Copr. (C) West 2000 No Claim to Orig.
U.S. Govt. Works
--- A.2d ---- 2000 WL 523193 (Conn.)
(Publication page references are not available for this document.)
STATE OF CONNECTICUT v. TERRY D.
JOHNSON (SC 14801) Supreme Court of Connecticut. Argued October 26, 1999--
officially released May 2, 2000 Richard Emanuel, with whom were Kent Drager,
senior assistant public defender, and, on the brief, Joseph G. Bruckmann, public
defender, for the appellant (defendant). Lori Welch-Rubin, special public
defender, for the appellant (defendant) on the proportionality review. Marjorie
Allen Dauster, assistant state's attorney, with whom, on the brief, were Mark S.
Solak, state's attorney, Susan C. Marks, supervisory assistant state's attorney,
Michael E. O'Hare, assistant state's attorney, Toni M. Smith- Rosario, deputy
assistant state's attorney, and Harry Weller, senior assistant state's attorney,
for the appellee (state). Timothy J. Sugrue, senior assistant state's attorney,
for the appellee (state) on the proportionality review.
Before McDonald, C. J., and Borden,
Katz, Palmer, Callahan, Foti and Schaller, Js. s OPINIONOE
KATZ, J. [FN1] [FN2] [FN3] [FN4] [FN5]
FN1. General Statutes s 53a-54a
provides in relevant part: "Murder. (a) A person is guilty of murder when,
with intent to cause the death of another person, he causes the death of such
person or of a third person or causes a suicide by force, duress or deception;
except that in any prosecution under this subsection, it shall be an affirmative
defense that the defendant committed the proscribed act or acts under the
influence of extreme emotional disturbance for which there was a reasonable
explanation or excuse, the reasonableness of which is to be determined from the
viewpoint of a person in the defendant's situation under the circumstances as
the defendant believed them to be, provided nothing contained in this subsection
shall constitute a defense to a prosecution for, or preclude a conviction of,
manslaughter in the first degree or any other crime...." General Statutes s
53a-54c provides: "Felony murder. A
person is guilty of murder when, acting either alone or with one or more
persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual
assault in the first degree, aggravated sexual assault in the first degree,
sexual assault in the third degree, sexual assault in the third degree with a
firearm, escape in the first degree, or escape in the second degree and, in the
course of and in furtherance of such crime or of flight therefrom, he, or
another participant, if any, causes the death of a person other than one of the
participants, except that in any prosecution under this section, in which the
defendant was not the only participant in the underlying crime, it shall be an
affirmative defense that the defendant: (1) Did not commit the homicidal act or
in any way solicit, request, command, importune, cause or aid the commission
thereof; and (2) was not armed with a deadly weapon, or any dangerous
instrument; and (3) had no reasonable ground to believe that any other
participant was armed with such a weapon or instrument; and (4) had no
reasonable ground to believe that any other participant intended to engage in
conduct likely to result in death or serious physical injury." Because
murder and felony murder are contained in separate statutes; General Statutes ss
53a-54a and 53a-54c; the two crimes could have been charged in separate counts
of the information. The information
in the present case, however, charged the defendant with murder and felony
murder in a single count.
FN2. General Statutes (Rev. to 1991) s
53a-54b provides in relevant part: "Capital felony.
A person is guilty of a capital felony who is convicted of any of the
following: (1) Murder of a member of the division of state police within the
department of public safety or of any local police department, a chief inspector
or inspector in the division of criminal justice, a sheriff or deputy sheriff, a
constable who performs criminal law enforcement duties, a special policeman
appointed under section 29-18, an official of the department of correction
authorized by the commissioner of correction to make arrests in a correctional
institution or facility, or any fireman ... while such victim was acting within
the scope of his duties...." Unless otherwise indicated, references
hereinafter to s 53a-54b are to the 1991 revision.
FN3. General Statutes s 53a-101 (a)
provides: "A person is guilty of burglary in the first degree when he
enters or remains unlawfully in a building with intent to commit a crime therein
and: (1) He is armed with explosives or a deadly weapon or dangerous instrument,
or (2) in the course of committing the offense, he intentionally, knowingly or
recklessly inflicts or attempts to inflict bodily injury on anyone."
FN4. General Statutes s 53a-119
provides in relevant part: "A person commits larceny when, with intent to
deprive another of property or to appropriate the same to himself or a third
person, he wrongfully takes, obtains or withholds such property from an
owner...." General Statutes s 53a-124 (a) provides in relevant part:
"A person is guilty of larceny in the third degree when he commits
larceny as defined in section 53a-119
and ... (2) the value of the property or service exceeds one thousand
FN5. General Statutes s 53a-212
provides: "(a) A person is guilty of stealing a firearm when, with intent
to deprive another of his firearm or to appropriate the same to himself or a
third party, he wrongfully takes, obtains or withholds a firearm, as defined in
subdivision (19) of section 53a-3. "(b) Stealing a firearm is a class D
The defendant, Terry D. Johnson, was
charged with: one count of murder and felony murder in violation of General
Statutes ss 53a-54a and 53a-54c; [FN1] one count of capital felony murder of a
member of the division of state police, while the officer was acting within the
scope of his duties, in violation of General Statutes (Rev. to 1991) s 53a-54b
(1) [FN2] and ss 53a-54a (a) and (c) and 53a-54c; one count of burglary in the
first degree in violation of General Statutes s 53a-101 (a)(1) and (2); [FN3]
one count of larceny in the third degree for the taking of property with a value
in excess of one thousand dollars in violation of General Statutes ss 53a-119
and 53a-124 (a)(2); [FN4] and twenty counts of stealing a firearm in violation
of General Statutes s 53a-212, [FN5] arising out of the shooting death of
Connecticut State Trooper Russell Bagshaw during the commission of a burglary of
a sporting goods store in North Windham. The defendant pleaded guilty to
murder/felony murder, capital felony and burglary, before a three judge panel,
Corrigan, Spada and Potter, Js. (trial court), admitting to the following facts.
During the early morning hours of June 5, 1991, the defendant and his
brother, Duane Johnson, broke into the Land and Sea Sports Center (Land and Sea)
in North Windham. The defendant
entered the building through a small window and removed several weapons and
boxes of ammunition from the Land and Sea by passing them through the window to
Duane. The defendant loaded a semiautomatic nine millimeter pistol and passed
that weapon through the window to Duane as well.
During the course of the break-in, Bagshaw, who was on routine patrol in
the vicinity, drove his cruiser into the parking lot of the Land and Sea. Duane
saw Bagshaw's cruiser approaching and warned the defendant.
The defendant exited the Land and Sea through the window by which he had
entered. The defendant, armed with
the semiautomatic nine millimeter pistol, then proceeded to wait near the
building. As Bagshaw's cruiser
approached the Land and Sea, the defendant began shooting at the cruiser.
One of the bullets fired by the defendant hit Bagshaw, fatally wounding
him. The defendant and Duane then
fled the scene. After the defendant's guilty plea, a separate sentencing hearing
was conducted pursuant to General Statutes (Rev. to 1991) s 53a-46a [FN6] by the
trial court. At the conclusion of
the sentencing phase of the trial, the jury found an aggravating factor and no
mitigating factor. In accordance with the jury's findings, the trial court
rendered a judgment of guilty of capital felony and imposed the death penalty on
the defendant. The defendant
appealed to this court pursuant to General Statutes s 51-199(b) and General
Statutes (Rev. to 1991) s 53a-46b. [FN7] We affirm the judgment of conviction on
all counts. Because we conclude, however, that there was insufficient evidence
of the existence of an aggravating factor, we reverse the judgment with respect
to the imposition of the death penalty and remand the case with direction to
impose a life sentence without the possibility of release. The defendant raises
twenty-eight issues on appeal. Because
we reverse the judgment imposing the death penalty, we need decide only five of
those issues: three addressed to the defendant's guilty plea, one challenging
the sufficiency of the evidence of the aggravating factor and one contesting the
propriety of the probable cause hearing. [FN8] I We first address the
defendant's claim that the trial court improperly denied his motions for a
competency examination, pursuant to General Statutes (Rev. to 1991) s 54-56d,
[FN9] thereby depriving him of his right to due process of law under the United
States and Connecticut constitutions. [FN10] Although we agree that the trial
court applied an incorrect evidentiary standard to the defendant's requests for
a competency hearing, we conclude that any impropriety did not deprive the
defendant of his due process rights. Accordingly,
the failure to order a competency hearing was not harmful. The record reveals
the following relevant facts. The guilt phase of the defendant's trial commenced on
December 10, 1992, before the trial court.
At the start of the proceedings, defense counsel moved for a competency
examination of the defendant, pursuant to s 54-56d (c), citing, as the basis of
the motion, a letter received from David M. Mantell, a clinical psychologist
hired by the defense, which raised concerns about the defendant's mental
competence. The relevant portions
of Mantell's December 9, 1992 letter provided: "During my first examination
of [the defendant] on [November 25, 1992] but particularly during [further
examination] this morning and this afternoon, I have found symptomatic evidence
of psychotic thought process which, if validated, may severely impact on [his]
present legal competence." Defense counsel argued that these concerns
required the trial court to halt the guilt phase of the proceedings until
completion of a competency examination and determination. The trial court denied
the defendant's motion for a competency examination, citing the adequacy of a
canvass conducted by one member of the trial court, Corrigan, J., during the
October 22, 1992 hearing, at which Judge Corrigan granted the defendant's motion
to change his election from a jury trial to a trial by a three judge panel
pursuant to General Statutes s 54-82(b). [FN11] The trial court explained that
during that hearing, Judge Corrigan had found the defendant competent as a
result of that canvass, and the trial court further concluded that Mantell's
letter did not change that prior determination of competency.
The trial court then explained its understanding of the evidentiary
burden required for a hearing pursuant to s 54-56d, stating: "By virtue of
subsection (b) of [s 54-56d], a defendant is presumed to be competent and Doctor
Mantell's letter does not indicate he is not competent.
The burden provided by subsection (b) is that the burden rests upon the
defendant to prove by clear and convincing evidence that he is [incompetent]. So at a time when you have such evidence to produce, the
court will hear you." When the defendant then offered to produce Mantell to
testify, the trial court explained that even Mantell's opinion as set forth in
his letter would be insufficient to establish incompetency. Immediately after
the court's ruling on the defendant's motion for a competency examination, the
defendant pleaded guilty. [FN12] Before accepting the defendant's plea, the
trial court conducted a lengthy examination of the defendant pursuant to
Practice Book ss 39-19 and 39-20, formerly ss 711 and 712. [FN13] The court
questioned the defendant extensively regarding his understanding of the specific
charges against him, the penalties he faced and the factual basis of his plea.
In response to many of the court's inquiries, the defendant stated that
he had "reviewed that with my attorneys and I stand by my plea of guilty as
to that point." At the conclusion of the canvass, the trial court asked
both the state and defense counsel whether they wanted the court to
include any additional questions in the
canvass. The state requested that
the court ask the defendant whether he was under the influence of any medication
or alcohol. The trial court
responded that it had already asked the question at the beginning of the
canvass. [FN14] Neither the state nor defense counsel requested that the trial
court ask the defendant any additional questions.
The trial court subsequently accepted the defendant's guilty plea,
stating: "The court finds that the plea of guilty to the three offenses has
been made knowingly, intelligently and voluntarily, with full understanding of
the crimes charged, their possible penalties and the consequences of such a
plea, and after adequate advice and assistance of counsel." Defense counsel
also moved for a competency examination on two subsequent occasions. On March 3, 1993, during argument on the state's motion to
change psychiatrists, defense counsel noted that the defendant had declined to
come to court that day and expressed concern regarding the defendant's
medications and demeanor. Relying
on these observations, defense counsel moved for a competency evaluation for the
second time. [FN15] The trial court denied that motion, citing its earlier
denial on December 10, 1992, of the same request. The trial court also
reiterated its understanding of s 54-56d. [FN16] Additionally, the trial court
noted that, although the defendant's behavior sometimes seemed inappropriate,
the defendant appeared to have a good relationship with defense counsel and had
behaved appropriately during the previous day's proceedings. Defense counsel
asserted that the trial court had incorrectly stated the evidentiary burden
contained in s 54-56d. Defense
counsel argued that the clear and convincing standard, cited by the court, did
not apply to a request for a competency hearing but, rather, applied only at a
later stage when proving the defendant's incompetence.
Other than noting the defendant's exception, the trial court did not
respond to these arguments. When the proceedings resumed the following day, the
trial court noted the defendant's absence.
Defense counsel explained that the defendant was upset and again had
declined to attend the proceedings. Additionally,
defense counsel reiterated their concerns regarding the defendant's mental state
and again requested a competency evaluation. [FN17] The trial court denied the
defendant's motion but postponed voir dire proceedings in order to give the
state's psychiatrist an opportunity to examine the defendant. [FN18] The trial
court, in a mittimus accompanying the defendant back to the department of
correction, also noted defense counsel's concerns and indicated that the
defendant's physicians should more closely monitor his medications.
After a brief recess during which the defendant again declined to attend
the day's proceedings, the trial court found that the defendant had waived his
presence for the day. Several days later, on March 9, 1993, defense counsel
again raised the issue of the defendant's mental competence.
During argument on the state's motions for disclosure and production,
defense counsel repeated their concerns about the defendant's medications and
his resulting mental state. [FN19] Defense counsel explained that the defendant
had not received medication for a period of four days, and that the court's
order of March 4, 1993, for an evaluation of the defendant's medication, had not
been carried out. Defense counsel,
however, did not move for a competency examination under s 54-56d. The defendant
argues that the trial court's denial of his motions for a competency hearing
deprived him of his due process rights under the state and federal constitutions
and his rights pursuant to s 54-56d. The defendant contends that, procedurally, the trial court
improperly applied a clear and convincing evidentiary standard to the
defendant's requests for a competency hearing pursuant to s 54-56d.
Additionally, the defendant claims that the trial court deprived him of
his substantive due process rights because defense counsel had presented
substantial evidence that the defendant was incompetent to stand trial. [FN20]
The state agrees, in both its brief and at oral argument, that the trial court
incorrectly required clear and convincing proof of incompetency as a
prerequisite to granting a competency hearing.
The state asserts, however, that despite this impropriety, the defendant
presented insufficient evidence of incompetency, and that the trial court's
subsequent canvass of the defendant regarding his guilty plea cured any harm
resulting from the trial court's misapplication of s 54-56d.
We agree with the state that the trial court's misapplication of s 54-56d
did not harm the defendant. We begin with the undisputed principle that the
guilty plea and subsequent conviction of "an accused person who is not
legally competent to stand trial violates the due process of law guaranteed by
the state and federal constitutions. Conn.
Const., art. I, s 8; U.S. Const.,
amend. XIV, s 1; see Pate v.
Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)." [FN21]
(Internal quotation marks omitted.) State v. Garcia, 233 Conn. 44, 67, 658 A.2d
947 (1995), on appeal after remand, 235 Conn. 671, 669 A.2d 573 (1996); accord
Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996);
State v. Wolff, 237 Conn. 633, 662, 678 A.2d 1369 (1996); Gold v. Warden, 222
Conn. 312, 313 n.3, 610 A.2d 1153 (1992). Connecticut
jealously guards this right. [FN22] Therefore, "[t]his constitutional
mandate is codified in ... s 54-56d (a), which provides that [a] defendant shall
not be tried, convicted or sentenced while he is not competent." (Internal
quotation marks omitted.) State v. Garcia, supra, 67. "[A] defendant is not
competent if he is unable to understand the proceedings against him or to assist
in his own defense." General Statutes (Rev. to 1991) s 54-56d (a).
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." (Internal quotation marks
omitted.) 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."
(Internal quotation marks omitted.) State v. Gonzalez, 205 Conn. 673, 686-87,
535 A.2d 345 (1987). Although s 54-56d (b) presumes the competency of
defendants, "when a reasonable doubt concerning the defendant's competency
is raised, the trial court must order a competency examination." State v.
Wolff, supra, 237 Conn. 666. Thus,
"[a]s a matter of due process, the trial court is required to conduct an
independent inquiry into the defendant's competence whenever he makes specific
factual allegations that, if true, would constitute substantial evidence of
mental impairment. Sanders v.
United States, 373 U.S. 1, 21, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).
Substantial evidence is a term of art. Evidence encompasses all
information properly before the court, whether it is in the form of testimony or
exhibits formally admitted or it is in the form of medical reports or other
kinds of reports that have been filed with the court. Evidence is substantial if
it raises a reasonable doubt about the defendant's competency....
Moore v. United States, 464 F.2d 663, 666 (9th Cir.1972). State v.
Watson, [198 Conn. 598, 605, 504
A.2d 497 (1986) ]; see Pate v.
Robinson, [supra, 383 U.S. 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). The trial court should
carefully weigh the need for a hearing in each case, but this is not to say that
a hearing should be available on demand. The
decision whether to grant a hearing requires the exercise of sound judicial
discretion. United States v. Hall, 523 F.2d 665, 667 (2d Cir.1975); Riccardi v.
United States, 428 F. Sup. 1059, 1064-65 (E.D.N.Y.), aff'd, 573 F.2d 1294 (2d
Cir.1977)." (Internal quotation marks omitted.) State v. DesLaurier, 230
Conn. 572, 585-86, 646 A.2d 108 (1994). A We first examine the defendant's claim
that the trial court improperly required clear and convincing evidence of
incompetency before granting an examination under s 54-56d.
We agree with the defendant and the state that the trial court evaluated
the defendant's requests for a competency hearing under an incorrect standard
and, under the appropriate standard, should have granted the defendant's motions
for a competency evaluation. [FN23] Section 54-56d establishes the procedural
requirements for competency determinations.
