N.Y. 1976), aff’d, 556 F.2d 556 (2d Cir.), cert. denied, 431 U.S. 958, 97 S. Ct. 2683, 53 L. Ed. 2d 276 (1977) (admission of doctor’s testimony in these circumstances not “so detrimental to the attorney’s effective representation of this client as to be prohibited by the Sixth Amendment”); but cf. State v. Pratt, 284 Md. 516, 520, 398 A.2d 421 (1979) (recognizing close tie between attorney-client privilege and constitutional guarantee of effective assistance of counsel); see also State v. Cascone, 195 Conn. 183, 188, 487 A.2d 186 (1985) (adopting balancing test to accommodate conflict between attorney-client privilege and right of confrontation); Rienzo v. Santangelo, 160 Conn. 391, 395, 279 A.2d 565 (1971) (attorney-client privilege encourages candor necessary for effective legal advice); Turner’s Appeal, 72 Conn. 305, 318, 44 A. 310 (1899) (exercise of privilege prevents full disclosure of truth and so will be strictly construed).
See footnote 8.
Practice Book § 759 provides in relevant part: “--mental disease OK DEFECT INCONSISTENT WITH THE MENTAL ELEMENT REQUIRED FOR THE OFFENSE CHARGED
“If a defendant intends to introduce expert testimony relating to a mental disease or defect, or another condition bearing upon the issue of whether he had the mental state required for the offense charged, he shall... furnish the prosecuting authority with copies of reports of physical or mental examinations of the defendant made in connection with the offense charged, within five days after receipt thereof. ...”
Practice Book § 760 provides: “--psychiatric examination
“In an appropriate case the judicial authority may, upon motion of the prosecuting authority, order the defendant to submit to a psychiatric examination by a psychiatrist designated for this purpose in the order of the court. No statement made by the defendant in the course of any examination provided for by Sec. 757, whether the examination shall be with or without the consent of the defendant, shall be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding. A copy of the report of the psychiatric examination shall be furnished to the defendant within a reasonable time after the examination.”
We note that the defendant repeatedly objected to the admission of the testimony regarding Freedman and Zonana on the grounds of hearsay and relevance, which objections were overruled by the trial court. Because the defendant has failed to raise these evidentiary issues on appeal, he is deemed to have waived them. State v. Evans, 165 Conn. 61, 63-64, 327 A.2d 576 (1973).
We note in this regard that the defendant relies on People v. Pate, 108 Mich. App. 802, 310 N.W.2d 883 (1981), to support his public policy argument that the missing witness rule is inappropriate in cases involving a statutory or common law privilege. That is not, however, the precise ruling in Pate. Although the court in Pate found reversible error in a prosecutor’s adverse comments on a defendant’s insanity defense by virtue of his failure to call certain psychiatric experts, it made its ruling on the ground that such evidence was irrelevant and unduly prejudicial, rather than on the ground of privilege. Id., 808.
The defendant contends that the trial court further diluted its instructions with regard to the requirements of General Statutes § 54-83 by its cautionary instructions warning the jury not to “weigh cases by the number of witnesses” but rather to look at the quality rather than the quantity of the relevant evidence. These instructions were given, however, in an earlier portion of the charge relating to the credibility of witnesses. We are, therefore, unpersuaded that they had any relationship to the requirements of § 54-83.
General Statutes § 54-89a provides: “court to inform jury on consequences OF A FINDING OF NOT GUILTY BY REASON OF MENTAL DISEASE OR defect. If the court instructs the jury on a defense of mental disease or defect raised pursuant to section 53a-13, it shall, unless the defendant affirmatively objects, inform the jury of the consequences for the defendant if he is found not guilty by reason of mental disease or defect and of the confinement and release provisions of sections 17a-580 to 17a-602, inclusive, applicable to a person found not guilty by reason of mental disease or defect.”
In light of the fact that a new penalty phase hearing will be required, we need not consider the defendant’s claim that the jurors’ postverdict contacts required the trial court to grant his motion to discharge the jury and to impanel a different jury for the sentencing phase of the proceedings against him.
The eighth amendment to the United States constitution has been made applicable to the states through the fourteenth amendment. See Robinson v. California, 370 U.S. 660, 666, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962).
As a predicate to triggering the death penalty sentencing statutes, the defendant must be convicted of at least one of eight categories of capital felony homicides that are listed in General Statutes § 53a-54b. The defendant, in this case, had been convicted by a jury of six counts of capital felony. See footnote 2 and accompanying text.
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.
In proving the existence of an aggravating factor, the statute requires the state to abide by the rules governing admission of evidence in trials of criminal matters. General Statutes § 53a-46a (c). The state is also required to disclose to the defendant or the defendant’s counsel all material contained in any presentence report, and cannot use, at the sentencing hearing, any presentence information that has been withheld from the defendant. General Statutes § 53a-46a (c); see also Gardner v. Florida, supra, 430 U.S. 358-62.
General Statutes § 53a-46a (d) clarifies that the capital sentencer’s consideration of the existence of a mitigating factor should include anything that, although “not constitut[ing] a defense or excuse for the capital felony of which the defendant has been convicted ... in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of [the defendant’s] culpability or blame for the offense or to otherwise constitute a basis for a sentence less than death.” See State v. Daniels, supra, 207 Conn. 386 n.10.
The death penalty statute also provides that “[a]ny information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters... ." General Statutes § 53a-46a(c). This requirement on the admissibility of all relevant mitigating evidence comports with the United States Supreme Court’s pronouncements in Eddings v. Oklahoma, supra, 455 U.S. 110, and Lockett v. Ohio, supra, 438 U.S. 604 and n.12.
The death penalty sentencing system adopted by our legislature, like that of Georgia’s, is nonweighing. This means that “the [capital sentencer] 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.” Stringer v. Black, 503 U.S. 222, 229-30, 112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992). 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 sentencer in exercising its discretion as to whether death is the appropriate punishment in any specific case. Zant v. Stephens, supra, 462 U.S. 873-75.
See also Jurek v. Texas, supra, 428 U.S. 276; Proffitt v. Florida, supra, 428 U.S. 258-60.
With regard to the burden of proof claim concerning the existence of mitigating factors, the United States Supreme Court in Walton v. Arizona, supra, 497 U.S. 650, stated: “So long as a State’s method of allocating the burdens of proof does not lessen the State’s burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating circumstances... .” With regard to the presumption of death claim, the court determined that there is no unconstitutional presumption of death as long as the requirements of individualized sentencing are satisfied in death penalty cases by allowing the sentencer to consider all relevant mitigating evidence. Id., 651-52. Our statute allows such consideration.
Practice Book § 889 provides: “[proceedings at trial—mistrial] --JURY’S INABILITY TO REACH VERDICT
“The judicial authority shall declare a mistrial in any case in which the jury are unable to reach a verdict.”
Practice Book § 883 provides in relevant part: “[proceedings at TRIAL-MOTIONS FOR JUDGMENT OF ACQUITTAL]--IN GENERAL
“.... After the close of the prosecution’s case in chief or at the close of all the evidence, upon motion of the defendant or upon his own motion, the judicial authority shall order the entry of a judgment of acquittal... [if] the evidence would not reasonably permit a finding of guilty...
Article first, § 8, of the Connecticut constitution provides in relevant part: “No person shall ... be deprived of life, liberty or property without due process of law... .”
Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
Article first, § 19, as amended, of the Connecticut constitution provides in relevant part: “The right of trial by jury shall remain inviolate, the number of such jurors, which shall not be less than six, to be established by law; but no person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent. ...”
See, e.g., Gilreath v. State, 247 Ga. 814, 279 S.E.2d 650 (1981), cert. denied, 456 U.S. 984, 102 S. Ct. 2258, 72 L. Ed. 2d 862 (1982); State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987); Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S. Ct. 2444, 77 L. Ed. 2d 1327 (1983); State v. Campbell, 103 Wash. 2d 1, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094, 105 S. Ct. 2169, 85 L. Ed. 2d 526 (1985).
Thirty-seven states have passed death penalty statutes since 1972. See R. Pascucci, E. Strauss & G. Watchman, “Capital Punishment in 1984; Abandoning the Pursuit of Fairness and Consistency,” 69 Cornell L. Rev. 1129, 1217 (1984). In the only two states in which the death penalty was held to have been facially unconstitutional as cruel and unusual punishment; People v. Anderson, 6 Cal. 3d 364, 493 P.2d 880, 100 Cal. Rptr. 152, cert. denied, 406 U.S. 958, 92 S. Ct. 2060, 32 L. Ed. 2d 344 (1972), and District Attorney v. Watson, 381 Mass. 648, 411 N.E.2d 1274 (1980); amendments to the state constitution promptly rejected these decisions. J. Acker & E. Walsh, “Challenging the Death Penalty under State Constitutions,” 42 Vand. L. Rev. 1299, 1331 (1989).
Capital punishment existed even prior to the adoption of Ludlow’s Code in 1650. The laws of 1642 made idolatry, witchcraft, blasphemy, murder, bestiality, adultery, rape, kidnapping and false witnessing punishable by death. G. Clark, A History of Connecticut (2d Ed. 1914) p. 444.
The constitution of 1818 declared in relevant part; “[N]o person shall be holden to answer for any crime, the punishment of which is death or imprisonment for life, unless on a presentment or indictment of a grand jury.” G. Clark, A History of Connecticut (2d Ed. 1914) p. 89.
State courts have invalidated state death penalty statutes that, unlike General Statutes § 53a-46a, required the imposition of the death penalty if jurors found aggravating and mitigating factors to be in equipoise; Peo ple v. Young, 814 P.2d 834, 844-45 (Colo. 1991); or required the imposition of the death penalty for certain classes of offenders. See Commonwealth v. O’Neal, 369 Mass. 242, 263, 339 N.E.2d 676 (1975); State v. Green, 91 Wash. 2d 431, 441-47, 588 P.2d 1370 (1979).
This language does not differ substantively from General Statutes (Rev. to 1983) § 53a-46b (b) (2), which provided: “The supreme court shall affirm the sentence of death unless it determines that ... (2) the evidence fails to support the finding of an aggravating circumstance specified in subsection (g) of section 53a-46a... .”
General Statutes § 53a-46a (c) provides: “In [a hearing on imposition of the death penalty] the court shall disclose to the defendant or his counsel all material contained in any presentence report which may have been prepared. No presentence information withheld from the defendant shall be considered in determining the existence of any mitigating or aggravating factor. Any information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but the admissibility of information relevant to any of the aggravating factors set forth in subsection (h) shall be governed by the rules governing the admission of evidence in such trials. The state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any mitigating or aggravating factor. The burden of establishing any of the factors set forth in subsection (h) shall be on the state. The burden of establishing any mitigating factor shall be on the defendant.”
The defendant also asserts that the restriction of his presentation of relevant mitigating evidence “violates the constitutionally required principle of individualized sentencing.” See Lockett v. Ohio, supra, 438 U.S. 604 (plurality opinion) (“the Eighth and the Fourteenth amendments require that the sentencer... 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”); see also Eddings v. Oklahoma, supra, 455 U.S. 110-15. Because we conclude that the trial court’s rulings in violation of § 53a-46a (c) require a new penalty hearing, we do not address this constitutional claim.
Additionally, the defendant contends that the trial court improperly refused to admit: (1) information regarding the defendant’s nolo contendere plea and consecutive life sentences in the Windham murders; (2) testimony of the defendant’s sisters and others regarding the experiences of the Ross children while they were growing up and certain behavior of the defendant’s mother; (3) testimony of the defendant’s sister regarding their mother’s contact with the prosecution during the case; (4) the defendant’s letters to his sister expressing remorse and discussing his mother’s abuse of him as a child; (5) the testimony of Fred Berlin, a defense psychiatric expert, that the defendant’s ability to control his conduct was significantly impaired; and (6) the testimony of Berlin that the defendant was willing to serve as a research subject regarding causes and possible prevention of “sexual sadism.” Because we conclude that the improper exclusion of Miller’s letter and report requires a new sentencing hearing, we need not reach these additional evidentiary claims. We assume that our clarification of the standard for admission of mitigating evidence will afford sufficient guidance to the trial court should similar issues recur at a new sentencing hearing.
Before the trial to determine the defendant’s guilt, the defendant filed a motion for a “judicial determination of mitigating factor,” to which he attached Miller’s letter as an exhibit. The state objected to the admissibility of the letter on the grounds that it constituted an opinion on the ultimate fact and that there was no factual basis for the letter. The trial court denied the defendant's motion. During the penalty phase, when the letter was offered by the defendant as a full exhibit in support of mitigation, the trial court sustained the state’s objection to its admission on the ground that Miller was available to testify in person.
We decline to follow the decision of the Illinois Supreme Court construing its statutes on the admissibility of evidence relevant to mitigation to require a showing of reliability. See, e.g., People v. Edwards, 144 Ill. 2d 108, 174-75, 579 N.E.2d 336 (1991) (citing Ill. Rev. Stat. c. 38, ¶ 9-1 [e] [1987]), cert. denied, U.S., 112 S. Ct. 2278, 119 L. Ed. 2d 204 (1992). The other cases relied upon by the state to support its position are inapposite. Underwood v. State, 535 N.E.2d 507, 521 (Ind.) (applying pure relevancy standard of limited scope), cert. denied, 493 U.S. 900, 110 S. Ct. 257, 107 L. Ed. 2d 206 (1989); State v. Long, 119 N.J. 439, 502, 575 A.2d 435 (1990) (applying rule derived from state statute governing scope of cross-examination of defense character witness); State v. Pitts, 116 N.J. 580, 633, 562 A.2d 1320 (1989) (applying statute; N.J.S.A. 2C:11-3 [c] [2] [b]; that specifically requires “reliability” of evidence relevant to mitigating factors).
The letter, dated February 15, 1987, reads in its entirety:
“Dear Bob, Because of the long time since I have heard from you concerning one of the cases I saw for you, I have had a great deal of time to go over in my mind how feasible the stand we had anticipated I would take might be.
The result of all this rumination is this personal letter which I write without any copies. As you assume, it is a demurral and a reverse of my earlier intemperate stand, which was based more on emotion than reason.
After deliberation I [can’t] see how I could testify against psychopathology playing a sufficient role in defendant’s behavior to mitigate the type of penalty. If it had been only one or two incidents I could have held up, but the repetitive nature of the acts as well as past history of assaultive-behavior make my (our) position untenable. Accordingly I must back out of the case, even if it is such a late date.
If it is of any assistance to you, I have had to see an ENT specialist several times recently, and will have to seek him in a month again at which time I may have to enter a hospital for further tests, so you could tell the Court I have to be excused for reasons of health.
Regards to Tommy.
Bob Miller.”
The report stated, “Were a specific diagnosis to be attached to [his] condition at the time of his offenses, it would be, in DSM III, 302.84, Sexual Sadism.”
In making this determination we do not assume that psychiatric professionals will act as hired guns on behalf of their respective “employers.” See State v. Schneider, 402 N.W.2d 779, 788 (Minn. 1987) (“Experts are not the paid harlots of either side in a criminal case and should not be portrayed in such a light.”). Nevertheless, it is reasonable to assume that a jury would give special weight to an opinion favoring the defense that was rendered by an expert appointed for the state to undertake an independent evaluation of the defendant.
See footnote 35.
The defendant also argues that permitting general characteristics of the form of any capital felony to prove aggravation fails to distinguish meaningfully those who receive the death penalty from those who do not. State v. Breton, supra, 212 Conn. 263. The substance of this argument was rejected in our discussion on the sufficiency of evidence claims. See part III A.
The state argues, specifically, that a kidnap/murder that includes a brutal sexual assault is “especially cruel.” General Statutes § 53a-46a (h) (4).
We note additionally that the defendant was prohibited from asking Orszak, on redirect, whether someone serving two consecutive life sentences could ever earn enough good time credits to be released. The state concedes that this ruling was improper.
Furthermore, we caution the court on remand to consider the possible applicability of the United States Supreme Court’s recent opinion in Simmons v. South Carolina, U.S., 114 S. Ct. 2187, 129 L. Ed. 2d 133 (1994), concerning a defendant’s constitutional right to have a jury at a capital sentencing hearing be informed of his ineligibility for parole when future dangerousness is at issue.
The defendant misconstrues State v. Schutte, supra, 97 Conn. 467, as standing for the proposition that General Statutes § 54-83 applies during a capital sentencing hearing because its purpose is “to prevent a person [from] being put to death by the unsupported testimony of one witness.” Sehutte discusses the two witness rule as an evidentiary requirement imposed on the state only in proving the defendant guilty of a capital crime. Id., 468-70 (“All that the statute requires... is that the proof of all the essential elements of the capital crime charged... shall not depend upon the testimony of one witness.” [Emphasis added.] Id., 468.).
The defendant also claims that the trial court improperly instructed the jury not to consider statements made by the defendant to psychiatric experts"‘in regard to a proof of mitigating... factors directly.’” The state responds that this issue was waived because the defendant did not object to the court’s corrective instruction that such statements could be used to support the psychiatric opinions offered by the defense. We assume, in light of our clarification of the standard of admissibility regarding evidence of mitigation, that this issue will not arise again at a new sentencing hearing.
See footnote 8 for requirements of Secondino v. New Haven Gas Co., supra, 147 Conn. 672.
The defendant’s parents were included on the state’s list of witnesses. Also, Detective Malchik testified that he had been in contact with the defendant’s mother, who had answered his questions and provided him with evidence.
Public Acts 1985, No. 85-366, § 1 (d), now codified at General Statutes § 53a-46a (d), provides: “In determining whether a mitigating factor exists concerning the defendant’s character, background or history, or the nature and circumstances of the crime, pursuant to subsection (b) of this section, the jury or, if there is no jury, the court shall first determine whether a particular factor concerning the defendant’s character, background or history, or the nature and circumstances of the crime, has been established by the evidence, and shall determine further whether that factor is mitigating in nature, considering all the facts and circumstances of the case. Mitigating factors are such as do not constitute a defense or excuse for the capital felony of which the defendant has been convicted, but which, in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of his culpability or blame for the offense or to otherwise constitute a basis for a sentence less than death.”
The defendant specifically maintains that the phrase, “considering all the facts and circumstances of the case,” contained in subsection (d) sets up a dichotomy between mitigants and aggravants. The legislative history cited by the defendant does not support this proposition. See 28 H.R. Proc., Pt. 17, 1985 Sess., pp. 6111-17; 28 S. Proc., Pt. 10, 1985 Sess., pp. 3470-75.
At the jury’s request for a reinstruction on mitigating factors, the court charged that the jury should determine whether the established “facts considered alone or in combination with other facts rise to the level of becoming a factor, that in light of all the circumstances surrounding the commission of the crimes... should reduce the severity of the punishment that the defendant is to receive.” (Emphasis added.) These instructions permitted the jury to give cumulative force to any facts it had found to have been established by a preponderance of the evidence. On remand, we caution the trial court to convey more carefully to the jury, in the first instance, that it may give cumulative effect to any or all of the facts presented and proven by the defendant in favor of mitigation.
Furthermore, this instruction, viewed in conjunction with the catchall instruction given by the trial court, would not preclude a jury from exercising the discretion to give mitigating force to a finding that the defendant was mentally impaired, but not sufficiently so as to constitute a statutory mitigant. General Statutes § 53a-46a (g) (2). The catchall instruction charged the jury to consider “any other mitigating factors concerning [the defendant’s] character, background, and history suggested by the evidence. You will note by the last that you can consider any evidence that you determine in your own wisdom rises to the level oí a mitigating factor which may not be incorporated or urged upon you in any one of the preceding claims in that list of mitigating factors.”
This court has the authority to remand a case for resentencing without setting aside the underlying convictions. State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990); State v. Hanson, 210 Conn. 519, 531, 556 A.2d 1007 (1989); State v. Williams, 199 Conn. 30, 47, 505 A.2d 699 (1986); State v. Jenkins, 198 Conn. 671, 680, 504 A.2d 1053 (1986); State v. Lewis, 176 Conn. 270, 274, 407 A.2d 955 (1978).
[OPINION BY Berdon, J., type=dissent]
Berdon, J.,
dissenting in part. believe that Connecticut’s death penalty statute is facially unconstitutional and may not be applied to the defendant or anyone else. I also believe that the trial court committed harmful error by instructing the jurors, during the guilt phase of the defendant’s trial, that they could draw an adverse inference from the defendant’s failure to call as witnesses a psychiatrist and a psychologist with whom he had consulted concerning his insanity defense. I therefore would remand this case for a new, noncapital trial.
Our post-Furman death penalty statutes, from which General Statutes § 53a-46a derives, were enacted by the legislature in 1973. See Public Acts 1973, No. 73-137, § 4. Section 53a-46a sets forth the procedures as well as the substantive law governing the imposition of the death penalty. Section § 53a-46a “permits a person convicted of a capital felony to be sentenced to death if the state proves the existence of an aggravating factor beyond a reasonable doubt and the defendant fails to prove the existence of a mitigating factor by a preponderance of the evidence.” State v. Breton, 212 Conn. 258, 260-62, 562 A.2d 1060 (1989).
The defendant challenges not only the validity of his capital felony convictions, but also whether § 53a-46a passes muster under both the state and the federal constitutions. The two specific constitutional issues that I address are the following: (1) whether § 53a-46a violates the state constitution because the death penalty constitutes cruel and unusual punishment; and (2) whether § 53a-46a violates the state and federal constitutions because it does not provide for a capital sentencer.
I
State Constitution: Cruel and Unusual Punishment
A
THE STATE CONSTITUTIONAL PROVISION
Although our post-Furman death penalty statute has previously been considered by this court, the state constitutional issues raised in this appeal have been left open. As this court stated in State v. Breton, supra, 212 Conn. 271, “we have not decided whether the death penalty, per se or as applied, violates any provision of our state constitution... [and] have not determined what standard of review will govern any future appeal of the defendant’s conviction or death sentence... .” In this case, the defendant squarely raises the issue of whether the punishment of death provided for in § 53a-46a constitutes cruel and unusual punishment under the state constitution.
When reviewing the contours of our state constitution, we are clearly not limited by the interpretation given to the cognate provisions of the federal constitution by the United States Supreme Court. “It is beyond dispute that we are not bound by federal precedents in interpreting our own state constitutional provisions. ‘[F]ederal decisional law is not a lid on the protections guaranteed under our state constitution.’ Doe v. Maher, 40 Conn. Sup. 394, 419, 515 A.2d 134 (1986). As we stated in State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992), ‘federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection... .’ (Internal quotation marks omitted.)” Fair Cadillac-Oldsmobile Isuzu Partnership v. Bailey, 229 Conn. 312, 316-17, 640 A.2d 101 (1994); see also State v. Joyce, 229 Conn. 10, 15-16, 639 A.2d 1007 (1994).
Our state constitution, which was first formally adopted in 1818, does not explicitly prohibit the imposition of cruel and unusual punishment. Nevertheless, there are constitutional rights that are so fundamental they need not be set forth explicitly in order to be protected by our state charter of liberty. See, e.g., Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962) (the right to protection against double jeopardy is implicit in the due process clause of our state constitution); Doe v. Maher, supra, 40 Conn. Sup. 394 (implicit in our state due process clause is the fundamental right to privacy, which includes the right of a poor woman to require that the state’s medical assistance program for the poor pay for therapeutic abortions). These fundamental rights “are recognized in the preamble of the constitution and that of the declaration of rights; and all are guaranteed by the due process clause. These clauses, first incorporated in the constitution of 1818, were carried forward in their original language through several revisions to the present constitution of 1965. The preamble of the constitution makes clear that it reserves to the people 'the liberties, rights and privileges which they have derived from their ancestors’; and the preface clause to the declaration of rights, article first, broadly incorporates the concept of ordered liberty by stating ‘[tjhat the great and essential principles of liberty and free government may be recognized and established.. .’ which clause is followed by a declaration of specific rights.” Doe v. Maher, supra, 422.
Article first, § 8, of our state constitution, which prohibits the deprivation of life without due process of law, and article first, § 9, which provides that no person may be punished unless “clearly warranted by law,” provide a textual basis for the prohibition of cruel and unusual punishment. Inextricably interwoven into the fabric of these two clauses is the right of every person in Connecticut to be free from such punishment no matter what crime that person has committed. The prohibition against cruel and unusual punishment has always been understood to be a fundamental right in any civilized nation. Even the majority concedes that Connecticut’s constitution also prohibits such punishment.
The historical antecedents of our formal state constitution confirm the existence of this fundamental right. As early as 1673, the laws of the Connecticut colony explicitly prohibited the infliction of bodily punishments “that are Inhumane, Barbarous or Cruel.” Laws of Connecticut (1673) p. 58 (section entitled “Punishment”). In addition, Chief Justice Swift wrote that “though the law invests goalers with all the powers necessary for the interest of the commonwealth, yet they are not to behave with the least degree of wanton cruelty to their prisoners.” 2 Z. Swift, A Digest of the Laws of the State of Connecticut (1823) pp. 268-69 (hereinafter Swift’s Digest). He also wrote that if a person commits a crime without sufficient mental capacity, such that “he does not comprehend the consequence of what he is doing, cannot distinguish between right and wrong, and is rather actuated by a blind impulse,” then that person is not criminally liable, because “it would be cruel to punish him for his acts.” Id., p. 362.
Justice Swift’s writings are particularly significant to our state constitutional jurisprudence. “He was instrumental in encouraging the public and the legislature to convene the constitutional convention of 1818. Although he pursued a written constitution in order to achieve separation of powers, his participation as a leader is significant. J. Trumbull, Historical Notes on the Constitutions of Connecticut and on the Constitutional Convention of 1818 (1873) pp. 40-41. Second, since Justice Swift was the chief judge and the state’s leading judicial scholar at the time of the convention, his views on the law take on great significance in determining what the framers had in mind when adopting the language of the constitution. See W. Horton, ‘Connecticut Constitutional History 1776-1988,’ 64 Conn. B.J. 355, 356-58 (1990).” State v. Joyner, 225 Conn. 450, 490, 625 A.2d 791 (1993) (Berdon, J., dissenting).
Furthermore, our case law has long recognized a state constitutional right to be free from cruel and unusual punishment. See State v. Smith, 5 Day (Conn.) 175, 178-79 (1811) (the court may not impose a sentence that is cruel or inhuman); State v. Torkomian, 113 Conn. 785, 787, 156 A. 860 (1931) (the court may not impose a punishment so “unusual” or “excessive” as to “shock the conscience”); State v. Kyles, 169 Conn. 438, 442-44, 363 A.2d 97 (1975) (considering a “cruel and unusual punishment” claim under both the state and federal constitutions); State v. Kreminski, 178 Conn. 145, 153 and n.4, 422 A.2d 294 (1979) (recognizing that article first, § 8, prohibits “ ‘cruel and unusual punishments’ ”); State v. Dupree, 196 Conn. 655, 665, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S. Ct. 318, 88 L. Ed. 2d 301 (1985) (considering a “cruel and unusual punishment” claim under both the state and federal constitutions). The fact that State v. Smith, supra, 175, predates our first formal constitution is significant because “[t]he common law provided the foundation for our unwritten constitution prior to 1818.” State v. Joyner, supra, 225 Conn. 488 (Berdon, J., dissenting); see also W. Horton, The Connecticut State Constitution (1993) pp. 60-61 (suggesting that an excessive punishment would violate article first, § 8, of the Connecticut constitution).
B
CONTEMPORARY STANDARDS OF DECENCY
It is clear, as the majority concedes, that the right to be free from cruel and unusual punishment is protected by our state constitution. It is also clear that when our formal constitution was first adopted in 1818, the death penalty was the designated punishment for certain crimes. Nevertheless, we have never held that our constitution must be interpreted today to mirror the standards of decency that prevailed in 1818. Indeed, in State v. Lamme, 216 Conn. 172, 183, 579 A.2d 484 (1990), we recently concluded that it is appropriate to seek a contemporary interpretation of the constitution: “ ‘The Connecticut constitution is an instrument of progress, it is intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all of our citizens.’ State v. Dukes, 209 Conn. 98, 115, 547 A.2d 10 (1988).”
The history of this state on the issue of death as an acceptable punishment clearly demonstrates that, constitutionally, we must look at the penalty through the lens of contemporary standards. This court certainly would reject, as cruel and unusual, other forms of punishment that were at one time as acceptable in Connecticut as the death penalty. For example, contemporary standards of decency would certainly forbid the punishment imposed by a judge of the Connecticut Superior Court in 1773 for burglary: “[T]hat [the defendant] go from hence to the Goal from whence he Came and from thence to the place of Execution and then and there be branded on his forehead with the Capital Litter B on a hot Iron and have one of his Ears Nailed to a post and Cut off and also Whipt on his Naked body fifteen Stripes.” 4 American Legal Records, The Superior Court Diary of William Samuel Johnson 1772-1773 (J. Farrell ed., 1942) pp. 91-92.
Chief Justice Swift recognized these evolving standards of decency when he pointed out, in his 1796 treatise on Connecticut law, that while England imposed the death penalty for 241 crimes, Connecticut had narrowed the number to only seven. 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) p. 293 (hereinafter Swift’s System). Moreover, notwithstanding this limitation of the death penalty, Swift advocated that it should be further circumscribed as follows: “I shall only remark, that the dreadful punishment of death ought only to be inflicted on treason and murder: that confinement to hard labour ought to be inflicted on those crimes, to which there is a strong temptation, which indicate great moral depravity, which are infamous, and are highly injurious to society; that this ought to be varied according to the aggravations of the offence: and that for all inferior crimes, corporal pains and pecuniary penalties may be proportioned in such a manner as to subserve the interest of society: that corporal punishment is proper for those crimes which are infamous and bad in their own nature; and pecuniary penalties are adapted to actions which are deemed crimes in a political point of view, and bad because they are prohibited.” (Emphasis added.) Id., p. 297.
Accordingly, we must consider the death penalty and our state constitution’s prohibition against cruel and unusual punishment in the context of contemporary standards of decency and morality. The prohibition against cruel and unusual punishment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958). If our death penalty is unacceptable under contemporary standards of decency and morality, then we, as the state’s highest appellate court, are obligated to declare it unconstitutional. District Attorney for Suffolk District v. Watson, 381 Mass. 648, 661-62, 411 N.E.2d 1274 (1980).
The majority concedes that our state constitution’s prohibition against cruel and unusual punishment must be interpreted in light of contemporary standards. Nevertheless, it bases its conclusion of what this standard requires on a cursory analysis of the issues. First, the majority attempts to insulate itself from the moral degradation of the death penalty by stating that “[t]he question is not whether any one of us would vote to enact a death penalty if our role were that of a legislator.” Second, the majority relies on the judgments of the legislatures of this state and the other states that have enacted death penalty statutes. While this simplistic approach may provide an easy way for the majority to decide the important issue before us, it falls to fulfill our obligation as a constitutional court of last resort because it evades the substance of the issue.
The fact that many state legislatures have enacted death penalty statutes clearly does not control the issue of whether contemporary standards prohibit that punishment. Public opinion polls also are not controlling. “The right to be free of cruel and unusual punishments, like the other guarantees of the Bill of Rights, ‘may not be submitted to vote; [it] depend[s] on the outcome of no elections.’ ‘The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.’ Board of Education v. Barnette, [319 U.S. 624, 638, 63 S. Ct. 1178, 87 L. Ed. 1628] (1943).” Furman v. Georgia, 408 U.S. 238, 268-69, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Brennan, J., concurring). Justice Arthur J. Goldberg and Professor Alan M. Dershowitz explained it this way in discussing the federal constitution’s cruel and unusual punishment clause: “Were wide acceptance-measured by statutory authorization or public opinion polls—enough to authorize a punishment, the clause would indeed be drained of any independent integrity as a governing normative principle. Like no other constitutional provision, its only function would be to legitimize advances already made by the other departments and opinions already the conventional wisdom. It would forbid only extremely aberrant penalties. The framers cannot have intended so narrow a role for this basic guaranty of human rights.” (Internal quotation marks omitted.) A. Goldberg & A. Dershowitz, “Declaring the Death Penalty Unconstitutional,” 83 Harv. L. Rev. 1773, 1782 (1970).
This is not to say, of course, that the views of the public are irrelevant in determining whether contemporary standards of decency prohibit the death penalty. Although public opinion is relevant, it cannot appropriately be measured by abstract polls that elicit generalized, emotional responses from participants. Nor should public opinion be gauged by the actions of activists who are blindly and vindictively guided by a desire for retribution. Instead, as I discuss later in this opinion, public opinion must be gleaned from a society’s actual record in carrying out the death penalty. See District Attorney for Suffolk District v. Watson, supra, 381 Mass. 662 (“what our society does in actuality is a much more compelling indicator of the acceptability of the death penalty than the responses citizens may give upon questioning”). While it is easy for the public to respond to the conviction of a vicious murderer or a serial killer by advocating the ultimate penalty of death, it is far more difficult for society to carry out that penalty by taking the life of that person. This is simply because we, as a civilized society with high moral values, believe “that even the vilest criminal remains a human being possessed of common human dignity.” Furman v. Georgia, supra, 408 U.S. 273 (Brennan, J., concurring).
In determining whether the death penalty is cruel and unusual under contemporary standards of decency, several factors should be considered. These factors are: (1) whether the punishment is degrading to the dignity of the human being; (2) whether the punishment is acceptable to the public; (3) whether the punishment has, in the past, been administered in an arbitrary and capricious manner; (4) whether the punishment has been imposed in a discriminatory fashion; (5) whether the punishment serves any legitimate purpose; and (6) whether the punishment is so final and complete that error cannot be corrected. Although each of these factors may be considered separately as a standard for determining whether a punishment is cruel and unusual, they are interrelated and should be considered collectively in determining whether contemporary standards of human decency and morality prohibit the state from imposing this “dreadful punishment.” These factors simply provide means by which a court can determine whether a challenged punishment is cruel and unusual under the civilized standards of 1994.
1
Degrading to the Dignity of the Human Being
The punishment of death is inherently degrading to the dignity of a human being for at least two reasons. First, the physical and psychological pain associated with it are barbaric. See, e.g., Amnesty International, United States of America, The Death Penalty (1987) pp. 108-19; K. Haas & J. Inciardi, “Lingering Doubts About A Popular Punishment,” in 24 Criminal Justice System Annuals, Challenging Capital Punishment: Legal and Social Science Approaches (K. Haas & J. Inciardi eds., 1988) pp. 13, 23-24. Such pain exists whether the death penalty is carried out by electrocution, hanging or lethal injection, and is especially barbaric when an attempted execution is bungled. “Since the discontinuance of flogging as a constitutionally permissible punishment... death remains as the only punishment that may involve the conscious infliction of physical pain.” (Citation omitted.) Furman v. Georgia, supra, 408 U.S. 287-88 (Brennan, J., concurring).
Furthermore, “[t]he cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to execution during which the judicial and administrative procedures essential to due process of law are carried out. Penologists and medical experts agree that the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture.” People v. Anderson, 6 Cal. 3d 628, 649, 493 P.2d 880, 100 Cal. Rptr. 152, cert. denied, 406 U.S. 958, 92 S. Ct. 2060, 32 L. Ed. 2d 344 (1972). The death penalty is inherently cruel, regardless of the method that is used to carry it out.
Second, as Justice Brennan points out, punishment by death is a denial of a person’s basic humanity. “Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity. The contrast with the plight of a person punished by imprisonment is evident. An individual in prison does not lose the right to have rights. A prisoner retains, for example, the constitutional rights to the free exercise of religion, to be free of cruel and unusual punishments, and to treatment as a person for purposes of due process of law and the equal protection of the laws.” (Internal quotation marks omitted.) Furman v. Georgia, supra, 408 U.S. 290 (Brennan, J., concurring). The destruction of a human being does not become any more humane simply because the state is the executioner. To burn human flesh to death by electrocution, or snuff out life through lethal injection, is not less inhumane because it is done in the name of justice.
2
Public Acceptance
The second factor we should consider is public acceptance of the death penalty. Public acceptance, as I pointed out previously, should not be measured in the abstract by opinion polls, or by the outraged response of the public to a particularly vicious murder. Instead, public opinion should be measured objectively in terms of society’s actual record in imposing the death penalty.
Over the last 100 years, there have been only seventy-three executions in Connecticut, and no one has been put to death since 1960. W. Bowers, Legal Homicide: Death as Punishment in America 1864-1982 (1984) pp. 419-20. Indeed, our whole state history demonstrates a reluctance to impose the death penalty. For example, from colonial days to the present, Connecticut has required that a capital conviction must be supported by the testimony of at least two witnesses. Laws of Connecticut (1673) p. 69 (section entitled “Witnesses”); see General Statutes § 54-83. This requirement is “unique in Anglo-Saxon jurisprudence” and reflect’s Connecticut’s “ ‘high regard for life.’ ” State v. Schutte, 97 Conn. 462, 465, 467, 117 A. 508 (1922). Moreover, in 1846, the Connecticut legislature created a distinction between first degree murder and second degree murder in order to limit the application of the death penalty. State v. Dowd, 19 Conn. 388, 391-92 (1849). This court held that the statute gave the jury discretion in all cases to find second degree murder, and therefore avoid the death penalty. Id., 393. In 1951, the legislature enacted a statute that allowed the jury to recommend life imprisonment rather than death for individuals convicted of first degree murder, making it even easier for the jury to avoid imposing the death penalty. See Public Acts 1951, No. 369.
It is also significant that around the time of the adoption of our first formal state constitution in 1818, England imposed the death penalty for at least 200 crimes; 2 Swift’s Digest, supra, p. 259; whereas Connecticut had narrowed the number to only five. See footnote 8. Many historians have recognized Connecticut’s reluctance to impose the death penalty. “There have been, it is believed, within the last two hundred and twenty years, fewer executions in Connecticut for crime, than in any other state of equal size in the world. The records of our courts have scarcely the stain of blood upon them... .” 2 G. Hollister, The History of Connecticut (1855) p. 526. According to The Judicial and Civil History of Connecticut, our early capital laws “were seldom enforced, and, indeed, the cases in which capital punishment has been inflicted have been exceedingly rare, some counties hardly having known an execution.” The Judicial and Civil History of Connecticut (D. Loomis & J. Calhoun eds., 1895) p. 63. “[T]he forefathers of Connecticut can only be admired for a clearer appreciation of human rights, human suffering and human justice, than the average of civilized nations.” Id., p. 71.
Furthermore, the death penalty has been repudiated consistently in the northeastern part of our country and in many parts of the world. New York, Maine, Massachusetts, Vermont and Rhode Island do not provide for capital punishment. It is difficult to understand why Connecticut, the birth place of the world’s first constitution, would continue to sanction the execution of human beings. Although we do not decide cases according to which side has the greatest number of supporters, it is significant that sixteen religious, social and other concerned groups have filed amicus briefs opposing the imposition of the death penalty in this case.
3
Arbitrariness and Capriciousness of the Death Penalty
The third factor that must be considered in determining whether the death penalty comports with contemporary standards of decency and morality is the arbitrary manner in which it is imposed. When the legislature debated our post-Furman death penalty statute, some legislators expressed great concern about the likelihood that the statute would be arbitrarily applied. For example, Senator Joseph Fauliso stated: “The Bill before us fails to remedy the arbitrary application of the law which was the critical element in [Furman]. Dean [Pollak], the distinguished scholar and the former dean of Yale Law School made a study of this Bill. He concluded by saying, I quote, ‘The conclusion that this Bill is unconstitutional is not a criticism of the drafters, it is rather a recognition that they were undertaking a constitutional impossibility. Maintaining the idea of a death sentence while insuring that it would in practice almost never be imposed, the result necessarily is not merely [that death sentences] would be rarities but that those rarities would occur wantonly and freakishly and hence, unconstitutionally.’ ” 16 S. Proc., Pt. 4, 1973 Sess., p. 1892.
Similarly, Senator Joseph Lieberman objected that the bill established “a process which is so filled with opportunities to condemn one human being to death and find favorably for another in the same circumstances that it cannot withstand the... test of the Furman case. The situation is made increasingly fallible by the vagueness of some of the aggravating and mitigating factors .... I fully respect the apparent intention of the Judiciary Committee in writing in these factors which I assume was to protect all but the worst, most dangerous criminal from the ultimate sanction of death, but I feel in their attempt to take a terrible penalty and make it, one might use the word humane, they have built a crazy ‘house of cards’ which cannot stand.” Id., p. 1906.
Justice Brennan expressed this same concern in Furman: “When a country of over 200 million people inflicts an unusually severe punishment no more than 50 times a year, the inference is 'strong that the punishment is not being regularly and fairly applied.... When the rate of infliction is at this low level, it is highly implausible that only the worst criminals or the criminals who commit the worst crimes are selected for this punishment. No one has yet suggested a rational basis that could differentiate in those terms the few who die from the many who go to prison.” Furman v. Georgia, supra, 408 U.S. 293-94 (Brennan, J., concurring); see generally C. Black, Capital Punishment: The Inevitability of Caprice and Mistake (2d Ed. 1981).
Indeed, this case demonstrates the inherent arbitrariness of our death penalty. After the defendant had confessed to the murders of six young women in Connecticut, he was charged with capital felony in the judicial district of Windham for two of the murders. The state’s attorney in that case, with full knowledge of all of the murders that had been committed by the defendant, allowed him to plead nolo contendré to two counts of first degree murder and to be sentenced to two consecutive terms of life imprisonment (120 years). When the defendant was subsequently prosecuted in the judicial district of New London for the other four murders, a different state’s attorney decided to proceed to trial on the capital felony charges and seek the death penalty. As a result, the defendant was convicted and sentenced to death. This life-and-death difference between the sentences received by the defendant for identical crimes proves that an unacceptable level of arbitrariness exists due to prosecutorial discretion, even if the jury is adequately guided by the statute.
The available statistics also compel the conclusion that prosecutorial discretion has resulted in the arbitrary imposition of the death penalty. Since 1973, there have been at least fifteen cases in Connecticut in which the defendant was initially charged with capital felony, but was allowed to plead guilty to a lesser crime and avoid the death penalty. This number does not include cases in which the defendant could have been charged with capital felony originally but was not. Four of the fifteen cases were factually similar to the one before us, involving murders committed in the course of a sexual assault or kidnapping.
Justice Brennan described the effects of this arbitrariness as follows: “[Discrimination and arbitrariness at an earlier point in the selection process nullify the value of later controls on the jury. The selection process for the imposition of the death penalty does not begin at trial; it begins in the prosecutor’s office. His decision whether or not to seek capital punishment is no less important than the jury’s. Just like the jury, then, where death is the consequence, the prosecutor’s discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” (Internal quotation marks omitted.) DeGarmo v. Texas, 474 U.S. 973, 975, 106 S. Ct. 337, 88 L. Ed. 2d 322 (1985) (Brennan, J., dissenting). There is no better example of such arbitrariness than this case, in which, faced with identical crimes, one prosecutor pursued and obtained the death sentence, while another was satisfied with life imprisonment. See C. Black, supra, pp. 46-53, 51 (discussing the arbitrariness inherent in the prosecutor’s decision to charge a capital offense; concluding that “within any foreseeable future, one of the absolutely crucial decisions for life or death— the decision whether to offer the defendant a chance to plead guilty to a noncapital offense—will be made administratively, on the basis of administrative discretion, without clear standards in law”).
Arbitrariness also inheres in this court’s decision to resolve this appeal before a majority of the justices of this court have had an opportunity to review the constitutionality of the death penalty. Of the seven justices of the Connecticut Supreme Court, only three are qualified to sit on this case because of disqualifications by the remaining four. Of these three, only two are voting to uphold our death penalty statute. The other two judges who constitute the majority are sitting by designation of the chief justice.
Clearly, these designated judges are as competent and capable of deciding important issues of law as the justices of the Supreme Court. The fact remains, however, that Michael Ross will be forced to undergo another death penalty sentencing hearing, and perhaps will even be executed, before a majority of the members of this court have considered the constitutionality of the death penalty. Because there are four other death penalty appeals pending before this court, and because a greater number of justices probably would be qualified to sit on each of these appeals, it is possible that the death penalty will eventually be ruled unconstitutional by this court sometime in the future. To me, upholding the death penalty for a particular defendant and allowing his case to move forward when a majority of the full court has not considered the constitutional issue is arbitrary and capricious. It is conceivable that Michael Ross will die, whereas the other death row inmates will be spared, because his appeal was heard first. I find this possibility unacceptable.
Like Justice Glass, I am unwilling to tolerate “a certain amount of capriciousness in the application of the death penalty.” State v. Breton, supra, 212 Conn. 281 (Glass, J., dissenting). Even if a conscious effort were made to eliminate arbitrariness in the imposition of the death penalty, it simply could not be achieved. “[T]he effort to eliminate arbitrariness in the infliction of that ultimate sanction is so plainly doomed to failure that it—and the death penalty—must be abandoned altogether.” Godfrey v. Georgia, 446 U.S. 420, 442, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980) (Marshall, J., concurring). Although I recognize that there is a degree of arbitrariness in the imposition of almost any punishment, such capriciousness cannot be tolerated when the punishment is the final and awesome one of death. In view of the arbitrariness and capriciousness that inheres in our system, we cannot reasonably rely on it to decide who should live and who should die.
4
Discrimination
A fourth factor that needs to be considered is the fact that the death penalty is imposed in a discriminatory fashion. Simply put, defendants who are convicted of murdering whites are much more likely to be sentenced to death than those convicted of murdering African-Americans. See McCleskey v. Kemp, 481 U.S. 279, 320, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987) (Brennan, J., dissenting) (“murder defendants in Georgia with white victims are more than four times as likely to receive the death sentence as are defendants with black victims”). A 1990 report by the United States General Accounting Office found that “ ‘[i]n 82 [percent] of the studies [reviewed], race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those who murdered blacks.’ ” U.S. General Accounting Office, Death Penalty Sentencing (February 1990), quoted in Death Penalty Information Center, Facts About the Death Penalty (November 12, 1993) p. 2. Furthermore, although 50 percent of the murder victims in this country are African-American, 84 percent of the victims in death penalty cases are white. Death Penalty Information Center, supra.
In addition, African-American defendants are more likely to receive the death penalty than white defendants, especially where the victim is white, and poor defendants are more likely to receive the death penalty than defendants generally. K. Haas & J. Inciardi, supra, p. 18; see C. Black, supra, pp. 94-102. “The poor and the black have been the chief victims of the death penalty. ... It is the poor, the sick, the ignorant, the powerless and the hated who are executed.” A Fortas, “The Case Against Capital Punishment,” New York Times Magazine (January 23, 1977), reprinted in The Death Penalty (I. Isenberg ed., 1977) p. 122. A report issued by “the President’s Commission on Law Enforcement and Administration of Justice concluded that ‘there is evidence that the imposition of the death sentence and the exercise of dispensing power by the courts and the executive follow discriminatory patterns. The death sentence is disproportionately imposed and carried out on the poor, the Negro, and the members of unpopular groups.’ The Challenge of Crime in a Free Society, A Report by the President’s Commission on Law Enforcement and Administration of Justice 143 (1967).” District Attorney for Suffolk District v. Watson, supra, 381 Mass. 668-69.
Fortunately, not enough people have been sentenced to death in Connecticut in recent years to allow this court to undertake meaningful statistical analysis. Nevertheless, the familiar patterns of discrimination are reflected in the current administration of the death penalty in Connecticut. All of the victims of the five defendants now on death row in Connecticut are white, and two of the five defendants are African-American.
5
The Death Penalty Serves No Legitimate Purpose
The fifth factor to be considered is that there is simply no reason to justify the imposition of the death penalty. “Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment; therefore, the principle inherent in the [constitutional provision] that prohibits pointless infliction of excessive punishment when less severe punishment can adequately achieve the same purposes invalidates the punishment.” Gregg v. Georgia, 428 U.S. 153, 230, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (Brennan, J., dissenting).
The death penalty does not deter crime. As Justice Marshall concluded, after reviewing the available research, there is simply no reliable evidence that capital punishment deters crime. See Gregg v. Georgia, supra, 428 U.S. 233-36 (Marshall, J., dissenting). Indeed, “[a] recent review of all post-1972 empirical studies on capital punishment identified no criminologist in the United States in the last fifteen years who has claimed to find data showing that the death penalty has a long-term deterrent effect greater than that exerted by lengthy imprisonment.” G. Pierce & M. Radelet, “The Role and Consequences of the Death Penalty in American Politics,” 18 N.Y.U. Rev. L. & Soc. Change 711, 715-16 (1990-91). Furthermore, “common sense and experience tell us that seldom-enforced laws become ineffective measures for controlling human conduct and that the death penalty, unless imposed with sufficient frequency, will make little contribution to deterring those crimes for which it may be exacted.” Furman v. Georgia, supra, 408 U.S. 312 (White, J., concurring).
William J. Bowers points out that “[w]e appear to be less concerned with the deliberation and premeditation of offenders than with the brutal, cruel, mindless, even irrational or spontaneous character of their crimes—suggesting that we are more serious about retribution or vengeance than about deterrence as the rationale for capital punishment.” W. Bowers, “The Effect of Executions is Brutalization, Not Deterrence,” in 24 Criminal Justice System Annuals, supra, p. 51. Retribution is not, however, a valid justification. I agree with Justice Marshall’s statement in Gregg v. Georgia, supra, 428 U.S. 240-41 (Marshall, J., dissenting), that to be constitutional, “the death penalty must ‘comport with the basic concept of human dignity at the core of the [prohibition against cruel and unusual punishment]’... the objective in imposing it must be ‘[consistent] with our respect for the dignity of [other] men.’... Under these standards, the taking of life ‘because the wrongdoer deserves it’ surely must fall, for such a punishment has as its very basis, the total denial of the wrongdoer’s dignity and worth.” (Citations omitted.)
6
Finality of Death
The last factor that should be considered in determining whether the death sentence is cruel and unusual punishment is the “irreversible finality of the execution of a criminal defendant... .” Commonwealth v. O’Neal, 369 Mass. 242, 276 n.1, 339 N.E.2d 676 (1975) (Wilkins, J., concurring). Mistakes cannot be corrected after a person is executed. A recent report documents that in the last twenty years, at least forty-eight people have been released from death row after their convictions were overturned because of significant evidence of their innocence. “Innocence and the Death Penalty: Assessing the Danger of Mistaken Executions,” Staff Report, Subcommittee on Civil and Constitutional Rights, Committee on the Judiciary, 103d Cong., 1st Sess. p. 2 (1993). The report concludes that “[i]t is an inescapable fact of our criminal justice system that innocent people are too often convicted of crimes. Sometimes only many years later, in the course of a defendant’s appeals, or as a result of extra-legal developments, new evidence will emerge which clearly demonstrates that the wrong person was prosecuted and convicted of a crime.... Americans are justifiably concerned about the possibility that an innocent person may be executed. Capital punishment in the United States today provides no reliable safeguards against this danger. Errors can and have been made repeatedly in the trial of death penalty cases because of poor representation, racial prejudice, prosecutorial misconduct, or simply the presentation of erroneous evidence. Once convicted, a death row inmate faces serious obstacles in convincing any tribunal that he is innocent.” Id., p. 19.
I recognize that the defendant, Michael Ross, has confessed his guilt, and does not claim that he is “innocent.” This does not make the finality of the death penalty less of a concern, however. The defendant has steadfastly maintained that he was insane at the time he committed the murders, and therefore was not culpable for them. Both legally and morally, executing a person who was insane at the time he or she committed the crime would be just as wrong as executing a person who is innocent of the crime. See State v. Joyner, supra, 225 Conn. 490, 496-98 (Berdon, J., dissenting). Furthermore, even if a person who is condemned to die claims neither innocence nor insanity, there may have been errors in the penalty phase of the trial such that the death sentence should not have been imposed. Indeed, as the majority concedes, such errors occurred in this very case.
The biographer of Associate Justice Lewis F. Powell, Jr., recently disclosed that Powell confessed the decision he most regretted was his decisive vote to uphold the imposition of the death penalty on Warren McCleskey, whose appeal attacked the racial bias inherent in the administration of the death penalty. According to his biographer, four years after his retirement from the United States Supreme Court Justice Powell said, “I have come to think that capital punishment should be abolished.” J. Jeffries, “A Change of Mind that Came too Late,” The New York Times (June 23, 1994) p. A23, col. 1. Justice Harry Blackmun also recently changed his mind about the constitutionality of the death penalty. Callins v. Collins, U.S., 114 S. Ct. 1127, 1134, 127 L. Ed. 2d 435 (1994) (Blackmun, J., dissenting). While Powell’s change of heart came too late for Warren McCleskey, who died in Georgia’s electric chair on September 25, 1991; J. Jeffries, supra, p. A23, col. 1; the transformation of the thinking of these two justices demonstrates the great difficulty that jurists of even the United States Supreme Court can experience in evaluating the constitutionality of the death penalty. This great difficulty, and the awesome finality that marks the execution of a defendant, are even more of a concern in this case than in most because a majority of the justices of this court are unable to participate in the decision of whether our death penalty is constitutional. As it currently stands, two justices of this court believe the death penalty is constitutional, one does not, and four are silent. It is entirely possible, with four other death penalty appeals pending, that a majority of this court will overturn the death penalty sometime in the future, but that the decision may come too late for Michael Ross.
The finality of the death penalty must be viewed in the context of what this court has done, over my dissent, to the writ of habeas corpus, which is the Great Writ of liberty. In the recent case of Summerville v. Warden, 229 Conn. 397, 431, 641 A.2d 1356 (1994), the majority held that a habeas petitioner who demonstrates that he or she is probably innocent is not entitled to a new trial. Although the majority refused to articulate a standard regarding the burden of proof a habeas petitioner claiming actual innocence must meet in order to obtain a new trial, all of the standards referred to in the opinion approximate the United States Supreme Court’s requirement of “a truly persuasive demonstration of actual innocence,” as articulated by a majority of that court in Herrera v. Collins, U.S., 113 S. Ct. 853, 869, 122 L. Ed. 2d 203 (1993). See Summerville v. Warden, supra, 434.
As I demonstrated in my Summerville dissent, this standard “is simply absurd.” Id., 442. What this standard will mean is that once the three year window for bringing a petition for a new trial has closed, a defendant who has been convicted of a capital felony in Connecticut and sentenced to death will be able to obtain a new trial (assuming he or she is still alive) only if the defendant is able to prove that he or she is actually innocent. Therefore, our law, according to the Summerville majority and prior decisions of this court, will allow a criminal defendant to be executed even though there is a probability of his or her innocence. I do not believe that this result is acceptable to the people of Connecticut, who have always demonstrated the highest regard for the dignity of the human being, and insisted that justice be done.
The finality of the death penalty must also be considered in light of this court’s unfortunate decisions, over the dissents of myself and Justice Katz, in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and Carpenter v. Meachum, 229 Conn. 193, 640 A.2d 591 (1994). The majority opinions in those cases held that if the habeas court denies a petition and denies the petitioner certification to appeal, the petitioner may not bring a writ of error to obtain appellate review of the denial of the habeas petition. As a result, habeas petitioners no longer have an unqualified right to appeal from decisions of the habeas court. See Carpenter v. Meachum, supra, 203 (Berdon, J., dissenting). The Great Writ is supposed to be a “bulwark against convictions that violate fundamental fairness,” a line of defense against any injustice that remains after direct appeals have been exhausted. (Internal quotation marks omitted.) Id., 208. By severely restricting the opportunity for appellate review of habeas corpus proceedings, the majorities in Simms and Carpenter have made it far more likely that injustices at every stage of the criminal proceedings—including in the habeas proceeding itself—will go uncorrected. I pointed out in my dissent that “the best way to expedite the business of putting people to death is to limit severely the right to appeal in habeas corpus proceedings.” Id., 206. The combination of the creation of an effective barrier to claims of actual innocence, and the elimination of the right to appeal from all claims brought in habeas corpus, will certainly result in some injustice going uncorrected.
Finally, the death penalty is too high a price to pay as retribution, especially in light of this court’s recent decisions that have all but dismantled habeas corpus. See id., 206-207 (Berdon, J., dissenting) (detailing the court’s restrictive interpretations of the Writ over the past three years). Even if only one innocent life is extinguished in the process of putting people to death, that one life makes the cost of the death penalty unacceptable.
C
CONCLUSION
I can only conclude, on the basis of all the factors I have considered, that the imposition of the death penalty does not comport with contemporary standards of decency and morality. The California Supreme Court and the Supreme Judicial Court of Massachusetts have reached the same conclusion; People v. Anderson, supra, 6 Cal. 3d 628; District Attorney for Suffolk District v. Watson, supra, 381 Mass. 665; and so have justices of two other high courts. State v. Kills On Top, 787 P.2d 336, 356 (Mont. 1990) (Sheehy, J., dissenting); State v. Dicks, 615 S.W.2d 126, 134 (Tenn.) (Brock, J., dissenting), cert. denied, 454 U.S. 933, 102 S. Ct. 431, 70 L. Ed. 2d 240 (1981). Accordingly, I would hold that the death penalty is invalid under our state constitution.
II
Capital Sentencer: Who Should Live and Who Should Die
Even if I believed that our death penalty does not constitute cruel and unusual punishment, I would still agree with the defendant that our statutory scheme does not pass state or federal constitutional muster because, under it, neither the jury nor the judge is the capital sentencer. Specifically, the jury does not make the painful moral decision by explicitly setting forth in its verdict that the defendant should die, and the judge exercises no discretion but merely imposes the sentence according to the jury’s findings regarding the aggravating and mitigating factors.
The United States Supreme Court has held “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.” Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985). The reason for this requirement is that the capital sentencer is thereby required to view its “task as the serious one of determining whether a specific human being should die at the hands of the State.” Id., 329. Requiring that, if capital punishment is to be imposed, the sentencer must specifically state that the defendant should be put to death forces the sentencer, be it jury or judge, to confront “ ‘the truly awesome responsibility of decreeing death for a fellow human [so that the sentencer] will act with due regard for the consequence of [the] decision ....’ ” Id., 329-30.
Put simply, the jury—if the jury is the capital sentencer—must realize that it is making “an individualized determination that death is the appropriate sentence for a particular defendant.” Blystone v. Pennsylvania, 494 U.S. 299, 309, 110 S. Ct. 1078, 108 L. Ed. 2d 255 (1990) (Brennan, J., dissenting). The sentencer must consciously make the “judgment that death is ‘the fitting and appropriate punishment’ ” for a particular defendant. State v. Bey, 112 N.J. 123, 162, 548 A.2d 887 (1988). Toward this end, the sentencer “must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background and character or the circumstances of the crime.” (Internal quotation marks omitted.) Blystone v. Pennsylvania, supra, 304-305. The requirement that the sentencer must consider any relevant mitigating evidence “that would warrant a sentence less than death is meaningless unless the sentencer has the discretion and authority to dispense mercy based on that evidence.” Callins v. Collins, supra, 114 S. Ct. 1134 (Blackmun, J., dissenting).
Under our death penalty statute, neither the judge nor the jury is an appropriate sentencer. The trial judge is obligated to impose the death sentence; General Statutes § 53a-46a (h); or not impose the death sentence; General Statutes § 53a-46a (g); on the basis of the jury’s findings concerning aggravating and mitigating factors. The jury decides whether aggravating or mitigating factors exist, but never makes the specific moral judgment of whether the defendant should die. Because neither the judge nor the jury confronts “the truly awesome responsibility of decreeing death for a fellow human” under our statutory scheme, the constitutional requirement that the capital sentencer act with due regard for the consequence of its decision is not met. See Simmons v. South Carolina, U.S., 114 S. Ct. 2187, 2198-99, 129 L. Ed. 2d 133 (1994) (Souter, J., concurring).
In this case, the trial judge did instruct the jury that the death penalty would be imposed if it found an aggravating factor and no mitigating factor. While such an instruction is very beneficial, it is not a substitute for requiring the decision makers to look upon the accused—if they can—and render a verdict that society requires that he or she be put to death. It is not enough to instruct the jury that based on its factual determinations the judge will or will not impose the death penalty, because this procedure could lead the jury to believe that there is another level of decision-making authority that will make the ultimate determination. If the ultimate punishment of death is to be inflicted, the decision makers must be fully aware that they have made the decision to inflict it, and this can be assured only if the decision makers are required to pronounce expressly a judgment of death. Indeed, in this case, the trial court underscored this deficiency in the statutory scheme by limiting counsel in their summations from explaining to the jurors the consequences of their decision on the aggravating and mitigating factors.
The majority holds that our statutory scheme meets eighth amendment requirements in reliance on Blystone v. Pennsylvania, supra, 494 U.S. 299. In Blystone, the court upheld a death penalty statute that, like our own, required the jury to sentence the defendant to death if it found an aggravating factor and no mitigating factor. Nevertheless, the jury in that case was specifically required to sentence the defendant to death. Id., 302; see also Commonwealth v. Peterkin, 511 Pa. 299, 306, 513 A.2d 373 (1986), cert. denied, 479 U.S. 1070, 107 S. Ct. 962, 93 L. Ed. 2d 1010 (1987) (jury determines whether defendant should be sentenced to death); Commonwealth v. Blystone, 519 Pa. 450, 475, 549 A.2d 81 (1988), aff'd, Blystone v. Pennsylvania, supra, 494 U.S. 299. Indeed, Pennsylvania requires the jury in a capital case to answer a special interrogatory that reads: “We the jury unanimously sentence the defendant to: _ death _ life imprisonment.” See Zettlemoyer v. Fulcomer, 923 F.2d 284, 308 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d. 232 (1991). Because the Pennsylvania statutory scheme reviewed in Blystone v. Pennsylvania, supra, 494 U.S. 299, did not end the jury’s function with a finding concerning aggravating and mitigating factors, but instead also required the jury to make the specific judgment of whether the defendant should live or die, Blystone does not control our decision.
III
Guilt Phase: Adverse Inference from Failure to Call Witnesses
In regard to the guilt phase of the defendant’s trial, I believe the trial court committed harmful error by instructing the jury that it could draw an adverse inference from the defendant’s failure to call as witnesses Howard Zonana, a psychiatrist, and Bruce Freedman, a psychologist, both of whom the defendant had consulted regarding his insanity defense (missing witness instruction). Although this court authorized missing witness instructions generally in Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), I believe that the giving of such an instruction under the circumstances of this case constituted reversible error.
The trial court instructed the jury, in part, concerning these missing witnesses as follows: “[I]f a party has failed to call to the stand a witness who is within his power to produce and who would naturally have been produced by him, you may infer that the testimony of the witness would have been unfavorable to the party failing to call him and consider that fact in arriving at your decision. There are two requirements: One, the witness must be demonstrated by the evidence to be available; two, the witness must be a witness whom the party would naturally produce.” At trial, ample evidence was introduced to support a jury finding that both requirements had been met with regard to the mental health professionals who did not testify, including evidence introduced by the state specifically for this purpose.
As the majority acknowledges, in State v. Toste, 178 Conn. 626, 628, 424 A.2d 293 (1979), we held that where a psychiatrist or psychologist “is retained by a criminal defendant or by his counsel for the sole purpose of aiding the accused and his counsel in the preparation of his defense, the attorney-client privilege bars the state from calling the expert as a witness. The fact that the psychiatric expert was appointed by the court rather than employed by the defense is irrelevant; the law affords no lesser protection for a defendant who is indigent than for one with means to retain his own psychiatrist to prepare a defense. This rule is consistent with a majority of jurisdictions who have resolved this issue.”
The majority suggests, without deciding the issue, that the state may destroy the privilege through the back door by obtaining a missing witness instruction. In other words, although communications between a defendant and the psychiatrist are privileged, the state may obtain, as it did in this case, an instruction permitting the jury to draw an adverse inference if the defendant does not call the psychiatrist as a witness.
I am troubled by the fact that the majority does not decide whether the giving of the missing witness instruction was error, although it suggests that the instruction may have been appropriate. I believe that this issue should be reached. It was appropriately raised by the defendant and fully briefed by the parties. Furthermore, this issue: (1) goes to the heart of the only defense asserted by the defendant in the guilt phase of his trial; and (2) is crucial to our jurisprudence, not only in regard to the privilege for communications between a defendant and his psychiatrist, but in regard to other privileges as well.
I believe that interpreting a privilege to allow such a missing witness instruction effectively annuls the privilege. “Where [a] privilege has been exercised, the established principle which permits an inference that the excluded testimony would be unfavorable to the party who suppressed it ought to yield, as being inconsistent with the full exercise of the privilege.” Bisno v. United States, 299 F.2d 711, 723 (9th Cir. 1961) (Hamley, J., concurring), cert. denied, 370 U.S. 952, 82 S. Ct. 1602, 8 L. Ed. 2d 818 (1962); see also State v. Holsinger, 124 Ariz. 18, 601 P.2d 1054 (1979); Daniels v. Beeson, 312 So. 2d 441 (Miss. 1975); George v. State, 98 Nev. 196, 644 P.2d 510 (1982).
The majority claims that this court “[has] in fact applied the Secondino [missing witness] rule in a number of contexts despite the possible existence of a privilege restricting the applicability of the rule.” This statement is misleading because the cases cited by the majority do not support the giving of a missing witness instruction over a claim of privilege. In Secondino v. New Haven Gas Co., supra, 147 Conn. 676, this court did hold that a missing witness instruction was appropriate where the plaintiff in a personal injury case failed to call her treating physician as a witness. The majority neglects to mention, however, that Connecticut did not recognize a privilege for physician-patient communications until 1990, thirty years after Secondino was decided. See General Statutes § 52-146o; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 12.8.1, p. 455, and (1993 Sup.) § 12.8.1, p. 168. Therefore, there was no privilege at issue in that case. The same is true of State v. McLaughlin, 126 Conn. 257, 10 A.2d 758 (1939), in which this court rejected the defendant’s claim that the trial court had improperly allowed the state to comment on the failure of the defendant’s wife to testify. The defendant never asserted the privilege for marital communications. To the contrary, the defendant’s claim was predicated on the trial court’s refusal to grant a one day continuance so that his wife would be available to testify. Id., 260-61. Finally, in D’Amico v. Manson, 193 Conn. 144, 153, 476 A.2d 543 (1984), a habeas corpus case, the plaintiff claimed before the trial court that his guilty pleas should be vacated because he had been given an “erroneous impression” concerning the maximum sentence he could be given if convicted. The trial court rejected this claim, relying, in part, on the plaintiff’s failure to call his trial attorney as a witness. Id. The attorney-client privilege is not even mentioned in the opinion. Moreover, because the competence of the plaintiffs attorney was “implicitly under attack”; id.; D’Amico resembles a case in which the client and his or her attorney are involved in a lawsuit and the privilege does not apply. See C. Tait & J. LaPlante, supra, (2d. Ed 1988) § 12.5.7, p. 448. Finally, any suggestion in D’Amico that the inference may be drawn is pure dicta because the D’Amico court held that the two prerequisites for a missing witness instruction had not been met. Indeed, the majority concedes that not one of these cases explicitly considers the relationship between a missing witness instruction and the attorney-client privilege.
Furthermore, allowing a missing witness instruction under the circumstances of this case flies in the face of reason. In order to avoid the adverse inference raised by the missing witness instruction, the defendant must call the psychiatrist as a witness. This places the defendant in a “Catch-22” position: he is damned if he calls the witness because he loses the privilege as a result of the psychiatrist’s testimony, and damned if he does not call the witness because he loses the privilege when the jury is instructed that it may draw an adverse inference.
The amicus brief filed by five forensic psychiatrists who practice and teach in Connecticut cogently points out the importance of this issue to the truth-seeking function of a psychiatric examination. This issue is also critical to the truth-seeking function of a trial: “[A] prosecutor should [not] be allowed to cast aspersions on a defendant’s insanity defense simply by pointing out that a particular psychiatrist... was not called. To do so would encourage defense attorneys to seek out psychiatric witnesses who have come to be associated with the defense in such proceedings and not risk having their clients examined by persons who have either not testified in previous cases or who have testified on different occasions for the prosecution and defense.... [T]his would detrimentally affect the truth-finding function of a trial by virtually eliminating from the process those expert witnesses most likely to be impartial.” People v. Pate, 108 Mich. App. 802, 808, 310 N.W.2d 883 (1981).
The majority’s suggestion that a missing witness instruction may be needed in order to afford the state a fair opportunity to respond to an insanity defense ignores the arsenal of weapons that already are available to the state for this purpose. See, e.g., Practice Book § 758 (requiring the defendant to notify the state that he or she intends to rely on the defense of mental disease or defect); Practice Book § 759 (requiring the defendant to notify the state that he or she intends to introduce expert testimony concerning a mental disease or defect, and to disclose any reports of mental examinations); Practice Book § 760 (requiring the defendant to submit to a psychiatric examination); Practice Book § 761 (authorizing the court to exclude expert testimony if the defendant fails to comply with §§ 759 and 760); see also State v. Manfredi, 213 Conn. 500, 517, 569 A.2d 506, cert. denied, 498 U.S. 818, 111 S. Ct. 62, 112 L. Ed. 2d 37 (1990) (trial court may order a defendant to submit to a psychiatric examination even before the defendant asserts an insanity defense). Most important, the state is not required to prove that the defendant was sane when he or she committed the crime. Instead, under General Statutes §§ 53a-12 and 53a-13, the defendant must prove lack of capacity by a preponderance of the evidence.
