Opinion
No. CR07-0223989 T
September 21, 2010
DEFENDANT'S SECOND MOTION TO PRECLUDE CAPITAL PENALTY HEARING BECAUSE CONNECTICUT'S DEATH PENALTY SCHEME IS CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF STATE AND FEDERAL CONSTITUTIONS (#25)
MOTION TO DISMISS/STRIKE AGGRAVATING FACTOR BECAUSE BOTH MURDERS MUST BE AGGRAVATED UNDER CONNECTICUT LAW WHEN A MULTIPLE MURDER CAPITAL FELONY IS CHARGED UNDER § 53a-54b(7) AND THE HEINOUS, CRUEL, OR DEPRAVED AGGRAVATOR IS ALLEGED UNDER § 53a-46a(i)(4) AND NO REASONABLE JUROR COULD CONCLUDE BASED ON THE EVIDENCE IN THIS CASE THAT BOTH MURDERS WERE AGGRAVATED (#17)
DEFENDANT'S FIRST MOTION TO STRIKE/DISMISS THE "SAME FELONY" AGGRAVATING FACTOR, C.G.S. § 53a-46a(i)(1): THE DEFENDANT HAS NOT BEEN CONVICTED OF THE "SAME FELONY" (#21)
SECOND MOTION TO DISMISS/STRIKE THE "SAME FELONY" AGGRAVATING FACTOR: IT IS UNCONSTITUTIONAL BOTH ON ITS FACE AND AS APPLIED TO THE FACTS OF THIS CASE, AND BECAUSE THE LEGISLATURE COULD NOT HAVE INTENDED THE AGGRAVATOR TO APPLY TO THE FACTS OF THIS CASE (#22) (#22b)
MOTION TO STRIKE AGGRAVATING FACTOR NUMBER TWO (#19)
SECOND MOTION TO DISMISS/STRIKE THE ALLEGED ESPECIALLY HEINOUS, CRUEL, OR DEPRAVED AGGRAVATING FACTOR (#23)
THIRD MOTION TO DISMISS/STRIKE "ESPECIALLY HEINOUS, CRUEL, OR DEPRAVED" AGGRAVATING FACTOR BECAUSE IT IS UNCONSTITUTIONALLY VAGUE IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS AND ARTICLE FIRST §§ 8 AND 9 OF THE CONNECTICUT CONSTITUTION BECAUSE APPLYING IT TO THE CIRCUMSTANCES OF THIS CASE WOULD BE INCONSISTENT WITH THE CONNECTICUT SUPREME COURT'S PRIOR LIMITING CONSTRUCTION OF THE VAGUE STATUTORY LANGUAGE WHEN THAT AGGRAVATING FACTOR IS ALLEGED IN A MURDER BY GUNSHOT (#24)
FOURTH MOTION TO DISMISS/STRIKE HEINOUS, CRUEL, OR DEPRAVED AGGRAVATOR: INSUFFICIENCY OF EVIDENCE THAT EITHER MURDER IS AGGRAVATED (#26)
In this criminal case, the defendant, Christopher DiMeo, stands charged with capital felony, murder (two counts) and robbery first degree. The case arises out of the February 2, 2005 shooting of the two owners of a jewelry store in Fairfield. The state is seeking the death penalty.
In the captioned eight motions, the defendant raises a variety of constitutional, statutory and case law arguments against Connecticut's capital felony scheme. A hearing was held on the motions on September 15 and 17, 2010. For the reasons set forth below, all of the motions must be denied.
INTRODUCTION
Two fundamental legal principles inform the court's rulings on most, if not all, of the present motions. First, a validly enacted statute carries with it a strong presumption of constitutionality. State v. Rizzo, 266 Conn. 171, 291 (2003). Those who challenge a statute's constitutionality must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt. Id. Second, "it is axiomatic that a trial court is bound by Supreme Court precedent." Jolly, Inc. v. Zoning Board, 237 Conn. 184, 195 (1996). This principle is inherent in a hierarchical judicial system. Id. "Revision of Supreme Court precedent is not the trial court's function." Id. Many of the defendant's claims contained in the present motions are governed by controlling precedent from either our Supreme Court of the United States Supreme Court. In such circumstances, this court will simply summarize the claim and cite the controlling case. Such brevity is not in any way intended to demean the quality of the legal scholarship in the defense pleadings (which is excellent) but rather to reflect the fact that the matter stands decided.