A court may undertake a competency examination upon a motion by the
defendant or the state and in some circumstances must evaluate the defendant's
competency sua sponte. General
Statutes (Rev. to 1991) s 54-56d (c); see Pate v. Robinson, supra, 383 U.S. 385
(court must initiate hearing when aware of facts creating reasonable doubt as to
defendant's competence); State v. Gonzalez, supra, 205 Conn. 686 ("
'independent judicial inquiry' " required in some circumstances).
"If the court finds that the request for an examination is justified
and that ... 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...." (Emphasis added.) General Statutes
(Rev. to 1991) s 54-56d (d). "[A]
trial court must order a competency hearing at any time that facts arise to
raise a reasonable doubt about the defendant's competency to continue with the
trial." State v. DesLaurier, supra, 230 Conn. 589-90 n.12. Once the court
grants a motion for a competency examination, the burden rests on the moving
party to prove "that the defendant is not competent by clear and convincing
evidence...." General Statutes (Rev. to 1991) s 54-56d (b). [FN24] Although
we agree that generally the discretion to grant a competency hearing lies with
the trial court; State v. Wolff, supra, 237 Conn. 664 (decision to grant
competency hearing requires exercise of sound judicial discretion); we conclude
that, in the present case, the trial court improperly required the defendant to
provide clear and convincing evidence of incompetency in his motion for a
competency evaluation. Additionally,
because the evidence proffered by the defendant raised a reasonable doubt as to
the defendant's competency, a competency examination was justified in this case.
In denying the defendant's initial motion for a competency evaluation, the trial
court stated that "[t]he burden provided by subsection (b) [of s 54-56d] is
that the burden rests upon the defendant to prove by clear and convincing
evidence that he is not competent." The trial court, however, applied
subsection (b) of the statute at the incorrect time in the proceedings and
thereby inaccurately stated the evidentiary burden required to satisfy
subsection (d). Section 54-56d (b), which provides the standard that a moving
party must meet for proof of incompetency, applies only after a trial court has
granted a motion for a competency evaluation or has undertaken an evaluation sua
sponte. In deciding whether to grant a motion for a competency examination, the
trial court is governed by the provisions contained in subsections (c) and (d)
of s 54-56d. Far from requiring a moving party initially to provide clear
and convincing evidence of the defendant's incompetency, these provisions state
that if it "appears" that the defendant is not competent, and if the
trial court finds that a request for a competency evaluation is
"justified," the court must order a competency examination.
We have interpreted this standard as requiring a competency evaluation
any time a reasonable doubt is raised regarding the defendant's competency.
See State v. DesLaurier, supra, 230 Conn. 589-90 n.12. Essentially, in
denying the defendant's request for a competency evaluation, the trial court
would have had to conclude that no reasonable doubt existed regarding the
defendant's competency. Our review
of the record reveals that Mantell's letter and defense counsel's concerns about
the defendant's demeanor and medications provided sufficient justification for
the trial court to have granted a competency evaluation.
The trial court, therefore, improperly denied the defendant's motions for
a competency evaluation based on its determination that there was not clear and
convincing evidence of the defendant's incompetency.
We conclude that defense counsel's assertions raised a reasonable doubt
as to the defendant's competency and, therefore, that the trial court should
have ordered a competency evaluation. B Having determined that the trial court
improperly denied the defendant's motions for a competency examination, we next
address whether that denial deprived the defendant of substantive due process
because he was incompetent to stand trial.
Because we conclude that in accepting the defendant's guilty plea, the
trial court implicitly found him competent, and because our own review of the
record demonstrates that this finding was not an abuse of discretion, the trial
court's failure to provide a competency evaluation did not deprive the defendant
of due process under the state or federal constitutions.
Accordingly, we conclude that the impropriety of the trial court's
failure to order a competency evaluation was harmless. The following facts are
relevant to our discussion of this issue. Immediately
following the defendant's first motion for a competency evaluation, the trial
court conducted a canvass of the defendant for purposes of his guilty plea. The
trial court's canvass consisted of detailed questions contained in approximately
thirty pages of the printed transcript. The
trial court questioned the defendant extensively regarding his understanding of
the charges against him, his comprehension of the potential penalties he faced
by pleading guilty, the constitutional rights he waived by pleading guilty, and
whether he made the plea voluntarily and free from coercion.
The defendant indicated in response to each question that he had
discussed the issue with counsel and wished to plead guilty.
Additionally, the trial court asked the defendant whether he had taken
any drugs or alcohol in the previous forty-eight hours. The defendant responded
in the negative. The United States Supreme Court in Godinez v. Moran, 509 U.S.
389, 399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993), established that, for federal
constitutional purposes, the standard of competency required to stand trial is
the same as the degree of competency required to plead guilty or to waive the
right to counsel. [FN25] This court also has recognized that the competency
standards for standing trial and other parts of a criminal proceeding are
equivalent. State v. Day, 233 Conn.
813, 825, 661 A.2d 539 (1995) (same competency standard applies to ability to
stand trial as to waiving right to counsel).
In Day, we interpreted the court's
decision in Godinez as establishing
that "any criminal defendant who has been found competent to stand trial,
ipso facto, is competent to waive the right to counsel as a matter of federal
constitutional law." Id., 824. Furthermore,
we explained that although states may require a higher degree of competency than
the standard outlined in Dusky v. United States, supra, 362 U.S. 403, "[w]hatever
standard is employed ... must be applied equally at the various stages of a
trial to pass constitutional muster." State v. Day, supra, 824.
Additionally, prior to Godinez, in Myers v. Manson, 192 Conn. 383, 389- 90, 472
A.2d 759 (1984), this court rejected a defendant's claim that a higher
competency standard applied to his guilty plea than to the determination of his
ability to stand trial. In Myers,
the court concluded that the trial court's canvass of the defendant prior to
accepting his guilty plea demonstrated the defendant's competency.
Id., 389-91. The court
explained that "[i]mplicit in the scrutiny of the plea at the trial level
and on appeal is an inquiry into whether the defendant was competent to
plead.... Hence, the trial court's
acceptance of the plea after a thorough inquiry ... implies that the [defendant]
was competent to enter that plea." (Citations omitted.) Id., 390; see also
State v. Watson, supra, 198 Conn. 604. In the present case, the canvass of the
defendant amply supports the trial court's finding that the defendant was
competent to plead guilty. [FN26] See State v. Wolff, supra, 237 Conn. 665-66
(defendant's responses during canvass supported finding of competency to waive
right to counsel); State v. Watson, supra, 198 Conn. 606-607 (trial court's
canvass supported finding of competency to plead guilty); Myers v. Manson,
supra, 192 Conn. 390-91 (canvass supported habeas court's conclusion that
defendant was competent). Throughout the canvass the defendant demonstrated his
clear understanding of the charges against him and the implications of his
guilty plea. [FN27] The defendant provided appropriate and coherent responses to
the court's questions and indicated that he had consulted with defense counsel
regarding the various aspects of his guilty plea. [FN28] See State v. Janice, 20
Conn.App. 212, 214, 565 A.2d 553, cert. denied, 213 Conn. 811, 568 A.2d 795
(1989) ( "intelligent and articulate dialogue" with judge demonstrated
defendant's competency). Furthermore,
the defendant paused repeatedly during the lengthy canvass to consult with
counsel before answering specific questions.
Thus, the record of the canvass establishes that the defendant
comprehended the proceedings and was able to consult with and assist counsel in
the presentation of his case. Accordingly,
the defendant was competent to plead guilty. Applying the Godinez principles to
the present case, the same measure of competency applied at the time that the
trial court denied the defendant's first motion for a competency evaluation as
to his guilty plea entered immediately thereafter.
Thus, the trial court's extensive canvass of the defendant, prior to
accepting his guilty plea, necessarily included a determination that the
defendant was competent. See State
v. Vane, 322 A.2d 58, 61 (Me.1974) (explaining that finding that plea is
voluntary and intelligent after extensive canvass "subsumes and
definitively determines that the plea was made by a competent defendant").
Because the same competency standard applied to both determinations and
because the canvass occurred immediately after defense counsel raised the issue
of competency, implicit in the trial court's conclusion that the defendant was
competent to plead guilty is its finding that the defendant was also competent
to stand trial. C The defendant also argues that the trial court's denial of his
two subsequent motions for a competency examination and its failure to order a
competency examination sua sponte when defense counsel raised the issue on a
fourth occasion deprived him of due process because he was incompetent to stand
trial. We conclude that the
defendant was competent to stand trial on those later occasions. As explained
previously, the defendant was competent when he pleaded guilty. Less than three months passed between the defendant's guilty
plea and his second motion for a competency evaluation. Defense counsel based the later motions for a competency
examination on changes in the defendant's demeanor, an increase in medication
and his refusal to attend court proceedings.
Although defense counsel's concerns are an important indicator of a
defendant's incompetency, we do not find that the factors cited by defense
counsel here established the defendant's incompetency.
Again, the fact that the defendant received medication was not
sufficient, in and of itself, to establish incompetency.
Additionally, defense counsel never specifically indicated that the
medication interfered with the defendant's ability to comprehend the
proceedings. Furthermore, the trial court expressly noted that from its
observations the defendant appeared competent.
Nothing transpired between December 10, 1992, and March 3, 1993, that
required the trial court to order a competency examination. Similarly, the trial
court did not abuse its discretion on March 4, 1993, when it denied defense
counsel's third motion for a competency evaluation.
On that occasion, defense counsel reiterated their concerns regarding the
defendant's medications and indicated that the defendant again had refused to
attend court proceedings. The
record shows that the defendant's refusal to come to court stemmed from his
anger with defense counsel's alleged failure to keep a promise rather than from
the defendant's incompetency. The
defendant's dissatisfaction with defense counsel does not indicate his
incompetency. See State v. Johnson,
22 Conn.App. 477, 489, 578 A.2d 1085, cert. denied, 216 Conn. 817, 580 A.2d 63
(1990) (defendant's "obstreperous, uncooperative or belligerent
behavior" including refusal to return to court and hostility toward
attorney did not necessarily indicate defendant's incompetency); Commonwealth v.
Logan, 519 Pa. 607, 623-24, 549 A.2d 531 (1988) (refusal to cooperate with
defense strategy and display of childish behavior at trial does not necessarily
constitute incompetence). Although defense counsel stated that the defendant's
medications may have caused his refusal to cooperate with counsel, the record
demonstrates that the medications did not interfere with his ability to consult
with defense counsel or to assist in his defense.
See United States v. Caldwell, 543 F.2d 1333, 1349 n.70 (D.C.Cir.1974),
cert. denied, 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976) (mere
uncooperativeness with defense counsel does not prove inability to communicate
and, therefore, does not prove incompetency).
"[The defendant] had the ability to cooperate but did not want to do
so." State v. Johnson, supra, 489; see also Commonwealth v. Logan, supra,
624 (" 'issue is the defendant's ability to cooperate and not whether he is
actually cooperating' "). Finally, the record reveals that the defendant
was competent when defense counsel raised the competency issue for the fourth
and final time on March 9, 1993. On that occasion, defense counsel simply mentioned the issue
of competency in the context of a discussion regarding a change of psychiatrists
and the release of medical records. Defense
counsel did not make a motion, pursuant to s 54-56d, for a competency
evaluation. The trial court did not
respond to defense counsel's comments and defense counsel did not raise the
issue thereafter. Again, defense
counsel made no specific reference as to why he felt that the defendant was
incompetent and, therefore, unable to assist counsel.
D Because we conclude that in accepting
the defendant's guilty plea, the trial court implicitly found him competent, and
because our own review of the record demonstrates that this finding was not an
abuse of discretion, the trial court's failure to provide a competency
evaluation did not deprive the defendant of due process under the state or
federal constitutions. Accordingly, we conclude that the impropriety of the
trial court's failure to order a competency evaluation was harmless. II We next
address the defendant's claim that the trial court improperly accepted his plea
of guilty in violation of the federal and state due process clauses [FN29] and
his rights to ensure an informed and voluntary plea pursuant to Practice Book ss
39-19 and 39-20. [FN30] The defendant argues on appeal that his guilty plea
violated due process because it was not knowing, intelligent or voluntary.
[FN31] Additionally, the defendant claims that the trial court failed to comply
substantially with the procedures for acceptance of a guilty plea contained in
ss 39-19 and 39-20. [FN32] The following additional facts are relevant to our
resolution of these claims. On
December 10, 1992, the defendant appeared before the trial court and pleaded
guilty to the first three counts of the amended information. [FN33] After the
defendant entered his guilty plea and the state recited the factual basis for
the charges, the trial court canvassed the defendant regarding his plea.
The trial court questioned the defendant extensively regarding each
charge, the potential penalties for each charge, the factual basis for the plea
and whether the defendant understood the constitutional rights he waived by
pleading guilty. Thereafter, the trial court accepted the defendant's guilty
plea finding that it was made knowingly, intelligently, voluntarily and with a
full understanding of the crimes, penalties and consequences of the guilty plea.
The trial court also found that the plea was made with adequate
assistance of counsel and that a factual basis for the plea existed. A First, we
review the defendant's assertion that he did not understand the law in relation
to the facts and, therefore, his plea of guilty was not knowing, intelligent or
voluntary, because: (1) the charging document was complex and confusing; (2) the
trial court failed to advise him of an essential element of the capital felony
count; (3) he was confused about the sentencing consequences of his guilty plea;
and (4) he did not understand that his guilty plea waived all nonjurisdictional
defects. We reject these claims. Before addressing the defendant's
claims, we review the well established standards for valid guilty pleas.
It is axiomatic that "[u]nless a plea of guilty is made knowingly
and voluntarily, it has been obtained in violation of due process and is
therefore voidable. State v.
Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983); see McCarthy v. United
States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); State v. Lopez,
197 Conn. 337, 341, 497 A.2d 390 (1985). When
a defendant pleads guilty, he waives important fundamental constitutional
rights, including the privilege against self- incrimination, the right to a jury
trial, and the right to confront his accusers....
These considerations demand the utmost solicitude of which courts are
capable in canvassing the matter with the accused to make sure he has a full
understanding of what the plea connotes and its consequences.
Boykin v. Alabama, [395 U.S. 238, 243-44, 89 S.Ct. 1709, 23 L.Ed.2d 274
(1969) ]. State v. Childree, supra, 120. "We, therefore, require the trial
court affirmatively to clarify on the record that the defendant's guilty plea
was made intelligently and voluntarily. State v. Childree, supra, 189 Conn. 120.
In order to make a knowing and voluntary choice, the defendant must
possess an understanding of the law in relation to the facts, including all
relevant information concerning the sentence.
State v. Collins, 176 Conn. 7, 9, 404 A.2d 871 (1978)....
A determination as to whether a plea has been knowingly and voluntarily
entered entails an examination of all of the relevant circumstances.
State v. Wright, 207 Conn. 276, 287, 542 A.2d 299 (1988)."
(Citations omitted; internal quotation marks omitted.) State v. Garvin, 242
Conn. 296, 310, 699 A.2d 921 (1997); see generally State v. Domian, 235 Conn.
679, 686-87, 668 A.2d 1333 (1996); State v. Nelson, 221 Conn. 635, 639-40, 605
A.2d 1381 (1992); State v. Badgett, 220 Conn. 6, 11-13, 595 A.2d 851 (1991). 1
The defendant first claims that due to the complex and confusing nature of the
information he did not understand the law in relation to the facts of the case.
[FN34] In particular, the defendant cites the inclusion, in count one, of both
intentional murder pursuant to s 53a-54a and felony murder pursuant to s
53a-54c. Although the defendant
concedes that the two charges are "legally reconcilable" and that we
previously have approved joinder of the two charges; see, e.g., State v.
Couture, 194 Conn. 530, 560, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192,
105 S.Ct. 967, 83 L.Ed.2d 971 (1985); State v. Chicano, 216 Conn. 699, 708, 584
A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S.Ct. 2898, 115 L.Ed.2d 1062
(1991); he advances no reason for overruling these decisions, nor do we find
one. Additionally, the defendant
provides no basis for his assertion that the charge contributed to his
confusion. Therefore, he has failed
to demonstrate that the alleged constitutional violations deprived him of a fair
trial. State v. Golding, 213 Conn.
233, 239-40, 567 A.2d 823 (1989). The defendant also argues that count two was
confusing and, therefore, jeopardized his understanding of the law in relation
to the facts. Count two of the amended information charged the defendant
with capital felony [FN35] predicated on both burglary and felony murder.
The defendant contends that felony murder may not constitute the
underlying offense for a capital felony charge because only intentional murders
may serve as the predicate offense for such a charge. [FN36] Therefore, the
defendant argues, count two contained capital felony charges based on murder, a
death eligible charge, and felony murder, a charge that is not death eligible,
and he did not fully comprehend this distinction. The defendant correctly
concludes that felony murder may not serve as a predicate offense for a capital
felony charge under s 53a-54b. State
v. Harrell, 238 Conn. 828, 831-39, 681 A.2d 944 (1996).
The inclusion, however, of the capital felony charge based on felony
murder did not render the defendant's plea unknowing, involuntary or
unintelligent. Despite the fact
that the capital felony charge predicated on felony murder was invalid, the
defendant nonetheless pleaded guilty to an additional capital felony charge
predicated on murder pursuant to s 53a-54a.
Thus, by pleading guilty to a second capital felony charge the defendant
faced either life imprisonment without the possibility of release or the death
penalty regardless of the validity of his plea to the felony murder based
capital felony. Accordingly, the
exclusion of the felony murder based capital felony charge would not have
affected the defendant's decision to plead guilty because he faced the same
penalty regardless of the inclusion of that charge. Additionally, the canvass
reveals that the defendant clearly understood the potential penalties for a
capital felony conviction.