In any case, the majority concludes that the defendant was not harmed by the missing witness instruction because: (1) the jury learned that the defendant had been evaluated by Zonana and Freedman through the cross-examinations of Walter Borden and John Cegalis, the two psychiatrists who were called by the defendant; and (2) the testimony of Borden and Cegalis that the defendant suffered from a mental disease was weakened by the state’s vigorous cross-examination. Neither of these reasons makes sense.
First, any weakening of the testimony of Borden and Cegalis is irrelevant to the question of harm unless the testimony was rendered insufficient as a matter of law to support the defendant’s insanity defense. Barring insufficiency, which has not and could not be claimed in this case, it was the jury’s function as fact finder to evaluate this testimony and determine whether the defendant had proven his defense. During this process of evaluation, the adverse inference from the missing witness instruction necessarily weighed against the defendant, who had the burden of proof. Indeed, the fact that the defendant’s case had been weakened by cross-examination necessarily magnified the importance of the inference in this weighing process, making it more—not less—harmful.
Second, the fact that the jury already knew that the defendant had been evaluated by Zonana and Freedman does not render the instruction harmless. In Shel-nitz v. Greenberg, 200 Conn. 58, 75-76, 509 A.2d 1023 (1986), this court recognized, in the context of a missing witness instruction, that “[w]hat the jury may infer, given no help from the court is one thing. What it may infer when the court solemnizes the silence... into evidence ... is quite another.” (Internal quotation marks omitted.) The requirements for a missing witness instruction must be strictly complied with because of “the potentially critical effect of such an inference” on the jury. Fontaine v. Coyle, 174 Conn. 204, 212, 384 A.2d 616 (1978). Improperly instructing the jury that it may draw an adverse inference is harmful error. Bell v. Bihary, 168 Conn. 269, 273, 362 A.2d 963 (1975).
Furthermore, as the majority points out, all that the jury could glean from the cross-examinations of Borden and Cegalis are: (1) that Zonana had examined the defendant; (2) that Freedman disagreed with Borden’s diagnosis of sexual sadism because Freedman believed that the defendant suffered from “intermittent explosive disorder”; and (3) that Freedman found that the defendant did not suffer from psychotic thinking and knew what he was doing when he killed the victims. This evidence falls short of establishing the adverse inference that was permitted by the instruction, that is, “that the testimony of [both witnesses] would have been unfavorable to the [defendant]” on the ultimate issue of insanity. Most important, the majority completely ignores the fact that there was nothing in the evidence before the jury to suggest that Zonana’s testimony would have been unfavorable to the defendant.
Moreover, immediately before he gave this instruction, the trial judge emphasized its importance. After directing the jury’s attention to Zonana and Freedman by name, he stated: “Listen carefully to this. It’s not a very usual or an easy concept.” (Emphasis added.) Furthermore, the trial judge permitted the state to highlight the absence of these two witnesses and the inference to be drawn therefrom during closing arguments, an opportunity that the state exploited very well.
The instruction must be viewed as even more harmful in light of the facts that: (1) in the guilt phase of the trial, insanity was the defendant’s only defense, he having admitted to sexually assaulting and killing the victims; and (2) the state did not itself present any evidence concerning the defendant’s mental capacity to commit the crimes charged. The majority claims that it does “not dismiss lightly the defendant’s claim” with regard to the missing witness instruction. Nevertheless, the adverse inference may very well have been the determining factor in the jury’s rejection of the defendant’s insanity defense. Therefore, while the majority may not dismiss the defendant’s claim lightly, it has allowed the trial court effectively to deprive the defendant of an insanity defense by giving the missing witness instruction.
Giving the state the benefit of a missing witness instruction must also be viewed in the context of this court’s ruling, over my dissent, that a defendant bears the burden of proof on the issue of insanity. See State v. Joyner, supra, 225 Conn. 450. Placing the burden of proof on the defendant concerning the insanity evidence he presents, while permitting an adverse inference against the defendant for the evidence he does not present, will have a devastating effect on the administration of justice. It will greatly increase the chances that a person who commits a crime as a result of mental illness will be incarcerated, or even executed, even though the person lacked the requisite culpability. This is not very far removed from the execution of minors; see Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989); or the mentally retarded. See Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989). Although executing people with diminished mental capacity may pass federal constitutional muster, it “fails measurably to serve the goals of capital punishment” and therefore “is ‘nothing more than the purposeless and needless imposition of pain and suffering.’ ” Stanford v. Kentucky, supra, 405 (Brennan, J., dissenting).
IV
Summary
After fully exploring the subject of the death penalty, I can come to only one conclusion—that the death penalty fails to comport with contemporary standards of decency and morality. Not only does the death penalty degrade the individuals who are sentenced to die, but it also degrades and dehumanizes a society that permits it to be imposed, calling into question the morality of every one of us.
“There is little doubt that life is a fundamental right explicitly or implicitly guaranteed by the Constitution. San Antonio Independent Sch. Dist. v. Rodriguez, 411 U.S. 1, 33-34 [93 S. Ct. 1278, 36 L. Ed. 2d 16] (1973)... .” (Internal quotation marks omitted.) District Attorney for Suffolk District v. Watson, supra, 381 Mass. 663. No other right is more precious; indeed, it is the one right that brings everyone, rich and poor, down to a common denominator. Even if the state imposes the death penalty on only the most wicked among us, all of our lives are cheapened when a human being is executed.
I would hold that the death penalty statute is unconstitutional, and that the trial court committed harmful error in instructing the jury, during the guilt phase of the defendant’s trial, that it may draw an unfavorable inference from the defendant’s failure to call as witnesses a psychiatrist and a psychologist with whom he consulted concerning his insanity defense.
Accordingly, I respectfully dissent.
agree with the conclusion reached in part I A of the majority opinion that the state had jurisdiction to try the defendant for the murders of April B. and Leslie S. that occurred in Rhode Island. I do not reach any additional issues that are not discussed in this dissent.
This issue is discussed in part III of this dissent.
In Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), the United States Supreme Court “effectually invalidated our previous death penalty statutes as violative of the federal constitution.” State v. McGann, 199 Conn. 163, 174, 506 A.2d 109 (1986).
See State v. Breton, supra, 212 Conn. 258; State v. Daniels, 209 Conn. 225, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989); State v. Daniels, 207 Conn. 374, 542 A.2d 306 (1988).
Prior to the adoption of our first formal constitution in 1818, Connecticut had an informal constitution, consisting of “the Charter of 1662, certain locally derived common law principles and practices, some locally applicable English common law, various significant statutes, and most importantly, the Fundamental Orders of 1639.” C. Collier, “The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition,” 15 Conn. L. Rev. 87, 89-90 (1982).
Article first, § 8, of the Connecticut constitution provides in relevant part: “No person shall be... deprived of life, liberty or property without due process of law.”
Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
According to Swift, by 1796, only seven crimes—treason, murder, rape, bestiality, sodomy, aggravated mayhem, and arson that endangers life— were punishable by death in Connecticut. 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) p. 296. Furthermore, this list was diminished in subsequent years. By 1818, when the state constitution was adopted, bestiality and sodomy were no longer punishable by death. 2 Swift’s Digest, supra, pp. 264, 292-94, 304. In 1830, the legislature removed rape and aggravated mayhem from the list of capital offenses, and reduced arson to a noncapital offense except in cases where death resulted. General Statutes (1835 Rev.) tit. 21, c.1, §§ 1-13, 156, pp. 119-21, 158.
It is ironic that while the majority upholds the death penalty, it would surely strike down the alternative punishment available at the time our constitution was adopted that Swift believed was less severe than the “dreadful punishment of death”—hard labor—as cruel and unusual punishment. The hard labor that Justice Swift referred to was confinement in Old New-Gate Prison. 2 Swift’s System, supra, p. 296. New-Gate, which became the state prison of Connecticut in 1790, was “improvised... out of certain copper mines at Simsbury.” L. Friedman, Crime and Punishment in American History (1993) p. 78. New-Gate “was, by all accounts, a horrendous dungeon, a dark- cave of horrid gloom. The dripping water trickling like tears from its sides; the unearthly echoes, all conspired to strike an observer aghast with amazement and horror. The prisoners were heavily ironed and secured by fetters; they ate pickled pork for dinner, while working at forges; a piece for each [was] thrown on the floor and left to be washed and boiled in the water used for cooling the iron wrought at the forges.” (Internal quotation marks omitted.) Id. This punishment would not be acceptable or even constitutional, in modern times, in any state of our nation.
For example, the following account appeared in the Washington Post newspaper one decade ago: “A minute after 11 last night, a chorus of long, anguished wails erupted from the hundreds of prisoners inside the walls of the Virginia State Penitentiary. Outside the aging prison, a jeering mob set off fireworks in celebration. Across the street, a somber group of death penalty opponents began a silent candlelight vigil.
“They needed no announcement. All knew it was over: Linwood E. Briley, who had killed seven people, had been electrocuted.
“Deborah Wyatt, Briley’s 35-year-old Charlottesville attorney, left the prison glassy-eyed and trembling after witnessing the execution of the man she spent more than a year trying to save. She strode into the taunting crowd, past the Confederate flag, past the yells of ‘Bum, baby, burn’ and slipped into her car.
“For her, it was the bitter end to a prolonged legal battle capped by panicked, desperate appeals to Gov. Charles S. Robb in the 24 hours leading up to the execution. For others, the final hours passed less frantically, but in the last moments there were outbursts of emotions.
“There were the vengeful voices of the men screaming ‘Fry ’im. Fry Briley.’ There was pain reflected in the eyes of those like Marie Deans, who has dedicated her life to a crusade against capital punishment.” M. Moore & S. Sugawara, “Sorrowful, Satisfied Crowds Greet Briley Execution in Va.,” Wash. Post, October 14, 1984, p. A1.
The following is a description of death by electrocution: “Electrocution produces visibly destructive effects as the body’s internal organs are burned; the condemned prisoner often leaps forward against the restraining straps when the switch is thrown; the body changes colour; the flesh swells and may even catch fire; the prisoner may defecate, urinate or vomit blood. Eyewitnesses always report that there is a smell of burned flesh.” Amnesty International, supra, p. 114.
Ellen Goodman, a syndicated columnist, has described death by lethal injection as follows: “The descriptions of his death were graphic enough. James David Autry, murderer, was strapped in a gurney in a Texas death chamber. From behind a wall lethal chemicals were injected into tubes that led to his body. As the drugs took effect, Autry began twitching, his knees jerked up. He grunted a bit and sighed. His stomach began to expand. He winced. His eyes looked cloudy. Then he was dead.” E. Goodman, “Tuning Out TV Executions,” Boston Globe, March 20, 1984. An edited version of this article also appeared in the Hartford Courant. E. Goodman, “Executions: Are They to Become the Next Televised Spectacular?” Hartford Courant, March 20, 1984, p. B9.
In Francis v. Resweber, 329 U.S. 459, 67 S. Ct. 374, 91 L. Ed. 422 (1947), the United States Supreme Court held that Louisiana could constitutionally execute Willie Francis, even though the first attempt to electrocute him had been bungled. Justice Burton’s dissent includes several eyewitness descriptions of Francis during the bungled attempt. Id., 480 n.2 (Burton, J., dissenting).
In his concurring opinion in District Attorney For Suffolk District v. Watson, supra, 381 Mass. 677-78, Justice Liacos furnished a vivid example of the psychological trauma suffered by a condemned prisoner whose death sentence was commuted at the last minute: “For over two years, Henry Arsenault lived on death row feeling as if the Court’s sentence were slowly being carried out. Arsenault could not stop thinking about death. Despite several stays, he never believed he could escape execution. There was a day to day choking, tremulous fear that quickly became suffocating. If he slept at all, fear of death snapped him awake sweating. His throat was clenched so tight he often could not eat. His belly cramped, and he could not move his bowels. He urinated uncontrollably. He could not keep still. And all the while a guard watched him, so he would not commit suicide. The guard was there when he had his nightmares and there when he wet his pants. Arsenault retained neither privacy nor dignity. Apart from the guards he was alone much of the time as the day of his execution neared.
“And on the day of the execution, after three sleepless weeks and five days’ inability to eat, after a night’s pacing the cell, he heard the warden explain the policy of the Commonwealth—no visitors, no special last meal, and no medication. Arsenault asked the warden to let him walk to the execution on his own. The time came. He walked to the death chamber and turned toward the chair. Stopping him, the warden explained that the execution would not be for over an hour. Arsenault sat on the other side of the room as the witnesses filed in behind a one-way mirror. When the executioner tested the chair, the lights dimmed. Arsenault heard other prisoners scream. After the chaplain gave him last rites, Arsenault heard the door slam shut and the noise echoing, the clock ticking. He wet his pants. Less than half an hour before the execution, the Lieutenant Governor commuted his sentence. Arsenault’s legs would not hold him up. Guards carried him back to his cell. He was trembling uncontrollably. A doctor sedated him. And he was moved off death row.” (Internal quotation marks omitted.)
Justice Liacos summarized it as follows: “The raw terror and unabating stress that Henry Arsenault experienced was torture; torture in the guise of civilized business in an advanced and humane polity. This torture was not unique, but merely one degrading instance in a legacy of degradation. The ordeals of the condemned are inherent and inevitable in any system that informs the condemned person of his sentence and provides for a gap between sentence and execution. Whatever one believes about the cruelty of the death penalty itself, this violence done the prisoner’s mind must afflict the conscience of enlightened government and give the civilized heart no rest.” Id., 678-79.
“A century-old passage from Dostoevsky’s The Idiot gives a towering yet touching indication of the cruelty of capital punishment: ‘But the chief and worst pain may not be in the bodily suffering but in one’s knowing for certain that in an hour and then in ten minutes, and then in half a minute, and then now, at the very moment, the soul will leave the body and that one will cease to be a man and that that’s bound to happen; the worst part of it is that it’s certain. ... To kill for murder is a punishment incomparably worse than the crime itself. Murder by legal sentence is immeasurably more terrible than murder by brigands. Anyone murdered by brigands, whose throat is cut at night in a wood, or something of that sort, must surely hope to escape till the very last minute.... But in the other case (execution) all that last hope, which makes dying ten times as easy, is taken away for certain. There is the sentence, and the whole awful torture lies in the fact that there is certainly no escape, and there is no torture in the world more terrible... .’ ” G. Gottlieb, “Testing the Death Penalty,” 34 S. Cal. L. Rev. 268, 272 n.15 (1961).
To the contrary, it is less humane, because capital punishment “ ‘is ... the most premeditated of murders, to which no criminal’s deed, however calculated... can be compared .... For there to be an equivalency, the death penalty would have to punish a criminal who had warned his victim of the date on which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.’ ” A. Amsterdam, “Capital Punishment,” The Stanford Magazine, Fall/Winter 1977, pp. 42-47, reprinted in The Death Penalty in America (H. Bedau ed., 3d Ed. 1982) p. 348, quoting A. Camus.
Even public opinion polls demonstrate public reluctance and concern over the imposition of the death penalty. While a majority of the public may support the death penalty in the abstract, public support for the penalty drops to below 50 percent when alternative sentences are considered. Given the choice, more people would support life imprisonment without parole plus restitution to the victim’s family over the death penalty. In addition, many people have significant doubts about various aspects of the death penalty. Fifty-eight percent of those surveyed in an April, 1993 poll were concerned about the danger of executing innocent people. Forty-eight percent were concerned about racism in the application of the penalty, and another 42 percent had doubts about the ability of the death penalty to deter crime. Death Penalty Information Center, Facts About The Death Penalty (November 12, 1993) p. 4, citing a Greenberg/Lake and Torrance Group National Poll of April, 1993.
Indeed, polling data indicate that the public’s opinion on the imposition of the death penalty would be significantly influenced if they were informed of the alternative sentence that can be imposed. A poll referred to in a recent United States Supreme Court case indicated the following: “More than 75 percent of those surveyed indicated that if they were called upon to make a capital-sentencing decision as jurors, the amount of time the convicted murderer actually would have to spend in prison would be an ‘extremely important’ or a ‘very important’ factor in choosing between life and death.” Simmons v. South Carolina, U.S., 114 S. Ct. 2187, 2191, 129 L. Ed. 2d 133 (1994) (citing a statewide public opinion survey conducted by the University of South Carolina’s Institute for Public Affairs). If the penalty of death were declared unconstitutional, the alternative sentence in Connecticut that would be in place for the conviction of a capital felony under General Statutes § 53a-54b would be “a sentence of life imprisonment without the possibility of release. ” (Emphasis added.) This simply means life imprisonment without the possibility of parole or pardon.
Apparently, perhaps due to evolving standards of decency, by 1818 even England was reducing its number of capital offenses. As noted previously, Swift had estimated the number at 241 when he wrote his System of the Laws of the State of Connecticut in 1796.
See Amnesty International, supra, p. 228 (listing nations that have abolished the death penalty).
See W. Maltbie, “The Unconstitutional Period of Connecticut History,” 14 Conn. B.J. 22, 24 (1940) (Connecticut’s Fundamental Orders of 1638 were the first written constitution known to history).
These groups are American Friends Service Committee of the Religious Society of Friends (Quakers) in America, Amnesty International, Capitol Region Conference of Churches, Caucus of Connecticut Democrats, Connecticut Association for Human Services, Connecticut Chapter of the National Association of Social Workers, Connecticut Citizens for Humanizing Criminal Justice, Connecticut Civil Liberties Union Foundation, Connecticut Conference of the United Church of Christ, Connecticut Network to Abolish the Death Penalty, Episcopal Diocese of Connecticut, Hartford Monthly Meeting of the Religious Society of Friends, Inside-Out: Citizens United for Prison Reform, National Association for the Advancement of Colored People, Office of Urban Affairs of the Archdiocese of Hartford, and the Peace and Justice Committee of the Presbyterian Church of Southern New England.
General Statutes § 53a-35b provides that “[a] sentence of imprisonment for life shall mean a definite sentence of sixty years... ."
Pursuant to General Statutes § 51-207 (b), the chief justice of the Supreme Court may appoint one or more judges to sit on a case if less than five Supreme Court justices are available. This statute provides in relevant part: “If any judge is absent and [the right to a five member court] is claimed or if any judge is disqualified and the absence or disqualification is not waived or if the business before the court requires it, the chief justice... may summon the sixth or seventh member, or both, of the supreme court or one or more of the judges of the superior court to constitute a full court, who shall attend and act as judges of the supreme court for the time being.”
I note that the following death row defendants have had appeals pending in this court since the dates indicated: Robert Breton, Sr., November 20, 1989; Sedrick Cobb, October 11, 1991; Daniel Webb, November 8, 1991; and Terry Johnson, June 30, 1993.
General Statutes § 51-199 provides in relevant part: “(a) The supreme court shall have final and conclusive jurisdiction of all matters brought before it according to law, and may carry into execution all its judgments and decrees and institute rules of practice and procedure as to matters before it.
“(b) The following matters shall be taken directly to the supreme court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years; (4) review of a sentence of death pursuant to section 53a-46b
In addition, General Statutes § 53a-46b provides: “REVIEW OF DEATH SENTENCE. (a) Any sentence of death imposed in accordance with the provisions of section 53a-46a shall be reviewed by the supreme court pursuant to its rules. In addition to its authority to correct errors at trial, the supreme court shall either affirm the sentence of death or vacate said sentence and remand for imposition of a sentence in accordance with subdivision (1) of section 53a-35a.
“(b) The supreme court shall affirm the sentence of death unless it determines that: (1) The sentence was the product of passion, prejudice or any other arbitrary factor; (2) the evidence fails to support the finding of an aggravating factor specified in subsection (h) of section 53a-46a; or (3) the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.
“(c) The sentence review shall be in addition to direct appeal and, if an appeal is taken, the review and appeal shall be consolidated for consideration. The court shall then render its decision on the legal errors claimed and the validity of the sentence.”
I also find this possibility unnecessary. Barring objection by the defendant or good cause shown by the state, there is no reason that this appeal could not have been delayed until one of the other appeals, on which a greater number of the justices of this court would be qualified to sit, became ready for argument. Accordingly, this court should have given Michael Ross an opportunity to be heard, at an open hearing before the court and with all parties present, as to whether he had any objection to such a delay. Indeed, it seems to me that it would be cruel and unusual punishment to affirm his convictions, uphold the death penalty, and put him through the ordeal of another death penalty sentencing trial when a majority of the justices of this court have yet to vote on the constitutionality of the death penalty.
It is important to note that the threat of discriminatory application of the death penalty is not limited to conscious discrimination. “[W]here standardless ‘discretion’ plays a part, or where close decisions of fact must be made on disputed evidence, or where vague and ambiguous concepts... must be applied to concrete facts, we are one and all susceptible to the tendency to see things in a better or worse light depending on our general sympathies; we fight against this, but in the end only the self-deluding think they can wholly avoid it. If this idea is right, then there is the ever-present danger that anyone against whom, for any reason, conscious or unconscious prejudice exists will come off worse than a person against whom such feeling does not exist. And of course the unconscious prejudice, the prejudice one thinks one has wholly overcome, is the more dangerous.” (Emphasis in original.) C. Black, supra, pp. 100-101.
The financial aspects of a punishment have little meaning to me when life is at stake. Nevertheless, I suppose that there are some supporters of the death penalty who argue that their tax dollars should not be spent to keep convicted murderers alive. Of course, the real answer to this argument is that even a convicted murderer is a living human being. In terms of the financial aspects, the most comprehensive study in the country found that the death penalty costs $2 million more per execution than a nondeath penalty murder case with a sentence of life imprisonment. Death Penalty Information Center, supra, p. 4 (citing a May, 1993 study by Duke University); see also B. Nakell, “The Cost of the Death Penalty,” Criminal Law Bulletin, January/February 1978, pp. 68-80, reprinted in The Death Penalty in America (H. Bedau ed., 3d Ed. 1982) p. 241 (a criminal justice system that includes capital punishment “is considerably more expensive than a criminal justice system without capital punishment”); Amnesty International, supra, p. 170 (death penalty cases “cost far more than ordinary criminal proceedings in terms both of time and money”). It costs the state of Connecticut approximately $20,000 per year to keep a person incarcerated. See Johnson v. Meehan, 225 Conn. 528, 556 n.8, 626 A.2d 244 (1993) (Berdon, J., dissenting). The interest earned on the extra $2 million in costs identified by the Duke study would more than pay for a defendant’s costs of incarceration, and indeed would probably fund the annual cost of confining five people.
McCleskey v. Kemp, supra, 481 U.S. 279.
See part I B 3.
See footnote 23.
General Statutes § 54-95 (a) provides in relevant part: “Any defendant in a criminal prosecution, aggrieved by any decision of the superior court, upon the trial thereof, or by any error apparent upon the record of such prosecution, may be relieved by appeal, petition for a new trial or writ of error... .”
General Statutes § 52-582 provides that “[n]o petition for a new trial in any civil or criminal proceeding shall be brought but within three years next after the rendition of the judgment or decree complained of.”
General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought in order to obtain his release by or in behalf of one who has been convicted of crime may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or a judge of the supreme court or appellate court to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”
The end product of the jury’s deliberations in this case on one of the counts, in accordance with the statute, was the following special verdict form, the format of which was identical to that used for the other counts:
“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”
The trial judge instructed the jury as follows: “[I]f the jury finds that one or more of the aggravating factors exists and that no mitigating factor exists, the Court shall sentence the defendant to death.
“If the jury finds that none of the aggravating factors set forth exist or that one or more of the mitigating factors exist, the Court shall impose a sentence of life imprisonment.”
Anthony Amsterdam reports, on the basis of his own experience representing people charged with capital crimes: “The jury hears evidence and votes; and you can always tell when a jury has voted for death because they come back into court and they will not look the defendant or defense counsel in the eyes.” A. Amsterdam, “Capital Punishment,” The Stanford Magazine, Fall/Winter 1977, reprinted in The Death Penalty in America (H. Bedau ed., 3d Ed. 1982) p. 347.
In regard to final argument, the trial court repeatedly cautioned counsel for the defendant to avoid emotional arguments concerning the ultimate effect of the jury’s decision, and stated that “[i]f you get into that area, I will intrude.” “I don’t want emotional pleas to the jury about the irreversible step of their decision and threatening them as citizens of this state. That shouldn’t be done. If it’s a calm, cool approach to the function they have, the law I will give them. I don’t bar you from mentioning it, but to continually bring this to their minds in an attempt to be emotional about it... it isn’t going to happen.” “I am just warning you not to do it. It’s a sensitive area, and I think the legislature developed this statute for the very reason that the jury isn’t to get involved. It was to remove from the jury the question of the ultimate penalty. They were to decide facts, mitigating and aggravating; and so bo it in regard to how they decide it.”
The trial court elaborated on the missing witness instruction as follows: “So you have to determine those two threshold factors. Availability, naturally produced by whom. Now in that regard, you have to consider all the evidence in the case bearing on what is the probability, the naturalness of producing that witness.
“Whether the witness was available is a question of fact for you to determine before you draw an adverse inference from the absence of such a witness. Availability may be shown or determined not only from mere physical presence or accessibility for service, but also from the relationship, the usefulness or nature of the expected testimony, and this means only that the witness [is] in such a relationship with a party, state or the accused, that [it] is likely that his presence would be procured.
“A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues or both, could reasonably be expected to have a peculiar or superior information material to the case which if favorable the party would have produced.
“As with the question of availability, it is for you to determine from the evidence presented whether the absent witness’s testimony would be material or substantial to the case before you may draw an adverse inference.
“He has to be available. One, must be a witness whom the party would naturally produce; and your view of the entire evidence as it relates to that witness’s name is whether you have a basis to conclude that the evidence they would have had would be peculiar or superior, substantial or material to the case.
“So unless you have the threshold questions decided that there is availability and there is a naturalness to one or another party producing him, you should not draw the inference that what they would have said would have been favorable to the party that you would have expected to call them.
“The failure of a party to call a witness who is available to both parties and does not stand in such a relationship to the party or issues so that the party would naturally be expected to produce him if his testimony was favorable, affordfs] no basis for an unfavorable inference.
“Converse. The failure of a party to call—the failure of a party to call a witness who is available to both sides and who does not stand in your judgment in such a relationship to the party in question or to the issues so that the party would naturally be expected to produce him, if his testimony was favorable, afford[s] no basis for an unfavorable inference. That’s so even though availability is established and equally available to both sides.”
The court held: “We have serious reservations as to whether such an inference can be justified, because an attorney, whose competence is implicitly under attack in a habeas corpus proceeding, as in this case, is hardly a witness whom a disgruntled client would ‘naturally’ have produced. ... In any event, the principle is inapplicable for the reason that there is nothing in the record to indicate the availability of the ‘missing’ witness, an essential prerequisite.” (Citations omitted.)D’Amico v. Manson, supra, 193 Conn. 153.
The amicus brief was filed by the following psychiatrists: Ezra E.H. Griffith, M.D.; Harold I. Schwartz, M.D.; Peter M. Zeman, M.D.; Kenneth M. Selig, M.D., J.D.; and John H. Felber, M.D., J.D.
The brief states in part: “In order to be of assistance to the defense in evaluating the basis for a psychiatric defense, an accurate and detailed diagnosis of a defendant’s mental condition must be performed. Such a diagnosis requires the development of a relationship of trust between the consulting psychiatrist and the defendant, in which the defendant feels free to provide full and open disclosure of his history and thought processes. If the outcome of a psychiatric examination sought by the defense may be used against a defendant at trial—whether through direct testimony or through an adverse inference drawn from the defendant’s failure to call the expert—the truth seeking function of the examination is likely to be inhibited.”
This precise point was underscored by the Supreme Court of the United States in Boyde v. California, 494 U.S. 370, 384, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990). In comparing the relative impact that argument of counsel and the instructions of the trial court have on the jury, the court stated: “[Arguments of counsel generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence... and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law.” (Citation omitted.) Id.; Simmons v. South Carolina, supra, 114 S. Ct. 2198-99 (Souter, J., concurring).
The state argued the following: “Two other persons I want to mention. Dr. [Zonana], My recollection is the information before you is that he ordered either the EEG or the CAT scan on February 22, 1985. Dr. Borden told you that Dr. Howard [Zonana] is a psychiatrist in New Haven, he’s a forensic psychiatrist. I think he also said he’s board certified, but I’m not certain of that. Where is Dr. Howard [Zonana]?
“Dr. Freedman, Dr. Bruce Freedman—incidentally, I submit the State can establish that Dr. [Zonana] was available, through the inspector, the officer from New Haven. Where is Dr. Bruce Freedman, the psychologist who first saw the defendant Michael Ross? Why isn’t he here to testify to this jury to let you know what his findings are? My recollection is that Dr. Borden acknowledged on cross-examination that Dr. Freedman’s diagnosis was somewhat different from theirs. I’m not sure of that, but I think that was elicited.
“Be that as it may, if Dr. [Zonana] could help the defendant, he would be here to testify. I submit to you, if Dr. Freedman by reason of his examinations could help the defendant, he also would be here to testify.
“Their failure to be here may be taken into account by you in your deliberations; although frankly, I don’t really think it’s necessary because I do think that the testimony of Dr[s]. Borden and Cegalis is sufficient for you tó conclude that this defendant suffers from no legal insanity as it will be defined to you by Judge Ford.
“The excuse given for not calling Dr. Freedman. I don’t remember Dr. Borden saying that I asked Dr. Freedman to do one thing for me and/or two things and he only did one thing. I don’t remember him saying I called him back and said aren’t you going to do these other tests or anything of that nature. My recollection was that apparently Dr. Freedman came up with a diagnosis—I think he testified to it—I think I asked him intermittent explosive disorder. The diagnosis is different from Dr. Borden. And that’s why they went to Dr. Cegalis, because Dr. Freedman was not going to support the theory that Dr. Borden wanted to present to this jury.”
STATE OF CONNECTICUT v. MICHAEL B. ROSS
(15330)
Peters, C. J., and Callahan, Borden, Berdon, Norcott, Palmer and Dupont, Js.
Argued May 1
officially released June 11, 1996
C. Robert Satti, Sr., special assistant state’s attorney, with whom were Harry Weller, assistant state’s attorney, and, on the brief, Kevin T. Kane, state’s attorney, for the appellant (state).
T. R. Paulding, Jr., for the appellee (defendant).
G. Douglas Nash, public defender, with whom, on the brief was Gerard A. Smyth, chief public defender, for the office of the chief public defender as amicus curiae.
Although the defendant has elected to represent himself at trial, he is represented by counsel in this appeal.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
The dispositive issue in this appeal presenting seven questions of law reserved to this court by the trial court is whether, under all of the circumstances presented by this death penalty case, this court should answer the reserved questions in advance of further plenary proceedings at trial. Exercising the discretion vested in this court by General Statutes § 52-235 and Practice Book §§ 4147 and 4148; see State v. Sanabria, 192 Conn. 671, 683-85, 474 A.2d 760 (1984); we conclude that it would be imprudent for us to answer the reserved questions and, therefore, we decline to do so.
The defendant, Michael B. Ross, was convicted of six counts of capital felony in violation of General Statutes § 53a-54b and, after a separate penalty phase hearing pursuant to General Statutes § 53a-46a, was sentenced to death. We affirmed the defendant’s convictions in their entirety but set aside the judgments with respect to the imposition of the death penalty. We held that, contrary to the requirements of § 53a-46a (c), evidentiary rulings by the trial court at the penalty phase hearing had impaired the defendant’s ability to prove extenuating circumstances that might explain his behavior and mitigate his moral culpability and might therefore counsel against the ultimate sanction of death. State v. Ross, 230 Conn. 183, 286, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995). Accordingly, we remanded the cases to the trial court for a penalty phase rehearing pursuant to § 53a-46a.
In the course of preparing for the penalty phase rehearing, the state and the defendant entered into a stipulation requesting the trial court to reserve to this court seven questions of law relating to the conduct of such a hearing. The trial court approved the stipulation and agreed to the reservation of the following questions:
“(1) If the rehearing of the penalty phase is held before the court rather than a jury, will the decision of the majority of the judges of that court be sufficient to render judgment as to the findings of the existence or nonexistence of an aggravating factor and as to the existence or nonexistence of a mitigating factor?
“(2) If the answer to question #1 is in the affirmative, will the decision of the majority of that court be sufficient to impose sentence?
“(3) Does the pro se defendant have the right to waive the presenting of evidence that might tend to be mitigating in nature at the rehearing of the penalty phase?
“(4) If the answer to question #3 is in the affirmative and the defendant waives his right to present possibly mitigating evidence and further objects to the presentment of any possibly mitigating evidence in his behalf, will the trial court be bound by the voluntary actions of the defendant?
“(5) If the answer to question #4 is in the negative, is the court permitted or required to appoint counsel to present evidence that might tend to be mitigating in nature?
“(6) Here, where at the first penalty phase hearing the defendant presented evidence that he then claimed to be mitigating in nature that was insufficient to convince that trier-of-fact that a mitigating factor existed, is the new trier-of-fact required to consider that preexisting evidence in arriving at its judgment, even though the defendant objects to a consideration of such evidence?
“(7) If the sentence of death is imposed, do the provisions of [Public Acts 1995, No. 95-16, § 3 (b)] apply to the review of such sentence by the Supreme Court, thus eliminating any requirement of a proportionality review of such sentence?”
The factual stipulation accompanying the reserved questions recites the following history of events subsequent to the remand ordered by this court. “The defendant has expressed a desire to have the [penalty phase rehearing] before a court (as opposed to a jury); to stipulate to the existence of aggravating facts; and to object to the presentment of any mitigating evidence in his behalf. In pursuit of this alleged desire, he has moved to represent himself[,] has objected to the appointment of counsel to represent him[,] and has objected to the appointment of standby counsel. The trial court ordered a mental examination to determine the competency of the defendant. After a full hearing on the issue of the defendant’s competency and on the voluntariness of his waiver of his right to counsel, the court[:] (1) permitted [the defendant’s] counsel to withdraw[;] (2) permitted the defendant to represent himself[;] and (3) over the defendant’s objection, appointed experienced standby counsel.” The stipulation further states that “[t]he defendant further agrees... that the court at the [penalty phase rehearing] will find the existence of an aggravating factor, and that no mitigating factor exists, and thus, under the law, will impose a sentence of death for each of the [capital] felonies that he has been convicted of committing in these cases.”
The stipulation is not, however, conclusive on a number of considerations that have significant bearing on a proper response to the reserved questions. With respect to the first and second reserved questions, the defendant has not yet formally requested, on the record, that the court, rather than a jury, be the decision maker at his penalty phase rehearing, and the state has not yet formally indicated, on the record, whether it would acquiesce in such a request. See General Statutes § 53a-46a (b). With respect to the third, fourth, fifth and sixth reserved questions, the defendant has not yet waived, after a formal canvass on the record, his right to contest the state’s evidence concerning the existence of aggravating factors and his right to present evidence concerning the existence of mitigating factors. With respect to the seventh reserved question, the stipulation does not address how legislative repeal; Public Acts 1995, No. 95-16, § 3 (b); of Supreme Court proportionality review pursuant to General Statutes § 53a-46b (b) (3) will enter into the final determination of the appropriate trial court procedures for the penalty phase rehearing in this case.
Although we are mindful of the public interest in expediting the finality of judicial proceedings, we are persuaded that it would be imprudent for us to answer the reserved questions in this case at this juncture. Because the applicability of the reserved questions of law to the rights of the parties depends upon contingencies that might never arise, the questions presented by the reservation are not, in our opinion, “reasonably certain to enter into the decision of the case.” Practice Book § 4147. In effect, the reservation asks us for advisory opinions, which we decline to give. See Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 75, 523 A.2d 486 (1987); State v. Zach, 198 Conn. 168, 176-78 and 177 n.7, 502 A.2d 896 (1985); Congress & Daggett, Inc. v. Seamless Rubber Co., 145 Conn. 318, 323, 142 A.2d 137 (1958); United Technologies Corp. v. Groppo, 35 Conn. App. 72, 75-80, 644 A.2d 1309 (1994); see also C. Tait, Connecticut Appellate Practice and Procedure (2d Ed. 1993) § 8.11.
We decline to answer the reserved questions.
No costs will be taxed in this court to any party.
After the filing of the reservation in this court, we ordered the parties to prepare briefs addressing the propriety of a decision by this court responding to the questions of law contained in the reservation. In view of our understanding that the state and the defendant both would urge us to respond affirmatively, we invited other interested persons to file amicus briefs. We are grateful to the office of the chief public defender for its assistance as amicus curiae.
General Statutes § 52-235 provides in relevant part: “Reservation of questions of law. (a) The superior court, or any judge of the court, with the consent of all parties of record, may reserve questions of law for the advice of the supreme court or appellate court in all cases in which an appeal could lawfully have been taken to said court had judgment been rendered therein. ...”
Practice Book §4147 provides in relevant part: “[Reservations] — In General
“A reservation shall be taken to the supreme court or to the appellate court from those cases in which an appeal could have been taken directly to the supreme court, or to the appellate court, respectively, had judgment been rendered....
“The court will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action... .”
Practice Book § 4148 provides: “[Reservations] — Stipulation
“Before any question shall be reserved by any court, counsel shall file in that, court a stipulation which shall clearly and fully state the question or questions upon which advice is desired; that their present determination by the supreme or the appellate court would be in the interest of simplicity, directness and economy in judicial action, the grounds for such allegation being particularly stated; that the answers to the questions will determine, or are reasonably certain to enter into the final determination of the case; and that the parties request that the questions be reserved for the advice of the supreme or the appellate court.”
General Statutes § 53a-54b provides in relevant part: “Capital felony. A person is guilty of a capital felony who is convicted of any of the following ... (5) murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety ... (7) murder committed in the course of the commission of sexual assault in the first degree... .”
General Statutes § 53a-46a provides in relevant part: “Hearing on imposition of death penalty. Aggravating and mitigating factors, (a) A person shall be subjected to the penalty of death for a capital felony only if a hearing is held in accordance with the provisions of this section.
“(b) For the purpose of determining the sentence to be imposed when a defendant is convicted of ... a capital felony, the judge... who presided at the trial... shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, including any mitigating factor set forth in subsection (g), and any aggravating factor set forth in subsection (h)... .”
“(c) In such hearing the court shall disclose to the defendant or his counsel all material contained in any presentence report which may have been prepared. No presentence information withheld from the defendant shall be considered in determining the existence of any mitigating or aggravating factor. Any information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but the admissibility of information relevant to any of the aggravating factors set forth in subsection (h) shall be governed by the rules governing the admission of evidence in such trials. The state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any mitigating or aggravating factor... .”
See footnote 6.
General Statutes § 53a-46a provides in relevant part: “Hearing on imposition of death penalty. Aggravating and mitigating factors....
“(b) For the purpose of determining the sentence to be imposed when a defendant is convicted of ... a capital felony, the judge... who presided at the trial... shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, including any mitigating factor set forth in subsection (g), and any aggravating factor set forth in subsection (h).... Such hearing shall be conducted ... (2) before a jury impaneled for the purpose of such hearing... (C) if the jury which determined the defendant’s guilt has been discharged by the court for good cause or, (3) before the court, on motion of the defendant and with the approval of the court and the consent of the state... .”
As the state aptly observes in its brief, “regardless of the position [the defendant] takes at this moment in time as to any of the questions reserved, his position could change when the matter is [brought] back before the trial court. It is extremely unlikely that any trial judge would prevent a defendant facing the possibility of a death penalty from deciding, at least before the hearing commences, that he will offer mitigating evidence even though contrary to his earlier expressed intent. Nor would the state object to the change in tactic if made before a hearing commences.”
General Statutes § 53a-46b provides in relevant part: “Review of death sentence, (a) Any sentence of death imposed in accordance with the provisions of section 53a-46a shall be reviewed by the supreme court pursuant to its rules....
“(b) The supreme court shall affirm the sentence of death unless it determines that: (1) The sentence was the product of passion, prejudice or any other arbitrary factor; (2) the evidence fails to support the finding of an aggravating factor specified in subsection (h) of section 53a-46a; or (3) the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant... .”
STATE OF CONNECTICUT v. MICHAEL B. ROSS
(SC 16124)
(SC 16135)
Norcott, Sullivan, Peters, Callahan and Schaller, Js.
Argued October 14
officially released December 14, 1999
Kenneth Rosenthal, special public defender, and Mark Rademacher, assistant public defender, with whom, on the brief, were Karen Goodrow and Barry Butler, assistant public defenders, for the appellant in Docket No. 16124, appellee in Docket No. 16135 (defendant).
Michael E. O’Hare, assistant state’s attorney, and Timothy J. Sugrue, senior assistant state’s attorney, with whom were Kevin T. Kane, state’s attorney, and, on the brief, Susan C. Marks, supervisory assistant state’s attorney, for the appellee in Docket No. 16124, appellant in Docket No. 16135 (state).
[OPINION BY PETERS, J. type=majority]
Opinion
PETERS, J.
In State v. Ross, 230 Conn. 183, 286, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995), this court held that, as a result of an improper evidentiary ruling, the defendant, Michael B. Ross, was entitled to a new penalty hearing to determine whether the state was entitled to exact the ultimate penalty of death. The present appeal raises two issues. The first issue is a question of statutory construction relating to General Statutes § 53a-46a (c). That issue is whether, despite the unambiguous language of the statute, the state is bound by the ordinary rules of evidence in its rebuttal of the defendant’s claim of mitigation. The second issue is a question of constitutional law that turns on the resolution of a question of fact: did the state, in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), suppress exculpatory information at the time of the defendant’s original trial so that the defendant is now entitled either to a new guilt phase trial or to the preclusion of a second penalty phase trial. We decide both issues in favor of the state, and accordingly direct that proceedings for a second penalty phase hearing go forward forthwith.
The facts underlying this appeal were fully recited in our earlier opinion. State v. Ross, supra, 230 Conn. 191-92. At his trial, the defendant did not deny that, in violation of General Statutes § 53a-54b (5) and (7), he had sexually assaulted, kidnapped and murdered four teenaged girls in eastern Connecticut in 1983 and 1984. Id., 192. His defense was insanity, a defense that the jury rejected by returning a verdict of guilty of six counts of capital felony. Id. We affirmed the defendant’s convictions in their entirety. Id., 228-29, 286. Nonetheless, we held that the defendant was entitled to a new penalty phase hearing because the trial court improperly had deprived him of the opportunity to present evidence of mitigating circumstances arising out of his alleged mental illness. Id., 286.
The evidence that had been at issue in the penalty phase hearing was twofold. “[T]he trial court [Ford, J.] precluded the defendant from submitting to the jury: (a) a letter written by Robert Miller, a court appointed psychiatric expert who had evaluated the defendant for the state, which reflected the fact that [Miller] had changed his position about the mitigating role of the defendant’s psychopathology; and (b) a report by Miller, which reflected his corroboration of the diagnosis of the defendant contained in the reports of defense psychiatric experts.” Id., 267.
We concluded in State v. Ross, supra, 230 Conn. 268, that § 53a-46a (c) permitted the defendant to introduce this evidence even though, under other circumstances, it might have been excludable as hearsay. “The statute plainly provides that, in a penalty hearing conducted pursuant to § 53a-46a, ‘[a]ny information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters... .’ (Emphasis added.) On its face, this language authorizes a judge presiding over a penalty hearing to exclude mitigating evidence only on the basis of a lack of relevancy.” (Emphasis in original.) Id. We concluded that these documents had been excluded improperly because they were relevant to the defendant’s claim of the existence of mitigating factors that could counsel against the imposition of the death penalty. Id., 271^ We therefore remanded the case for a new penalty phase hearing. Id., 273.
For reasons that the record does not fully disclose, the parties returned only recently to the trial court to prepare for the new penalty phase hearing that we had ordered in 1994. In the course of that preparation, the defendant filed the motions that are currently at issue.
The defendant filed a motion in limine to restrict the state to the normal rules of evidence with respect to any evidence that the state might offer to rebut mitigation. The trial court, Miaño, J., granted the defendant’s motion. It concluded that the defendant’s constitutional right to due process required a construction of § 53a-46a (c) that would afford the defendant the broadest possible latitude to establish mitigation. On this ground, the court ruled that any evidence presented by the state to rebut mitigation at the penalty phase hearing would have to be admissible under the normal rules of evidence rather than under the relevancy standard alone as contained in § 53a-46a (c) and explained in our earlier opinion. The state appeals from that ruling. We agree with the state that the statute requires a result contrary to that reached by the trial court.
The defendant also filed a renewed motion to compel the state to disclose any exculpatory information in its possession. As a result, the defendant obtained copies of contemporaneous notes made by former New London state’s attorney C. Robert Satti, Sr., concerning his conversations with Miller before the original trial. Alleging that these copies should have been disclosed earlier, the defendant then moved, in the alternative, either for a bar to further prosecution or for a new trial. Finding that there had been adequate oral disclosure before the original trial, the trial court, Miaño, J., denied the defendant’s request to bar the penalty phase hearing and declined to order a new guilt phase trial. Instead, the court directed the parties to proceed to the penalty phase hearing. The defendant appeals from those rulings. We are not persuaded by the defendant’s challenge to the facts found by the trial court.
I
THE STATE’S APPEAL
The state’s appeal requires us to reexamine the text and the context of § 53a-46a (c). As the defendant concedes, read literally, the statute allows “[a]ny information relevant to any mitigating factor [to] be presented by either the state or the defendant, regardless of its admissibility under the rales governing admission of evidence in trials of criminal matters... .’’(Emphasis added.) General Statutes § 53a-46a (c). The state urges us to accept this literal reading and to allow it, like the defendant, to introduce hearsay testimony that otherwise might be inadmissible. The defendant argues, as the trial court held, that we must excise the statutory reference to “the state” in order to comply with federal constitutional mandates arising out of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), and its progeny.
Because the issue raised by the state concerns the construction of a statute, we have plenary authority to review the trial court’s limiting construction. State v. King, 249 Conn. 645, 681, 735 A.2d 267 (1999); State v. Dash, 242 Conn. 143, 146-47, 698 A.2d 297 (1997). In this case, because we are persuaded that the text of the statute embodies its purpose and its agenda, we conclude that the defendant’s argument is unavailing.
Perhaps in recognition of the difficulties inherent in the type of judicial surgery implicated by his substantive argument, the defendant urges us not to reach the certified issue in advance of the conclusion of the penalty phase hearing that has been ordered. He notes that it is uncertain, at this juncture, what mitigating evidence will be presented by the defendant and what rebuttal evidence the state may seek to introduce.
The considerations to which the defendant refers undergird our reluctance, as a general matter, to entertain interlocutory appeals. See Cantoni v. Xerox Corp., 251 Conn. 153, 159, 740 A.2d 796 (1999). Pursuant to General Statutes § 52-265a, however, the chief justice may certify that a substantial public interest in the expeditious resolution of some issue or issues warrants the immediate review of rulings that might otherwise have to await a final judgment at trial. That certification having been made in this case, it would serve no purpose now to remand for further penalty phase proceedings under the cloud of uncertainty that the certification was intended to dispel.
Indeed, as the state noted at oral argument in this case, in the absence of a certified appeal, the state never would have the opportunity to obtain appellate review of a trial court ruling restricting its evidentiary options at the penalty phase hearing of a capital case. If the trier were to conclude that the defendant had proved mitigation, the principles of double jeopardy would bar the state from appealing from a penalty phase judgment. State v. Daniels, 207 Conn. 374, 397, 542 A.2d 306, after remand for articulation, 209 Conn. 225, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989). If the trier were to find to the contrary, the state would be hard put to demonstrate aggrievement. The construction of the provisions of a death penalty statute should not be left in the unreviewable discretion of the trial court.
Turning then to the merits of the defendant’s argument, we conclude that § 53a-46a (c) should be applied as written. The defendant cannot succeed in his argument that the constitutional demand for individualized sentencing requires a distinction between the evidentiary rules concerning the admissibility of aggravating evidence and the admissibility of mitigating evidence. The statute makes precisely that distinction, and requires the state to follow the ordinary rules of evidence when proving aggravating factors. The issue before us relates only to the state’s ability to rebut potentially mitigating evidence.
The defendant fears that a penalty phase fact finder improperly may use derogatory evidence offered by the state in rebuttal of mitigation as a backup to assist the state in carrying its burden of proof of aggravation in accordance with the ordinary rules of evidence. An appropriate charge by the trial court can minimize that risk without depriving the state of an evenhanded opportunity to cast doubt on questionable evidence of mitigation. In State v. Ross, supra, 230 Conn. 270-71, we expressly recognized that, although relevance was the proper point of departure for determining statutory admissibility, a trial court would continue to have the authority to preserve the integrity of the proceeding before it. That authority necessarily encompasses the duty to exclude evidence that, although relevant, is, for example, too prejudicial to be admissible or that is cumulative of evidence previously introduced. Having the authority to make such an exclusionary ruling, the trial court indubitably also has the authority to instruct the fact finder about the limited uses to which admissible evidence properly may be put. Contrary to the defendant’s assertion, therefore, a literal reading of the statute does not divest a trial court of its traditional authority and obligation to exclude unreliable and unduly prejudicial evidence. As we read the statute, the trial court continues to be charged with the responsibility of minimizing the risk of fact finder confusion between evidence with respect to mitigation and evidence with respect to aggravation.
The defendant is equally mpersuasive when he argues that a literal reading of the statute unconstitutionally mdermines the reliability of the capital sentencing process in its entirety. Concededly, such reliability requires that the sentencer have access to all relevant mitigating evidence. Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978). We fail, however, to see how that requirement is diluted by a statute allowing the state the same latitude to challenge mitigation evidence as the defendant is afforded to present such evidence. To the extent that the Supreme Court of the United States has spoken on this issue, its holdings support the constitutionality of the statute as drafted. In Romano v. Oklahoma, 512 U.S. 1, 10, 114 S. Ct. 2004, 129 L. Ed. 2d 1 (1994), the court stated that the fact that “evidence may have been irrelevant as a matter of state law, however, does not render its admission [on the issue of mitigation] federal constitutional error.” Subsequently, in Buchanan v. Angelone, 522 U.S. 269, 276, 118 S. Ct. 757, 139 L. Ed. 2d 702 (1998), the court observed that “[i]n the selection phase, our cases have established that the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence.... However, the state may shape and structure the jury’s consideration of mitigation so long as it does not preclude the jury from giving effect to any relevant mitigating evidence.... Our consistent concern has been that restrictions on the jury’s sentencing determination not preclude the jury from being able to give effect to mitigating evidence.” (Citations omitted.) See also Johnson v. Texas, 509 U.S. 350, 113 S. Ct. 2658, 125 L. Ed. 2d 290 (1993); Boyde v. California, 494 U.S. 370, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990). In the absence of a presentation of authority to the contrary by the defendant, he cannot succeed in his argument that constitutional considerations require a departure from the literal language of § 53a-46a (c).
In sum, we are not persuaded that the legislature departed from the governing federal constitutional norms in enacting § 53a-46a (c). The defendant has pointed to no federal precedent requiring the state to shoulder a higher evidentiary standard to rebut the existence of a mitigating factor than the defendant must satisfy to carry his burden of proof. Displacement of the ordinary rules of evidence does not preclude a trial court, guided by principles of sound judicial administration, from making the otherwise appropriate rulings that are necessary to assure a fair penalty phase hearing.
II
THE DEFENDANT’S APPEAL
The defendant’s appeal invokes the disclosure requirements of Brady v. Maryland, supra, 373 U.S. 87, and its progeny. The defendant contends that the state failed to turn over to him certain exculpatory materials, and that this failure entitled him either to a bar on further prosecution, or, in the alternative, to a new trial. We disagree.
Certain additional facts are necessaiy to the resolution of this issue. Prior to the commencement of the defendant’s trial in 1987, Miller, the psychiatric expert employed by the state, examined the defendant. Subsequent to the examination, Miller issued a report in which he diagnosed the defendant as a sexual sadist, but concluded that the defendant was not legally insane. Eight months after his examination of the defendant, however, in a letter to Satti, the prosecutor handling the case, Miller expressed his doubts about “how I could testify against psychopathology playing a sufficient role in [the] defendant’s behavior to mitigate the type of penalty.” Both Miller’s report and his letter to Satti were disclosed to the defendant at the time of his trial.
In two telephone conversations following Satti’s receipt of Miller’s letter, Satti and Miller discussed the defendant’s case and Miller’s diagnosis of the defendant’s mental condition. The only record of those conversations was a set of handwritten notes made contemporaneously by Satti. After Satti and Miller had spoken for the second time, Satti held a series of meetings with the defendant’s attorneys, at which Satti allegedly made an oral disclosure of the contents of his notes of the two conversations with Miller.
On April 15,1999, prior to the start of the defendant’s second penalty hearing, the state provided the defendant with written copies of Satti’s notes. The defendant thereafter made a motion to bar further prosecution, pursuant to our holding in State v. Colton, 234 Conn. 683, 692, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996), or, in the alternative, for a new trial. The defendant claimed that Satti had not disclosed the contents of his notes at the time of the first trial, that the notes were exculpatory information within the purview of Brady, and that Satti’s earlier failure to turn over the notes constituted misconduct sufficient to bar further prosecution pursuant to the Colton doctrine.
The trial court concluded that although the information contained in Satti’s notes was exculpatory within the meaning of Brady, that information “was in fact disclosed to the defense... .” On the basis of this factual finding, the trial court held that the defendant “failed in [his] burden to prove the nondisclosure of exculpatory information relevant to the Brady claim of a violation of the right to a fair trial. [The defendant] failed [therefore] to prove prosecutorial misconduct relevant to the claim of a violation of the double jeopardy protections.” Accordingly, the trial court denied the defendant’s motion to bar further prosecution, and ordered that the case proceed to a penalty hearing.
On appeal, the defendant claims that the trial court improperly found that the state disclosed the contents of Satti’s notes prior to trial. The defendant argues that he is entitled, therefore, to an opportunity to pursue further his motion to bar further prosecution, or, in the alternative, to a new trial.
A
The parameters of the state’s duty to disclose exculpatory information to a defendant are well established. “In Brady v. Maryland, supra, 373 U.S. 87, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. To establish a Brady violation, the defendant must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the defendant, and (3) it was material. State v. White, 229 Conn. 125, 134-35, 640 A.2d 572 (1994); Demers v. State, 209 Conn. 143, 150, 547 A.2d 28 (1988).” (Internal quotation marks omitted.) State v. Esposito, 235 Conn. 802, 813, 670 A.2d 301 (1996).
Our resolution of the defendant’s Brady claim comprises two separate inquiries: (1) whether, as a factual matter, the information in question actually was disclosed to the defendant, and (2) whether, if the information in question was not disclosed, as a legal matter, it was both exculpatory and material within the meaning of Brady and its progeny. State v. Santiago, 245 Conn. 301, 311, 715 A.2d 1 (1998). We conclude that the trial court’s finding that the information at issue in this case was disclosed to the defendant was not clearly erroneous, and, further, that the information itself was not material as that term has been defined in the Brady context.
B
The trial court concluded that the state had disclosed the contents of Satti’s notes to the defendant prior to his 1987 trial. It is undisputed that whether such disclosure actually took place is a question of fact. As such, our review of that question is subject to well established guidelines. “[Wjhere the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court. Beyond that, we will not go. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984).” (Internal quotation marks omitted.) State v. Eady, 249 Conn. 431, 436, 733 A.2d 112, cert. denied, U.S., 120 S. Ct. 551, 145 L. Ed. 2d 428 (1999). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.... State v. Hodge, 248 Conn. 207, 218-24, 726 A.2d 531 (1999).” (Internal quotation marks omitted.) State v. King, supra, 249 Conn. 660.
Our review of the entire record in this case compels the conclusion that the trial court’s finding of an oral disclosure by Satti of the contents of the notes was not clearly erroneous. The meeting at which Satti allegedly read the contents of his notes to the defendant’s attorneys took place on March 18, 1987. Four persons were present at that meeting: Satti, the defendant’s two attorneys, and Inspector Thomas Viens. All four testified at the hearing held by Judge Miaño. The trial court found that of the four persons present at the March 18 meeting, only Satti and Viens took notes of what transpired. It was the regular practice of both Satti and Viens to make “notes of conversations and meetings with others contemporaneously in order to memorialize that which was said or that which transpired.” The notes taken by Satti and Viens at the March 18 meeting contain clear references to an oral disclosure to the defendant’s attorneys of the contents of Satti’s earlier notes of his conversations with Miller.
The trial court also considered the testimony of the defendant’s attorneys. In contrast to Satti and Viens, the defendant’s attorneys “testified that they [did] not recall the contents of the Satti notes being imparted to them at the first trial.” The defendant’s attorneys testified further, and the defendant claimed at oral argument before this court, “that the information in the Satti notes was of such significance that they would have recalled it, had it been disclosed in 1987.”
Any resolution of the discrepancy between the testimony of Satti and Viens that an oral disclosure was made, supported by their notes of the March 18 meeting, and the lack of recollection on the part of the defendant’s attorneys of such a disclosure, depends ineluctably on an assessment of their relative credibility. “[W]e give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 346, 736 A.2d 824 (1999). “The determination of a witness’ credibility is the special function of the trial court.” (Internal quotation marks omitted.) State v. Daniels, 248 Conn. 64, 77, 726 A.2d 520 (1999).
After hearing the testimony of all four persons present at the March 18 meeting, and after carefully reviewing the notes taken at that meeting by Satti and Viens, the trial court found that “the Satti-Viens notes of meetings held are authentic and accurate. Accordingly, the notes corroborate, to a significant degree, the testimony of [Satti and Viens]. This corroboration compels this court to give greater weight to the testimony of Satti and Viens relevant to disclosure.” This determination of credibility is precisely the type of finding that rests within the unique province of the trial court, and is one that we do not disturb in the absence of a finding of clear error. As no such impropriety is evident from the record, we decline to disturb the trial court’s determination that an oral disclosure was made.
c
Even were we to conclude that the state did not disclose the contents of Satti’s notes, that suppression would not constitute a Brady violation. The second and third prongs of the Brady standard require that the information sought be not only exculpatory, but also material to the question of guilt or innocence. State v. Esposito, supra, 235 Conn. 813. We conclude that the information at issue in this case was not material, as that term has been defined in the Brady context.
In United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), the United States Supreme Court defined materiality, for Brady purposes, as “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” In a recent exposition of Brady doctrine, the Supreme Court discussed several “aspects of materiality under Bagley [that] bear emphasis.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). Most significantly for our purposes, the Kyles opinion noted that “the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense.... We have never held that the Constitution demands an open file policy... .” (Citations omitted.) Id., 436-37. The key question that we must ask whenever a Brady violation is alleged “is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” (Emphasis added.) Id., 434; see Strickler v. Greene, 527 U.S. 263, 289-90, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999) (reaffirming the Kyles materiality definition).
We have applied the Kyles materiality standard in several recent cases. In State v. Esposito, supra, 235 Conn. 818-19, the defendant claimed that the state’s failure to disclose a tape recording in which a key witness made certain statements that were inconsistent with that witness’ later testimony constituted a Brady violation, inasmuch as the tape recording may have proved useful for impeachment purposes. We held, however, that “the undisclosed tape recording [was not] material within the Brady meaning of that term. ” (Internal quotation marks omitted.) Id., 818. Our basis for that holding was that “the undisclosed tape recording would not have provided the defendant with any significant impeachment material that was not already available and used by him... [and, therefore, the] nondisclosure neither deprived the defendant of a fair trial nor undermines our confidence in the outcome of this trial.” (Emphasis added.) Id., 819. We have reached similar conclusions regarding the nonmateriality of undisclosed evidence in other cases as well. See State v. Santiago, supra, 245 Conn. 312-13 (witness’ statement regarding description of shooter’s clothing not material); State v. Tomasko, 242 Conn. 505, 522, 700 A.2d 28 (1997) (witness’ alleged accusation of third party not material because nondisclosure did not “undermine confidence in the jury’s verdict”); State v. Rasmussen, 225 Conn. 55, 92, 621 A.2d 728 (1993) (undisclosed information about telephone calls allegedly made by defendant not material).
As was the case in Esposito, even if the information at issue here was not disclosed to the defendant, it was not material within the meaning of Brady because it was available to the defendant through other, independent sources. The defendant, through his counsel, was free to contact Miller and question him regarding his opinion of the defendant’s mental condition. There is no suggestion in the record, and the defendant does not allege, that the state attempted to prevent such contact. Therefore, any failure to disclose fully the contents of the conversations between Satti and Miller does not meet the materiality standard of Bagley and Kyles.
The judgment is reversed in part and the case is remanded with direction to deny the defendant’s motion in limine and for further proceedings according to law.
In this opinion SULLIVAN, CALLAHAN and SCHALLER, Js., concurred.
General Statutes § 53a-46a (c) provides: “In such hearing the court shall disclose to the defendant or his counsel all material contained in any presentence report which may have been prepared. No presentence information withheld from the defendant shall be considered in determining the existence of any mitigating or aggravating factor. Any information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but the admissibility of information relevant to any of the aggravating factors set forth in subsection (i) shall be governed by the rules governing the admission of evidence in such trials. The state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any mitigating or aggravating factor. The burden of establishing any of the aggravating factors set forth in subsection (i) shall be on the state. The burden of establishing any mitigating factor shall be on the defendant.” We recognize that, for purposes of this appeal, the statute applicable to the defendant’s trial was General Statutes (Rev. to 1983) § 53a-46a. For the sake of uniformity and clarity, however, our references are to the statute as it is currently codified. Unless otherwise noted, there have been no substantive changes in the applicable text of the statute since its 1983 codification.
We have jurisdiction to consider the merits of these appeals at this juncture because the state, in conjunction with its appeal, requested and obtained certification from the chief justice pursuant to General Statutes § 52-265a. Thereafter, this court consolidated the state’s appeal with the defendant’s appeal.
Although the defendant alludes to various provisions of the state constitution, he has proffered no reasoned argument that the state constitution compels a result that differs from that required to be reached under the federal constitution.
General Statutes § 52-265a provides: “(a) Notwithstanding the provisions of sections 52-264 and 52-265, any party to an action who is aggrieved by an order or decision of the Superior Court in an action which involves a matter of substantial public interest and in which delay may work a substantial injustice, may appeal under this section from the order or decision to the Supreme Court within two weeks from the date of the issuance of the order or decision. The appeal shall state the question of law on which it is based.
“(b) The Chief Justice shall, within one week of receipt of the appeal, rule whether the issue involves a substantial public interest and whether delay may work a substantial injustice.
“(c) Upon certification by the Chief Justice that a substantial public interest is involved and that delay may work a substantial injustice, the trial judge shall immediately transmit a certificate of his decision, together with a proper finding of fact, to the Chief Justice, who shall thereupon call a special session of the Supreme Court for the purpose of an immediate hearing upon the appeal.
“(d) The Chief Justice may make orders to expedite such appeals, including orders specifying the manner in which the record on appeal may be prepared.”
The conversations took place on February 20, 1987, and March 3, 1987.
In Colton we held that the double jeopardy clause “should be extended to bar a new trial ... if the prosecutor in the first trial engaged in misconduct with the intent to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct.” (Internal quotation marks omitted.) State v. Colton, supra, 234 Conn. 696. We held further that, where a defendant makes such a claim of prosecutorial misconduct, he “should [be] allowed the opportunity to create a record of the alleged prosecutorial misconduct in an attempt to carry his burden to prove a double jeopardy violation... .” Id., 700.
The trial court also found that two prior meetings had occurred, on March 6, 1987, and March 10, 1987. The disclosure of the notes at issue did not take place, however, until the March 18 meeting.
Because we conclude that the information sought was not material, we do not address the trial court's conclusion that the information was exculpatory.
Contrast our conclusions in those cases with State v. White, supra, 229 Conn. 136, in which we held undisclosed information about the only witness at the defendants’ probable cause hearing to be material by virtue of the fact that “[the witness’] testimony was the only evidence connecting [the defendants] to the crimes...
[OPINION BY NORCOTT, J., type=dissent]
NORCOTT, J.,
dissenting. Although I find the analytic reasoning set forth by the majority to be flawless, I must dissent because it leads inexorably to a judgment to which I am opposed. As I have expressed previously, I believe that the death penalty is violative of the Connecticut constitution and, therefore, is legally and morally unacceptable. See State v. Cobb, 251 Conn. 285, 543, 743 A.2d 1 (1999) (Norcott, J., dissenting); State v. Webb, 238 Conn. 389, 566, 680 A.2d 147 (1996) (Norcott, J., dissenting).
Accordingly, I respectfully dissent.
STATE OF CONNECTICUT v. MICHAEL B. ROSS
(SC 16328)
Sullivan, C. X, and Norcott, Vertefeuille, Zarella, Lavery, Foti and Dranginis, Js.
Argued September 10, 2003
officially released June 1, 2004
Lauren Weisfeld, assistant public defender, with whom was James B. Streeto, assistant public defender, for the appellant (defendant).
Michael A. Fitzpatrick, special public defender, with whom was Felix Esposito, special public defender, for the appellant (defendant) on the proportionality review.
Harry Weller, supervisory assistant state’s attorney, with whom were Kevin T. Kane, state’s attorney, and, on the brief, Peter McShane and Marjorie Allen Dauster, senior assistant state’s attorneys, and Susan C. Marks, supervisory assistant state’s attorney, for the appellee (state).
[OPINION BY SULLIVAN, C. J. type=majority]
Opinion
SULLIVAN, C. J.
The defendant, Michael B. Ross, was charged in three cases with eight counts of capital felony in violation of General Statutes § 53a-54b. The trial court dismissed two counts for lack of territorial jurisdiction and, after a jury trial, the defendant was convicted of four counts of capital felony in violation of § 53a-54b (5) and two counts of capital felony in violation of § 53a-54b (6). State v. Ross, 230 Conn. 183, 188, 194-95, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995) (Ross II). After a separate penalty phase hearing pursuant to General Statutes (Rev. to 1987) § 53a-46a, he was sentenced to death. The defendant appealed from the judgments to this court. We affirmed the defendant’s convictions, but determined that certain evidentiary rulings by the trial court in the penalty phase had impaired the defendant’s ability to establish a mitigating factor and, accordingly, we reversed the judgments imposing the death penalty. Ross II, supra, 286. On remand, a second penalty phase hearing was held before a jury, which found an aggravating factor for each capital felony conviction and no mitigating factor. In accordance with the jury’s findings, the court, Miano, J., imposed a death sentence on each count. On appeal to this court pursuant to General Statutes § 51-199 and General Statutes (Rev. to 1987) § 53a-46b, the defendant raises numerous challenges to the sentences of death. We affirm the judgments imposing the death penalty on each count of capital felony.
As set forth in Ross II, supra, 230 Conn. 191-92, the jury at the guilt phase trial reasonably could have found the following facts. “On June 13, 1984, the defendant accosted seventeen year old Wendy B. as she was walking along Route 12 in Lisbon. After a short conversation, he pulled Wendy B. over a stone wall, forcing her to go with him into a wooded area that led to an open field. There he sexually assaulted her, forced her to turn over on her stomach, and then strangled her.
“On Thanksgiving Day, 1983, the defendant accosted nineteen year old Robyn S. on the grounds of Uncas on Thames State Hospital in Norwich. He forcefully pulled Robyn S. into a wooded ar ea and ordered her to remove her clothing. He then sexually assaulted her and, after ordering her to turn over on her stomach, strangled her. Before leaving, he covered her body with leaves.
“On Easter Sunday, 1984, the defendant picked up fourteen year old April B. and fourteen year old Leslie S., who were hitchhiking to Jewett City on Route 138. Once the girls had entered his car, he drove them easterly on Route 165 and, over their protests, past their intended destination. When April B. tried to force the defendant to stop the car by threatening him with a knife, he disarmed her and continued to transport the girls against their will, through eastern Connecticut, to Beach Pond in Rhode Island. At Beach Pond, he parked his car and bound both girls hand and foot. He then untied April B.’s feet and forced her to walk a short distance from his car, where he assaulted her sexually, turned her over on her stomach and strangled her. Returning to the car, the defendant killed Leslie S. without sexually assaulting her. He then placed the bodies of both girls in his car and drove back to Preston, Connecticut, where he deposited their bodies in a culvert.” Id.
At the second penalty phase hearing, the state sought to prove as an aggravating factor that the defendant committed all of the offenses in an especially heinous, cruel or depraved manner within the meaning of § 53a-46a (h) (4). The defendant sought to prove two statutoiy and fourteen nonstatutory mitigating factors. The jury found an aggravating factor and no mitigating factor for each count. Thereafter, the court imposed six sentences of death. This appeal followed.
The defendant’s claims on appeal fall into ten general categories involving: (1) rulings pertaining to the jury selection phase of the penalty hearing; (2) the denial of the defendant’s motion to sever the cases; (3) the denial of the defendant’s motion to order a competency examination; (4) evidentiary rulings; (5) the state’s alleged nondisclosure of exculpatory materials in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); (6) rulings relating to the sufficiency of the evidence in support of the mitigating and aggravating factors; (7) instructions given to the jury; (8) the constitutionality of the death penalty statute; (9) the reliability of the death sentences in light of the alleged cumulative errors; and (10) the proportionality of the death sentences, which we review pursuant to § 53a-46b (b) (3). We address each of these categories in turn.