I
CT Page 18585
MOTION TO PRECLUDE CAPITAL PENALTY HEARING BECAUSE DEATH PENALTY SCHEME VIOLATES THE STATE AND FEDERAL CONSTITUTIONS (#10)
This motion asserts the following six constitutional challenges to Connecticut's death penalty scheme.A
The defendant asserts that the language of § 53a-46a(d) pertaining to mitigating factors that directs the capital sentencer to decide whether a factor is "mitigating in nature considering all the facts and circumstances of the case" unconstitutionally limits sentencing information. Our Supreme Court has expressly considered and rejected this claim. State v. Rizzo, 266 Conn. 171, 290-99 (2003).
B
The defendant asserts that the legislature's failure to restrict the phrase "all the facts and circumstances of the case" contained in § 53a-46a(d) permits arbitrary sentencing. This statutory language (but not this exact claim) has been examined and approved by our Supreme Court. State v. Cobb, 251 Conn. 285, 456-62 (1999). Moreover, the statute has been upheld against constitutional attack and found to reflect the proper amount of "guided discretion." State v. Ross, 230 Conn. 183, 241 (1994).
C
The defendant asserts that the lack of standards to guide the state's attorneys' discretion renders the death penalty scheme unconstitutional. The United States Supreme Court has considered and rejected this claim. Gregg v. Georgia, 428 U.S. 153, 199 (1976).
D
The defendant asserts that the race is a factor in capital charging decisions violating constitutional protections against racial discrimination. Our Supreme Court has directed that such claims should be addressed in a consolidated habeas corpus petition. State v. Reynolds, 264 Conn. 1, 233-34 (2003).
CT Page 18586
E
The defendant asserts that it is unconstitutional to impose the death penalty on those who do not themselves kill. This claim has been considered and rejected by both the United States Supreme Court and our Supreme Court. Tison v. Arizona, 481 U.S. 137, 158 (1987); State v. Peeler, 271 Conn. 338, 430-50 (2004).F
The defendant asserts that national, local and global trends in the fields of law, legal scholarship, and public sentiment show that the death penalty no longer comports with contemporary standards of decency thus warranting its rejection under the Connecticut Constitution. As stated above, this court is bound by the presumption of constitutionality afforded all statutes and is further bound by precedent that has upheld the constitutionality of the death penalty. See Gregg v. Georgia, 428 U.S. 153 (1976) and State v. Webb, 238 Conn. 389 (1996).
The motion is denied.
II DEFENDANT'S SECOND MOTION TO PRECLUDE CAPITAL PENALTY HEARING BECAUSE CONNECTICUT'S DEATH PENALTY SCHEME IS CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF STATE AND FEDERAL CONSTITUTIONS (#25)This motion is based on proposed Public Act 09-107 which would have prospectively repealed the death penalty. This bill passed the legislature but was vetoed by Governor Rell. The defendant asserts that the action of the General Assembly is evidence that "evolving standards of decency" are against the continued use of the death penalty.
This claim must be rejected for three reasons. First, under Connecticut law, the Governor is an integral part of the legislative process and has veto power. Conn. Const. Art. § 15. Second, the rejected bill would have only prospective effect and therefore would not, by its terms, have affected the prosecution of this case. Third, the motion essentially asks this court to overrule CT Page 18587 Gregg v. Georgia, 428 U.S. 153 (1976) and State v. Webb, 238 Conn. 389 (1996). As stated above, this court is bound by established case law.
The motion is denied.
III MOTION TO DISMISS/STRIKE AGGRAVATING FACTOR BECAUSE BOTH MURDERS MUST BE AGGRAVATED UNDER CONNECTICUT LAW WHEN A MULTIPLE MURDER CAPITAL FELONY IS CHARGED UNDER § 53a-54b(7) AND THE HEINOUS, CRUEL, OR DEPRAVED AGGRAVATOR IS ALLEGED UNDER § 53a-46a(i)(4) AND NO REASONABLE JUROR COULD CONCLUDE BASED ON THE EVIDENCE IN THIS CASE THAT BOTH MURDERS WERE AGGRAVATED ( #17) The defendant asserts that in a multiple murder capital felony prosecution where the especially heinous, cruel or depraved aggravator is alleged both murders must be aggravated. The defendant further asserts that, in the present case, no reasonable juror could find that both murders were aggravated and therefore the capital felony count must be dismissed.The defendant acknowledges that our Supreme Court has considered and rejected his claim that both murders must be aggravated. See State v. Courchesne, 262 Conn. 537, 544 (2003). The defendant asserts, however, that by enacting General Statutes § 1-2z (the so-called "plain meaning" statute) the General Assembly overruled Courchesne and it is now necessary for the prosecution to prove that both murders were committed in an especially heinous, cruel or depraved manner in order to establish the aggravating factor contained in § 53a-46a(i)(4).