When the trial court asked him whether
he knew about the penalties for the capital felony charge, the defendant
correctly responded that the penalties were either life imprisonment without the
possibility of release or the death penalty. [FN37] Therefore, the record of the
guilty plea canvass supports the conclusion that the defendant's guilty plea
passed constitutional muster. 2 The defendant also alleges that he did not
understand the law of the crimes charged in relation to the facts of his case
because the trial court did not read to him that portion of the capital felony
statute containing the requirement that the victim was "acting within the
scope of his duties...." General Statutes (Rev. to 1991) s 53a-54b (1).
The defendant argues that the scope of duty element was critical to his
understanding of the capital felony charge and that it is not appropriate, in
these circumstances, to presume that defense counsel provided an adequate
explanation of the charge. We disagree. We begin by reiterating that "the
[defendant's] plea could not be voluntary in the sense that it constituted an
intelligent admission that he committed the offense unless the defendant
received real notice of the true nature of the charge against him, the first and
most universally recognized requirement of due process." (Internal
quotation marks omitted.) Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253,
49 L.Ed.2d 108 (1976); see also Paulsen v. Manson, 203 Conn. 484, 490, 525 A.2d
1315 (1987); State v. Eason, 192 Conn. 37, 43-44, 470 A.2d 688 (1984), overruled
in part on other grounds, Paulsen v. Manson, supra, 491.
However, "[w]e recognize that Henderson ... falls short of
announcing a per se rule that notice of the true nature of a charge always
requires a description of every element of the offense....
The trial court's failure to explicate an element renders the plea
invalid only where the omitted element is a critical one ... and only where it
is not appropriate to presume that defense counsel has explained the nature of
the offense in sufficient detail to give the accused notice of what he is being
asked to admit." (Citations omitted.) State v. Childree, supra, 189 Conn.
123; see also Oppel v. Lopes, 200 Conn. 553, 558, 512 A.2d 888 (1986). We
acknowledge that the trial court did not recite the specific portion of s
53a-54b (1) pertaining to the scope of duty requirement. [FN38] Nonetheless, on
the basis of our review of the record and the transcripts, we conclude that the
defendant was informed sufficiently of the pertinent element of the capital
felony offense. Additionally, under
the circumstances of the present case, it was appropriate for the trial court to
presume that defense counsel explained each element of the capital offense
charge to the defendant. Our careful review of the record reveals that the
defendant acquired knowledge of the scope of duty element from sources other
than the trial court's explanation of the charge. First, the information expressly contained the scope of duty
element. [FN39] See Oppel v. Lopes, supra, 200 Conn. 558 (finding it significant
that indictment specifically contained element omitted from trial court's
recitation of pertinent statute). Second,
after the defendant entered his guilty plea, the clerk of the court read each
count of the information aloud and asked the defendant how he pleaded.
With reference to the capital felony charge in count two, the clerk
specifically stated on two occasions that the defendant caused the death of the
victim while the victim "was acting within the scope of his duties."
Third, throughout its summation of the facts at the plea proceeding, the state
referred to the fact that the victim was in his police cruiser, on patrol and on
duty at the time of murder. See State v. Eason, supra, 192 Conn. 44 (defendant
on notice of elements of offense where state's factual basis included all
elements of offense). Furthermore, during the canvass the defendant repeatedly
stated that defense counsel had explained s 53a-54b (1) to him.
The trial court specifically asked the defendant whether defense counsel
had "read [the capital felony] statute to you or have you read the statute
prior to your guilty plea?" The defendant responded, "I have reviewed
that with my attorneys and I stand by my plea of guilty as to that point."
Thereafter, when the trial court asked the defendant whether defense counsel had
read him the penalty portion of s 53a- 54b, he responded that "[m]y
attorneys have read me all the statutes." (Emphasis added.) See Bowers v.
Warden, 19 Conn.App. 440, 443, 562 A.2d 588, cert. denied, 212 Conn. 817, 565
A.2d 534 (1989) (trial court may rely on defendant's responses during plea
canvass in deciding he was informed adequately of elements of charged offenses).
Moreover, later in the canvass, the defendant indicated that he had
reviewed his plea with defense counsel for at least one entire day. On the basis
of the foregoing, we conclude that the defendant had been adequately apprised of
the scope of duty element in s 53a-54b (1). 3 The defendant also briefly argues
that he was confused about the potential sentencing consequences of his guilty
plea. The defendant cites his
erroneous responses to several of the trial court's questions regarding the
penalties for particular charges. [FN40] We conclude that the defendant was
informed adequately of the potential sentencing possibilities and, therefore,
that his plea was knowingly made. At
several points during the canvass, the defendant corrected himself after
initially providing an inaccurate answer regarding the sentencing possibilities.
Additionally, the trial court corrected the errors in the defendant's
responses, thus informing him of the correct penalties. Furthermore, the
defendant expressly stated that defense counsel had read to him the portions of
the statutes pertaining to penalties and had informed him of the potential
penalties, including the death penalty, that he faced as a result of his guilty
plea. See id., 444 (finding that
defendant was aware of potential penalties through defense counsel's and trial
court's explanations). Thus, the
defendant knew the potential penalties and his guilty plea was knowingly and
intelligently made. 4 Finally, the defendant claims that his guilty plea was not
knowing or voluntary because he did not clearly understand that a guilty plea
waives all nonjurisdictional defects. Specifically,
the defendant asserts that although the trial court provided defense counsel
with an opportunity to explain the waiver rule to the defendant during the
canvass, the record does not establish exactly what defense counsel instructed
on this issue. Therefore, the
defendant claims, it is unclear whether he understood the waiver rule.
We reject this claim. It is well established that a voluntary and
intelligent guilty plea operates as a waiver of all nonjurisdictional defects.
See State v. Reddick, 224 Conn. 445, 451, 619 A.2d 453 (1993); State v.
Suggs, 194 Conn. 223, 227, 478 A.2d 1008 (1984); Cajigas v. Warden, 179 Conn.
78, 81, 425 A.2d 571 (1979). "It
is [however] not necessary for the trial court to canvass the defendant to
determine that [he] understands that [his] plea of guilty or nolo contendere
operates as a waiver of any challenge to pretrial proceedings." State v.
Gilnite, 202 Conn. 369, 383-84, 521 A.2d 547 (1987).
Accordingly, the defendant's claim that
his guilty plea was not made knowingly or intelligently is without merit. Although it was not required to do so, the trial court
specifically asked the defendant whether he understood that his guilty plea
waived his right to appeal all nonjurisdictional defects of the conviction.
Moreover, when the defendant responded in the negative, the trial court
halted the proceedings and permitted defense counsel to meet with the defendant
and explain to him the waiver doctrine. [FN41] Thereafter, the defendant
responded that defense counsel had assured him that the waiver of
nonjurisdictional defects would not be a problem. [FN42] In light of these
circumstances, we reject the defendant's claim that his plea was not knowing or
intelligent. B We next address the defendant's claim that the trial court's
canvass failed to comply substantially with the requirements of Practice Book ss
39-19 and 39-20. [FN43] Specifically, the defendant contends that the canvass
did not conform to the rules of practice because: (1) he did not understand the
nature of the charges as required by s 39-19(1); (2) the trial court failed to
inform him of the mandatory minimum and nonsuspendable sentence for the burglary
charge as required by s 39-19(1) and (2); and (3) the trial court inadequately
questioned the defendant regarding the voluntariness of his plea in accordance
with s 39-20. Because we conclude
that the plea canvass complied with the relevant rules of practice, we reject
the defendant's claims. 1 The defendant first contends that the trial court
failed to ensure that he understood "[t]he nature of the charge to which
the plea is offered" as required by s 39-19(1).
In support of his claim, the defendant repeats the arguments set forth in
his constitutional challenge to his guilty plea, specifically, that: (1) the
charging document was complex and confusing; (2) the trial court failed to
advise him of an essential element of the crime of capital felony; (3) he was
confused about the sentencing consequences of his guilty plea; and (4) he did
not understand that a guilty plea waives all nonjurisdictional defects. As we
have concluded previously, the defendant's guilty plea was made with knowledge
of the charges to which the plea was offered and in accordance with the
standards for due process. See part
II A of this opinion. Any failure
by the trial court to comply strictly with the relevant Practice Book
requirements did not affect the defendant's ability to make a fully informed and
voluntary plea decision. 2 The defendant also maintains that the trial court
violated s 39-19(2) and (3) by failing to advise him of the nonsuspendable,
mandatory minimum sentence applicable to the burglary charges in count three.
[FN44] We conclude that this omission did not impact the defendant's decision to
plead guilty and, therefore, did not render his plea invalid. "[B]ecause
the determination as to whether a plea has been knowingly and voluntarily
entered entails an examination of all of the relevant circumstances ... the plea
may satisfy constitutional requirements even in the absence of literal
compliance with the prophylactic safeguards of [ss 39-19 and 39-20]....
Thus, although the trial court never expressly informed the defendant of
the mandatory minimum sentence ... as required by [s 39- 19(2) ], that fact
alone is not dispositive of the defendant's constitutional claim.
We must determine, instead, whether, in light of all of the circumstances
evident from the record before us, the trial court's failure to inform the
defendant of the statutorily required minimum sentence rendered his guilty plea
unknowing or involuntary." (Citations omitted; internal quotation marks
omitted.) State v. Domian, supra, 235 Conn. 687-88. Our resolution of the
defendant's claim is guided by our opinion in Domian, wherein we concluded that
"[o]ur inquiry ... must focus upon the effect, if any, that the trial
court's noncompliance with [s 39-19(2) ] had on the defendant's ability to make
a fully informed and voluntary plea decision. Thus, the ultimate issue to be
resolved is whether the defendant was aware of actual sentencing possibilities,
and, if not, whether accurate information would have made any difference in his
decision to enter a [guilty] plea." (Internal quotation marks omitted.)
Id., 688; see also State v. Wright, 207 Conn. 276, 288, 542 A.2d 299 (1988)
(failure to advise defendant of mandatory minimum sentence did not jeopardize
constitutional rights where plea intelligently and voluntarily made). "[T]here
is nothing in the record of the trial court proceedings to suggest that the
defendant was unaware of the actual sentencing possibilities and, further, that
even if his understanding of the possible sentencing alternatives was less than
perfect, the record does not support a claim that any additional information
would have made a difference in his decision to plead guilty." State v.
Domian, supra, 235 Conn. 689. The
defendant, by virtue of his guilty plea to the other charges, faced a minimum
penalty of life imprisonment without the possibility of release. Thus, the trial court's failure to inform him of a mandatory,
nonsuspendable five year sentence for the burglary charge did not mislead the
defendant about the possible sentencing outcomes. [FN45] Additionally, we find
it incomprehensible that the five year minimum sentence for burglary would have
altered the defendant's decision to plead guilty. [FN46] Accordingly, the trial
court's failure to follow strictly the requirements of s 39-19(2) and (3) did
not undermine the voluntariness of the defendant's plea. 3 Finally, the
defendant argues that the trial court did not fully inquire into whether prior
discussions with the prosecutor had affected his decision to plead guilty as
required by Practice Book s 39-20. [FN47] Our review of the transcripts of the
plea canvass reveals that the trial court specifically asked the defendant
whether the prosecutor had promised to drop any charges in exchange for the
defendant's guilty plea. The
defendant responded that the prosecutor simply had offered to drop the charges
of larceny and stealing a firearm, contained in counts four through twenty-four
of the amended information. Thus,
the trial court fully complied with s 39-20. III The defendant also claims that,
with respect to his motion to withdraw his guilty plea, the trial court
improperly (1) rejected his motion to withdraw his guilty plea without holding
an evidentiary hearing, and (2) declined to appoint new counsel to assist him
with the motion. [FN48] We conclude that the trial court did not abuse its
discretion and, accordingly, we reject the defendant's claims. The following
additional facts are relevant to our resolution of these claims.
Subsequent to the jury's verdict in the penalty phase, the trial court
convened on June 10, 1993, to sentence the defendant.
The trial court imposed a sentence for the burglary charge, [FN49] and
then recessed briefly before sentencing the defendant on the capital felony
count. Prior to the trial court's sentencing on the capital felony conviction,
defense counsel indicated that the defendant wanted to
address the court personally. Defense counsel also indicated that they had not advised the
defendant to address the court and that, based upon their knowledge of the
defendant's intended comments, they believed that the trial court should
consider appointing additional counsel to represent the defendant.
In response, the trial court informed the defendant that, although it was
common at that particular time in the proceedings for a defendant to address the
court and request a mitigation of his sentence, in the present situation the
court was required to impose the death penalty and, therefore, the defendant's
comments could only jeopardize future appeals.
After a sidebar conference with defense counsel, the trial court agreed
that it was not appropriate to deny the defendant's request and permitted him to
address the court. The defendant then stated: "Your Honor, I would just
like to say that my plea of guilty was not voluntary and ... was not made with
my full understanding and I ask that the court ... permit me to withdraw my plea
of guilty." [FN50] Judge Corrigan denied the defendant's request to
withdraw his plea, stating that "[h]aving been one of the panel of three
judges who accepted your plea and the one who questioned you and canvassed you
on your plea, the court is not moved by your statement, so the court denies your
oral motion to have the prior plea vacated." The standard governing the
withdrawal of a guilty plea is well settled.
"Before a guilty plea is accepted a defendant may withdraw it as a
matter of right.... After a guilty
plea is accepted but before the imposition of sentence the court is obligated to
permit withdrawal upon proof of one of the grounds in [Practice Book s 39-27,
formerly s 721]." [FN51] (Citation omitted.) State v. Torres, 182 Conn.
176, 185, 438 A.2d 46 (1980); see Practice Book s 39-26, formerly s 720; [FN52]
see also State v. Lloyd, supra, 199 Conn. 362; State v. Watson, supra, 198 Conn.
607; State v. Martin, 197 Conn. 17, 20, 495 A.2d 1028 (1985); State v. Lasher,
190 Conn. 259, 265, 460 A.2d 970 (1983). In the present case, the defendant, in his oral motion to
withdraw his guilty plea, claimed that the acceptance of his guilty plea was in
violation of s 39-27(1) and (2) because it was not knowing or voluntary. A
First, the defendant contends that the trial court improperly denied his motion
to withdraw his guilty plea without affording him an evidentiary hearing. [FN53]
We conclude that the defendant's motion to withdraw his guilty plea was vague
and conclusory, and, therefore, an evidentiary hearing was not required.
"An evidentiary hearing is not required if the record of the plea
proceeding and other information in the court file conclusively establishes that
the motion is without merit. See
Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 36 L.Ed.2d 169
(1973).... State v. Torres, [supra,
182 Conn. 185]. The burden is
always on the defendant to show a plausible reason for the withdrawal of a plea
of guilty. [State v. Crenshaw, 210
Conn. 304, 308, 554 A.2d 1074 (1989) ] Blue v. Robinson, 173 Conn. 360, 374, 377
A.2d 1108 (1977); State v. Slater, 169 Conn. 38, 46, 362 A.2d 499 (1975).
In considering whether to hold an evidentiary hearing on a motion to
withdraw a guilty plea the court may disregard any allegations of fact, whether
contained in the motion or made in an offer of proof, which are either
conclusory, vague or oblique. State
v. Torres, supra, 185. Such
allegations are discountenanced. State
v. Deboben, 187 Conn. 469, 474, 446 A.2d 828 (1982).
To warrant consideration, the defendant must allege and provide facts
which justify permitting him to withdraw his plea under [s 39-27]."
(Internal quotation marks omitted.) State v. Lasher, supra, 190 Conn. 265- 66;
see also State v. Blue, 230 Conn. 109, 125, 644 A.2d 859 (1994); State v.
Collins, 207 Conn. 590, 597, 542 A.2d 1131 (1988). In the present case, the
defendant failed to satisfy his burden of setting forth sufficient facts to
require an evidentiary hearing on his motion to withdraw his guilty plea.
The defendant simply made the vague and conclusory statement that his
plea was not "voluntary ... and was not made with [his] full
understanding...." The defendant failed to set forth any additional facts
supporting this statement and failed to advance any specific reason why his plea
was involuntary and made without his full understanding.
See State v. Cooper, 55 Conn.App. 95, 105, 738 A.2d 1125 (1999) (motion
to withdraw contained no facts to support defendant's claim); State v. Peterson,
51 Conn.App. 645, 652, 725 A.2d 333 (1999) (defendant's "bare
assertion" that he was using drugs at time of plea did not warrant
evidentiary hearing); State v. Casado, 42 Conn.App. 371, 375, 680 A.2d 981,
cert. denied, 239 Conn. 920, 682 A.2d 1006 (1996) ("mere assertion by the
defendant that the plea was involuntary ... does not entitle [him] to withdraw
the plea, nor does it require ... an evidentiary hearing on the motion to
withdraw"). Additionally, the defendant's assertion that his plea was not
voluntarily and intelligently made contradicts the detailed plea canvass
conducted by the trial court, in which the defendant expressly stated that he
understood the implications of his plea, had received advice and assistance of
counsel in preparing to plea, and had entered the guilty plea voluntarily.
See People v. Williams, 178 App. Div.2d 570, 577 N.Y.S.2d 656 (1991)
(defendant's claims in motion for withdrawal of guilty plea did not require
hearing where refuted by record of plea canvass).
In light of the comprehensive canvass conducted by the trial court; see,
e.g., footnotes 37, 41 and 47 of this opinion; and our previous conclusion that
the defendant's plea was entered voluntarily with full knowledge of the
consequences of his plea, the defendant's bare and unsupported assertion in
support of his motion did not warrant an evidentiary hearing.
In this situation the trial court was entitled to rely on its knowledge
of the canvass, which it had conducted itself.
See Fluitt v. Superintendent, 480 F. Sup. 81, 85 (1979) (noting that only
in rare situations will defendant be entitled to evidentiary hearing).