I
JURY SELECTION PHASE ISSUES
The defendant raises four claims pertaining to the jury selection phase of the trial. We address each claim in turn.
A
Denial of the Defendant’s For Cause Challenges
The defendant claims that the trial court improperly denied eight of his for cause challenges, thereby forcing him to use his peremptory challenges to remove the challenged venirepersons in violation of: (1) his statutory and constitutional right to challenge jurors peremptorily, as provided by General Statutes §§ 54-82g and 54-82h and guaranteed by article first, § 19, of the constitution of Connecticut, as amended by article four of the amendments; and (2) his state and federal constitutional right to a fair trial by an impartial jury, as guaranteed by the sixth and fourteenth amendments to the United States constitution, and article first, § 8, of the constitution of Connecticut, as amended by articles seventeen and twenty-nine of the amendments. We disagree.
The following facts and procedural history are relevant to our resolution of this claim. Prior to voir dire, the trial court, pursuant to § 54-82h, granted thirty peremptory challenges to the state and to the defendant. After twelve jurors and one alternate had been accepted, the court granted one extra peremptory challenge to each party. At that time, the defendant had exhausted twenty-eight peremptory challenges and the state had exhausted seventeen. The defendant had exercised eight out of the twenty-eight peremptory challenges to excuse prospective jurors whom the trial court had refused to excuse for cause. The defendant exhausted all of his remaining challenges before the fourth and final alternate juror was accepted. At that time, the defendant requested, and the court denied, an additional challenge. The court indicated, however, that the defendant should renew his request on the following day. As instructed, on the following day, the defendant made a second request for a peremptory challenge and that too was denied. Neither of the defendant’s requests for an additional peremptory challenge was made in connection with a specific juror. On May 27, 1999, the fourth and final alternate juror was accepted. Between the time that the defendant exhausted his peremptory challenges and the time that the fourth alternate was accepted, the defendant did not proffer any challenge for cause that was denied by the court.
After the jury had been selected, an interlocutory appeal was filed and, because of the delay occasioned by the appeal, the jury was not recalled until January, 2000. At that time, four regular jurors and the fourth alternate juror, who was the only juror who had been selected after the defendant had exhausted his peremptory challenges, were dismissed. With the parties’ agreement, the court moved the three alternates into the seats vacated by three of the dismissed jurors so that eleven jurors and no alternates remained on the panel. When jury selection to replenish the panel began, the trial court granted each party nine peremptory challenges. The defendant used eight of his nine peremptory challenges. One juror and six alternates were accepted during the second voir dire.
The defendant now claims that the trial court improperly denied his for cause challenges to the eight jurors during the first voir dire, thereby forcing him to use his peremptory challenges to remove those jurors and denying him his constitutional and statutory right to exercise his full complement of peremptory challenges. We conclude that, because the defendant did not seek an additional peremptory challenge to exercise against a specific juror who ultimately served on the jury, even if it is assumed that the trial court improperly denied one or more of the defendant’s for cause challenges, any such impropriety necessarily was harmless under State v. Esposito, 223 Conn. 299, 613 A.2d 242 (1992). Accordingly, we do not review the merits of the trial court’s rulings.
In Esposito, the defendant was required to exercise three peremptory challenges to excuse prospective jurors whom the court had refused to excuse for cause, thereby exhausting his peremptory challenges. Id., 303-304. Thereafter, “the defendant challenged another prospective juror, Richard Artkop, for cause. The trial court overruled the challenge for cause and denied the defendant’s subsequent motion for an extra peremptory challenge. Consequently, Artkop became the second alternate juror. Jury selection was completed when a third alternate juror was chosen.” Id., 304. Before the trial began, however, the court excused one of the twelve jurors, and Artkop, the second alternate, was randomly selected to become a member of the jury that ultimately convicted the defendant. Id., 304. The defendant appealed from the judgment of conviction.
On appeal, this court concluded that one of the three jurors against whom the defendant had been forced to exercise a peremptory challenge should have been excused for cause. Id., 312. We noted that, if the juror “had been properly removed by the court for cause, the defendant would have had one peremptory challenge remaining to remove Artkop from the jury”; id., 313; and that there was no doubt that the defendant would have done so because he had both challenged the juror for cause and asked the court for an additional peremptory challenge to exercise against him. Id., 312. Accordingly, we concluded that the defendant was entitled to a new trial. We explained that “[t]he Connecticut constitution guarantees a criminal defendant the right to exercise peremptory challenges in the selection of his jury. Conn. Const., art. I, § 19, as amended by art. IV of the amendments to the constitution; see also General Statutes § § 54-82g and 54-82h. We conclude that the trial court’s action abridged this constitutional and statutory right of the defendant. Accordingly, we agree with numerous other courts throughout the nation that ‘it is reversible error for a trial court to force an accused to use peremptory challenges on persons who should have been excused for cause, provided the party subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied.' ” (Emphasis added.) State v. Esposito, supra, 223 Conn. 313.
The defendant argues that he has satisfied the Esposito conditions for raising a claim that the denial of a for cause challenge was reversible error because (1) he exhausted all of his peremptory challenges and (2) he sought, and was denied, an additional challenge. We disagree. We conclude that, under Esposito, the mere request for an additional peremptory challenge is not sufficient to establish that an allegedly improper denial of a for cause challenge was potentially harmful. Our determination in that case that the defendant’s constitutional and statutory right to exercise his full complement of peremptory challenges was abridged turned on the facts that (1) if the defendant had had an additional peremptory challenge, he would have used it to remove an identifiable juror and (2) because he was unable to do so, that juror ultimately sat on the jury. In other words, it is implicit in Esposito that, in determining whether the denial of a for cause challenge was potentially harmful, this court considers whether an identifiable, objectionable juror actually served on the jury that decided the case, not whether the composition of the jury would have been different in the absence of the claimed error.
In the present case, after exhausting his peremptory challenges, the defendant did not seek to exercise an additional peremptory challenge against a specific juror. Accordingly, we conclude that, even if it is assumed that the trial court improperly denied one or more of the defendant’s for cause challenges, thereby forcing him to exercise his peremptory challenges to remove those jurors, his right to exercise the full complement of peremptory challenges was not abridged. Put another way, any improper denial of the for cause challenges necessarily was harmless because the defendant was not forced to accept an incompetent or objectionable juror after his peremptory challenges had been exhausted. Therefore, we need not consider the merits of the court’s rulings on the defendant’s for cause challenges.
The defendant argues, however, that, under Gray v. Mississippi, 481 U.S. 648, 107 S. Ct. 2045, 95 L. Ed. 2d 622 (1987), a harmless error analysis is inappropriate when an erroneous trial court ruling may have affected the composition of the jury as a whole, regardless of whether an objectionable juror actually served on the jury. He argues that the trial court’s improper denials of his challenges for cause could have affected his use of peremptory challenges and that, when he made his calculated decisions to accept or strike jurors during the first voir dire, he could not have known that there would be a second voir dire to replace jurors lost as a result of the delay occasioned by the interlocutory appeal and that he would receive additional peremptory challenges to replace those jurors. We conclude that the defendant’s reliance on Gray is misplaced because the United States Supreme Court has limited Gray's application to the specific issue raised in that case, i.e., whether the improper Witherspoon-Witt exclusion of a prospective juror is subject to harmless error review.
In Gray, the trial court, by its own admission, improperly denied the state’s request to remove for cause at least five prospective jurors who unequivocally had stated that they could never vote to impose the death penalty, thereby forcing the state to use peremptory challenges to strike those prospective jurors from the panel. Id., 653-54. The state ultimately exhausted all of its peremptory challenges. Id., 653. When the next prospective juror was called to the jury box, she expressed reservations about imposing the death penalty but ultimately stated that she could vote for it in the appropriate case. Id. At that point, the prosecutor requested an additional peremptory challenge. Id., 654. He argued that the court erroneously had denied five or six of the state’s for cause challenges and thereby had compelled the state to use its peremptory challenges against those venire members. Id. He also claimed that, if he had another challenge, he would use it to remove the prospective juror. Id. The corut denied the state’s request, but excused the venireperson for cause. Id., 654-55. The jury ultimately convicted the defendant of capital murder and sentenced him to death. Id., 656. The defendant appealed, claiming that the exclusion of the prospective juror was unconstitutional under Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). Gray v. Mississippi, supra, 481 U.S. 656.
The Mississippi Supreme Court concluded that the defendant had not been prejudiced by the trial court’s exclusion of the venireperson. It explained that “[t]he force and effect of the trial court’s ruling was to correct an error he had committed in refusing to dismiss other jurors for cause after they had unequivocally stated that they could not vote to impose the death penalty in any circumstance.” (Internal quotation marks omitted.) Id., 657. Consequently, it explained, “the trial court was corr ect when it recognized the error in its prior rulings and took affirmative action to correct that error.” (Internal quotation marks omitted.) Id. It then affirmed both the conviction and the death sentence. Id., 656.
On appeal, the United States Supreme Court reversed the death sentence. The court explained that “[t]he efforts to apply a harmless-error determination to Witherspoon violations have suggested two analyses.... The first is to consider the state’s retention of unexercised peremptory challenges at the end of jury selection as an indication that the erroneous for-cause exclusion was harmless. This approach relies on a representation by the state that it would have removed the venire member by peremptory challenge if the court had denied its for-cause motion. The second is to treat the erroneous exclusion as an isolated incident without prejudicial effect if it cannot be said that the ultimate panel did not fairly represent the community anyway. The Mississippi Supreme Court appears to have relied on a variation of the first analysis; [the] respondent urges the [c]ourt to adopt the second. We find each unpersuasive.” (Citation omitted.) Id., 660-61. The court first rejected the state’s argument that the improper Witherspoon-Witt exclusion of a juror is harmless when the state has unexercised peremptory challenges because it assumed incorrectly that “the crucial question in harmless-error analysis is whether a particular prospective juror is excluded from the jury due to the trial court’s erroneous ruling.” Id., 665. The relevant inquiry, the court explained, is “whether the composition of the jury panel as a whole could possibly have been affected by the trial court’s error... .” (Emphasis in original; internal quotation marks omitted.) Id. The court also rejected the state’s argument that the erroneous exclusion was a single technical error with no prejudicial effect. The court reasoned that “[b]ecause the Witherspoon-Witt standard is rooted in the constitutional right to an impartial jury... and because the impartiality of the adjudicator goes to the very integrity of the legal system... harmless-error analysis cannot apply.” (Citation omitted.) Id., 668. The right to an impartial adjudicator, the court explained, is so crucial to a fair trial that its infraction can never be treated as harmless error. Id.
In Ross v. Oklahoma, 487 U.S. 81, 88-89, 108 S. Ct. 2273, 101 L. Ed. 2d 80 (1988), however, the United States Supreme Court ruled that the holding of Gray is limited to cases involving improper Witherspoon-Witt exclusions. In Ross v. Oklahoma, supra, 88, the court considered whether the defendant’s forced use of peremptory challenges to correct the trial court’s refusal to dismiss a juror for cause was a constitutional violation. During jury selection, a prospective juror had indicated initially that he could vote to recommend a life sentence under the appropriate circumstances. Id., 83. Upon further examination by defense counsel, however, he stated that, if the jury found the defendant guilty, he would vote to impose the death penalty automatically. Id., 83-84. Defense counsel then moved to have the prospective juror dismissed for cause, and the trial court denied the motion. Id., 84. Consequently, the defendant was forced to exercise his sixth peremptoiy challenge to remove the prospective juror. The defendant ultimately exhausted all nine of his peremptoiy challenges. The defendant had not challenged for cause any of the twelve jurors who actually served on the jury and decided his fate, however. The jury ultimately found the defendant guilty of first degree murder and sentenced him to death. Id.
On appeal, the Oklahoma Court of Criminal Appeals rejected the defendant’s claim that the trial court’s refusal to excuse the objectionable juror was reversible error because the record did not establish that an objectionable juror actually served on the jury. Id., 84-85. Accordingly, it affirmed the sentence of death. Id. The United States Supreme Court granted certiorari and affirmed the judgment. Id. The court held that, although the trial court improperly had denied the defendant’s for cause challenge, his sixth and fourteenth amendment rights to an impartial juiy and his fourteenth amendment right to due process had not been violated. Id., 85. The court explained that when defense counsel exercises a peremptory challenge to remove a prospective juror who should have been removed for cause, any claim that the jury was not impartial should focus not on the juror that was excluded, but rather, on the jurors who ultimately served. Id., 86. The court recognized that the failure to remove the potential juror could have resulted in a juiy panel different from that which otherwise would have decided the case, but concluded that that possibility did not mandate reversal. Id., 87. As long as the jury that decides a case is impartial, a defendant’s forced use of a peremptoiy challenge to achieve that result does not violate the sixth amendment. Id., 88. Accordingly, the court declined “to extend the rule of Gray beyond its context: the erroneous ‘Witherspoon exclusion’ of a qualified juror in a capital case. We think the broad language used by the Gray [c]ourt is too sweeping to be applied literally, and is best understood in the context of the facts there involved.” Id., 87-88.
Because Gray v. Mississippi, supra, 481 U.S. 648, applies only to erroneous Witherspoon-Witt exclusions, it is inapplicable here. Accordingly, we reject the defendant’s claim that Esposito is inconsistent with Gray and conclude that we need not consider the merits of the trial court’s rulings on the defendant’s for cause challenges because any error necessarily was harmless.
B
Claim that the Trial Court Improperly Excused a Juror For Cause
The defendant claims that the trial court improperly granted the state’s for cause challenge of venireperson no. 16886 in violation of his state constitutional and sixth amendment right to an impartial jury. The state counters that any error by the court was necessarily harmless because the state used only eighteen of its thirty peremptory challenges during the 1999jury selection process and, accordingly, would have excused the juror peremptorily if she had not been excused for cause. The state also argues that, even if the claim is not subject to harmless error review, the trial court did not abuse its discretion in excusing potential juror no. 16886. We disagree with the state that any error was necessarily harmless. We agree with the state, however, that the trial court did not abuse its discretion in granting the state’s for cause challenge to venireperson no. 16886.
The following facts and procedural history are relevant to our resolution of this claim. During voir dire, the state’s attorney asked potential juror no. 16886 if she had any feelings about sitting on a death penalty case. She responded, “I’m very strongly against the death penalty, and I think that law is [a] bad law.... I think that law is a bad law, and I couldn’t agree to it.” She also indicated that she could not return a verdict that would result in someone’s death. Defense counsel then questioned the juror. Thereafter, the court asked her several questions. In her responses to the court’s questions, the prospective juror initially equivocated about her ability to follow the law. Ultimately, however, when the trial court reminded her that it was imperative that she keep an open mind and “be able to accept the law and apply the law ... to the facts that you find,” she stated, “I couldn’t do it. I couldn’t do it. ... I couldn’t.” Defense counsel then asked her, “[I]f... you swear to uphold the law and follow the law and decide whether it is aggravation or mitigation, you’re the type of person who follows the law; am I light?” The prospective juror answered, “Yes.” The court then asked, “Could you follow the law in this case, the law as I’ve explained it?” The juror responded, “Given the worst case scenario, no, I could not.” She then explained that the “worst case scenario” would be a finding, on the basis of the evidence, that the death sentence must be imposed. She reiterated that she could not follow the law in that case.
The state then asked that the prospective juror be excused for cause. The defendant objected on the ground that the prospective juror had indicated that her personal beliefs would not substantially impair or prevent her from following the law. The court granted the state’s request. The defendant now claims that the trial court’s exclusion of the venireperson violated his right to an impartial jury because the venireperson merely expressed a general objection to the death penalty and did not indicate that she was incapable of making an impartial decision according to the law. We disagree.
We first address the state’s argument that we need not review the merits of the trial court’s ruling because any error in excluding the venireperson was necessarily harmless. As we explained in part I A of this opinion, the United States Supreme Court held in Gray v. Mississippi, supra, 481 U.S. 668, that the erroneous Witherspoon-Witt exclusion of a prospective juror is not subject to harmless error review. Accordingly, we reject the state’s argument to the contrary.
“Our constitutional and statutory law permit each party, typically through his or her attorney, to question each prospective juror individually, outside the presence of other prospective jurors, to determine the venireperson’s fitness to serve on the jury. Conn. Const., art. I, § 19; General Statutes § 54-82f; Practice Book § [42-12]. After the completion of the voir dire of a particular venireperson, a party may challenge the venireperson for cause. The court must excuse that juror if the judge ... is of the opinion from the examination that [the] juror would be unable to render a fair and impartial verdict .... General Statutes § 54-82f; Practice Book § [42-12].” (Internal quotation marks omitted.) State v. Griffin, 251 Conn. 671, 710, 741 A.2d 913 (1999). “The trial court is vested with wide discretion in determining the competency of jurors to serve.... ‘[T]he exercise of [the trial court’s] discretion will not constitute reversible error unless it has clearly been abused or harmful prejudice appears to have resulted.’ ” (Citations omitted.) Id., 710-11.
“In Witherspoon [v. Illinois, supra, 391 U.S. 512], an Illinois statute permitted the state to excuse for cause ‘ “any juror who shall, on being examined, state that he has conscientious scruples against capital punishment, or that he is opposed to the same.” ’ ... At the trial of the petitioner in Witherspoon, the state had used the statute to excuse for cause forty-seven venirepersons, nearly one half of the entire venire panel, who had expressed concerns about the death penalty.... The United States Supreme Court noted that ‘the jury is given broad discretion to decide whether or not [to impose the death penalty] in a given case, and a juror’s general views about capital punishment play an inevitable role in any such decision.’... The court concluded that the jury that had been selected was ‘uncommonly willing to condemn a man to die.’... Accordingly, the court held that ‘a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.’ ... In a footnote, the court indicated that a state may exclude for cause individuals ‘who [make] unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.’...
“In Wainwright v. Witt, [469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985)]... the court reexamined the question of how a prospective juror’s views on the death penalty should affect that individual’s eligibility to serve on a capital sentencing jury. The petitioner argued that several prospective jurors had been excluded in violation of the court’s decision in Witherspoon. The court noted that ‘[d]espite Witherspoon’s limited holding, later opinions in this Court and the lower courts have referred to the language in footnote 21, or similar language in Witherspoon’s footnote 9, as setting the standard forjudging the proper exclusion of a juror opposed to capital punishment.’... The court explained that more recent decisions had eased the rigid requirements of Witherspoon by establishing a standard by which a prospective juror could be excused for cause if the individual’s views concerning capital punishment would prevent or substantially impair the performance of the duties of a juror in accordance with the court’s instructions and the juror’s oath.... The court con-eluded that this test was preferable for determining juror exclusion because, as a result of the court’s decisions in [Furman v. Georgia, 408 U.S. 238, 239-40, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), and Gregg v. Georgia, 428 U.S. 153, 188, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976)], juries could no longer possess unlimited sentencing discretion such as was held by the jury in Witherspoon.... The court reasoned that, since Furman and Gregg, capital sentencing juries generally inform the court whether the death penalty is appropriate by answering specific questions. ... ‘In such circumstances it does not make sense to require simply that a juror not “automatically” vote against the death penalty... [because] the [s]tate still may properly challenge that venireman if he refuses to follow the statutory scheme and truthfully answer the questions put by the trial judge. To hold that Witherspoon requires anything more would be to hold, in the name of the Sixth Amendment right to an impartial jury, that a [s]tate must allow a venireman to sit despite the fact that he will be unable to view the case impartially.’ ” (Citations omitted.) State v. Webb, 238 Conn. 389, 435-37, 680 A.2d 147 (1996).
As we noted in Webb, this court has not yet had the opportunity to decide whether the strict Witherspoon standard or the more flexible Witt standard governs as a matter of state constitutional law. Id., 438. As in Webb, however, we need not decide that issue in this case because we conclude that the trial court’s exclusion of venireperson no. 16886 met the more stringent Witherspoon standard “that a prospective juror may be excused for cause if the individual would automatically vote against the imposition of capital punishment regardless of the evidence presented, or if the individual’s attitude concerning the death penalty would hinder an impartial determination of whether the defendant is guilty.” Id., 438-39.
Although prospective juror no. 16886’s responses to several questions pertaining to her ability to apply the law in this case were equivocal, she clearly stated that she was “very strongly against the death penalty, and [thought] that law is [a] bad law”; could not return a verdict that would result in someone’s death; could not keep an open mind and accept the law and apply the law to the facts found; and could not participate in a determination that the death sentence should be imposed. The trial court reasonably could have concluded that, considered in their entirety, the prospective juror’s responses unambiguously established that she automatically would have voted against the imposition of the death penalty regardless of the evidence presented to the jury during the penally phase. Accordingly, we conclude that the trial court properly granted the state’s request that she be excused for cause.
C
Claim Pertaining to the Trial Court’s Inquiry into an Alleged Taint of a Venire Panel
The defendant claims that the trial court’s failure to conduct an adequate inquiry into whether a venire panel had been tainted by a potentially prejudicial comment by a venireperson violated the defendant’s state and federal constitutional rights to an impartial jury. We disagree.
The following facts and procedural history are relevant to our resolution of this claim. On the morning of May 17, 1999, approximately fifty venirepersons were in the jury assembly room awaiting voir dire in this case. One of the venirepersons told a court clerk, within the hearing of the other venirepersons, that the defendant had killed the venireperson’s niece and he could not be an objective juror. Another court clerk immediately notified the court of what had happened. Upon being informed of this development, defense counsel asked the court to conduct an inquiry into whether the entire panel had been tainted. The court granted the request and began its inquiry by questioning the venireperson who had made the comment. The venireperson informed the court that his niece had been murdered by the defendant and admitted that he had told two venirepersons that the defendant had caused his niece’s death. He could not remember, however, to whom he had made the comment.
The trial court then questioned the court clerk who had notified the court of the occurrence. The clerk stated that, at approximately 9:15 or 9:20 a.m., in the main jury assembly room that contained an estimated fifty venirepersons, another clerk had approached the venireperson and handed him a juror questionnaire. The venireperson stated to the clerk that the defendant had “killed my niece [and] I don’t think I can be objective.” The clerk immediately directed the venireperson to go into another room where another fifteen venirepersons had assembled awaiting voir dire before another judge. While in that room, the venireperson engaged in a conversation with two venirepersons from that panel.
The defendant asked the trial court to strike the entire panel. The court assumed for the purposes of its ruling that the entire panel had heard the comment, but concluded that there could be no prejudice to the defendant because the court was going to instruct the panel before voir dire that the defendant had been convicted of murdering four women. Accordingly, the court denied the request. Ultimately, the defendant accepted four venirepersons from the potentially tainted venire panel to serve on the jury. The defendant now claims that the trial court’s failure to conduct a more searching inquiry into the alleged venire taint violated his constitutional right to an impartial jury.
The defendant cites State v. Brown, 235 Conn. 502, 668 A.2d 1288 (1995), in support of his claim that the trial court’s inquiry was inadequate. In that case, we exercised our supervisory power to require that, whenever there is a claim of juror misconduct, the trial court is required to conduct an inquiry to determine the nature and extent of the jury taint, if any. The form and scope of the inquiry and whether the misconduct was so egregious as to require the court to declare a mistrial are left to the discretion of the court. Id., 526-32; see State v. Anderson, 255 Conn. 425, 436, 773 A.2d 287 (2001). The state argues that Brown is inapplicable in the present case because Brown dealt with alleged misconduct by jurors who were actually sitting on the jury. It argues that because the potential taint in this case arose before voir dire, voir dire itself provided a means to identify and to excuse potentially tainted venirepersons. Cf. State v. Ziel, 197 Conn. 60, 65, 495 A.2d 1050 (1985) (affirming trial court’s denial of defendant’s for cause challenges of two jurors who had been exposed to prejudicial comments by other jurors before voir dire). Furthermore, it argues, by accepting without challenge four jurors from the potentially tainted venire panel, the defendant waived any claim that the jurors had been tainted.
We agree with the state that Brown does not support the proposition that a trial court is required to hold an independent inquiry whenever an allegation has been made that a venire panel has been tainted before voir dire. In State v. Ziel, supra, 197 Conn. 60, this court considered a situation very similar to the situation in this case. In Ziel, it was discovered during voir dire that members of the venire panel had discussed the case among themselves, and several of them had expressed the opinion that the defendant was probably guilty. Id., 62-63. The defendant moved to dismiss the entire panel, and the trial court denied the motion. Id., 63. Voir dire continued, and the defendant challenged two of the venirepersons for cause on the ground that they had overheard the remarks that the defendant was probably guilty. Id., 65-66. The court denied the challenges and the defendant accepted the jurors. Id. The defendant ultimately was convicted of murder and appealed to this court.
On appeal, we held that “[a]lthough it would have been proper, and perhaps more efficient, to excuse the entire panel, it was not unreasonable for the trial court to assume that the voir dire examination would disclose any prejudice upon the part of a prospective juror.” (Internal quotation marks omitted.) Id., 66. Because the two venirepersons had stated repeatedly during voir dire that they had formed no opinion as to the defendant’s guilt, we concluded that the trial court’s denial of the for cause challenges had not deprived the defendant of a fair trial. Id., 67.
Thus, Brown is not applicable when allegations of jury taint are made before the affected venirepersons have been subject to voir dire. In cases involving alleged misconduct by sitting jurors, the only mechanism by which to uncover potential jury taint is an independent inquiry by the court. When an allegation is made, however, that a venire panel has been tainted, voir dire itself provides a means to uncover bias. Therefore, such an allegation does not necessarily require an independent inquiry by the court. Although we recognize that, as in the present case, there may be circumstances in which the trial court perceives a need for an inquiry exceeding the scope of voir dire, we conclude that, as in Brown, the form and scope of the court’s inquiry, if any, into possible taint of a venire panel before voir dire depends on the circumstances of the case and is to be determined by the trial court within the exercise of its discretion. Thus, we agree with the state that our supervisory ruling in Brown is not applicable here.
We reject the state’s argument, however, that a party waives any claim of venire taint by accepting jurors from a potentially tainted panel. Such a rule would render unreviewable the trial court’s rulings on motions involving allegations of venire taint before voir dire. Instead, we conclude that whether the failure to exercise a for cause or peremptory challenge to excuse a potentially tainted venireperson during voir dire constitutes a waiver of any taint claim depends on the circumstances of the case. For example, if the trial court’s inquiry into potential taint of the venire panel does not adequately address crucial factual underpinnings of the taint claim that are not easily susceptible to being explored during voir dire, a party should not be required to challenge a juror in order to obtain review of the trial court’s ruling. Similarly, if the trial court makes it clear that it will not allow any inquiry into the alleged taint during voir dire, failure to challenge the jurors would not constitute a waiver. Accordingly, we review the defendant’s claim.
We conclude that, in the present case, the trial court’s inquiry into the allegation that the venire panel had been tainted by the venireperson’s comment adequately protected the defendant’s right to an impartial jury. The court ascertained what the venireperson had said and assumed for purposes of ruling on the defendant’s request to excuse the entire venire panel that the entire panel had heard the comment. Thus, there was no need for the court to inquire of each venireperson whether he or she had overheard it. The court also reasonably concluded that the knowledge that the defendant had killed a venireperson’s niece could not be prejudicial to the defendant because the first thing that the panel was going to learn during the court’s preliminary instructions before voir dire was that the defendant had been convicted of murdering four women. As to the defendant’s claim that the venireperson’s comment, coupled with his personal presence in the jury assembly room, could have generated undue sympathy for the families of the victims, the trial court reasonably could have concluded that the effect of the comment would be de minimis in light of the fact that the jurors were going to hear testimony from several members of the victims’ immediate families. In any event, the defendant had the opportunity during voir dire to explore those matters. He makes no claim that he was prohibited from doing so or that the prospective jurors’ responses during voir dire indicated that, because of the venireperson’s comment, they had formed an opinion on the ultimate issue in the case. Accordingly, we reject this claim.
D
Claim that the Trial Court Improperly Limited Voir Dire
The defendant claims that the trial court improperly prohibited him from asking prospective jurors whether they could consider his conduct in prison to be mitigating, thereby violating his state and federal constitutional right to a fair trial by an impartial jury and his state constitutional and statutory rights to voir dire individual jurors and to exercise peremptory challenges. The state counters that the defendant’s claim is not reviewable because the defendant asked the question of only three jurors and (1) the court’s ruling was necessarily harmless with respect to two of those jurors who ultimately did not serve on the jury and (2) the claim was waived with respect to the third juror when the defendant withdrew the question. It further argues that, even if the claim is reviewable, the trial court’s ruling was not an abuse of discretion. We conclude that the claim is reviewable but agree with the state that the trial court properly refused to allow voir dire on specific mitigating evidence.
The following facts and procedural history are relevant to the resolution of this claim. On April 9, 1999, several days into the jury selection phase of the trial, the defendant asked venireperson no. 17041 whether he believed that a person “in prison for his... entire life can become a productive member of society within the prison... .” The state objected to the question and the trial court sustained the objection. The defendant ultimately exercised a peremptory challenge to excuse the venireperson.
On May 3, 1999, the defendant asked venireperson no. 19432 if she would consider “someone’s behavior in prison, for instance a good prisoner, to be mitigation. ” When she answered that she would not, the defendant asked whether she would consider “to be mitigation... someone’s volunteering to have himself studied... .” The trial court directed the defendant to “get away from these examples” because they “may be [introduced as] evidence.” The court ultimately denied the defendant’s challenge for cause with respect to venireperson no. 19432, and the defendant exercised a peremptory challenge to remove her from the panel.
On May 25, 1999, the defendant asked venireperson no. 15365: “What about somebody’s ability to adapt to life in prison. Do you have any feelings about whether that would be mitigating?” The state objected and the trial court sustained the objection. The defendant argued that the question must be allowed under Morgan v. Illinois, 504 U.S. 719, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992). The trial court reaffirmed its ruling and ordered a recess.
When court resumed, the court heard arguments on the applicability of Morgan. Ultimately, the court concluded that that case did not support the defendant’s position. The defendant then withdrew the question. The defendant did not attempt to excuse venireperson no. 15365 from the panel, and he became the second alternate. Later that day, the defendant raised Morgan again, and the trial court explained that “[t]he question’s been withdrawn so there’s really nothing before me.” The defendant responded, “That’s true, and, you know, we did accept that juror, so, you know, the question is neither here nor there. It’s just, you know, more jurors are coming and who knows where I will delve in questioning.” The defendant did not attempt to ask the question of another venireperson.
As we have already noted, the parties have a statutory and state constitutional right to voir dire examination of prospective jurors. “Because of the wide range of cases submitted to juries and the impossibility of establishing a set pattern of questions appropriate for the voir dire examination of prospective jurors, the trial court is vested with broad discretion in determining the scope of counsel’s inquiry. State v. Anthony, 172 Conn. 172, 175, 374 A.2d 156 (1976). The court has a duty to analyze the examination of venire members and to act to prevent abuses in the voir dire process. Accord State v. Haskins, 188 Conn. 432, 450 A.2d 828 (1982). Therefore, the court’s actions ordinarily will not be disturbed unless the court has clearly abused its discretion or it appears that prejudice to one of the parties has resulted.” State v. Dolphin, 203 Conn. 506, 511-12, 525 A.2d 509 (1987).
“The exercise of the court’s discretion, however, must be tempered to comport with the goals of the voir dire examination. We have recognized that the purpose of examining members of the venire is twofold: first, to provide information upon which the trial court may decide which prospective jurors, if any, should be excused for cause; and second, to provide information to counsel which may aid them in the exercise of their right to peremptory challenge. See State v. Rogers, [197 Conn. 314, 318, 497 A.2d 387 (1985)]; State v. Hill, 196 Conn. 667, 671, 495 A.2d 699 (1985); State v. Anthony, supra, [172 Conn.] 174-75; Duffy v. Carroll, 137 Conn. 51, 56, 75 A.2d 33 (1950). ‘[T]he court should grant such latitude as is reasonably necessary to fairly accomplish the purposes of the voir dire. Clearly, therefore, if there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice. This is particularly true with reference to the defendant in a criminal case.’ State v. Higgs, [143 Conn. 138, 142, 120 A.2d 152 (1956)].” State v. Dolphin, supra, 203 Conn. 512.
In Morgan v. Illinois, supra, 504 U.S. 719, the United States Supreme Court considered the issue of “life qualification” of venirepersons in bifurcated capital felony trials. In that case, the trial court had permitted the state to ask potential jurors during voir dire whether their opposition to the death penalty would prevent them from performing their duties as jurors. Id., 722. Over defense objection, the trial court asked each venire panel whether any member had moral or religious principles so strong that he or she could not impose the death penalty “ ‘regardless of the facts.’ ” Id. In addition, all of the jurors who were eventually empaneled were asked and responded negatively to the following question, or a slight variation thereof: “ ‘Would you automatically vote against the death penalty no matter what the facts of the case were?’ ” Id., 723. The trial court refused, however, the defendant’s request to ask all prospective jurors the following question: “ ‘If you found [the defendant] guilty, would you automatically vote to impose the death penalty no matter what the facts are?’ ” Id. The defendant was convicted of first degree murder and sentenced to death. Id., 722. On appeal, the Illinois Supreme Court rejected the defendant’s argument that, during voir dire, the trial court must grant a defendant’s request to ask the “ ‘life qualifying’ or ‘reverse-Witherspoon’ ” question upon request. Id., 724.
The United States Supreme Court reversed the conviction on the ground that the federal constitution guarantees defendants in capital cases the right to question and to challenge for cause any venireperson who, upon conviction, automatically would vote to apply the death penalty regardless of the facts. Id., 729. The court explained that “[a]ny juror who states that he or she will automatically vote for the death penalty without regard to the mitigating evidence is announcing an intention not to follow the instructions to consider the mitigating evidence and to decide if it is sufficient to preclude imposition of the death penalty.” Id., 738. The court explained further that “such jurors obviously deem mitigating evidence to be irrelevant to their decision to impose the death penalty: They not only refuse to give such evidence any weight, but are also plainly saying that mitigating evidence is not worth their consideration and that they will not consider it.” Id., 736.
Thus, Morgan recognized the right of a defendant to ask the general question whether a prospective juror automatically will impose the death sentence upon finding an aggravating factor. Since Morgan was decided, however, numerous courts have concluded that that case does not entitle defendants to ask questions pertaining to specific mitigating evidence. See United States v. McVeigh, 153 F.3d 1166, 1208 (10th Cir. 1998), cert. denied, 526 U.S. 1007, 119 S. Ct. 1148, 143 L. Ed. 2d 215 (1999), citing Sellers v. Ward, 135 F.3d 1333, 1341-42 (10th Cir.), cert. denied sub nom. Sellers v. Gibson, 525 U.S. 1024, 119 S. Ct. 557, 142 L. Ed. 2d 463 (1998); United States v. Tipton, 90 F.3d 861, 879 (4th Cir. 1996), cert. denied, 520 U.S. 1253, 117 S. Ct. 2414, 138 L. Ed. 2d 179 (1997); United States v. McCullah, 76 F.3d 1087, 1114 (10th Cir. 1996), cert. denied, 520 U.S. 1213, 117 S. Ct. 1699, 137 L. Ed. 2d 825 (1997); People v. Jackson, 182 Ill. 2d 30, 61-62, 695 N.E.2d 391 (1998); Evans v. State, 333 Md. 660, 675-76, 637 A.2d 117 (1994); Holland v. State, 705 So. 2d 307, 338-39 (Miss. 1997), cert. denied, 525 U.S. 829, 119 S. Ct. 80, 142 L. Ed. 2d 63 (1998); Witter v. State, 112 Nev. 908, 915-16, 921 P.2d 886 (1996), cert. denied, 520 U.S. 1217, 117 S. Ct. 1708, 137 L. Ed. 2d 832 (1997); State v. Fletcher, 348 N.C. 292, 311-12, 500 S.E.2d 668 (1998), cert. denied, 525 U.S. 1180, 119 S. Ct. 1118, 143 L. Ed. 2d 113 (1999); State v. Wilson, 74 Ohio St. 3d 381, 386-87, 659 N.E.2d 292, cert. denied, 519 U.S. 845, 117 S. Ct. 129, 136 L. Ed. 2d 78 (1996); State v. Hill, 331 S.C. 94, 501 S.E.2d 122, cert. denied, 525 U.S. 1043, 119 S. Ct. 597, 142 L. Ed. 2d 539 (1998). Indeed, as the court in McVeigh noted, some courts have held not only that Morgan does not grant the right to ask such questions, but also that such questions are improper. See United States v. McVeigh, supra, 1208, citing Evans v. State, supra, 676 (explaining why “stake-out” questions are impermissible); State v. Fletcher, supra, 312 (same). The reasoning of these cases is the same as that applied by this court in noncapital cases involving claims that the trial court improperly limited voir dire, namely, that “[a] party has no right to... ascertain a juror’s opinion [on the evidence] in advance.” (Internal quotation marks omitted.) State v. Clark, 164 Conn. 224, 226, 319 A.2d 398 (1973). “[A]ll too frequently such inquiries represent a calculated effort on the part of counsel to ascertain... what the reaction of the venireman will be to certain issues of fact or law .... Such an effort transcends the proper limits of the voir dire and represents an abuse of the statutory right of examination.” (Internal quotation marks omitted.) Id.
Before addressing the merits of the defendant’s claim that the trial court abused its discretion in refusing to allow him to ask potential jurors whether they would consider postincarceration conduct “to be mitigation,” we address the state’s argument that the claim is not reviewable because the defendant exercised peremptory challenges against two of the prospective jurors to whom the question had been addressed and withdrew his question as to the third. The defendant counters that the trial court’s ruling amounted to a blanket prohibition on questions pertaining to his conduct in prison. Accordingly, he argues, it is possible that prospective jurors who would have answered the question negatively if the defendant had been permitted to ask it may have served on the jury. Although we agree with the state that the record leaves some doubt as to whether the defendant would have questioned any jurors other than the three identified jurors on their views of the mitigating nature of the defendant’s conduct in prison if not for the trial court’s ruling, we assume for the purposes of this claim that the defendant believed that the trial court would not have permitted him to ask the question of any juror and that he would have done so if permitted. Accordingly, we review the claim.
We conclude that the trial court did not abuse its discretion in barring the defendant from asking the prospective jurors whether they could consider his conduct in prison to be mitigating. We are persuaded by the great weight of authority that, as a matter of federal constitutional law, Morgan does not require that defendants be permitted to ask potential jurors during voir dire whether they would consider specific evidence in mitigation. “To the contrary, Morgan specifically directed its holding toward the end of discovering jurors for whom ‘the presence or absence of either aggravating ormitigating circumstances is entirely irrelevant.’ ” People v. Jackson, supra, 182 Ill. 2d 59-60, quoting Morgan v. Illinois, supra, 504 U.S. 729. Morgan does not suggest that a venireperson who indicates a general willingness to consider facts and circumstances in mitigation, but who believes that a specific fact or circumstance is not mitigating, should be precluded from serving on the jury. A contrary conclusion would allow the defendant to use voir dire to form trial strategy and to select jurors sympathetic to specific mitigating claims. Accordingly, we reject the defendant’s claim under the federal constitution.
We also are not persuaded by the defendant’s argument that the state constitution provides greater protection than the federal constitution on this matter. “In State v. Geisler, [222 Conn. 672, 684-86, 610 A.2d 1225 (1992)], we enumerated the following six factors to be considered in determining that issue: (1) persuasive relevant federal precedents; (2) the text of the operative constitutional provisions; (3) historical insights into the intent of our constitutional forebears; (4) related Connecticut precedents; (5) persuasive precedents of other state courts; and (6) contemporary understandings of applicable economic and sociological norms, or as otherwise described, relevant public policies.” City Recycling, Inc. v. State, 257 Conn. 429, 444 n.12, 778 A.2d 77 (2001). The defendant concedes that state precedent, federal precedent and contemporary sociological norms provide no support for his specific claim. He argues, however, that the text of article first, § 19, of the constitution of Connecticut, as amended by article four of the amendments, sibling state precedent and the intent of the framers of the constitution all support the claim that he has a state constitutional right to question venirepersons about specific mitigating factors. We disagree.
With respect to the text of the state constitution and the intent of the framers, the defendant argues only that peremptory challenges “occupy a special position in this state’s jurisprudence” and “the right to liberal, individual voir dire has been a fixture in Connecticut for centuries, to a degree unknown elsewhere in the nation.” We have no quarrel with these propositions. They do not support the argument, however, that the defendant has a right to ascertain a juror’s opinion on specific evidence in advance of trial. See State v. Clark, supra, 164 Conn. 224.
With respect to sibling state precedent, the defendant relies primarily on statements made by the Louisiana Supreme Court in an unpublished appendix to its decision in State v. Comeaux, 699 So. 2d 16 (La. 1997), cert. denied, 522 U.S. 1150, 118 S. Ct. 1169, 140 L. Ed. 2d 179 (1998), and People v. Cash, 28 Cal. 4th 703, 50 P.3d 332, 122 Cal. Rptr. 2d 545 (2002), cert. denied, 537 U.S. 1199, 123 S. Ct. 1270, 154 L. Ed. 2d 1039 (2003). In the appendix to Comeaux, the Supreme Court of Louisiana stated that “the prosecutor properly may probe into a prospective juror’s general attitude about certain mitigating circumstances, just as the defense may probe into the juror’s general attitude about aggravating circumstances.” State v. Comeaux, 1997 La. LEXIS 1719, *66-*67 (1997). The court also stated, however, that “hypothetical questions and questions of law which call for prejudgment of any supposed case on the facts are not permissible in voir dire examination.” Id., *67.
In Cash, the trial court prohibited the defendant from asking prospective jurors whether they automatically would impose the death penalty if the defendant previously had committed another murder. The California Supreme Court stated that “[b]y absolutely barring any voir dire beyond facts alleged on the face of the charging document, the trial court created a risk that a juror who would automatically vote to impose the death penalty on a defendant who had previously committed murder was empanelled and acted on those views... .” People v. Cash, supra, 28 Cal. 4th 723. The court also stated, however, that “death-qualification voir dire must avoid two extremes. On the one hand, it must not be so abstract that it fails to identify those jurors whose death penalty views would prevent or substantially impair the performance of their duties as jurors in the case being tried. On the other hand, it must not be so specific that it requires the prospective jurors to prejudge the penalty issue based on a summary of the mitigating and aggravating evidence likely to be presented. ... In deciding where to strike the balance in a particular case, trial courts have considerable discretion.... They may not, however, as the trial court did here, strike the balance by precluding mention of any general fact or circumstance not expressly pleaded in the information.” (Citations omitted; emphasis added.) Id., 721-22.
We conclude that, contrary to the defendant’s claim, neither Comeaux nor Cash stands for the proposition that a defendant has a constitutional right to ascertain the opinions of prospective jurors on the mitigating nature of specific mitigating claims prior to trial. Although Cash suggests that the parties may voir dire prospective jurors on certain general facts or circumstances beyond those set forth in the information, it expressly states that questions pertaining to specific mitigating claims are not allowed. Accordingly, we reject the defendant’s claim under the state constitution.
Finally, we conclude that the foregoing analysis forecloses the defendant’s claim that the trial court’s ruling violated §§ 54-82f and 54-82g. Nothing in those statutes requires the trial court to permit a party to ascertain prospective jurors’ views on specific evidence during voir dire. Accordingly, we reject this claim.
II
THE DEFENDANT’S MOTION TO SEVER
The defendant claims that the trial court improperly denied his motions to sever and his motion for reconsideration, both made prior to the penalty phase of these proceedings. We disagree.
The following procedural history is relevant to our resolution of this claim. Initially, the state brought three separate informations against the defendant, charging him, respectively, with: (1) the kidnap-murder and sexual assault-murder of Wendy B.; (2) the kidnap-murder and sexual assault-murder of Robyn S.; and (3) the kidnap-murders of April B. and Leslie S. The cases were consolidated for trial. Ross II, supra, 230 Conn. 225. The defendant filed a motion to sever the cases prior to the guilt phase of his trial, which the trial court denied. Id. He also filed a motion to sever prior to the first penalty phase of the proceedings, which was also denied. In Ross II, supra, 225-26, this court rejected the defendant’s challenge to the trial court’s denial of the motion to sever that he had made before the guilt phase. We did not reach his claim concerning the denial of his second motion to sever that was filed before the first penalty phase. Id., 285.
After we remanded the case for new penalty phase proceedings, the defendant again filed a motion to sever. The trial court denied the motion because the defendant had not met his burden of showing that consolidation of the cases for the penalty phase gave rise to substantial prejudice. Specifically, the trial court found that: (1) the three cases were easily distinguishable on their facts; (2) the facts of each case were equally shocking, thus reducing the risk that the facts of one case would taint the others; and (3) the duration and complexity of the trial did not warrant severance. The trial court also noted that there was no representation that the defendant wanted to testify as to only some of the charges and that there were no antagonistic or inconsistent defenses. Recognizing, however, that consolidation of the cases potentially could confuse the jury, the court ordered the state to compartmentalize its presentation of the evidence pertaining to each separate case. The defendant now challenges the denial of his motions to sever. The state argues that this court’s opinion in Ross II affirming the trial court’s denial of the defendant’s motion to sever made prior to the guilt phase is the law of the case and is controlling here. We agree with the state.
“The law of the case doctrine provides that when a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.” (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 130 n.21, 788 A.2d 83 (2002). This court follows the “well-recognized principle of law that the opinion of an appellate court, so far as it is applicable, establishes the law of the case upon a retrial, and is equally obligatory upon the parties to the action and upon the trial court.... The rule is that a determination once made will be treated as correct throughout all subsequent stages of the proceeding except when the question comes before a higher court... and [the doctrine] applies both to remands for new trial... and to remands for articulation.” (Citations omitted; internal quotation marks omitted.) State v. Daniels, 209 Conn. 225, 237, 550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S. Ct. 1349, 103 L. Ed. 2d 817 (1989).
In Ross II, we determined that the trial court reasonably could have concluded, under State v. Boscarino, 204 Conn. 714, 720-25, 529 A.2d 1260 (1987), that the cases should be consolidated for the guilt phase because the three incidents involved were factually discrete and easily distinguishable, the violence in each of them would not have led to jury confusion or undue prejudice and conducting the proceedings jointly would not produce such a complex and lengthy process that the jury would be influenced to consider evidence cumulatively and not independently. Ross II, supra, 230 Conn. 226. The defendant now claims that the trial court’s denial of his motion to sever the cases prior to the second penalty phase was improper because: (1) the crimes could not easily be separated into distinct events and, therefore, were bound to confuse the jury, thereby impairing the defendant’s right to a fair and independent consideration of the evidence in each case separately; (2) the evidence concerning the double homicide was of such a brutal and violent nature that it was bound to influence the jury’s view of the other homicides; and (3) the complexity and length of the trial was bound to influence the jury to consider the evidence cumulatively rather than independently. These are precisely the same issues, however, as the issues raised by the defendant before the first guilt phase and reviewed by this court in Ross II. Accordingly, we conclude that this claim is governed by the law of the case and that the trial court properly denied the motion to sever. Cf. State v. Casanova, 255 Conn. 581, 594, 767 A.2d 1189 (2001) (“[the law of the case] doctrine is inapplicable here because the issue raised by the pretrial motion to dismiss was different from the evidentiary issue subsequently presented to the trial court”).
The defendant argues, however, that the mere fact that the request to sever the cases was made at the penalty phase entitled him to a second bite at the apple. We disagree. First, he has provided no authority for the proposition that the standards for consolidation that apply at a penalty phase proceeding are different from those that apply at a guilt phase proceeding. Nor has he explained, and we cannot perceive, why the risk of undue prejudice should be greater at the penalty phase than at the guilt phase. As in Ross II, where he presented evidence of all of the offenses at issue here, as well as two additional sexual assault-murders that he committed in Windham county (Windham county murders), in support of his insanity defense, the defendant himself chose at the second penalty phase to introduce evidence of all three incidents and of other crimes in support of his claimed mitigating factor that he had a substantial mental impairment. Thus, the risk that the jury would consider the evidence cumulatively was one that the defendant chose to take, and it could not have been avoided even if the cases had been severed. Moreover, as in Ross II, the jury was not faced with antagonistic or confusing theories of mitigation for each separate offense, but was presented with a single theory applicable to each case. Accordingly, we see no reason that this court’s holding in Ross II should not govern here.
The defendant also claims that, even if the trial court did not abuse its discretion in denying the motion to sever, the consolidation was prejudicial because, during the penalty phase hearing, the state failed to comply with the trial court’s order to compartmentalize the evidence. He further argues that the instructions given by the trial judge were insufficient to cure the confusion produced by the state’s commingling of evidence. We disagree.
The defendant argues that the state’s presentation of evidence was confusing because the sequence in which the offenses were discussed in the defendant’s audiotaped confessions was different from the sequence in which the state initially presented evidence concerning the three cases. In addition, he argues that the audiotape contained a commingled and confusing discussion of the offenses, as well as two murders and a rape not at issue in this case. The defendant also argues that the testimony given by various witnesses impermissibly commingled all three cases. Finally, he complains of the state’s characterization of the three separate cases during closing argument as “this case” and “the case”; its use of the words “they,” “those poor girls” and “people” and the like to refer to the victims; and the use of the phrases “the case” and “the offense” by the court during its instructions to the jury.
Thus, the defendant argues, in effect, that the trial court’s order to the state to compartmentalize the evidence pertaining to the three cases required the state to conduct a separate evidentiary proceeding for each of the cases within the context of the consolidated proceeding. In other words, the defendant appears to believe that the state was required to call the same witnesses separately for each case and to edit and redact the documentary evidence and the audiotaped confessions so that they could be presented separately for each case. We disagree. Such a proceeding could only create confusion, not dispel it. Moreover, we note that, when the trial court ordered the state to compartmentalize the evidence, it explicitly recognized that some of the evidence applied to all of the offenses, and it excepted such evidence from its order. Presumably, the cases were consolidated in part because much of the evidence pertained to more than one case and it was more efficient and less confusing to introduce such evidence only once. Requiring the state to present three hermetically sealed cases would undermine the very purpose of a consolidated trial, i.e., to avoid multiplicity of litigation and to promote judicial efficiency. As the trial court properly found on two separate occasions, these cases are not inherently indistinguishable, complex or confusing. Our careful review of the record convinces us that the state’s presentation of the evidence did not make them so.
With respect to the defendant’s claim that the use of the words “this case,” “the case” and the like by the state during closing arguments and by the trial court in its instructions to the jury, we conclude that it would have been unduly confusing, and simply impracticable, for the state and the court, in evexy instance in which they referred to this matter, to refer separately to each of the individual offenses. Moreover, the examples of allegedly improper instructions by the court that the defendant presented were taken almost exclusively from the court’s instructions on the mitigating factor. As we have noted, it was the defendant himself who chose to claim that the circumstances of all of the offenses, i.e., “the case,” showed that a mitigating factor existed as to each separate offense. Accordingly, we conclude that there is no reasonable likelihood that the jury was misled either by the state’s presentation of evidence or by the court’s instructions, to believe that it did not have to consider each offense with which the defendant was charged separately, especially in light of the court’s repeated instructions that the jury had to consider the offenses separately. Accordingly, we reject this claim.
Ill
THE DEFENDANT’S MOTION FOR A COMPETENCY EXAMINATION
The defendant claims that the trial court improperly denied his motion for a competency examination pursuant to General Statutes § 54-56d in violation of his due process rights to a fair trial under the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. We disagree.
The following facts and procedural history are relevant to our resolution of this claim. In an apparent attempt to commit suicide, the defendant ingested an overdose of prescription sedatives on November 2, 1998. As a result of the suicide attempt, the defendant was hospitalized. Defense counsel visited the defendant in the hospital on November 4,1998, and observed that he was suffering from hallucinations. The defendant refused to see one of his attorneys on November 10, 1998.
Shortly after the suicide attempt, the defendant requested that the trial court order a competency examination. A hearing on the request was held on November 20, 1998. At the hearing, defense counsel indicated that the defendant was limiting his claim that he was incompetent to the second prong of § 54-56d, i.e., that he was unable to assist in his own defense. Defense counsel indicated that the defendant was suffering from severe depression and made repeated representations to the effect that he was “unable to rationally have discussion with regard to choices in his case at this time.” She also informed the court of the defendant’s suicide attempt and of his continuing desire to waive the penalty hearing and to stipulate to the death penalty. The defendant presented no testimony, exhibits or medical reports in support of his claimed incompetence, however. The trial court canvassed the defendant on his understanding of the nature of the proceedings.
The court rendered its decision on December 17, 1998. The court found that the defendant was well educated, intelligent and articulate; that he could read and was a prolific writer; that he did not suffer from any known or apparent illness or defect that would impair his ability to assist his counsel; that the medication that was prescribed for him did not interfere with his ability to participate in or to comprehend fully the nature of the proceedings; that he understood and fully comprehended the status of his case and the nature and circumstances of the pending penalty phase proceeding; that he understood and fully appreciated the duties of the fact finder at a penalty phase proceeding and the consequences of the findings of the fact finder, including the imposition of the penalty of death; and that he comprehended the respective burdens of proof and standards of proof of the parties that would apply at the penalty phase proceeding. On the basis of these findings, the court determined that the evidence did not establish that the defendant was unable to assist counsel and that any doubt on that matter was based not on the defendant’s inability to assist counsel, but “upon a difference of opinion [between the defendant] and his counsel concerning the manner in which the case in mitigation [was] to be presented, if presented at all.” Accordingly, the trial court denied the defendant’s motion for a competency examination. Over the course of the ensuing penalty phase proceeding, the trial court noted periodically on the record that the defendant was interacting appropriately with his counsel.
The defendant now claims that the trial court improperly determined that the evidence did not establish a reasonable doubt as to his competency. Specifically, the defendant points to (1) his attempted suicide, (2) his past attempt to accept the death penalty, and (3) defense counsel's representations that he was unable to assist in his own defense due to his depression. We disagree and conclude that the trial court’s denial of the defendant’s motion for a competency examination was within its discretion.
The sentencing of “an accused person who is not legally competent to stand trial violates the due process of law guaranteed by the state and federal constitutions. Conn. Const., art. I, § 8; U.S. Const., amend. XIV, § 1; see Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966).” (Internal quotation marks omitted.) State v. Johnson, 253 Conn. 1, 20, 751 A.2d 298 (2000). General Statutes § 54-56d (a), which codifies this constitutional mandate, provides that “[a] defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.”
“This statutory definition mirrors the federal competency standard enunciated in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) (per curiam). According to Dusky, the test for competency must be whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him. ... Id.; see also Drope v. Missouri, 420 U.S. 162, 172, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975). Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.... State v. Gonzalez, 205 Conn. 673, 686-87, 535 A.2d 345 (1987).” (Internal quotation marks omitted.) State v. Johnson, supra, 253 Conn. 20-21.
The defendant argues that the trial court was required to order a competency examination pursuant to § 54-46d upon being presented with factual allegations that, if true, would constitute evidence of incompetence. In support of his claim, the defendant relies on State v. Johnson, supra, 253 Conn. 21, in which this court stated that “[a]s a matter of due process, the trial court is required to conduct an independent inquiry into the defendant’s competence whenever he makes specific factual allegations that, if true, would constitute substantial evidence of mental impairment.” (Internal quotation marks omitted.) In interpreting this language, however, it is important to distinguish between an “independent inquiry” by the court and an independent competency examination of the defendant as provided by § 54-56d (d). We recognize that this court has not always clearly made that distinction. See e.g., id., 21 (suggesting that same standard applies to request for “competency examination” and request for “independent inquiry” by court). It is clear, however, that the “independent inquiry” required by due process whenever an allegation of incompetence has been made is a hearing before the court, not an independent psychiatric evaluation as provided by statute. See id., citing Sanders v. United States, 373 U.S. 1, 21, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963) (colorable allegation of incompetence entitles prisoner to court hearing, but court has discretion to ascertain whether claim is substantial before allowing prisoner to testify). The provisions of § 54-56d “state that if it ‘appears’ that the defendant is not competent, and if the trial court finds that a request for a competency evaluation is ‘justified,’ the court must order a competency examination. We have interpreted this standard as requiring a competency evaluation any time a reasonable doubt is raised regarding the defendant’s competency.” State v. Johnson, supra, 24. To establish such reasonable doubt, the defendant must present substantial evidence, not merely allegations, that he is incompetent. See id., 21-25. “Substantial evidence is a term of art. Evidence encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is substantial if it raises a reasonable doubt about the defendant’s competency .... Moore v. United States, 464 F.2d 663, 666 (9th Cir. 1972). State v. Watson, [198 Conn. 598, 605, 504 A.2d 497 (1986)]; see Pate v. Robinson, [supra, 383 U.S. 385]; de Kaplany v. Enomoto, 540 F.2d 975, 982-83 (9th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S. Ct. 815, 50 L. Ed. 2d 793 (1977); People v. Pennington, 66 Cal. 2d 508, 518, 426 P.2d 942, 58 Cal. Rptr. 374 (1967).” (Internal quotation marks omitted.) State v. Johnson, supra, 21-22.
We conclude that the trial court reasonably could have determined, on the basis of its canvass of the defendant at the November 20, 1998 hearing, and the lack of any testimony, exhibits or medical reports to support the defendant’s claim of incompetence, that there was no reasonable doubt that the defendant not only understood the nature of the proceedings but also was able to communicate with and assist his counsel. As the trial court noted, the facts adduced at the hearing supported, at most, an inference that the defendant was reluctant to assist counsel, not that he was unable to do so.
The defendant’s suicide attempt, his attempt to stipulate to the imposition of the death penalty and his counsel’s statements at the hearing on the motion for a competency examination do not compel a different conclusion. First, we previously have held that an attempted suicide does not automatically create a reasonable doubt as to a defendant’s competency and require the trial judge to order a competency examination. See Myers v. Manson, 192 Conn. 383,388, 472 A.2d 759 (1984) (attempted suicide does not automatically require trial judge to order competency hearing). This is so because, “[c]ompetence to stand trial ... is not defined in terms of mental illness. An accused may be suffering from a mental illness and nonetheless be able to understand the charges against him and to assist in his own defense... .” (Citations omitted.) State v. DeAngelis, 200 Conn. 224, 230, 511 A.2d 310 (1986). Similarly, the defendant’s past attempts to stipulate to the imposition of the death penalty did not raise a reasonable doubt as to his competency, especially in light of the fact that he was found competent on April 9, 1998, at the time he was pursuing the stipulation.
Finally, we conclude that the defendant places undue weight on the representations made by defense counsel at the November 20, 1998 hearing. “Although... the opinion of the defendant’s counsel ‘is unquestionably a factor which should be considered,’ we note that the trial court need not accept it without question. Drope v. Missouri, [supra, 420 U.S. 177 n.13].” State v. DesLaurier, 230 Conn. 572, 588, 646 A.2d 108 (1994). Moreover, we agree with the trial court that defense counsel’s representations constituted legal conclusions, not evidence from which the trial court could make its own legal determination as to the defendant’s competency. In short, the representations of defense counsel “provided no reasonable basis for the trial court to disregard its own, in-court observations about the defendant’s then present competency.” Id., 589.
We conclude that the trial court reasonably could have determined that there was no reasonable doubt as to the defendant’s competency. Therefore, it did not abuse its discretion when it declined to order a psychological examination of the defendant.
IV
EVIDENTIARY ISSUES
The defendant challenges several evidentiary rulings by the trial court. We address each claim in turn.
A
The Admission of Prior Testimony By Psychiatrist Robert Miller
The defendant claims that the trial court’s admission of guilt phase testimony given by Robert Miller, a now deceased psychiatric expert for the state, to rebut certain mitigating evidence violated the defendant’s due process and confrontation rights because: (1) Miller’s testimony at the guilt phase did not address the question of mental impairment, which was the issue at the penalty phase, and, therefore, there was not an identity of issues; (2) the defendant had no opportunity to cross-examine Miller on the substance of his testimony; and (3) the testimony was more prejudicial than probative. The defendant also claims that the trial court improperly instructed the jury on the use of the testimony. We reject these claims.
This court previously has taken note of certain facts relevant to the resolution of this issue. In State v. Ross, 251 Conn. 579, 589-90, 742 A.2d 312 (1999) (Ross III), we stated that “[p]rior to the commencement of the defendant’s trial in 1987, Miller, the psychiatric expert employed by the state, examined the defendant. Subsequent to the examination, Miller issued a report in which he diagnosed the defendant as a sexual sadist, but concluded that the defendant was not legally insane. Eight months after his examination of the defendant, however, in a letter to [C. Robert Satti, Sr.], the prosecutor handling the case, Miller expressed his doubts about ‘how [he] could testify against psychopathology playing a sufficient role in [the] defendant’s behavior to mitigate the type of penalty.’ ” The state disclosed a portion of this letter to the defendant at some point before or during the guilt phase trial, including Miller’s statement that “[i]f it had been only one or two incidents I could have held up, but the repetitive nature of the acts as well as past history of assaultive behavior make my (our) position untenable.”
During the guilt phase of the trial, Miller testified in rebuttal of the defendant’s insanity defense. Specifically, he testified about the general nature of sexual sadism, including his opinion that sexual sadists are capable of controlling their behavior. He did not testify about his diagnosis of the defendant or his opinion as to the defendant’s ability to control his behavior.
On cross-examination at the guilt phase, defense counsel attempted to ask Miller about the portion of his letter to Satti that had been disclosed to the defendant. When defense counsel started to ask about Miller’s statement concerning the repetitive nature of the defendant’s acts, the state interrupted and objected on the ground that the question was beyond the scope of direct examination. The defendant countered that the question went to Miller’s bias. After a discussion off the record, the court sustained the state’s objection.
At that point, the defendant requested that, for purposes of preserving the record, he be permitted to mark for identification the item on which he had attempted to question Miller. The court then dismissed the jury and entertained argument on the defendant’s request. The court first noted that Miller’s letter was not part of the record and that defense counsel’s question to Miller about the letter was therefore without any proper context. The state then offered to provide a copy of the letter to the court so that the court could determine whether it showed bias on Miller’s part. Defense counsel agreed that he intended to use the letter only to show bias and that he did not intend to go beyond the scope of direct examination. Upon review of the letter, the court determined that it did not demonstrate any bias that could not be otheiwise brought out by questioning the witness. Accordingly, the court denied the defendant’s request to read the letter and ordered that the letter be sealed. Defense counsel asked Miller one more question—whether a person must be psychotic to be mentally ill—and then ended his cross-examination. Miller was excused as a witness shortly thereafter.
The next day, the court, sua sponte, reversed its ruling denying the defendant’s request to read the entire letter. The court stated that its new ruling did not necessarily “mean that there’s going to be any further inquiry [regarding the letter]. Certainly, if there is, it requires Dr. Miller’s presence. He resumes the same position he had at the termination yesterday.” The court then provided the letter to defense counsel and granted his request to leave the courtroom to review and discuss the letter with cocounsel. Upon returning to the courtroom, defense counsel returned the letter to the court and requested that it be marked for identification. Defense counsel gave no indication that he wanted to accept the offer to resume his cross-examination of Miller. As previously noted, at the conclusion of the guilt phase, the defendant was convicted of all of the offenses with which he was charged.
Thereafter, at the first penalty phase hearing, the defendant offered Miller’s report diagnosing the defendant as a sexual sadist and Miller’s letter to Satti as exhibits in support of his claims in mitigation that he suffered from a significant impairment of mental capacity and lacked the ability to conform his conduct to the requirements of the law. The state objected on the ground that Miller was available as a witness and the documents were inadmissible hearsay. The defendant argued that the rules of evidence did not apply to relevant mitigating evidence. The court sustained the state’s objection. Ultimately, the jury found an aggravating factor and no mitigating factor, and the court sentenced the defendant to death on each count. Ross II, supra, 230 Conn. 188-90. The defendant appealed and this court determined that the trial court improperly had excluded Miller’s report and letter. Id., 271. Accordingly, we reversed the death sentence and remanded the case for a second penalty hearing. Id., 273. Meanwhile, Miller had died in 1991.
At the second penalty phase, the defendant again claimed as statutory mitigating factors pursuant to § 53a-46a (g) (2) that at the time of the offense “his mental capacity was significantly impaired” and that “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... .” In support of these mitigating factors, the defendant presented evidence from his own psychiatric experts that he suffered from the mental illness of sexual sadism and that that condition significantly impaired his ability to control his actions. He also placed in evidence Miller’s report and his letter to Satti.
In its rebuttal case, the state sought to introduce into evidence the transcript of Miller’s testimony during the guilt phase. The defendant objected on the grounds that he had not been able to cross-examine Miller on the substance of his testimony and that Miller’s testimony was relevant only to the guilt phase issue of insanity, not to the mitigating factors claimed by the defendant. The state argued that the rules of evidence do not apply to evidence offered to rebut mitigation. The court, after noting that it was not strictly required to establish that Miller’s testimony met the criteria for admissibility, concluded that the issues addressed by the documents introduced by the defendant and Miller’s testimony were substantially similar and the testimony was otherwise admissible. The court specifically noted that the defendant had opened the door to the testimony by introducing Miller’s report, which went to the issue of the defendant’s insanity, and that the testimony probably would not have been admissible if the report had not been admitted. The court overruled the defendant’s objection and allowed the state to read selected portions of Miller’s testimony into the record. Among other things, the jury heard Miller’s testimony concerning the general nature of sexual sadism and his opinion that sexual sadists are capable of controlling their behavior. On surrebuttal, the defendant played for the jury videotaped interviews by defense counsel of James M. Alexander, a psychiatrist who had worked closely with Miller for several years, and Miller’s wife, S.M.. Alexander and S.M. stated that, in their views, Miller was forthright and principled and that his letter to Satti reflected a genuine change of opinion about the defendant’s case.
Immediately after Robert Miller’s testimony was read to the jury, the court instructed the jury that the testimony was “relevant to sexual sadism [and was] offered as the general criteria of sexual sadism and not offered relevant specifically to Dr. Miller’s diagnosis of [the defendant].” The court also charged the jury at the conclusion of evidence that Miller’s testimony had been given during the guilt phase on the issue of insanity and that insanity was not an issue in the penalty hearing.
The defendant now claims that the trial court improperly admitted Miller’s prior testimony into evidence. He concedes that, under § 53a-46a (c), which allows “[a]ny information relevant to any mitigating factor [to] be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters,” the rules of evidence did not apply to the testimony. See Ross III, supra, 251 Conn. 588-89. He argues, however, that the testimony was so unreliable and prejudicial that its admission violated his due process right to a fair trial and his rights under the confrontation clause.
We begin our analysis by addressing the appropriate standard of review. We stated in Ross III, supra, 251 Conn. 587-88, that, although the rules of evidence do not apply to evidence presented in rebuttal of mitigating evidence, the trial court nevertheless continues “to have the authority to preserve the integrity of the proceeding before it. That authority necessarily encompasses the duty to exclude evidence that, although relevant, is, for example, too prejudicial to be admissible or that is cumulative of evidence previously introduced. Having the authority to make such an exclusionary ruling, the trial court indubitably also has the authority to instruct the fact finder about the limited uses to which admissible evidence properly may be put. ... [A] literal reading of [§ 53a-46a (c)] does not divest a trial court of its traditional authority and obligation to exclude unreliable and unduly prejudicial evidence.” Thus, although the ordinary rules of evidence do not apply to evidence pertaining to mitigation, the trial court retains discre-lion to rule on the reliability and prejudicial nature of such evidence. Such rulings are subject to review under an abuse of discretion standard. See State v. Kirsch, 263 Conn. 390, 399, 820 A.2d 236 (2003). “If the [evidentiary] claim is of constitutional magnitude [and an abuse of discretion is found], the state has the burden of proving the constitutional error was harmless beyond a reasonable doubt.” Id., 412.
We next review the legal standards governing the admission of testimony given at a separate proceeding. Section 8-6 (1) of the Connecticut Code of Evidence provides an exception to the hearsay rule for “[testimony given as a witness at another hearing of the same or a different proceeding, provided (A) the issues in the former hearing are the same or substantially similar to those in the hearing in which the testimony is being offered, and (B) the party against whom the testimony is now offered had an opportunity to develop the testimony in the former hearing.” These restrictions on the hearsay exception have their roots in the confrontation clause. As we stated in State v. Joyner, 255 Conn. 477, 491 n.19, 774 A.2d 927 (2001), “[t]he confrontation clause demands that where prior testimony is admitted at a later proceeding, the party against whom the testimony is admitted must have had an opportunity to cross-examine the witness at the earlier proceeding sufficient to endow the testimony as a whole with some indicia of reliability... .” (Internal quotation marks omitted.) See also United States v. Wingate, 520 F.2d 309, 316 (2d Cir. 1975) (“[testimony given at a pretrial or at a previous hearing by a presently unavailable witness is inadmissible at a subsequent trial unless the issues in the two proceedings are sufficiently similar to assure that the opposing party had a meaningful opportunity to cross-examine when the testimony was first offered”).