This claim must be rejected for two reasons. First and foremost, this court is bound by the holding in Courchesne. As state above, lower courts are not free to revisit established precedent. Jolly, Inc. v. Zoning Board, supra, 262 Conn. 544. This principle applies even when there has been a change in the law that might cause a higher court to reconsider its own decision. See United States v. O'Brien, CT Page 18588 130 S.Ct. 2169, 2174 (2010) (lower federal court should leave to the Supreme Court the prerogative of overruling its own decisions). Second, it is not at all clear that application of the plain meaning rule would change the interpretation of the statute as to whether each murder must be aggravated. Indeed, in its recent opinion in State v. Courchesne, 296 Conn. 622 (2010) ( Courchesne II), our Supreme Court did not revisit its earlier holding. Id., 776-81.
The motion is denied.
IV DEFENDANT'S FIRST MOTION TO STRIKE/DISMISS THE "SAME FELONY" AGGRAVATING FACTOR, C.G.S. § 53a-46a(i)(1): THE DEFENDANT HAS NOT BEEN CONVICTED OF THE "SAME FELONY" (#21)The state has alleged as an aggravating factor that the defendant committed the capital felony during the commission of a robbery and was previously convicted of attempted robbery. The defendant asserts that this aggravating factor must be dismissed because the "same felony" language of § 53a-46a(i)(1) only applies to completed felonies and not to attempts.
This claim is governed by our Supreme Court's decision in State v. Reynolds, 264 Conn. 1 (2003). In Reynolds, the Court rejected the contention that an out-of-state felony could not satisfy the "same felony" element of the statute. Id., 81. The Court determined that the term "same felony" as used in § 53a-46a(i)(1) means a felony that is the same in all material respects as the felony that is committed in this state during the commission of the capital felony; and that that requirement is fully satisfied if the two felonies share the same essential elements. Id., 82.
Both Connecticut and New York are Model Penal Code states. Indeed in 1971 when Connecticut adopted the Code, it relied heavily on New York's version. State v. Hill, 201 Conn. 505, 516-17 (1986). The definition of robbery is the same in both states. Compare General Statutes § 53a-133 ("A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny") with New York Penal Law § 160.00 ("Robbery is forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny"). The two felonies share the same essential elements.
As stated above, the defendant claims that because he was convicted in New York of attempted robbery such conviction cannot be considered the "same felony" as the completed robbery alleged in the present case. In describing the same felony aggravating factor, our statute provides, "The defendant committed the offense during the commission or attempted commission of, or during immediate flight from the commission or attempted commission of, a felony and the defendant had previously been convicted of the same felony." § 53a-46a(i)(1) (emphasis added).
According to the statute, if a defendant committed a capital felony during the commission of an attempted robbery and had previously been convicted of a completed robbery, the attempted robbery and completed robbery would be considered the "same felony" for purposes of the aggravating factor. It is not logical to construe the reverse situation differently. In other words, if an attempted robbery and a completed robbery are the "same felony" for purposes of the statute, it makes no difference which one is the prior conviction and which one was committed during the capital felony.
The motion is denied.
V SECOND MOTION TO DISMISS/STRIKE THE "SAME FELONY" AGGRAVATING FACTOR: IT IS UNCONSTITUTIONAL BOTH ON ITS FACE AND AS APPLIED TO THE FACTS OF THIS CASE, AND BECAUSE THE LEGISLATURE COULD NOT HAVE INTENDED THE AGGRAVATOR TO APPLY TO THE FACTS OF THIS CASE (#22) (#22b)This motion as amended raises two grounds in support of dismissal. First, that because the statute requires no more than a temporal or coincidental connection between the current felony and the capital felony, it is unconstitutional under the Eighth Amendment. Second, that because the prior felony does not necessarily need to involve violence, it does not narrow the class of death-eligible defendants in a substantively rational way.
As to the first ground, our Supreme Court has considered and rejected the exact claim. State v. Reynolds, supra, 264 Conn. 61-67.