Accordingly, the trial court acted within the legitimate bounds of its
discretion in not undertaking an evidentiary hearing regarding the defendant's
motion to withdraw his plea. B The defendant also argues that the trial court
improperly denied his request for appointment of new counsel to assist him with
his motion to withdraw his guilty plea. We
conclude that the trial court did not abuse its discretion in declining to
appoint new counsel. The following facts are relevant to our discussion.
Before the defendant addressed the trial court, defense counsel informed
the court that, based upon their knowledge of the content of the defendant's
proposed statement, they believed that "it would be appropriate and proper
for the court to consider appointing him additional counsel to press before the
court in a proper manner the claims which he intends to make to the court."
The trial court acknowledged defense counsel's request but never specifically
denied it. Instead, the trial court addressed the defendant directly, urging him
to reconsider his statement and to consult with defense counsel. First, we
reiterate the standard under which we consider the defendant's claim.
"Whether the circumstances warrant the
appointment of new counsel is within
the discretion of the trial court.... [A]bsent
a factual record revealing an abuse of [the court's] discretion, the court's
failure to allow new counsel is not reversible error." (Citation omitted;
internal quotation marks omitted.) State v. Crenshaw, supra, 210 Conn. 314; see
also State v. Drakeford, 202 Conn. 75, 83, 519 A.2d 1194 (1987). In State v.
Cooper, supra, 55 Conn.App. 95, and State v. Casado, supra, 42 Conn.App. 371,
the Appellate Court rejected claims similar to the defendant's arguments.
In Cooper, the defendant had moved to withdraw her plea of guilty to
manslaughter in the first degree and risk of injury to a child, claiming that
she had received ineffective assistance of counsel and that her plea was
unknowing and involuntary. State v.
Cooper, supra, 101. The trial court refused defense counsel's request for
appointment of new counsel to represent the defendant on the motion to withdraw
her plea. Id., 102-103. On
appeal, the Appellate Court affirmed the trial court's refusal to appoint new
counsel, concluding that the trial court had acted within its discretion despite
the defendant's assertions that a conflict existed between herself and defense
counsel. Id., 106-107. In Casado,
the Appellate Court affirmed the trial court's refusal to appoint new counsel to
assist with the defendant's motion to withdraw her plea of nolo contendere to
assault in the first degree and risk of injury to a child.
State v. Casado, supra, 42 Conn.App. 380-81.
In that case, the defendant had moved to withdraw her plea at her
sentencing hearing on the ground that defense counsel had pressured her to enter
the plea. Defense counsel informed
the court that the defendant no longer wanted him to represent her and suggested
that the trial court appoint new counsel and provide an evidentiary hearing.
The trial court denied both requests.
Id., 373-74. The Appellate Court affirmed the denial of an evidentiary
hearing and the refusal to appoint new counsel, concluding that the trial court
had not abused its discretion in refusing to appoint new counsel to press the
defendant's motion to withdraw her plea. Id.,
379. The Appellate Court noted that
"[t]he constitutional right to counsel does not necessarily include the
unbridled right to discharge counsel and have new counsel appointed." Id.,
378. The Appellate Court concluded
that, by denying the defendant's request for an evidentiary hearing, the trial
court had rejected explicitly the defendant's assertions of pressure and,
therefore, appointment of new counsel was not required.
Id., 379. As in Casado and Cooper, the trial court in the present case
acted within its discretion when it declined to appoint new counsel.
It is clear from the record that the defendant had consulted with defense
counsel prior to addressing the court. Defense
counsel assisted as much as they thought was appropriate, and even requested a
sidebar conference to inform the court of the content of the defendant's
proposed statement and to encourage the court to permit the defendant to address
the court. See Fluitt v.
Superintendent, supra, 480 F. Sup. 86 (defense counsel "scrupulously
avoided doing or saying anything which might impede the petitioner's pro se
motion"). Furthermore, defense
counsel indicated that they had provided advice regarding the statement.
In these circumstances, we conclude that while defense counsel did not
join specifically in the defendant's motion, the defendant had sufficient
opportunity to advance his cause. See
id., 85 (despite defense counsel's failure to join in motion to withdraw,
defendant's grounds in support of motion adequately presented).
Accordingly, the trial court did not abuse its discretion in declining to
appoint new counsel to assist the defendant with his motion to withdraw his plea
of guilty. The defendant also claims a violation of Practice Book s 44-3, which
requires that the trial court question the defendant before accepting a waiver
of the right to counsel. See
footnote 48 of this opinion. As
explained previously, defense counsel made statements to the court regarding the
possible need for additional counsel. The
defendant now claims that he was not represented when he made his motion to
withdraw his guilty plea. The
transcript reveals that the defendant had not waived counsel in connection with
his motion, and had not declined the assistance of defense counsel who had
represented him at trial. Moreover,
that same defense counsel continued to assist the defendant subsequent to the
denial of the motion to withdraw. Accordingly, we conclude that the defendant
was represented at the time that the trial court imposed a sentence and,
therefore, the trial court was not required to undertake an inquiry pursuant to
s 44-3. See State v. Casado, supra,
42 Conn.App. 379-82. IV Under our capital offense sentencing scheme, a capital
defendant may not be sentenced to death unless the state establishes the
existence of an aggravating factor beyond a reasonable doubt, and the defendant
fails to establish a mitigating factor by a preponderance of the evidence.
General Statutes s 53a-46a (f). In
the present case, the jury rejected the aggravating factor of "especially
depraved," but did find as an aggravating factor that the defendant had
committed the offense of capital felony in an "especially cruel and heinous
manner." See General Statutes (Rev. to 1991) s 53a-46a (h)(4).
The jury's verdict also indicated that it had found no mitigating factor.
The defendant claims that the evidence adduced at trial did not support
the jury's finding of an aggravating factor.
We are constrained to agree. Consequently,
principles of double jeopardy require us to reverse the judgment imposing the
death penalty and to remand the case to the trial court with direction to impose
on the defendant a sentence of life imprisonment without the possibility of
release. State v. Daniels, 207
Conn. 374, 397-99, 542 A.2d 306, after remand for articulation, 209 Conn. 225,
550 A.2d 885 (1988), cert. denied, 489 U.S. 1069, 109 S.Ct. 1349, 103 L.Ed.2d
817 (1989). A In deciding whether the evidence adduced at trial failed to
support the jury's finding of an aggravating factor, we begin with a recitation
of the evidence supporting the jury's verdict.
In June, 1991, Bagshaw was a state trooper assigned to Troop K in
Colchester. His duties included
conducting security checks of commercial establishments located on his patrol
route. On June 5, 1991, Bagshaw was
assigned to patrol Windham and nearby towns.
Part of his patrol ran along Route 6. One of the businesses located on
that road in North Windham was the sporting goods store, Land and Sea, which
sold guns and ammunition, hunting and fishing supplies and boats and boating
equipment. Bagshaw commenced his patrol and reported to the barracks by radio
several times on routine matters. Shortly
before 3 a.m., he drove past the Land and Sea, heading east on Route 6, and his
last transmission, which pertained to an abandoned vehicle, was at 3:02 a.m. At
approximately 3:15 a.m., Richard Serwanski spotted Bagshaw's cruiser outside the
Land and Sea. Serwanski, who occasionally worked at the Land and Sea, summoned
its owner Steven Winick, who lived nearby. Joined ten minutes later by Winick, together the two men
approached Bagshaw's cruiser. They
found both the right rear passenger window and the driver's side window
shattered, the strobe lights flashing, the headlights and spotlight still on,
the gearshift still in drive, and the vehicle stationary, resting against a
boat. Bagshaw's body was in the front seat slumped over toward the passenger
side, his weapon still in his gunbelt. Serwanski
saw that Bagshaw had been shot and attempted to render medical assistance, but
despite his efforts and those of
additional police, fire and medical
personnel, Bagshaw was pronounced dead at the scene. Before closing and alarming
the store for the evening on June 4, 1991, Winick had locked up two large
pistols, a Wilkinson "Linda" and a Thompson "Contender,"
along with several rifles and shotguns. None
of the weapons was loaded. Subsequently,
it was discovered that the alarm and telephone wires, located on the outside of
the west wall of the shop, had been ripped out or cut, the cash register lay
empty on the floor, drawers and cabinets were open, and several knives were
missing from the display case. A
cable that Winick had run through the trigger guards of the rifles for security
purposes had been cut, and twenty-two firearms were missing.
Some long guns remained in the rack and others were piled nearby.
On the floor, there was an empty twenty-round box of Federal Hydra-Shok
hollow point ammunition. A boat had
been moved from a location in the yard nearby to under the octagonal window on
the shop's west wall. Numerous
items that had been removed from the store were found stockpiled near the boat.
Ballistic evidence revealed that the weapon used to kill Bagshaw was a Wilkinson
Linda, a semiautomatic nine millimeter pistol that has a magazine capacity of
thirty-one rounds, and a trigger pull of six and one-half to six and
three-quarters pounds. To operate
the weapon, cartridges are manually inserted into the magazine, and the magazine
is then inserted into the handgrip area of the pistol.
In order to "chamber" the first cartridge, the shooter must
pull back the bolt; thereafter, each squeeze of the trigger discharges a shot
and automatically chambers another cartridge.
The gun can be fired as quickly as one can pull the trigger, and with
each shot, a cartridge case is ejected from the gun. The fatal bullet recovered
from Bagshaw's body was identified as a copper jacketed, Federal Hydra-Shok
hollow point nine millimeter bullet, which had been fired from the Wilkinson
Linda. According to Wayne Carver,
chief state medical examiner, the bullet entered through the left arm hole of
Bagshaw's bulletproof vest. The
fatal bullet did not pass through Bagshaw's left arm. Because the bullet had
passed through either the metal door or the glass window of the cruiser before
striking the trooper, the bullet was deformed and the entry wound was
"atypical" and "asymmetrical" in that "the bullet was
not round when it hit the skin." Consequently, the fatal bullet did not
exhibit any mushrooming effect. [FN54] The bullet passed through Bagshaw's left
lung and heart, lodging in his right shoulder.
The cause of death was this single gunshot wound to the chest.
Additionally, a bullet fragment was recovered from Bagshaw's arm, and a
few minor abrasions on the back of the trooper's arm and two wounds on his
finger, caused probably by flying shrapnel or glass, were also discovered.
Carver explained that Bagshaw essentially had bled to death.
Most of the bleeding was internal, and the loss of blood was fairly
rapid. Carver testified that the wound was mortal "the instant
[the bullet] went through him" because the sequence that caused Bagshaw's
death was "irrevocably started," and there was no "medical
procedure that could have repaired this wound to his heart." According to
Carver, Bagshaw remained conscious for anywhere from five seconds to one and
one-half minutes after suffering the wound.
Because people's responses vary, Carver could not determine precisely how
long Bagshaw had remained conscious. He
testified that Bagshaw survived "anywhere from large hunks of minutes to
several minutes--and then the more minutes you tack on [while bleeding] the less
likely, as you get up to ten, fifteen, or so forth." Because Bagshaw's
brain showed no sign of swelling from lack of oxygen, which takes twenty to
twenty-five minutes to occur, Carver could state with certainty that the trooper
did not survive that long. There was extensive testimony regarding the crime
scene. As described previously, the
driver's side window of Bagshaw's cruiser was smashed, along with the right rear
passenger window. There were a
large number of bullet holes in the driver's door and front quarter panel, and a
bullet hole through the front windshield. There
were bullet fragments, inside the cruiser, and some fragments were embedded in
the driver's side door post and in the rear passenger door.
Three bullet fragments were found outside the cruiser: one on Route 6;
another across Route 6; and a third at the base of a boat located between Route
6 and the building. All of the
fragments were of Federal Hydra- Shok ammunition, or consistent therewith, and
all had been fired from, or were consistent with having been fired from, the
Wilkinson Linda pistol. In the
grass under the octagonal window on the west wall of the shop, in addition to
numerous weapons and other merchandise that had been removed during the course
of the burglary, investigators recovered seventeen nine millimeter shell casings
and two live rounds. Bagshaw's
weapon, which was still in its holster, contained one round in the chamber and
fifteen rounds in the clip. Based in part on bullet trajectories that had been
provided to him by the state police forensic laboratory, Robert Mantho, a state
trooper who specialized in traffic accident reconstruction, testified as to the
position and path of Bagshaw's cruiser during the time that the trooper was
under attack. Based upon Mantho's
testimony, the evidence supported the inference that Bagshaw's cruiser had
traveled in a straight path for approximately thirty to thirty-five feet before
coming to rest against the boat. According
to Mantho's measurements, the shooter was probably twenty-five to thirty feet
away from the cruiser when the shots were fired.
The cruiser was moving very slowly or was almost stopped when the first
bullet struck. It was also possible
that the cruiser was stationary when the firing began and then began to
accelerate, to one to three miles per hour, until it collided with the boat.
The cruiser traveled approximately ten feet between the first bullet
strike and the last. Mantho testified that, if the cruiser had traveled at the
rate of one mile per hour, the time between the first strike and the last was
about 6.6 seconds. Henry Lee, chief criminalist and director of the state
forensic laboratory, reconstructed the crime scene.
On the basis of Lee's testimony, the jury reasonably could have concluded
that seventeen bullets struck, passed through, or passed by Bagshaw's cruiser.
There were two bullet holes in the front windshield and twelve bullet
holes in the driver's side of the cruiser, either in the driver's door, the
front quarter panel or the column between the front and rear doors.
Additionally, two bullets went through the driver's window, one passing
through the cruiser and exiting the rear passenger side window. Although the
exterior metal portion of the driver's door contained seven bullet holes, there
were only two exit bullet holes on the interior side of the driver's door,
indicating that five bullets were imbedded inside the door. Bullets entering the
cruiser hit the organizer next to Bagshaw, the rear passenger door and the
steering wheel. The evidence also supported the inference that the cruiser was
in motion when the bullets hit it. The
seventeen bullets were fired in two separate sequences.
The first group was discharged at an angle of approximately thirty to
forty degrees in relation to the cruiser, and the final group of nine shots was
"a direct hit at ninety degrees" near the center of the driver's side
door. The first shot missed the
cruiser completely, hitting a boat instead. The second and third shots hit the
windshield. The fatal shot was
fired as part of the second group and went through the driver's window before
hitting Bagshaw. Relying on
bloodstains, fingerprints and shoe prints on the boat as well as other evidence,
Lee testified that the burglary had been committed by two
persons, one who wore Nike sneakers and
a second who wore Reebok sneakers. There was ample evidence linking the
defendant to the crime. On June 7,
1991, the police searched the basement area of a house where the defendant
resided. The house was located a few hundred yards from the Land and Sea. The
police seized, among other items, ammunition clips, knives, two duffle bags, a
rifle, a shotgun, and a pair of Reebok sneakers.
One of the duffle bags contained a box of twenty rounds of Federal Hydra-Shok
nine millimeter ammunition and the Wilkinson Linda that had been stolen from the
Land and Sea and was used to shoot Bagshaw. On June 5, 1991, at 3:45 a.m., Scott
Ilewicz, a friend of the defendant, received a telephone call from the defendant
asking to meet him because he needed to dispose of some weapons.
Ilewicz drove to the designated rendezvous spot where the defendant gave
him numerous guns that, based upon their tags, Ilewicz assumed had been stolen.
He turned the weapons over to the police after he learned of Bagshaw's
death. Also on June 5, 1991, the defendant told a close friend that he had
killed a policeman during the course of a burglary of a gun shop.
He admitted that, after cutting the alarm wires at the shop, and after
removing the weapons, he looked around a corner of the shop and saw a trooper
with his lights on. The defendant
said he had an Uzi with a forty round clip, which he thought was an automatic.
He pulled the trigger but only one shot discharged.
He heard the officer say "Oh, my God," and he continued to fire
upon the car. The defendant
confessed to others as well. He
told Marjorie Shanaberger, the mother of his daughter, that he shot Bagshaw
because, had he not, the officer would have shot him.
He cried throughout most of this conversation and told her that he shot
Bagshaw twenty-eight times because he was scared. While he was at the Hartford
correctional center, the defendant boasted to Brian Parisella, another inmate,
that he had shot Bagshaw and that the trooper had gotten what he deserved.
The defendant further stated that he had shot Bagshaw during the course
of the burglary because he did not want to get caught and that if he was going
to get in trouble, it was going to be for something big.
The defendant told another inmate that, while he was stealing from the
gun store, he emptied a clip from an Uzi into an officer's cruiser.
He also told a correctional officer, Robert Wolstencroft, [FN55] that he
had chosen the Land and Sea because he had broken into it before and knew it had
easy access. The defendant also said he knew how to get around the alarm system
and was able to render it inoperative. During
the course of the burglary of the Land and Sea, Bagshaw drove up the driveway
and raised his left arm as the defendant began shooting.
Using the nine millimeter semiautomatic pistol, the defendant continued
to fire it until he ran out of ammunition.
According to Wolstencroft, the defendant acted proud and very sure of
himself when relating this information. Specifically,
the defendant told him that he did not regret shooting Bagshaw and that he would
do it again. The jury also heard evidence from which it reasonably could have
concluded that the defendant had burglarized the Land and Sea in October, 1990,
that he had completed basic training with the National Guard in 1989, that he
had qualified as a sharpshooter on the M-16 rifle in March, 1991, and that at
the end of his National Guard service he had qualified as an expert shooter.