The defendant claims that the admission of Miller’s prior testimony violated his rights under the confrontation clause because the testimony did not satisfy either prong of the hearsay exception. We first address the defendant’s claim that the issues at the two proceedings were not substantially similar. We conclude that the trial court properly determined that the issues at the guilt phase and at the second penalty phase were substantially similar.
At the guilt phase, the state used Miller’s testimony to rebut a defense of insanity. Although the defendant did not expressly claim insanity at the second penalty phase, the jury, confronted only with Miller’s report and his letter, in which he stated, among other things, that he had reversed his “earlier intemperate stand, which was based more on emotion than reason,” and “the repetitive nature of the acts as well as past history of assaultive behavior make my (our) position untenable”; (internal quotation marks omitted) Ross II, supra, 230 Conn. 272 n.39; could have come to the conclusion that, in the letter, Miller had repudiated the opinion contained in his report, i.e., that the defendant was not insane. The state used Miller’s testimony to rebut that potential inference by showing that, although Miller’s letter showed that he ultimately had concluded that he could not testify that the defendant did not suffer from some psychopathology that impaired his ability to control his conduct, he continued to believe that sexual sadists—and by implication the defendant—are not incapable of controlling their conduct. Accordingly, we conclude that, although there is merit to the defendant’s claim that, as a general rule, the issue of insanity is not substantially similar to the issue of significant mental impairment and, therefore, testimony tending to show only that a defendant was not insane does not rebut evidence of significant mental impairment, under the circumstances of this case, where the defendant interjected the issue of his insanity into the penalty phase proceeding by placing Miller’s report into evidence, the trial court did not abuse its discretion in determining that the issues raised at both proceedings were substantially similar.
We next address the defendant’s claim that Miller’s testimony should have been excluded because he did not have an adequate opportunity to cross-examine Miller on it. The defendant argues in his brief that, “[b]ecause the scope of direct examination avoided any diagnosis of the defendant, no cross-examination about the defendant was possible.” (Emphasis in original.) We agree that the defendant could not have cross-examined Miller on testimony that he had not given on direct examination. The defendant could have cross-examined Miller on the primary substantive issue on which he did testify, however, namely, that sexual sadists can control their conduct. He was not prevented from exploring whether that testimony was consistent with Miller’s report, in which he had diagnosed the defendant as a sexual sadist, and his letter to Satti stating that he could not testify that the defendant’s psychopathology was not mitigating. He simply made no attempt to do so. “[T]he test [for the admissibility of prior testimony] is [whether the party against whom the evidence is offered had] the opportunity for full and complete cross-examination rather than the use made of that opportunity.” (Internal quotation marks omitted.) State v. Joyner, supra, 255 Conn. 491 n.19. We conclude that the trial court reasonably could have concluded that that test was met.
We next consider the defendant’s claim that the testimony should have been excluded because it was more prejudicial than probative. The defendant argues that the testimony could have misled the jury to believe that, because Miller gave it after he wrote the letter to Satti, it was a retraction of that letter. As we have noted, however, the testimony went to the issue of whether sexual sadists are insane while the letter went to the issue of the defendant’s claim of mitigating mental impairment. The testimony merely tended to show that Miller continued to believe that sexual sadists are not insane, an issue that had been interjected into the proceeding when the defendant introduced Miller’s report diagnosing the defendant as a sexual sadist and offering the opinion that he was not insane. We have concluded that the testimony was properly admitted for the purpose of raising this inference.
This brings us to the defendant’s claim that the court’s instructions on the use of Miller’s testimony were improper. The defendant argues that the trial court improperly told the jury that the admission of Miller’s testimony was unusual and denied his requests that the court explain to the jury the differences between insanity and “significant impairment”; define “significant impairment”; explain that Miller’s testimony could not be used to determine whether a mental impairment had been proven; explain that the defendant had been precluded from cross-examining Miller with his letter and report; explain that the first sentencing jury had not been permitted to see the report or letter; and instruct that, if it found that no mental impairment existed, the jury would have to find that none of the psychiatric evidence was credible.
“The standard of review for constitutional claims of improper juiy instructions is well settled. In determining whether it was... reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case.... The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.... The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 128, 836 A.2d 224 (2003).
With respect to the claim that the court improperly told the jury that the admission of Miller’s testimony was unusual, the defendant argues that “[s]uch an influential charge could have had only one effect: to lend the court’s endorsement to the reliability of Miller’s damaging testimony” and that “[t]he charge made it seem that Miller’s testimony was somehow particularly worthy of credence... .” We do not agree that the court’s general characterization of the use of prior testimony as “a little bit unusual” amounted to an improper endorsement of the testimony or Miller’s credibility. Accordingly, we reject this claim.
With respect to the remaining claims, we conclude that the court’s instruction that Miller’s testimony had been given during the guilt phase on the issue of insanity and that insanity was not an issue in the penalty hearing adequately informed the jury that it was not required to find that the defendant was insane in order to find that he had a significant mental impairment. We are not persuaded by the defendant’s argument that the court’s refusal to expound on the definition of “significant impairment,” to tell the jury what evidence had been presented to the previous penalty phase jury or to instruct it that a determination that there was no mitigation would be inconsistent with all of the psychiatric evidence allowed the jury to reach a verdict not sanctioned by law or supported by properly admitted evidence. Accordingly, we reject these claims.
B
The Exclusion of Testimony by Bishop Daniel Hart
The defendant claims that the trial court improperly excluded testimony by Daniel Hart, the Bishop of the Norwich Roman Catholic Diocese, on the concept of mercy, including the extension of mercy to those who have committed heinous crimes, and the Catholic church’s position on capital punishment. The trial court concluded that the evidence was not relevant to the question of whether anything in the defendant’s character, background and history warranted a sentence less than death. The defendant argues that the exclusion of the testimony violated the constitutional principle that “[s]tates cannot limit the sentencer’s consideration of any relevant circumstance that could cause it to decline to impose the [death] penalty.” McCleskey v. Kemp, 481 U.S. 279, 306, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987). We disagree.
As we previously have noted in this opinion, the rules of evidence do not apply to the admission of mitigating evidence at the penalty phase. Ross II, supra, 230 Conn. 268. The court retains discretion to exclude irrelevant evidence, however. See id.; see also Ross III, supra, 251 Conn. 587. To be relevant, evidence that the defendant seeks to introduce as mitigating must bear on the “defendant’s character, background and history, or the nature and circumstances of the crime... .” General Statutes (Rev. to 1987) § 53a-46a (b); see also Lockett v. Ohio, 438 U.S. 586, 604 n.12, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) (“[n]othing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense”).
We agree with the trial court that general ethical or religious teachings on the nature of mercy or the morality of the death penalty have no bearing on any fact pertaining to the defendant’s background, character or history, or to the circumstances of the offense. We therefore conclude that the court did not abuse its discretion in excluding Bishop Hart’s proposed testimony as irrelevant. Moreover, the governing law of this state is that, when a defendant has been convicted of a capital felony and an aggravating factor has been found, the death sentence must be imposed unless the defendant has established a circumstance specific to himself or the case that constitutes a basis for a sentence less than death. The admission of opinion testimony on the compatibility of that law with a particular moral or religious doctrine impermissibly would encourage jury nullification of the law. Accordingly, we reject this claim.
C
The Admission of the Videotaped Interviews with Howard Zonana
The defendant claims that the trial court improperly allowed the state to impeach Donald Grayson, a psychiatrist retained by the defendant as an expert witness, with videotaped interviews between the defendant and Howard Zonana, another of the defendant’s psychiatric experts. He argues that the admission of the videotapes violated his constitutional right to counsel, his constitutional privilege against self-incrimination and the attorney-client and psychiatrist-patient privileges. We disagree.
The following facts and procedural history are relevant to the resolution of this claim. The defendant retained Zonana to perform a psychiatric evaluation in 1985. At that time, Zonana conducted several interviews of the defendant and videotaped them. Zonana advised the defendant that the interviews were confidential and would be covered by the attorney-client privilege unless both the defendant and his attorneys agreed to disclose them.
At the first penalty phase hearing, Fred Berlin, another psychiatric expert for the defendant, testified that he had viewed the videotapes as part of his evaluation of the defendant. The state asked for copies of the videotapes. The defendant objected, claiming that disclosure would violate his fifth amendment rights and the attorney-client privilege. The court overruled the objection and the videotapes were disclosed to the state. The state did not attempt to place the videotapes into evidence.
Before the second penalty hearing, the defendant indicated that he intended to call Berlin and Grayson as psychiatric experts. The defendant never called Berlin. Grayson testified that he had reviewed Berlin’s reports as part of his evaluation of the defendant. The defendant also placed into evidence a report by Grayson in which he discussed in detail several letters and reports by Berlin in which Berlin had concluded that the defendant suffered from sexual sadism, that the condition caused him personal anguish and that it might be treatable with medication. During cross-examination of Grayson, the state asked him whether he was aware that the defendant had retained Zonana. The defendant objected to the question, and the jury was excused. The state indicated to the court that it intended to offer evidence that the defendant had made statements to Zonana that were inconsistent with those that he had made to Grayson and to ask Grayson whether those statements would change his opinion. The defendant argued that the statements to Zonana were covered by the psychiatrist-patient privilege and the attorney-client privilege. The state countered that any privilege had “disappeared” when the videotapes were given to Berlin and the defendant called Berlin to testily during the penalty phase. After reviewing the portions of the videotapes that the state intended to show to Grayson, the court ruled that they were relevant to the defendant’s claim of mental impairment and admitted them.
Several days later, the court explained in greater depth its reasons for admitting the videotapes. The court stated that the defendant’s fifth amendment privilege against self-incrimination had been waived at the guilt phase and second penalty phase when the defendant presented evidence in which he admitted that he had committed the offenses, but the court recognized that the videotapes were subject to the psychiatrist-patient and attorney-client privileges. The court concluded, however, that the defendant had given a qualified waiver of those privileges when he placed his mental condition in issue. The court then concluded that, on two separate occasions, the defendant specifically had waived the privilege with respect to the videotapes. The first waiver was in 1987 when he called Berlin to testily at the first penalty phase and the videotapes were disclosed to the state. The court noted that, once the videotapes had been disclosed, their confidentiality could not be reasserted. The second waiver was in 2000 when the defendant called Grayson, who had relied on Berlin’s reports, to testify at the second penalty phase hearing. Accordingly, the court concluded that the videotapes were admissible. At the close of evidence, the court instructed the jury that the videotapes had been entered into evidence for the sole purpose of testing the basis of Grayson’s expert opinion and could not be used to establish any fact in issue. The defendant now challenges the trial court’s decision to admit the videotapes.
As a preliminary matter, we address the proper standard of review. Whether the defendant waived the attorney-client, psychiatrist-patient and fifth amendment privileges is a mixed question of law and fact over which our review is de novo. See State v. Vega, 259 Conn. 374, 387, 788 A.2d 1221 (mixed question of law and fact is subject to de novo review), cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002).
In support of his argument that the admission of the videotapes violated the psychiatrist-patient privilege, the defendant points out that “[t]he people of this state enjoy a broad privilege in the confidentiality of their psychiatric communications and records... .” (Internal quotation marks omitted.) Falco v. Institute of Liv ing, 254 Conn. 321, 328, 757 A.2d 571 (2000); see also General Statutes § 52-146e. Moreover, “[wjhere a psychiatric expert ... is retained by a criminal defendant or by his counsel for the sole purpose of aiding the accused and his counsel in the preparation of his defense, the attorney-client privilege bars the state from calling the expert as a witness.” State v. Toste, 178 Conn. 626, 628, 424 A.2d 293 (1979).
This court has recognized, however, that “[a] defendant waives many significant rights when he chooses to assert a defense of insanity.” Ross II, supra, 230 Conn. 213. “Specifically, a defendant’s assertion of an insanity defense requires at least a partial waiver of his attorney-client privilege because, under Practice Book §§ [40-18 and 40-19], he must disclose defense psychiatric reports and submit to a court-ordered psychiatric examination on behalf of the state.” Id., 214. It is also clear that such disclosure of psychiatric evidence to the state necessarily constitutes a waiver of the psychiatrist-patient privilege with respect to the disclosed materials. Moreover, the United States Supreme Court has held that a defendant who introduces psychiatric evidence has “no Fifth Amendment privilege against the introduction of [the psychiatric reports of the defendant’s experts] by the prosecution.” Buchanan v. Kentucky, 483 U.S. 402, 423, 107 S. Ct. 2906, 97 L. Ed. 2d 336 (1987); see also State v. Manfredi, 213 Conn. 500, 513, 569 A.2d 506 (defendant waives fifth amendment privilege against sett-incrimination when he places mental status in issue), cert. denied, 498 U.S. 818, 111 S. Ct. 62, 112 L. Ed. 2d 37 (1990). “[I]f a defendant... presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested.” (Internal quotation marks omitted.) State v. Steiger, 218 Conn. 349, 362-63, 590 A.2d 408 (1991), quoting Buchanan v. Kentucky, supra, 422-23. Otherwise, “[the defendant’s] silence may deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case.” (Internal quotation marks omitted.) Buchanan v. Kentucky, supra, 422.
In the present case, the defendant raised the claim of significant mental impairment and called Grayson to testify in support of that claim. Grayson testified that he had read Berlin’s reports and he quoted those reports at length in his own written report, which was admitted into evidence. In turn, Berlin had testified at the first penalty phase that he had relied in part on the Zonana videotapes in forming his own opinion about the defendant’s mental status. Thus, the reliability of Grayson’s testimony was dependent in part on whether Berlin’s opinion was supported by the statements made by the defendant to Zonana. Therefore, the state was entitled to test the basis of Grayson’s opinion by confronting him with the videotapes. Accordingly, we agree with the trial court that the defendant implicitly waived the psychiatrist-patient privilege with respect to the videotapes when he called Grayson as a witness. A fortiori, the defendant waived the privilege in 1987 when he called Berlin to testify.
The defendant argues, however, that there can be no implied waiver of the psychiatrist-patient privilege and, even if it is assumed that an implied waiver is permissible, the waiver in this case was not knowing and intelligent. He has cited no authority for the proposition that an express waiver of the privilege is required in cases where the defendant has raised the issue of his mental status, however, and it is clear that such a requirement would eviscerate the principle that a defendant, having chosen to place his mental status in issue, cannot selectively conceal relevant psychiatric evidence behind the shield of privilege. With respect to the defendant’s claim that his waiver was not knowing and intelligent, we note that he makes no claim that his attorneys failed to advise him that a claim of mental impairment at the second penalty phase would act as a waiver of any privilege in the videotapes or that he would not have claimed mental impairment if he had known that it meant waiving any privilege. In the complete absence of any such claim, we must “assume that the defendant’s experienced and highly competent counsel knew that the results of the... psychiatric examination could be used in rebuttal [if he raised impaired mental status as a mitigating claim] and informed the defendant of the potential nature and scope of the... examination”; State v. Steiger, supra, 218 Conn. 370; and that the defendant’s decision to claim mental impairment was made intelligently and with full knowledge of the consequences. For the same reasons, we also reject the defendant’s claim that use of the videotapes violated his sixth amendment right to counsel. See id.
The defendant also argues that a defendant’s privilege against self-incrimination protects him against compul-soiy submission to a psychiatric evaluation unless he has placed in issue whether he “had the mental state required for the offense charged”; Practice Book § 40-18; and that whether the defendant had the mental state required for the offenses was not in issue during the penalty phase. Thus, he implicitly argues that the foregoing principles apply only when a defendant has raised an insanity defense at the guilt phase and not when he has raised a claim of mental impairment at the penalty phase. We disagree. As we have noted, the state has a statutory right to rebut mitigating evidence presented by the defendant at the penalty phase. See General Statutes (Rev. to 1987) § 53a-46a, (c). The defendant has provided no authority in support of his claim that the constitution prohibits the state from using otherwise admissible psychiatric evidence to rebut a mitigating claim of mental impairment at the penalty phase, and we can conceive of no reason that the waiver princi-pies that apply at the guilt phase should not also apply at the penalty phase. Accordingly, we reject this claim.
Finally, the defendant argues that under Practice Book § 40-13 (b), which provides in relevant part that the defendant shall provide to the state “any statements of the witnesses other than the defendant,” his statements are not subject to disclosure. That section of the Practice Book merely provides that certain materials are discoverable by the state as of right, however. It does not prohibit the disclosure of other materials.
We conclude that the trial court properly determined that the defendant waived his fifth amendment privilege against self-incrimination and his attorney-client and psychiatrist-patient privileges in the Zonana videotapes when he claimed significant mental impairment as a mitigating factor and called Grayson and Berlin to testify in support of that claim. Accordingly, we reject this claim.
D
The Motion to Suppress the Defendant’s Confession
The defendant next claims that the trial court improperly denied his motion to suppress his confessions. We disagree.
We previously have taken note of certain facts and procedural history that are relevant to our resolution of this claim. “On June 28, 1984, while at the Lisbon town hall, the defendant made numerous inculpatory statements to the state police: He admitted, orally and in writing, that he had killed Wendy B. and Robyn S., murders that were committed in New London county. He also confessed to killing April B. and Leslie S. in Rhode Island and to other murders in Windham county.
“After an evidentiary hearing, the trial court, Hendel, J., denied the defendant’s motion to suppress his inculpatory statements. In support of its ruling, the trial court made the following findings of fact. The defendant came to the Lisbon town hall voluntarily. He made his first incriminatory statement to detective Michael Malchik [of the Connecticut state police major crime unit] before having received Miranda warnings. This statement resulted from an extended conversation in a town hall conference room. During this conversation, the defendant was not physically restrained and twice had been advised that he was free to leave. It was the defendant who initiated an inquiry into the type of person who might have killed Wendy B. and whether such person might receive psychotherapy. The defendant then asked Malchik whether Malchik thought the defendant had killed Wendy B. Malchik replied in the affirmative and told the defendant that he felt that ‘he [the defendant] would do it again and I thought that was the most important thing, that he didn’t do it again.’ Immediately thereafter, without any questioning by Malchik, the defendant admitted to having killed Wendy B. Upon hearing this incriminatory statement, Malchik terminated any further conversation with the defendant and treated him as a custodial suspect. Before asking any further questions, Malchik gave the defendant the required Miranda warnings; Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); and asked the defendant to sign a Miranda waiver, which he did. All the defendant’s subsequent incriminatory statements followed repeated Miranda warnings and waivers.
“The trial court concluded that: (1) the police had not illegally detained or arrested the defendant; (2) the defendant had made his statements to the police voluntarily; and (3) there was no Miranda violation in the manner in which the police obtained statements from the defendant. Accordingly, the trial court denied the defendant’s motion to suppress.” Ross II, supra, 230 Conn. 202-204. The defendant challenged that ruling on appeal. This court affirmed the denial, stating that “[considering the record of the meeting in its entirety, we are persuaded that the trial court was not clearly erroneous in its determination that a reasonable person in the defendant’s position would have felt free to leave even after Malchik had voiced his belief that the defendant had killed Wendy B.” Id., 205.
At the second penalty phase, the defendant renewed his motion to suppress the confession. He argued that this court improperly had applied a deferential standard of review in Ross II and that legal developments since the release of that opinion had clarified that “in custody” determinations are reviewed de novo. See Thompson v. Keohane, 516 U.S. 99, 112-13, 116 S. Ct. 457, 133 L. Ed. 2d 383 (1995). The trial court held that Thompson had not changed the standard of review and that this court’s ruling in Ross II was controlling. Cf. Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 293-94, 734 A.2d 1036 (1999) (law of the case applies in absence of overriding circumstance such as “decision of the Supreme Court after the first review that is inconsistent with the decision on review”). Accordingly, it denied the motion to suppress. The defendant now challenges that ruling.
In Thompson, the United States Supreme Court held that review of “in custody” determinations involves two distinct inquiries: “first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” Thompson v. Keohane, supra, 516 U.S. 112. “The first inquiry ... is distinctly factual. State-court findings on these scene- and action-setting questions attract a presumption of correctness .... The second inquiry, however, calls for application of the controlling legal standard to the historical facts. This ultimate determination, we hold, presents a ‘mixed question of law and fact’ qualifying for independent review.” Id., 112-13.
In State v. Atkinson, 235 Conn. 748, 759 n.17, 670 A.2d 276 (1996), this court concluded that the Thompson analysis “is similar to the one that we have always applied [to in-custody determinations]. We first examine the trial court’s conclusion regarding the historical facts in order to determine whether it is clearly erroneous. We next conduct an independent review in light of the totality of the circumstances by scrupulously examining the record to determine if an application of the law to the facts leads us to conclude that the defendant was in custody. In contrast with the [United States] Supreme Court, however, we have never expressly labeled this second determination as a mixed question of law and fact.” Thus, we recognized in Atkinson that Thompson applied another name to, but did not alter, the standard of review that this court always had applied to “in custody” determinations.
We recognize that, in Ross II, we used the phrase “the trial court was not clearly erroneous” in affirming the trial court’s denial of the defendant’s motion to suppress. Ross II, supra, 230 Conn. 205. A careful reading of our opinion in that case convinces us, however, that we in fact applied the standard of review that we traditionally have applied to “in custody determinations,” as set forth in Atkinson, and did not merely defer to the trial court’s determination. Specifically, we first set forth the governing law; id., 204; and then set forth the constitutionally relevant facts gleaned from our independent review of the entire record. Id., 205. Applying the law to the facts, we stated that “[wjefind, it especially probative that, contrary to the facts of the cases on which the defendant relies, it was the defendant, not Malchik, who initiated the discussion of the murder of Wendy B.” (Emphasis added.) Id. We did not defer to any determination by the trial court on the constitutional significance of that fact, our independent assessment of which was central to our resolution of the claim. Accordingly, we conclude that the trial court properly determined that this court in Ross II had applied the proper standard of review to the trial court’s denial of the motion to suppress at the guilt phase and our affirmance of that ruling is, therefore, controlling here. Therefore, the defendant’s renewed motion to suppress was properly denied.
V
THE DEFENDANT’S BRADY CLAIM
The defendant claims that the court improperly denied his motion for a mistrial or a life sentence in which he claimed that the state failed to disclose exculpatory evidence in a timely manner in violation of Brady v. Maryland, supra, 373 U.S. 83. We disagree.
The following additional facts are relevant to our resolution of this claim. On March 16, 2000, two days after the defendant had rested his case in mitigation, the state disclosed to him certain documents pertaining to the investigation of a rape, a death and an attempted rape that had occurred at Cornell University (Cornell) in Ithaca, New York, in the spring of 1981. Specifically, the documents pertained to the investigations of the rape of a woman, identified only as K.G., on May 6, 1981; the death of a woman, identified as D.N.T., on May 12, 1981; and the attempted rape of a woman, identified as T.T., on May 14, 1981. The defendant’s possible involvement in these incidents had been public knowledge since 1987 and the defendant had confessed in 1998 to committing a rape-murder and other offenses when he was a student at Cornell in 1981. A videotape of an interview between the defendant and Zonana concerning a rape, attempted rape and rape-murder that he had committed at Cornell had been admitted as a full exhibit and played to the jury at the second penalty phase.
After the disclosure of the materials, the defendant immediately claimed that the state improperly had withheld exculpatory materials and asked the court to impose a life sentence or, in the alternative, to declare a mistrial. He also asked that, if the court denied those motions, the state be precluded from using any of the evidence in rebuttal. The state acknowledged that it had had most of the materials in its possession for “an appreciable amount of time,” but argued that they were not exculpatory.
The court did not rule on the defendant’s requests immediately, but heard additional arguments the next day. At that time, the defendant argued that the materials were exculpatory because they (1) showed that he was remorseful, (2) corroborated his claim that he suffered from sexual sadism and (3) undermined the state’s claim that he had killed the victims to avoid detection. In support of his argument that the materials showed that he was remorseful, he pointed to a file memorandum dated May 21, 1987, authored by Scott Hamilton of Cornell’s department of public safety indicating that, on March 25,1987, Malchik had told him that the defendant was reluctant to talk about the murders that he had committed outside of Connecticut because he wanted the death penalty to be carried out as soon as possible. The defendant argued that this evidence impeached Malchik’s testimony that, at the time of the defendant’s arrest and confession in June, 1984, he had stated untruthfully that he had committed murders only in Connecticut. In addition, he argued that it impeached testimony by Frank Griffin, a captain with the state police, that the defendant showed no remorse at the time of his arrest and confession. With respect to his claim that the materials pertaining to the rape and attempted rape corroborated his diagnosis of sexual sadism, he argued that the materials showed the ritualistic, repetitive and progressive nature of his conduct. In support of his argument that the materials undermined the state’s theory that he had killed the victims in order to avoid detection and not because of his sexual sadism, the defendant contended that the police reports, which indicated that D.N.T.’s body had been found fully clothed, and a portion of Hamilton’s memorandum, which indicated that Malchik had stated to Hamilton that the defendant had redressed one of the Connecticut victims after killing her, corroborated the defendant’s account given to one of his psychiatric experts that he had sexually assaulted Leslie S., whose body had been found fully clothed, and tended to show that the murder was, therefore, sexually motivated. The defendant also argues in his brief to this court that the police reports showed that the defendant could have been identified by at least two surviving victims in addition to a woman he had confessed to raping in Connecticut, identified as Vivian S., who identified him after his arrest. Finally, he argued to the trial court that the materials had been produced too late for him to be able to make effective use of them.
On March 20, 2000, the court issued its ruling that the undisclosed materials were not material under Brady v. Maryland, supra, 373 U.S. 83, and denied the defendant’s motions for a life sentence, a mistrial and exclusion of the evidence in the state’s rebuttal case. The couit also indicated, however, that it would entertain a request for a continuance or to recall excused witnesses. The defendant declined the offer.
Later that day, the court considered the state’s offer of testimony by K.G. The state told the court that K.G. would testify, in rebuttal of the defendant’s claim that he did not kill his victims to avoid detection but because of his sexual sadism, that the person who had raped her had taken steps to ensure that she could not identify him and had not attempted to degrade or humiliate her. The defendant argued that the testimony should not be admitted because it was not entirely clear that it was the defendant who had raped K.G. The court agreed that the record did not sufficiently establish that the defendant had committed the rape and excluded the testimony.
The defendant then asked that the portion of Hamilton’s memorandum stating that Maichik had told Hamilton that the defendant wanted to be executed as soon as possible be introduced as a full exhibit. The court allowed it and the exhibit was read to the jury.
The defendant claims on appeal that the trial court improperly denied his motions for a life sentence or a mistrial on the ground that the undisclosed materials were not material for Brady purposes. “In Brady v. Maryland, supra, 373 U.S. 87, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. To establish a Brady violation, the defendant must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the defendant, and (3) it was material [either to guilt or to punishment].” (Internal quotation marks omitted.) State v. Wilcox, 254 Conn. 441, 452, 758 A.2d 824 (2000) “The United States Supreme Court ... in United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985), [held] that undisclosed exculpatory evidence is material, and that constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) State v. Wilcox, supra, 453.
We first address the defendant’s claim that Hamilton’s memorandum undermined evidence presented by the state that the defendant was not remorseful. The memorandum indicated that Malchik had told Hamilton that the defendant was reluctant to talk about crimes outside of Connecticut because he wanted to be executed as soon as possible. The defendant concedes that this triple hearsay evidence of the defendant’s state of mind ultimately was given to the jury, but argues that he was prejudiced by not being able to use the memorandum to cross-examine Malchik immediately on his testimony that the defendant had lied about committing murders outside the state of Connecticut and to cross-examine Griffin on his testimony that the defendant was not remorseful. He argues that recalling Malchik and Griffin to resume cross-examination would not have been effective because the jury could have assumed that the recall was attributable to a lack of preparation by defense counsel, or could have been “too drained and exhausted by that time to give impeachment its due.”
We conclude that there is no reasonable possibility that the outcome would have been different if the defendant had been able to cross-examine Malchik and Griffin on the memorandum immediately after their testimony. First, the memorandum did not impeach Malchik’s testimony that the defendant deceitfully had concealed the New York offenses at the time of his arrest and confession or Griffin’s testimony that the defendant exhibited no remorse at that time. It showed only that, three years later, Malchik believed, on the basis of his contacts with the defendant in the interim, that the reason for his current reluctance to talk about the New York offenses was his desire to be prosecuted in Connecticut and executed as soon as possible. Accordingly, the evidentiary value of the memorandum was not significantly reduced because the defendant could not cross-examine Malchik and Griffin on it immediately. Second, the evidence was only weakly probative. The defendant’s willingness to lie about the New York offenses at the time of his arrest in order to ensure that he was executed in Connecticut as soon as possible did not necessarily indicate remorse or concern for the families of the victims. A desire to die is not the same thing as remorse. Moreover, the jury reasonably could have concluded that the defendant’s expressed desire to be executed was not a genuine explanation for his previous lies. Finally, if the defendant believed that it was crucial to confront Malchik and Griffin with the memorandum, he could have done so. We are not persuaded by his arguments that the jury was likely either to make improper assumptions about the reasons for recalling the witnesses or to reject the evidence arbitrarily. Accordingly, we conclude that the trial court properly determined that there was no Brady violation with respect to the Hamilton memorandum.
We next consider the defendant’s claim that the police statements and reports pertaining to the rape of K.G. and attempted rape of T.T. corroborated the defendant’s claim that he suffered from sexual sadism. He argues that the evidence corroborated the ritualistic, repetitive and progressive nature of his assaultive conduct and undermined the state’s theory that the defendant had learned how to fake the symptoms of sexual sadism during his incarceration after his arrest. The jury already had heard detailed descriptions of the New York offenses, however, and the state never had disputed that the defendant had a long and ghastly history of accosting vulnerable young women who happened to cross his path, dragging them to secluded spots, forcibly restraining them, forcing them to perform oral sex, raping them and, on eight occasions, strangling them to death. Rather, it contested the credibility of the defendant’s claims that his ability to control this conduct was significantly impaired and that he derived sexual pleasure from the act of strangulation. The details contained in the police reports did not add appreciably to the credibility of these claims. Moreover, the defendant himself argued that the evidence was not sufficient to establish that he had assaulted K.G. and, by implication, T.T. Accordingly, we conclude that there is no reasonable possibility that the admission of the police reports corroborating the defendant’s undisputed criminal history would have resulted in a different outcome.
Finally, we address the defendant’s claim that the police reports undermined the state’s contention that he had killed the victims to avoid detection. First, he argues that the reports showed that he had assaulted two women in New York but did not kill them to eliminate them as witnesses. The police records show, however, that T.T. escaped from her attacker after she screamed “rape” and a bystander ran to her rescue. The records also show that the person who raped K.G. approached her from behind and pulled her sweater over her face before he raped her. He explained to her that he did not want her to “get a look at him in case there were questions or an investigation later.” The rape occurred at about 10:30 p.m., when it was dark. The police complaint and report stated that K.G. “was unable to furnish [the police] with any description of the subject.” She was able, however, to give a general description of the build and clothing of a man she had seen immediately before the rape and to tell the police that the rapist was tall, slender and smooth-faced. Thus, the reports contained only very weak evidence, at best, that the defendant deliberately had allowed victims who could have identified him to escape with their lives. We conclude, therefore, that there is no reasonable possibility that the evidence could have resulted in a different outcome.
The defendant also claims that the evidence showing that D.N.T.’s body had been found fully clothed and that Malchik had told Hamilton that the defendant had redressed the body of a Connecticut victim corroborated his account that he had sexually assaulted Leslie S., whose body had been found fully clothed, and, therefore, supported his claim that he had killed her to satisfy his compulsive sexual urges and not to avoid detection. The following additional facts are relevant to this claim. Malchik testified at the second penalty phase that, immediately after the defendant was arrested in 1984, he had stated to the police on seventeen separate occasions that he had killed his victims to avoid being caught and sent to jail. The defendant also specifically had denied to the police at that time that he had sexually assaulted Leslie S. and stated that he had killed her because, having killed April B., he “couldn’t let her go.” The defendant told Zonana in 1985 that Leslie S. had been the only murder victim whom he had not raped and that he had not raped her because he had been unable to maintain an erection. He also told Zonana that he believed that this murder was “the one that’s going to hang me.” Still later, after the first penalty phase, the defendant told Grayson that he had sodomized Leslie S. before killing her and had been too ashamed to admit it to the police. Grayson testified that he did not believe that that account was inconsistent with the defendant’s statements to Zonana.
As we previously have indicated, immediately after his arrest, the defendant had confessed to the rape and murder of two additional victims, Debby T. and Tammy W., in Windham county. Evidence introduced by the defendant at the penalty phase indicated that the bodies of these victims had been found fully clothed.
We conclude that the materials pertaining to D.N.T. were cumulative of the evidence pertaining to the Windham county murder victims, which tended to support the defendant’s claim that the fact that Leslie S.’s body had been found fully clothed did not prove that she had not been raped and, therefore, undermined the state’s contention that the murders were solely motivated by the desire to avoid detection. In any event, if the defendant believed that the materials were crucial to his case, he had the opportunity to place them before the jury. He declined to do so. We conclude that there is no reasonable possibility that there would have been a different outcome if the defendant had had that opportunity at an earlier time.
We conclude that the trial court properly determined that the documents disclosed by the state to the defendant on March 16, 2000, were not material for Brady purposes. Accordingly, we conclude that the court properly denied the defendant’s request for a life sentence, a mistrial and exclusion of the evidence for rebuttal purposes.
VI
SUFFICIENCY CLAIMS
The defendant claims both that the evidence established a mitigating factor as a matter of law and that there was insufficient evidence to establish the aggravating factor. We address each claim in turn.
A
The Defendant’s Claim that the Evidence Established the Mitigating Factors as a Matter of Law
We first address the defendant’s claim that the evidence established his claimed statutory mitigating factors that: (1) “at the time of the offenses, [the defendant’s] mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution”; and (2) “at the time of the offenses, [the defendant’s] ability to conform his conduct to the requirements of law was significantly impaired but not so impaired as to constitute a defense to prosecution.”
Before turning to the evidence presented in support of. these mitigating factors, we set forth the applicable standard of review. “Although our review of the evidence in mitigation of the death penalty is a heightened one... we will not substitute our judgment or opinions for that of a reasonable jury.... Instead, we must determine whether the defendant’s proof of a mitigating factor was so clear and so compelling that the jury, in the exercise of reasoned judgment, could not have rejected it.” (Citations omitted.) State v. Breton, 235 Conn. 206, 229, 663 A.2d 1026 (1995) (Breton II).
In support of his claimed statutory mitigating factors, the defendant presented, among other evidence, testimony by Grayson that the defendant suffered from sexual sadism and that his ability to control his actions was significantly impaired; testimony by Stanley KapuchinsM, a consulting psychiatrist to the Connecticut department of correction, concerning his treatment of the defendant for sexual sadism; testimony by Robert Goodwin, also a consulting psychiatrist to the Connecticut department of correction, that the defendant suffered from sexual sadism, which significantly impaired his ability to control his actions; a report by Grayson in which he stated that Berlin had diagnosed the defendant as a sexual sadist and that James Merikangas, a physician specializing in neurology and psychiatiy, had diagnosed him with brain abnormalities; Miller’s report diagnosing the defendant as a sexual sadist and his letter stating that he could not testify that the defendant’s psychopathology was not mitigating; and the videotape of interviews given by the defendant to a British journalist in 1994. He also introduced testimony by James O’Brien, a pharmacologist, that Ritalin, a drug used by the defendant when he was a child, can impair development of impulse control.
Grayson testified at length about the defendant’s background and histoiy and the progression of his claimed mental impairment. Grayson was retained to evaluate the defendant in 1999. He testified that, during the course of his evaluation, he heard reports from a number of sources, including the defendant, that both of the defendant’s parents had physically and emotionally abused him when he was a child. Specifically, Grayson heard that the defendant’s father was cold and detached and beat the defendant with a board on a monthly basis. The defendant’s mother was described as punitive, detached, angry, cold, manipulative and unpredictable. She spanked her children excessively and unjustifiably and locked them out of the house even during the winter. The defendant told Grayson that, when he was a young child, his mother would administer enemas to him, deprive him of access to the toilet, and then berate him when he soiled himself. She was briefly hospitalized twice for mental illness during the defendant’s childhood.
As a young child, the defendant had exhibited several symptoms of emotional turmoil, including bedwetting, sleepwalking, talking in his sleep, recurrent nightmares and trichotillomania, which is the compulsive desire to pull out one’s hair. In early adolescence, the defendant was diagnosed with attention deficit disorder for which he was medicated with Ritalin. At that time, the defendant also started to have aggressive sexual fantasies and to engage in compulsive masturbation. At the age of fourteen, he was discovered rubbing his penis against a naked seven year old girl. He also had some form of sexual contact with his seven year old sister, for which he was hit with a board and forced to be his sister’s “slave” for a day.
Grayson testified that, while the defendant was at Cornell, he had had a long-term sexual relationship with one woman during his freshman and sophomore years and with a second woman during his junior and senior years. When the second woman told him that she previously had been raped, he began to develop violent sexual fantasies. Eventually, he was fantasizing about raping and killing women. At that point, he started to stalk women on the Cornell campus. By the end of his senior year, he had committed the rape of K.G., attempted rape of T.T. and rape-murder of D.N.T. After the murder, the defendant became extremely depressed and contemplated killing himself. Ultimately, he convinced himself that it would not happen again. Over the next three years, however, he assaulted and raped numerous women, eight of whom, including D.N.T., he strangled to death. The defendant was arrested in connection with two of these offenses, one of which had been committed in Illinois and the other in Ohio. He was convicted of unlawful restraint in connection with the Illinois incident and was fined $500 and sentenced to two years probation. He was convicted of assault in connection with the Ohio incident and was fined $1000 and sentenced to six months imprisonment.
Grayson testified that the defendant had told him that the strangulation of the women had been the most sexually gratifying part of the assaults. He also stated that he had obtained sexual gratification from degrading and humiliating the women. Grayson testified that he believed the defendant and that his history and symptoms were consistent with all of the literature on sexual sadism that he had read. He acknowledged that the defendant appeared to be quite intelligent, that he had had fifteen years since his arrest to learn about the symptoms of sexual sadism, and that there were serious inconsistencies between what the defendant had told him and what he had told the police in 1984. He concluded, however, that the defendant’s cooperation with the police, his ongoing consensual sexual relationships with a number of women during the period when he was committing the assaults, the lack of any other history of criminal activity, the fact that he had not killed Vivian S. to avoid detection after raping her, his willingness to undergo a dangerous medical treatment and his responsiveness to that treatment all tended to support the genuineness of the defendant’s account of his history and his symptoms.
Grayson testified that he agreed with the portion of Merikangas’ report that stated that the medications taken by the defendant had been very effective. He did not feel that he was competent to evaluate Merikangas’ opinion that the defendant’s compulsive conduct was the consequence of physical biological brain abnormalities. He was concerned, however, that Merikangas’ conclusion seemed to be based in part on an uncritical acceptance of everything that the defendant told him.
Kapuchinski testified that he treated the defendant from 1989 through 1994. In 1989, the defendant told him that he was engaging in compulsive masturbation involving fantasies of restraining and killing women and that he wanted to get rid of these obsessive thoughts. Kapuchinski believed that the defendant’s prior diagnosis of sexual sadism was appropriate. He told the defendant that his symptoms might be treatable with Depo-Provera, a medication that reduces systemic testosterone and decreases sex drive. He also advised the defendant that the medication could cause any of numerous adverse side effects. At some point in 1989, the defendant started receiving the medication and, according to him, it controlled his fantasies for a time. In January 1990, the defendant told Kapuchinski that he was again having violent fantasies, and the dosage was increased. After receiving the increased dosage, the defendant reported that the violence of the fantasies had abated somewhat, but the fantasies had not stopped. The dosage was increased again in April, 1990. By November, 1991, the defendant reported having no violent sexual fantasies. In 1992, routine tests showed that the defendant had developed an abnormal liver function. The Depo-Provera was discontinued at that time, and the defendant later reported that the violent sexual fantasies had returned. In 1994, the defendant started taking another medication, Depo-Lupron, and he later reported that fantasies had again abated.
Kapuchinski testified that the successful treatment of the defendant with medication confirmed the diagnosis of sexual sadism. He also testified that he believed that the defendant was genuine in his reporting of his symptoms. Finally, he testified that, based on a reasonable medical probability, the defendant’s repetitive assaultive behavior was the result of a combination of some congenital biological trait and his upbringing.
Goodwin testified that he had treated the defendant at various times between 1984 and 1987 and between 1990 and 1998. He agreed with the diagnosis of sexual sadism that had been made by other psychiatrists between 1987 and 1990. His agreement was based in part on the defendant’s willingness to undertake radical pharmacological treatment that amounted to chemical castration and that had unpleasant and even highly dangerous side effects. Goodwin also testified that the defendant’s statements to police that he had killed his victims in order to avoid detection were not inconsistent with his claim that he had killed them to achieve sexual gratification, because he could have killed for both reasons. He testified that, in his experience, people often have difficulty discussing sexual issues. The defendant eventually told Goodwin about his obsessive sexual fantasies, however, which the defendant described as “living with a noisy rambunctious roommate twenty-four hours a day, from whom there was no escape.” Goodwin believed the defendant because of the consistency of his reports to the various psychiatrists and because of his willingness to undertake a dangerous treatment program. Goodwin also believed that there was an impulsive and compulsive aspect to the defendant’s assaultive behavior that was progressive and ultimately culminated in apparent indifference to the risk of being caught. In Goodwin’s opinion, within a reasonable medical probability, the defendant’s sexual sadism significantly impaired his ability to control his actions.
The defendant stated in the videotaped interview with the British journalist that, when he had assaulted his victims, there had been “a gradual building up and then a coming back down” of his inability to control his acts. He did not believe that he was in control during the assaults, or that he could have stopped. His perception of what was occurring was “like watching an old film” that was spliced together and would “jump.” He felt that he “wasn’t a hundred percent there.” It was not until the victims were dead that he fully realized that he had hurt and killed them. The defendant also stated that, when he started taking the Depo-Provera, it “was like a blind man being given eyes.” The medication allowed him to get away from “the obnoxious roommate” and become “human again.” When he was forced to stop taking the medication because of the abnormal liver function, it was “the toughest year [he] ever had to go through” because he started having thoughts about hurting women again. In particular, he fantasized about hurting a prison nurse who had been kind and helpful to him.
The state relied in part on its cross-examination of the defendant’s witnesses to rebut the claimed statutory mitigating factors. Grayson testified on cross-examination that one of the discrepancies between the defendant’s account to him of the crimes and his confession to the police was that he did not tell Grayson that he had become angry and “blew up” at Robyn S. and Wendy B. before attacking them. He acknowledged that a rape committed out of anger was not necessarily sexually sadistic. He also acknowledged that a murder committed to avoid detection would not be consistent with sexual sadism. Grayson indicated that the defendant had told him that he had read articles about sexual sadism that he had received from Berlin. Grayson also acknowledged that a criminal defendant “may well have a very real motive [for it] to appear” that his crimes resulted from a mental disorder.
The state also confronted Grayson with the videotaped interviews of the defendant by Zonana, which Grayson had never seen before. The defendant told Zonana that he had not raped Leslie S. and stated, “That’s the one that’s going to hang me.” The defendant also told Zonana that he “usually had an orgasm fairly quickly, and that was it. Then I strangled them and killed them. I think—I think that helped me work up to get mad too, more, because I wasn’t—wasn’t satisfied, like, you know, I don’t think it really satisfied me. If I want sex, I sure as hell wouldn’t go for something like that. I had much better sex at home.” Grayson acknowledged that it was possible that the defendant killed the victims out of anger and not for sexual gratification. He also acknowledged that that conclusion was bolstered by the defendant’s statement to Zonana that the rape and murder of April B. and Leslie S. had been preceded by “a hell of a fight” with his girlfriend.
The state also asked Grayson about the defendant’s description to Zonana of the New York crimes and his statement that he had not told Walter Borden, a psychiatrist, about those crimes immediately because they had preceded his parents’ divorce and he had “first blamed everything on the divorce.” Grayson acknowledged that nothing in the defendant’s description of those crimes suggested that he had obtained sexual gratification from the act of strangulation. He also acknowledged that the defendant’s lack of truthfulness about committing the crimes would justify a raised level of skepticism about his other claims. The state also asked Grayson about the defendant’s statement to Zonana that he had not told his psychiatrists or lawyers about the crimes he committed in other states because he did not want to be prosecuted in those states and still hoped “someday, maybe if [he was] really lucky, [to] be out of this slum hole.” Grayson acknowledged that that statement showed that the defendant could be manipulative in order to achieve his own ends.
In support of its rebuttal case, the state also presented testimony by Michael Lajoie, an officer with the department of correction, who had had frequent contact with the defendant when he was imprisoned at the Connecticut correctional institution in Somers after he was sentenced to death in the first penalty phase in 1987. The defendant was under “one-to-one” supervision for about one year and his activities were recorded in a log book every fifteen minutes. Lajoie testified that, if the defendant had masturbated during that period, a report would have been made and that he knew of no such reports.
The defendant contends that, in light of this evidence, no reasonable jury could have rejected his claimed statutory mitigating factors. He points out that the state presented no expert testimony to contradict the testimony of his expert psychiatrists that he suffered from sexual sadism and that his ability to control his conduct was significantly impaired.
We repeatedly have held, however, that the state is not required to offer independent evidence to rebut the existence of mitigating factors, but “can weaken the force of the defendant’s presentation by cross-examination and by pointing to inconsistencies in the evidence.... Furthermore, the general rule that a [finder of fact] is free either to accept or reject, in whole or in part, the evidence presented by the defendant’s witnesses... has particular applicability where, as here, the state has vigorously contested the force of that testimony by cross-examination.... [T]he credibility of the defendant’s expert and lay witnesses, and the weight to be given to their testimony regarding the existence of mitigating factors, [moreover] is a matter committed to the sound judgment and common sense of the trier of fact.” (Citations omitted; internal quotation marks omitted.) State v. Cobb, 251 Conn. 285, 490-91, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000) (Cobb II).
We conclude that, in this case, the evidence in support of the claimed statutory mitigating factors was not so compelling that the jury could not reasonably have rejected it. As the trial court aptly stated, the credibility of the defendant’s representations to his psychiatric experts and others was “the crux of the case.” There was ample evidence that the defendant had been deceitful and inconsistent in his accounts to the police, his lawyers and his psychiatrists. For example, the defendant originally concealed from the police the fact that he had committed two murders outside the state of Connecticut and, after those murders ultimately were revealed, gave conflicting explanations for his deception; he told the police and Zonana that he had not raped Leslie S. but, after the first penalty phase, told Grayson that he had sodomized her; he told the police that he had killed the victims to avoid detection but, again after the first penalty phase, told Grayson that strangulation was the ultimate sexual gratification for him; he told the police that he “blew up” at certain victims but did not reveal to Grayson that he had been angry with them; and he told his psychiatrists that he compulsively masturbated but never was seen masturbating by prison personnel. The jury was not required to accept the defendant’s explanations for these discrepancies and reasonably could have concluded that he had lied and selectively revealed the truth and that his motive for doing so was self-preservation.
There was also evidence that the defendant had had the motive and opportunity to educate himself about the symptoms of sexual sadism and that, as his accounts of his background and the offenses changed over the course of time, they increasingly reflected those symptoms. Moreover, even if the jury accepted the evidence that the defendant suffered from sexual sadism, it reasonably could have rejected the opinions of his experts that his ability to restrain himself from acting out his sexually sadistic fantasies was significantly impaired. Those opinions were the product of subjective judgment and were based in large part on unverifiable reports by the defendant as to his own state of mind. Accordingly, we reject the defendant’s claim that his claimed statutory mitigating factors were established as a matter of law.
We next consider the defendant’s claim pertaining to his claimed nonstatutory mitigating factors. Before reviewing the evidence in support of these mitigating factors, we briefly review the applicable law. Under General Statutes (Rev. to 1987) § 53a-46a (d), the sentencer must engage in a two step process to determine whether the defendant has proved a nonstatutory mitigating factor. First, it is asked to “determine whether a particular factor concerning the defendant’s character, background or history, or the nature and circumstances of the crime, has been established by the evidence... .” General Statutes (Rev. to 1987) § 53a-46a (d). Then, as to any such facts proven, the sentencer “shall determine further whether that factor is mitigating in nature, considering all the facts and circumstances of the case... .” General Statutes (Rev. to 1987) § 53a-46a (d). The standard for our review of both steps in this process is the same as for statutory mitigating factors, i.e., whether the proof “was so clear and so compelling that the [sentencer], in the exercise of reasoned judgment, could not have rejected it.” (Internal quotation marks omitted.) State v. Breton, 264 Conn. 327, 369-70, 824 A.2d 778, cert. denied, 540 U.S. 1055, 124 S. Ct. 819, 157 L. Ed. 2d 708 (2003) (Breton III).
The defendant claimed fourteen nonstatutory mitigating factors. See footnote 7 of this opinion. He called several witnesses to testify as to his productive postincarceration conduct, including his good behavior in prison, his participation in a prison program to help the blind, his publication of numerous articles about sexual sadism and the death penalty, his correspondence with other people about treatment options for sexual sadism, and his willingness to be a subject of study to increase psychiatric knowledge of violent sex offenders. He also called numerous witnesses to testify that he had expressed remorse and concern for the families of his victims, he had attempted to kill himself and seemed to welcome death, and he had attempted to enter a stipulation seeking execution in order to spare the victims’ families the pain of a penalty hearing. He also presented evidence in support of his claimed mitigating factors that he had worked hard throughout his life and put himself through college with his earnings, he had cooperated with police, he was serving two consecutive life sentences for the two Windham county murders, and his religious faith had grown while he was in prison.
In rebuttal, the state presented, among other evidence, testimony by Robert Bardelli, a detective with the state police, that he had escorted the defendant to court for sentencing on his plea of nolo contendere to the two Windham county murders and that the defendant appeared to be carefree, nonchalant and easygoing. The defendant asked Bardelli if he would shoot him if he tried to run away and, when Bardelli failed to answer, “smirked” at Bardelli and said, “You don’t have to worry about it, I’m going to write a book and give it to my father and become a millionaire.” The state also entered into evidence a newspaper article authored by the defendant in which he wrote, “Part of the reason I can’t forgive myself is that I have never really felt any remorse toward the women I have killed.” The defendant also wrote, however, that he recognized the pain suffered by the victims’ families. The state presented testimony by Lajoie that the defendant was cunning and manipulative with the prison staff and appeared to enjoy his celebrity status.
After careful review of the record, we are persuaded that the evidence in support of the claimed nonstatutory mitigating factors was not so clear and compelling that the jury could not have rejected it. Even if it is assumed that one or more of the factors were factually proven, the evidence left ample room for the jury to determine that, “considering all the facts and circumstances of the case,” any such proven facts did not “extenuate or reduce the degree of [the defendant’s] culpability or blame for the offense or... otherwise constitute a basis for a sentence less than death.” General Statutes (Rev. to 1987) § 53a-46a (d). Accordingly, we reject this claim.
B
The Defendant’s Claim that There Was Insufficient Evidence in Support of the Aggravating Factor
The defendant next claims that there was insufficient evidence that the capital offenses were committed in an especially cruel, heinous or depraved manner within the meaning of General Statutes (Rev. to 1987) § 53a-46a (h) (4). We disagree.
The defendant makes two arguments in support of this claim. First, he argues that, as a matter of statutory interpretation, § 53a-46a (h) (4) requires the state to prove beyond a reasonable doubt that the defendant intentionally inflicted extreme pain or torture beyond that necessarily accompanying each of the elements of each capital offense of which he was convicted and that it failed to do so. Second, he claims that, even if the statute does not require each element of the offense to be accompanied by intentional conduct resulting in extreme pain or torture, the evidence was not sufficient to establish that the murders were committed in an especially cruel, heinous or depraved manner.
With respect to the first claim, we note that the defendant did not submit a request to charge the jury that the state must prove that each component of each capital offense, i.e., both the kidnapping and the murder for the kidnap-murder charges and both the sexual assault and the murder for the sexual assault-murder charges, was committed in an especially cruel, heinous or depraved manner. Nor has he provided any authority for the proposition that the state or federal constitution requires such a charge. Accordingly, this claim was not preserved and is not reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Even if the claim were preserved, however, it is meritless. This court’s decision in State v. Courchesne, 262 Conn. 537, 551-59, 816 A.2d 562 (2003), that the state need prove only that one murder in a multiple murder is aggravated, was based in large part on its interpretation of subdivision (5) and what had been subdivision (7) but is now subdivision (6) of § 53a-54b, that the state need prove only that the murder in a Mdnap-murder or sexual-assault murder was aggravated in order to establish the aggravating factor. Accordingly, we reject this claim.
We next address the defendant’s claim that the evidence presented by the state was not sufficient to prove that he committed the murders in an especially cruel, heinous or depraved manner. “The standard governing our review of sufficiency of evidence claims is well established. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts... impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Francis, 228 Conn. 118, 127, 635 A.2d 762 (1993). “In a review of the sufficiency of the evidence to support the jury’s finding of an aggravating factor under § 53a-46a (h) (4)... the focus must be on whether the state has proved, beyond a reasonable doubt, that the defendant engaged in intentional conduct that inflicted extreme physical or psychological pain or torture on each of his victims above and beyond that necessarily accompanying the underlying killing.” Ross II, supra, 230 Conn. 262. “[B]ecause of the seriousness of any death penalty determination, we will subject a finding of an aggravating factor to the same independent and scrupulous examination of the entire record that we employ in our review of constitutional fact-finding, such as the voluntariness of a confession... .” (Citations omitted.) Id., 259.
The jury reasonably could have found the following facts. With respect to the murder of Wendy B., the defendant told police that she had screamed and fought after he grabbed her and that he threatened to hurt her if she did not stop. She complied with his demand and pleaded with him not to hurt her. He then led her into the woods, raped her and told her to turn over onto her stomach. She continued to struggle as he strangled her to death.
Malchik testified that the defendant had told him that his hands had cramped as he strangled both Wendy B. and Robyn S. and that he had had to reapply his grip. Both victims were “moving and writhing” as he strangled them and the defendant stated that he had found Robyn S. to be “strong.” The defendant also had told police that Robyn S. had been “a hundred percent unwilling” to engage in sex but that he had been able to force her because he was “bigger and stronger” and had intimidated her.
With respect to April B. and Leslie S., the defendant stated to the police that he had picked them up while they were hitchhiking. They asked him to drive them to a certain gas station, but when they arrived there, the defendant refused to stop the car. At that point, April B. pulled a steak knife out of her pocket and threatened to stab the defendant if he did not stop. The defendant stated that he yelled at her and nearly drove off the road, at which point she “panicked” and gave him the knife. He then drove to a remote area, parked the car and told both victims to get in the backseat. He tied up Leslie S. with an elastic belt she had been wearing. He then took April B. out of the car. During the incident, April B. was “mouthy” and struggled with the defendant, but Leslie S. urged her “to do exactly everything he wanted [her] to do.” He forced April B. to remove her jeans and cut the jeans into strips with the steak knife. He tied her hands and feet with the strips and then returned to Leslie S. and tied her feet. The jury heard evidence that he then placed Leslie S. in the trunk of the car. At that point, he raped April B. and then strangled her to death. The jury heard evidence that the defendant did not tell Leslie S. that he had killed April B. It also saw a videotape in which the defendant told a journalist that he put April B.’s body in the front seat of the car after killing her. He then took Leslie S. out of the car, placed her on the ground and strangled her.
The jury also heard evidence that the defendant’s intention was to degrade, to humiliate and to subjugate his victims when he forced them to disrobe and sexually assaulted them and that he derived satisfaction from the act of strangulation. Grayson reported that the defendant had told him: “If I shot them in the head or stabbed them it would’ve been out of character with the power and degradation.... Also, shooting them would be too quick.” The jury also heard evidence that the defendant had acknowledged that all of his victims had suffered and that he had “sadistically brutalized and murdered” them.
We conclude that the jury reasonably could have determined that the cumulative effect of this evidence established beyond a reasonable doubt the existence of an aggravating factor as defined by § 53a-46a (h) (4) for each of the six capital felony counts with which the defendant was charged. As we noted in Ross II, supra, 230 Conn. 262-63, “[t]he jury reasonably could have found, for each of the defendant’s four victims in the circumstances of these cases, that their manual strangulation by the defendant was an especially cruel way of inflicting death.” The jury also could have inferred that the defendant chose that method of killing for that very reason. The jury also reasonably could have found that, “[i]n the cases of Wendy B. and Robyn S., the defendant’s cruelty was exacerbated when their strangulation was prolonged by the cramping of the defendant’s hands, which caused him to stop before resuming the strangulation.” Id., 263. Although the jury heard evidence at the second penalty phase that the defendant had denied stopping mid-killing and then reapplying his grip, the jury was not required to credit that evidence.
Moreover, from the evidence presented at the second penalty phase hearing, the jury reasonably could have inferred that the defendant sexually assaulted all of the victims, including Leslie S. As we stated in Ross II, “the jury reasonably could have inferred that the victims’ terror would have been increased by the defendant’s sexual assaults upon them.” Id. If the jury determined that the defendant had not sexually assaulted Leslie S., it “reasonably could have found that she would have been terrified by sitting in the defendant’s car, bound hand and foot, and coming to understand that her best friend April B., was being sexually abused and then killed.” Id. Although there was evidence that the defendant had not told Leslie S. that he had killed April B., the jury reasonably could have found that, as she waited, bound hand and foot, in the trunk of the defendant’s car and listened to April B.’s struggles and protests, Leslie S. knewthefate ofher friend without having been informed of it by the defendant.
Finally, as we did in Ross II, we reject the defendant’s claims that his conduct was not “especially heinous, cruel or depraved,” as a matter of law, “because his conduct did not go beyond that which is necessarily encompassed by the capital felonies of which he was convicted.” Id. On the basis of the evidence presented at the second penalty phase, “the jury reasonably could have found an aggravating factor for each of these capital felony counts [with respect to Wendy B. and Robyn S.] because of the proof of an added element from the other [capital] felony count.... With respect to April B. [and Leslie S., their] sexual assault by the defendant was likewise an aggravating factor above and beyond the kidnapping and the murder that were elements in the capital felony as charged.” (Citation omitted.) Id., 264. Even if the jury determined that the defendant had not sexually assaulted Leslie S., it reasonably could have found that “an aggravating factor of special cruelty was the exacerbated psychological anguish inflicted upon her by her own bondage and her fear for the fate of her best friend.” Id. Accordingly, we reject this claim.
VII
JURY CHARGE ISSUES
The defendant next challenges certain juiy charges given by the trial court. As a preliminary matter, we set forth the standard of review governing each of these claims. “The standard of review for constitutional claims of improper jury instructions is well settled. In determining whether it was... reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case.... The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.... The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Respass, 256 Conn. 164, 182, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001). We address each of the defendant’s claims in turn.
A
The defendant claims that the trial court’s jury charge and the language of the special verdict form submitted to the jury pursuant to § 53a-46a (e) deprived him of his constitutional right to a unanimous jury verdict on the mitigating factors. We disagree.
We first address the state’s claim that this issue was not preserved for review. The state argues that the defendant conceded at trial that the verdict form conformed to applicable law and was proper. We conclude that we need not determine whether the claim was preserved because, in light of “heightened reliability demanded by the Eighth Amendment in the determination whether the death penalty is appropriate”; (internal quotation marks omitted) State v. Daniels, 207 Conn. 374, 389, 542 A.2d 306 (1988); the claim is reviewable pursuant to State v. Golding, supra, 213 Conn. 233. We also conclude, however, that the claim fails under the third prong of the Golding analysis.
This court concluded in State v. Daniels, supra, 207 Conn. 374, that, in light of the “heightened reliability demanded by the Eighth Amendment in the determination whether the death penalty is appropriate”; (internal quotation marks omitted) id., 389; “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.” Id., 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. ... 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.” (Citation omitted.) Breton II, supra, 235 Conn. 236.
In Breton II, the defendant challenged a special verdict form that provided, as one of two alternative answers to the question whether the defendant had proved a mitigating factor, “No, we the jury do not unanimously agree that the [defendant proved this mitigating factor by a preponderance of the evidence.” (Emphasis in original; internal quotation marks omitted.) Id., 237. The defendant argued that the language was ambiguous as to whether the jury must unanimously reject each mitigating factor or whether it must reject each factor if it merely was unable to agree as to whether the defendant had proved it. Id., 238. We agreed that the form could have misled the jury to believe that it could reject a mitigating factor even if one or more jurors had concluded that the factor had been proven and, accordingly, we reversed the verdict. Id., 239. We also stated that a special verdict form using the language, “ ‘No, we unanimously conclude that the defendant has not proved the existence of a mitigating factor,’ ” would have sufficed to protect the defendant’s right to a unanimous finding. Id., 240 n.31.
The special verdict form in the present case provided as follows for each of the six capital felony counts: “DID THE DEFENDANT MICHAEL B. ROSS PROVE BY A PREPONDERANCE OF THE EVIDENCE ANY MITIGATING FACTOR:
“_YES. After having considered all of the mitigating factors listed by the defendant and any other suggested by the evidence, we, the juiy, unanimously find that the defendant HAS PROVED by a preponderance of the evidence the existence of a mitigating factor.
* * *
“_NO. After having considered all the mitigating factors listed by the defendant and any others suggested by the evidence, we, the jury, unanimously find that the defendant HAS NOT PROVED by a preponderance of the evidence the existence of any mitigating factors.”
The verdict form provided signature lines for each of the twelve jurors after each finding. Each of the jurors signed the form indicating that they unanimously agreed that the defendant had not proved any mitigating factor for each of the six counts.
Inexplicably, the defendant claims that “[t]he special verdict form in this case is phrased identically to the one at issue in Breton [II].” To the contrary, the verdict form in this case conforms to the language that this court explicitly endorsed in Breton II. The defendant has not explained, and we cannot conceive, how this language indicating that the jury unanimously had agreed that the defendant had not proved any mitigating factor could have misled a reasonable jury to believe that, if any of the jurors found that a mitigating factor had been proven, all of the jurors nevertheless should sign the verdict form. Accordingly, we conclude that the form adequately protected the defendant’s right to a unanimous jury verdict. Because we conclude that the special verdict form was not defective, we also reject the defendant’s claims that the trial court’s instructions to the jury on this issue, which essentially reinforced the language of the special verdict form, “exacerbated” the claimed error.
The defendant also claims that, under Mills v. Maryland, 486 U.S. 367, 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), the trial court was required to instruct the jury that if it was unable to answer “yes” to the question of whether the defendant had proved a mitigating factor, it did not have to answer “no.” See Mills v. Maryland, supra, 378-79 n.11 (noting that trial court had not instructed jury that if it could not reach unanimity to answer “yes” to question whether defendant had established mitigating factor, it could do something other than answer “no”). The verdict form found defective in Mills had the same defect as the verdict form in Breton II, however, in that it did not unambiguously indicate that the answer “no” had to be predicated on the unanimous finding of the jury that the defendant had not proved any mitigating factor. Instead, the form improperly raised “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.” Id., 378. Nothing in Mills suggests that, if a verdict form unambiguously provides that, in order to answer “no,” the jury must unanimously find that the defendant had not proved any mitigating factor, the court is required to instruct the jury that, if it does not unanimously find that no mitigating factor has been proved, it is not required to answer “no.” Indeed, merely to state this proposition is to reveal its absurdity. Confronted with such a verdict form, no reasonable jury could believe that it was permitted, much less required, to answer “no” in the absence of a unanimous finding that no mitigating factor had been proved. Therefore, having concluded that the special verdict form in this case unambiguously informed the jury of the requirement for unanimity, we reject this claim.
The defendant also appears to claim that the verdict form and jury instructions were defective because they did not inform the jury what would happen in the event that they were unable to come to a unanimous agreement as to whether a mitigating factor had been proved. In the complete absence of any claim that an instruction on what would happen if the jurors were unable to come to a unanimous agreement was necessary because the jury had been misled on that issue, we disagree with the defendant’s claim. A requirement that the jury be instructed on the consequences of a deadlock has no basis either in our statutes or in the constitution. See Jones v. United States, 527 U.S. 373, 381-82, 119 S. Ct. 2090, 144 L. Ed. 2d 370 (1999) (rejecting claim that eighth amendment requires that jury in capital sentencing proceeding be instructed in consequences of deadlock). Accordingly, we reject this claim.
B
The defendant claims that the trial court improperly instructed the jury on the meaning of reasonable doubt in violation of his rights to due process and a jury trial under the federal and state constitutions. Specifically, he challenges the trial court’s instruction that reasonable doubt is not “a doubt suggested by ingenuity of counsel .... [It] is such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance. ... It is ... a real doubt, an honest doubt ... a doubt that is honestly entertained and is reasonable in light of the evidence after a careful comparison and careful examination of all the evidence.” The state argues that the defendant’s challenges to the trial court’s instructions on the burden of proof were not preserved because the defendant failed to object to the instructions at trial. The defendant counters that the claims were preserved by his submission of a request to charge on the issue of burden of proof. We agree with the state.
“It is well settled... that a party may preserve for appeal a claim that an instruction... was... defective either by: (1) submitting a written request to charge covering the matter; or (2) taking an exception to the charge as given.” State v. Ramos, 261 Conn. 156, 170, 801 A.2d 788 (2002); see also Practice Book § 16-20. “[T]he purpose of the [preservation requirement] is to alert the court to any claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials.” (Internal quotation marks omitted.) State v. Ramos, supra, 170; see also Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977) (“[o]rderly procedure requires that the respective adversaries’ views as to how the jury should be instructed be presented to the trial judge in time to enable him to deliver an accurate charge and to minimize the risk of committing reversible error”). Thus, the essence of the preservation requirement is that fair notice be given to the trial court of the party’s view of the governing law and of any disagreement that the party may have had with the charge actually given.
We have recognized that “a request to charge addressed to the subject matter generally, but which omits an instruction on a specific component, [does not preserve] a claim that the trial court’s instruction regarding that component was defective.” State v. Ramos, supra, 261 Conn. 170-71. Similarly, we now conclude that a request to charge that provides a party’s version of generally applicable law, such as the burden of proof, on which the court is bound to instruct the jury regardless of whether a charge is requested, does not necessarily preserve a claim that the instruction actually given on that issue was defective. The trial court should not be required to choose between adopting a party’s presumably self-serving version of the law wholesale and relinquishing any expectation that it will be notified by that party of errors in the charge actually given.
We note that the defendant’s request to charge in the present case, together with two supplemental requests to charge filed by him, comprised some seventy-two typewritten pages, several pages of which were single spaced, covering virtually every aspect of the case. It would be unfair, unrealistic and counterproductive to conclude that the filing of such a request to charge absolved the defendant of any obligation to take exception to the charge as given in order to preserve an issue for appeal. Accordingly, we conclude that the request to charge, which addressed the applicable burden of proof generally and which alerted the court to specific language that the defendant would find objectionable, but which did not address the language that he now challenges, was not sufficient to preserve this claim. Nor can the defendant prevail under State v. Golding, supra, 213 Conn. 233, because he cannot demonstrate that the challenged instructions were constitutionally infirm. See State v. Lemoine, 256 Conn. 193, 201-202, 770 A.2d 491 (2001) (Rejecting constitutional challenge to instruction that “reasonable doubt is a doubt which is something more than a guess or a surmise. It is not a conjecture or a fanciful doubt.” [Internal quotation marks omitted.]); State v. Velasco, 253 Conn. 210, 249, 751 A.2d 800 (2000) (rejecting constitutional challenge to instruction that reasonable doubt is “a real doubt, an honest doubt, a doubt which has its foundation in the evidence or lack of evidence” [internal quotation marks omitted]); State v. Griffin, 253 Conn. 195, 204-205, 749 A.2d 1192 (2000) (rejecting constitutional challenge to instruction that reasonable doubt is “such a doubt, as in serious affairs that concern you, you would heed, that is, such a doubt as would cause reasonable men and women to hesitate to act in matters of importance” [internal quotation marks omitted]); State v. Delvalle, 250 Conn. 466, 475, 736 A.2d 125 (1999) (rejecting claim that “ingenuity of counsel” language is constitutionally infirm); State v. Davis, 76 Conn. App. 653, 677, 820 A.2d 1122 (2003) (rejecting constitutional challenge to instruction that jury must engage in “fair comparison and careful examination of the entire evidence”). Accordingly, we reject this claim.
C
The defendant claims that the trial court improperly charged the jury that the defendant was required to prove that his “ability to control his conduct to the requirements of the law was significantly impaired,” rather than “his ability to conform his conduct.” (Emphasis added.) See General Statutes (Rev. to 1987) § 53a-46a (g) (2). He argues that the instruction unlawfully added to his burden of proof. The state argues that the claim was not preserved because the defendant did not take exception to this instruction. He did, however, file a specific request to charge on the issue. Accordingly, we conclude that the claim was preserved. We also conclude, however, that it is meritless.
In support of his claim, the defendant points out that Webster’s Third New International Dictionary defines “control” as “to exercise restraining or directing influence over... have power over”; and defines “conform” as “to be obedient: comply... act in accordance with prevailing standard or custom.” Thus, the defendant implicitly claims that, under these definitions, it would have been possible for the jury to find that, at the time of the offense, the defendant’s ability to “control,” i.e., “to exercise restraining or directing influence over,” his conduct within the requirements of the law was not impaired even though his ability to “conform,” his conduct to the requirements of the law, or “to be obedient [to or] comply” with those requirements, was impaired.
Although we recognize that the trial court generally should use the language of § 53a-46a (g) (2) in instructing the jury on the statutory mitigating factor, we cannot conclude that it is reasonably possible that the court’s minor misstatement, involving such a tenuous semantic distinction, could have misled the jury. This is especially so under the circumstances of this case. The defendant’s entire theory of mitigation was that his ability to conform his conduct to the governing law was impaired because his ability to control his sadistic impulses was impaired. Indeed, defense counsel stated at closing argument that “the question for [the jury], again on the issue of control, is whether or not [the defendant’s] ability to control was significantly impaired.... But it’s not [that] he absolutely had no control, the question was, was his ability to control significantly impaired?” Accordingly, we reject this claim.
D
The defendant claims that the trial court improperly used a verdict form that did not indicate for each nonstatutory mitigating factor whether the jury had found the factual basis for the mitigating factor proved. He argues that the alleged defect rendered the jury’s findings unreviewable. We recently rejected an identical claim in State v. Reynolds, supra, 264 Conn. 138, and see no reason to reconsider that decision here. Accordingly, we reject this claim.
E
The defendant claims that the trial court improperly failed to give his requested charge that he would never be released from prison if the jury did not return a verdict of death. In support of this claim, he argues that he had a due process right that the jury be informed that it was not necessary to sentence him to death in order to protect society from him. See 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). We conclude that, under the circumstances of the present case, this claim fails.
The following facts and procedural histoiy are relevant to our resolution of this claim. The defendant requested a jury charge that “[c]onsecutive life sentences in the present cases may ... be imposed consecutively to the 120 years for a total of 480 years. As a consequence of consecutive life sentences, [the defendant] will be incarcerated until he dies in prison.” As part of its instructions on the aggravating factor, the trial court instructed the jury that, if it failed to find an aggravating factor, “the defendant will be sentenced to life imprisonment without the possibility of release... .” On several other occasions, it instructed the jury that a finding that no aggravating factor had been proved or that a mitigating factor had been proved would result in a sentence of “life imprisonment” on the applicable count or counts. The defendant did not take an exception to these instructions.
Dining jury deliberations, the jury requested that the court reread its instructions on the aggravating factor. After the instructions were read to the jury by the court clerk, the trial court and the parties realized that the court erroneously had instructed the jury that the defendant would be sentenced to “life, without the possibility of release.” Defense counsel argued that the court should not correct the instructions. He stated that “[o]ur position would be do nothing for a couple [of] good reasons. The first reason is it’s clear throughout the charge that we’re talking about life imprisonment, not life without release. The second reason is we all kind of agree, it makes no difference, even [the state’s attorney] in the postremand transcripts of 1998 indicated life without the possibility of release in this case .... I don’t think this verdict is going to turn one way or another based on the wording that was isolated in one paragraph that we all forgot to delete.... We all know [the defendant] is never going to go home. We all agree with that. I think we should leave it alone.”
We conclude that any claim that the jury could have been misled by the court’s instructions to believe that the defendant could be released from prison was waived by the defendant when he implicitly conceded that, although the charge actually given was erroneous, it was at least as favorable to him as the charge that he had requested, and, when he expressly declined to request a corrective instruction. Accordingly, we reject this claim.
F
The defendant claims that the trial court improperly failed to instruct the jury that he was not required to establish a causal nexus between his impaired mental capacity and the commission of the offenses. We reject this claim.
Whether § 53a-46a (g) (2) requires a nexus between the mental impairment and the commission of the offense is a question of statutory interpretation over which our review is plenary. See State v. March, 265 Conn. 697, 705, 830 A.2d 212 (2003). The defendant argues that the language of § 53a-46a (g) (2) merely requires the defendant to establish that “at the time of the offense ... his mental capacity was significantly impaired” and does not require a causal nexus between that impairment and the commission of the offense. The state counters that the language and structure of § 53a-46a (g) indicate that the mitigating factor of subdivision (2) must be tied to the commission of the offense. We agree with the state.
First, we note that all of the other statutory mitigating factors set forth in § 53a-46a (g) are predicated on the defendant’s reduced moral culpability for committing the offense. We also note that the deterrent purpose of the death penalty statute would not be advanced by imposing the penalty on defendants who can establish any of these factors. See Atkins v. Virginia, 536 U.S. 304, 320, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (“the same cognitive and behavioral impairments that make these defendants less morally culpable... also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information”). Thus, the general thrust of the statute as a whole persuades us that the legislature intended to recognize as mitigating, per se, only those factors that tend to reduce a defendant’s moral culpability for the offense and make it unlikely that the threat of execution would serve as an effective deterrent.
Second, § 53a-46a(g) (2) requires that the impairment to the defendant’s mental capacity exist “at the time of the offense” and provides that, under both prongs of the subsection, the defendant’s mental state need not be “so impaired ... as to constitute a defense to prosecution... .” This strongly suggests that both prongs constitute lesser degrees of the types of mental impairment that must be proved in order to establish a complete defense to the prosecution under General Statutes § 53a-13 (a), i.e., that at the time of the offense, the defendant had a substantial cognitive or volitional disability that had a causal nexus to his commission of the offense. In other words, the phrase “mental capacity” as used in § 53a-46a (g) (2) is not an open-ended term referring to any and all types of mental function, but refers specifically to the defendant’s ability, at the time of the offense, to understand the wrongful nature and the consequences of his conduct. Accordingly, we conclude that the legislature’s intent in enacting § 53a-46a (g) was to specify the factual circumstances under which a defendant’s moral culpability for committing the offense is reduced.
In the present case, the defendant asked the trial court to instruct the jury that it could find: (1) that his mental capacity was significantly impaired because he suffered from sexual sadism; (2) that his sexual sadism did not cause him to commit the offenses; and (3) that the sexual sadism was, nevertheless, mitigating per se. In other words, the defendant wished to inform the jury that it could find that: (1) his predilection for kidnapping, raping and strangling vulnerable young women constituted a significant impairment to his mental capacity; (2) this mental impairment did not significantly affect his ability to understand the wrongfulness of his conduct or to refrain from engaging in it; and (3) the impairment, nevertheless, met the requirements of § 53a-46a (g) (2). Even without the foregoing statutory analysis, it is difficult to see how such a result could be anything but bizarre. We cannot conceive in what possible sense such a mental condition could be understood as mitigating. In any event, our conclusion that, in order to establish either prong of the mitigating factor of subdivision (2) of § 53a-46a (g), the defendant must show that his mental impairment had a causal nexus with the offense, thereby reducing his moral culpability, leaves no doubt that this claim is meritless. A significant mental impairment that does not affect the defendant’s ability to understand the consequences or wrongfulness of his conduct or to refrain from engaging in it does not have a causal connection to or reduce his moral culpability for it and, therefore, does not meet the statutory requirement. Accordingly, we conclude that the trial court properly refused to give the instruction requested by the defendant.
G
The defendant claims that the trial court improperly instructed the jury that the state and its people looked to the jury to return death sentences if the facts and law required such a verdict. He argues that the law never requires a verdict of death. We disagree. If the jury found an aggravating factor, in accordance with the instructions of the court, and no mitigating factor, again in accordance with the court’s instructions, then the law required it to return a verdict of death, and this state and its people were entitled to that verdict. Accordingly, we reject this claim.
H
The remaining instructional claims of the defendant are addressed in part VI B of this opinion (claim that trial court improperly failed to instruct jury that each component of offense must be aggravated); part VIIIA of this opinion (claim that trial court improperly instructed jury on “facts and circumstances” language of statutory mitigating factors); and part VIII C of this opinion (claim that trial court improperly instructed jury on aggravating factor).
VIII
CONSTITUTIONAL CLAIMS
The defendant raises several claims that this state’s death penalty statute violates the federal and state constitutions. The standard of review for challenges to the constitutionality of a statute is well established. “[T]he party attacking a validly enacted statute... bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute’s constitutionality. ... In choosing between two constructions of a statute, one valid and one constitutionally precarious, we will search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent.... We undertake this search for a constitutionally valid construction when confronted with criminal statutes as well as with civil statutes.” (Internal quotation marks omitted.) Ross II, supra, 230 Conn. 236. We address each of the defendant’s constitutional claims in turn.
A
The defendant claims that the language of § 53a-46a (d) requiring the sentencer to determine whether a claimed mitigating factor “is mitigating in nature, considering all the facts and circumstances of the case”; (emphasis added); violates the constitutional principle that the sentencer may not be precluded from considering any evidence presented by the defendant as the basis for a sentence less than death. See Lockett v. Ohio, supra, 438 U.S. 604. The defendant’s arguments are nearly identical to those made in State v. Rizzo, 266 Conn. 171, 291, 833 A.2d 363 (2003). In Rizzo, we rejected the claim that the “facts and circumstances” language of § 53a-46a (d): “(1) screens out mitigating evidence from the weighing process; (2) allows the jury to refuse to consider constitutionally relevant mitigating evidence in the weighing process; and (3) allows the jury to conclude incorrectly that there must be a nexus between the mitigating evidence and the offense committed by the defendant.” Id. We decline to reconsider those arguments here.
The defendant also urges us to reconsider our holdings in Cobb II, supra, 251 Conn. 494, that the “facts and circumstances” language does not require the sentencer improperly to weigh the aggravating factors against the mitigating factors, and in Ross II, supra, 230 Conn. 282-83, that that language applies retroactively. Because the defendant has provided no new authority or argument in support of these claims, we decline to reconsider our previous decisions.
Finally, the defendant argues that, even if the “facts and circumstances” language of § 53a-46a (d) is facially constitutional, the trial court’s charge to the jury in this case, taken as a whole, misled the jury to believe that it must find a nexus between the mitigating factor and the crime and to weigh the aggravating factor against the mitigating factor. Specifically, the defendant challenges the following instructions: “Our law... demands that the decision to impose the sentence of death or the sentence of life imprisonment must be based on the unique individual nature of the defendant before you and the facts and circumstances of the offense.... [I]f a particular factor has been established by the evidence, then... you, the jury, shall determine whether that factor is mitigating in nature, considering all the facts and circumstances of the case .... [T]he statute provides a mitigating factor may be considered to the extent that they concern the defendant’s character, background, and history, or the nature and circumstances of the crime .... The procedures provided by our statute require you, as the jury, to consider and focus upon the circumstances of the crime and the background, history, and character of the defendant before you make your findings with regard to the existence or nonexistence of mitigating factors.”
The only possible defect in these instructions that we can perceive is that the trial court referred to the facts and circumstances of the “crime” and the “offense,” which words arguably are narrower than the word used in the statute, namely, “case.” We do not believe, however, that the use of that language rendered the instructions unconstitutional in light of the entire context in which the words were used. Specifically, we note that, in addition to providing the foregoing instructions that the jury must consider the defendant’s character, background and history, the court instructed the jury that “[generally stated, a mitigating factor is any aspect of the defendant’s character, background and history, or of the nature and circumstances of his crime which may serve as a basis for your decision that the appropriate sentence to impose is life imprisonment rather than death.... [Y]ou are required by law to consider the information you have to determine whether there are any factors which can serve as a basis for a sentence less than death. If you do not fully consider such information, the particularized and individualized sentence determination that our law requires you to make would not be made and society would have no assurance that a just and proper result had been reached in this case. The requirement that you, as the sentencer... not simply disregard any mitigating factor, reflects the fundamental reason for humanity which underlies our law.... [T]he circumstances of the crime itself, that is only one category or type of mitigating factor. You must then consider whether there are any mitigating factors in the defendant himself, in his character, in his history, or in his background. Obviously, such factors do not relate to the commission of the offense itself, and in no way serve to excuse the offense or to explain why it happened. Rather, these mitigating factors concern the defendant himself, his character, his history and his background. Any aspect of this defendant’s character, background, and history may be found by you, in fairness and mercy, to be a mitigating factor.” We conclude that there is no reasonable possibility that the instructions, taken as a whole, could have misled the juiy to believe that it was limited to finding a mitigating factor that had a nexus to the crime or that it could weigh the mitigating factor against the aggravating factor. Accordingly, we reject this claim.
B
The defendant claims that the death penalty is cruel and unusual punishment as applied to him because he suffers from a mental disability. We disagree.
In support of his claim that he suffers from a mental disability, the defendant relies on the same evidence that he relied on in support of his claim that, as a matter of law, he established his claimed mitigating factors that, at the time of the offense, he had (1) a significant impairment to his mental capacity and (2) a significant impairment to his ability to conform his conduct to the requirements of the law. We have already concluded that the jury reasonably could have found that the defendant’s mental disorder, if any, did not meet the requirements of § 53a-46a (g) (2). Accordingly, we treat the present claim as alleging that, if the defendant established that he had any mental disability, regardless of whether it met the requirements of § 53a-46a (g) (2), it would be unconstitutional to impose the death penalty against him. We assume for the purposes of addressing this issue that the jury found that the defendant suffered from some degree of mental disorder not warranting a finding of mitigation.
As authority for his legal claim that the imposition of the death penalty on a defendant who suffers from any mental disability violates the constitution, the defendant cites a number of scholarly sources for the general proposition that evolving standards of decency require the abolition of the death penalty. This proposition repeatedly has been rejected as a matter of state and federal constitutional doctrine. See State v. Reynolds, supra, 264 Conn. 236 (citing cases in which this court has rejected state constitutional claim that death penalty is cruel and unusual punishment). The defendant cites no authority for the specific proposition that either the federal or state constitution bars the death penalty in cases in which, although the defendant suffered from some mental disorder, he had no significant cognitive or volitional impairment that reduced his moral culpability for the crime. Nor does he point to any trend in other jurisdictions toward exempting persons with such mental disorders from the death penalty. Cf. Atkins v. Virginia, supra, 536 U.S. 313--16 (trend in state jurisdictions of banning death penalty for mentally retarded defendants supported determination that imposition of death penalty on such defendants is unconstitutional).
We are not persuaded that either the state or federal constitution requires that any mental disability or disorder, regardless of whether it significantly reduced the defendant’s moral culpability for committing the crime, must be treated as mitigating. Such a conclusion would be tantamount to declaring that the death penalty, although theoretically constitutional, could never constitutionally be imposed on any person who commits a capital offense. As the state points out, when a defendant has been convicted of a capital offense and the “especially heinous, cruel or depraved” aggravating factor has been established, it necessarily has been established that the defendant’s mental status did not conform to socially accepted norms. “We may go further and say that it is difficult to suppose that there are any persons who commit the kind of vicious crime for which the death penalty is now imposed in this [state] who do not possess one or more of the personality disorders or one or more of the neuroses recognized as mental disorders by the American Psychiatric Association. To hold that each of these conditions must be a mitigating factor when the death penalty is considered would be to undermine the death penalty under the guise of acknowledging that what the American Psychiatric Association finds to be a mental disorder must be treated as a factor that calls for less severe punishment than death. We cannot say that the evolving standards of decency that have characterized interpretation of the eighth amendment require a state to conform its scheme of capital punishment to such a norm.” Harris v. Pulley, 885 F.2d 1354, 1383 (9th Cir. 1989) (en banc). Accordingly, we reject this claim.
C
The defendant challenges the constitutionality of § 53a-46a (h) (4) on the grounds that the statute: (1) fails to make an adequate distinction between defendants who may be sentenced to death and those who may not; (2) does not require specific intent to inflict extreme physical or psychological pain; (3) allows imposition of the death penalty if the defendant has inflicted extreme psychological pain; and (4) violates due process and the ex post facto clause as applied retroactively. We address each claim in turn.
In support of his claim that § 53a-46a (h) (4) fails to provide a meaningful distinction between those who have been sentenced to death and those who have not, the defendant merely cites the cases in which we have construed this statute and placed a limiting gloss on it; see Cobb II, supra, 251 Conn. 442-46; Ross II, supra, 230 Conn. 255-56; Breton I, supra, 212 Conn. 265-71; and states conclusorily that the statute leaves the sentencer with the type of open-ended discretion held invalid in Furman v. Georgia, supra, 408 U.S. 239-40. We decline to revisit our holdings in the cases cited and, accordingly, reject this claim.
We next address the defendant’s claim that the aggravating factor of subsection (h) (4) is unconstitutional because it does not require the state to prove that the defendant had the specific intent to inflict extreme physical or psychological pain or torture on his victims. Specifically, he challenges the constitutionality of the gloss placed on the statute by this court in Ross II, supra, 230 Conn. 262, that the state must prove that “the defendant engaged in intentional conduct that inflicted extreme physical or psychological pain or torture on each of his victims above and beyond that necessarily accompanying the underlying killing. Evidence of the defendant’s callousness or indifference to his victims’ suffering would substantiate such a finding, but it would not suffice without some showing of the infliction of extreme pain, suffering or torture on the victims.”
Contrary to the defendant’s claim, the United States Supreme Court has held that the imposition of the death penalty is constitutional “when the perpetrator ‘relishes the murder, evidencing debasement or perversion,’ or ‘shows an indifference to the suffering of the victim and evidences ásense of pleasure’ in the killing.” Walton v. Arizona, 497 U.S. 639, 655, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990), overruled on other grounds, Ring v. Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). Thus, there is no federal constitutional requirement that the defendant have the specific intent to inflict suffering before the death penalty may be imposed. The court’s decision in Walton also disposes of the defendant’s claim that the infliction of psychological pain constitutionally cannot provide the basis for a death sentence. See id., 654 (no constitutional infirmity in trial court’s instruction that “crime is committed in an especially cruel manner when the perpetrator inflicts mental anguish or physical abuse before the victim’s death”). To the extent that the defendant claims that the statute violates the state constitution for these reasons, he has not adequately briefed those claims and, accordingly, we decline to address them. See State v. Rizzo, supra, 266 Conn. 290 n.69.
Finally, we address the defendant’s claim that the application of the gloss placed on the statute by this court in Ross II to him violates due process and the ex post facto clause. We rejected an identical claim in Cobb II, supra, 251 Conn. 442, and decline to revisit the issue here. Accordingly, we reject this claim.
D
The defendant claims that the death penalty statute is unconstitutional because it does not require the imposition of a life sentence if one or more jurors, but fewer than all of the jurors, find a mitigating factor. We have already concluded, however, that the verdict form in this case made it clear that none of the jurors found a mitigating factor. Accordingly, there is no need to consider this claim.
E
We repeatedly have rejected claims identical to the defendant’s claims that the statute is unconstitutional because: (1) it places the burden of proving the mitigating factor on the defendant; see Cobb II supra, 251 Conn. 496-97; Breton II, supra, 235 Conn. 217-18; Ross II, supra, 230 Conn. 254-55; (2) it embodies a presumption of death and imposes a mandatory death sentence; see Cobb II, supra, 496-97; Breton II, supra, 217-18; Ross II, supra, 241-42 n.24; (3) the sentencer’s determination of mitigating factors is standardless and unreviewable; Breton II, supra, 218; Ross II, supra, 281-84; (4) the statute fails to provide for a sentencer who makes an individualized determination that death is the appropriate punishment; see Cobb II, supra, 496-97; State v. Webb, supra, 238 Conn. 412; Breton II, supra, 217-18; Ross II, supra, 235-41,252; and (5) it is unconstitutional per se under the state constitution; see Cobb II, supra, 496-97; Breton II, supra, 217-18; Ross II, supra, 254. The defendant has provided no compelling reason to reconsider these decisions here and, accordingly, we decline to do so.
IX
CUMULATIVE ERROR
The defendant claims that, even if we conclude that none of the claims raised by him constitute reversible error when considered separately, the cumulative effect of the many “near errors” or harmless errors requires reversal. We have not concluded that the trial court committed many near errors or harmless errors. Accordingly, we reject this claim.
X
PROPORTIONALITY REVIEW
“Pursuant to ... § 53a-46b (a), this court is responsible for reviewing [a]ny sentence of death imposed in accordance with the provisions of [§] 53a-46a .... In carrying out this function, the legislature has directed us to affirm the sentence of death unless [we determine] that... the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant. General Statutes [Rev. to 1987] § 53a-46b (b) (3). Under § 53a-46b (b) (3), therefore, we must engage in what has come to be known as proportionality review of the defendant’s death sentence. [State v. Webb], supra, 238 Conn. 490-91.
“As we previously have stated, our function in undertaking [proportionality review] is to assure that upon consideration of both the crime and the defendant the aggravating and mitigating circumstances present in one capital case will lead to a result similar to that reached under similar circumstances in another capital case, thus identifying the aberrant sentence and avoiding its ultimate imposition.... The search, however, is not for a case involving a rough equivalence of moral blameworthiness; the search is, rather, for a gross disparity between the case on review and other cases within the selected pool of similar cases.... Thus, proportionality review requires a comparison of the decision to impose a death sentence, made by the fact finder in the case before us on the basis of the presence or absence of aggravating and mitigating factors, with decisions to impose sentences of death or life imprisonment, made by the fact finders in the other relevant cases on the basis of the presence or absence of aggravating and mitigating factors. That process requires us to determine whether, as compared to those cases, this case is an outlier.... Cobb II, supra, 251 Conn. 509-10. In other words, because [t]he process of proportionality review requires that we canvass a set of similar cases to determine whether the death penalty in the case before us was, with respect to that set of cases, wantonly or freakishly imposed by the fact finder. [State v. Webb], supra, 238 Conn. 516. We will not vacate a death sentence as disproportionate under § 53a-46b (b) (3) unless that sentence is truly aberrational with respect to similar cases. See id., 501.
“Our first task, therefore, is to determine the universe of cases from which can be culled the pool of cases deemed to be similar cases for purposes of proportionality review under § 53a-46b (b) (3). Id., 513. In accordance with the statutory mandate of § 53a-46b (a) that we review all sentences of death pursuant to [our] rules, we adopted [what is now] Practice Book § [67-6], under which we defined the universe as follows: Only those capital felony cases that have been prosecuted in this state after October 1,1973, and in which hearings on the imposition of the death penalty have taken place, whether or not the death penalty has been imposed, shall be deemed eligible for consideration as similar' cases.... We allowed for an expansion of this universe in a given case, however, on application of a party claiming that the resulting pool of eligible cases is inadequate for disproportionality review. ... Id. In the absence of such a showing, the universe of cases from which we cull the ultimate pool of cases deemed similar cases consists only of capital felony convictions in which there was a penalty phase hearing. ... Id., 528. We have further refined the universe to include cases currently on appeal and, absent exceptional circumstances wholly undermining the fundamental reliability of the fact-finding process, cases that have been reversed on appeal.... [I]n the absence of such exceptional circumstances, a reversed finding regarding an aggravating factor in the case on review will be included in the process of proportionality review. Id. Two exceptional circumstances that require the exclusion of an otherwise eligible case from the universe of cases involve: (1) cases in which the capital felony conviction has been reversed on the basis of insufficient evidence; id., 520 n.83, 522; and (2) cases in which the death sentence has been vacated on the basis of insufficient evidence with respect to the existence of the aggravating factor or factors that served as the basis for the imposition of the death penalty. Id., 520 n.83.” (Internal quotation marks omitted.) State v. Reynolds, supra, 264 Conn. 237-41. In Breton III, supra, 264 Conn. 425-26, we concluded that prior reversed convictions in the same case that is under review must also be excluded from the universe of cases.
In the present case, we granted the defendant’s application to expand the universe of similar cases to include: (1) his convictions for the two Windham county murders for which consecutive life sentences were imposed; and (2) cases “in which a capital felony conviction has been obtained and the conviction was followed not by a hearing on the imposition of the death penalty but by an imposition of a sentence other than death, either by virtue of a plea agreement or by virtue of the fact that the state did not seek the death penalty.” State v. Ross, 225 Conn. 559, 561, 624 A.2d 886 (1993) (Ross I). The state argues, however, that those cases are no longer included in the universe of cases because the defendant’s application was granted before this court had had the opportunity to define the contours of the universe within the context of a case in which we actually performed proportionality review. We disagree. If the state desired this court to vacate the order expanding the universe of cases, it should have filed an application requesting that action in a timely manner so as to allow the defendant an opportunity to respond and this court an opportunity to consider the views of both parties. In the absence of any such application, the order stands.
“We next turn to the question of how to go about culling from the universe of eligible cases the ultimate pool of cases deemed to be similar cases for purposes of proportionality review. Having defined and limited the universe of cases, we must determine which particular cases within that universe are similar to th[e] [present] case for purposes of deciding whether the death sentence being reviewed is an outlier.... What the ultimate pool of similar cases will consist of in any particular case will have to be developed on a case-by-case basis.... [The term] similar cases means, in general, cases in which the underlying capital felonies were based on conduct of other defendants that is substantially similar, in its criminal characteristics, to that of the defendant in the case under review. We ask: in the general transaction that underlies the conviction for capital felony in the case under review, in what kind of criminal conduct, in general, did the defendant engage? We then seek to identify other cases in which the defendants engaged in substantially similar conduct.... Thus, in ascertaining the pool of similar cases, we are not limited only to those cases involving the same subsections of the capital felony statute. Rather, we look to the characteristics of the criminal conduct underlying the capital felony conviction to determine whether that conduct is sufficiently similar to the conduct underlying the case under review to provide a fair basis for comparison....
“Finally, we do not differentiate, for purposes of defining the pool of similar cases, between aggravating and mitigating factors, because both may implicate the circumstances of the crime, and both may also implicate the character and record of the defendant.... [Therefore... both aggravants and mitigants must be viewed together, analytically, although not as part of the definition of similar cases. Rather, they must both be considered in the process of actually comparing the case before us on review with the predetermined pool of similar cases... .” (Citations omitted; internal quotation marks omitted.) State v. Reynolds, supra, 264 Conn. 243-44.
With these principles in mind, we now undertake the task of identifying the ultimate pool of similar cases in the present case. The defendant was found guilty of six counts of capital felony involving kidnap-murder and sexual assault-murder. Although the defendant was not charged with this conduct, the defendant also committed a double murder. Accordingly, we cull from the universe of similar cases those cases involving kidnap-murder, sexual assault-murder and multiple murder, or some combination thereof. Cf. Breton III, supra, 264 Conn. 427 (Breton III and Ross II are similar cases even though defendant in Ross II, unlike defendant in Breton III, was not charged with multiple homicide). The defendant identifies the following cases involving (1) sexual assault murders or sexual assault and kidnap-murders: State v. Usry, 205 Conn. 298, 533 A.2d 212 (1987); State v. Ross, Superior Court, judicial district of Windham, Docket No. CR11-49329-8193; State v. Ross, Superior Court, judicial district of Windham, Docket No. CR11-49330-8194; Ross II, supra, 230 Conn. 183 (four murders that are basis for present appeal); Cobb II, supra, 251 Conn. 285; State v. Lapointe, 237 Conn. 694, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S. Ct. 484, 136 L. Ed. 2d 378 (1996); State v. Hafford, 252 Conn. 274, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000); State v. King, 249 Conn. 645, 735 A.2d 267 (1999); State v. Whitworth, Superior Court, judicial district of New London, Docket No. CR97-0236229; State v. Daniels, supra, 207 Conn. 374; State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990); (2) kidnap-murders or multiple kidnap-murders: State v. Paradise, Superior Court, judicial district of Hartford, Docket No. 49836; State v. Rodriguez, Superior Court, judicial district of Hartford, Docket No. CR94-456268; State v. Diaz-Marrero and State v. Ortiz, 252 Conn. 533, 747 A.2d 487 (2000); State v. Johnson, Superior Court, judicial district of Hartford, Docket No. CR99-0170353; (3) cases involving multiple murders; State v. Wood, 208 Conn. 125, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988); State v. Steiger, supra, 218 Conn. 349; State v. Roseboro, 221 Conn. 430, 604 A.2d 1286 (1992). The defendant also claims that State v. Hoyesen, Superior Court, judicial district of Ansonia-Milford, Docket No. CR5-66239, is a similar case because the defendant in that case claimed a mitigating factor identical to one claimed by the defendant here.
The state does not object to the inclusion of any of these cases and proposes adding the following cases involving (1) multiple murders: State v. Griffin, supra, 251 Conn. 671; Breton II, supra, 235 Conn. 206; State v. Day, 233 Conn. 813, 661 A.2d 539 (1995); and (2) victims under the age of sixteen: State v. Peeler, Superior Court, judicial district of Fairfield, Docket No. CR 99-148396; State v. Colon, Superior Court, judicial district of Waterbury, Docket No. CR 98-270986; State v. West, Superior Court, judicial district of Hartford, Docket No. CR 98-109471; State v. Rizzo, Superior Court, judicial district of Waterbury, Docket No. CR 97-262883.
We exclude from the ultimate pool the sentences from which the defendant appeals in the present case because we have concluded that the comparison of each of those sentences to each of the other sentences would provide little or no insight into whether the imposition of the death sentence on the defendant is disproportionate. See footnote 89 of this opinion. Moreover, to the extent that the state suggests that we should compare the defendant’s current sentences to his previously reversed sentences, we have concluded that previously reversed sentences in the same case are not “similar cases” for purposes of proportionality review. See id. We exclude Hoyesen because the only similarity claimed by the defendant is that the defendants in those cases claimed a mitigating factor that he also claimed. As we have noted, aggravating and mitigating factors are not part of the definition of “similar cases.” State v. Webb, supra, 238 Conn. 525. We exclude Peeler, Colon and West, because the state has not provided an appendix setting forth “the circumstances of the crimes that are claimed to be similar to that of which the defendant has been convicted and the characters and records of the defendants involved therein so far as these are ascertainable from the transcripts of those trials and hearings on the imposition of the death penalty or may be judicially noticed,” as required by Practice Book § 67-6 (b), and the facts and circumstances of these cases have not previously been subject to review by this court. Finally, we exclude Rizzo because murder of a person under the age of sixteen was not a capital felony at the time that the defendant murdered Leslie S. and April B. Accordingly, the ultimate pool of similar cases is Usry, Ross (Superior Court Docket No. CR1149329- 8193), Ross (Superior Court, Docket No. CR1149330- 8194), Cobb, Lapointe, Hafford, King, Whitworth, Daniels, Webb, Paradise, Rodriguez, Diaz-Marrero (treated as two cases), Ortiz (treated as two cases), Johnson, Steiger, Roseboro, Wood, Griffin, Breton and Day.
With respect to the similar cases involving sexual assault-murder or sexual assault-kidnap-murder, we restrict our consideration of those cases to a comparison with the defendant’s convictions for the murders of Wendy B., Robyn S. and April B. With respect to the similar cases involving only multiple murder, we restrict our consideration of those cases to a comparison with the defendant’s convictions for the murders of Leslie S. and April B.
We first consider the facts and circumstances of each of the similar cases involving kidnap-murder, namely, Paradise, Rodriguez, Diaz-Marrero, Ortiz and John son. In State v. Paradise, supra, 213 Conn. 388, the defendant, along with two other men, Brian Ellis and David Worthington, abducted the victim, who allegedly owed the defendant $6000 to $7000 from a drug deal, and drove him to a secluded area in Enfield. There, the defendant, the victim and Worthington got out of the vehicle. Worthington punched the victim, who fell to the ground, and kicked him. As the victim tried to get to his feet, the defendant stabbed him. The defendant then forced both Worthington and Ellis to stab the victim, who died as a result of the stabbing. Id., 391-92. More than seven years later, the defendant was arrested and charged with capital felony in violation of § 53a-54b (5), the kidnap-murder statute. He waived a preliminary hearing to determine probable cause in exchange for the state’s agreement not to seek the death penalty. Id., 390. After a jury trial, he was convicted of capital felony. Id., 391.
In State v. Rodriguez, supra, Superior Court, Docket No. CR 94-456268, the defendant pleaded guilty to one count of kidnap-murder in violation of § 53a-54b (5). On the morning of February 21,1994, the victim reported to work at the University Club in Hartford. Later that day, police received a report that she had not been seen since her arrival at work. A search was initiated and at about 8 p.m. her naked body was found in an attic space in the club. The cause of death was blunt trauma to the head and strangulation. The defendant, who was an employee at the club, became a suspect after he failed a polygraph test.
The state indicated at the sentencing hearing that it was willing to forgo seeking the death penalty on the capital felony charge because the evidence supporting the kidnapping and the evidence of sexual assault, with which the defendant had not been charged, was circumstantial, as was the evidence pertaining to the aggravating factor. In addition, the trial court had made several trial rulings adverse to the state. Accordingly, the defendant was sentenced to life imprisonment without the possibility of release.
The Ortiz and Diaz-Marrero cases were tried in a consolidated proceeding and each defendant was convicted of, inter alia, one count of capital felony based on multiple murder in violation of § 53a-54b (8), now (7), and two counts of capital felony based on kidnap-murder in violation of § 53a-54b (5). See State v. Ortiz, supra, 252 Conn. 536. On July 27, 1994, Julio Diaz-Marrero forced the victims, Hector Alvarado and Alvarado’s wife, Migdalia Bermudez, at gunpoint into a van driven by Angel Luis Ortiz. Id., 539-40. Ortiz then drove to the apartment building where Alvarado lived. Diaz-Marrero ordered Alvarado to accompany him into the building and, when they emerged a short time later, Diaz-Marrero was carrying a paper bag. Ortiz then drove to another location where Diaz-Marrero ordered the victims out of the van. Id., 540. Several shots were then fired. Diaz-Marrero returned to the van alone and ordered Ortiz to “get out of here.” Id. Alavardo died instantly from a gunshot wound to the head. Bermudez suffered severe gunshot wounds to her back, hips and buttocks and died approximately five hours later. Id., 538.
At the penalty phase hearing, the state sought to prove as an aggravating factor that Bermudez’ murder had been committed in an especially heinous, cruel and depraved manner within the meaning of § 53a-46a (i) (4), formerly (h) (4). In mitigation, Diaz-Marrero presented evidence that his mother had been sixteen years old when she became pregnant with him and that she never married his father; that his mother had moved to New York and left him in Puerto Rico in the care of his grandmother for an extended period of time; that he had been shuffled between the care of his mother, father and grandmothers throughout his childhood; and that his mother’s common-law husband did not like him and would hit him. Ortiz presented evidence that he was a good husband and father, a good worker and a good provider, that he had no criminal record, that he and Alvarado were friends and that he was married to Alvarado’s sister. Toward the end of the hearing, Ortiz also sought to introduce evidence that Diaz-Marrero was a contract killer. As a result, the court bifurcated the cases and continued Ortiz’ hearing until a verdict was rendered in Diaz-Marrero’s case. In Diaz-Marrero’s case, the jury found an aggravating factor and deadlocked on the existence of a mitigating factor. Shortly thereafter, the state indicated that it would not continue to seek the death penalty in Ortiz’ case. The court dismissed both penalty hearings and, in each case, imposed an effective sentence of life imprisonment without the possibility of release.
In State v. Johnson, supra, Superior Court, Docket No. CR99-0170353, the defendant pleaded guilty to one count of kidnap-murder in violation of § 53a-54b (5). On October 15,1999, the defendant and his codefendant schemed to hijack a car from the parking lot of a bar located in East Hartford. They watched as the victim drove his car into the parking lot, went into the bar and then emerged a short time later. The defendant forced the victim at gunpoint to relinquish his car keys and to get into the backseat of his car. The codefendant got into the backseat with the victim. The defendant then drove the car to an automatic teller machine where he forced the victim to reveal his personal identification number and withdrew money from the victim’s bank account. As the victim pleaded to be released, the defendant drove the car to an entrance ramp to Interstate 84. The defendant forced the victim to get out of the car and shot him. The state declined to seek the death penalty against the defendant because the victim’s family had indicated that it had no desire to see it imposed and because it believed that, under the circumstances of the case, the jury might find the fact that the defendant was eighteen years old at the time of the crime to be a mitigating factor. The defendant was sentenced to life in prison without the possibility of release.
We now compare these sentences to the defendant’s sentences. We conclude that there exists a meaningful difference between each of these cases and each of the sentences under review in this case. Specifically, in Paradise, the defendant was not arrested until more than seven years after the crime had been committed and the state agreed not to seek the death penalty in exchange for the defendant’s waiver of aprobable cause hearing; in Rodriguez, the state declined to seek the death penalty because it was concerned about the strength of the evidence supporting the elements that differentiate murder from a capital felony and the evidence supporting the aggravating factor; in Ortiz and Diaz-Marrero, each of which is treated as two cases, the defendants introduced mitigating evidence that was not introduced in this case and, after the jury deadlocked in Diaz-Marrero and the state indicated that it would no longer pursue the death penalty against Ortiz, the trial court dismissed the sentencing proceeding against both of them; and in Johnson, the state declined to seek the death penalty in part because it believed that there was a strong possibility that the jury would find the defendant’s young age to be a mitigating factor. We conclude that the differences between each of these cases and each of the sentences under review in this case meaningfully account for the difference in result.
We next consider the facts and circumstances of each of the similar cases involving sexual assault-murder or sexual assault-kidnap-murder, namely, Usry, the two Ross cases, Cobb, Lapointe, Hafford, King, Whitworth, Daniels and Webb. As we have noted, we restrict our consideration of these cases to a comparison with the defendant’s convictions for the murders of Wendy B., Robyn S. and April B. “In the case of State v. Usry, supra, [205 Conn. 299-300], the defendant was convicted of the capital felony of murder in the course of a sexual assault in the first degree in violation of § 53a-54b (7) [now (6)]. The defendant, who had just reached the age of eighteen at the time of the crime, climbed into the victim’s first floor apartment through a window. He forcibly sexually assaulted the victim, put sugar around her vaginal area, and killed her by repeated blows to the head with a brick. The victim survived for approximately ten to twenty minutes after first being disabled by a blow to the head. One of the blows, namely, to her nose, was extremely painful. She may have remained conscious until the last blow.
“The state claimed that the offense had been committed in an especially heinous, cruel or depraved manner. The defendant claimed the following nine mitigating factors: (1) his mental capacity was significantly impaired at the time of the offense; (2) he was emotionally disturbed; (3) he was of youthful age at the time of the offense because it was committed only five weeks after his eighteenth birthday, and § 53a-46a (g) (1) precludes the death penalty for a defendant who was under the age of eighteen at the time of the offense; (4) his mental or emotional development was below his chronological age at the time of the offense; (5) he suffered from an emotionally deprived early childhood; (6) he was the product of a pathological family unit; (7) he did not obtain help for his psychological problems because he was the victim of parental neglect; (8) he suffered from a mental disease or defect, namely, paranoid personality disorder, schizoid personality disorder; and (9) any other mitigating factors suggested by the evidence.
“The jury found that the defendant had committed the crime in an especially heinous, cruel or depraved manner. With respect to mitigating factors, the jury could not reach a unanimous verdict and, pursuant to the court’s instruction, indicated that five jurors found a mitigating factor proven and seven jurors found no mitigating factor proven. The trial court imposed a sentence of life imprisonment without the possibility of release.” State v. Webb, supra, 238 Conn. 547-48.
In State v. Ross, supra, Superior Court, Docket No. CR11-49329-8193, the defendant abducted the victim as she walked along Route 6 in Brooklyn. He dragged her to his car and then drove to a location a short distance away, where he raped her. He then led her into a nearby wood, forced her to lie face down on the ground, sat on her back and strangled her to death. The defendant entered into a plea agreement with the state whereby he pleaded nolo contendere to the crime in exchange for a sentence of sixty years imprisonment.
In State v. Ross, supra, Superior Court, Docket No. CR 11-49330-8194, the defendant struck up a conversation with the victim as she sat on the steps of a band shell in Davis Park in Danielson. Eventually, he offered her a ride to her home in Jewett City. Instead of driving her home, however, he took her to a cornfield in Canterbury where he raped her and strangled her to death. The defendant entered into a plea agreement with the state whereby he pleaded nolo contendere to the crime in exchange for a sentence of sixty years imprisonment.
In both of the Windham county murder cases, the state declined to seek the death penalty because it believed that, under the corpus delicti rule, it would be unable, because of the skeletal conditions of the victims’ bodies, to establish the sexual assault element of the capital offense which was necessary to introduce the defendant’s confession into evidence.
“In the case of [Cobb II, supra, 251 Conn. 285], the defendant was convicted of two capital felonies: (1) murder in the course of a sexual assault in the first degree in violation of § 53a-54b (7) [now (6)]; and (2) murder of a kidnapped person in the course of a kidnapping in violation of § 53a-54b (5)... both involving the same victim and the same transaction. The defendant abducted the female victim from a shopping mall parking lot. He forced the victim to drive her car to an isolated area near a dam, where he sexually assaulted her. He then placed a leather glove in her mouth, bound her hands, feet and mouth with tape, and threw her from the top of the dam onto an ice-covered concrete apron that was approximately twenty feet below. The fall injured, but did not kill, the victim. When the defendant realized that the victim had survived, he went to the bottom of the dam and caused her to die by asphyxiation. The defendant later returned to the scene in order to make sure that the victim was dead. With respect to aggravating factors, a three judge panel found that the murder had been committed in an especially heinous and cruel manner. With respect to mitigating factors, the panel also found that the defendant had not proven: (1) that his mental capacity was significantly impaired; (2) that his ability to conform his conduct to the requirements of law was significantly impaired; and (3) with respect to his list of mitigants, ‘any factor that can be considered as mitigating.’ Accordingly, the panel imposed the death penalty.” (Citation omitted.) State v. Webb, supra, 238 Conn. 542-43.
“In the case of State v. Lapointe, supra, [237 Conn. 694] the defendant was convicted of the capital felony of murder committed in the course of a sexual assault in the first degree in violation of § 53a-54b (7) [now (6)]. He sexually assaulted his wife’s grandmother in her apartment. When the victim told the defendant that she would tell his wife what he had done, he stabbed her repeatedly in the stomach and back. He then attempted to strangle her, and he set fire to the sofa on which she was lying. Although the victim had been grievously injured by the stabbing and the fire, she died of smoke inhalation. With respect to aggravating factors, the juiy found that the defendant had committed the offense in such a way as knowingly to create a grave risk of death to a person other than the victim. The jury found that the state had not proved that the offense had been committed in an especially heinous or depraved manner. The jury reached no verdict concerning whether the crime had been committed in an especially cruel manner.
“The defendant claimed the following fifteen mitigating factors: (1) at the time of the offense, his mental capacity was significantly impaired; (2) at the time of the offense, his mental capacity was impaired such that his innate ability to perform and achieve was compromised by his psychological and intellectual deficiencies; (3) in his youth and adolescence, he suffered from a congenital cranial deformity known as Dandy-Walker syndrome, resulting in hydrocephalus and requiring five cranial operations that left ham with permanent injury to the frontal lobe and right side of his brain; (4) in his youth and adolescence, he had been bullied and taunted by his peers, which adversely affected his education and his emotional, psychological and social development; (5) despite his significant intellectual and vocational deficiencies, his formal education had been terminated with the acquiescence and encouragement of his school system; (6) despite his deficiencies, he had a history of steady and reliable employment and positive accomplishments, and worked hard to improve his and his family’s socioeconomic situation; (7) he was married, was a loving father to his son, and worked regularly to provide for his family; (8) he demonstrated appropriate parental concern for the secular and religious education of his son; (9) he is a person with religious beliefs, who believes in God and participates in the Catholic religion; (10) before his marriage in 1978, he had volunteered his time and services for the benefit of a neighborhood center for the blind; (11) he was a well adjusted and adaptable prisoner who should present few, if any, prison discipline problems; (12) he had no prior criminal history, except for a minor incident when he was twenty-one years old; (13) mercy, and concern for his unique life; (14) any other factor concerning his character, background or history, or the nature or circumstances of the crime; and (15) life imprisonment without the possibility of release is the appropriate sentence in the case. The jury found that the defendant had proven a mitigating factor. The jury was not required to, and did not, specify which mitigating factor or factors it found proven. Accordingly, a sentence of life imprisonment without the possibility of release was imposed.” State v. Webb, supra, 238 Conn. 543-44.
“In State v. Hafford, supra, 252 Conn. 274, the defendant was convicted of capital felony in connection with a murder committed in the course of a sexual assault. Id., 276, 281. The murder and sexual assault occurred during the course of a gas station robbery. Id., 280-81. The defendant, Christopher Hafford, compelled the gas station attendant to hand over the cash from the cash register and, after she complied, Hafford forced her into a back room, where he sexually assaulted her and then killed her with a knife and a shovel. Id. At the conclusion of the penalty phase hearing, the three judge panel found the existence of an aggravating factor, namely, that Hafford had committed the murder in an especially cruel manner. Id., 277-79 and n.3. The panel also found, as a nonstatutory mitigating factor, that, at the time of the offenses, [Hafford’s] mental capacity was impaired and that Hafford’s ability to conform his conduct to the requirements of the law [also] was impaired .... Id., 279-80 n.4. The panel farther found that Hafford gave both oral and written statements to the police shortly after his arrest, fully admitting his guilt. He was remorseful, cooperative, and regretful. ... Id. The panel thereupon concluded that these factors, when considered in combination with the other mitigating factors found, in fairness and in mercy, constitutes [sic] a mitigating factor. ... Id. The panel therefore imposed a sentence of life imprisonment without the possibility of release. Id., 279-80.” (Internal quotation marks omitted.) State v. Reynolds, supra, 264 Conn. 246-47.
In State v. King, supra, 249 Conn. 645, the defendant was convicted of one count of capital felony for kidnap-murder in violation of § 53a-54b (5) and one count of capital felony for sexual-assault murder in violation of § 53a-54b (7), now (6). “[T]he defendant broke into a neighbor’s home in the middle of the night, where the fifteen year old female victim was baby-sitting for her two and one-half year old sister. The defendant sexually assaulted, beat, strangled and stabbed the victim, causing her extreme physical pain and terror. The victim was found after 4 a.m., lying face down on the bed, bound with duct tape on her mouth, still alive but unresponsive and bleeding from various wounds. Id., 654. She died several hours later while undergoing surgery for the wounds that the defendant had inflicted on her. Id.
“The state claimed that the crime was committed in an especially heinous, cruel and depraved manner. The defendant claimed fourteen mitigating factors, including the two statutory mitigating factors of significant impairment of his mental capacity and significant impairment of his ability to conform his conduct to the requirements of the law. His twelve claimed nonstatutory mitigants were: (1) a lesser degree of impairment of mental capacity; (2) a lesser degree of impairment of his ability to conform his conduct to the requirements of the law; (3) his age of twenty years at the time of the offense; (4) his mother’s abandonment, emotional neglect and failure to protect him from emotional, sexual and physical abuse adversely affected his childhood development; (5) his moral, psychological, social and educational development was impaired by his early childhood environment; (6) his ability to pursue education and develop friendships was impaired by numerous changes in residence and schools while growing up; (7) at age eight and one-half years, he left his home with his mother’s acquiescence to live with another person, in order to escape abuse and neglect at home; (8) his family wants to maintain personal relationships with him and will support him during incarceration; (9) he has done positive things in his life; (10) life imprisonment is the appropriate sentence for him; (11) the catchall factor; and (12) any or all of the first thirteen factors, in fairness or in mercy, provides a reason for a sentence of less than death.
“The juiy returned a special verdict finding that the state had proven the aggravating factor alleged, and that the defendant had proven the existence of a mitigating factor, which the jury did not identify. Accordingly, the defendant was sentenced to life imprisonment without the possibility of release. Id., 650-51.” Cobb II, supra, 251 Conn. 514-15.
In State v. Whitworth, supra, Superior Court, Docket No. CR97-0236229, the defendant saw the sixteen year old victim in a telephone booth outside the Dolphin Mart in Groton at about 2:30 a.m. on December 28, 1996. The defendant offered to take the victim to Dunkin Donuts and, when she accepted, drove her to the parking lot located between Dunkin Donuts and the Best Western Hotel in Groton. He then forced the victim into the bushes behind the parking lot, disrobed her and sexually assaulted her. Fearing that she would report the assault, he retrieved some twine from his car and attempted to strangle her with it. When she managed to remove the twine from her neck, he punched her, knocked her to the ground and struck her in the head multiple times with a large rock, thereby killing her. He then went home. Later, he returned to the body, put it in the back of his car, and moved it to another location where he disposed of it.
The defendant pleaded guilty to capital felony for sexual assault-murder. The state declined to seek the death penalty, citing the facts that the defendant was twenty-five years old at the time of the crime, was married, was the father of a young child, came from a close and loving family, was a very good father, had had a successful naval career, pleaded guilty without seeking a deal, was remorseful and did not attempt to assert any spurious or speculative defenses. In addition, the state noted that it had no reason to believe that the defendant had ever committed a similar offense. The defendant was sentenced to life in prison without the possibility of parole.
“In State v. Daniels, supra, 207 Conn. 376-78, the defendant was convicted of multiple murder capital felony in violation of § 53a-54b (8) [now (7)], murder in violation of § 53a-54a and sexual assault in the first degree in violation of General Statutes § 53a-71. Late at night, the defendant entered the home of his girlfriend, where he attacked his girlfriend’s roommate and the roommate’s three year old child. The defendant stabbed the roommate multiple times in the chest. He then proceeded to strangle the child and slit the child’s throat. Then, upon hearing the roommate making gurgling noises, he sexually assaulted her and stabbed her again. Id., 378-79.
“At the penalty phase hearing, the jury found that the state had proved the existence of an aggravating factor, that the defendant had committed the murders in an especially heinous, cruel or depraved manner. In mitigation, the defendant ‘presented evidence of his deprived home life and mental impairment. According to the defendant’s mother, the defendant had grown up in a family atmosphere marked by violence and tragedy. She testified that during his childhood, the defendant had suffered numerous head injuries, had been beaten regularly by his father, who had often been drunk, and had witnessed numerous acts of violence perpetrated by his father on his mother. According to Charles Opsahl, a psychologist, the defendant’s childhood difficulties were reflected in current test results that showed his strong depression and his heightened sensitivity to rejection by others. The defendant also presented the testimony of James Merikangus, a psychiatrist, who concluded, after an examination of the defendant, that he suffered from organic brain dysfunction. In addition, the defendant introduced evidence that he had been drinking excessively on the night of the murders and that he had a tendency to get out of control when drinking. On rebuttal, the state called another psychiatrist, Robert Miller, who disagreed with Merikangus’ conclusions and diagnosed the defendant as having a mixed personality disorder with antisocial and explosive tendencies.’ Id., 379-81. The jury could not agree on the existence of a mitigating factor, and the court sentenced the defendant to a term of life imprisonment. Id., 380.” Breton III, supra, 264 Conn. 435-36.
“In [State v. Webb, supra, 238 Conn. 389], the defendant, after kidnapping the victim at gunpoint, drove her nearly four miles to a public golf course, where he forcibly attempted to assault her sexually. When she broke free, he shot her twice in the back and, after she had crawled thirty-three yards away, coughing blood and in excruciating pain, he stood in front of the conscious and prostate victim. He then shot her in the chest, in the ear, and point blank in the face, with bullets specially enhanced for potency to do damage. [Id.,] 540-41.
“The state claimed two aggravating factors: (1) the offense had been committed during the commission of a sexual assault in the first degree, an offense of which the defendant previously had been convicted; and (2) the offense was committed in an especially cruel and heinous manner. Id., 540. The defendant claimed the following ten mitigating factors: (1) significant impairment of mental capacity; (2) a lesser degree of mental capacity; (3) an emotionally deprived childhood; (4) untreated early mental or emotional disturbance; (5) the defendant had surrendered to the police after learning that he was sought as a suspect; (6) he had maintained positive relationships with various persons; (7) a lingering doubt regarding his guilt; (8) fairness, mercy and humanity; (9) a disparity between the defendant’s chronological age and his emotional development; and (10) [a]ny other mitigating factors concerning [the defendant’s] character or background, or the nature and circumstances of the case suggested by the evidence. Id., 541. The jury found both of the aggravating factors proven and none of the mitigating factors proven and, accordingly, the death sentence was imposed. Id., 542-43.” (Internal quotation marks omitted.) Cobb II, supra, 251 Conn. 515-16.
We now compare these cases involving sexual assault-murder and sexual assault-kidnap-murder with the facts of the three sexual assault-kidnap-murders that the defendant committed in the present case. We first consider the two cases in which the death penalty was imposed, namely, Webb and Cobb. The defendant argues that “[t]he level of planning, the presence of a weapon, the duration of the kidnapping and the extreme cruelty with which the victims were killed clearly sets these cases apart” from his case. We disagree. As we have noted, even if we assumed, without necessarily agreeing, that the offenses in Webb and Cobb were somewhat more aggravated than the offenses in the present case because the victims in those cases may have suffered a somewhat more prolonged period of extreme physical and psychological pain, we would not conclude that that difference is meaningful for purposes of this analysis. In performing proportionality review, we do not demand “a rough equivalence of moral blameworthiness” between the case under review and the similar cases in which the death penalty has been imposed. Cobb II, supra, 251 Conn. 510. Rather, we look for “a gross disparity between the case on review” and those other cases. Id. We perceive no gross disparity between any of the kidnappings, sexual assaults and murders under review in this case and the kidnappings, sexual assaults and murders in Webb and Cobb. As to the defendant’s claim that his offenses were less blameworthy because the offenses in both Webb and Cobb were premeditated and, in Webb, involved the use of a weapon, we note that those facts could be considered by the respective sentencing juries only as part of “the facts and circumstances of the case” in determining whether a mitigating factor existed. Although those specific facts may not have existed in this case, other equally egregious facts clearly did, i.e., the defendant’s atrocious record of repeatedly kidnapping, sexually assaulting and strangling vulnerable young women. Accordingly, we see no disproportionality between the sentences in this case and the sentences in Webb and Cobb.
We now compare the cases in which a life sentence was imposed, namely, Usry, the defendant’s two Windham county murders, Lapointe, Hafford, King, Whitworth and Daniels. We conclude that there exists a meaningful difference between each of these cases and the sentences under review in this case. Specifically, in Usry, the defendant claimed as mitigating factors, inter alia, his young age and his lack of mental and emotional development, and the jury was deadlocked on the question of whether a mitigating factor existed; in the two Windham county murders, the state declined to seek the death penalty because it believed that it did not have sufficient evidence to support the sexual assault element of sexual assault-murder; in Lapointe, the defendant claimed as mitigating factors, inter alia, his permanent brain injury resulting from cranial operations required by his Dandy-Walker syndrome and no significant prior criminal history and the jury found that the defendant had established an unspecified mitigating factor; in Hafford, the panel found as nonstatutory mitigating factors that the defendant had a significant mental impairment and that he was remorseful, cooperative and regretful; in King, the defendant claimed as mitigating factors that he had been subject to sexual and physical abuse, that he had been unable to pursue an education and that he had left home at the age of eight and one-half years in order to escape abuse and neglect, and the jury found that one of the claimed fourteen nonstatutory mitigating factors had been proved; in Whitworth, the state declined to seek the death penalty citing, among other reasons, that the defendant had, up to the time of the crime, been a good husband and father and had not committed any other offenses; and in Daniels, the defendant introduced direct testimony that the defendant suffered from organic brain dysfunction and had been drinking excessively on the night of the sexual assault-murder and the jury deadlocked on the question of whether there was a mitigating factor. We conclude that the differences between each of these cases and each of the sentences under review in this case meaningfully account for the difference in result.
We now turn to the facts of the similar cases involving multiple murder, namely Steiger, Roseboro, Wood, Griffin, Breton and Day. “In State v. Steiger, supra, 218 Conn. 349, the defendant was convicted of multiple murder capital felony in violation of § 53a-54b (8) [now (7)] for the shooting deaths of two individuals. After a verbal altercation with the two victims, which took place near the home of one of the victims, the defendant left the area and proceeded to arm himself with two guns and a knife. He returned to the victim’s home, where he shot each victim multiple times and threatened two people standing nearby. Id., 352-56.
“The state claimed two aggravating factors: (1) that the defendant committed the murders in an especially heinous, cruel or depraved manner; and (2) that the defendant committed the murders and in such commission knowingly created a grave risk of death to another person in addition to the victims of the offense pursuant to § 53a-46a (h) (3).
“In mitigation, the defendant offered testimony that: he had suffered from severe paranoid schizophrenia; he had a mental capacity that was significantly impaired; the mental disorder from which he suffered was prone to worsen under the influence of emotionality; he showed paranoid traits such that he tended to over-interpret threats and to respond explosively to threats; he was an individual of immature emotional development and immature impulse control; he had strong conflicting and unresolved emotions concerning his father and alcoholism; his mental capacity was significantly impaired and he was under substantial duress; he had traumatic childhood experiences that could be characterized as emotional and psychological abuse; and in describing the events of that night, he appeared to be in a great deal of turmoil and pain.
“The three judge panel that conducted the penalty phase hearing unanimously found that the state had proved both aggravating factors. Id., 351. Two of the judges found the existence of a mitigating factor in the defendant’s character, background and history and that, at the time of the offense, the defendant’s mental capacity was significantly impaired and his ability to conform his conduct to the requirements of the law was significantly impaired. One member of the panel found that the defendant had not proved any mitigating factors. The panel imposed a life sentence without the possibility of parole. Id., 352.” Breton III, supra, 264 Conn. 433-34.
“In State v. Roseboro, supra, 221 Conn. 430, the defendant was convicted of multiple murder capital felony in violation of § 53a-54b (8) [now (7)], three counts of murder in violation of [General Statutes] § 53a-54a (a); and one count of first degree burglary in violation of General Statutes § 53a-101 (a) (1) and (2). ‘The defendant, armed with a dangerous weapon and intending to commit a larceny, unlawfully entered and remained in a house in Derby owned by Mary Ferrara. In the course of committing this crime, the defendant engaged in a struggle with Mary Ferrara and intentionally killed her. The defendant also intentionally killed her son Joseph Ferrara and her niece Nina Ferrara. Each of the victims died of stab wounds.’ Id., 433.
“The three judge panel that conducted the penalty phase hearing unanimously found that the state had proved that the crimes were committed in an especially heinous manner. The panel further found a mitigating factor, specifically that the defendant had adjusted well to incarceration, and imposed a life sentence.” Breton III, supra, 264 Conn. 432.
“InState v. Wood, supra, 208 Conn. 125, the defendant was convicted of three counts of murder in violation of § 53a-54a and one count of multiple murder capital felony in violation of § 53a-54b (8) [now (7)]. ‘[0]n the evening of April 16, 1982, the defendant shot and killed his former wife, Rosa Wood, and her boyfriend, George Troie, on Farmington Avenue in West Hartford. The defendant then proceeded to the home on White Pine Lane he had shared with his former wife. Once there he shot and killed his former mother-in-law, Patricia Voli. The defendant then shot and killed his fifteen year old daughter, Elisa Wood.’ Id., 128.
“At the penalty phase hearing, the state sought to prove two aggravating factors: (1) that the defendant committed the murders and in committing them knowingly created a grave risk of death to another person in addition to the victims of the murders; and (2) that the defendant committed the murders in an especially heinous, cruel or depraved manner.
“In mitigation, the defendant offered testimony that: he suffered from explosive disorder, major depression and antisocial personality disorder; he suffered from borderline personality disorder with atypical psychosis; he suffered from a paranoid schizophrenic process; he had a potential for transient psychotic states; he was a good boss, kind man, a good neighbor and was very patient with children; his brother went to see him in prison and would continue to do so; his father was never around; and he became despondent after his separation from his wife.
“The jury found that the state had not proved the first aggravating factor, knowingly causing grave risk of death to another. The jury further found that the state had proved that the defendant committed the murders of Voli and Elisa Wood in an especially heinous, cruel or depraved manner. Finally, the juiy found that the defendant had proved the mitigating factor that the defendant’s mental capacity was significantly impaired or his ability to conform his conduct to the requirements of the law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution. The defendant was sentenced to 120 years in prison. Id.” Breton III, supra, 264 Conn. 434-35.
“In State v. Griffin, supra, 251 Conn. 671, the defendant was convicted of one count of capital felony in violation of § 53a-54b (8) [now (7)] and two counts of murder in violation of § 53a-54a. On November 1,1993, the defendant and another individual, Gordon ‘Butch’ Fruean, Jr., entered the home of the defendant’s former girlfriend. Id., 678. While there, the defendant and Fruean attacked two individuals. The defendant shot each victim, one of them multiple times. Upon realizing that the victims were still alive, the defendant stabbed them both multiple times. Id., 679. Again realizing that the victims were still alive, the defendant smashed a glass mason jar over one victim’s head and a ceramic lamp over the other victim’s head. Id.
“The state, at the defendant’s penalty phase hearing, sought to prove the aggravating factor that the defendant had committed the murders in an especially heinous, cruel or depraved manner. The defendant claimed twenty mitigating factors.
“The jury returned a special verdict finding that the state had proved the aggravating factor beyond a reasonable doubt for both of the murders. Id., 681-82. The jury further found that the defendant had proved the existence of an unspecified mitigating factor or factors. Id., 682. The trial court imposed a sentence of life imprisonment without the possibility of release. Id.” Breton III, supra, 264 Conn. 429-30.
In Breton III, supra, 264 Conn. 327, the defendant “was found guilty of multiple murder capital felony in violation of § 53a-54b (8) [now (7)] for the deaths of his former wife and his son. Following the penalty phase hearing before a three judge panel, the defendant was sentenced to death. The panel found that the state had proved its aggravating factor, that the murders were committed in an especially cruel manner. See General Statutes (Rev. to 1995) § 53a-46a (h) (4). This finding was based on evidence demonstrating that the defendant had engaged in a prolonged and violent assault on his former wife, during which he beat her severely and stabbed her multiple times, ignoring her anguished cries that he was hurting her and begging for help. The defendant then turned on his son, chased him down as he attempted to escape and repeatedly stabbed him.
“The defendant claimed the two statutory mitigating factors of significant impairment of his mental capacity and significant impairment of his ability to conform his conduct to the requirements of the law as well as twenty-five nonstatutory mitigating factors.... [T]he panel found that the defendant had proved the factual underpinnings of four nonstatutory mitigating factors. They were: (1) that the defendant was neglected, abandoned and the product of an abusive family unit during his childhood; (2) that the defendant had been a model prisoner at all times since his incarceration for the murders; (3) that he dropped out of school at age sixteen; and (4) that he was a good employee and a productive worker. The panel further found, however, that none of the nonstatutory mitigating factors, alone or in combination, constituted a mitigating factor considering all of the facts and circumstances of the case. Accordingly, the panel sentenced the defendant to death.” Breton III, supra, 264 Conn. 428.
“In State v. Day, supra, 233 Conn. 813, 815-16, the defendant was convicted of four counts of murder in violation of § 53a-54a and one count of multiple murder capital felony in violation of § 53a-54b (8) [now (7)] for the shooting deaths of four individuals, one of whom was a five year old child. Id.
“The state sought to prove the aggravating factor that the defendant had committed the crime in an especially heinous, cruel or depraved manner. The state presented testimony that one of the adult victims died from multiple gunshot wounds to the head, all fired at close range, and evidence from the trial indicated that the defendant repeatedly kicked that individual, probably while he was unconscious. The state offered further testimony indicating that the cause of death for a second adult victim was multiple gunshot wounds to the head and chest, any one of which could have caused her death. The state offered testimony regarding the third adult victim indicating that she was killed by two gunshot wounds to the head, both fired at close range and capable of causing her death. There was additional evidence suggesting that that victim had been strangled and struck in the head with a shovel, most likely after she was unconscious or dead. Finally, the state offered testimony indicating that the child victim was murdered by a single gunshot wound to the back of the head, killing him almost instantly.
“At the close of state’s evidence, the defendant moved to dismiss the penalty phase hearing and moved for imposition of a life sentence. The trial court found that the state had not presented a prima facie case from which the jury reasonably could infer that the aggravating factor had been proved by the state, and it granted the defendant’s motion to dismiss and motion for imposition of a life sentence.” Breton III, supra, 264 Conn. 431-32.
As we have noted, we limit our comparison of the cases involving multiple murder to the murders of April B. and Leslie S. We first consider the case in which the sentencer imposed the death penalty, namely, Breton III. In Breton III, supra, 264 Conn. 336, the sentencer found that the defendant had committed each of the two murders in an especially cruel manner and rejected all of his claimed mitigating factors, including the statutory mitigating factors raised by the defendant in the present case. We perceive no gross disparity between the conduct underlying this offense and the conduct underlying the defendant’s murders of April B. and Leslie S. or in the sentencers’ treatment of aggravating and mitigating factors.
We next compare the defendant’s sentences for the murders of Leslie S. and April B. to those cases involving multiple murder in which a life sentence was imposed, namely, Steiger, Roseboro, Wood, Griffin and Day. We conclude that there exists a meaningful difference between each of these cases and the murders of Leslie S. and April B. Specifically, in Steiger, the defendant claimed, inter alia, that he had suffered from severe paranoid schizophrenia, and two members of the three judge panel concluded that he suffered from a significant mental impairment; in Roseboro, the three judge panel found the mitigating factor that the defendant had adjusted well to incarceration; in Wood, the defendant presented evidence that he suffered from severe personality disorders, atypical psychosis and paranoid schizophrenic process, and the juiy determined that he had established the statutory mitigating factor of mental impairment; in Griffin, the defendant presented evidence that the role of her codefendant in the murders remained uncertain, that she had no record of criminal activity, that she was unlikely ever to be a violent threat in the future and other mitigating circumstances not claimed by the defendant in the present case, and the jury found an unspecified mitigating factor; and in Day, the trial court found that the state had not established a prima facie case in support of the aggravating factor. We conclude that the differences between each of these cases and the sentences for the murders of Leslie S. and April B. meaningfully account for the difference in result.
“On the basis of this analysis, of our scrupulous examination of all of the material presented to us regarding the imposition of the death penalty in the present case, and of our careful review of the material presented to us regarding the imposition of the sentences in the other [twenty-three] similar cases, we conclude that the death sentence is not ‘excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.’ General Statutes § 53a-46b (b) (3). There is nothing freakish, arbitrary, wanton or aberrational about the sentence in this case. There is no pattern or trend evident in similar cases with respect to which this sentence is inconsistent. This case is not an outlier. The various sentencers’ evaluations of similar aggravants and claimed mitigants in the other similar cases is reasonably consistent with the [panel’s] evaluation of the aggravants and claimed mitigants in this case. The death sentence in this case is reasonably consistent with the sentences of death imposed in the [three cases] in which that sentence was imposed, considering the aggravants found and the mitigants claimed. The death sentence in this case is reasonably consistent with the sentences of life imprisonment in the [twenty] similar cases in which that sentence was imposed, considering the aggravants found and the mitigants claimed; there is nothing freakish, aberrational or arbitrary in [the jury’s] having imposed the death penalty in this case and [the sentencers’] having declined to do so in the other [twenty] cases. The sentence in this case is reasonably consistent with the sentences imposed in the pool of similar cases.” State v. Webb, supra, 238 Conn. 550-51.
The judgments are affirmed.
In this opinion VERTEFEUILLE, ZARELLA, LAVERY, FOTI and DRANGINIS, Js., concurred.
The cases were consolidated for trial. See State v. Ross, 230 Conn. 183, 225, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995).
General Statutes § 53a-54b provides in relevant part: “A person is guilty of a capital felony who is convicted of any of the following... (5) murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or bo returned to safety; (6) murder committed in the course of the commission of sexual assault in the first degree .'..
The criminal conduct in this case occurred in 1983 and 1984. Section 53a-54b has been amended several times since 1984 for purposes not relevant to this appeal. For convenience, we cite the current version of the statute although we take note of the fact that prior to the enactment of No. 01-151, § 3, of the 2001 Public Acts, the provision of the statute concerning murder committed in the course of the commission of sexual assault in the first degree had been designated subdivision (7) rather than subdivision (6).
State v. Ross, 225 Conn. 559, 561, 624 A.2d 886 (1993), was referred to as Ross I in State v. Cobb, 234 Conn. 735, 663 A.2d 948 (1995). We therefore refer in this opinion to State v. Ross, supra, 230 Conn. 183, as Ross II, and to State v. Ross, 251 Conn. 579, 742 A.2d 312 (1999), as Ross III.
Because the defendant committed the crimes that were the basis of his convictions in 1983 and 1984; Ross II, supra, 230 Conn. 191-92; the applicable version of § 53a-46a would normally have been the revision of 1983. In Ross II, supra, 280-83, however, this court concluded that Public Acts 1985, No. 85-366, § 1 (d), first codified at General Statutes (Rev. to 1987) § 53a-46a (d), applied retroactively to this case. In 1993, the legislature amended § 53a-46a for purposes not relevant to this appeal. See Public Acts 1993, No. 93-306, § 12, currently codified at § 53a-46a (i) (7). In 1995, the legislature amended the statute to include substantive provisions that are not retroactively applicable to this case. See Public Acts 1995, No. 95-19, § 1, currently codified in part at § 53a-46a (g). For convenience, uniformity and clarity, all references and citations in this opinion to § 53a-46a are to that statute as revised to 1987.
General Statutes (Rev. to 1987) § 53a-46a provides in relevant part: “(a) A person shall be subjected to the penalty of death for a capital felony only if a hearing is held in accordance with the provisions of this section.