[FN56] Finally, there was extensive evidence that the defendant was hostile to
police, as evidenced by a verbal encounter he had had with Steven Fields, a
state trooper, on June 5, 1991, and a conversation he had had with Melanie
Bratavich, a woman with whom he had had a brief romance, during which he had
related that he hated police officers and that he would kill one if given the
chance. Additional facts will be
discussed where relevant. B In reviewing a claim that "the evidence fail[ed]
to support the finding of an aggravating factor specified in subsection (h) of
section s 53a-46a"; General Statutes (Rev. to 1991) s 53a-46b (b)(2); we
subject that finding "to the same independent and scrupulous examination of
the entire record that we employ in our review of constitutional fact-finding,
such as the voluntariness of a confession; State v. Medina, 228 Conn. 281, 294,
636 A.2d 351 (1994); State v. Smith, 200 Conn. 465, 478, 512 A.2d 189 (1986); or
the seizure of a defendant. State
v. Greenfield, 228 Conn. 62, 68-69, 634 A.2d 879 (1993); State v. Northrop, 213
Conn. 405, 414, 568 A.2d 439 (1990)." State v. Ross, 230 Conn. 183, 259,
646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d
1095 (1995). However, "[e]ven
with the heightened appellate scrutiny appropriate for a death penalty case, the
defendant's challenge to the sufficiency of the evidence of aggravating
circumstances must be reviewed, in the final analysis, by considering the
evidence presented at the defendant's penalty hearing in the light most
favorable to sustaining the facts impliedly found by the jury." Id., 264.
Furthermore, "[i]n viewing evidence which could yield contrary inferences,
the jury is not barred from drawing those inferences consistent with [the
existence of the aggravating factor] and is not required to draw only those
inferences consistent with [its nonexistence].
The rule is that the jury's function is to draw whatever inferences from
the evidence or facts established by the evidence it deems to be reasonable and
logical." (Internal quotation marks omitted.) State v. Francis, 228 Conn.
118, 127, 635 A.2d 762 (1993); see also State v. Sivri, 231 Conn. 115, 132-33,
646 A.2d 169 (1994). Moreover, in reviewing a claim under s 53a-46b (b)(2) that
the evidence failed to support the finding of an aggravating factor specified in
subsection (h)(4) of s 53a-46a, we recognize that a person of ordinary
sensibility fairly could characterize almost every murder as vile and horrible.
Our role, however, is to "differentiate among murders on the basis
of their respective brutality, winnowing case by case those which are merely
heinous, atrocious or cruel, from those which the jury could find are especially
so. It is a grisly duty." State v. Stanley, 310 N.C. 332,
337, 312 S.E.2d 393 (1984). C Before we review the evidence adduced by the
state, we again define the standard by which it is to be measured.
As we acknowledged in State v. Breton, 212 Conn. 258, 265, 562 A.2d 1060
(1989), the phrase "in an especially heinous, cruel or depraved
manner" from s 53a-46a (h)(4) contains an arguably subjective standard that
runs the risk of being unconstitutionally vague.
Therefore, to avoid constitutional jeopardy for this aggravating factor,
we adopted a limiting construction of that statutory language. Focusing on the
meaning of "especially cruel," we concluded that an acceptable core
construction of this term "must include the intentional infliction of
extreme pain or torture above and beyond that necessarily accompanying the
underlying killing." State v. Breton, supra, 270. The Breton decision did
not address, however, two additional issues concerning the proper construction
of s 53a-46a (h)(4): (1) whether the "extreme pain or torture" that is
at the core of "especially cruel" includes the infliction of
psychological anguish as well as physical pain; and (2) whether s 53a-46a (h)(4)
envisages three separate aggravating factors, so that an independent core
meaning must be assigned to "depraved" and "heinous," or
whether these terms are to be read conjointly with "cruel" to describe
single aggravating factor. Thereafter,
in State v. Ross, supra, 230 Conn. 260, we answered the first question
affirmatively, concluding that "[a] defendant cannot intentionally engage
in conduct that inflicts extreme psychological trauma and then claim that his
victims' mental distress was unintended or unforeseeable." This court in
Ross also concluded that s 53a-46a (h)(4) does not set forth three separate
aggravating factors, but instead describes a "unitary aggravating
factor." Id., 261. We
concluded that, in reviewing the sufficiency of the evidence to support the
jury's finding of an aggravating factor under s 53a- 46a (h)(4), the focus must
be on whether the state has proved, beyond a reasonable doubt, that the
defendant engaged in intentional conduct that inflicted extreme physical or
psychological pain or torture on the victim above and beyond that necessarily
accompanying the underlying killing, [FN57] and that the defendant specifically
intended to inflict such extreme pain and torture. [FN58] Thereafter, in State
v. Cobb, 251 Conn. 285, 445, 743 A.2d 1 (1999), we held that reading Breton and
Ross together, "they hold that, with respect to the requisite state of mind
and consequences thereof, either of the following will suffice for the
aggravating factor in question: (1) the defendant intended to, and in fact did,
inflict extreme physical or psychological pain, suffering or torture on the
victim; or (2) the defendant was callous or indifferent to the extreme physical
or psychological pain, suffering or torture that his intentional conduct in fact
inflicted on the victim." [FN59] "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." State v. Ross, supra,
262. [FN60] D Finally, before we determine whether the evidence in this case was
sufficient to satisfy this burden, brief comment on the death penalty scheme
established by the legislature is warranted.
As distinct from those jurisdictions where the murder of a law
enforcement officer is, in itself, a statutorily enumerated aggravating
circumstance, [FN61] our legislature has enacted "a three-tiered pyramid,
in which each tier narrows the class of defendants that may be found eligible
for the death penalty." Id., 236-37. The
victim's status as an on-duty police officer qualifies his homicide as a capital
felony, separate from other homicides, but does not satisfy the requirement that
the state prove "the existence of at least one statutorily delineated
aggravating factor." Id., 237. [FN62] The victim's status as an on-duty
officer at the time of the killing is, as a matter of law, insufficient to
establish the aggravating circumstance. See
Brown v. State, 526 So.2d 903, 906-907 (Fla.), cert. denied, 488 U.S. 944, 109
S.Ct. 371, 102 L.Ed.2d 361 (1988). That is not to say that, although all murders
are repugnant and shock the conscience, the murder of a police officer in the
performance of his duties is not particularly offensive.
We agree that it is. That
agreement, however, cannot displace our duty to determine whether the manner in
which the murder was committed meets the aggravating factor defined by the
capital felony death penalty statutory scheme. E The defendant fired seventeen
hollow point bullets at Trooper Bagshaw in a period of 6.6 seconds.
Based on the forensic evidence, it was determined that the fatal shot was
fired in the final nine shots. Bagshaw
remained conscious for five to ninety seconds after sustaining the fatal bullet
wound, during which time he experienced the physical pain associated with the
injury and the psychological pain associated with the knowledge that he had been
shot. Although, fortunately, he was conscious only briefly, he lived anywhere
from one to fifteen minutes. The state theorized that the homicide was
especially cruel in that Bagshaw suffered extreme pain in addition to the pain
caused by the fatal shot. According to the state, this extreme pain was
evidenced in two forms. First, that
Bagshaw uttered "Oh, my God," and lived long enough to turn on the
switch to activate the strobe light indicated that he suffered mental pain and
anguish during the short period of time in which he remained conscious. Second, the state claims that he suffered pain caused by the
shrapnel in his arm that was over and above the pain associated with the fatal
shot. [FN63] In support of its assertion that the killing was especially
heinous, the state noted the senselessness of the crime, the helplessness of the
victim and the satisfaction, after the fact, that the defendant seemed to take
in the homicide. [FN64] The defendant contends that the state failed to sustain
its burden. The requisite physical
or psychological pain above and beyond that necessarily accompanying the
underlying killing must be extreme. State
v. Ross, supra, 230 Conn. 260-61; State v. Breton, supra, 212 Conn. 270.
" '[T]he term "extreme" refers to the greatest degree of
intensity away from the norm for that individual.' " State v. Crespo, 246
Conn. 665, 681, 718 A.2d 925 (1998), cert. denied, 525 U.S. 1125, 119 S.Ct. 911,
142 L.Ed.2d 909 (1999). "Extreme"
has also been defined as "[b]eing in or attaining the greatest or highest
degree ... extending far beyond the norm ... [o]f the greatest
severity...." American Heritage Dictionary (2d College Ed.1992). In this
case, the absence of "extreme pain or torture above and beyond that
necessarily accompanying the killing"; State v. Breton, supra, 212 Conn.
270; is attributable both to the instrument of death and the rapidity with which
unconsciousness and death ensued. Although
the s 53a-46a (h)(4) aggravating factor can be satisfied in a case in which
death has been inflicted by a gunshot wound, in order to establish the cruelty
there must be something more about the killing than the pain associated with the
death resulting from the gunshot. For
example, in James v. State, 695 So.2d 1229, 1235 (Fla.), cert. denied, 522 U.S.
1000, 118 S.Ct. 569, 139 L.Ed.2d 409 (1997), the Florida Supreme Court noted
that the "fear, emotional strain, and terror of the victim during the
events leading up to the murder may make an otherwise quick death especially
heinous, atrocious, or cruel." [FN65] To qualify for the imposition of the
death penalty, a murder by shooting must be distinguished somehow from the
"norm" of murders. Lewis v. State, 398 So.2d 432, 438 (Fla.1981)
(multiple rifle and shotgun wounds through window not "conscienceless or
pitiless crime which is unnecessarily torturous to the [murder] victim").
Our "heinous, atrocious or cruel" aggravator should
"[refer] to the few capital killings that are in an objectively measurable
way more horrible and more noxious to civic sensibilities than the run of such
crimes." Hansen v. State, 592 So.2d 114, 151-52 (Miss.1991), cert. denied,
504 U.S. 921, 112 S.Ct. 1970, 118 L.Ed.2d 570 (1992). Given the manner in which
Bagshaw was murdered and the speed with which he died, as reprehensible as the
attack was, there is no principled way to distinguish this case from the
"ordinary" gunshot death or to differentiate it from the norm of
capital felonies. See Kearse v. State, 662 So.2d 677, 686 (Fla.1995) (where
defendant grabbed police officer's weapon and fired nine shots into officer's
body and four shots into his bulletproof vest, killing did not satisfy heinous,
atrocious or cruel aggravating circumstances); Reaves v. State, 639 So.2d 1, 6
(Fla.), cert. denied, 513 U.S. 990, 115 S.Ct. 488, 130 L.Ed.2d 400 (1994) (where
defendant fired seven shots at deputy
sheriff, striking him with four, crime was not heinous, atrocious or cruel);
Robertson v. State, 611 So.2d 1228, 1233 (Fla.1993) (where woman was shot
several times during robbery, murder not heinous, atrocious or cruel); McKinney
v. State, 579 So.2d 80, 84 (Fla.1991) (although victim shot seven times,
"murder is not heinous, atrocious or cruel without additional facts to
raise the shooting to the shocking level"); Raulerson v. State, 420 So.2d
567, 571-72 (Fla.1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3572, 77 L.Ed.2d
1412 (1983) (killing not heinous, atrocious or cruel where during robbery,
defendant shot officer in chest and after officer cried out that he was hurt,
defendant fired five more shots, shooting officer in heart, killing him);
Fleming v. State, 374 So.2d 954, 959 (Fla.1979) (where police officer killed by
single shot, during struggle, crime not heinous, atrocious or cruel); State v.
Biegenwald, 106 N.J. 13, 51, 524 A.2d 130 (1987) (where victim shot four times
in skull, insufficient evidence that murder accompanied by either aggravated
battery or torture as required by New Jersey statute).
As in many of the aforementioned cases, the pain caused by the one bullet
that penetrated Bagshaw's vital organs, killing him within moments, necessarily
accompanied the underlying killing. Indeed, as many courts have determined,
"[o]rdinarily, an instantaneous or near-instantaneous death by gunfire does
not satisfy the aggravating circumstance of heinous, atrocious or cruel."
Robinson v. State, 574 So.2d 108, 112 (Fla.), cert. denied, 502 U.S. 841, 112
S.Ct. 131, 116 L.Ed.2d 99 (1991); see State v. Graham, 135 Ariz. 209, 210, 660
P.2d 460 (1983) (murder not committed in especially cruel, heinous or depraved
manner where defendant "fired twice in rapid succession through"
closed screen door, hitting victim "once in the head and once in the
chest"; victim "rendered unconscious immediately, died within five
minutes and did not suffer"); Kearse v. State, supra, 662 So.2d 686
(gunshot killing not heinous, atrocious or cruel where police officer victim
"could have remained conscious for short time or rapidly gone into
shock"); Burns v. State, 609 So.2d 600, 606 (Fla.1992) (murder not
especially heinous, atrocious or cruel where, during struggle with highway
patrol trooper, motorist got hold of trooper's revolver, stood over trooper and
fired one fatal shot; "the wound would have caused rapid unconsciousness
followed within a few minutes by death"); Richardson v. State, 604 So.2d
1107, 1109 (Fla.1992) (killing not heinous, atrocious or cruel where victim
"was shot suddenly in the heart, lost consciousness, and died within
moments"); Rivera v. State, 545 So.2d 864, 866 (Fla.1989) (murder not
especially heinous, atrocious or cruel where defendant fired five shots at
police officer, hitting him once in arm and twice in chest; "all three
shots were fired within approximately sixteen seconds of each other," and
officer "did linger for a few moments after the fatal shots were
fired"); State v. Moore, 432 So.2d 209, 212(La.), cert. denied, 464 U.S.
986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983) (where victim "died almost
instantly from a single gunshot wound [to the chest]," state failed to
prove aggravating circumstance of "especially heinous, atrocious or cruel
manner"); State v. Stewart, 197 Neb. 497, 523, 250 N.W.2d 849 (1977)
(killing not especially heinous, atrocious or cruel, where "death was
instantaneous, by reason of a gun shot wound to [victim's] head"); State v.
Stanley, 310 N.C. 332, 340, 312 S.E.2d 393 (1984) (murder not especially
heinous, atrocious or cruel where defendant fired nine shots at victim, all in
rapid succession, and lethal wound to victim's aorta "rendered her
unconscious within minutes"). [FN66] In the present case, there was
"no evidence that [the defendant] had a quicker or less painful method
available to him" that would have caused Bagshaw's death any faster or less
painfully. See State v. Tuttle, 780
P.2d 1203, 1218-19 (Utah 1989), cert. denied, 494 U.S 1018, 110 S.Ct. 1323, 108
L.Ed.2d 498 (1990). Although there are cases in which a near instantaneous death
by gunfire could satisfy the s 53a-46a (h)(4) factor, typically such cases have
involved extreme fear, emotional strain and terror during the events leading up
to the murder. See, e.g., Henyard
v. State, 689 So.2d 239, 254 (Fla.1996), cert. denied, 522 U.S. 846, 118 S.Ct.
130, 139 L.Ed.2d 80 (1997) (defendant's abduction of mother and her three and
seven year old daughters, rape and shooting of mother, followed by execution of
girls, sufficiently terrifying to children to constitute cruel, heinous and
atrocious aggravating factor). Fortunately, this case was not accompanied by
such cruelty. Six seconds of being
the target of the defendant's fusillade and up to ninety seconds of
consciousness following being struck by one bullet do not suffice to meet the
heinous, atrocious or cruel aggravating factor.
Short of an instantaneous death, which, according to Carver, is quite
rare, occurring only when there is a direct injury to the brain stem or
sufficient trauma to the brain cavity, virtually any gunshot wound will involve
some pain. The issue, in this case,
is whether there existed the requisite extreme pain or torture above and beyond
that necessarily accompanying the underlying killing.
We conclude that it did not exist. The state also points to the shrapnel
arm wound to support the finding of the s 53a-46a (h)(4) factor.
As the aforementioned cases further demonstrate, however, the fact that
the victim sustained more than one wound does not, by itself, establish an
aggravating factor. See Shere v.
State, 579 So.2d 86, 96 (Fla.1991) (that defendant fired multiple gunshots
insufficient to support finding of cruel, heinous or atrocious); McKinney v.
State, supra, 579 So.2d 84 (although victim was shot multiple times, murder is
not heinous, atrocious or cruel without additional facts to raise shooting to
shocking level required by this factor). This
is particularly so when each shot was fired in a manner to kill; Cannady v.
State, 620 So.2d 165, 169 (Fla.1993); and the elapsed time between the shots was
temporally insignificant. See Brown
v. State, 526 So.2d 903, 907 (Fla.), cert. denied, 484 U.S. 944, 109 S.Ct. 371,
102 L.Ed.2d 361 (1988) (where "fatal [head] shots came almost immediately
after the initial shot to the [officer's] arm," crime was not especially
heinous, atrocious or cruel); Commonwealth v. Brode, 523 Pa. 20, 29, 564 A.2d
1254 (1989) (although defendant first shot his wife in abdomen and elbow, then
reloaded and fired fatal shots to her chest, there was no evidence supporting
state's theory that defendant "might have allowed time to elapse between
shots so that victim might suffer"). Moreover, with regard to Bagshaw's
victim's shrapnel arm wound, the evidence does not demonstrate whether that
wound preceded or followed the fatal chest wound, and thus it is uncertain
whether Bagshaw was even conscious when that wound was inflicted.
Consequently, this nonfatal wound could not support the aggravating
factor in issue. See State v. Cobb,
supra, 251 Conn. 446-50; see also State v. Jiminez, 165 Ariz. 444, 453, 799 P.2d
785 (1990) ("[t]o support a finding of cruelty, the state must prove beyond
a reasonable doubt that the victim was conscious and suffered pain or distress
at the time of the offense"); Perry v. Oklahoma, 893 P.2d 521, 534
(Okla.Crim.App.1995) (in prosecution under especially heinous, atrocious or
cruel aggravating circumstance, "[i]t is ... critical that the State prove
that the victim consciously suffered before death").
Finally, even assuming that Bagshaw was conscious when he sustained the
arm wound, there was no evidence that the wound would have caused the extreme
pain required for the finding of the aggravating factor.