“(b) For the purpose of determining the sentence to be imposed when a defendant is convicted of ... a capital felony, the judge... who presided at the trial... shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, including any mitigating factor set forth in subsection (g), and any aggravating factor set forth in subsection (h).... Such hearing shall be conducted (1) before the jury which determined the defendant’s guilt, or (2) before a jury impaneled for the purpose of such hearing if (A) the defendant was convicted upon a plea of guilty; (B) the defendant was convicted after a trial before three judges as provided in subsection (b) of section 53a-45; or (C) if the jury which determined the defendant’s guilt has been discharged by the court for good cause or, (3) before the court, on motion of the defendant and with the approval of the court and the consent of the state.
“(c) In such hearing the court shall disclose to the defendant or his counsel all material contained in any presentence report which may have been prepared. No presentence information withheld from the defendant shall be considered in determining the existence of any mitigating or aggravating factor. Any information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but the admissibility of information relevant to any of the aggravating factors set forth in subsection (h) shall be governed by the rules governing the admission of evidence in such trials. The state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any mitigating or aggravating factor. The burden of establishing any of the factors set forth in subsection (h) shall be on the state. The burden of establishing any mitigating factor shall be on the defendant.
“(d) In determining whether a mitigating factor exists concerning the defendant’s character, background or history, or the nature and circumstances of the crime, pursuant to subsection (b) of this section, the jury... shall first determine whether a particular factor concerning the defendant’s character, background or history, or the nature and circumstances of the crime, has been established by the evidence, and shall determine further whether that factor is mitigating in nature, considering all the facts and circumstances of the case. Mitigating factors are such as do not constitute a defense or excuse for the capital felony of which the defendant has been convicted, but which, in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of his culpability or blame for the offense or to otherwise constitute a basis for a sentence less than death.
“(e) The jury... shall return a special verdict setting forth its findings as to the existence of any aggravating or mitigating factor.
“(f) If the jury... finds that one or more of the factors set forth in subsection (h) exist and that no mitigating factor exists, the court shall sentence the defendant to death. If the jury... finds that none of the factors set forth in subsection (h) exists or that one or more mitigating factors exist, the court shall impose a sentence of life imprisonment without the possibility of release.
“(g) The court shall not impose 1he sentence of death on the defendant if the jury... finds by a special verdict, as provided in subsection (e), that any mitigating factor exists. The mitigating factors to be considered concerning the defendant shall include, but are not limited to, the following: That at the time of the offense (1) he was under the age of eighteen or (2) his mental capacity was significantly impaired or his ability to conform his conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution or (3) he was under unusual and substantial duress, although not such duress as to constitute a defense to prosecution or (4) he was criminally liable under sections 53a-8, 53a-9 and 53a-10 for the offense, which was committed by another, but his participation in such offense was relatively minor, although not so minor as to constitute a defense to prosecution or (5) he could not reasonably have foreseen that his conduct in the course of commission of the offense of which he was convicted would cause, or would create a grave risk of causing, death to another person.
“(h) If no mitigating factor is present, the court shall impose the sentence of death on the defendant if the jury... finds by a special verdict as provided in subsection (e) that ... (4) the defendant committed the offense in an especially heinous, cruel or depraved manner... .”
General Statutes § 51-199 (b) provides in relevant part: “The following matters shall be taken directly to the Supreme Court ... (3) an appeal in any criminal action involving a conviction for a capital felony ... (4) review of a sentence of death pursuant to section 53a-46b... .”
General Statutes (Rev. to 1987) § 53a-46b provides: “(a) Any sentence of death imposed in accordance with the provisions of section 53a-46a shall be reviewed by the supreme court pursuant to its rules. In addition to its authority to correct errors at trial, the supreme court shall either affirm the sentence of death or vacate said sentence and remand for imposition of a sentence in accordance with subdivision (1) of section 53a-35a.
“(b) The supreme court shall affirm the sentence of death unless it determines that: (1) The sentence was the product of passion, prejudice or any other arbitrary factor; (2) the evidence fails to support the finding of an aggravating circumstance specified in subsection (h) of section 53a-46a; or (3) the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.
“(c) The sentence review shall be in addition to direct appeal and if taken, the review and appeal shall be consolidated for consideration. The court shall then render its decision on the legal errors claimed and the validity of the sentence.”
All references in this opinion to § 53a-46b are to that statute as revised to 1987, a technical change in the statute having been effected by the enactment of Public Acts 1985, No. 85-366, § 2, to reflect a change to § 53a-46a by § 1 of the same public act. See footnote 4 of this opinion.
The defendant sought to prove as statutory mitigating factors under § 53a-46a (g) (2) that: (1) “[a]t the time of the offenses, [the defendant’s] mental capacity was significantly impaired but not so impaired as to constitute a defense to the prosecution”; and (2) “[a]t the time of the offenses, [the defendant’s] ability to conform his conduct to the requirements of the law was significantly impaired but not so impaired as to constitute a defense to the prosecution.”
The defendant sought to prove as nonstatutory mitigating factors that: (1) “[the defendant] has demonstrated remorse with regard to his crimes”; (2) “[the defendant] cooperated with the police, which allowed the police to solve the homicides in question”; (3) “[the defendant] gave both oral and written statements to the state police admitting his guilt, demonstrating his regret”; (4) “[the defendant] continued to be extremely cooperative with the state police, fully admitting in both oral and written statements, his participation in five other homicides, further demonstrating his regret”; (5) “[the defendant’s] cooperation with police was the major factor in solving the homicides in these cases, locating the various crime scenes and his cooperation and full admission of guilt led to his convictions”; (6) “[the defendant] has adjusted weE to prison over the years and is a good, productive and cooperative inmate”; (7) “[p]rior to and after his arrest, [the defendant] has maintained positive relationships with other people, the Eves of them would greatly suffer if he was executed”; (8) “[the defendant] at times in his life has demonstrated responsibEEy as a human being and a strong work ethic”; (9) “[the defendant] voluntarily took medication to help suppress and control the recurrent unwanted sexuaEy sadistic urges, which were the source of his mental illness”; (10) “[considerations of fairness and mercy [are reasons] for the jury to impose six consecutive life sentences, totaling 360 years”; (11) “ [the defendant] is presently serving two consecutive life sentences, totaling 120 years”; (12) “[tjhere exists a factor concerning the facts and circumstances of the case which has not been specifically mentioned in this Est which the jury can consider in fairness and mercy as constituting a basis for imposing on [the defendant] a sentence of life imprisonment, rather than sentencing him to death”; (13) “[tjhere exists a factor in [the defendant’s] character, history, and/or background that has not been specificaEy mentioned in this list that the jury can consider in fairness and mercy as constituting a basis for a sentence of life rather than sentencing him to death”; (14) “[t]hat any of the above Ested factors, either taken individuaEy or in combination with any other factor, whüe not an excuse for the murders, but in fairness or mercy provides a reason for a sentence of life without the possibiEty of release, instead of a sentence of death.”
General Statutes § 54-82g provides: “The accused may challenge peremptorily, in any criminal trial before the Superior Court for any offense punishable by death, twenty-five,jurors; for any offense punishable by imprisonment for life, fifteen jurors; for any offense the punishment for which may be imprisonment for more than one year and for less than life, six jurors; and for any other offense, three jurors. In any criminal trial in which the accused is charged with more than one count on the information or where there is more than one information, the number of challenges is determined by the count carrying the highest maximum punishment. The state, on the trial of any criminal prosecution, may challenge peremptorily the same number of jurors as the accused.”
General Statutes § 54-82h (a) provides: “In any criminal prosecution to be tried to the juiy in the Superior Com! if it appears to the court that the trial is likely to be protracted, the court may, in its discretion, direct that, after a jury has been selected, two or more additional jurors shall be added to the jury panel, to be known as ‘alternate jurors’. Such alternate jurors shall have the same qualifications and be selected and subject to examination and challenge in the same maimer and to the same extent as the jurors constituting the regular panel, provided, in any case when the court directs the selection of alternate jurors, the number of peremptory challenges allowed shall be as follows: In any criminal prosecution the state and the accused may each peremptorily challenge thirty jurors if the offense for which the accused is arraigned is punishable by death, eighteen jurors if the offense is punishable by life imprisonment, eight jurors if the offense is punishable by imprisonment for more than one year and for less than life, and four jurors in any other case.”
Article first, § 19, of the constitution of Connecticut, as amended by article four of the amendments, provides: “The right of trial by juiy shall remain inviolate, the number of such jurors, which shall not be less than six, to be established by law; but no person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent. In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. The right to question each juror individually by counsel shall be inviolate.”
The sixth amendment to the United States constitution, which is made applicable to the states through the fourteenth amendment, provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury... .”
The fourteenth amendment to the United States constitution § 1, provides in relevant part: “No State shall... deprive any person of life, liberty or property, without due process of law... .”
Article first, § 8, of the constitution of Connecticut, as amended by articles seventeen and twenty-nine of the amendments, provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except, in the armed forces, or in the militia when in actual service in time of war or public danger.”
It is not clear from the record why four alternate jurors were empaneled during the original jury selection and six alternate jurors were selected during the second jury selection.
See also State v. Mozell, 36 Conn. App. 631, 633, 652 A.2d 1038 (1995) (trial court’s failure to excuse two venirepersons for cause did not deprive defendant of fair and impartial jury because no juror was forced on defendant who “did not request an additional peremptory challenge to exercise against any of the seated jurors nor was there any indication that the defendant would have used a peremptory challenge against any of them if one had been available”), cert. denied, 232 Conn. 917, 655 A.2d 261 (1995); Johnson v. State, 43 S.W.3d 1, 7 (Tex. Crim. App. 2001) (“harm was shown for the erroneous denial of the appellant’s challenges for cause because the record indicatefd] that the appellant (1) used a peremptory challenge to remove the venire members, (2) exhausted his peremptory challenges, (3) requested and was denied additional peremptory challenges, and (4) identified two objectionable venire members who sat on the jury and on whom the appellant would have exercised peremptory challenges had he not exhausted his peremptory challenges to correct the trial court’s erroneous denial of his challenges for cause”); State v. Percy, 156 Vt. 468, 477, 595 A.2d 248 (1990) ("the appellant must show that the challenge for cause [was] denied and all peremptory challenges [wore] subsequently exhausted... [and] that the record reflectsfs] that, had the party had an additional peremptory challenge available, the party would have used it to strike another juror” [citations omitted; internal quotation marks omitted]), cert. denied, 502 U.S. 927, 112 S. Ct. 344, 116 L. Ed. 2d 284 (1991).
In Witherspoon v. Illinois, 391 U.S. 510, 521-23, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), the United States Supreme Court concluded that it was unconstitutional to exclude a prospective juror who expressed scruples against the death penalty but who could, nevertheless, be impartial. See Gray v. Mississippi, supra, 481 U.S. 657-58. In Wainwright v. Witt, 469 U.S. 412, 420, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985), the court clarified that the relevant inquiry in determining whether exclusion of a prospective juror was improper is whether “[the juror’s] views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” (Internal quotation marks omitted.) See Gray v. Mississippi, supra, 658.
Having concluded that any potential error by the trial court in denying the defendant’s for cause challenges was necessarily harmless, we also decline the defendant’s invitation to exercise our supervisory powers to review the merits of those rulings.
In response to defense counsel’s questions, prospective juror no. 16886 indicated that she could “follow the law to evaluate the evidence”; she “probably” could put aside her personal views and decide mitigating and aggravating factors if she were sworn in as a juror; and if sworn to uphold the law, her views on capital punishment would not prevent her from adhering to her oath.
See footnote 9 of this opinion for the text of article first, § 19, of the constitution of Connecticut, as amended by article four of the amendments.
General Statutes § 54-82f provides: “In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. If the judge before whom the examination is held is of the opinion from the examination that any juror would be unable to render a fair and impartial verdict, the juror shall be excused by the judge from any further service upon the panel, or in the action, as the judge determines. The right of such examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of said action.”
Practice Book § 42-12 provides: “Each party shall have the right to examine, personally or by counsel, each juror outside the presence of other prospective jurors as to qualifications to sit as a juror in the action, or as to interest, if any, in the subject matter of the action, or as to relations with the parties thereto. If the judicial authority before whom such examination is held is of the opinion from such examination that any juror would be unable to render a fair and impartial verdict, such juror shall be excused by the judicial authority from any further service upon the panel, or in such action, as the judicial authority determines. The right of such examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of the trial.”
The venireperson’s niece was one of two victims killed by the defendant in Windham county. Those murders are not at issue in this case.
It appears from the record that these two venirepersons were not on the panel from which the jurors in this case were selected, but were in the room where the court clerk had sent the venireperson after he stated that he could not be objective.
See also State v. Malave, 47 Conn. App. 597, 606, 707 A.2d 307 (1998), aff'd, 250 Conn. 722, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000). In Malave, the Appellate Court stated: “[W]e are not persuaded that the supervisory mandate of Brown sweeps so broadly as to require the trial court to recall, sua sponte, selected jurors for further questioning during voir dire regarding possible taint from an improper remark by someone in the venire. [Brown] operates in the sphere of juror misconduct claims, while the voir dire process properly allows counsel to investigate fully bias, preconceived notions and the like. The voir dire process is designed to weed out those who are unfit to serve because of prejudicial notions.” Id. We agree with this analysis of Brown and, accordingly, conclude that Brown did not supersede Ziel.
See footnotes 8, 9, 19 and 20 of this opinion.
We emphasize that the defendant’s claim involves an attempt to question venirepersons on their views of a nonstatutory mitigating factor. In determining whether such a factor exists, the jury must make both a factual finding and a moral decision whether a proved fact is mitigating in light of all of the facts and circumstances of the case. If a defendant claims, for example, that the fact that he graduated from college is mitigating, the law does not require that a juror who finds that fact must also find that the fact is mitigating. Morgan does not require the trial court to allow a defendant to stack the jury with jurors who would be sympathetic to such a claim. Nor does Morgan require the trial court to permit the defendant to ascertain the specific claims to which the jury would be sympathetic.
In contrast, jurors must consider the mitigating nature of statutory mitigating factors. Although we conclude in this case that the defendant is not entitled to ask jurors about their views on specific nonstatutory mitigating factors, the defendant may ask jurors whether they would be able to follow the law requiring them to give effect to statutorily mitigating facts. This distinction may explain the “paradox” pointed to by the defendant that the trial court in the present case allowed him to ask venirepersons about psychiatric evidence supporting his claimed statutory mitigating factor but not about other mitigating claims.
The defendant concedes that the specific issue before us has not been addressed previously by this court, but states that Connecticut law malees clear that “parties must be allowed adequate exploration of subjects which could uncover bias relevant to the particular case.” That, of course, is undisputed. The cases cited by the defendant do not, however, support the proposition that parties should be able to ascertain prospective jurors’ opinions of any and all evidence in advance of the trial. For example, in State v. Barnes, 16 Conn. App. 333, 547 A.2d 584 (1988), the defendant was charged with stealing Christmas gifts from under a Christmas tree. The trial court prohibited voir dire on the venirepersons’ views of Christmas. The defendant then asked the court to bar the state from mentioning Christmas at trial. The court denied the request. Id., 337. During trial, the state repeatedly referred to Christmas. Id., 337 n.l. On appeal, the Appellate Court held that, because there was a real risk that the fact that the defendant was charged with stealing Christmas presents could impair a juror’s ability to be impartial, the trial court improperly had prohibited the line of questioning. Id., 337-38.
In Barnes, however, unlike the present case, the defendant sought to question prospective jurors on evidence that the state was certain to introduce at trial and that could have affected the jurors’ ability to be impartial. There was no concern in that case that the defendant could have used the voir dire responses to develop his trial strategy or to obtain a commitment from a venireperson to vote a certain way if the defendant presented specific evidence.
Indeed, the defendant states that “many citizens believe that taxpayers should not be burdened with the cost of supporting criminals for life, and that nothing such people can contribute from prison would justify the cost of their incarceration.” To the extent that the defendant claims that this characterization is true of Connecticut citizenry, it would appear to undermine, not support, the defendant’s position. Because the record does not support this factual allegation, however, we do not consider it.
See footnote 9 of this opinion.
The court in Comeaux stated that the defendant had raised a number of issues on appeal that involved “only settled principles of law” and that it had addressed those issues “in an unpublished appendix, which is attached to this opinion and is a part of the official record.” State v. Comeaux, supra, 699 So. 2d 18 n.2. The appendix may be found at State v. Comeaux, 1997 La. LEXIS 1719 (1997).
The state originally charged the defendant with having committed four counts of capital felony in connection with the murders of Leslie S. and April B. After a finding of probable cause on all counts, the trial court, Hendel, J., dismissed the count charging the defendant with capital felony in the sexual assault and murder of April B. and the count charging the defendant with capital felony based on a double homicide committed in one transaction, for lack of territorial jurisdiction. Ross II, supra, 230 Conn. 188 n.2.
We recognize that the trial court at the second penalty phase did not expressly rely on the law of the case in ruling on the defendant’s motion to sever. Instead, it considered the motion on its merits and applied the same analysis that this court applied in Ross II. Because we conclude that our determination in Ross II that the trial court did not abuse its discretion in denying the defendant’s motion to sever the cases before the guilt phase is not only the law of the case but also was correct on its merits, we also conclude that the trial court’s ruling at the second penalty phase, considered on its merits, was not an abuse of discretion.
After his arrest for the offenses at issue in this case, the defendant pleaded guilty to two additional murders in Windham county. He ultimately pleaded nolo contendere to those murders and was sentenced to two consecutive life sentences.
General Statutes § 54-56d provides in relevant part: “(a) A defendant shall not be tried, convicted or sentenced while he is not competent. For the purposes of this section, a defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense.
“(b) Presumption of competency. A defendant is presumed to be competent. The burden of proving that the defendant is not competent by a preponderance of the evidence and the burden of going forward with the evidence are on the party raising the issue. The burden of going forward with the evidence shall be on the state if the court raises the issue. The court may call its own witnesses and conduct its own inquiry.
“(c) Request for examination. If at any time during a criminal proceeding it appears that the defendant is not competent, counsel for the defendant or for the state, or the court, on iis own motion, may request an examination to determine the defendant’s competency.
“(d) Examination of defendant. Report. If the court finds that the request for an examination is justified and that, in accordance with procedures established by the judges of the Superior Court, there is probable cause to believe that the defendant has committed the crime for which he is charged, the court shall order an examination of the defendant as to his competency... .”
The transcript of the hearing contains the following exchanges:
“The Court: What are the issues for the jury in the upcoming hearing?
“[The Defendant]: They will be fact finders to determine whether an aggravating factor exists. And whether or not a mitigating factor exists.
“The Court: And how would you define an aggravating factor?
“[The Defendant]: The aggravating factor in my particular case is especially cruel and heinous and depraved.
“The Court: And who has to prove that?
“[The Defendant]: The state.
“The Court: And what’s the burden of proof on the state? What’s the standard of proof?
“[The Defendant]: Beyond a reasonable doubt.
“The Court: And what’s a mitigating factor?
“[The Defendant]: Basically, the main one claimed in my case would be a significant mental illness but a mitigating factor in general is anything that is a reason for less than death.
“The Court: And whose burden is it to demonstrate a mitigating factor?
“[The Defendant]: The defense.
“The Court: By what standard of proof?
“[The Defendant]: By the preponderance of the evidence.
“The Court: What result by the fact finder if no aggravating factors are proven and no mitigating factors are proven?
“[The Defendant]: In that event, the judge is bound by law to sentence me to life imprisonment on each count.
“The Court: What if the aggravating factors are proven and mitigating factors are proven?
“[The Defendant]: Then it is the same result.
“The Court: What if no aggravating factor is proven and a mitigating factor is proven, what result?
“[The Defendant]: I would have to be sentenced by law to life in prison... .”
“The Court: Under what circumstances could the death penalty be imposed?
“[The Defendant]: Only if an aggravating factor is found and no mitigating factor is found.”
The defendant originally had claimed both that he was unable to assist counsel and that he was unable to understand the nature of the proceedings, but he abandoned the latter claim at the hearing.
This determination was supported by the following exchange at the November 20, 1988 hearing.
“The Court: Are you willing to cooperate with your attorneys in their efforts to get that information from you that they could perhaps use in mitigation?...
“[The Defendant]: Will I cooperate with them? I do what they tell me. I try to anyway as best I can.
“The Court: Is there any reason that you have that you feel that you are unable to talk or communicate with your lawyers?
“[The Defendant]: I talk to them. It’s just we have—they don’t understand things and see things the way that I do, I don’t think. They try to, but their job is to get me a life sentence no matter what, and I don’t feel that way. My—sometimes the cost is too high.
“The Court: Sometimes what, sir?
“[The Defendant]: Some things—the cost of what is going to happen is just too high.
“The Court: What do you mean by that?
“[The Defendant]: I spent four years trying to accept the death penalty, Your Honor, because I don’t want to hurt people any more. And it just seems like I’m in this big meat grinder and nobody gives a damn. I know they mean well, but, they just don’t understand.”
Miller’s letter, dated February 15, 1987, states in its entirety:
“Dear Bob, Because of the long lime since I have heard from you concerning one of the cases I saw for you, I have had a great deal of time to go over in my mind how feasible the stand we had anticipated I would take might be.
The result of all this rumination is this personal letter which I write without any copies. As you assume, it is a demurral and a reverse of my earlier intemperate stand, which was based more on emotion than reason.
After deliberation I [can’t] see how I could testify against psychopathology playing a sufficient role in defendant’s behavior to mitigate the type of penalty. If it had been only one or two incidents I could have held up, but the repetitive nature of the acts as well as past history of assaultive behavior make my (our) position untenable. Accordingly I must back out of the case, even if it is such a late date.
If it is of any assistance to you, I have had to see an ENT specialist several times recently, and will have to [see] him in a month again at which time I may have to enter a hospital for further tests, so you could tell the Court I have to be excused for reasons of health.
Regards to Tommy.
Bob Miller.” (Internal quotation marks omitted.) Ross II, supra, 230 Conn. 272 n.39.
The defendant claims that he also sought to prove as nonstatutory mitigating factors that his mental capacity was impaired but not so impaired as to constitute a statutory mitigating factor and that his ability to conform his conduct to the requirements of the law was impaired but not so impaired as to constitute a statutory mitigating factor. We note that these were not listed in the defendant’s list of proposed mitigating factors, and the trial court did not instruct the jury on them. Nevertheless, if the jury determined that the defendant had proved that he had a mental impairment that did not meet the requirements of § 53a-46a (g) (2), it was free to find such an impairment mitigating.
See part VIA of this opinion for a summary of the mitigating evidence presented by the defendant.
Specifically, the following exchange was read to the jury:
‘■[State’s Attorney Satti]: Do you have an opinion, Doctor, as to whether or not a sexual sadist can control his actions when he is doing something of a sexually sadistic nature at the time he’s doing it?
“[Miller]: Yes, a sexual sadist can control his behavior.”
See also Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). In Crawford, the United States Supreme Court held that the confrontation clause requires that, for prior testimony to be admissible, the defendant must have had an opportunity to cross-examine the witness. Id., 68. Crawford overruled Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), to the extent that that case suggested that the prior testimony of an unavailable witness is admissible even if the party against whom it was admitted did not have an opportunity to cross-examine the witness if the statement either falls within a “firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness.” (Internal quotation marks omitted.) Crawford v. Washington, supra, 60.
Contrary to the defendant’s argument that insanity and mental impairment are “mutually exclusive,” a finding that the defendant was insane necessarily would encompass a finding that he was mentally impaired. In an apparent attempt to forestall this argument, the defendant states in his brief that “[t]o prove mental impairment, a defendant by statute concedes that he is not insane.” (Emphasis in original.) We recognize that the statutory mitigating factors claimed by the defendant specifically provide that the defendant’s mental state and ability to conform his conduct to the require-merits of the law were “not so impaired ... as to constitute a defense to prosecution”; General Statutes (Rev. to 1987) § 53a-46a (g) (2); i.e., that he was not insane. We do not read this language as precluding the defendant from presenting evidence that he suffered from any particular degree of mental impairment, up to and including insanity, however. Rather, we conclude that the language was intended (1) to acknowledge that, as a general rule, if the defendant could establish that he was insane, he would not be in the position of having to establish a mitigating factor and (2) to make clear that the defendant is not required to prove that his mental impairment would be a complete defense to the prosecution in order to establish a mitigating factor. There may be circumstances in which the defendant did not establish, or did not even attempt to establish, an insanity defense at the guilt phase but wished to introduce evidence of insanity at the penalty phase. We can perceive no legal impediment to the introduction of such evidence. Cf. Bell v. Cone, 535 U.S. 685, 691, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) (defendant relied exclusively on evidence of insanity presented at guilt phase to establish mitigating factor).
The state argues that the defendant not only had the opportunity to cross-examine Miller at the guilt phase, but also could have called him to testify about the letter as a defense witness at the first penalty phase. It further argues that because the defendant made the tactical choice not to do so, he cannot now complain that he was prevented from confronting Miller with the letter. The defendant counters that he could not have predicted at that time that this court would order a new penalty phase or that Miller would have died before the second proceeding could be held and, therefore, that he should not be deemed to have waived forever his right to examine Miller on the letter. Because we have concluded that the issues at the guilt phase and at the second penalty phase were substantially similar and that the defendant had an opportunity to cross-examine Miller at the guilt phase so as to endow the testimony with sufficient indicia of reliability, the defendant’s decision not to call Miller as a witness at the first penalty phase has no bearing on our resolution of this issue.
The defendant also argues that Miller’s testimony was prejudicial because it was the only evidence “enabling the state to argue that the defendant’s ability to control himself was not impaired, even if he is a sexual sadist.” Specifically, he points to the state’s statement during closing arguments that “sexual sadism doesn’t prevent people from controlling their behavior.” Thus, the state did not argue that the defendant’s ability to control himself was not impaired, but that, in general, sexual sadism does not prevent people and, by implication, the defendant, from controlling their behavior. We have already concluded that Miller’s testimony was admissible for the purpose of raising this inference.
The court charged the jury that “this case was a little bit unusual, because we had statements that came before you... [such as] the prior testimony of Dr. Miller .... And [that evidence was] introduced substantively, for substantive pulposas.”
Several of our sister states have reached the same conclusion. See State v. Rose, 120 N.J. 61, 65, 576 A.2d 235 (1990) (testimony of clergymen regarding religious propriety of death penalty was inadmissible because “[t]he morality ... of the death penalty... [does] not speak to the specific defendant or crime”); State v. Clark, 128 N.M. 119, 132, 990 P.2d 793 (1999) (personal beliefs and religious doctrine on morality of death penalty were “not relevant to [the defendant’s] character, record or circumstances of his offense”); Commonwealth v. Daniels, 537 Pa. 464, 480, 644 A.2d 1175 (1994) (arguments to jury that death penalty is immoral and against religious beliefs “were not relevant to [the defendant’s] background, character, orto the circumstances of the crime” and were properly restricted by trial court).
Grayson’s testimony and the inconsistencies between statements made by the defendant to Grayson and to Zonana are summarized in part VI A of this opinion.
General Statutes § 52-146e (a) provides: “All communications [between psychiatrist and patient] and records as defined in section 52-146d shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146j, inclusive. Except as provided in sections 52-146Í to 52-146Í, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.”
In his reply brief, the defendant argues that Steiger is distinguishable from this case because the psychiatric materials at issue in Steiger had been prepared by the state’s expert who, unlike Zonana, had not made any promise of confidentiality to the defendant. The defendant makes no claim, however, that Zonana’s promise of confidentiality was anything more than an enunciation of the statutory psychiatrist-patient privilege which, like the fifth amendment privilege at issue in Steiger, is waived when the defendant places his mental status in issue. See Ross II, supra, 230 Conn. 214.
The defendant does claim that he was never told that the videotapes could be used “against” him. The videotapes were not used “against” him, however, but were used to weaken the force of favorable psychiatric evidence presented by the defendant after he chose to place his mental status in issue. To the extent that the defendant claims that his counsel could not have known that the videotapes could be used in rebuttal until the trial court ruled that they were admissible, we conclude, on the basis of Buchanan v. Kentucky, supra, 483 U.S. 402, Ross II, supra, 230 Conn. 183, and State v. Steiger, supra, 218 Conn. 349, and in light of the court-ordered disclosure of the videotapes to the state at the first penalty phase, that defense counsel presumptively was aware that there was a substantial likelihood that the videotapes would be subject to disclosure at the second penalty phase if the defendant claimed mental impairment. See Buchanan v. Kentucky, supra, 438 U.S. 425 (counsel was on notice that, if he put on mental status defense, he would have to anticipate use of psychological evidence by prosecution in rebuttal). Indeed, the defendant indicated before the second penalty phase that he intended to call Berlin as a witness and conceded during arguments on the admissibility of the videotapes that if he called Berlin they would be admissible.
Practice Book § 40-18 provides in relevant part: “If a defendant intends to introduce expert testimony relating to the affirmative defenses of mental disease or defect ... or another condition bearing upon the issue of whether he or she had the mental state required for the offense charged, the defendant shall... notify the prosecuting authority in writing of such intention and file a copy of such notice with the clerk. ...”
The materials disclosed by the state referred to news reports in 1987 that Walter Borden, the defendant’s expert psychiatrist, had stated that the defendant had told him that he had raped and killed a Vietnamese woman at Cornell University and had raped two other women in the same time period.
The defendant claims that the investigative reports showed that he also had attacked a fourth unidentified victim. The only reference to this attack is an entry in the investigative notes made by Scott Hamilton of the Cornell University department of public safety after the defendant had been implicated in the attempted rape of T.T., the rape of K.G. and the rape and murder of D.N.T., indicating that, during his investigation, he had learned that a female student had been robbed by a white male in the same area and during the same time period as the other offenses. The record contains no evidence tying the defendant to that robbery.
The defendant stated on the videotape that, while he was at Cornell, he had grabbed a woman by the side of the road, dragged her into the woods and raped her; he had grabbed another woman by the side of the road and dragged her through the woods, but let her go when she screamed and someone ran to her rescue; and he had grabbed a third woman from the side of the road, dragged her into the woods, raped her, strangled her and thrown her body into a lake. Grayson also testified at the penalty phase that the defendant had told him about a rape, an attempted rape and a rape-murder that he had committed while at Cornell. With respect to the attempted rape and the rape, Grayson testified that the defendant had told him that he had grabbed a woman from behind, dragged her into the woods and let her go when he heard voices, and that he had grabbed another woman, dragged her into some bushes, forced her to perform oral sex, raped her and let her go.
There is no evidence in the record that the defendant believed at the time of his arrest in Connecticut that his chances of being put to death as soon as possible were greater in Connecticut than in New York, the other jurisdiction in which he had committed murders. Indeed, the jury viewed a videotape of an interview between the defendant and one of his expert psychiatrists that occurred in 1985 in which he stated that he had concealed the New York crimes from his psychiatrists and attorneys because he “still hope[d] to someday, maybe if [he was] really lucky, [to] be out of this slum hole.” It also viewed a videotape of a July, 1994 interview given by the defendant to a British journalist in which he stated, “I just don’t want to have to be transferred to New York and go through all that shit in New York.”
For example, the defendant stated with respect to the murder of Wendy B. that, after he had raped her, he killed her because he “was scared and... didn’t know what to do because... [he] had been in trouble before.” He also stated that he killed her because he “knew if [he] got caught, [he] would be back in jail again.” With respect to the murder of Robyn S., the defendant stated that he killed her because she told him that he was going to be caught. With respect to April B., the defendant stated that he killed her because she was very “mouthy” and had told him that she had a relative who was a policeman and, therefore, he believed that it would not be an unreported rape. The defendant also stated that he killed the victims because he “just didn’t want to go back to jail,” and “if they never [had seen him], if like if [he] had a mask on or something... and they couldn’t recognize [him], then [he didn’t] think [he] would have hurt them. But [he] was so afraid of getting caught.”
The jury heard evidence that the clinical definition of sexual sadism is that the sufferer experiences, for aperiod of more than six months, recurrent, intense, sexual fantasies, sexual urges or behaviors involving acts that are real, not simulated, in which the psychological or physical suffering, including humiliation of the victim, is sexually exciting. The fantasies, sexual urges or behaviors must cause clinically significant distress or impairment in social, occupational or other important areas of functioning.
Berlin’s report suggested that sexual sadism is “driven by a powerful biological appetite” that can significantly impair the capacity to control one’s actions.
Grayson stated in his report that Merikangas’ report stated that the defendant “suffers from a biologically based brain disease which has been successfully treated [with medications]. These have resulted in the elimination of the overpowering and irresistible sexual urges which characterize his medical and psychiatric diagnosis of sexual sadism. The episodes which resulted in his imprisonment generally would happen in the context of depression and would consist of an irresistible impulse in the context of a dissociative state .... On one occasion, he chased a woman and was seen by at least a dozen witnesses and yet he was unable to conform his conduct to the requirements of law as a consequence of his damaged brain... .”
Grayson acknowledged that the defendant had not reported this form of abuse to any of his other psychiatrists. When he asked the defendant why he had not reported it, the defendant explained that he had not recalled the enemas until he was stabbed in prison in 1991 and was required to have a barium enema at the hospital.
Vivian S. ultimately was able to identify the defendant as the person who had raped her. The defendant stated to the police at the time of his arrest and confession, however, that he had not killed her because he had grabbed her from behind and he believed that she had not been able to see him.
The defendant argues that we should apply a less deferential standard of review to the fact finder’s determination that proved mitigating factors were not mitigating in nature. We recently rejected this same argument in State v. Breton, 264 Conn. 327, 369-70, 824 A.2d 778, cert. denied, 540 U.S. 1055, 124 S. Ct. 819, 157 L. Ed. 2d 708 (2003), and we decline to reconsider it here.
The defendant did submit the following request to charge on the aggravating factor: “[T]he state must affirmatively prove beyond a reasonable doubt that the additional conduct took place in the course of committing the murder during the kidnapping of [April B.] and [Leslie S.], as well as additional conduct took place in the course of the kidnapping/sexual assault murders of [Wendy B.[ and [Robyn S.]. If the additional conduct was not part of the capital felony transaction, that is the murder and the kidnapping, then this element of the aggravating factor has not been established.” We conclude that this language was not sufficient to put the trial court on notice that the defendant intended to claim that “[e]ven if the evidence had been sufficient as to the deaths, [the aggravating factor] applies not to the murders, but to the capital offenses.”
“Pursuant to State v. Golding, supra, 213 Conn. 233, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.... The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Santiago, 73 Conn. App. 205, 212 n.10, 807 A.2d 1048 (2002), cert, granted on other grounds, 262 Conn. 939, 815 A.2d 673 (2003).
This court in Courchesne specifically reserved the question of whether proof of an aggravated kidnapping or sexual assault followed by an unaggravated murder would satisfy the aggravating factor. State v. Courchesne, supra, 262 Conn. 554 n.14. Nor do we need to address that question here. A reasonable jury could have understood the trial court’s instructions on the aggravating factor to mean only that it must find that each murder was cruel, heinous or depraved. For example, the trial court instructed the jury that “a murder committed in an especially heinous, cruel or depraved manner which has been proven with regard to the defendant—and this is what the state is going to have to prove—that the defendant inflicted upon each victim extreme physical or psychological pain or torture above and beyond that necessarily accompanying the death of that victim, of each victim.... The state must prove beyond a reasonable doubt that it was the intentional conduct oí [the defendant] that inflicted extreme physical or psychological pain or torture on the victim, on each victim, above and beyond that necessarily accompanying the underlying killing.” (Emphasis added.)
In a videotaped interview with a journalist after the first penalty phase, which was introduced into evidence at the second penalty phase, the defendant denied having told the police that his fingers had cramped during the strangulations or that he had had to reapply his grip.
The inference that the defendant derived satisfaction from this method of killing would not be inconsistent with the jury’s determination that the defendant did not suffer from a significant mental impairment. The fact that the defendant enjoyed the suffering of his victims does not necessarily mean that his ability to refrain from inflicting that suffering was significantly impaired.
The trial court instructed the jury as follows. “1 told you earlier when we discussed aggravating factor, that you had to be unanimous. Regardless of what the verdict is, all twelve of you have to agree. Unanimity under mitigating factors is different. The rule of unanimity concerning mitigation is different. However, for each of the claimed mitigating factors, you must each individually decide whether or not the defendant has proven the mitigating factor by a preponderance of the evidence.
“If after concluding your deliberations about the existence of mitigating factors, you each determine that 1he defendant has proven at least one mitigating factor, then you have unanimously determined the existence of mitigation. You are not required to agree on the same mitigating factor, as long as a mitigating factor has been proven. To find that no mitigation exists in this case, you must each, individually, unanimously agree that no mitigating factor exists.”
In State v. Daniels, supra, 207 Conn. 394-97, this court concluded that § 53a-46a (e) does not require the trial court in a capital sentencing hearing to impose a life sentence if the jury is unable to agree on the existence of a mitigating factor and that the court has the discretion to declare a mistrial. The defendant urges us to overrule Daniels. Because the jury did not deadlock in the present case, we see no need to consider this issue.
Practice Book § 16-20 provides in relevant part: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. ...”
Indeed, the defendant’s request to charge included some of the challenged language.
The defendant took exception to the trial court’s instruction that the “other crimes” evidence was relevant only to the defendant’s claim that he “was suffering from a mental impairment and he could not control his behavior” on the ground that “[o]ur position was that it has to do with not control of behavior but whether he was significantly impaired.” This is not the issue that he raises on appeal, however. In any event, to the extent that the defendant claims this instruction, taken in isolation, suggested that the defendant had to prove that he could not control his behavior at all, we conclude that any such suggestion was corrected when the trial court instructed the jury that he had to prove that his “ability to control his conduct to the requirements of the law was significantly impaired, but not so impaired as to constitute a defense to the prosecution.” To the extent that the defendant claims that this instruction improperly required the jury to find a causal link between his impairment and the offenses, we address that claim in part VII P of this opinion.
The jury had received evidence that the defendant already had been sentenced to two consecutive life sentences totaling 120 years in connection with his plea of nolo contendere in the Windham murder cases.
At the time that the defendant committed the offenses, “life imprisonment” as used in § 53a-46a (f) meant “a definite sentence of sixty years.” General Statutes (Rev. to 1983) § 53a-35b.
The defendant submitted a request that the trial court instruct the jury that “[o]ur law does not require that the defendant prove that the significant mental impairment caused the defendant to commit the offense(s). Our law states only that ‘at (he time of the offense the defendant’s mental capacity was significantly impaired or his ability to conform his conduct to the requirements of the law was significantly impaired.’ [See General Statutes (Rev. to 1987) § 53a-46a (g) (2).] The law only requires that the mental impairment co-exist at the time of the offenses, not that the mental impairment caused the defendant to act as he did.”
We understand the defendant’s claim to be that the jury should have been instructed that, if it found that the defendant suffered from sexual sadism, then it must find that he had established the mitigating factor, even if it also determined that he was capable of refraining from committing the offenses. Under the circumstances of this case, if the jury determined that the defendant suffered from sexual sadism, it could not reasonably have found that that condition had no causal relation to the commission of the offenses. At the least, it would have had to find that the condition “caused” the offenses in the same sense that the desire for wealth “causes” theft, without thereby excusing it.
The mitigating factors enumerated in § 53a-46a (g) are by subdivision: (1) young age; (2) impaired ability to conform conduct to requirements of law; (3) unusual or substantial duress; (4) minor participation in offense; and (5) inability reasonably to foresee that conduct would result in another person’s death.
This malees sense in light of the constitutional and jurisprudential context in which § 53a-46a (g) (2) was enacted. As the legislative histoiy of § 53a-46a reflects, our death penalty statute was enacted in 1973; Public Acts 1973, No. 73-137; in response to Furman v. Georgia, supra, 408 U.S. 239-40. See, e.g., 16 H.R. Proc., Pt. 6, 1973 Sess., p. 2928, remarks of Representative James F. Bingham (“[t]his bill was drafted very carefully to comply with [Furman]”'). In Furman, the United States Supreme Court effectively invalidated death penalty statutes throughout the country, including this state’s death penalty statute, on the ground that the death penalty constitutionally “could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.” Gregg v. Georgia, 428 U.S. 153, 188, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). The legislative history of § 53a-46a establishes that the legislature’s overriding concern in enacting the statute was to meet this minimum constitutional requirement, i.e., to ensure that the statute provided a “meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.” Furman v. Georgia, supra, 313 (White, J., concurring). In this context, we find it likely that, in establishing the category of death-eligible cases in which the death penalty could not be imposed, the legislature was concerned with identifying the specific factual circumstances under which a reasonable person would find the imposition of the death penalty to be inherently unfair or disproportionate, not those that might be found to merit mercy in light of the specific circumstances of the case. It is also likely that the legislature understood, as has subsequently been recognized in the case law, that the death penalty is inherently inappropriate only in cases where the defendant’s moral culpability for the offense is reduced. Compare Atkins v. Virginia, supra, 536 U.S. 319 (identifying “diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses” as circumstances that inherently reduce moral culpability and make imposition of death penalty constitutionally suspect) with Lockett v. Ohio, supra, 438 U.S. 604 (sentencer cannot be precluded from considering, but is not constitutionally required to give effect to, any evidence proffered by defendant as basis for sentence less than death).
General Statutes § 53a-13 (a) provides: “In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the -wrongfulness of his conduct or to control his conduct within the requirements of the law.”
Under current law, the defendant may, of course, present mitigating evidence that does not reduce his moral culpability for the offense, hi 1985, the legislature amended the statute to include subsection (d) of the applicable version of the statute, which provides guidance to the fact finder in its determination of whether a nonstatutory mitigating factor exists and defines mitigating factors to be “such as do not constitute a defense or excuse for the capital felony of which the defendant has been convicted, but which, in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of his culpability or blame for the offense or to otherwise constitute a basis for a sentence less than death." (Emphasis added.) Public Acts 1985, No. 85-366, § 1 (d), codified at General Statutes (Rev. to 1987) § 53a-46a (d). We previously have recognized that “this statutory language codifies the defendant’s constitutional right to consideration of [those] compassionate or mitigating factors stemming from the diverse frailties of humankind. Caldwell v. Mississippi, [472 U.S. 320, 330, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985)]; Eddings v. Oklahoma, [455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982)]; Lockett v. Ohio, supra, 438 U.S. 586.” (Internal quotation marks omitted.) Ross II, supra, 230 Conn. 284. These “frailties of humankind” are not limited to those that reduce moral culpability for committing the offense. See Lockett v. Ohio, supra, 604 (sentencer cannot be precluded from considering any evidence proffered by defendant as basis for sentence less than death); see also Walton v. Arizona, 497 U.S. 639, 663, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990) (Scalia, J., concurring) (listing types of mitigating evidence that defendant may present), overruled on other grounds, Ring v. Arizona, 536 U.S. 584, 597-609, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
See footnote 4 of this opinion.
The version of the death penalty statute that we considered in Rizzo was the version enacted in 1995, which provides that the sentencer must determine whether the aggravating factor outweighs the mitigating factor. See Public Acts 1995, No. 95-19, § 1, codified in part, at General Statutes § 53a-46a (g). Subsection (d) of the 1995 statute is the same as the provision that applies to the defendant in the present case, however, and, therefore, our constitutional analysis of that subsection in Rizzo is controlling here.
The defendant also relies on testimony by one of his expert witnesses, James Merikangas, a physician who is board certified in neurology and psychiatry, that the defendant had congenital developmental brain abnormalities that were a substantial contributing factor to his sexual sadism and impulse control disorders. In addition, he cites an article from a psychiatric journal in support of the general proposition that disorders such as the defendant’s are the result of genetics and physical abnormalities. Merikangas gave the testimony at a pretrial hearing, however, and it was never presented to the jury. Nor was the article referred to by the defendant ever placed into evidence. Instead, the defendant presented the jury with Grayson’s secondhand account of Merikangas’ written report and Grayson’s testimony that, although he did not have the expertise to evaluate Merikangas’ physical findings, he was bothered by his uncritical acceptance of everything that the defendant told him. Because Merikangas’ testimony and the journal article were not before the jury, we do not consider them here.
We have determined as a matter of statutory interpretation that § 53a-46a (g) (2) requires the defendant to establish that, at the time of the offense, he had a volitional or cognitive impairment that reduced his moral culpability for tire crime. See part VII F of this opinion.
The defendant does point out that our constitution prohibits discrimination against persons with mental disabilities. See Conn. Const., art. I, § 20. He provides no authority, however, for the proposition that a person with a mental disorder that amounts to a controllable desire to engage in conduct that violates established social norms falls within the protected class.
The defendant, also urges this court to overrule our interpretation of the statute in Ross II, supra, 230 Conn. 262, that it does not require the state to prove that the defendant intentionally inflicted extreme physical or psychological pain, but evidence of the defendant’s callousness or indifference to his victim’s suffering would suffice. We declined in Cobb II, supra, 251 Conn. 445, to reconsider this holding, and we see no reason to do so here.
“In [State v. Webb], supra, 238 Conn. 389, we explained that comparative proportionality review can be performed in one of two ways: the frequency method, pursuant to which a reviewing court uses a complicated method of statistical analysis that purports to quantify, with something like mathematical precision, the various factors leading to the imposition, or nonimposition, of the death penalty, and the frequency with which the death penalty is imposed in certain circumstances; id., 511; and the precedent seeking approach, pursuant to which a reviewing court compares the case before it to other cases in which defendants were convicted of the same or similar crimes, by examining the facts of the crimes, the defendants, and the aggravating and mitigating factors involved. Id., 511-12. We concluded in Webb... that our statute contemplates the precedent seeking method of comparative proportionality review. Id., 513; see also [State v. Cobb, 234 Conn. 735, 741, 663 A.2d 948 (1995)] (proportionality review does not contemplate detailed statistical analysis of pool of comparable cases). Thereafter, in Cobb II, supra, 251 Conn. 506, we reaffirmed our adherence to the precedent seeking approach to comparative proportionality review.” (Internal quotation marks omitted.) State v. Reynolds, supra, 264 Conn. 238 n.213. The defendant in the present case, like the defendant in Reynolds, urges us to reconsider, once again, our use of the precedent seeking mode of analysis. “We decline to do so because we are satisfied that that method is the correct one.” Id.
The defendant also argues that this court should not merely consider the sufficiency of the evidence supporting the mitigating and aggravating factors in this case, but should independently compare that evidence with evidence presented in other cases in order to determine whether capital sentencers have treated such evidence consistently. Otherwise, he argues, arbitrariness in the imposition of the death penalty will be unchecked and no death sentence can ever be held to be disproportionate. This is, in essence, the same argument raised by the defendant and rejected by this court in Cobb 11, supra, 251 Conn. 504-508. We decline to reconsider that decision here.
“We note that neither the state nor the defendant has the burden of persuasion on the ultimate issue of disproportionaJity under § 53a-46b (b) (3). See [State v. Webb], supra, 238 Conn. 508.” State v. Reynolds, supra, 264 Conn. 239 n.214.
Practice Book § 67-6 provides: “(a) When a sentence of death has been imposed upon a defendant, following a conviction of a capital felony in violation of General Statutes § 53a-54b and the hearing upon imposition of the death penalty pursuant to General Statutes § 53a-46a, the briefs of the parties shall include a discussion of the issues set forth in General Statutes § 53a-46b (b), to wit, whether (1) the sentence was the product of passion, prejudice or any other arbitrary factor; (2) the evidence fails to support the finding of an aggravating circumstance specified in subsection (h) of § 53a-46a; and (3) the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.
“(b) For the purpose of reviewing the issue of disproportionality pursuant to General Statutes § 53a-46b (b), the briefs of the parties shall contain appendices setting forth the circumstances of the crimes that are claimed to be similar to that of which the defendant has been convicted and the characters and records of the defendants involved therein so far as these are ascertainable from the transcripts of those trials and hearings on the imposition of the death penalty or may be judicially noticed. Only those capital felony cases that have been prosecuted in this state after October 1, 1973, and in which hearings on the imposition of the death penalty have taken place, whether or not the death penalty has been imposed, shall be deemed eligible for consideration as ‘similar cases,’ unless the court, on application of a party claiming that the resulting pool of eligible cases is inadequate for disproportionality review, shall modify this limitation in a particular case. Any such application shall identify the additional case or cases claimed to be similar and set forth, in addition to the circumstances of the crime and the character and record of the defendant involved, the provisions of the applicable statutes pertaining to the imposition of the death penalty with citations of pertinent decisions interpreting such provisions.
“Any such application shall be filed within thirty days after the delivery date of the transcript ordered by the appellant, or, if no transcript is required or the transcript has been received by the appellant prior to the filing of the appeal, such application shall be filed within thirty days after filing the appeal.”
“The text of Practice Book § 67-6, with the exception of some technical alterations, was adopted in 1990, and appeared in Practice Book, 1978-97, § 4066A. Section 4066A effectively was transferred to Practice Book, 1978-97, § 4064E, in 1996. In 1998, § 4064E was transferred to Practice Book § 67-6.” State v. Reynolds, supra, 264 Conn. 240 n.215.
We decline the state’s invitation to reconsider our holding in Breton III here. Although we recognize the tension between that holding and our holding in Webb that reversed sentences may “provide valuable insight to this court in aid of our task of determining whether a particular death sentence is aberrational”; State v. Webb, supra, 238 Conn. 521; we continue to believe that, in providing for proportionality review, the legislature did not envision that a defendant’s death sentence would be compared to his own previously reversed death sentence in order to determine whether the second sentence was an outlier. The fact that the reversed sentence is sufficiently reliable to be used for comparison purposes in other cases does not establish that it meaningfully can be used for comparison in the same case. Similar things can be meaningfully compared; identical things cannot.
Moreover, we are not persuaded by the state’s argument that the second penalty phase was not “the same” as the first penalty phase because different evidence was presented to a different jury. The question is not whether the evidence or the identities of the sentencers were identical, but whether the basic underlying facts are identical. If ten separate juries impose the death sentence on the basis of ten slightly different presentations of evidence pertaining to the same facts, that might suggest that the sentence “ 'reflect[s] the conscience of the community’ ”; id.; but it does not mean that there are ten “similar cases.” Finally, we note that the logical extension of the state’s argument is that prior reversed death sentences in other cases should also be used for comparison purposes. In other words, because two different sentencers imposed the death penalty on the defendant in Breton III, supra, 264 Conn. 425, we should consider that case twice for proportionality purposes. Although the state includes Breton II in its list of “similar cases,” it does not suggest that we should consider the sentence imposed on the defendant in that case twice, and we do not believe that the legislature had any such intention.
We also take this opportunity to point out that, in this case, the defendant was sentenced at the second penalty phase to six separate death sentences on six capital felony counts and that it would be theoretically possible to compare the conduct underlying each of those sentences to the conduct underlying the others. In light of the identical aggravating factor and mitigating factors claimed in connection with each offense, the extreme similarity of the conduct underlying each offense, and the relatively large pool of other similar cases that we cull from the universe of similar cases, we conclude that such a procedure would provide extremely little, if any, additional insight into the ultimate question before us. That question is whether imposing the death penalty on this defendant, in light of all of the facts and circumstances of the case, is disproportionate with the sentences meted out to other defendants who have engaged in similar conduct.
In Ross I, supra, 225 Conn. 563, we denied the defendant’s request to expand the universe of similar cases to include those cases prosecuted in Connecticut after October 1, 1973, in which the state clearly could have, but did not, charge the accused with a capital felony and which resulted in a conviction of not less than manslaughter in the first degree following a plea or trial. The defendant now urges us to reconsider that, ruling. For the reasons set forth in our decision in Ross I, we decline to do so. See also State v. Reynolds, supra, 264 Conn. 241-42 n.216 (rejecting defendant’s request to reconsider denial of similar request to expand universe of similar cases); State v. Webb, supra, 238 Conn. 514-18.
The defendant in Daniels was convicted of multiple murder capital felony, not sexual assault-murder. See State v. Daniels, supra, 207 Conn. 377. Because he sexually assaulted one of the victims, however, Daniels is similar to three of the convictions under review in the present case.
The defendant argues that Ortiz and Diaz-Marrero should be treated as two cases because there were two victims. See State v. Webb, supra, 238 Conn. 539 n.93 (treating Ross cases as four cases for purposes of proportionality review because there were four victims). We agree. Because the defendants in Ortiz and Diaz-Marrero each were convicted of two counts of kidnap-murder, each case should be treated as two separate cases.
The defendant argues that Steiger and Wood are similar cases because the defendants in each case presented evidence of the statutory mitigating factor that he suffered from a significant mental impairment. As we discuss later in this opinion, that is not a valid basis for finding a case to be similar. We conclude, however, that the cases are similar in that they involve multiple murders.
We note that the defendant appears to assume that other cases are similar to this case only to the extent that those cases involve conduct for which the defendant was charged in this case. In other words, he believes, for example, that other cases involving sexual assault-murders are similar only to his convictions for the sexual assault-murders of Wendy B. and Robyn S., not to his convictions for the kidnap-murder of April B., even though he sexually assaulted her. Similarly, he appears to believe that cases involving multiple murders are not similar to the double murder of Leslie S. and April B. We disagree. Although the charges against the defendant for the sexual assault-murder of April B. and the double murder of Leslie S. and April B. were dismissed for lack of territorial jurisdiction, evidence of the conduct underlying those charges was before the jury and could have been considered as part of the “facts and circumstances of the case” in determining whether there was a mitigating factor. We conclude that the effect of similar conduct on the determination of sentencers in other cases is relevant to our review.
The state concedes that Usry and Daniels are in the universe of similar cases, but suggests that this court should be reluctant to include them in the ultimate pool because life sentences were imposed in those cases only because the sentencer in each case was deadlocked on the mitigating factor. Whether a life sentence may be imposed when the sentencer is deadlocked or, instead, a mistrial must be declared is one of the issues in the state’s appeal in Peeler that is currently pending before this court. The fact that the jury was deadlocked on the mitigating factor in those cases provides some insight into the conscience of the community, however, regardless of whether a life sentence should be imposed or a mistrial declared. Accordingly, we decline to exclude them from the pool of similar cases.
The rule states that “a naked extrajudicial confession of guilt by one accused of crime is not sufficient to sustain a conviction when unsupported by any corroborative evidence.... The confession cannot stand alone but must be accompanied by sufficient evidence of the corpus delicti.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Arnold, 201 Conn. 276, 286, 514 A.2d 330 (1986).
This court concluded that the trial court improperly had instructed the jury on the heinous, cruel or depraved mitigating factor in State v. Webb, supra, 238 Conn. 478. We also concluded, however, that the evidence in that case was sufficient to support that factor for purposes of proportionality review.
We note that the defendant took a steak knife from Leslie S. and used it in the course of his sexual assault and murder of her and April B. We also note that the facts and circumstances of each of the offenses in this case do not rule out premeditation.
“These were: (1) the role and actions of Fruean remain uncertain; (2) the defendant had no record of criminal activity other than a juvenile matter; (3) there was no evidence that the defendant had a violent nature other than the crime for which she was convicted; (4) the defendant had been a productive member of society for thirty years; (5) the defendant was an active and involved mother; (6) the defendant was a loving and devoted grandmother; (7) the defendant took handicapped children into her home for visits; (8) the defendant took care of a profoundly retarded child, making the child part of the defendant’s family; (9) the defendant welcomed her children’s friends into her home when they were in need; (10) the defendant was a hard worker and provided financial support to her family; (11) the quality of the defendant’s work with the handicapped; (12) the defendant went back to school to earn her high school degree and attend college after raising her children; (13) the defendant’s voluntary involvement in community activities; (14) the defendant’s generous dealings with others; (15) the defendant’s background, character and history suggest that she is unlikely ever to be a violent threat to others in the future; (16) the defendant provides positive contributions to the lives of her children, grandchildren and friends; (17) the nature of the defendant's crimes is so out of character that a death sentence would be inappropriate; (18) a factor concerning the nature of the crime that in fairness or mercy constitutes a basis for a life sentence; (19) a factor concerning the defendant’s character, history or background that in fairness or mercy constitutes a basis for a life sentence; and (20) the combination of any or all of the factors, in fairness or mercy, provides a reason for sentencing the defendant to life in prison.” Breton III, supra, 264 Conn. 429-30 n.62.
«Thg defendant claimed as nonstatutory mitigating factors that: (1) at the time of the offense, his mental capacity was impaired, but not so impaired as to constitute a statutory mitigating factor; (2) at the time of the offense, his ability to conform his conduct to the requirements of the law was impaired, but not so impaired as to constitute a statutory mitigating factor; (3) at the time of the offense, he was suffering from an extreme emotional disturbance; (4) at the time of the offense, his mental capacity was significantly impaired, and he suffered from an extreme emotional disturbance that constituted a defense to the prosecution, which, although not presented in the guilt phase, the court could consider as a nonstatutory mitigating factor; (5) he was under the influence of alcohol and prescription medication at the time of the offense; (6) his mother gave him up to live at an orphanage as well as other homes because he was in the way and she could not or would not properly care for him; (7) his mother herself was the product of a broken home, was abandoned by her own parents, lived in an orphanage and was ill-prepared to raise him properly; (8) upon his return from the orphanage it was readily apparent that the defendant had suffered severe and traumatic abuse at the orphanage; (9) he was significantly and traumatically affected by his abandonment by his parents; (10) he was raised in a pathological, alcoholic and abusive family unit; (11) his mother was an alcoholic and she lacked the necessary mothering skills to raise her son properly; (12) his father almost never worked or supported his family and drank excessively on a daily basis; (13) the defendant was subjected to verbal, physical and emotional abuse at the hands of both of his parents; (14) he was the product of a broken home that lacked the necessary love, affection, support and nurturing that is critical to proper social and childhood development; (15) his formal education ended before completion of the eighth grade; (16) despite his low level of education, he has a long history of steady employment and has led a productive life; (17) as a teenager, he worked and contributed to the household; (18) he worked hard to support his family for nineteen years; (19) he has been a model prisoner; (20) mercy; (21) considerations of fairness and mercy constitute a basis for a sentence of life without the possibility of release; (22) there exists a factor concerning the facts and circumstances of the case that has not been specifically mentioned in this list that the court can consider in fairness and mercy as constituting a basis for imposing on him a sentence of life imprisonment with no possibility of release rather than sentencing him to death; (23) there exists a factor in his character, history and/or background that has not been specifically mentioned in this list that the court can consider in fairness and mercy as constituting a basis for a sentence of life without the possibility of release; (24) any of the previously listed factors taken either individually or in combination with any other factor, although not an excuse for the offense, in fairness or mercy provides a reason for a sentence of life without the possibility of release; and (25) death is not the appropriate sentence for the defendant.” Breton III, supra, 264 Conn. 335-36 n.7.
We noted in Breton III, supra, 264 Conn. 443, that the panel’s determination that this circumstance was mitigating may have been based on a misunderstanding of the governing law and did not require this court to conclude that a finding that a defendant behaved well in prison is always mitigating.
The pool of similar cases is comprised of twenty-one docketed cases. As we have noted, however, Diaz-Marrero and Ortiz each count as two cases for purposes of proportionality review.
[OPINION BY NORCOTT, J., type=dissent]
NORCOTT, J.,
dissenting. I respectfully dissent because I maintain my position that the death penalty has no place in the jurisprudence of the state of Connecticut. See State v. Breton, 264 Conn. 327, 446, 824 A.2d 778 (2003) (Norcott, J., dissenting). I continue to respect the position of the majority of this court regarding this matter, but briefly I write again to supplement my reasoning that the death penalty should be abolished in this state.
On a national scale, statistical evidence continues to mount showing that “the number of executions and death sentences, the size of death row and public support for capital punishment all fell during 2003, according to the Death Penalty Information Center... .” R. Dieter, “Political Report: Death Row Verdicts and Population Drop,” 32 FOCUS/Joint Center for Political and Economic Studies, January/February 2004, p. 5. In addition, there seems to be a growing discontent among the states and Congress with the issues of unfairness and inaccuracy that has resulted in more of a regional isolation of the death penalty. Id.
Further, the specter of executing an innocent person will always shadow the debate over capital punishment. In this regal'd, it is noteworthy that the year 2003 experienced a record setting number of death row exonera-tions because of innocence. Indeed, as a result, legislative reform initiatives to reduce the possibility of executing an innocent defendant have taken place in the states of Illinois, North Carolina and New Jersey.
While capital punishment remains the law in the state of Connecticut, a law the constitutionality of which has been upheld by a majority of this court, I, as one justice who disagrees with that position, believe that we, as a nation, will soon abandon this incredibly costly, frustratingly lengthy and emotionally draining part of our criminal jurisprudence.
Accordingly, and more specifically for the reasons set forth in my dissents in previous capital cases, I dissent again.
“Of the executions that did take place, only three were conducted outside of the South, which accounted for almost 90 percent of the 65 executions in 2003.” R. Dieter, supra, p. 5.
Congress also has begun to address this concern. The United States House of Representatives recently passed a judicial reform package that addresses funding for DNA testing and more sophisticated legal representation in capital cases. See Advancing Justice Through DNA Technology Act of 2003, H.R. Rep. No. 3214, 108th Cong. (2003).
STATE OF CONNECTICUT v. MICHAEL B. ROSS
(SC 17335)
Sullivan, C. X, and Norcott, Vertefeuille, Zarella, Lavery, Foti and Dranginis, Js.
Argued January 5
—officially released January 14, 2005
John Holdridge, assistant public defender, with whom was Lauren Weisfeld, senior assistant public defender, for the plaintiff in error (office of the chief public defender).
Harry Weller, supervisory assistant state’s attorney, with whom were Kevin Kane, state’s attorney, Jessica Probolus, special deputy assistant state’s attorney, and, on the brief, Susan C. Marks, supervisory assistant state’s attorney, for the defendant in error (state).
T. R. Paulding, Jr., for the defendant.
January 14, 2005, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.
[OPINION BY SULLIVAN, C. J. type=majority]
Opinion
SULLIVAN, C. J.
This writ of error is brought by the plaintiff in error, the office of the chief public defender of the state of Connecticut, to challenge the trial court’s denial of its motion for permission to appear as next friend of the defendant, Michael B. Ross, and as a party in interest, an intervenor or amicus curiae in postconviction judicial proceedings in the three criminal cases against the defendant. We affirm the judgment of the trial court.
The record reveals the following procedural history. The defendant “was charged in three cases with eight counts of capital felony in violation of General Statutes § 53a-54b. The trial court dismissed two counts for lack of territorial jurisdiction and, after a jury trial, the defendant was convicted of four counts of capital felony in violation of § 53a-54b (5) and two counts of capital felony in violation of § 53a-54b (6). State v. Ross, 230 Conn. 183, 188, 194-95, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995) .... After a separate penalty phase hearing pursuant to General Statutes (Rev. to 1987) § 53a-46a, he was sentenced to death. The defendant appealed from the judgments to this court. We affirmed the defendant’s convictions, but determined that certain evidentiary rulings by the trial court in the penalty phase had impaired the defendant’s ability to establish a mitigating factor and, accordingly, we reversed the judgments imposing the death penalty. [State v. Ross], supra, 286. On remand, a second penalty phase hearing was held before a jury, which found an aggravating factor for each capital felony conviction and no mitigating factor. In accordance with the jury’s findings, the court, Miaño, J., imposed a death sentence on each count.” State v. Ross, 269 Conn. 213, 223-24, 849 A.2d 648 (2004). The defendant again appealed from the judgments to this court, and we affirmed the sentences of death. Id., 392.
Thereafter, on September 21, 2004, T. R. Paulding, Jr., an attorney, entered appearances in the three criminal cases against the defendant. His appearances were in lieu of the appearances by attorneys employed by the public defender’s office. At the same time, Paulding sent a letter to the trial court, Clifford, J., indicating that the defendant intended to waive any further appeals or collateral attacks on his death sentences and that he wanted the court to set an execution date.
The trial court held a hearing on October 6, 2004, at which it canvassed the defendant about his decision to waive further challenges to the death sentences. The defendant indicated that he had not authorized anyone other than Paulding to file legal proceedings on his behalf, that he was not under the influence of alcohol, drugs or medication of any kind, that he had not received any threats or promises, that he had discussed his desire to waive further legal proceedings with Paulding, and that he had no questions about the purpose of the hearing. Paulding indicated that the defendant had contacted him in February, 2004, regarding his desire to waive further proceedings and that they had spoken together on numerous occasions over the course of the year. Paulding also indicated that he had seen “no evidence whatsoever” that the defendant was incompetent and that he felt “very strongly” that the defendant understood the nature of the proceedings and was able to assist in his defense. Paulding stated that the defendant had come to his decision after considering the issue for a long period of time. The trial court noted that previous competency examinations had resulted in a determination that the defendant was competent and indicated that it saw no evidence to conclude otherwise. The court then set January 26, 2005, as the defendant’s execution date.
On December 1, 2004, the plaintiff in error filed a motion to proceed in forma pauperis and a petition for writ of certiorari in the United States Supreme Court. The plaintiff in error represented in the filings that the defendant had refused to sign an affidavit of indigence in support of the motion because he was incompetent. The United States Supreme Court denied the motion on January 10, 2005.
Also on December 1, 2004, the plaintiff in error filed in the Superior Court a “motion for permission to appear as (1) ‘next friend’ of [the defendant]; and (2) as a party in interest or as an intervener or as amicus curiae.” The plaintiff in error alleged in its motion that it had standing to appear as the defendant’s next friend because the defendant “was incompetent when he terminated the [plaintiff in error’s] representation of him; because [the defendant] is presently incompetent; and because the [plaintiff in error] has had a significant relationship with [the defendant] for some seventeen years... .” In addition to the motion for permission to appear, the plaintiff in error lodged with the court clerk a motion for stay of the defendant’s execution pending a judicial determination as to whether the defendant is competent and a motion for stay of execution pending resolution of the pending consolidated litigation ordered by this court to determine whether Connecticut’s death penalty system is racially discriminatory and therefore violates the state constitution and statutory law (consolidated litigation).
Thereafter, the state filed a motion seeking a determination as to whether the defendant was competent to waive his rights to seek postconviction relief and whether his waiver was knowingly and voluntarily made. The court held a competency hearing on December 9, 2004. Because the trial court had not yet ruled on the plaintiff in error’s motion to appear, the plaintiff in error attended the hearing only as an observer.
Paulding represented to the trial court at the December 9, 2004 hearing that he had first represented the defendant in 1995 or 1996 when the defendant was awaiting his second penalty phase hearing. The defendant indicated at that time that he wanted to proceed pro se and to stipulate to the existence of an aggravating factor. In May, 1995, he underwent a competency evaluation to determine whether he was capable of representing himself and was found competent. Because the state’s attorney indicated that he would not engage in discussions with the defendant unless he was represented by standby counsel, Paulding agreed to take on that role. After extensive negotiations, the defendant and the state entered into a stipulation that an aggravating factor existed and no mitigating factor existed. The trial court would not allow the stipulation, however. Paulding stated at the December 9, 2004 hearing that the defendant’s position had been consistent throughout the 1995 proceedings: Although he believed that a mitigating factor existed, he was willing to stipulate that one did not exist. If the trial court refused to allow the stipulation, however, then the defendant would allow the public defenders to represent him and to put on an aggressive defense at the penalty phase hearing.
Paulding stated that he next heard from the defendant in February, 2004. The defendant indicated at that time that he anticipated that this court would affirm his death sentences in the pending appeal and that he did not wish to challenge tht determination in any way. Paulding told the defendant in July, 2004, that he would represent him. Paulding stated that he had spoken to the defendant in person and by telephone approximately twenty to thirty times between July, 2004, and the date of the December 9 hearing. Paulding stated that he and the defendant had had lengthy and detailed discussions about the case and that he had “never seen any indication of a lack of understanding or a lack of competence or cloudiness in [the defendant’s] judgment.” As an example, Paulding stated that the defendant was aware of the statutory time constraints on setting the date for the execution and wanted to arrange things so that he would not be executed until 2005. He agreed to allow the public defenders to file a motion for reconsideration of this court’s decision affirming his death sentences in order to delay the proceedings to achieve that purpose.
Paulding also stated that the defendant had been informed in detail of all of his legal options, including participating in the consolidated litigation over the constitutionality of the state’s death penalty scheme. The defendant clearly indicated that he did not want to pursue any of these options and that the petition for certiorari to the United States Supreme Court had been filed against his will.
Two days before the December 9, 2004 hearing, Paulding met with Paul Chaplin, a psychologist employed by the department of correction, who met regularly with the defendant between 1988 and 1992 and, after a gap between 1992 and 1999 when Chaplin and the defendant were assigned to different prisons, since 1999. Chaplin indicated that, since the execution date was set, either he or Thomas Latter, a psychiatric social worker, had met with the defendant every day. The defendant is taking several medications including Depo-Lupron to reduce his sex drive, and Klonopin and Wellbutrin, antianxiety medications. Chaplin did not believe that the defendant was depressed but described him as dysphoric, or somewhat unhappy, sad or anxious, which Chaplin believed to be a natural feeling under the circumstances. Chaplin was aware of the defendant’s past suicide attempts and believed that he may have been depressed at that time. He found the defendant to be rational, logical and coherent, however, and believed that the defendant had been competent since he first met him in 1988.
Paulding stated that the defendant had also met regularly with Michael Tress, a psychiatrist, in the month and a half preceding the hearing. Tress indicated to Paulding that he believed that the defendant was rational and logical, and Tress saw no evidence of suicidal ideation. Tress also believed that the defendant’s depression was under control. He saw no evidence that would make him question the defendant’s competence. Paulding stated that, on the basis of his discussions with the defendant and with his therapists, he believed that the defendant had arrived at his decision to waive further legal proceedings in a logical and rational manner.
The trial court also canvassed the defendant. He stated that, in addition to the medications listed by Paulding, he was taking Vistaril, an antianxiety medication, on an as needed basis. The defendant also stated that the medications did not affect his understanding of the court proceedings. He gave a detailed and substantially accurate account of the past legal proceedings in the three criminal cases over the last twenty years. The defendant also indicated that he had a complete understanding of the legal options available to him, including an appeal to the United States Supreme Court and federal and state habeas actions. He indicated that he did not want to pursue those options. The defendant denied that he was suicidal and stated that he wanted to waive further legal proceedings in order to spare his family and the families of the victims the pain of further public proceedings. He also indicated that he was aware that he could change his mind and obtain a stay of execution up to the time of execution.
After the parties had presented their cases, the state’s attorney requested a brief recess to consider a matter that had just been brought to his attention, which the court granted. When the court reconvened, the state’s attorney stated that he felt that he had an obligation to advise the court that he had met Karen Goodrow, an attorney with the public defender’s office, in the lobby of the courthouse before the hearing and that Goodrow had stated that she believed that the defendant was not competent. The state’s attorney asked that the trial court question Goodrow about the basis for her belief. The court addressed Goodrow, who was in the audience, and asked her whether she would be willing to answer questions. Goodrow asked for a recess until after lunch in order to “compose [herself]” and to reschedule other matters. The court granted a five minute recess. After the recess, Deborah Del Prete Sullivan, another attorney with the public defender’s office, addressed the court and stated that the public defenders were at the hearing as observers only and were not prepared to present evidence. She further stated that Goodrow was “very emotional” and did not want to testify. Del Prete Sullivan stated that the public defenders would be willing to present evidence of the defendant’s incompetence at a hearing on the plaintiff in error’s motion for permission to appear. The court stated that it did not know if it would allow such evidence to be presented at the hearing on the motion for permission to appear, but that it would not require Goodrow to address the court at the present hearing.
At the conclusion of the hearing, the trial court stated that the defendant “clearly was lucid [and] understood the court’s questions, the attorney’s questions. He is educated, intelligent, articulate, insightful, clearly understands, in my opinion, the lines he is forgoing, and he certainly is firm in his decision.” The court further stated that, although it would appear to a layperson that the defendant “was competent under any standard that would apply,” the court required additional information as to whether the defendant had any mental disorder, disease or defect that might affect his decision. Accordingly, the court ordered that the defendant undergo a competency examination by Michael Norko, a psychiatrist, and scheduled a competency hearing for December 28, 2004. The court also scheduled a hearing on the plaintiff in error’s motion to appear on behalf of the defendant for December 15, 2004.
At the hearing on the plaintiff in error’s motion to appear, the trial court heard arguments from the plaintiff in error, Paulding and the state’s attorney. The plaintiff in error made an offer of some of the evidence that it would present at the competency hearing if the court allowed it to participate, but indicated that it had “a great deal of relevant information to the question that [was] not available” at that time. The court concluded that the plaintiff in error did not have standing as a party of interest or as an intervenor to appear in the postconviction proceedings. The court also denied the plaintiff in error’s request to participate in the proceedings as an amicus curiae. With respect to the motion to appear as the defendant’s next friend, the court concluded that it had no reason to believe that the defendant was not competent. Accordingly, it concluded that the plaintiff in error had no standing to appear as a next friend at that time. The court stated, however, that if the defendant were shown to be incompetent at a later date, the court would reconsider its decision. The court stated that it would not allow the plaintiff in error to participate in the December 28, 2004 competency hearing, but that if the plaintiff in error had information relevant to that issue, it should give the information to Paulding.
Thereafter, on December 23, 2004, the plaintiff in error filed one motion in this court for review of the trial court’s denial of its motion for a stay of the competency hearing and for stay of execution, and a second motion for emergency stay of the competency hearing and of execution. The plaintiff in error indicated in the motions that it intended to file a writ of error challenging the trial court’s rulings on the plaintiff in error’s standing on December 27, 2004. This court dismissed both motions. On December 28, 2004, the plaintiff in error brought this writ of error claiming that the trial court improperly had (1) refused to allow the plaintiff in error to present evidence and to cross-examine witnesses at the December 28, 2004 hearing and (2) denied the plaintiff in error’s request to appear as an amicus curiae.
The competency hearing was held as scheduled on December 28, 2004. Norko testified at the hearing that he had first evaluated the defendant’s competency in 1995 and that he had had no contact with him between that time and his meeting with the defendant on December 15, 2004, in response to the court’s request for another evaluation. Norko met with the defendant for approximately three hours. He also spoke with two psychologists, a psychiatric social worker and a psychiatrist, all of whom had known the defendant for many years, and with Paulding and Goodrow. On the basis of his interview with the defendant, Norko found that he had an excellent understanding of his legal position and the ramifications of his decision to forgo any further legal proceedings. Although the defendant was occasionally emotional, he was appropriately so. His decision to forgo further appeals and collateral challenges to his convictions was based on his belief that it would be morally wrong to subject the families of his victims to the pain that would be caused by proceedings that could go on for years.
Norko did not believe that the defendant suffered from clinical depression. He was sleeping well, had a normal appetite and a good energy level, and he was able to concentrate and to process thought, had no memory disturbances and expressed no suicidal thoughts. Norko did believe that the defendant suffered from a number of mental diseases, disorders or defects, namely, a “depressive disorder not otherwise specified,” sexual sadism, possibly an “anxiety disorder not otherwise specified,” and a personality disorder with narcissistic, borderline and antisocial traits. A “depressive disorder not otherwise specified” is a disorder with depressive characteristics, but which does not meet the criteria for major depression. Norko did not believe that the defendant’s depressive disorder interfered with his ability to think about his situation and options. Norko’s diagnosis of sexual sadism was based on the reports of other psychiatrists. Norko did not believe that the disorder affected the defendant’s ability to reason. Finally, Norko did not believe that the defendant’s personality disorder affected his ability to understand the legal proceedings and to make decisions about them.
Norko testified that he had called Goodrow after reading in the newspaper that she had evidence about the defendant’s competence. Goodrow told Norko that she had met with the defendant for three hours shortly after Thanksgiving and that she had found him to be quite emotional, crying several times during the meeting. She thought that he was unable to continue his fight against the death penalty because he was emotionally exhausted. He also expressed concern that his actions would not bring any comfort to the victims’ families. Norko testified that it is not unusual for a person who has made an important decision that will affect his family members to recognize that the decision may not be the right one and that such ambivalence does not mean that the person is incapable of making a rational choice.
Norko testified that the medications that the defendant is receiving probably improve his ability to make decisions rather than interfere with it. Norko saw no evidence of a thought disorder, delusional beliefs or psychosis. He also saw no evidence of suicidal ideation.
On the basis of his investigation, Norko testified that he had no reason to believe that the defendant is not competent. The defendant did have occasional brief episodes of intense anxiety for which he takes Vistaril. Although the defendant has stated that he did not believe that he should make important decisions during these moments of heightened anxiety, he also stated that the episodes are brief. Norko did not believe that any of the mental disorders, diseases or defects from which the defendant suffered substantially affect his ability to make a rational choice.
The defendant also testified at the hearing. He stated that he had occasional episodes of intense anxiety and that the episodes were relieved by taking medication. Although he had occasional doubts about whether his execution would end the pain of the victims’ families, he believed that it would, and that belief was the reason for his decision. The defendant also indicated that he would accept a sentence of life imprisonment immediately if it were offered and that he believed that he could accomplish good works if that happened. He did not believe, however, that that would ever happen and did not think that the possibility of overturning the death sentences justified the cost to himself and to the families of the victims.
At the conclusion of the hearing, the trial court stated that Paulding is a competent and effective attorney who is representing his client to the best of his ability. The court found that the defendant was not making his decision on the basis of any threats, promises or coercion; he was lucid, educated, intelligent, insightful, knowledgeable, firm in his decision and understanding of the questions posed to him; he had a grasp of the legal issues involved and was aware of his legal options; none of the medications taken by the defendant have affected his ability to understand the proceedings or to make rational decisions; the defendant is not motivated by a desire to commit suicide, but by concern for the victims’ families; and the defendant is aware that he can change his mind up to the date of the execution. The court concluded that the defendant has the capacity to understand his choices and, therefore, was competent under the standard set forth in Rees v. Peyton, 384 U.S. 312, 314, 86 S. Ct. 1505, 16 L. Ed. 2d 583 (1966) (defendant is competent to waive further challenges to death sentence when “he has [the] capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation”). The court further found that the defendant knowingly, voluntarily and intelligently waived his right to further challenges to his death sentences.
Thereafter, at oral argument before this court on this writ of error, the plaintiff in error represented that it had evidence of the defendant’s incompetence that had never been presented to any court. In light of this representation, and despite the plaintiff in error’s failure to make an offer of proof to the trial court, this court issued an order authorizing the plaintiff in error to file with this court a written offer of proof detailing the evidence that it would present at a competency hearing. The plaintiff in error filed an offer of proof, attaching summaries of the proposed testimony of Stuart Grassian, a psychiatrist; Eric Goldsmith, a psychiatrist; five attorneys with the public defender’s office, namely, Barry Butler, Goodrow, Paula Montonye, Lauren Weisfeld and John Holdridge; Robert Nave, the state death penalty abolition coordinator for the Connecticut branch of Amnesty International and executive director of the Connecticut Network to Abolish the Death Penalty; and Dan Ross, the defendant’s father. The offer of proof also attached several documents that the plaintiff in error proposed to introduce as exhibits.
The summary of Grassian’s proposed testimony stated: prisoners who are held in segregated confinement frequently develop severe mental disturbances including impaired alertness, attention and concentration, hyperresponsiveness to stimuli, withdrawal, obsessive preoccupation with trivial matters, sleep disturbances and, in those most severely affected, psychotic delirium; these disturbances can affect the prisoners’ ability to assist in their own defense; living under sentence of death can cause an overwhelming sense of helplessness and fear resulting in a desperate need to regain control by waiving further challenges to the death sentence; Grassian has not examined the defendant; many of Norko’s conclusions were not supported by the evidence and lacked “professional skepticism”; for example, Grassian believed that Norko had failed to recognize that the defendant’s intelligence would make it possible for him to conceal his “hidden agenda”; the defendant wrote a letter to Martha Elliott, a journalist, indicating that his decision was driven more by a desire to end his own pain than by concern for the families of his victims, but he knew that he could not say that publicly; although the defendant expressed concerns about the families of his victims, he dismissed the arguments of his attorneys that he could help the other prisoners on death row by continuing his appeals as an attempt to impose a “guilt trip” on him; Norko’s statement that the defendant consistently had desired to waive further proceedings for the last ten years is not supported by the record; Norko stated that the defendant’s suicide attempts did not indicate ongoing severe depression but failed to explain them adequately; the record showed that the defendant felt helpless and out of control and had a tendency toward obsessional thinking, which could be exacerbated by his conditions of confinement and result in suicidal tendencies; the defendant has indicated that he is isolated for twenty-two or twenty-three hours each day and finds the conditions of his confinement intolerable; and the record suggests that the defendant has become incapable of bearing his distress and despair and, therefore, his decision to waive further challenges to his death sentences is not the product of a free, voluntary and rational decision-making process.
The summary of Goldsmith’s proposed testimony stated: he had not had the opportunity to examine the defendant and was unable to give a conclusive opinion as to his competency; nevertheless, he had serious questions about his competency that Norko had not adequately addressed; he believed that several factors may have negatively affected the voluntariness of the defendant’s decision to forgo further challenges to his death sentences; the defendant has been diagnosed with mood disorder with emotional lability, impulsivity and depressed affect that would be exacerbated by stress and reduce the voluntariness of his waiver; the effect of the defendant’s loss of his girlfriend and abandonment of his writing and other activities on the voluntariness of his waiver have not been fully explored; the effect of the conditions of the defendant’s confinement on the voluntariness of his waiver should be assessed; and the effect of the defendant’s suicidal tendencies on the voluntariness of his waiver should be explored.
The summaries of the proposed testimony of the defendant’s former attorneys stated: the conditions of the defendant’s confinement have deteriorated and have caused the defendant to desire death; the defendant has been inconsistent about his desire to forgo further challenges to his death sentences; the defendant has expressed a desire to be sentenced to life imprisonment; his reasons for wanting to forgo further proceedings have not been consistent; he has stated that he decided to waive farther proceedings long ago when his thinking was clearer and that he has to trust that decision because he is too emotional to make a decision at this time; he invited his former attorneys to visit him even though he was aware that they would try to persuade him to pursue further proceedings; he appeared at times to be attempting to fake a normal demeanor and behavior; he was no longer able to communicate freely with the other prisoners on death row; he was angry that the prison guards had expressed their beliefs that there is no death penalty in Connecticut and appeared to want to prove them wrong; he did not appear to understand that certain challenges to his death sentences could not result in a third penalty phase hearing; and he demonstrated ignorance of other aspects of the law and procedures.
The summary of Nave’s proposed testimony stated: Nave has visited the defendant fifteen times in the last year; the defendant appeared to be very depressed during those visits; Nave believes very strongly that the defendant will attempt to commit suicide if his execution is stayed; the defendant believes that he will never get a fair trial; he believes that the victims’ families and the public hate him; he is frustrated with the conditions of his confinement; he is saddened and frustrated by his loss of celebrity; he has stated that the other prisoners on death row were brutal murderers who took no responsibility for their crimes and engaged in bravado and grandstanding, while he had “the real guts” to go forward with his execution; he has delusional beliefs about his exalted role in the public debate on the death penalty; and he believes that he can change the public belief that he is a “monster” if he waives further proceedings.
The summary of the proposed testimony of the defendant’s father stated: the defendant is extremely narcissistic; he is “not unlike a child before the age of reason,” apparently unaware of the finality of death; he does not want to die but “revels in the attention being a martyr brings”; and his narcissism renders him incapable of making a rational choice and “leaves him out of touch with reality.”
The documents attached to the offer of proof contain much of the same information presented in the proposed testimony of the witnesses.
The plaintiff in error claims in this writ of error that the trial court improperly: (1) denied its motion to appear as the defendant’s next friend without providing it with an opportunity to present evidence of the defendant’s incompetence and to cross-examine witnesses; and (2) abused its discretion in denying the plaintiff in error’s request to appear as an amicus curiae. The state counters that: (1) the plaintiff in error has no federal common-law or constitutional right to participate in a full evidentiary hearing to determine whether the defendant is competent when it has made no threshold showing of incompetence and the defendant is represented by counsel; and (2) the court did not abuse its discretion by denying the plaintiff in error’s request to appear as an amicus curiae when it was clear that it intended to participate in the proceedings as an adversarial party. We agree with the state.
I
Before addressing the substance of the plaintiff in error’s claims, we must address the defendant’s claim that this court lacks jurisdiction over the writ of error because the plaintiff in error is not aggrieved. Practice Book § 72-1 (a) provides in relevant part: “Writs of error for errors in matters of law only may be brought from a final judgment of the superior court to the supreme court in the following cases: (1) a decision binding on an aggrieved nonparty... and (4) as otherwise necessary or appropriate in aid of its jurisdiction and agreeable to the usages and principles of law.” We have held that “[t]he fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision.” (Internal quotation marks omitted.) Bongiorno Supermarket, Inc. v. Zoning Board of Appeals, 266 Conn. 531, 539, 833 A.2d 883 (2003). The defendant argues that the plaintiff in error is not aggrieved because it has no specific personal and legal interest that has been specially and injuriously affected by the trial court’s decision, but has only a general interest in opposing the death penalty.
It is clear, however, that a person who seeks next friend status by the very nature of the proceeding will have no specific personal and legal interest in the matter. Rather, a next friend must show only that he is “truly dedicated to the best interests of... and... that [he has] some significant relationship with” a party who has such an interest and that there is some reason that the party in interest cannot appear for himself. (Citation omitted; internal quotation marks omitted.) Whitmore v. Arkansas, 495 U.S. 149, 163-64, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990). The plaintiff in error was entitled to make this claim to the trial court and, accordingly, was aggrieved by the trial court’s determination that it had no such standing. A contrary conclusion would render unreviewable rulings by the trial court denying next friend status. Accordingly, we conclude that we have jurisdiction to hear the writ of error.
II
We next address the substance of the plaintiff in error’s claim that the trial court improperly denied its motion to appear as the defendant’s next friend without providing it with the opportunity to present evidence and to cross-examine witnesses at the defendant’s competency hearing. It argues that, in the death penalty context, the mere allegation by a person with colorable standing to appear as a next friend that a defendant is incompetent requires the court to hold an evidentiary hearing at which the person seeking next friend status must be allowed to present evidence and to cross-examine witnesses. In support of this claim, the plaintiff in error argues that numerous courts have determined that the sixth, eighth and fourteenth amendments to the United States constitution require that the court hold an adversarial proceeding to determine the competency of a defendant to waive further legal challenges to a sentence of death. We disagree.
As a preliminary matter, we set forth the standard of review. Whether a person who has alleged that a defendant is incompetent to waive further challenges to his death sentence is entitled to present evidence at a competency hearing is a question of law over which our review is plenary.
In Whitmore v. Arkansas, supra, 495 U.S. 151, the United States Supreme Court considered the question of whether a third party has standing to challenge the validity of a death sentence imposed on a capital defendant who has elected to forgo his right of appeal. Ronald Gene Simmons had been sentenced to death by an Arkansas state court. Id., 153. Thereafter, Simmons notified the court of his intent to waive his right to direct appeal and, after a competency hearing, the court found him competent to do so. Id. Jonas Whitmore, another death row inmate, then sought permission to intervene in Simmons’ proceeding both individually and as Simmons’ next friend. Id. The Supreme Court of Arkansas concluded that Whitmore did not have standing and the United States Supreme Court granted his petition for certiorari. Id., 153-54.
The United States Supreme Court noted that, historically, there were two prerequisites to establishing next friend standing in the habeas corpus context. “First, a ‘next friend’ must provide an adequate explanation— such as inaccessibility, mental incompetence, or other disability—why the real party in interest cannot appear on his own behalf to prosecute the action.... Second, the ‘next friend’ must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate... and it has been further suggested that a ‘next friend’ must have some significant relationship with the real party in interest.” (Citations omitted.) Id., 163-64. The court concluded that it found no reason to disturb the finding of the Arkansas Supreme Court that Simmons’ competency had been established at the competency hearing, at which he was questioned by counsel and by the court. Id., 165. The record of a psychiatric interview that had been admitted into evidence revealed no “evidence that he was suffering from a mental disease, disorder, or defect that substantially affected his capacity to make an intelligent decision.” Id., 165-66. Accordingly, the court concluded that Whitmore lacked standing to proceed as Simmons’ next friend. Id., 166.
The standard for mental incompetence in this context was set forth in Rees v. Peyton, supra, 384 U.S. 314. In Rees, the defendant, who had been sentenced to death by a state court in Virginia, filed a petition for habeas corpus in the United States District Court alleging that the conviction was unconstitutional. Id., 312-13. The District Court denied the petition, and the defendant appealed to the United States Court of Appeals for the Fourth Circuit, which affirmed the judgment of the District Court. Id., 313. The defendant then filed a petition for certiorari in the United States Supreme Court. Id. Thereafter, the defendant directed his counsel to withdraw the petition and to forgo any further legal proceedings. Id. The defendant’s counsel advised the court that he could not accede to the defendant’s request because he had doubts about the defendant’s mental competency. Id. The Supreme Court determined that the matter should be remanded to the District Court to make a determination as to whether the defendant “has [the] capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises. To that end, it will be appropriate for the District Court to subject [the defendant] to psychiatric and other appropriate medical examinations and, so far as necessary, to temporary federal hospitalization for this purpose.” Id., 314.
The United States Supreme Court subsequently made it clear that the constitution does not require the trial court to grant a request for a Rees hearing by a person seeking next friend status if that person has not presented “meaningful evidence” that the defendant is incompetent. In Demosthenes v. Baal, 495 U.S. 731, 732, 110 S. Ct. 2223, 109 L. Ed. 2d 762 (1990), the defendant was sentenced to death in Nevada state court. The defendant filed a petition for state postconviction relief but then withdrew the petition. Id. The court held an evidentiary hearing to determine the defendant’s competency and determined that he was competent and had made an intelligent waiver of his rights. Id., 732-33. Shortly thereafter, the defendant’s parents filed a petition for federal habeas corpus relief as the defendant’s next friends. Id., 733. In the petition, they alleged that the defendant was not competent. In support of this claim, they relied on an affidavit of a psychiatrist who had not examined the defendant and an affidavit by the defendant’s mother. Id. The United States District Court concluded that the record established that the defendant was competent and that the psychiatrist’s affidavit was conclusory and insufficient to warrant an additional competency examination. Id., 733-34. Accordingly, that court denied the petition. Id., 734. On appeal to the United States Court of Appeals for the Ninth Circuit, a majority of the court held that the petitioners had established a minimum showing of the defendant’s incompetence and stayed the defendant’s execution. Id.
On appeal to the United States Supreme Court, the court held that the state court’s determination that the defendant was competent was supported by the record and that the psychiatrist’s affidavit was conclusory and lacking foundation or substance. Id., 735-36. The Supreme Court concluded that, “in the absence of any ‘meaningful evidence’ of incompetency... the District Court correctly denied [the] petitioners’ motion for a farther evidentiary hearing on the question of [the defendant’s] competence to waive his right to proceed.” (Citation omitted.) Id., 736. Accordingly, the Supreme Court vacated the stay of execution entered by the Court of Appeals. Id., 737.
In the present case, the plaintiff in error did not mention Demosthenes in its brief, but argued that due process requires a Rees competency determination to be made in an adversarial setting and, therefore, requires the participation of a next friend to present the case for incompetence in cases where the defendant claims that he is competent without any threshold showing of incompetence. In support of this argument, it cites Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986) (plurality opinion), and O'Rourke v. Ended, 153 F.3d 560 (8th Cir. 1998). We are not persuaded.
In Ford v. Wainwright, supra, 477 U.S. 409-10 (majority opinion), the court concluded that the eighth amendment barred the execution of insane prisoners and considered whether the District Court was required to hold an evidentiary hearing to determine the defendant’s insanity before ruling on the defendant’s petition for habeas corpus on the ground that he was insane. Id., 410. Under Florida law, the governor, when informed that a defendant under sentence of death might be insane, was required to stay the execution and to appoint a commission of three psychiatrists to examine the defendant. Id., 412. After receiving the report of the commission, the governor was required to determine whether the defendant had the mental capacity to understand the nature of the death penalty and the reasons why it was imposed on him. If the governor determined that the defendant had that capacity, then a death warrant issued. If not, then the defendant was committed to a mental health facility. Id. A plurality of the Supreme Court determined that this procedure was constitutionally inadequate because, first, it failed to include the defendant in the truth-seeking process. Id., 413 (plurality opinion). The plurality stated that “without any adversarial assistance from the prisoner’s representative—especially when the psychiatric opinion he proffers is based on much more extensive evaluation than that of the state-appointed commission—the factfinder loses the substantial benefit of potentially probative information.” Id., 414. The Florida procedure was also inadequate because it failed “to afford the prisoner’s representative any opportunity to clarify or challenge the state experts’ opinions or methods... .” Id., 415. Finally, the plurality concluded that the procedure was flawed because it took place entirely within the executive branch, which did not have “the neutrality that is necessary for reliability in the factfinding proceeding. ” Id., 416. Accordingly, the plurality concluded that the defendant was entitled to a competency hearing in the District Court. Id., 418.
We conclude that Ford does not support the plaintiff in error’s claim that a person who seeks next friend status on the ground that a defendant who has been sentenced to death is incompetent to waive further legal proceedings must be permitted to present the case for competency at an evidentiary hearing. The plurality in Ford merely held that a competency hearing held after a showing has been made that the defendant is insane must comport with certain procedural requirements. It did not address the question of what constitutes a sufficient showing to require an adversarial hearing in the first instance.
We also believe that the plaintiff in error’s reliance on O’Rourke v. Endell, supra, 153 F.3d 560, is misplaced. In that case, the criminal defendant, Michael O’Rourke (defendant), who had been sentenced to death in an Arkansas state court, filed a petition with the Arkansas Supreme Court seeking permission to proceed in state court with his motion for postconviction relief. Id., 565. The Supreme Court granted the petition in part, but the trial court denied relief. Id. The defendant then filed an appeal. Id. Thereafter, the defendant sent a letter to the Arkansas Supreme Court seeking to withdraw his appeal. Id. The court stayed the appeal and remanded the matter to the trial court for a competency hearing. Id. It also ordered the trial court to appoint new counsel for the defendant for the hearing. The Supreme Court noted that the defendant’s prior counsel, Jeff Rosenzweig, contended that the defendant was insane, but that Rosenzweig “was not entitled to make the decision on whether his client is competent.” (Internal quotation marks omitted.) Id. Rosenzweig then filed a motion with the Supreme Court asking to be appointed to advocate the position that the defendant was incompetent. The motion was denied. Id.
The trial court appointed Robert E. “Doc” Irwin to represent the defendant at the competency hearing and ordered Irwin to take the position that the defendant was competent. Id. Thus, Irwin was not permitted to present evidence of incompetence or to cross-examine the state’s witnesses. Id., 566. The trial court determined that the defendant was competent to waive his right to appeal and, accordingly, the Supreme Court dismissed his appeal. Id. Rosenzweig, acting as the defendant’s next friend and as counsel, then filed a petition for a writ of habeas corpus in the United States District Court. That court held a competency hearing and found that the defendant was incompetent. Id. Rosenzweig then asked the Arkansas Supreme Court to reconsider its dismissal of the defendant’s appeal. The Supreme Court refused to do so, and the defendant reinstituted his petition for habeas corpus in the federal court. Id. The District Court granted the writ and the state appealed. Id. On appeal to the United States Circuit Court of Appeals for the Eighth Circuit, the state argued that the defendant’s claims were procedurally defaulted because they had been considered and rejected by the state court and the defendant had withdrawn his appeal from that ruling. Id. The defendant argued that the state court’s finding that he was competent to waive his appeal was not entitled to a presumption of correctness because the competency hearing was flawed. Id., 567.
The Court of Appeals recognized that the United States Supreme Court “has yet to hold that a competency hearing must be adversarial in nature in order to be full and fair and to afford a prisoner the process he is due.” Id. Nevertheless, it concluded that “without the appointment of a ‘next friend’ to advocate the position that the prisoner is incompetent, a competency hearing such as the one at issue here is not full and fair, nor does it comport with due process.” Id. We note, however, that the court’s decision ultimately did not rest on the absence of a fair hearing. Instead, the court concluded that the defendant had not met the second prong of the test for overcoming a procedural default, namely, that he was prejudiced by the ineffectiveness of his counsel. Id., 570. We further note that, as in Wainwright, the court in O’Rourke was addressing the question of what procedures were required at a competency hearing after the trial court had concluded that a sufficient showing of incompetence has been made to require an adversarial hearing in the first instance. The court did not address the question of what threshold showing is required. It is possible that, in the absence of any claim to the contrary, the Court of Appeals simply assumed that the requisite showing had been made before the first competency hearing. To the extent that O’Rourke may be read as suggesting that the trial court must order a competency hearing and appoint a next friend to argue the position that the defendant is incompetent when no threshold showing has been made, we disagree. Although the trial court in its discretion may hold a competency hearing when a mere allegation of incompetence has been made, under Demosthenes v. Baal, supra, 495 U.S. 737, participation in such a hearing by the person seeking next friend status is not constitutionally required if that person has not presented meaningful evidence of incompetence. The logical extension of the plaintiff in error’s argument to the contrary is that the court must require the case for incompetence to be made even in cases where there is no evidence of incompetence; in other words, it must require a fraud on the court. The constitution cannot require such a bizarre result.
In support of its claim that it was entitled to participate in the competency hearing, the plaintiff in error also relies on a number of Connecticut cases holding that, when issues of fact are necessary to the determination of standing, due process requires that a trial-like hearing be held, at which an opportunity must be provided to present evidence and to cross-examine witnesses. See, e.g., Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 695-96, 600 A.2d 1019 (1991). We are not persuaded. In cases where a person claims standing as a party, a determination that the party has no standing means that the entire matter is thrown out of court. It is clear that denying access to the courts without the benefit of an evidentiary hearing to determine whether access should be provided is a denial of due process. In the present case, however, the plaintiff in error is asking the court to take the extraordinary step of allowing it to appear in a matter that is already before the court as the next friend of a party who is represented by qualified counsel. We believe that, under these circumstances, the due process rights of both the plaintiff in error and the defendant are adequately protected by allowing the participation of the plaintiff in error in an evidentiary hearing to establish standing only upon a showing of meaningful evidence that the defendant is incompetent.
The plaintiff in error did not argue in its brief that it had presented meaningful evidence that the defendant is incompetent and conceded at oral argument before this court that it had not presented such evidence because the trial court had never ordered it to do so and it believed that it would be required to present such evidence at the competency hearing itself. Upon careful review of the record, we believe that the plaintiff in error had numerous opportunities to present evidence in support of its claim and failed to do so. In light of that failure, we conclude that the trial court properly determined that the plaintiff in error was not entitled to participate as a next friend in the defendant’s competency hearing.
As we have indicated, however, despite the plaintiff in error’s failure to offer meaningful evidence of the defendant’s incompetence in a timely manner, we provided it with an opportunity to present a written offer of proof to this court detailing such evidence. We conclude that the offer of proof submitted by the plaintiff in error did not constitute meaningful evidence of the defendant’s incompetence. Much of the proposed evidence had been provided to Norko and was addressed by him in his report and testimony. Norko recognized that the defendant had depressive symptoms, a history of suicide attempts and moments of intense anxiety and emotion. He also was aware that the defendant appeared occasionally to be emotionally drained, had doubts that his actions would bring any comfort to the victims’ families and was occasionally ambivalent about his decision. Norko concluded that these feelings were normal for a person in the defendant’s position and did not mean that he was incapable of making a rational choice. In addition, Norko was aware that the defendant would prefer a sentence of life imprisonment to death, but did not want a new penalty phase hearing. With respect to Nave’s proposed testimony and the proposed testimony of the defendant’s father suggesting that the defendant suffered from delusions of importance and extreme narcissism, Norko recognized that the defendant suffered from a personality disorder with narcissistic traits but concluded that the disorder did not affect his ability to make a rational decision. With respect to the public defenders’ claims that the defendant did not understand his legal options, the trial court extensively canvassed the defendant on that issue and reasonably found otherwise.
We also conclude that Grassian’s proposed testimony on the effect of segregated confinement on the defendant’s ability to make a rational and voluntary choice is speculative. Grassian has neither examined the defendant nor inspected the conditions of the defendant’s confinement. Norko stated in his report that the defendant has frequent visitors in prison, corresponds with numerous people and regularly prays, reads, listens to music, watches television and does puzzles and word games. Norko also found that, although the defendant occasionally suffered from some of the symptoms listed by Grassian, he generally slept well, had a normal appetite and a good energy level, was able to concentrate and to process thought, had no memory disturbances and expressed no suicidal thoughts. Moreover, Grassian’s proposed testimony that Norko had failed to recognize that the defendant’s intelligence would allow him to conceal a “hidden agenda” is not supported by the record. Norko specifically stated in his report that the defendant “has hidden things from the [prison’s mental health] staff in the past... .” He further stated that Chaplin “has tried to look through the surface, but does not see any significant concerns.” For similar reasons, we conclude that Goldsmith’s proposed testimony that the defendant’s decision is not voluntary is speculative and not supported by the record. Finally, we conclude that much of the proposed testimony by many of the witnesses is conclusory in that it suggests that the defendant’s decision to take control of his fate by forgoing further legal challenges to his death sentences and his ambivalent feelings over the consequences of that decision are, in and of themselves, evidence of his incompetence. We see no basis for that proposition in logic, experience or the law.
We conclude that the plaintiff in error has not presented any meaningful evidence that the defendant is incompetent within the meaning of Demosthenes v. Baal, supra, 495 U.S. 734-35. In the absence of such evidence, the plaintiff in error is not entitled to an evidentiary hearing at which it may attempt to establish the defendant’s incompetence and its standing to appear as the defendant’s next friend under Whitmore v. Arkansas, supra, 495 U.S. 161-66. Accordingly, we agree with the trial court that the plaintiff in error’s motion to appear as the defendant’s next friend should be denied.
Ill
We next address the plaintiff in error’s claim that the trial court abused its discretion by denying its motion to appear as an amicus curiae. We disagree.
“The [a]ppearance of an amicus curiae is generally authorized by the court’s grant of an application for the privilege of appearing as amicus curiae and not as of right. Accordingly, the fact, extent and manner of an amicus curiae’s participation is entirely within the court’s discretion and an amicus curiae may ordinarily be heard only by leave of the court.” (Internal quotation marks omitted.) Thalheim v. Greenwich, 256 Conn. 628, 644, 775 A.2d 947 (2001); see also National Organization for Women, Inc. v. Scheidler, 223 F.3d 615, 616 (7th Cir. 2000) (“[w]hether to permit a nonparty to submit a brief, as amicus curiae, is, with immaterial exceptions, a matter of judicial grace”); United States v. Michigan, 940 F.2d 143, 165 (6th Cir. 1991) (“[classical participation as an amicus to brief and argue as a friend of the court was, and continues to be, a privilege within ‘the sound discretion of the courts’ ”). Accordingly, we review the trial court’s denial of an application to appear as amicus curiae for abuse of discretion.
“Historically, amicus curiae was defined as one who interposes in a judicial proceeding to assist the court by giving information, or otherwise, or who conduces] an investigation or other proceeding on request or appointment therefor by the corut. ... Its purpose was to provide impartial information on matters of law about which there was doubt, especially in matters of public interest.... The orthodox view of amicus curiae was, and is, that of an impartial friend of the court—not an adversary party in interest in the litigation.... The position of classical amicus in litigation was not to provide a highly partisan account of the facts, but rather to aid the court in resolving doubtful issues of law.” (Citations omitted; emphasis in original; internal quotation marks omitted.) United States v. Michigan, supra, 940 F.2d 164-65. “Amicus... has never been recognized, elevated to, or accorded the full litigating status of a named party or a real party in interest... and amicus has been consistently precluded from initiating legal proceedings, filing pleadings, or otherwise participating and assuming control of the controversy in a totally adversarial fashion.... Historically, an amicus could not join issues not joined by the parties in interest... .” (Citations omitted.) Id., 165.
The plaintiff in error has not cited a single authority directly supporting its argument that a court is required to grant a request to appear as amicus curiae if the parties to a proceeding have taken nonadversarial positions on an issue on which the person seeking to be admitted as an amicus curiae takes an opposing view. The foregoing principles make it clear that the court has no obligation to do so. It is also clear that the plaintiff in error is attempting to use the procedure for becoming an amicus curiae as a vehicle for evading the procedures for formally intervening in the underlying criminal cases. Amicus status should not be granted for such a purpose. See id., 165-66. Accordingly, we conclude that the trial court did not abuse its discretion in denying the plaintiff in error’s request to appear as an amicus curiae.
The orders of the trial court denying the plaintiff in error’s motion to appear as the defendant’s next friend and its request to appear as amicus curiae are affirmed and the writ of error is dismissed.
In this opinion VERTEFEUILLE, ZARELLA, LAVERY and FOTI, Js., concurred.
General Statutes § 53a-54b provides in relevant part: “A person is guilty of a capital felony who is convicted of any of the following ... (5) murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety; (6) murder committed in the course of the commission of sexual assault in the first degree... .”
The criminal conduct in this case occurred in 1983 and 1984. Section 53a-54b has been amended several times since 1984 for purposes not relevant here. For convenience, we cite the current version of the statute although we take note of the fact that prior to the enactment of No. 01-151, § 3, of the 2001 Public Acts, the provision of the statute concerning murder committed in the course of the commission of sexual assault in the first degree had been designated subdivision (7) rather than subdivision (6).
We emphasize that the defendant has not “waived” his right to further legal proceedings in the sense that he has forfeited the ability to exercise that right in the future. The parties are in agreement that the defendant may exercise his right to file a petition for a writ of habeas corpus at any time and that, if he does so, the execution will be stayed.
The plaintiff in error has withdrawn its motion for permission to appear as a party in interest or as an intervenor.
Several defendants who have been sentenced to death in Connecticut have filed petitions for writs of habeas corpus in which they claim that the state’s capital punishment scheme is illegal, arbitrary, discriminatory, disproportionate, wanton and freakish due primarily to the influence of race and other arbitrary factors on the imposition of capital punishment throughout Connecticut. See State v. Reynolds, 264 Conn. 1, 226-34, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004); see also State v. Colon, 272 Conn. 106, 377-78, 864 A.2d 666 (2004); State v. Breton, 264 Conn. 327, 405, 824 A.2d 778, cert. denied, 540 U.S. 1055, 124 S. Ct. 819, 157 L. Ed. 2d 708 (2003); State v. Cobb, 251 Conn. 285, 499, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); State v. Webb, 238 Conn. 389, 504-505 n.73, 680 A.2d 147 (1996), aff'd after remand, 252 Conn. 128, 750 A.2d 448, cert. denied, 531 U.S. 835, 121 S. Ct. 93,148 L. Ed. 2d 53 (2000). In December, 2002, Chief Justice Sullivan appointed former Chief Justice Robert Callahan to serve as a special master to manage the litigation of these claims. See State v. Reynolds, supra, 233. That litigation is pending at this time.
The defendant in the present case has never filed a petition for habeas corpus raising this claim. The plaintiff in error lodged the motion for a stay pending resolution of the claim rather than filing it because the motion properly would not be before the trial court unless the motion to appear as next friend, party in interest or intervenor were granted.
Specifically, the plaintiff in error represented that the defendant was upset when the trial court ordered a competency evaluation and that it was clear that he was not upset for the families of the victims, but for himself; he has attempted to commit suicide three times; Paulding’s discussion of the defendant’s dysphoria was misleading because that condition is defined as an emotional state characterized by anxiety, depression and restlessness; the defendant never responded to the court’s question as to whether he accepted the justice of his execution; the court never asked the defendant whether he wanted to waive clemency; the standard for determining competency under Rees v. Peyton, 384 U.S. 312, 314, 86 S. Ct. 1505, 16 L. Ed. 2d 583 (1966), is not whether the defendant is prevented from making a rational choice, but whether his ability to do so is substantially affected; and the defendant lied about the lack of mitigating factors when he attempted to stipulate to the death sentence.
Norlco also submitted to the trial court a written report describing his investigation of the defendant’s competency and setting forth his conclusions.
After the plaintiff in error filed its offer of proof, the defendant filed a motion to seal the offer of proof from public viewing on the ground that the offer of proof contained information protected by the attorney-client privilege. Thereafter, this court conducted an in camera review of the offer of proof to identify the privileged portions and granted the defendant’s motion as to those portions.
The summary defined “segregated confinement” as confinement alone in a cell of from fifty-six to ninety square feet, with minimal opportunities for social interaction, conjoint recreation or religious services, minimal educational or occupational programming and very limited environmental stimulation.
This letter was attached to the plaintiff in error’s oiler of proof.
These include numerous letters and other writings authored by the defendant, newspaper articles about the defendant and the death penalty, letters from the defendant’s former attorneys and others to the defendant, notes taken by the defendant’s former attorneys and a statement by the Reverend Monsignor John Gilmartin about the defendant’s attempt to stipulate to the death penalty.
The United States Supreme Court recognized that intervention by a next friend in a federal habeas corpus proceeding was authorized by statute and that these limitations applied to that statutory proceeding. Whitmore v. Arkansas, supra, 495 U.S. 164-65. The Arkansas Supreme Court had apparently recognized as a matter of common law the availability of next friend status in state courts. Id., 165. The United States Supreme Court stated that “[wjithout deciding whether a ‘next friend’ may ever invoke the jurisdiction of a federal court absent congressional authorization, we think the scope of any federal doctrine of ‘next friend’ standing is no broader than what is permitted by the habeas corpus statute, which codified the historical practice. And in keeping with the ancient tradition of the doctrine, we conclude that one necessary condition for ‘next friend’ standing in federal court is a showing by the proposed ‘next friend’ that the real party in interest is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability.” Id., 164-65. This court has adopted that standard as a matter of state common law. See Phoebe G. v. Solnit, 252 Conn. 68, 77, 743 A.2d 606 (1999).
Although the plaintiff in error did not mention Demosthenes in its brief, it pointed out at oral argument before this court that not all courts have required a showing of meaningful evidence of incompetence before a competency hearing is provided. See, e.g., Franz v. Lockhart, 700 F. Sup. 1005, 1025 (E.D. Ark. 1988) (ordering competency hearing even though persons seeking next friend status had not presented evidence that “can reasonably be said to cast doubt” on state court’s determination that defendant was competent). It has not, however, attempted to reconcile Demosthenes with its claim that due process requires a case for incompetence to be presented at all Rees competency hearings and has not provided any reasons why this court should adopt a standard that goes beyond the requirements of due process.
We also note that the plurality opinion in Ford v. Wainwright, supra, 477 U.S. 399, does not necessarily represent the governing law on this issue. “When a fragmented Court decides a case and no single rationale explaining the result eqjoys the assent of five Justices, the holding of the Court may be viewed as the position taken by those Members who concurred in the judgments on the narrowest grounds... .” (Internal quotation marks omitted.) Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977). In Ford, Justice Powell concurred on the ground that the federal habeas statute required federal courts to apply the presumption of correctness to the factual findings of state courts, not the governor. Ford v. Wainwright, supra, 423 (Powell, J., concurring). Powell also concluded that a constitutionally acceptable procedure for determining the sanity of a defendant who has been sentenced to death “may be far less formal than a trial. The State should provide an impartial officer or board that can receive evidence and argument from the prisoner’s counsel, including expert evidence that may differ from the State’s own psychiatric examination. Beyond these basic requirements, the States should have substantial leeway to determine what process best balances the various interests at stake.” Id., 427 (Powell, J., concurring). Nothing in this language suggests a competency hearing must be provided in the absence of any meaningful evidence that the defendant is incompetent.
In O’Rourke, the court stated stated: “[T]he District Court permitted [the defendant] to reopen his petition in federal court.” O’Rourke v. Endell, supra, 153 F.3d 566. The opinion also states: “[The defendant] argues that the competency hearing was flawed and therefore the finding that he had the capacity to waive his postconviction appeal is not entitled to a presumption of correctness.” Id., 567. The O’Rourke opinion carefully distinguishes between actions taken by the defendant personally and those taken by Rosenzweig without the defendant’s consent. It appears, therefore, that the defendant consented to the reinstitution of the federal habeas proceedings and the arguments made by Rosenzweig in support thereof.
We also note that, unlike in the present case, the trial court in O’Rourke ordered the defendant’s counsel to take the position that the defendant was not competent at the competency hearing. The plaintiff in error argued vigorously at oral argument before this court that the fact that a defendant who has waived further challenges to his death sentence is represented by qualified counsel who, in the exercise of his independent judgment, believes that the defendant is competent should not affect the trial court’s decision on whether to allow another person to appear as the defendant’s next friend. We are not persuaded. If there is reason to doubt the competency of a defendant, then, in cases where the defendant is not represented by counsel, the validity of the defendant’s claim that he is competent is, itself, under a cloud of doubt, and the appearance of a competent third person, who has made a showing that the defendant is incompetent, to act as a next friend is therefore justified. When the defendant is represented by qualified counsel who has ethical obligations to act in his client’s best interests, there is far less justification for the appearance of a next friend. Indeed, to allow such an appearance would raise troubling questions about the defendant’s constitutional rights to counsel of his choice and to control his own fate. Accordingly, we are not entirely convinced that the constitution ever requires the appointment of a next friend to argue incompetence when the defendant is represented by independent, qualified counsel. Because we conclude in the present case, however, that the plaintiff in error has not met the burden of producing meaningful evidence of the defendant’s incompetence, we need not consider whether a person seeking next friend status has a higher burden when the defendant is represented by counsel. We reject, however, the plaintiff in error’s argument that it should have a lower burden.
Although some states require a competency hearing whenever a defendant wants to forgo further proceedings; see Whitmore v. Arkansas, supra, 495 U.S. 165; the United States Supreme Court has never held that such a healing is constitutionally required. See id. Because the trial court in the present case granted the state’s request for a competency hearing, we need not consider whether the hearing was constitutionally required.
We also are not persuaded by the other cases cited by the plaintiff in error for the proposition that someone must take the position of incompetence at a Rees hearing. See Miller v. Stewart, 231 F.3d 1248,1250-52 (9th Cir. 2000) (granting next friend’s request for evidentiary Rees hearing when no such hearing had been held previously and next friend presented evidence of incompetence); Hays v. Murphy, 663 F.2d 1004, 1008-1009 (10th Cir. 1981) (although evidentiary hearing at which both sides introduced testimony, documentary evidence and arguments was adequate procedure for determining competency of defendant, underlying investigation of defendant’s competency was not adequate); Slawson v. State, 796 So. 2d 491, 502 (Fla. 2001) (evidence presented at competency hearing was “properly subjected to adversarial testing in an evidentiary hearing”). These cases establish only that, after a showing of evidence of incompetence sufficient to require a competency hearing has been made, an adversarial hearing is required.
Tlie cases cited by the plaintiff in error hold only that a court may appoint an amicus curiae to take the position that a defendant who has waived further challenges to his death sentence is incompetent to do so. See Dennis ex rel. Butko v. Budge, 378 F.3d 880, 903 (9th Cir.) (Berzon, J., concurring), cert. denied, 542 U.S. 959, 125 S. Ct. 16, 159 L. Ed. 2d 847 (2004), citing Mason ex rel. Marson v. Vasquez, 5 F.3d 1220,1221 (9th Cir.), aff'd, 1 F.3d 964 (9th Cir. 1993) (en banc); Comer v. Stewart, 230 F. Sup. 2d 1016, 1019 (D. Ariz. 2002); State v. Dodd, 120 Wash. 1, 10, 838 P.2d 86 (1992). It cites no authority in support of its argument that the eighth amendment requirement for heightened reliability in death penalty cases requires the appointment of an amicus curiae in such cases.
[OPINION BY NORCOTT, J., type=concurrence]
NORCOTT, J.,
concurring. Despite my longstanding belief that the death penalty has no place whatsoever in a civilized and rational criminal justice system, I agree with the reasoning and conclusion of the majority opinion as limited to the context of this particular case, namely, the issue of standing with respect to the plaintiff in error, the office of the chief public defender of the state of Connecticut, as next friend of the defendant, Michael B. Ross. I write separately because our order will indirectly, but inexorably, lead in a matter of days to the death of the defendant at the hands of the state. This troubles me because of legitimate claims, still unresolved, that our deathpenalty system is administered in a racially discriminatory, arbitrary or capricious manner. See State v. Cobb, 234 Conn. 735, 738 and n.4, 663 A.2d 948 (1995) (discussing preliminary data). Indeed, a comprehensive statistical study about the influence of race and other factors in the application of Connecticut’s death penalty presently is ongoing in the context of consolidated habeas corpus litigation that is being supervised by a special master, former Chief Justice Robert Callahan. See State v. Reynolds, 264 Conn. 1, 232-33, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614,158 L. Ed. 2d 254 (2004); see also General Statutes § 53a-46b (b) (1) (“[t]he Supreme Court shall affirm the sentence of death unless it determines that... [t]he sentence was the product of passion, prejudice or any other arbitrary factor”). My concern is that to permit an execution to proceed without the benefit of the completion of that study and a ruling thereon amounts to an informal and premature judicial imprimatur on the fairness of the death penalty process. Moreover, should the habeas court subsequently conclude that our entire death penalty system is fundamentally flawed as discriminatory on the basis of race after the defendant has been executed, our citizens’ confidence in this court and the rest of the judicial branch as a bastion of civil rights might suffer irreparable harm. My reservations aside, I nevertheless concur in the instant judgment because this issue was not addressed in this writ of error.
See State v. Peeler, 271 Conn. 338, 464, 857 A.2d 808 (2004) (Katz, J., with whom Norcott, J., joins, dissenting); State v. Ross, 269 Conn. 213, 392-93, 849 A.2d 648 (2004) (Norcott, J., dissenting); State v. Breton, 264 Conn. 327, 446-49, 824 A.2d 778 (Norcott, J., dissenting), cert. denied, 540 U.S. 1055, 124 S. Ct. 819, 157 L. Ed. 2d 708 (2003); State v. Webb, 252 Conn. 128, 147, 750 A.2d 448 (Norcott, J., dissenting), cert. denied, 531 U.S. 835, 121 S. Ct. 93,148 L. Ed. 2d 53 (2000); State v. Griffin, 251 Conn. 671, 742-48, 741 A.2d 913 (1999) (Norcott, J., dissenting); State v. Ross, 251 Conn. 579, 597, 742 A.2d 312 (1999) (Norcott, J., dissenting); State v. Cobb, 251 Conn. 285, 543-52, 743 A.2d 1 (1999) (Norcott, J., dissenting), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); State v. Webb, 238 Conn. 389, 566-70, 680 A.2d 147 (1996) (Norcott, J., dissenting); see also State v. Rizzo, 266 Conn. 171, 313-14, 833 A.2d 363 (2003) (Norcott, J., concurring); State v. Courchesne, 262 Conn. 537, 583-84, 816 A.2d 562 (2003) (Norcott, J., concurring).
I previously have noted the “pervasive and insidious influence of race and poverty in the administration of the death penalty.” State v. Breton, 264 Conn. 327, 447, 824 A.2d 778 (Norcott, J., dissenting), cert. denied, 540 U.S. 1055,124 S. Ct. 819,157 L. Ed. 2d 708 (2003); see also State v. Cobb, 251 Conn. 285, 545-46, 743 A.2d 1 (1999) (Norcott, J., dissenting) (“I am convinced that the arbitrariness inherent in the sentencer’s discretion is intensified by the issue of race. Indications from the available evidence suggest that the death penalty has been imposed in a racially discriminatory manner and has been geared toward minorities and the poor.”), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); State v. Webb, 238 Conn. 389, 566-67, 680 A.2d 147 (1996) (Norcott, J., dissenting) (“I am persuaded that our statutory scheme for its imposition cannot withstand constitutional scrutiny because that scheme, by its very nature, admits of an unacceptable opportunity for arbitrariness and the influence of racial discrimination to operate in the determination of who shall die at the hands of the state”).
In State v. Cobb, supra, 234 Conn. 738-39 n.4, which was decided in 1995, the defendant produced preliminary data and contended that race has an impermissible effect on capital sentencing because: “(1) since 1973, prosecutors have charged a capital felony pursuant to General Statutes § 53a-54b in seventy-four cases, of which only eleven, or 15 percent, have involved the murder of a victim who was black, even though 40 percent of all murder victims in the state during that same time period were black; (2) since 1973, although there have been eighteen capital prosecutions for murder committed during the course of kidnapping, none was prosecuted where the victim was black; (3) during the same period, there have been twelve capital prosecutions for murder committed in the course of a sexual assault, and only one involved the murder of a black victim; (4) since 1973, twenty-eight cases have resulted in a conviction of capital felony, by verdict or plea, and eighteen of those twenty-eight, have proceeded to a hearing on the imposition of the death penalty. Of the twenty-eight capital felony convictions, only four, or 14 percent, have involved the murder of a victim who was black, and of the eighteen that have gone to a penalty phase hearing, only one, or 5.5 percent, has involved the murder of a black victim; (5) of the sixty-six capital convictions in which 1 he guilt phase has been concluded, twenty-one involved black defendants and forty-five involved nonblack defendants. Of the black defendants, thirteen of twenty-one, or 62 percent, were convicted of capital felonies and fifteen of forty-five, or 33 percent, nonwhite defendants were so convicted.” He sought “the opportunity to demonstrate the number of kidnap murders of black victims and the number of sexual assault murders of black victims that were not prosecuted as capital felonies and to demonstrate the disproportionate treatment of those crimes as compared to the treatment of comparable crimes involving white victims.” Id.
Because of the need for the creation of an adequate factual record as to alleged discrimination, this court concluded that the defendant’s claim in Cobb was more appropriately raised collaterally via a habeas corpus proceeding, rather than a remand from direct appeal. Id., 741. Data collection and analysis by the public defenders commenced shortly thereafter, and in State v. Reynolds, supra, 264 Conn. 233, this court ordered that the Cobb and Reynolds racial discrimination claims “be litigated before the same habeas judge and in the same general, consolidated hearing, on behalf of all defendants who have been sentenced to death.” In December, 2002, Chief Justice William J. Sullivan appointed former Chief Justice Robert Callahan as special master to manage the litigation, including the preparation and submission of the state’s response. Id.
It is of no consequence that the defendant in the present case and his victims are white, and that there is no question as to his guilt, or that his acquiescence to the death penalty is competent, knowing and voluntary. My trepidation transcends the defendant in this case because our concerns of racial discrimination in the administration of Connecticut’s death penalty are not the product of conjecture informed by the voracious consumption of law review articles. Rather, a court supervised statistical analysis of our capital sentencing scheme, from intake to disposition, is in actual progress. The preliminary statistical data has revealed allegations of racial disparity that are substantial enough to require years of analysis under the supervision of a special master. I find profound the implications of knowingly using a death penalty process that plausibly may well be seriously flawed as discriminatory on the basis of race.
[OPINION BY DRANGINIS, J., type=concurrence]
DRANGINIS, J.,
concurring. I agree with the majority that the plaintiff in error, the office of the chief public defender of the state of Connecticut, cannot participate as next friend of the defendant, Michael B. Ross, or as amicus curiae in postconviction proceedings in the cases against the defendant. I also fully agree, however, with Justice Norcott that the pending consolidated habeas corpus litigation regarding the influence of race in the application of our death penalty statute raises the prospect that the imminent imposition of the death penalty in this case will be revealed, in the foreseeable future, as having resulted from a fundamentally flawed system. I concur separately only because, unlike Justice Norcott, I do not believe the death penalty to be unconstitutional in all situations.
Michael B. ROSS, by his next friend, Gerard A. Smyth, in his official capacity as Chief Public Defender, Office of the Chief Public Defender, Petitioner, Theresa C. LANTZ, Commissioner, Connecticut Department of Corrections; Wayne C. Choinski, Warden, Northern Correctional Institution, Respondents.
Docket No. 05-8900.
United States Court of Appeals, Second Circuit.
Argued: Jan. 25, 2005.
Decided: Jan. 25, 2005.
Hubert J. Santos, Esq., Santos & See-ley, Patrick J. Culligan, Esq., State of Connecticut, Office of the Chief Public Defender, Hartford, CT, for Petitioners-Appellees.
Kevin T. Kane, Esq., State Attorney’s Office, District of New London, New London, CT, Jo Anne Sulik, Esq., Harry David Weller, Esq., Chief State Attorney’s Office, Civil Litigation Bureau, Michael E. O’Hare, Esq., Chief State Attorney’s Office, Appellate Bureau, Rocky Hill, CT, for Respondents-Appellants.
Before: SACK, KATZMANN, and HALL, Circuit Judges.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
The motion to vacate the stay of execution is denied and the appeal is dismissed.
■ The first issue before the district court was whether Gerard A. Smyth, who brought the application for habeas corpus, had standing to bring it and whether the district court therefore had jurisdiction to hear the habeas application. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is poyrer to de,clare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”) (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868) (internal quotation marks omitted)). The court has jurisdiction, then, only if Michael Ross, who did not make the application, was properly represented by Smyth, as “next friend,” who did make the application. See Whitmore v. Arkansas, 495 U.S. 149, 154, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (“It is well established ... that before a federal court can consider the merits of a legal claim, the person seeking to invoke the jurisdiction of the court must establish the requisite standing to sue.”).
Put another way, the controlling statute provides that an application for habeas corpus relief “shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf.” 28 U.S.C. § 2242 (emphasis supplied). At the outset, then, the question for the district court was whether Smyth, who filed the application purporting to be Ross’s “next friend,” is in fact acting “in his behalf.”
The-Supreme Court stated in Whitmore:
Decisions applying the habeas corpus statute have adhered to at least two firmly rooted prerequisites for “next friend” standing. First, a “next friend” must provide an adequate explanation— such as inaccessibility, mental incompetence, or other disability — why the real party in interest cannot appear on his own behalf to prosecute the action. Second, the “next friend” must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has been further suggested that a “next friend” must have some significant relationship with the real party in interest.
495 U.S. at 163-64, 110 S.Ct. 1717 (citations omitted). “The burden is on the ‘next friend,’ ” the Supreme Court continued, “clearly to establish the propriety of his status and thereby justify the jurisdiction of the court.” Id. at 164, 110 S.Ct. 1717.
We conclude that, in the context of the case before us, the district court must establish that Smyth was properly acting as Ross’s next friend. We do not have a basis adequately to review, and therefore to disagree with, the district court’s conclusion that there was, in the language of Whitmore, “meaningful evidence [before it] that [Ross] was suffering from a mental disease, disorder, or defect that substantially affected his capacity to make an intelligent decision.” Id. at 166, 110 S.Ct. 1717; accord Demosthenes v. Baal, 495 U.S. 731, 736, 110 S.Ct. 2223, 109 L.Ed.2d 762 (1990). Such evidence is a basis upon which the district court may decide, for purposes of establishing Smyth’s “next friend” standing and the court’s own jurisdiction, that Ross is in fact not competent to forgo his right to bring habeas corpus proceedings. It was premature for the district court to determine “next friend” standing in the absence of the proceedings it has now ordered. We thus conclude that such proceedings on Ross’s competence are appropriate as part of the district court’s effort properly to decide the issues of standing and jurisdiction. “[Wjhenever a capital defendant desires to terminate further proceedings, ... a hearing [on mental competency] will obviously bear on whether the defendant is able to proceed on his own behalf.” Whitmore, 495 U.S. at 165, 110 S.Ct. 1717. We therefore deny the motion to vacate the stay of execution and we dismiss this appeal because, until there is an adequate record upon which the district court can determine whether or not Smyth has standing to bring this proceeding and the court therefore has jurisdiction over it, we are not in a position to review any such determination. We urge the district court to conduct such proceedings as expeditiously as is reasonably practicable.
For the benefit of the court and the parties, we note that, at least pending further developments, it is our understanding that if the district court determines, in accordance with this order, that Ross is competent for these purposes and that, under applicable law, his decision to forgo his right to bring these proceedings is voluntary, the application for habeas corpus will be dismissed. We also understand that if the district court determines, to the contrary, that Smyth is properly appearing in these proceedings as Ross’s “next friend,” the court will then decide the habeas petition on its merits, presumably bound by 28 U.S.C. § 2254(d), which provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
CONCLUSION
For the foregoing reasons, the motion to vacate the stay of execution is denied and the appeal is dismissed.
Dan ROSS, Plaintiff-Appellee, v. M. Jodi RELL, Theresa Lantz, David N. Strange, Christopher L. Morano, and Richard Blumenthal, Defendants-Appellants.
No. 05-8901.
United States Court of Appeals, Second Circuit.
Jan. 28, 2005.
Antonio Ponvert, III, Esq., Koskoff, Koskoff & Bieder, Bridgeport, CT, for Plaintiff-Appellee.
Henri Alexandre, Esq., Steven R. Strom, Esq., Terrance M. O’Neill, Esq., Ann E. Lynch, Esq., Attorney General’s Office, Hartford, CT, for Defendants-Appellants.
Present: SACK, KATZMANN, HALL, Circuit Judges.
“As a [temporary restraining order] is interlocutory and is not technically an injunction, it is ordinarily not appealable. However, when a grant or denial of [such an order] ‘might have a “serious, perhaps irreparable, consequence,” and... can be “effectually challenged” only by immediate appeal,’ we may exercise appellate jurisdiction.” Romer v. Green Point Savings Bank, 27 F.3d 12, 15 (2d Cir.1994) (citations omitted). In light of the unusual circumstances of this appeal and the fact that the death warrant in issue will expire before the temporary restraining order the vacatur of which is sought expires, we conclude that the consequences of the temporary restraining order are sufficiently serious to require us to hear this appeal.
In light of the decision of the United States Supreme Court in Lantz v. Ross, 2005 WL 180484 (Jan. 27, 2005), vacating the district court’s January 24, 2005, stay of execution of Michael B. Ross entered in that litigation, and our careful review of the novel allegations contained in the amended complaint of Plaintiff-Appellee Dan Ross filed January 27, 2005, and the law applicable thereto, we conclude that Plaintiff-Appellee Ross did not establish in the district court a likelihood of success on the merits of his claims or raise sufficiently serious questions on the merits to make them a fair ground for litigation. See, e.g., Covino v. Patrissi, 967 F.2d 73, 76 (2d Cir.1992); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). We have not been directed to, nor have we ourselves found, any case law of the United States Supreme Court or any other federal appellate court that establishes a right of a relative of a person subject to a lawful death warrant to challenge the sentence or the warrant on his or her own behalf. We note, moreover, that although it did not have access to all the material that has now been submitted to us, some of which may raise troubling questions in the context of the issues litigated in Lantz v. Ross, the implications of the Supreme Court’s one-sentence order vacating the stay in Lantz v. Ross leave little room to argue to this Court in this appeal that Michael Ross is incompetent for these purposes. We therefore conclude that the entry of the Temporary Restraining Order by the court was an abuse of discretion. See, e.g., Motorola Credit Corp. v. Uzan, 322 F.3d 130, 135 (2d Cir.2002) (per curiam) (reviewing preliminary injunction for abuse of discretion).
It is therefore hereby ORDERED, ADJUDGED and DECREED that the emergency motion to vacate the Temporary Restraining Order is GRANTED and said Temporary Restraining Order is VACATED. We stay this order until Sunday, January 30, 2005, at 12:01 A.M., in order to permit Plaintiff-Appellee Ross to seek such further review as he may deem warranted.
STATE OF CONNECTICUT v. MICHAEL ROSS
(SC 17422)
(SC 17423)
Sullivan, C. J., and Norcott, Vertefeuille, Zarella, Lavery, Dranginis and Flynn, Js.
Argued May 5
officially released May 9, 2005
Michael P. Shea, with whom were Thomas J. Groark, Jr., and James Mahanna, for the plaintiff in error-appellant (special counsel).
Harry Weller, supervisory assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, Susan C. Marks, supervisory assistant state’s attorney, Marjorie Allen Dauster, senior assistant state’s attorney, Robert J. Scheinblum, assistant state’s attorney, sad Jessica Probolus, special deputy assistant state’s attorney, for the defendant in error-appellee (state).
May 9, 2005, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.
[OPINION BY SULLIVAN, C. J. type=majority]
Opinion
SULLIVAN, C. J.
This appeal is brought by Thomas J. Groark, Jr., in his capacity as special counsel appointed by the trial court to investigate, prepare and present legal arguments that the defendant, Michael Ross, is incompetent to waive further postconviction challenges to his sentences of death. After a hearing, the trial court found that the defendant was competent and his waiver was knowing, intelligent and voluntary. Special counsel challenges that finding on appeal. We affirm the judgment of the trial court.
The record reveals the following procedural history. More than twenty years ago, the defendant “was charged in three cases with eight counts of capital felony in violation of General Statutes § 53a-54b. The trial court dismissed two counts for lack of territorial jurisdiction and, after a jury trial, the defendant was convicted of four counts of capital felony in violation of § 53a-54b (5) and two counts of capital felony in violation of § 53a-54b (6). State v. Ross, 230 Conn. 183, 188, 194-95, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995) After a separate penalty phase hearing pursuant to General Statutes (Rev. to 1987) § 53a-46a, he was sentenced to death. The defendant appealed from the judgments to this court. We affirmed the defendant’s convictions, but determined that certain evidentiary rulings by the trial court in the penalty phase had impaired the defendant’s ability to establish a mitigating factor and, accordingly, we reversed the judgments imposing the death penalty. [Id.], 286. On remand, a second penalty phase hearing was held before a jury, which found an aggravating factor for each capital felony conviction and no mitigating factor. In accordance with the jury’s findings, the court, Miano, J., imposed a death sentence on each count. State v. Ross, 269 Conn. 213, 223-24, 849 A.2d 648 (2004). The defendant again appealed from the judgments to this court, and we affirmed the sentences of death. Id., 392.” (Internal quotation marks omitted.) State v. Ross, 272 Conn. 577, 579-80, 863 A.2d 654 (2005).
“Thereafter, on September 21, 2004, T. R. Paulding, Jr., an attorney, entered appearances in the three criminal cases against the defendant. His appearances were in lieu of the appearances by attorneys employed by the public defender’s office. At the same time, Paulding sent a letter to the trial court, Clifford, J., indicating that the defendant intended to waive any further appeals or collateral attacks on his death sentences and that he wanted the court to set an execution date.” Id., 580.
The trial court held a hearing at which it canvassed the defendant about his decision to waive further challenges to the death sentences. The court indicated that it saw no evidence that the defendant was not competent and set January 26, 2005, as the execution date. Id., 581.
Despite the fact that Paulding had appeared for the defendant in lieu of the public defenders, “[o]n December 1, 2004, the [public defender’s office] filed amotion to proceed in forma pauperis and a petition for writ of certiorari in the United States Supreme Court. The [public defender’s office] represented in the filings that the defendant had refused to sign an affidavit of indigence in support of the motion because he was incompetent. The United States Supreme Court denied the motion on January 10, 2005. [See Ross v. Connecticut, 543 U.S. 1046, 125 S. Ct. 943, 160 L. Ed. 2d 766 (2005).]
“Also on December 1, 2004, the [public defender’s office] filed in the Superior Court a motion for permission to appear as (1) next friend of [the defendant]; and (2) as a party in interest or as an intervener or as amicus curiae. The [public defender’s office] alleged in its motion that it had standing to appear as the defendant’s next friend because the defendant was incompetent when he terminated the [public defenders’] representation of him; because [the defendant] is presently incompetent; and because the [public defender’s office] has had a significant relationship with [the defendant] for some seventeen years .... In addition to the motion for permission to appear, the [public defender’s office] lodged with the court clerk a motion for stay of the defendant’s execution pending a judicial determination as to whether the defendant is competent and a motion for stay of execution pending resolution of the pending consolidated litigation ordered by this court to determine whether Connecticut’s death penalty system is racially discriminatory and therefore violates the state constitution and statutory law (consolidated litigation).
“Thereafter, the state filed a motion seeking a determination as to whether the defendant was competent to waive his rights to seek postconviction relief and whether his waiver was knowingly and voluntarily made. The court held a competency hearing on December 9, 2004. Because the trial court had not yet ruled on the [public defenders’] motion to appear, the [public defender’s office] attended the hearing only as an observer.” (Internal quotation marks omitted.) State v. Ross, supra, 272 Conn. 581-83.
At the December 9, 2004 hearing, the court heard testimony from Paulding and the defendant. At the conclusion of the hearing, the court stated that, “although it would appear to a layperson that the defendant was competent under any standard that would apply, the court required additional information as to whether the defendant had any mental disorder, disease or defect that might affect his decision. Accordingly, the court ordered that the defendant undergo a competency examination by Michael Norko, a psychiatrist, and scheduled a competency hearing for December 28,2004. The court also scheduled a hearing on the [public defenders’] motion to appear on behalf of the defendant for December 15,2004.” (Internal quotation marks omitted.) Id., 587. After hearing arguments by the parties and the public defender’s office at the December 15, 2004 hearing, the court denied the motion to appear. Id., 588.
“Thereafter, on December 23, 2004, the [public defender’s office] filed one motion in this court for review of the trial court’s denial of its motion for a stay of the competency hearing and for stay of execution, and a second motion for emergency stay of the competency hearing and of execution. The [public defender’s office] indicated in the motions that it intended to file a writ of error challenging the trial court’s rulings on [its] standing on December 27, 2004. This court dismissed both motions. On December 28,2004, the [public defender’s office] brought [a] writ of error claiming that the trial court improperly had (1) refused to allow the [public defender’s office] to present evidence and to cross-examine witnesses at the December 28,2004 hearing and (2) denied the [public defender’s office’s] request to appear as an amicus curiae.” Id.
At the December 28, 2004 competency hearing, the trial court heard testimony from Norko and the defendant and found that the defendant was competent under the standard set forth in Rees v. Peyton, 384 U.S. 312, 314, 86 S. Ct. 1505, 16 L. Ed. 2d 583 (1966) (defendant is competent to waive farther challenges to death sentence when “he has [the] capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation”). See State v. Ross, supra, 272 Conn. 591.