In fact, the state implicitly acknowledged the absence of such extreme
pain in its closing argument. [FN67] To the extent that the state relies on
extreme psychological pain, we also disagree that the evidence was sufficient to
the s 53a-46a (h)(4) factor. The state theorizes that Bagshaw's last utterance, namely,
"Oh, my God," and his last act of activating his cruiser's lights,
prove that he was suffering mental pain and anguish from the first moment of
gunfire until he lost consciousness. Although Bagshaw's last words certainly
evoke great sympathy, such words do not demonstrate extreme psychological pain
above and beyond that necessarily accompanying any killing that is not
absolutely instantaneous. Moreover,
the ability to activate the lights merely demonstrates that the trooper was
conscious. Even if these combined
factors show an awareness of his situation, we cannot conclude that "the
mere apprehension of death, immediately before [or after] the fatal wounds are
inflicted, amounts to serious psychological abuse prior to death." Phillips
v. State, 250 Ga. 336, 341, 297 S.E.2d 217 (1982). In Phillips, the defendant
approached his estranged wife at her place of employment.
When she saw that he was carrying a rifle, "she screamed 'Oh, no!'
before [the defendant] fired [five] times in rapid succession"; she was hit
by four of the shots, and "lived at least [five] minutes from the onset of
the injuries." Id., 339-40. The
court rejected the state's claim that, because the victim had "suffered
pain and anticipated the prospect of death, she suffered serious physical and
psychological abuse before death." Id., 340; see also Clark v. State, 609
So.2d 513, 514 (Fla.1992) (where "fatal shot came almost immediately after
the initial shot to the chest," and "there [was] no indication that
the crime was committed in such a manner as to cause unnecessary and prolonged
suffering to the victim," insufficient proof that victim was aware of
impending death so as to satisfy aggravating factor); Shere v. State, supra, 579
So.2d 96 ("there was no prolonged apprehension of death," and no
"prolonged suffering," where, without warning, victim's hunting
companions fired "a rapid succession of gunshots at [the victim] from close
range with two weapons"). We conclude that there is no evidence that the
defendant in the present case inflicted mental suffering upon Bagshaw
"beyond that ordinarily suffered by anyone who is shot to death."
State v. Stanley, supra, 312 S.E.2d 398. Finally, the state claims that the
homicide was especially heinous because it was senseless, [FN68] the victim was
helpless and the defendant later expressed satisfaction in his accomplishment.
These factors do no more than prove the defendant's intent to kill,
something he had already admitted as part of his guilty plea.
We have carefully considered all of the evidence supporting the jury's
determination that the aggravating factors defined by s 53a-46a (h)(4) were
proven. We are constrained to
conclude, however, that the evidence was insufficient to meet the state's burden
of proof. V The defendant also claims that the trial court deprived him of a
fair determination of probable cause in violation of article first, s 8, of the
constitution of Connecticut, and General Statutes s 54-46a.
He further contends that he was deprived of the right to due process of
law, the right of confrontation and the right to the assistance of counsel in
violation of the fifth, sixth and fourteenth amendments to the constitution of
the United States, and article first, ss 8 and 9, of the constitution of
Connecticut. Specifically, the
defendant asserts that the trial court deprived him of a fair determination of
probable cause because: (1) Judge Potter improperly presided over the probable
cause hearing after issuing the defendant's arrest warrant; and (2) the trial
court refused to sever the defendant's probable cause hearing from that of his
brother, Duane Johnson. The following additional facts are pertinent to this
claim. The defendant's probable
cause hearing commenced on September 23, 1991, before Judge Potter, the same
judge who had issued the defendant's arrest warrant.
The defendant did not raise the issue of Judge Potter's disqualification.
The probable cause hearing was held jointly with that of the defendant's
brother, Duane, who was also charged with capital felony. [FN69] On or about
June 6, 1991, Duane had given the police an eight page statement detailing the
events of June 5, 1991, and identifying the defendant as the shooter.
Duane's statement was summarized in one paragraph of the affidavit that
had been offered in support of the arrest warrant application for the defendant.
Before the probable cause hearing had commenced, anticipating that the
state would introduce Duane's statement, the defendant moved to sever their two
cases. Based on State v. John, 210
Conn. 652, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50
(1989), the state argued that severance was not necessary and that it intended
to ask the court to consider Duane's statement against him only, and not against
the defendant. The trial court
denied the defendant's motion. At the hearing, the state offered Duane's
statement, and over the defendant's objection, the court admitted the statement
only as to Duane. The court made a
similar ruling with regard to another exhibit--a one page document containing
additional information obtained from Duane on June 6, 1991.
In concluding that the state had established probable cause to hold the
defendant for felony murder and capital felony, the court specifically addressed
the issue of Duane's statement. "The
court reiterates its earlier statement regarding the admission of the statements
of ... Duane Johnson. The court has
not considered any portion of these statements as they may apply to the
defendant, Terry Johnson, in its decision [of] whether probable cause exists as
to the aforesaid three charges against him--murder and felony murder in the
first count and capital felony in the second count." On December 10, 1992,
the defendant pleaded guilty to the crimes of murder in violation of ss 53a-54b
(1), 53a-54a (a) and (c), and 53a-54c, and burglary in the first degree in
violation of s 53a-101 (a)(1) and (2). The
state claims that because the defendant's claims are nonjurisdictional in
nature, he waived his right to raise them when he pleaded guilty.
We agree. It is well established that an unconditional plea of guilty,
made intelligently and voluntarily, operates as a waiver of all
nonjurisdictional defects and bars the later assertion of constitutional
challenges to pretrial proceedings. Tollett
v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). In general, the only allowable challenges after a plea are
those relating either to the voluntary and intelligent nature of the plea or the
exercise of the trial court's jurisdiction.
Id.; State v. Niblack, 220 Conn. 270, 276-77, 596 A.2d 407 (1991).
In this case, the defendant's challenges to the finding of probable cause
were waived, because neither of these claims is relevant to the validity of his
pleas, nor do they challenge the trial court's subject matter jurisdiction. VI
The vile nature of the crime committed by the defendant in this case cannot be
overstated, either from the standpoint of Bagshaw's family, friends and
colleagues or from the perspective of the community at large.
When a peace officer is murdered in the course of his or her duties, the
community rightly demands that the perpetrator of that atrocious deed be dealt
with in the most severe terms permitted by law.
It therefore is understandable that our statutory scheme defines the
murder of a police officer as a capital felony, which carries, at a minimum, a
sentence of life imprisonment without the possibility of release.
That same statutory scheme, however,
authorizes a sentence of death only when the state has proven beyond a
reasonable doubt one of the statutorily defined aggravating circumstances,
which, in this case, was alleged to be that the murder was committed in an
especially cruel, heinous and depraved manner.
As judges, it is our sworn responsibility to apply the law in an
objective, reasoned and dispassionate manner.
We bear this responsibility equally in all cases, whoever the parties and
however unpopular the result. Thus,
we are obligated to determine whether there was sufficient evidence that the
defendant in fact caused the victim extreme pain and torture above and beyond
that necessary to cause his death. In this case, there was not sufficient
evidence to support those facts. Therefore,
the discharge of our judicial duty in this case compels the conclusion that,
under our law, the sentence of death imposed on the defendant cannot stand. The
judgment is reversed with respect to the imposition of the sentence of death and
the case is remanded to the trial court with direction, pursuant to s 53a-46a
(g), to impose a sentence of life imprisonment without the possibility of
release; the judgment is affirmed in all other respects. In this opinion BORDEN,
PALMER and CALLAHAN, Js., concurred.
FN6. General Statutes (Rev. to 1991) s
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 he governed by the rules governing the admission
of evidence in such trials. The
state and the defendant shall be permitted to rebut any information received at
the hearing and shall be given fair opportunity to present argument as to the
adequacy of the information to establish the existence of any mitigating or
aggravating factor. The burden of
establishing any of the factors set forth in subsection (h) shall be on the
state. The burden of establishing
any mitigating factor shall be on the defendant. "(d) In determining
whether a mitigating factor exists concerning the defendant's character,
background or history, or the nature and circumstances of the crime, pursuant to
subsection (b) of this section, the jury ... shall first determine whether a
particular factor concerning the defendant's character, background or history,
or the nature and circumstances of the crime, has been established by the
evidence, and shall determine further whether that factor is mitigating in
nature, considering all the facts and circumstances of the case.
Mitigating factors are such as do not constitute a defense or excuse for
the capital felony of which the defendant has been convicted, but which, in
fairness and mercy, may be considered as tending either to extenuate or reduce
the degree of his culpability or blame for the offense or to otherwise
constitute a basis for a sentence less than death. "(e) The jury ... shall
return a special verdict setting forth its findings as to the existence of any
aggravating or mitigating factor. "(f) If the jury ... finds that one or
more of the factors set forth in subsection (h) exist and that no mitigating
factor exists, the court shall sentence the defendant to death.
If the jury ... finds that none of the factors set forth in subsection
(h) exists or that one or more mitigating factors exist, the court shall impose
a sentence of life imprisonment without the possibility of release. "(g)
The court shall not impose the sentence of death on the defendant if the jury
... finds by a special verdict, as provided in subsection (e), that any
mitigating factor exists. The mitigating factors to be considered 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...." The legislature
repealed s 53a-46a and replaced it with a new death penalty statute, effective
October 1, 1995, pursuant to Public Acts 1995, No. 95-19, s 1. Unless otherwise
indicated, all references hereinafter to our death penalty statute are to the
1991 revision of s 53a-46a, the revision in effect at the time of the commission
of the offenses here.
FN7. General Statutes s 51-199
provides: "Jurisdiction. (a) The Supreme Court shall have final and
conclusive jurisdiction of
all matters brought before it according
to law, and may carry into execution all its judgments and decrees and institute
rules of practice and procedure as to matters before it. "(b) The following
matters shall be taken directly to the Supreme Court: (1) Any matter brought
pursuant to the original jurisdiction of the Supreme Court under section 2 of
article sixteen of the amendments to the Constitution; (2) an appeal in any
matter where the Superior Court declares invalid a state statute or a provision
of the state Constitution; (3) an appeal in any criminal action involving a
conviction for a capital felony, class A felony, or other felony, including any
persistent offender status, for which the maximum sentence which may be imposed
exceeds twenty years; (4) review of a sentence of death pursuant to section
53a-46b; (5) any election or primary dispute brought to the Supreme Court
pursuant to section 9-323 or section 9-325; (6) an appeal of any reprimand or
censure of a probate judge, pursuant to section 45a-65; (7) any matter regarding
judicial removal or suspension pursuant to section 51-51j; (8) an appeal of any
decision of the Judicial Review Council pursuant to section 51-51r; (9) any
matter brought to the Supreme Court pursuant to section 52-265a; (10) writs of
error, pursuant to section 52- 272; and (11) any other matter as provided by
law. "(c) The Supreme Court may transfer to itself a cause in the Appellate
Court. Except for any matter
brought pursuant to its original jurisdiction under section 2 of article sixteen
of the amendments to the Constitution, the Supreme Court may transfer a cause or
class of causes from itself, including any cause or class of causes pending on
July 1, 1983, to the Appellate Court. The
court to which a cause is transferred has jurisdiction." General Statutes
(Rev. to 1991) s 53a-46b provides: "Review of death sentence. (a) Any
sentence of death imposed in accordance with the provisions of section 53a-46a
shall be reviewed by the supreme court pursuant to its rules.
In addition to its authority to correct errors at trial, the supreme
court shall either affirm the sentence of death or vacate said sentence and
remand for imposition of a sentence in accordance with subdivision (1) of
section 53a-35a. "(b) The supreme court shall affirm the sentence of death
unless it determines that: (1) The sentence was the product of passion,
prejudice or any other arbitrary factor; (2) the evidence fails to support the
finding of an aggravating factor specified in subsection (h) of section 53a-
46a; or (3) the sentence is excessive or disproportionate to the penalty imposed
in similar cases, considering both the circumstances of the crime and the
character and record of the defendant. "(c) The sentence review shall be in
addition to direct appeal and if taken, the review and appeal shall be
consolidated for consideration. The court shall then render its decision on the legal errors
claimed and the validity of the sentence." Unless otherwise indicated,
references hereinafter to s 53a-46b are to the 1991 revision.
FN8. The issues that we do not need to
decide are essentially as follows: (1) Did the special verdict form on
mitigating factors and the trial court's instructions allow the jury to return a
verdict finding that the defendant failed to prove the existence of a mitigating
factor without unanimously rejecting each mitigating factor claimed by the
defense? (2) Did the trial court properly instruct the jury regarding the s 53a-
46a (h)(4) aggravating factor? (3) Did the trial court properly admit evidence
relating to the underlying burglary and the defendant's background and history?
(4) Did the trial court properly deny the defendant's motion to suppress certain
statements made by the defendant to a correction officer? (5) Did the trial
court improperly allow the state to include within its allegation of capital
felony the alternative allegation that this crime was committed by the felony
murder of a police officer, in addition to the predicate felony of intentional
murder? (6) Did the trial court properly instruct the jury that it could find
the existence of an aggravating factor based upon a theory that was neither
argued by the state nor supported by the evidence? (7) Did the trial court
properly instruct the jury on its role as sentencer? (8) Did the trial court
properly decline to instruct the jury that it could find the existence of a
mitigating factor if it determined that death was not the appropriate sentence?
(9) Did the trial court properly instruct the jury that it could consider the
defendant's guilty plea as a mitigating factor if it determined that the plea
was motivated by "rehabilitation or sorrow"? (10) Did the trial
court's instructions adequately distinguish between statutory and nonstatutory
mitigating factors? (11) Did the trial court's instructions properly require the
defendant to prove not only the factual basis of his claimed nonstatutory
mitigating factors, but also that they were mitigating in nature? (12) Did the
trial court properly decline to provide the jury with a special verdict form
that required the jury to indicate, for each claimed nonstatutory mitigating
factor, first, whether any of the jurors found the factual basis of the factor
and, second, whether those jurors who found the factor to be proven factually
also found the factor to be mitigating in nature? (13) Did the trial court
properly instruct the jury on the meaning of the alternative sentence of life
imprisonment without the possibility of release? (14) Did the trial court's
instructions to the jury regarding the nonstatutory mitigating factors
adequately explain the meaning and importance of the "any other," or
catchall, mitigating factor? (15) Did the trial court properly decline to
instruct the jury to consider the cumulative impact of all the mitigating
evidence presented before rendering a verdict on mitigation? (16) Did the trial
court properly decline to instruct the jury that it could consider mercy itself
as a mitigating factor? (17) Did the trial court properly limit the defendant's
cross-examination of the state's rebuttal witnesses? (18) Was sufficient
evidence presented to establish the existence of a mitigating factor? (19) Did
the trial court properly deny the defendant's motion for a change of venue in
the absence of an evidentiary hearing? (20) Did the trial court properly deny
the defendant's motion for a new penalty phase hearing without holding an
evidentiary hearing or otherwise investigating the defendant's claims, based on
posttrial statements of two jurors? (21) Pursuant to this court's mandatory
death sentence review under s 53a- 46b, should the defendant's death sentence be
affirmed where he claims that the sentence was the product of passion, prejudice
and other arbitrary factors? (22) Is Connecticut's death penalty statute
FN9. General Statutes (Rev. to 1991) s
54-56d provides in relevant part: "Competency to stand trial. (a)
Competency required. Definition.
A defendant shall not be tried, convicted or sentenced while he is not
competent. For the purposes of this
section, a defendant is not competent if he is unable to understand the
proceedings against him or to assist in his own defense. "(b) Presumption
of competency. A defendant is
presumed to be competent. The burden of proving that the defendant is not
competent by clear and convincing evidence and the burden of going forward with
the evidence are on the party raising the issue.
The burden of going forward with the evidence shall be on the state if
the court raises the issue. The
court may call its own witnesses and conduct its own inquiry. "(c) Request
for examination. If at any time
during a criminal proceeding it appears that the defendant is not competent,
counsel for the defendant or for the state, or the court, on its own motion, may
request an examination to determine the defendant's competency. "(d)
Examination of defendant. Report.
If the court finds that the request for an examination is justified and
that, in accordance with procedures established by the judges of the superior
court, there is probable cause to believe that the defendant has committed the
crime for which he is charged, the court shall order an examination of the
defendant as to his competency. The
court either may appoint one or more physicians specializing in psychiatry to
examine the defendant or it may order the commissioner of mental health to
conduct the examination either by a clinical team consisting of a physician
specializing in psychiatry, a clinical psychologist and a psychiatric social
worker, or by one or more physicians specializing in psychiatry.
If the commissioner of mental health is ordered to conduct the
examination, he shall select the members of the clinical team or the physician
or physicians. If the examiners
determine that the defendant is not competent, they shall then determine whether
there is substantial probability that the defendant, if provided with a course
of treatment, will regain competency within the maximum period of any placement
order under this section. The court
may authorize a physician specializing in psychiatry, a clinical psychologist or
a psychiatric social worker selected by the defendant to observe the
examination. Counsel for the
defendant may observe the examination. The
examination shall be completed within fifteen days from the date it was ordered.
The examiner or examiners shall prepare and sign, without notarization, a
written report and file it with the court within ten days of the completion of
the examination. On receipt of the
written report, the clerk of the court shall cause copies to be delivered
immediately to the state's attorney and to counsel for the defendant. "(e)
Hearing. The court shall hold a hearing as to the competency of the defendant no
later than ten days after it receives the written report.
Any evidence regarding the defendant's competency, including the written
report, may be introduced at the hearing by either the defendant or the state.
If the written report is introduced, at least one of the examiners must
be present to testify as to the determinations in the report, unless his
presence is waived by the defendant and the state.
Any member of the clinical team shall be considered competent to testify
as to the team's determinations. A
defendant and his counsel may waive the court hearing only if the examiners, in
the written report, determine without qualification that the defendant is
competent. "(f) Court finding of competency or incompetency.
If the court, after the hearing, finds that the defendant is competent,
it shall continue with the criminal proceedings.