“Thereafter, at oral argument before this court on [its] writ of error, the [public defender’s office] represented that it had evidence of the defendant’s incompetence that had never been presented to any court. In light of this representation, and despite the... failure [of the public defender’s office] to make an offer of proof to the trial court, this court issued an order authorizing the [public defender’s office] to file with this court a written offer of proof detailing the evidence that it would present at a competency hearing. The [public defender’s office] filed an offer of proof, attaching summaries of the proposed testimony of Stuart Grassian, a psychiatrist; Eric Goldsmith, a psychiatrist; five attorneys with the public defender’s office, namely, Barry Butler, [Karen] Goodrow, Paula Montonye, Lauren Weisfeld and John Holdridge; Robert Nave, the state death penalty abolition coordinator for the Connecticut branch of Amnesty International and executive director of the Connecticut Network to Abolish the Death Penalty; and Dan Ross, the defendant’s father. The offer of proof also attached several documents that the [public defender’s office] proposed to introduce as exhibits.” Id., 592.
Upon review of the evidence presented at the December 28, 2004 hearing and the offer of proof filed by the public defender’s office, this court concluded that the public defender’s office had failed to present “meaningful evidence” that the defendant was incompetent and, therefore, under the rule set forth in Demosthenes v. Baal, 495 U.S. 731, 736, 110 S. Ct. 2223, 109 L. Ed. 2d 762 (1990), the public defender’s office was not entitled to participate in an evidentiary hearing at which it could attempt to establish the defendant’s incompetence and its standing to appear as the defendant’s next friend. State v. Ross, supra, 272 Conn. 611. Accordingly, we affirmed the judgment of the trial court denying the motion of the public defender’s office to appear as the defendant’s next friend. Id., 613.
After our ruling, the public defender’s office filed a petition for a writ of habeas corpus on behalf of the defendant in the United States District Court for the District of Connecticut, again arguing that the defendant was incompetent and that it should therefore be allowed to appear as his next friend. See Ross v. Lantz, United States District Court, Docket No. 3:05CV00116 (D. Conn. January 24, 2005). The District Court, Chatigny, J., held a hearing on the petition and concluded that the public defender’s office had satisfied the requirements for next friend standing. Id. Accordingly, the court ordered that an evidentiary competency hearing be held and stayed the execution of the death sentences pending resolution of the matter. The commissioner of correction appealed from the decision to the United States Court of Appeals for the Second Circuit and filed a motion to vacate the stay in that court. See Ross v. Lantz, United States Court of Appeals, Docket No. 05-8900 (2d Cir. January 25, 2005). The Court of Appeals concluded that the District Court should not have granted next friend status to the public defender’s office without first holding a competency hearing. Id. Accordingly, the Court of Appeals ordered the District Court to conduct the hearing “as expeditiously as is reasonably practicable,” dismissed the appeal, and denied the motion to vacate the stay. Id.
The commissioner of correction then filed an application to vacate the stay of execution with the United States Supreme Court. On January, 27, 2005, the court granted the application. See Lantz v. Ross, 543 U.S. 1134, 125 S. Ct. 1117, 160 L. Ed. 2d 1091 (2005). Meanwhile, the commissioner of correction had rescheduled the execution to January 29, 2005, at 1 a.m.
On January 28, 2005, at 3 p.m., the District Court, Chatigny, J., convened a telephone conference call among Paulding; counsel for Dan Ross, Antonio Ponvert III and James Nugent; three attorneys for the public defender’s office, Hubert J. Santos, Hope C. Seely and Patrick J. Culligan; and three attorneys for the state, Terrence M. O’Neill, Michael E. O’Hare and Susan Quinn Cobb. During the telephone conference, Judge Chatigny indicated that he had received a letter from a prisoner who claimed to have been incarcerated with the defendant that raised new questions about the effect of the defendant’s conditions of confinement on his competence. The court also indicated that the fact that Norko was “admittedly ignorant” of “death row syndrome” should cause Paulding “tremendous unease... The court stated that if an investigation after the defendant’s death revealed that the defendant was incompetent, the court would “have [Paulding’s] law license.”
After the telephone conference ended, Paulding requested that the execution be stayed temporarily so that he could investigate whether, in light of the District Court’s action, he had a conflict of interest that would impinge on his ability to represent the defendant. The state, which had indicated repeatedly throughout the proceedings that any request for a stay made by the defendant would be honored, agreed, and the commissioner of correction stayed the execution until January 31, 2005, at 9 p.m. On January 31, 2005, as the death warrant issued by the trial court was about to expire, the defendant filed a motion to intervene and for stay of execution in the District Court. The defendant also filed a motion for stay of execution in the Superior Court in which he requested that the competency hearing be reopened. Thereafter, this court entered a stay of execution until the expiration of the death warrant at midnight on January 31, 2005.
The state then filed a motion in the trial court seeking a determination as to whether the District Court’s action had created a conflict of interest for Paulding. The court held a hearing on the motion on February 3 and February 10, 2005. The state stated at the hearing that the conflict that required resolution was between Paulding’s obligation to advocate vigorously for the defendant’s claim that he was competent to waive further legal proceedings, and Paulding’s fear of losing his law license if he did so. The defendant stated that both he and Paulding continued to believe that he was competent but that Paulding did not feel that he was in the “frame of mind” to advise the defendant and go forward with the execution under the circumstances. The defendant further stated that the only reason that he would agree to another competency hearing was to protect Paulding’s license. The court concluded that, in order to address Paulding’s potential conflict of interest, it would appoint Groark as special counsel to investigate and present evidence that the defendant was incompetent. The state indicated that it did not believe that there was any “new and meaningful information” to justify another competency hearing, but agreed that the appointment of special counsel was “the best way to resolve [Paulding’s] dilemma... .’’At the conclusion of the February 10, 2005 hearing, the court set a new execution date of May 11, 2005.
The trial court held a competency hearing on April 7, 8, 11, 12, 13 and 14, 2005. Dan Ross, the defendant, Norko, Grassian, Goldsmith, Suzanne Gentile, who is a psychiatrist retained by Paulding on behalf of the defendant, Holdridge and John F. Tokarz, a former employee of the department of correction, testified at the hearing. The depositions of Martha Elliot, a journalist and friend, and Susan P., the defendant’s girlfriend, were read into the record. In its memorandum of decision, the trial court noted that Dan Ross, Elliot and Susan P. all claimed that the defendant’s stated motivations for waiving further legal proceedings were false. The court also noted that these witnesses were “opposed to the death penalty in general, are close friends or family of [the defendant], and do not personally support his decision to die” and, therefore, were not “unbiased witnesses... .” With respect to the psychiatric testimony, the court concluded that all four psychiatrists agreed that the defendant suffered from sexual sadism, anxiety disorder and depression or mood disorder, all of which had been successfully controlled with medication, and personality disorder with narcissistic, borderline and antisocial traits. The court also noted that the psychiatrists had drawn conflicting conclusions about the effect of the defendant’s personality disorder on his ability to make decisions. Norko and Gentile testified that his narcissism had no substantial effect on his ability to make rational choices. Grassian and Goldsmith testified that the defendant’s narcissistic traits, including his grandiosity, inability to empathize, self-centeredness and arrogance, compelled him to posture as a good and noble person by claiming that his decision to waive further legal proceedings was driven by a desire to spare further pain to the families of his victims, despite his complete lack of empathy for the families. They further testified that the defendant’s narcissism made it impossible for him to bear the perceived humiliation of backing down from the decision. Accordingly, they testified that the defendant was not competent and his decision was not voluntary. The court found that the testimony of Norko and Gentile was more credible than the testimony of Grassian and Goldsmith and found by a preponderance of the evidence that, although the defendant suffered from a variety of mental disorders, “those disorders taken individually or together do not substantially affect his understanding of his legal position and the options available to him... [or] his ability to make a rational choice among his options.” This appeal followed.
Special counsel claims on appeal that the trial court improperly determined that the state had satisfied its burden of proving that the defendant’s waiver of his right to seek postconviction relief was voluntary. The state counters that: (1) this court lacks subject matter jurisdiction over the appeal because special counsel is a nonparty and is not aggrieved by the trial court’s finding that the defendant is competent; and (2) if this court determines that it has jurisdiction over the appeal, the trial court’s finding that the defendant was competent is not clearly erroneous. We conclude that we have jurisdiction to hear special counsel’s appeal. We further conclude that special counsel’s claim that the defendant’s waiver of further challenges to his death sentences was “involuntary,” dependent as it is on challenging facts found by the trial court, must be construed as a claim that the defendant was not competent because his volitional capacity was impaired. Finally, we conclude that the trial court’s finding that the defendant was competent was not clearly erroneous.
I
Before addressing the merits of special counsel’s claims on appeal, we must address the state’s claim that this court lacked subject matter jurisdiction to hear the appeal. See Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). “A determination regarding... subject matter jurisdiction is a question of law... .” (Internal quotation marks omitted.) Sweeney v. Sweeney, 271 Conn. 193, 207, 856 A.2d 997 (2004).
“[T]he right of appeal is purely statutory. It is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met.” (Internal quotation marks omitted.) Hartford Steam, Boiler Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos. Collective, 271 Conn. 474, 495, 857 A.2d 893 (2004), cert. denied, 544 U.S. 974, 125 S. Ct. 1826, 161 L. Ed. 2d 723 (2005). In State v. Salmon, 250 Conn. 147, 162-63, 735 A.2d 333 (1999), we held that, in order to establish a right of appellate review pursuant to General Statutes § 52-263, the appellant must establish that: “(1) it was a party to the underlying action; (2) it was aggrieved by the trial court decision; and (3) the appeal is from a final judgment.” We held in Salmon that the word “party” as used in § 52-263 meant “those by or against whom a legal suit is brought... the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons.” (Internal quotation marks omitted.) Id., 154. We further noted that “[t]he test for determining aggrievement encompasses a... twofold determination: first, the party claiming aggrievement must demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest shared by the community as a whole; second, the party claiming aggrievement must establish that this specific personal and legal interest has been specifically and injuriously affected by the decision.” (Internal quotation marks omitted.) Id., 163 n.15.
The state claims that special counsel does not meet either the test for establishing that he is a party or the test for establishing that he is aggrieved. In support of this claim, the state essentially argues that special counsel was appointed as an amicus curiae and, as such, had no “specific personal and legal interest [that] has been specifically and injuriously affected by the decision” that would confer standing to appeal. Special counsel was appointed to advocate the position that the defendant is incompetent, however, because both the state and the defendant agreed that, under the unique circumstances of this case, Paulding was no longer capable of representing the defendant in a completely disinterested manner. They further agreed that the fairest way to resolve Paulding’s “dilemma” was to assume that a sufficient showing of incompetence had been made to require a full-blown, adversarial competency hearing. Special counsel’s role at the hearing was not to assist the trial court in an impartial manner; it was to advocate the position that the defendant was incompetent and, therefore, to allow him to waive further legal proceedings would violate his due process rights. Cf. State v. Ross, supra, 269 Conn. 270 (conviction of defendant who is not competent to stand trial violates due process). Thus, the trial court effectively severed the defendant’s autonomy interest in waiving further legal proceedings, which Paulding has continuously represented to the courts, from his interest in ensuring that his due process rights were protected, and appointed special counsel for the limited purpose of representing the latter interest. Accordingly, we conclude that, under the unique circumstances of this case, special counsel was acting as counsel for the defendant’s interest for that limited purpose and that he was required to do so as a result of the District Court’s action. We conclude, therefore, that he was an aggrieved party under § 52-263 and has standing to appeal from the trial court’s determination that the defendant was competent.
We emphasize that our conclusion that special counsel had standing to advocate the position that the defendant was incompetent to the trial court and to bring this appeal is limited to the specific circumstances of this case. This case is sui generis and was precipitated by Judge Chatigny’s action. We do not intend to suggest that counsel representing a defendant who desires to waive further proceedings in a capital case has an inherent conflict of interest requiring the appointment of separate counsel to advocate for incompetence. As long as counsel is qualified and competent and, in the exercise of his or her independent professional judgment, believes that his or her client meets the legal standard for competence, no conflict arises.
II
We next address the substance of special counsel’s claims on appeal. At the outset, we set forth the appropriate standard of review. Special counsel argues that a determination as to the voluntariness of a waiver of constitutional rights is subject to de novo review. See State v. Cobb, 251 Conn. 285, 358-59, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000). The state counters that, because the trial court’s competency determination was a finding of fact, it is subject to a clearly erroneous standard of review. See Demosthenes v. Baal, 495 U.S. 731, 735, 110 S. Ct. 2223, 109 L. Ed. 2d 762 (1990) (state court’s conclusion regarding defendant’s competency to waive further challenges to death sentence is finding of fact entitled to presumption of correctness); Rumbaugh v. Procunier, 753 F.2d 395, 399 (5th Cir.) (determination as to whether defendant suffers from mental disease that impairs ability to make rational decision to waive further challenges to death sentence must be accepted unless clearly erroneous), cert. denied sub nom. Rumbaugh v. McCotter, 473 U.S. 919, 105 S. Ct. 3544, 87 L. Ed. 2d 668 (1985). The state further contends that because the defendant was not subject to any external coercion in reaching his decision to waive further appeals, the voluntariness of his waiver, as that concept is typically understood in connection with claims that a waiver of a constitutional right was not voluntary, is not in issue. We agree with the state.
It is well established that a waiver of constitutional rights must be voluntary. See State v. Whitaker, 215 Conn. 739, 753, 578 A.2d 1031 (1990). In making that determination, courts look to the totality of circumstances. Id., 753-54. “Those potential circumstances include... the crucial element of police coercion... the defendant’s maturity... education... physical condition... and mental health... .” (Citations omitted; emphasis added.) Withrow v. Williams, 507 U.S. 680, 693, 113 S. Ct. 1745, 123 L. Ed. 2d 407 (1993); see also Colorado v. Connelly, 479 U.S. 157, 165, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986) (claim that confession was involuntary requires showing of state action); Colorado v. Connelly, supra, 165-66 (rejecting claim that determining voluntariness of confession requires court to “divine a defendant’s motivation for speaking or acting as he did even though there be no claim that governmental conduct coerced his decision”). These cases establish that, although a defendant’s mental condition is to be considered in determining whether he has voluntarily waived a constitutional right, a showing of governmental coercion is an essential factual predicate to a finding that the waiver was involuntary. They further establish that, although a defendant’s mental condition must be considered in this context to determine the extent to which it rendered him susceptible to governmental coercion, the broader issue of competence is not relevant to whether the waiver was voluntary. For example, a defendant with substantial mental disabilities voluntarily can waive the right to keep silent and such a waiver is valid regardless of whether the defendant was competent. See Colorado v. Connelly, supra, 161, 166 (confession of schizophrenic defendant who was following “voice of God” was voluntary).
Some waivers require a determination that the defendant was competent, however, in addition to a determination that the waiver was voluntary. It is undisputed in the present case, for example, that a defendant who is shown to be incompetent cannot validly waive postconviction challenges to a death sentence. In Rees v. Peyton, 384 U.S. 312, 314, 86 S. Ct. 1505, 16 L. Ed. 2d 583 (1966), the United States Supreme Court held that the standard for competency in this context is whether the defendant “has [the] capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.” At least one court has suggested that the Rees competency standard may have a volitional component as well as cognitive component so that a defendant who is capable of rationally understanding and evaluating his options may, nevertheless, be incompetent if he has a mental condition that substantially affects his ability to make or follow through on a rational decision. See Rumbaugh v. Procunier, supra, 753 F.2d 399. In Rumbaugh, the defendant sought to end postconviction proceedings challenging his death sentence and his parents sought standing as next friends to continue the proceedings. Id., 396. Upon finding that the defendant was competent, the District Court dismissed the next friend petition and the parents appealed. Id. On appeal, the Court of Appeals reviewed psychiatric testimony that the defendant was able to appreciate his position and that his choice to decline further challenges to his death sentence was rational; id., 399; but that he had a mental disorder, depression, that acted as a “coercive force that influence [d] him not to want to... exhaust his further appeals... .” Id., 400. The court noted that the parents’ claim required it to consider for the first time “how a court should treat a mental disease which does not impair the cognitive function but impacts only on the volitional, the person’s ability to make a rational choice among available options.” Id., 399. The court ultimately rejected the claim that the defendant was incompetent.
Thus, although a voluntariness determination has a mental state component involving the defendant’s susceptibility to government coercion, and although some courts have suggested that a competence determination has a volitional component, it is clear that voluntariness and volitional capacity are entirely separate legal concepts and are subject to entirely different inquiries. Whether a waiver was voluntary is determined on the totality of the circumstances, and a showing of governmental coercion is a necessary factual predicate for a finding of involuntarmess. Whether the defendant’s volitional capacity was impaired is a component of a competency determination and requires the court to determine whether the defendant had a mental disease or defect that substantially affected his ability to make a rational choice among his options. See footnote 17 of this opinion.
There is no claim of governmental coercion in this case. Accordingly, special counsel's claim that the defendant’s conduct was involuntary must be construed as a claim that the defendant was incompetent because his volitional capacity was impaired. Because the question of whether the defendant’s mental illness impaired his volitional capacity, i.e., whether it substantially affected his ability to make a free choice among his options, is a question of competency, it is a question of fact, not of law. See Demosthenes v. Baal, supra, 495 U.S. 735; Rumbaugh v. Procunier, supra, 753 F.2d 399. Accordingly, we must determine whether the trial court’s finding that the defendant was competent to waive further challenges to his death sentences was clearly erroneous. See Sargent v. Smith, 272 Conn. 722, 728, 865 A.2d 1129 (2005) (trial court’s factual finding is reversible only if clearly erroneous).
“A finding of fact is clearly erroneous when there is no evidence in the record to support it... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Id., 728-29. The general rule is that a finder of fact “is free either to accept or reject, in whole or in part, the evidence presented by the .... witnesses .... [T]he credibility of the... expert and lay witnesses, and the weight to be given to their testimony ... is a matter committed to the sound judgment and common sense of the trier of fact.” (Internal quotation marks omitted.) State v. Ross, supra, 269 Conn. 319.
With respect to the burden of proof, the trial court relied on a number of federal courts that have held that, in determining whether a defendant is competent to waive further legal proceedings in a capital case, “ [initially sufficient evidence must be presented to cause the court to conduct an inquiry. After that point, it... is for the court to determine by a preponderance of the evidence whether the petitioner is mentally competent to withdraw his petition. ... [A] presumption of competency does not apply .... Instead, the question is whether, giving full and fair consideration to all of the evidence, does it establish by a preponderance that [the defendant] is competent to... waive further legal review of his convictions and sentences.” (Citation omitted; internal quotation marks omitted.) Comer v. Stewart, 230 F. Sup. 2d 1016, 1037-38 (D. Ariz. 2002), quoting Mason v. Vasquez, 5 F.3d 1220, 1225 (9th Cir. 1993). The state argues to the contrary that there is a presumption of competence until the defendant is executed, regardless of whether a threshold showing of incompetence has been made. Cf. Ford v. Wainwright, 477 U.S. 399, 426, 106 S. Ct. 2595, 91L. Ed. 2d 335 (1986) (presumption of sanity applies until defendant is executed in death penalty case). Because we conclude in this case that the trial court’s determination that the preponderance of the evidence established that the defendant’s mental disorder did not substantially affect his volitional capacity so as to render him incompetent was not clearly erroneous, we need not decide whether the court should have placed the burden of proof on special counsel.
We now turn to a review of the trial court’s analysis of the evidence. The trial court found that all four testifying psychiatrists agreed that the defendant suffered from sexual sadism, depression or mood disorder, personality disorder with narcissistic, borderline and antisocial traits and anxiety disorder. Although the experts disagreed about the precise degree of the severity of the defendant’s narcissistic disorder, their disagreement on that issue was not substantial. The experts also agreed that the defendant’s cognitive ability was not impaired. The major area of disagreement was whether the defendant’s narcissistic traits, including his grandiosity, inability to empathize, self-centeredness and arrogance, substantially affected his ability to act on a rational decision whether to waive further legal proceedings. Grassian testified that, on the basis of his investigation, it was his opinion that the defendant’s narcissism made it impossible for him to back down from his decision to waive further legal proceedings even though the conditions of his life have improved since the time that he made his decision and he now would like to live. Specifically, Grassian believed that the defendant’s grandiosity required him to take a stand that would be perceived as moral and noble, even though, in fact, he had absolutely no empathy for the families of his victims. He further testified that the defendant’s narcissism made it impossible for him to bear the public humiliation of reneging on his decision. Goldsmith’s testimony was substantially consistent with Grassian’s testimony. Both Grassian and Goldsmith concluded that the defendant’s decision was “not voluntary” as a result of his narcissistic disorder.
Norko, who has been involved in this case since 1995; see State v. Ross, supra, 272 Conn. 588-90 (discussing Norko’s prior involvement in this case); and Gentile also testified that the defendant’s narcissism impairs his ability to empathize and that he is concerned about how he is perceived by others. They did not believe, however, that his narcissism rendered him incapable of empathy or of making a moral decision based on genuine spiritual and religious beliefs. Both Norko and Gentile identified several reasons given by the defendant for wanting to waive further legal proceedings, including his desire to do the morally right thing, to spare further pain to the families of the victims, to avoid another public airing of the horrific details of the crimes, to avoid growing old in prison, and to accept the inevitability of the death penalty. They acknowledged that the defendant occasionally expressed ambivalence about his decision, but concluded that that was normal and supported the conclusion that his decision was logical and rational, and not driven by an irrational compulsion. Norko believed that when the defendant stated that he had no choice but to accept the imposition of the death penalty, he meant only that it was his moral obligation to end the legal proceedings. Both Norko and Gentile concluded that the defendant’s narcissism did not have a substantial effect on his ability to make and follow through on rational choices.
The trial court also took note of the voluminous writings by the defendant that were placed into evidence. At certain times during his incarceration, the defendant wrote monthly letters, entitled “Walking with Michael,” in which he reported developments in this case and in his life, expressed his feelings about his situation and set forth religious thoughts and quotes. The defendant would send the letters to a friend who would then distribute them to up to 150 friends and supporters. In his writings, the defendant consistently expressed his desire to spare the families of his victims the pain of another penalty hearing. Grassian and Goldsmith saw these writings as evidence of the defendant’s inability to empathize, while Norko and Gentile saw them as evidence of the defendant’s genuine feelings.
Finally, the trial court noted that Dan Ross, Elliot and Susan P. all believed that the defendant’s stated motivations for ending legal proceedings were false. Because these witnesses were opposed to the death penalty and were friends or family of the defendant, the trial court concluded that “[t]hey do not present as unbiased witnesses to this court.”
The trial court concluded that the testimony of Norko and Gentile was more persuasive than the testimony of Grassian and Goldsmith and found by a preponderance of the evidence that, although the defendant suffers from mental disorders, none of the disorders, taken individually or together, substantially affected his understanding of his legal position and the options available to him or substantially affected his ability to make a rational choice among his options. It further concluded that the defendant’s decision was “the product of a rational intellect and an unconstrained will .... [His] mental condition is not coloring his free will and dictating the outcome.”
Upon careful review of the transcripts and exhibits, we conclude that the trial court reasonably could have determined that the testimony of Grassian and Goldsmith that the defendant had absolutely no ability to empathize with the families of the victims and that his stated moral and religious beliefs were entirely fraudulent was not as persuasive as the testimony of Norko and Gentile that the defendant’s moral and religious sensibilities have developed over time and, although his ability to empathize is limited, it is not entirely lacking. The defendant personally testified before the trial court, which had the opportunity to gauge his appearance, demeanor, emotional affect and vocal inflections and to determine whether they were consistent with the conclusions drawn by Norko and Gentile. Moreover, the record as a whole tended to show that the defendant has been able to develop numerous long-term friendships with people who care deeply about him and to maintain at least some contact with his family, which the trial court reasonably could have concluded would be inconsistent with a complete lack of empathy or moral sense. Accordingly, the trial court reasonably could have credited the defendant’s repeated statements that his decision was driven in part by a moral desire to spare further pain to the families of his victims. None of the experts suggested that an immutable moral stance would constitute a mental disorder impairing the defendant’s volitional capacity. Moreover, all of the experts agreed that the defendant’s decision was driven at least in part by his own desires to appear noble and to avoid the mental pain and humiliation of permanent confinement and the possibility of yet another confrontation with the families for yet another public airing of the details of his horrendous crimes. The trial court was not compelled to conclude that these reasons were irrational or that, in the absence of a volitional impairment, they would necessarily be overridden by the defendant’s conflicting desires to live and to indulge the wishes of his friends and family to remain among them. Accordingly, we conclude that the trial court’s determination that the preponderance of the evidence established that the defendant’s mental disorder did not substantially affect his capacity to make and act on a rational decision so as to render him incompetent was supported by the evidence and was not clearly erroneous.
The judgment is affirmed.
In this opinion VERTEFEUILLE, ZARELLA, LAVERY and FLYNN, Js., concurred.
Because special counsel was uncertain whether his status as appointed special counsel would allow him to bring this appeal, he filed a writ of error raising identical issues at the same time that he filed this appeal. See General Statutes § 52-263 (party aggrieved by decision of Superior Court may appeal); see also State v. Salmon, 250 Conn. 147, 167, 735 A.2d 333 (1999) (nonparty has no right to appeal pursuant to § 52-263). As is more fully discussed later in this opinion, we conclude that, under the unique circumstances of this case, special counsel has standing to appeal. Accordingly, we dismiss the writ of error as moot.
In addition to the writ of error and appeal, special counsel filed a motion to be appointed special counsel for the purpose of prosecuting the appeal. We conclude that the motion is moot because the trial court’s appointment of Thomas J. Groark, Jr., as special counsel continued through to this appeal. Cf. Bunkley v. Commissioner of Correction, 222 Conn. 444, 459, 610 A.2d 598 (1992) (trial and ensuing appeal are not separate and distinct proceeding but part of continuum of process of adjudication).
General Statutes § 53a-54b provides in relevant part: “A person is guilty of a capital felony who is convicted of any of the following ... (5) murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety; (6) murder committed in the course of the commission of sexual assault in the first degree... .”
The criminal conduct in this case occurred in 1983 and 1984. Section 53a-54b has been amended several times since 1984 for purposes not relevant here. For convenience, we cite the current version of the statute although we take note of the fact that prior to the enactment of No. 01-151, § 3, of the 2001 Public Acts, the provision of the statute concerning murder committed in the course of the commission of sexual assault in the first degree had been designated subdivision (7) rather than subdivision (6).
The record in the present appeal reveals that the public defender’s office had information pertaining to the effect of the defendant’s mental disorders and the conditions of confinement on death row on his ability to make decisions about legal proceedings at least as early as 2000. The public defender’s office did not make any claim that the defendant was incompetent to waive further legal proceedings, however, until it filed the petition for certiorari in the United States Supreme Court in December, 2004, and, despite the trial court’s instructions that it should provide any evidence of the defendant’s incompetence to counsel for the defendant; see State v. Ross, supra, 272 Conn. 588; did not produce any such evidence in any forum (with the minor exception of certain personal observations by various public defenders) until ordered by this court to do so.
We note that at the same time that the public defender’s office was seeking to be appointed as the defendant’s next friend in this court, Dan Ross was seeking to be appointed as his next friend in the United States District Court for the District of Connecticut. See Ross v. Roll, United States District Court, Docket No. 3:04CV2186 (D. Conn. January 10, 2005). The District Court, Droney, J., concluded that the defendant had “amply demon-stated” his competence to waive further legal proceedings and that there was “no basis for ordering a full evidentiary hearing on the issue of his competency. Nor, given [the defendant’s] reasoned and rational decision not to pursue [further proceedings, was] there any basis for allowing a ‘next friend’ to pursue it on his behalf.” Id.
Dan Ross had filed a petition for a writ of habeas corpus in the United States District Court for the District of Connecticut in which he claimed that he had independent standing as the defendant's father to seek relief in the courts under 42 U.S.C. § 1983. Dan Ross requested that the court enter a temporary restraining order prohibiting the defendant’s execution until his competency and the constitutionality of this state’s death penalty scheme were determined. On January 26,2005, the District Court, Chatigny, J., held a hearing on the petition by telephone and granted the request for a temporary restraining order. See Ross v. Rell, United States District Court, Docket No. 03:05CV00130 (D. Conn. January 26, 2003). The commissioner of correction filed an application to vacate the temporary restraining order with the United States Court, of Appeals for the Second Circuit. The Court of Appeals granted the application, but stayed its order until January 30, 2005, at 12:01 a.m. See Ross v. Lantz, United States Court of Appeals, Docket No. 05-8901 (2d Cir. January 28, 2005). Dan Ross then filed an application to stay the execution and for a temporary restraining order in the United States Supreme Court. On January 28, 2005, the Supreme Court denied the application and vacated the temporary stay entered by the Court of Appeals. See Ross v. Rell, 543 U.S. 1134, 125 S. Ct. 1117, 160 L. Ed. 2d 1092 (2005).
The offer of proof submitted by the public defender’s office to the District Court contained a summary of proposed testimony by Grassian that prisoners confined to death row often develop severe mental disturbances that can affect their ability to make voluntary decisions. Norko testified at the competency hearing at issue in the present case that the term “death row syndrome” is a term used in legal literature, not in medical literature. He further testified that he had been aware throughout the course of his evaluation of the defendant that “confinement is stressful and that confinement on death row is particularly stressful... .” He further testified that he was aware that the stress of confinement may lead to psychological or psychiatric disorders and that he looked for such disorders when evaluating the defendant. He found that the defendant suffered from the specific disorders to which he testified in the previous competency hearing. Special counsel has conceded that testimony at the competency hearing at issue in the present appeal did not establish that the defendant suffered from death row syndrome and the condition is not at issue in this appeal.
General Statutes § 54-99 provides in relevant part: “All executions of the death penalty shall take place according to the provisions of this section and section 54-100 on the day, or within five days after the day, designated by the judge passing sentence.” As we have indicated, the trial court had designated January 26, 2005, as the date of execution.
Attached to the motion was an affidavit by Norko dated January 30, 2005, in which he stated that “[i]n the last two days, I have reviewed documentation that was not provided to me prior to rendering [his opinion at the December 28, 2004 competency hearing]. In particular, I have reviewed a letter, dated June, 2003 and authored by [the defendant], as well as a letter from [the defendant], dated [May 24,1998]. These documents were submitted to the Connecticut Supreme Court, pursuant to its request, as part of a larger [o]ffer of [p]roof from the Chief Public Defender’s office.... Had I been provided with these documents prior to conducting my most recent interview and evaluation of [the defendant], it is possible that my eventual conclusions and opinion would have been different.” (Internal quotation marks omitted.) The state’s attorney represented to the trial court at a hearing on February 10, 2005, that the offer of proof had been provided to Norko by Goodrow on January 29, 2005.
Also attached to the motion were an affidavit by Martha Elliot, a journalist and a friend of the defendant’s, indicating that the defendant had told her that he believed that he suffered from “ ‘[d]eath [r]ow [s]yndrome’ a letter from the defendant to Elliot dated May 24,1998, in which he indicated that, in waiving further legal proceedings, he “was driven more by a desire to end [his] own pain than out of any noble cause”; and an affidavit by John F. Tokarz, a former employee with the department of correction, indicating that he was familiar with death row and the defendant, that the conditions on death row were harsh and that, in his opinion, the harsh conditions “played a substantial role in [the defendant’s] decision to waive his legal remedies... .”
Paulding has represented on several occasions that he filed the motion to stay the execution and to reopen the competency hearing because he had assured the trial court repeatedly, with the defendant’s knowledge and consent, that if evidence of the defendant’s incompetence came to his attention, he would provide it to the trial court. He believed that Norko’s statement that it was “possible” that his opinion that the defendant was competent might have been different if he had had the opportunity to question the defendant about certain materials in the offer of proof submitted by the public defender’s office came within that promise to the trial court. See footnote 8 of this opinion. It is clear, however, that Paulding never wavered in his professional opinion that the defendant was competent, even after learning of Norko’s statement.
The state also claims that the trial court was bound by our determination in State v. Ross, supra, 272 Conn. 611, that there was no meaningful evidence that the defendant was incompetent to justify a full evidentiary hearing. As we have indicated, however, the state agreed that, under the unique circumstances of this case, the trial court should hold such a hearing. Accordingly, we conclude that it waived any objection to the hearing. To the extent that the state claims that our decision in State v. Ross, supra, 611, required the trial court to hold special counsel to a heightened standard, we conclude for reasons set forth later in this opinion that we need not decide whether the trial court applied the proper standard of review.
General Statutes § 52-263 provides: “Upon the trial of all matters of fact in any cause or action in the Superior Court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8 and 8-9.”
“Historically, amicus curiae was defined as one who interposes in a judicial proceeding to assist the court by giving information, or otherwise, or who conduces] an investigation or other proceeding on request or appointment therefor by the court. ... Its purpose was to provide impartial information on matters of law about which there was doubt, especially in matters of public interest.... The orthodox view of amicus curiae was, and is, that of an impartial friend of the court—not an adversary party in interest in the litigation.... The position of classical amicus in litigation was not to provide a highly partisan account of the facts, but rather to aid the court in resolving doubtful issues of law.... Amicus... has never been recognized, elevated to, or accorded the full litigating status of a named party or a real party in interest... and amicus has been consistently precluded from initiating legal proceedings, filing pleadings, or otherwise participating and assuming control of the controversy in a totally adversarial fashion.... Historically, an amicus could not join issues not joined by the parties in interest... .” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Ross, supra, 272 Conn. 612.
See footnote 10 of this opinion.
We emphasize that special counsel has conceded that he has no special relationship with the defendant and is not acting as his next friend.
See also Stano v. Dugger, 921 F.2d 1125, 1144-45 (11th Cir. 1991) (en banc) (in determining whether waiver of counsel is knowing, intelligent and voluntary, court considers: “[1] the background, experience and conduct of the defendant including his age, educational background, and his physical and mental health; [2] the extent to which the defendant had contact with lawyers prior to the trial; [3] the defendant’s knowledge of the nature of the charges, the possible defenses, and the possible penalty; [4] the defendant’s understanding of the rules of procedure, evidence and courtroom decorum; [5] the defendant’s experience in criminal trials; [6] whether standby counsel was appointed, and the extent to which he aided the defendant; [7] whether the waiver of counsel was the result of mistreatment or coercion; or [8] whether the defendant was trying to manipulate the events of the trial” [internal quotation marks omitted]).
But see Wilkins v. Bowersox, 145 F.3d 1006 (8th Cir. 1998), cert. denied, 525 U.S. 1094, 119 S. Ct. 852, 142 L. Ed. 2d 705 (1999). In Wilkins, the court concluded that the court’s decision in Colorado v. Connelly, supra, 479 U.S. 164, that a defendant’s mental condition is not relevant to a determination of voluntariness unless there is proof that the defendant was subjected to coercive pressures by the state, was limited to claims involving allegedly involuntary confessions. Wilkins v. Bowersox, supra, 1012. The court relied on expert testimony that the defendant was driven by an internal coercion in support of its conclusion that the District Court properly had found that the defendant’s waiver of counsel was not voluntary or intelligent. Id., 1014. For the reasons set forth more fully in the body of this opinion, we conclude that the court in Wilkins improperly conflated the issue of voluntariness, as that concept typically is understood in the context of waiver of constitutional rights, with the issue of whether the defendant was capable not only of reaching a rational decision, but also of exercising his volition in accordance with his decision, which is a question of competence.
In Rumbaugh, the court stated that the Rees test “requires the answer to three questions:
“(1) Is the person suffering from a mental disease or defect?
“(2) If the person is suffering from a mental disease or defect, does that disease or defect prevent him from understanding his legal position and the options available to him?
“(3) If the person is suffering from a mental disease or defect which does not prevent him from understanding his legal position and the options available to him, does that disease or defect, nevertheless, prevent him from making a rational choice among his options?” Rumbaugh v. Procunier, supra, 753 F.2d 398. The court in Rumbaugh concluded that the third prong of this inquiry contained a volitional component. See id., 399.
As the state points out, the court in Rumbaugh modified the Rees standard by stating that a defendant is not incompetent unless his mental disorder prevents him from understanding his legal options and making a rational choice. Cf. Rees v. Peyton, supra, 384 U.S. 314 (defendant is incompetent if mental disorder substantially affects ability to understand options and make decision). As the state also points out, the trial court in the present case applied the three prong Rumbaugh standard, but modified it to conform to Rees.
In her concurring opinion, Judge Dranginis argues that we need not decide this question in the present case. She would conclude, however, that a defendant’s volitional capacity can be a dispositive factor in determining whether a waiver of constitutional rights was voluntary. Thus, she would conclude that state coercion is not an essential factual predicate to a finding of involuntariness. In other words, she decides the question.
Judge Dranginis also argues that our decision is flawed because there is no volitional component to the competency requirement for waiving certain rights. She suggests, for example, that, under our decision, “[u]nless the state has taken affirmative action to force the defendant’s hand in waiving his right to counsel, it is of no significance that the defendant is incapable of exercising free will.” We agree that the defendant’s volitional incapacity would have no effect on a finding of voluntariness under that scenario. In our view, however, our decision leaves open the question of whether in another case a defendant would be able to “assist in his own defense”; see General Statutes § 54-56d (a); see also State v. Ross, supra, 269 Conn. 271 (§ 54-56d [a] mirrors competency standard set forth in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 [1960] [per curiam]); and, therefore, leaves open the question of whether his waiver of right to counsel would be valid.
Finally, Judge Dranginis states that we have concluded that the defendant’s waiver was voluntary. We have not concluded that the waiver was voluntary, however, that involuntariness is not an issue in this case.
The only colorable claim of governmental coercion was the suggestion in earlier proceedings that the defendant might suffer from “death row syndrome.” As we have indicated, special counsel concedes that the defendant does not suffer from death row syndrome, if such a syndrome exists, and the special counsel’s psychiatric experts made no such claim.
The courts in Comer and Mason stated that neither party had the burden of proof in a hearing to determine the competency of a defendant to waive postconviction legal proceedings in a capital case. Mason v. Vasquez, supra, 5 F.3d 1225; Comer v. Stewart, supra, 230 F. Sup. 1038. The courts also stated, however, that they were required to determine by a preponderance of the evidence that the defendant was competent. As the trial court in the present case recognized, that standard effectively places the burden of proof on the party or parties claiming competence.
Grassian testified that he interviewed the defendant, talked with Dan Ross by telephone, toured death row, reviewed Norko’s earlier psychiatric reports and his videotaped interviews with the defendant, reviewed reports prepared by other psychiatrists who have been involved in the case and reviewed the defendant’s writings and correspondence with various people in preparation for his testimony.
Grassian’s report stated that, since the defendant had moved to Osborn correctional institution in 2003, “[h]e is the only prisoner on his tier; thus he is not subject to the verbal abuse and taunts which oppressed him at Northern [correctional institution]. Moreover, he has a [corrections [ojfficer sitting right outside his cell [twenty-four] hours a day seven days a week.
... [T]he [officers who have this assignment were specially picked, with special attention to their ability to relate well to [the defendant].
“Moreover, one of three mental health clinicians... spends about one hour each day, seven days a week, with [the defendant]... .” Goldsmith testified that the defendant’s “narcissistic needs [were] met in so many ways when he [moved] to Osborn. There’s lots of activity around him. He has selected correction officers who deal with him. He has lots of visits, standard visits, lots of legal visits. People come back into his life. There’s lots of activity... outside the prison, all about him.”
In addition, Susan P., the defendant’s girlfriend, testified that she had resumed her relationship with the defendant in January, 2005, after breaking it off in 2002. The defendant wrote a letter dated March 7, 2005, to Susan P., in which he stated: “I want so badly to stay here with you. ... I want to see if you will stick around this time. But I cannot have what I want, unless I hurt someone else.”
Grassian testified that his belief that the defendant was incapable of empathy was based on the facts that the defendant was a serial rapist and murderer, that he had never admitted that he committed a crime or “come to grips” with his own failings, and that he had continued to publish articles and grant television interviews despite the fact that he had been told that he was hurting both the families of the victims and his own family. Grassian further testified that he believed that the defendant’s desire to avoid another death penalty hearing was not, as he professed, driven by concern for the families but was driven by his desire to avoid being publicly humiliated and vilified again.
The Diagnostic and Statistical Manual of Mental Disorders (4th Ed. 1994) § 301.81, p. 659, published by the American Psychiatric Association, provides: “Vulnerability in self-esteem makes individuals with Narcissistic Personality Disorder very sensitive to ‘injury’ from criticism or defeat. Although they may not show it outwardly, criticism may haunt these individuals and may leave them feeling humiliated, degraded, hollow, and empty. They may react with disdain, rage, or defiant counterattack.” This portion of the manual was read into the record during Gentile’s testimony.
Special counsel claims that the trial court’s refusal to accord any weight to the testimony of these witnesses was not based on any findings of demeanor, hesitation in answers or other in-court conduct and that this court may, therefore, make its own determination as to the weight to give to the testimony. Special counsel does not identify any portions of their testimony, however, that he believes would have changed the trial court’s determination that the defendant was competent if the court had given the testimony greater weight. Our review of the testimony of these lay witnesses reveals that it was consistent with the testimony of Norko and Gentile that, on the one hand, the defendant can be self-centered and lacking in empathy and is ambivalent about the consequences of waiving further challenges to his death sentences, but that, on the other hand, he also is capable of expressing care and concern for others and believes that his decision is a moral one.
[OPINION BY DRANGINIS, J., type=concurrence]
DRANGINIS, J.,
concurring in the judgment. In concurring in today’s judgment, I in no way am abandoning my belief, or the reasoning underlying it, that our statutory scheme does not permit a death sentenced defendant to waive the benefit that could result from the consolidated habeas litigation, ordered by this court, challenging the constitutionality of the administration of Connecticut’s death penalty system. See In re Application for Writ of Habeas Corpus by Dan Ross, 272 Conn. 676, 717, 866 A.2d 554 (2005) (Lavery and Dranginis, Js., dissenting). Nonetheless, because that issue presently is not before the court, I do not base my decision today on that issue. Rather, I address solely the issues with which we are confronted and those that are necessary to our resolution of the claims on appeal.
The court today develops a new rule limiting the ability of a defendant to challenge as involuntary any waiver of a constitutional right. Because I believe that it is unnecessary for this court to decide the issue and because I believe that such a general rule is unwise, I decline to join in the court’s opinion. In so far as the court has concluded that special counsel has standing to appeal the trial court’s ruling, I join with the court. I also adopt, for purposes of this opinion, the majority’s recitation of the facts and procedural history of this case.
I agree with the majority that, although special counsel has framed the issue as one of voluntariness, the arguments made by special counsel are dependent on challenging the subsidiary facts found by the trial court that underlie its determination that the defendant’s mental disorders, taken separately or together, do not affect substantially his ability to make rational choices. This argument challenges the factual determination of the defendant’s volitional capacity as it relates to his competence, not whether, as a matter of law, his waiver was voluntary. See Rumbaugh v. Procunier, 753 F.2d 395, 399 (5th Cir.) (determination as to whether defendant suffers from mental disease that impairs his ability to make rational decision to waive further challenges to death sentence must be accepted unless clearly erroneous), cert. denied sub nom. Rumbaugh v. McCotter, 473 U.S. 919, 105 S. Ct. 3544, 87 L. Ed. 2d 668 (1985). As the majority has noted, our standard of review, therefore, on the issue of volitional capacity as it relates to the defendant’s competence is whether the trial court’s finding that the defendant has volitional capacity was clearly erroneous. Id.; see also Demosthenes v. Baal, 495 U.S. 731, 735, 110 S. Ct. 2223, 109 L. Ed. 2d 762 (1990) (state court’s conclusion regarding defendant’s competency to waive further challenges to death sentence is finding of fact entitled to presumption of correctness). Only after the court concludes that the defendant is competent because he possesses volitional capacity, do we review the trial court’s conclusion that the defendant’s waiver was voluntary under a de novo standard of review. See State v. Cobb 251 Conn. 285, 358-59, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000).
I
The majority has concluded that the defendant is competent and his waiver was voluntary. While I agree with the majority’s conclusion that the defendant’s waiver was voluntary, I disagree with the reasoning it employs in order to reach that end.
Generally, a finding of competency and a determination of whether waiver of a constitutional right was knowing, intelligent and voluntary, is a two step process, with the competency determination being a separate and distinct inquiry. Godinez v. Moran, 509 U.S. 389, 400-401, 113 S. Ct. 2680, 125 L. Ed. 2d 321 (1993) (standard of competency to waive right to counsel). This is because, in most circumstances, the level of competency required to waive a constitutional right is the same competency required to stand trial. Id., 398. To be competent, therefore, a defendant merely must have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding... and... [have] a rational as well as factual understanding of the proceedings against him.” (Internal quotation marks omitted.) Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960).
Although never specifically addressed, the degree of competency an individual must possess in order to waive remaining challenges to his death sentence has evolved into a somewhat different if not a somewhat higher standard. In Rees v. Peyton, 384 U.S. 312, 314, 86 S. Ct. 1505, 16 L. Ed. 2d 583 (1966), the United States Supreme Court stated that the question of the defendant’s competence was “whether he has [the] capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.” Several Courts of Appeal have adopted a three part inquiry to determine whether any individual defendant meets this standard of competence. This three part inquiry, first developed by the United States Court of Appeals for the Fifth Circuit, asks:
“(1) Is the person suffering from a mental disease or defect?
“(2) If the person is suffering from a mental disease or defect, does that disease or defect prevent him from understanding his legal position and the options available to him?
“(3) If the person is suffering from a mental disease or defect which does not prevent him from understanding his legal position and the options available to him, does that disease or defect, nevertheless, prevent him from making a rational choice among his options?” Rumbaugh v. Procunier, supra, 753 F.2d 398. The court in Rumbaugh concluded that the third prong of this inquiry contained a volitional component; id.; a component not readily contained in the Dusky standard of competency. This third prong of the Rumbaugh competency inquiry, whether by design or consequence, lays the factual predicate necessary to determine whether, as a matter of law, a defendant’s waiver of further challenges to his death sentence is voluntary.
In the present case, because the majority concludes that the trial court reasonably could have found that the defendant possesses the volitional capacity necessary for competency under Rumbaugh's third factor, it also concludes that the defendant’s waiver must have been voluntary unless evidence of external coercion existed. Under a competency standard where volition is considered and given great weight, this conclusion is logical. After all, if the defendant has the volitional capacity to make a reasoned choice, he also must have the volitional capacity to effect a voluntary waiver. The majority’s conclusion, therefore, that external coercion is a necessary factual predicate to a determination of involuntary waiver, is of little significance until one realizes that the majority’s conclusion applies to all waivers of constitutional rights, not only to the waiver of further challenges to sentences of death.
To see that this is the effect of the majority’s conclusion, one need only look so far as the cases to which they cite for the proposition that external coercion is a necessary predicate finding to a determination of involuntary waiver. The case on which the majority relies is Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986), which held that government coercion or state action was necessary for a determination that a confession or waiver of Miranda rights was involuntary under federal constitutional law. The Connelly court explained that because the main threat in the area of involuntary confessions is police overreaching, it logically follows that where no police coercion exists, a confession cannot be involuntary. Id., 164. This, however, is not the case in all situations where waiver is necessary. For example, a threat of government coercion rarely exists where a defendant wishes to waive his right to counsel. Such a waiver, nonetheless, must be knowing, intelligent and voluntary. See Godinez v. Moran, supra, 509 U.S. 402. The defendant desiring to waive counsel, however, need not show volitional capacity, for the competency standard by which he is evaluated is the Dusky standard, not the Rumbaugh standard. Such an individual may have a mental disease or defect that does not impair his ability to develop a basic understanding of the proceedings in which he is involved; Dusky v. United States, supra, 362 U.S. 402; yet that same disease or defect may affect substantially his volitional capacity. Because volitional capacity is not at issue in the determination of his competency, this impairment can be addressed solely through a determination that his waiver of his right to counsel is not voluntary. Under the new rule adopted by the majority, however, this impairment is of no consequence. Unless the state has taken affirmative action to force the defendant’s hand in waiving his right to counsel, it is of no significance that the defendant is incapable of exercising free will. I cannot agree with such a formulation.
In setting forth this new rule, the majority is writing on a blank page of federal law. The United States Supreme Court has not extended Connelly to this extent, nor has any Circuit Court of Appeals. In making this ruling, the majority also is doing as a matter of federal law what this court has been loathe to do as a matter of state law. To date, this court has not adopted the Connelly limitations on voluntariness, even in the area of confessions, as a matter of state law. Each time it has been faced with the question, it has declined to rule one way or the other. See State v. Roseboro, 221 Conn. 430, 443-44, 604 A.2d 1286 (1992); State v. Northrop, 213 Conn. 405, 419-20, 568 A.2d 439 (1990); State v. Gonzalez, 206 Conn. 213, 222, 537 A.2d 460 (1988). Furthermore, there is no need to develop this new requirement. In ruling that the defendant’s waiver was voluntary, the trial court did not depend on the nonexistence of external factors, nor is this conclusion necessary to a determination that the defendant’s waiver was voluntary. Rather, as indicated previously, it is enough to recognize that in a death penalty situation, where a more rigorous standard of competency is utilized, the predicate facts supporting a finding that the defendant has the volitional capacity necessary for competence also support the ultimate conclusion that the defendant is able to effect a voluntary waiver.
II
I agree with the majority’s conclusion, and the reasoning it employs, that the trial court’s determination that the defendant is competent was not clearly erroneous. Because I disagree with the majority that a waiver is voluntary absent state coercion, I also reach the question of whether, as a matter of law, the defendant’s waiver was voluntary. I conclude that it was.
“The standard for an effective waiver ... is that it must be knowing and intelligent, as well as voluntary.... Relying on the standard articulated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), we have adopted the definition of a valid waiver ... as the intentional relinquishment or abandonment of a known right. ... In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case.” (Citations omitted; internal quotation marks omitted.) State v. Ouellette, 271 Conn. 740, 752, 859 A.2d 907 (2004). Some of the factors that comprise the “totality of the circumstances” include but are not limited to: (1) the defendant’s experience and familiarity with the legal system; (2) the defendant’s level of intelligence, including his IQ; (3) his age; (4) his level of education; (5) his emotional state; and (6) the existence of any mental disease, disorder or defect. State v. Toste, 198 Conn. 573, 580-81, 504 A.2d 1036 (1986). In evaluating whether, as a matter of law, the state has proved waiver by a preponderance of the evidence, we defer to the trial court’s findings on subsidiary factual questions, such as those that laid the foundation for the court’s determination that the defendant possesses volitional capacity. See Colorado v. Connelly, supra, 479 U.S. 168; State v. Whitaker, 215 Conn. 739, 753, 578 A.2d 1031 (1990).
Reviewing the record in light of these factors, I conclude that the state has met its burden of proving that the defendant’s waiver was voluntary by a preponderance of the evidence. Although not at issue in this appeal, it is clear from the defendant’s own testimony, as well as the testimony of all four psychiatrists, that the defendant can effect a knowing and intelligent waiver, as he has a thorough understanding of all his legal options and the consequences of exercising or not exercising any one of those options. Furthermore, the subsidiary facts that provided the bases for the trial court’s conclusion that the defendant has the necessary volitional capacity to be competent to waive further appeals and collateral challenges to his sentences of death, as well as the lack of any evidence of death row syndrome or segregated housing unit syndrome, leads me to conclude that, as a matter of law, his waiver of further challenges is a voluntary one that meets the standards of Johnson v. Zerbst, supra, 304 U.S. 464.
I, therefore, concur in the judgment.
Both the Second Circuit and this court have neither adopted nor rejected the Rumbaugh three part inquiry. The only other circuit to have addressed the adoption or rejection of the Rumbaugh analysis explicitly is the Eleventh Circuit, which has adopted it. See Lonchar v. Zant, 978 F.2d 637, 641-42 (11th Cir. 1992). The Ninth Circuit has neither adopted nor rejected the Rumbaugh formulation, though, like this court, it used the three part test when that test was used by a District Court considering a death sentenced defendant’s competency. See Dennis v. Budge, 378 F.3d 880, 888 n.4 (9th Cir.), cert. denied, 542 U.S. 959, 125 S. Ct. 16, 159 L. Ed. 2d 847 (2004).
[OPINION BY NORCOTT, J., type=concurring-in-part-and-dissenting-in-part]
NORCOTT, J.,
concurring and dissenting. My position on the death penalty should be of no surprise even to the most casual reader of the Connecticut Reports because, in my nearly thirteen years as a member of this court, I have written exhaustively of my “longstanding belief that the death penalty has no place whatsoever in a civilized and rational criminal justice system... ,” State v. Ross, 272 Conn. 577, 613, 863 A.2d 654 (2005) (Norcott, J., concurring). I agree with the majority’s well reasoned resolution of the jurisdictional and competency issues that this case presents us with, despite the ineluctable fact that this court’s decision in the present case clears one of the last remaining obstacles to Connecticut’s first execution in nearly forty-five years. I write separately not to repeat any arguments that I previously have made in other opinions, but only to state that the present case is a paradigmatic illustration of how the death penalty is an “incredibly costly, frustratingly lengthy and emotionally draining part of our criminal jurisprudence.” State v. Ross, 269 Conn. 213, 394, 849 A.2d 648 (2004) (Norcott, J., dissenting). Accordingly, I dissent from the result of the majority decision, because it will lead to the execution of a human being at the hands of the state of Connecticut.
In most ordinary litigation, civil or criminal, a party’s decision to accept or to stipulate to a certain result either simplifies greatly or resolves finally the proceedings. The defendant, Michael Ross, is, however, no ordinary defendant, and this is no ordinary case. See, e.g., State v. Rizzo, 266 Conn. 171, 226, 833 A.2d 363 (2003) (“[d]eath is different”). This case illustrates, however, the sheer irrationality of the capital punishment system because this defendant’s election to forgo further appeals or collateral relief, a decision that in any other context would lend some economy to the proceedings, has in fact spawned seemingly endless litigation over his fate. This defendant’s choice has led to: (1) competency hearings before the trial court in October and December, 2004, which were reviewed by this court following the filing of a writ of error by the office of the chief public defender, who had sought to enter the case as the defendant’s next friend; (2) separate state habeas corpus proceedings brought by the office of the chief public defender and the defendant’s father, both of which subsequently were reviewed by this court following writs of error; (3) a separate proceeding brought against the board of pardons and paroles; (4) the most recent six day competency hearing, presently under review in this appeal; and (5) a variety of collateral proceedings in the federal courts, from the local District Court through to the United States Supreme Court. I do not dispute the need for an abundance of caution given the tremendous stakes of this case; indeed, after the execution has taken place, no court will have the option of reconsideration. These proceedings have, however, been cruel and traumatic for the victims’ families and a significant part of the punishment for the defendant himself, and also have come at great financial cost for all parties involved, as well as the courts. And yet, at the end of the day, the question remains: After the execution, what will the state of Connecticut have gained from all of this? The answer seems to be that, minimally, the state has secured the proverbial pound of flesh for the crimes of this one outrageously cruel man. But now, what is to be? Has our thirst for this ultimate penalty now been slaked, or do we, the people of Connecticut, continue down this increasingly lonesome road?
I opened this opinion by mentioning that my opposition to the death penalty has often been set forth in the Connecticut Reports. I close with my belief that the totality of the costs that are attendant to capital punishment vastly outweigh its marginal benefits. Hopefully, the death penalty jurisprudence reported in those volumes soon will become nothing more than legal artifacts of interest and import not to the active bench and bar, but only to historians. Until such time, however, I respectfully dissent.
See In re Application for Writ of Habeas Corpus by Dan Ross, 272 Conn. 676, 690-716, 866 A.2d 554 (2005) (Norcott, J., dissenting from order); State v. Peeler, 271 Conn. 338, 464, 857 A.2d 808 (2004) (Katz, J., with whom Norcott, J., joins, dissenting); State v. Ross, 269 Conn. 213, 392-93, 849 A.2d 648 (2004) (Norcott, J,, dissenting); State v. Breton, 264 Conn. 327, 446-49, 824 A.2d 778 (Norcott, J., dissenting), cert. denied, 540 U.S. 1055, 124 S. Ct. 819, 157 L. Ed. 2d 708 (2003); State v. Webb, 252 Conn. 128, 147, 750 A.2d 448 (Norcott, J., dissenting), cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000); State v. Griffin, 251 Conn. 671, 742-48, 741 A.2d 913 (1999) (Norcott, J., dissenting); State v. Ross, 251 Conn. 579, 597, 742 A.2d 312 (1999) (Norcott, J., dissenting); State v. Cobb, 251 Conn. 285, 543-52, 743 A.2d 1 (1999) (Norcott, J., dissenting), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); State v. Webb, 238 Conn. 389, 566-70, 680 A.2d 147 (1996) (Norcott, J., dissenting); see also State v. Ross, 272 Conn. 577, 613-16, 863 A.2d 654 (2005) (Norcott, J., concurring); State v. Colon, 272 Conn. 106, 395, 864 A.2d 666 (2004) (Norcott, J., concurring); State v. Rizzo, 266 Conn. 171, 313-14, 833 A.2d 363 (2003) (Norcott, J., concurring); State v. Courchesne, 262 Conn. 537, 583-84, 816 A.2d 562 (2003) (Norcott, J., concurring).
This is, of course, subject to certain well established constitutional safeguards in the criminal context. See, e.g., State v. Johnson, 253 Conn. 1, 34-35, 751 A.2d 298 (2000) (discussing “axiomatic” constitutional principles from Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 [1969], that require canvass of accused to determine that guilty plea is made knowingly and voluntarily).
State v. Ross, supra, 272 Conn. 581-96.
In re Application for Writ of Habeas Corpus by Dan Ross, 272 Conn. 653, 866 A.2d 542 (2005).
Missionary Society of Connecticut v. Board of Pardons & Paroles, 272 Conn. 647, 866 A.2d 538 (2005).
Ross v. Connecticut, 543 U.S. 1046, 125 S. Ct. 943, 160 L. Ed. 2d 766 (2005) (denying public defenders’ motions to defer consideration of petition and for leave to proceed in forma pauperis without affidavit of indigency executed by petitioner); Rell v. Ross, 543 U.S. 1134, 125 S. Ct. 1117, 160 L. Ed. 2d 1091 (2005) (vacating temporary stay of execution obtained from United States Court of Appeals for Second Circuit by Dan Ross); Ross v. Rell, 543 U.S. 1134, 125 S. Ct. 1117, 160 L. Ed. 2d 1092 (2005) (denying application for stay of execution or temporary restraining order); Lantz v. Ross, 543 U.S. 1134, 125 S. Ct. 1117, 160 L. Ed. 2d 1091 (2005) (vacating stay obtained by public defenders); see also Ross v. Rell, United States District Court, Docket No. 3:04CV2186, 2005 U.S. Dist. LEXIS 245 (D. Conn. January 10, 2005) (denying application of defendant’s father to proceed as next friend).
Michael B. ROSS, by his next friend, Donna DUNHAM, PetitionerAppellant, v. Theresa LANTZ, Commissioner of Corrections, et al., Respondents-Appellees.
No. 05-8902.
United States Court of Appeals, Second Circuit.
Argued: May 12, 2005.
Decided: May 12, 2005.
En banc rehearing denied sua sponte: May 12, 2005.
Opinion revised: May 16, 2005.
Diane Polan, Esq., Law Office of Diane Polan, Esq., New Haven, CT, Eric M. Freedman, Esq., New York, NY, for Petitioner-Appellant.
Jo Anne Sulik, Esq., Michael E. O’Hare, Esq., Chief State Attorney’s Office Civil Litigation Bureau, Rocky Hill, CT, for Respondents-Appellees.
Present: SACK, KATZMANN, HALL, Circuit Judges.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Michael B. Ross is scheduled to be executed by the State of Connecticut at 2:01 a.m. on Friday, May 13, 2005, having declined to pursue further any available state or federal avenues of collateral review of his convictions or death sentences. Mr. Ross’s sister, Donna Dunham, purporting to be his “next friend,” seeks a stay of Mr. Ross’s execution. We summarize briefly the procedural history of this matter.
Michael Ross was sentenced to death in 1987 after being convicted of six counts of capital felony. State v. Ross, 237 Conn. 332, 334, 677 A.2d 433 (1996). Subsequent legal proceedings included the overturning of all six separate death sentences along with a remand for a new sentencing hearing; an attempt by Ross, rejected by the trial court, to stipulate to the death penalty by agreement with the state; and the re-imposition of the death penalty after a second penalty hearing. State v. Ross, 272 Conn. 577, 579-80, 863 A.2d 654 (2005). After these new death sentences were affirmed' by the Supreme Court of Connecticut in 2004, State v. Ross, 269 Conn. 213, 392, 849 A.2d 648 (2004), Ross notified the state Superior Court in September 2004 that he would not pursue further appeals and requested that an execution date be set. Conn. Sup. Court Apr. 22, 2005 Mem. of Decision re: Competency and Voluntariness at 2.
In January of this year, in two separate lawsuits, two persons attempted to assert “next friend” status, which would permit them to bring either a section 1983 action or a petition for a writ of habeas corpus on Ross’s behalf' despite his oft-repeated statements of unwillingness to do so himself. The section 1983 action, brought by Ross’s father, Dan Ross, was denied by the United States District Court for the' District of Connecticut (Droney, J.) after a January 7, 2005 hearing. Ross v. Rell, 2005 WL 61494, at *2-*3 (D.Conn. Jan.10, 2005), 2005 U.S. Dist. LEXIS 245, at *7-*9. That decision was not appealed to us.
Subsequently, in response to a similar petition filed in the same court by Gerard A. Smyth, Chief of the Connecticut Office of the Public Defender, the district court (Chatigny, J.) granted a stay of execution. See Rossy. Lantz, 2005 WL 162479, at *4 (D.Conn/ Jan.25, 2005), 2005 U.S. Dist. LEXIS 908, at *13. We declined to vacate the stay, but we dismissed the appeal to us in order to permit the district court to establish a factual record upon which Smyth’s-standing as “next friend” could be reviewed. Ross v. Lantz, 396 F.3d 512, 515 (2d Cir.2005). The Supreme Court, however, in a 5-4 vote, promptly vacated the stay. Lantz v. Ross, —- U.S. -, 125 S.Ct. 1117, 160 L.Ed.2d 1091 (2005).
Dan Ross then sought to bring an action under 28 U.S.C. § 1983 against various Connecticut officials asserting a constitutional right not to be deprived by the state of his association with his son and alleging that the state’s prison conditions had made his son incompetent to waive further proceedings. The court (Chatigny, J.) again issued a restraining order prohibiting Michael Ross’s execution. Ross v. Rell, 2005 WL 181883, at *2 (D.Conn. Jan.26, 2005), 2005 U.S. Dist. LEXIS 1004, at *4. This time we vacated the order. Ross v. Rell, 398 F.3d 203, 205 (2d Cir.2005). Although we noted that certain additional material submitted to us raised “troubling questions,” we thought ourselves compelled to conclude: “[T]he implications of the Supreme Court’s one-sentence order [vacating the stay] in Lantz v. Ross leave little room to argue to this Court in this appeal that Michael Ross is incompetent for these purposes.” Id.
Shortly before the execution was to be carried out on January 29, 2005, it was postponed at the request of Ross’s attorney, and with the agreement of Ross and the state. Ross’s attorney, who had previously been assisting Ross in arguing that he was competent and entitled to waive further appeals, was apparently concerned that a potential conflict of interest might prevent him from continuing to advocate that position effectively. Conn. Sup. Court Apr. 22, 2005 Mem. of Decision re: Competency and Voluntariness at 3-4; State v. Ross, 273 Conn. 684, 694-95, 873 A.2d 131, 138-39 (May 9, 2005). Soon thereafter, Ross filed a motion requesting that the Superior Court reopen its competency hearing. On February 10, 2005, to assuage the concerns of Ross’s attorney about a potential conflict of interest, the Superior Court appointed Thomas J. Groark, Jr., Esq., as special counsel to investigate and present evidence that Ross was in fact not competent to waive his appeals. Conn. Sup. Court Apr. 22, 2005 Mem. of Decision re: Competency and Voluntariness at 4. After after six additional days of adversary evidentiary hearings, the Superior Court concluded in a Memorandum of Decision issued April 22, 2005, that Ross’s decision not to seek further appeals “is both competent and voluntary.” Id. at 21.
The special counsel appealed that ruling, and on May 9, 2005, the Supreme Court of Connecticut affirmed the Superior Court’s determination. State v. Ross, 273 Conn. 684, 873 A.2d 131 (May 9, 2005). We observe that the special counsel conceded on appeal that “death row syndrome,” which had earlier been urged in both the District Court and this Court as a basis for questioning Ross’s competence, was not part of his case to the Superior Court. May 5, 2005 Transcript at 23. The special counsel has not appealed or sought collateral relief from the state Supreme Court’s affirmance.
While the special counsel was pursuing his appeal, the petitioner in this case, Donna Dunham, filed her petition in Connecticut Superior Court. Dunham also seeks to proceed as “next friend” of Ross. May 6, 2005 Dunham Petition for Writ of Habeas Corpus at 5. The Superior Court denied that petition and the Supreme Court dismissed her related writ of error on May 11, 2005. Ross v. Lantz, No. SC 17432 (May 11, 2005) (order). On May 12, the district court denied Dunham’s habeas corpus petition under 28 U.S.C. § 2254 challenging the final decision of the state Supreme Court. Ms. Dunham now seeks a stay of execution to allow her to appeal.
“It is well established ... that before a federal court can consider the merits of a legal claim, the person seeking to invoke the jurisdiction of the court must establish the requisite standing to sue.” Whitmore v. Arkansas, 495 U.S. 149, 154, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). For the federal courts to have jurisdiction over this petition for a writ of habeas corpus, then, Donna Dunham, purporting to be, in legal parlance, petitioner Ross’s “next friend,” must establish that she is legally that, and therefore that she has standing to bring the petition on his behalf.
According to the Supreme Court, speaking in Whitmore,
Decisions applying the habeas corpus statute have adhered to at least two firmly rooted prerequisites for “next friend” standing. First, a “next friend” must provide an adequate explanation— such as inaccessibility, mental incompetence, or other disability — why the real party in interest cannot appear on his own behalf to prosecute the action. Second, the “next friend” must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has been further suggested that a “next friend” must have some significant relationship with the real party in interest.
Id. at 163-64, 110 S.Ct. 1717 (citation omitted). “The burden is on the ‘next friend’ clearly to establish the propriety of his status and thereby justify the jurisdiction of the court.” Id. at 164, 110 S.Ct. 1717.
Having carefully reviewed the extensive proceedings that have taken place in Connecticut state courts relating to Michael Ross’s “competence,” the “voluntary” nature of his waiver of further proceedings, and related issues since our decision in ReH we are firmly convinced that Ms. Dunham has no room to argue that Michael Ross is incompetent or otherwise disabled for these purposes. The “prerequisite for ‘next friend’ standing is not satisfied where an evidentiary hearing shows that the defendant has given a knowing, intelligent, and voluntary waiver of his right to proceed, and his access to court is otherwise unimpeded.” Id. at 165, 110 S.Ct. 1717. Ms. Dunham, like Dan Ross before her, has not carried her burden by “providing] an adequate explanation— such as inaccessibility, mental incompetence, or other disability — why [Ross] cannot appear on his own behalf to prosecute the action.”
The Superior Court concluded after the most recent state competency hearings that “Michael Ross’[s] decision to waive his right to further postconviction relief is knowing, intelligent, and voluntary.” Conn. Sup. Court Apr. 22, 2005 Mem. of Decision re: Competency and Voluntariness at 21. The district court in the proceeding now before us, deciding whether Ms. Dunham can represent Michael Ross as his next friend, reviewed the evidence and, combined with its own observations of Michael Ross made in the January 7, 2005, district court proceedings, concluded that Michael Ross:
has made a knowing and voluntary waiver of his right to bring further postconviction legal action, one which was uncoerced and made in full understanding of the significance and consequences of that decision.
Ross v. Lantz, 2005 WL 1124704, at *4 (D.Conn, May 12, 2005). This and the state court factual findings foreclose the possibility of next friend standing for Dunham in this case.
• The record demonstrates that in this Court and elsewhere, the rights of Michael Ross have been afforded extensive due process protections irrespective of whether he has sought or even affirmatively resisted such efforts. And, as the state continues to concede, Ross can, at any moment prior to his execution, reverse course and invoke his right to seek further proceedings to overturn his conviction or death sentence.
We conclude that Ms. Dunham has not met her burden to establish that she has standing to act in these proceedings as Mr. Ross’s next friend. We note in that regard that although she could not in fact seek to bring this habeas petition until the Supreme Court of Connecticut ruled, she and her extraordinarily capable counsel have known- for months that such a proceeding was likely, have had access to the transcripts of the April hearings before Judge Clifford for some days, and therefore had a sufficient opportunity to prepare for submitting the necessary evidence if it existed.
Because we think that Ms. Dunham has not demonstrated that the issue with respect to her standing as next friend is “debatable among jurists of reason,” Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (citation and internal quotation marks omitted), the motion for a stay is DENIED.
We do not imply any judgment on our part with respect to the correctness of the legal conclusions of the Supreme Court of Connecticut addressing "voluntariness,'' "competence” and related issues. See State v. Ross, 273 Conn. 684, 873 A.2d 131 (May 9, 2005).