If it finds that the defendant is not competent, it shall also find
whether there is substantial probability that the defendant, if provided with a
course of treatment, will regain competency within the maximum period of any
placement order permitted under this section...." Unless otherwise
indicated references hereinafter to s 54-56d are to the 1991 revision.
FN10. Specifically, the defendant
claims a violation of his due process rights under the fifth, sixth and
fourteenth amendments to the United States constitution and article first, ss 8
and 9, of the constitution of Connecticut. The fifth amendment to the United
States constitution provides in relevant part: "No person shall ... be
deprived of life, liberty, or property, without due process of law...." The
sixth amendment to the United States constitution provides in relevant part:
"In all criminal prosecutions, the accused shall enjoy the right to ... be
informed of the nature and cause of the accusation...." Section 1 of the
fourteenth amendment to the United States constitution provides in relevant
part: "No State shall ... deprive any person of life, liberty or property,
without due process of law...." Article first, s 8, of the constitution of
Connecticut, as amended by article seventeen of the amendments, provides in
relevant part: "No person shall be ... deprived of life, liberty or
property without due process of law...." Article first, s 9, of the
constitution of Connecticut provides: "No person shall be arrested,
detained or punished, except in cases clearly warranted by law." The
defendant has not provided an independent analysis of his state constitutional
claims. Accordingly, we do not
address those claims. See, e.g.,
State v. Pinder, 250 Conn. 385, 429 n.4, 736 A.2d 857 (1999).
FN11. General Statutes s 54-82(b)
provides: "If the accused is charged with a crime punishable by death or
imprisonment for life and elects to be tried by the court, the court shall be
composed of three judges to be designated by the Chief Court Administrator, or
his designee, who shall name one such judge to preside over the trial. Such judges, or a majority of them, shall have power to
decide all questions of law and fact arising upon the trial and render judgment
FN12. The defendant pleaded guilty to
counts one through three of the amended information.
Count one charged the defendant with murder in violation of s 53a-54a,
and felony murder in violation of s 53a-54c. Count two charged him with capital
felony in violation of ss 53a-54b (1), 53a-54a (a) and (c), and 53a-54c.
Count three charged him with burglary in the first degree in violation of
s 53a-101 (a)(1) and (2).
FN13. Practice Book s 39-19, formerly s
711, provides: "--Acceptance of Plea; Advice to Defendant "The
judicial authority shall not accept the plea without first addressing the
defendant personally and determining that he or she fully understands:
"(1) The nature of the charge to
which the plea is offered; "(2) The mandatory minimum sentence, if any;
"(3) The fact that the statute for the particular offense does not permit
the sentence to be suspended; "(4) The maximum possible sentence on the
charge, including, if there are several charges, the maximum sentence possible
from consecutive sentences and including, when applicable, the fact that a
different or additional punishment may be authorized by reason of a previous
conviction; and "(5) The fact that he or she has the right to plead not
guilty or to persist in that plea if it has already been made, and the fact that
he or she has the right to be tried by a jury or a judge and that at that trial
the defendant has the right to the assistance of counsel, the right to confront
and cross-examine witnesses against him or her, and the right not to be
compelled to incriminate himself or herself." Practice Book s 39-20,
formerly s 712, provides: "--Ensuring That the Plea is Voluntary "The
judicial authority shall not accept a plea of guilty or nolo contendere without
first determining, by addressing the defendant personally in open court, that
the plea is voluntary and is not the result of force or threats or of promises
apart from a plea agreement. The
judicial authority shall also inquire as to whether the defendant's willingness
to plead guilty or nolo contendere results from prior discussions between the
prosecuting authority and the defendant or his or her counsel." See
footnotes 37, 41 and 47 of this opinion for a recitation of the relevant
portions of the plea canvass.
FN14. The defendant notes in his brief
that the trial court previously asked only about "drugs and alcohol,"
but not medications. We do not find
this difference to be dispositive. See
footnote 27 of this opinion.
FN15. Defense counsel stated: "And
we intend, either today or tomorrow, to move the court for a competency
evaluation. We have had personal
communication with the attending psychiatrist ... concerning medications
administered to the defendant.... And
at this point we are reporting to the court that we do have a concern that we
believe is legitimate and well founded as to the competence of [the defendant]
to proceed with this trial at the present time.
We would report to the court that his refusal to partake of the
proceedings today was a heretofore unexpected event and one which had not
happened previously.... [W]e are
aware that another psychiatrist increased [the defendant's] medications over the
weekend.... [My cocounsel] and I have both noted a change in our client's
demeanor in the courtroom over the last I would say five days, Your Honor.
And we don't believe we should comment on that any further because of our
concern for the attorney/client privilege--but we do report to the court that we
have noted a change in demeanor, Your Honor. We feel that given the seriousness and importance of this
proceeding ... that a motion to evaluate [the defendant's] legal competence
should be granted, Your Honor, for the grounds presented.
That is that we have a good faith belief that something--some change has
occurred in him which at this point could be affecting his legal
FN16. The trial court stated: "[T]he
court is still guided by the requirements of s 54-56d with particular reference
to [subsection (b) ], which is that [the defendant's] competency is presumed and
the one asking for such examination must show by clear and convincing evidence
the need for such examination." Additionally, the court explained that
"to respond to [defense counsel's] comments that there has been no
observation by the court to warrant the court, on its own motion, to have [the
defendant] examined for competency ... that the court is still going to require
clear and convincing evidence before it does."
FN17. Defense counsel informed the
court that the defendant's physicians in prison had changed his medications, and
that at least one physician had recommended a review of those medications.
Additionally, defense counsel explained that the defendant was upset
because he had not been seen by a physician and had not been served lunch that
day as defense counsel had assured him he would.
Defense counsel stated: "In our opinion ... his mood has changed
dramatically. Yesterday, although
there was some difficulty, today he has refused to come up completely.
His refusal to cooperate with his attorneys ... may be due to his
medication. I think that he may ...
be unable to assist because of medication.
We have found dramatic change in him over the last four or five days, but
most importantly since Monday when [a prison physician] did report that over the
weekend that [the defendant's] medication level was almost double....
We find ... that under s 54-56d the defendant must be ... able to
understand the proceedings against him and assist counsel in his defense.
He is no longer able to assist counsel in his defense, Your Honor. On that basis, I would request that examination under s
FN18. The trial court stated that
"[b]y virtue of what I indicated yesterday, I noted from time to time the
presence of the defendant in the courtroom and I have indicated on the record
yesterday my reluctance to order a s 54-56d without some knowledge of his being
incompetent. I have not observed
him being less than competent. Without
further evidence I would not order a competency exam.
I will, however, [accede] to the fact that the defendant is upset with
you and perhaps this can be righted by having the proceedings delayed until
Tuesday after the promised examination by [a prison physician]."
FN19. Defense counsel stated: "[W]e
continue to be concerned about the competency of our own client. We have learned ... that as a result of the mittimus issued
in this court, all medication ... was halted on Thursday. No medication, again,
was given until last night. And
it's my understanding that the ... treating psychiatrist was exceedingly upset
that the medication was stopped. He
had not seen [the defendant]. He
didn't discontinue his medication. It
was stopped by the jail somehow, in the dispensary, based upon the mittimus.
Obviously, Your Honor, in giving that order--that's not what the mittimus
said. It said that the psychiatrist
should look at--should evaluate. There
was no evaluation. Totally
different medication of much stronger prescription should be given--had been
given I should say. And there has
been some discussion by the treating psychiatrist ... that even the medication
given is not sufficient and it would require medication that is not possible to
prescribe at that facility."
FN20. The defendant claims that if we
conclude that the trial court improperly denied his first motion for a
competency evaluation, we should invalidate his subsequent guilty plea and
capital felony conviction. Alternatively, the defendant contends that, if we
find that the trial court properly denied his first request for a competency
evaluation but should have
granted a subsequent request, we should
invalidate his sentence of death because, although he had already pleaded
guilty, the penalty was imposed while the defendant was not competent.
FN21. The constitutional principle
prohibiting the criminal trial of incompetent defendants has deep roots in the
common law. See Cooper v. Oklahoma,
517 U.S. 348, 356-58, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (discussing
common-law prohibition); see also note, "Competence to Plead Guilty: A New
Standard," 1974 Duke L.J. 149, 151-52.
FN22. The United States Supreme Court
has concluded that other states' statutes, containing protections similar to
those found in s 54-56d, jealously guard the right of an incompetent defendant
not to stand trial. See Drope v. Missouri, 420 U.S. 162, 173, 95 S.Ct. 896, 43
L.Ed.2d 103 (1975) (Missouri "jealously guards" this right); Pate v.
Robinson, supra, 383 U.S. 385 ("Illinois jealously guards this
FN23. Our review of whether the trial
court properly interpreted s 54-56d is plenary.
See Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995).
FN24. We note that the clear and
convincing evidentiary standard cited by the trial court here no longer applies
to a moving party's burden of proving incompetency to stand trial.
Although the clear and convincing standard existed in the 1991 revision
of s 54-56d in effect at the time of the relevant proceedings, the United States
Supreme Court has since held that standard unconstitutional.
The court, in Cooper v. Oklahoma, supra, 517 U.S. 369, ruled that
requiring a defendant to prove incompetency by clear and convincing evidence
impermissibly burdened the defendant's due process rights.
Accordingly, in 1996, the Connecticut General Assembly replaced the clear
and convincing standard with the preponderance of the evidence standard
currently contained in s 54-56d. See
Public Acts 1996, No. 96-215. In
commenting upon Senate Bill No. 295, which changed the language in s 54-56d,
Senator Thomas F. Upson explained that the recent decision in Cooper
necessitated the change from a standard of clear and convincing evidence to that
of a preponderance of the evidence. Senator
Upson also noted that, at that time, Connecticut was one of only four states
with the clear and convincing standard. 39
S. Proc., Pt. 9, 1996 Sess., pp. 3047-50.
FN25. Prior to the decision in Godinez,
courts disagreed about whether certain aspects of the criminal proceeding
required higher levels of competency. See
State v. Day, 233 Conn. 813, 825 n.8, 661 A.2d 539 (1995); Myers v. Manson, 192
Conn. 383, 390-91, 472 A.2d 759 (1984). In particular, the Ninth Circuit Court
of Appeals had held that a guilty plea required a higher degree of competency
than that required for a defendant to stand trial.
See Chavez v. United States, 641 F.2d 1253, 1259-60 (9th Cir.1981);
Sieling v. Eyman, 478 F.2d 211, 214-15 (9th Cir.1973).
FN26. Unlike the first part of this
claim addressed to the trial court's interpretation of s 54-56d; see part I A of
this opinion; we review the trial court's determination of competency to plead
guilty under an abuse of discretion standard.
Essentially, we examine the relevant record to determine whether the
trial court reasonably could have concluded that the defendant was competent to
plead guilty. In doing so, we give
deference to the trial court's findings of fact because the trial court has the
benefit of firsthand review of the defendant's demeanor and responses during the
canvass. See State v. Wolff, supra,
237 Conn. 665 (trial court did not abuse discretion in denying competency
hearing); State v. DesLaurier, supra, 230 Conn. 586 (reviewing denial of
competency hearing under abuse of discretion standard).
FN27. The defendant claims on appeal
that his uncertainty regarding the penalty for intentional murder versus the
penalty for felony murder and his lack of knowledge that a guilty plea
constituted a waiver of all nonjurisdictional defects, demonstrated his
incompetence. We recognize that
these are difficult and complex legal concepts.
The defendant, however, simply expressed the confusion that any layperson
experiences in attempting to understand fully these issues.
The trial court's careful review of these topics with the defendant,
combined with the fact that the defendant was represented by counsel,
effectively eliminated any legitimate concern. The defendant also points to the
fact that he was taking medication as evidence of his incompetency.
The fact that he was receiving medication did not automatically render
him incompetent. See State v.
Gonzalez, supra, 205 Conn. 688 (antipsychotic drugs did not render defendant
incompetent); State v. DeAngelis, 200 Conn. 224, 230, 511 A.2d 310 (1986)
(medication does not render defendant incompetent).
Indeed, we have found that even mental illness or the use of illegal
drugs does not invariably render a defendant incompetent.
See State v. DeAngelis, supra, 230 (defendant may be mentally ill yet
competent to stand trial); State v. Lloyd, 199 Conn. 359, 363, 507 A.2d 992
(1986) (allegations of cocaine use did not entitle defendant to competency
hearing). Additionally, we note that in the present case the state, not defense
counsel, asked the court to inquire about the defendant's medications.
FN28. See footnotes 37, 41 and 47 of
this opinion for examples of the defendant's dialogue with the trial court
during his guilty plea canvass.
FN29. Specifically, the defendant
claims a violation of his due process rights under the fifth, sixth and
fourteenth amendments to the United States constitution and article first, ss 8
and 9, of the constitution of Connecticut.
The defendant has not provided an independent analysis of his state
constitutional claims. Accordingly,
we do not address those claims. See,
e.g., State v. Pinder, 250 Conn. 385, 429 n.4, 736 A.2d 857 (1999).
FN30. See footnote 13 of this opinion
for the text of ss 39-19 and 39-20.
FN31. The defendant failed to raise
these constitutional claims before the trial court.
He nevertheless argues that he should prevail under State v. Golding, 213
Conn. 233, 239-40, 567 A.2d 823 (1989), in which we concluded that a defendant
on an unpreserved constitutional claim
if all of the following four conditions are met: "(1) the record is
adequate to review the alleged claim of error; (2) the claim is of
constitutional magnitude alleging the violation of a fundamental right; (3) the
alleged constitutional violation clearly exists and clearly deprived the
defendant of a fair trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt." Even if we were to assume that the
first two conditions have been satisfied, as we conclude herein, the defendant
has failed to demonstrate that his constitutional rights were violated.
FN32. Because the defendant's claims do
not merely challenge the court's failure to comply "literally" with
the rules of practice, but, rather, assert a lack of substantive compliance with
the constitutionally based norms set forth in those sections, he seeks review
under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the
doctrine of plain error as set forth in Practice Book s 60-5, formerly s 4061.
Section 60-5 provides: "Review by the Court; Plain Error; Preservation of
Claims "The court may reverse or modify the decision of the trial court if
it determines that the factual findings are clearly erroneous in view of the
evidence and pleadings in the whole record, or that the decision is otherwise
erroneous in law. "The court shall not be bound to consider a claim unless
it was distinctly raised at the trial or arose subsequent to the trial.
The court may in the interests of justice notice plain error not brought
to the attention of the trial court. "In jury trials, where there is a
motion, argument, or offer of proof or evidence in the absence of the jury,
whether during trial or before, pertaining to an issue that later arises in the
presence of the jury, and counsel has fully complied with the requirements for
preserving any objection or exception to the judge's adverse ruling thereon in
the absence of the jury, the matter shall be deemed to be distinctly raised at
the trial for purposes of this rule without a further objection or exception
provided that the grounds for such objection or exception, and the ruling
thereon as previously articulated, remain the same. "If the court deems it
necessary to the proper disposition of the cause, it may remand the case for a
further articulation of the basis of the trial court's factual findings or
decision. "It is the responsibility of the appellant to provide an adequate
record for review as provided in Section 61-10." Once again, as we conclude
herein, the defendant failed to demonstrate that the alleged constitutional
violations existed or that the trial court's "decision [was] otherwise
erroneous in law." Practice Book s 60-5.
FN33. See footnote 12 of this opinion.
FN34. The defendant asserts, in a
footnote in his brief, that his incompetency also contributed to his confusion
regarding the charges contained in the information.
Because we previously have determined that the defendant was competent to
stand trial and enter a plea; see part I B of this opinion; we reject this
FN35. Count two charged the defendant
with capital felony in violation of ss 53a-54b (1), 53a-54a (a) and (c), and
FN36. The defendant also raised this
issue at trial during his probable cause hearing.
FN37. The following colloquy between
the trial court and the defendant took place during the plea canvass: "The
Court: And as to the second count of capital felony, the statute to which you've
pleaded guilty to in the second count, is as follows: 'A person is guilty of
capital felony who is convicted of any of the following: Murder of a member of
the division of state police within the department of public safety.' Did your
attorneys read that statute to you or have you read that statute prior to your
guilty plea? "The Defendant: I have reviewed that with my attorneys and I
stand by my plea of guilty as to that point. "The Court: And do you know
what the penalty for a violation of that statute is? "The Defendant: Life
imprisonment. Life imprisonment.
"The Court: And there is an alternative. "The Defendant: Ah'm--and/or
the death penalty. "The Court: And the death penalty.
And do you recall discussing with your attorneys that if you are found
guilty of this statute the only possible penalty is life imprisonment without
possibility of release, unless the death penalty is imposed? "The
Defendant: I've reviewed that with my attorneys and I stand by my plea of guilty
as to that point. "The Court: Well, I asked you the specific question.
Were you read that portion as to the penalty? "The Defendant: Yes.
My attorneys have read me all the statutes. "The Court: And you understand
that those are the only penalties that you can be given concerning a violation
of that statute of capital felony? Either life imprisonment without possibility
of release or death. "The Defendant: My attorneys have informed me.
"The Court: And that was prior to your plea of guilty to that statute?
"The Defendant: I believe so. Yes,
sir. "The Court: Aren't you sure? "The Defendant: Well, it's been a
long--it's been--I've seen them on countless occasions and I can't recall
which-- "The Court: It was prior to today? "The Defendant: Prior to
today. Yes, sir. "The Court:
It was prior to your plea of guilty to this offense? "The Defendant: Yes,
FN38. The trial court stated: "And
as to the second count of capital felony, the statute to which you've pleaded
guilty to in the second count, is as follows: 'A person is guilty of capital
felony who is convicted of any of the following: Murder of a
member of the division of state police
within the department of public safety.' " See footnote 37 of this opinion.
FN39. Count two of the amended
information dated December 9, 1992, provides: "And the above State's
Attorney further accuses and charges that the said Terry Johnson did commit the
crime of CAPITAL FELONY in violation of [ss ] 53a-54b (1), 53a-54a (a) and (c),
and 53a-54c of the Connecticut General Statutes in that on or about the fifth
day of June, 1991, in the early morning hours, in the town of Windham,
Connecticut, the said TERRY JOHNSON, with the intent to cause the death of
another person, to wit, Connecticut State Trooper Russell Bagshaw, caused the
death of Trooper Russell Bagshaw, who was a member of the Division of State
Police within the Department of Public Safety, while Trooper Russell Bagshaw was
acting within the scope of his duties, and that said TERRY JOHNSON, on or about
the fifth day of June, 1991, in the early morning hours, in the town of Windham,
Connecticut, acting either alone or with one or more other persons, committed or
attempted to commit Burglary, and in the course of and in furtherance of such
Burglary or of the flight therefrom, he, or another participant, if any, caused
the death of another person, to wit: Connecticut State Trooper Russell Bagshaw,
who was other than one of the participants in said Burglary, and who was a
member of the Division of State Police within the Department of Public Safety,
while Trooper Russell Bagshaw was acting within the scope of his duties."
FN40. Specifically, the defendant
refers to his erroneous responses regarding the penalties for murder versus the
penalties for felony murder. See footnote 27 of this opinion.
FN41. The following colloquy took place
regarding the waiver rule: "The Court: You recognize that your plea
waives--or forgoes any nonjurisdictional defects in your prosecution? "The
Defendant: No, sir. I do not
understand that. "The Court: Do you want to consult your attorney about it.
"The Defendant: I reviewed that with my ... "[Raymond Canning, Defense
Counsel]: We simply haven't discussed that issue at all with our client....
"The Court: Could you then explain to [the defendant] now what
nonjurisdictional defects might be? "Mr. Canning: If I can have a few
minutes I will certainly do so, Your Honor.... "The Court: You may.
Right now. I'll wait for
FN42. After the pause in the
proceedings, the following colloquy occurred: "The Court: You recognize
your plea waives or forgoes all nonjurisdictional defects in the prosecution?
"The Defendant: My lawyers have explained things to me and I really don't
have a clue but they assure me that those things are not ... a problem....
"The Court: They're not your problem? In other words, they felt that it was
their problem? ... "The Defendant: They explained it.
I really--I don't understand it but they assure me that-- "The
Court: That it wouldn't be a problem? "The Defendant:--it isn't going to be
a problem. A problem at all."
FN43. See footnote 13 of this opinion
for the text of ss 39-19 and 39-20.
FN44. The defendant pleaded guilty to
first degree burglary in violation of s 53a-101 (a)(1) and (2).
General Statutes s 53a-101 (c) provides: "Burglary in the first
degree is a class B felony provided any person found guilty under subdivision
(1) of subsection (a) shall be sentenced to a term of imprisonment of which five
years of the sentence imposed may not be suspended or reduced by the
FN45. We note that the present
situation differs dramatically from cases wherein the trial court failed to
inform the defendant of the maximum potential sentence.
See State v. James, 197 Conn. 358, 497 A.2d 402 (1985); State v. Bowden,
53 Conn.App. 243, 729 A.2d 795 (1999). The
record of the plea canvass here unmistakably demonstrates that the defendant was
aware of the maximum penalty to which his plea exposed him.
FN46. The defendant acknowledges in his
brief that "it is not certain" that knowledge of the five year
mandatory minimum sentence for burglary would have made any difference in his
decision to plead guilty.
FN47. The defendant refers specifically
to the following discussion: "The Court: Was any force used upon you to
make you plead guilty to these counts? "The Defendant: No, sir. "The
Court: Was any threat used? Threat of force? "The Defendant: No, sir.
"The Court: And were any promises made as to--well, this morning you heard
[Mark S. Solak, state's attorney] indicate, when you pleaded guilty to the first
three counts, that he wasn't going to proceed on the rest of the counts, which
amounted to larceny counts. Other
than that were any other promises made--as to the sentence to be imposed, or
dropping any other charges? "The Defendant: He promised that. "The
Court: Pardon? "The Defendant: Mr. Solak promised that. "The Court:
Well he promised, apparently-- "The Defendant: To drop the-- "The
Court:--to drop the larceny charges. Were
there any other charges that he indicated he would drop or any sentence he would
recommend? "The Defendant: Not that I know of.
"The Court: So you can't think of
any promises as to anybody recommending sentence or dropping any other charges?
"The Defendant: My attorneys haven't told me of any. "The Court: You
have no reason to believe then there are such promises. "The Defendant: Not
to my knowledge."
FN48. The defendant claims a violation
of his rights under the fifth, sixth and fourteenth amendments to the United
States constitution and article first, s 8, of the constitution of Connecticut.
The defendant also claims that the trial court violated Practice Book ss
39-19 et seq. and 44-3. Practice Book s 44-3, formerly s 961, provides:
"--Waiver of Right to Counsel "A defendant shall be permitted to waive
the right to counsel and shall be permitted to represent himself or herself at
any stage of the proceedings, either prior to or following the appointment of
counsel. A waiver will be accepted
only after the judicial authority makes a thorough inquiry and is satisfied that
the defendant: "(1) Has been clearly advised of the right to the assistance
of counsel, including the right to the assignment of counsel when so entitled;
"(2) Possesses the intelligence and capacity to appreciate the consequences
of the decision to represent oneself; "(3) Comprehends the nature of the
charges and proceedings, the range of permissible punishments, and any
additional facts essential to a broad understanding of the case; and "(4)
Has been made aware of the dangers and disadvantages of self-
representation." See footnote 13 of this opinion for the text of ss 39-19
and 39-20; see also footnotes 51 and 52 of this opinion.
FN49. The trial court imposed a twenty
year sentence for the burglary count to run concurrently with the sentence to be
imposed for the capital felony count.
FN50. By the time the defendant moved
to withdraw his guilty plea, the trial court already had sentenced him on the
burglary count. He nevertheless
maintains that the claims addressed in his motion to withdraw his guilty plea
apply to the burglary sentence as well as the capital felony sentence. Although "[a] defendant may not withdraw his or her plea
after the conclusion of the proceeding at which the sentence was imposed";
Practice Book s 39-26, formerly s 720; see footnote 52 of this opinion; and
although he already had been sentenced on the burglary count, the sentencing
proceeding itself had not yet concluded.
FN51. Practice Book s 39-27, formerly s
721, provides: "--Grounds for Allowing Plea Withdrawal "The grounds
for allowing the defendant to withdraw his or her plea of guilty after
acceptance are as follows: "(1) The plea was accepted without substantial
compliance with Section 39-19; "(2) The plea was involuntary, or it was
entered without knowledge of the nature of the charge or without knowledge that
the sentence actually imposed could be imposed; "(3) The sentence exceeds
that specified in a plea agreement which had been previously accepted, or in a
plea agreement on which the judicial authority had deferred its decision to
accept or reject the agreement at the time the plea of guilty was entered;
"(4) The plea resulted from the denial of effective assistance of counsel;
"(5) There was no factual basis for the plea; or "(6) The plea either
was not entered by a person authorized to act for a corporate defendant or was
not subsequently ratified by a corporate defendant."
FN52. Practice Book s 39-26, formerly s
720, provides: "Withdrawal of Plea; When Allowed "A defendant may
withdraw his or her plea of guilty or nolo contendere as a matter of right until
the plea has been accepted. After
acceptance, the judicial authority shall allow the defendant to withdraw his or
her plea upon proof of one of the grounds in Section 39-27.
A defendant may not withdraw his or her plea after the conclusion of the
proceeding at which the sentence was imposed."
FN53. We note that the defendant did
not specifically request an evidentiary hearing when he made his motion to
withdraw his guilty plea. Despite his failure to request an evidentiary hearing,
we review the defendant's claim. See
State v. Safford, 22 Conn.App. 531, 534, 578 A.2d 152, cert. denied, 216 Conn.
823, 581 A.2d 1057 (1990) (motion to withdraw guilty plea and briefing of issue
preserved claim despite failure to request hearing); see also State v. Watson,
supra, 198 Conn. 612-13 (defendant's claim reviewed despite failure to request
evidentiary hearing at any time); State v. Peterson, 51 Conn.App. 645, 648-49,
725 A.2d 333 (1999) (defendant's claim reviewed despite failure to request
hearing at time of motion).
FN54. Federal Hydra-Shok hollow point
bullets are designed to mushroom and expand on impact, thereby breaking the
copper jacket into pieces. Testimony indicated that "that is the bullet
that you would use if you wanted to kill something."
FN55. Although on appeal the defendant
has raised the propriety of the admissibility of this evidence, for purposes of
deciding the issue of whether there was sufficient evidence to support the
finding of an aggravating factor; see part IV of this opinion; we presume it was
properly admitted. We nevertheless
conclude that the evidence was insufficient to establish the presence of an
FN56. Qualifying as a sharpshooter
meant that out of forty shots at a range of 300 meters, the defendant hit a
target thirty-two to thirty-six times. Qualifying
as an expert meant that he hit a target thirty-six out of forty times at ranges
from fifty to 300 meters.
FN57. Notwithstanding the cases from
Alabama cited by the state and Chief Justice McDonald's dissent; see, e.g., Bush
v. State, 695 So.2d 70 (Ala.Crim.App.1995); execution-style killings evincing a
calculated design to kill, even when perpetrated to avoid later identification,
do not, without more, satisfy the s 53a-46a (h)(4) requirements. Noticeably absent from Alabama's "heinous, atrocious or
cruel" calculus is a concern about whether the victim suffered extreme
physical or psychological pain or torture or whether such suffering was the
defendant's conscious objective.
FN58. Although the defendant's trial
preceded our decision in Ross, the trial court here instructed the jury as
follows: "The commission of the crime must have the nature of being
committed without pity or conscience and must include the intentional infliction
of extreme pain or torture above and beyond that necessarily accompanying the
underlying killing. So the
defendant must intend to cause extreme pain or torture to the victim above and
beyond that necessary to cause the death in order to have the element of an
aggravating factor as noticed in this case."
FN59. Therefore, unlike the cases from
Arizona cited by the state; State v. Bolton, 182 Ariz. 290, 896 P.2d 830 (1995);
State v. Runningeagle, 176 Ariz. 59, 859 P.2d 169 (1993); State v. Greenway, 170
Ariz. 155, 823 P.2d 22 (1991); in Connecticut, the state must prove more than
that the victim's pain was a foreseeable consequence of the defendant's acts.
FN60. It is therefore evident that s
53a-46a (h)(4) has been interpreted narrowly, indeed far more so than similar
provisions from either Mississippi or Illinois, two states relied upon by the
state and Chief Justice McDonald's dissent.
The broad interpretation of the state's "especially heinous,
atrocious or cruel" aggravating factor by the Mississippi Supreme Court was
noted in Clemons v. Mississippi, 494 U.S. 738, 760-61, 110 S.Ct. 1441, 108
L.Ed.2d 725 (1990) (Blackmun, J., concurring and dissenting). Similarly, the Illinois statute has been interpreted
liberally to allow premeditation to be a part of the "wanton cruelty"
calculus. See People v. Johnson,
154 Ill.2d 356, 368, 609 N.E.2d 294 (1993); People v. Lucas, 132 Ill.2d 399,
446, 548 N.E.2d 1003 (1989).
FN61. See Ariz.Rev.Stat. s
13-703(F)(10) (1989) ("[t]he murdered individual was an on duty peace
officer who was killed in the course of performing his official duties and the
defendant knew or should have known, that the victim was a peace officer");
Fla. Stat. c. 921.141(5)(j) (1999) ("[t]he victim of the capital felony was
a law enforcement officer engaged in the performance of his or her official
duties"); Ga.Code Ann. s 17-10-30(b)(8) (1997) ("[t]he offense of
murder was committed against any peace officer, corrections employee, or fireman
while engaged in the performance of his official duties"); La.Rev.Stat.
Ann. s 905.4(A)(2) (West 1997) ("[t]he victim was a fireman or peace
officer engaged in his lawful duties"); Mo. Ann. Stat. s 565.032(2)(8)
(West 1999) ("[t]he murder in the first degree was committed against any
peace officer, or fireman while engaged in the performance of his official
FN62. Because eligibility for the death
sentence depends upon the state's ability to prove the existence of an
aggravating factor, it is that very factor that plays the constitutional role of
distinguishing between those who may be sentenced to death and those who may not
be and, as such, it must be objectively understandable.
Stringer v. Black, 503 U.S. 222, 233-36, 112 S.Ct. 1130, 117 L.Ed.2d 367
(1992); Maynard v. Cartwright, 486 U.S. 356, 362-64, 108 S.Ct. 1853, 100 L.Ed.2d
372 (1988); State v. Breton, supra, 212 Conn. 263-64.
Therefore, to the extent that the state claims that there is no eighth
amendment justification for a restrictive interpretation of the statutory
language constitutionally required in a one-tiered state, or that the term
"heinous and cruel" demands a stricter interpretation when it is an
element of the murder as opposed to the aggravant, we disagree.
FN63. To the extent that the state
claims that the s 53a-46a (h)(4) factor can be satisfied in a case in which
death has been inflicted by a gunshot wound, it misinterprets the defendant's
argument. Indeed, the defendant
does not suggest otherwise. Rather,
the defendant contends that there must be something more about the killing to
distinguish it from "the norm of [intentional] murders." Lewis v.
State, 398 So.2d 432, 438 (Fla.1981).
FN64. To prove that the defendant had
intended to inflict pain and suffering above and beyond that necessarily
accompanying the underlying killing, the state noted the following factors.
The defendant was enraged that Bagshaw interrupted his elaborate burglary
scheme. Having been alerted by his
brother Duane Johnson that the trooper making his rounds might return to the
store, the defendant chose to stay to complete the theft rather than escape.
The defendant continued to shoot at Bagshaw even after the trooper cried
out. The defendant also chose a
bullet with great destructive power and the defendant failed to render
assistance to Bagshaw, instead leaving him to die.
In addition, the defendant hated police and lacked remorse for the
killing. The defendant fired
seventeen shots, although he could have killed Bagshaw "instantly."
Because we determine that the state failed to prove the defendant's conduct did
in fact inflict extreme physical or psychological pain or torture on Bagshaw
above and beyond that necessarily accompanying the underlying killing, we need
not decide whether the state proved beyond a reasonable doubt that the defendant
specifically intended to inflict such extreme pain and torture.
FN65. Similarly, in State v. Webb, 238
Conn. 389, 487, 680 A.2d 147 (1996), we concluded that the jury reasonably found
that the victim experienced extreme physical and psychological pain beyond that
necessary to accomplish her death. This
court related the following evidence: "Prior to her death, [the victim]
experienced a prolonged abduction during which she was held at gunpoint while
the defendant drove, for approximately twelve minutes, to a park nearly four
miles away from the point of abduction....
Once they arrived at the park, the defendant either forcibly removed or
forced the victim to remove her shoes, pantyhose and panties, and he attempted
to assault her sexually.... After
the victim escaped from the defendant, he shot her twice in the back. These wounds caused the victim to suffer excruciating pain
and hemorrhaging, caused her to aspirate blood from her mouth, and rendered her
unable to walk.... While repeatedly
crying for help, the victim then began crawling away from the defendant, and
crawled for a distance of approximately thirty-three yards....
As the victim crawled away and cried repeatedly for help, the defendant
got into the car and drove to where the victim had crawled.
defendant got out of the car, walked
over to the victim and, standing directly in front of her, shot her three more
times: in the chest, in the ear and, bending over the prostrate victim, point
blank in the face. This last shot
finally killed the victim. As much
as three minutes may have passed between the time the defendant first wounded
the victim and when he shot her for the last time....
Finally, the bullets used by the defendant were specially designed to
generate a high velocity and, as a result, had greater destructive capacity than
ordinary bullets. At least two of
the bullets were designed with hollow points, which caused them to expand upon
impact and cause greater damage than ordinary bullets." Id., 486-87.
FN66. These cases, like the present
case, are markedly different from State v. Chaney, 141 Ariz. 295, 312, 686 P.2d
1265 (1984), the case upon which Chief Justice McDonald's dissent is anchored.
In Chaney, "[a]t least one shot from behind was from such short
range that powder burns were left on his body.
After the attack, the victim, who was a doctor, was conscious for
approximately 30 minutes. He was slowly bleeding to death, and he knew it. He
told the medics, 'I'm dying, I'm dying.' His left arm was almost severed by a
bullet, it hung to the body by a muscle; the victim looked at what remained of
his arm. Before help arrived, he
could hear the radio transmissions and the fact that no one was sure where he
was for several minutes. It [was]
not necessary to speculate about the victim's mental anguish; he helplessly and
uselessly begged and waited for help." Id.
FN67. The state simply argued that
"the actual piece of shrapnel that went up into his arm ... caused pain in
addition to the pain of the bullet...."
FN68. In this regard, the state claims
that the defendant was familiar with the premises and the surrounding area, that
his brother Duane Johnson warned him the first time the trooper drove by and
that he could have left before Bagshaw returned.
According to the state, the combination of these factors demonstrates
that the killing was senseless.
FN69. Duane Johnson was convicted of
felony murder in violation of s 53a-54c, capital felony in violation of s
53a-54b, burglary in the first degree in violation of ss 53a-101 (a) and 53a-8,
larceny in the third degree in violation of ss 53a-119, 53a-124 (a)(2) and
53a-8, and twenty counts of stealing a firearm in violation of ss 53a-212 and
53a-8. On appeal, we vacated Duane
Johnson's conviction on the capital felony count but affirmed his conviction on
all of the remaining counts. See State v. Johnson, 241 Conn. 702, 706, 699 A.2d
2000300196 END OF DOCUMENT
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