The second ground is also governed by Reynolds (which involved the nonviolent crime of sale of narcotics as the prior felony) wherein the Court stated:
"It is apparent that [the same felony statute] comprises part of our capital sentencing scheme because the legislature believed that a person who has been convicted of a noncapital felony and who then commits a capital felony while committing the same noncapital felony for which he has already been convicted, falls within a small class of especially culpable recidivists who deserve to be eligible for the death penalty." State v. Reynolds, supra, 264 Conn. 80.
The motion is denied.
VI MOTION TO STRIKE AGGRAVATING FACTOR NUMBER TWO (#19)
The defendant asserts that the court should strike aggravating factor number two (that the offense was committed in an especially heinous, cruel or depraved manner) because the state has improperly alleged this aggravating factor in the disjunctive.
This claim must be rejected because our Supreme Court has held that "especially heinous, cruel or depraved" constitutes a unitary factor rather than three separate factors. State v. Ross, 230 Conn. 183, 260-61 (1994).
The motion is denied.
VII SECOND MOTION TO DISMISS/STRIKE THE ALLEGED ESPECIALLY HEINOUS, CRUEL, OR DEPRAVED AGGRAVATING FACTOR (#23)
The defendant asserts that the present judicial construction of the meaning of the "especially heinous, cruel or depraved" aggravating factor violates the Eighth Amendment and Article 1 §§ 8 and 9 of the Connecticut Constitution. The gist of the defendant's claim is that the judicial construction initially articulated in State v. Breton, 212 Conn. 258, 264-71 (1989) has been unconstitutionally revised in subsequent cases.
Under current law, the especially heinous, cruel or depraved aggravant requires proof that the defendant engaged in intentional conduct that inflicted extreme physical or psychological pain beyond that necessary for the killings. Evidence of the defendant's callousness or indifference to the victim's suffering would substantiate such a finding. State v. Ross, supra, 230 Conn. 262 (1994).
The defendant's claim has been considered and rejected by our Supreme Court. State v. Cobb, 251 Conn. 285, 442-46 (1999).
The motion is denied.
VIII THIRD MOTION TO DISMISS/STRIKE "ESPECIALLY HEINOUS, CRUEL, OR DEPRAVED" AGGRAVATING FACTOR BECAUSE IT IS UNCONSTITUTIONALLY VAGUE IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS AND ARTICLE FIRST §§ 8 AND 9 OF THE CONNECTICUT CONSTITUTION BECAUSE APPLYING IT TO THE CIRCUMSTANCES OF THIS CASE WOULD BE INCONSISTENT WITH THE CONNECTICUT SUPREME COURT'S PRIOR LIMITING CONSTRUCTION OF THE VAGUE STATUTORY LANGUAGE WHEN THAT AGGRAVATING FACTOR IS ALLEGED IN A MURDER BY GUNSHOT (#24) The defendant asserts that the "especially heinous, cruel or depraved" aggravating factor is unconstitutionally vague. This claim has been considered and rejected in a number of Supreme Court cases most recently in State v. Cobb, supra, 251 Conn. 442-46.The defendant also asserts that applying the current definition of especially heinous, cruel or depraved to the circumstances of the present case would be inconsistent with Supreme Court precedent. This claim is based on State v. Johnson, 253 Conn. 1 (2000) wherein our Supreme Court ruled that a normal gunshot murder with near instantaneous death cannot satisfy the especially heinous, cruel or depraved aggravant. Id., 69-78.
The defendant's claim must be rejected at this juncture of the case because a defendant is not entitled to a prepenalty phase determination with respect to the evidentiary sufficiency of an aggravant. State v. Reynolds, supra, 264 Conn. 102-03.
The motion is denied.
IX FOURTH MOTION TO DISMISS/STRIKE HEINOUS, CRUEL, OR DEPRAVED AGGRAVATOR: INSUFFICIENCY OF EVIDENCE THAT EITHER MURDER IS AGGRAVATED (#26)
The defendant asserts that as a matter of law the evidence is insufficient to support a finding of especially heinous, cruel or depraved with respect to the murder of the female shopkeeper. The defendant further requests that the court make a pretrial determination as to the sufficiency to support this alleged aggravating factor.
As stated above, our Supreme Court has ruled that a defendant is not entitled to a prepenalty phase determination as to the sufficiency of the evidence of an aggravating factor. State v. Reynolds, supra, 264 Conn. 102-03.
The motion is denied.
CT Page 18593
CONCLUSION
For the reasons set forth above, the defendant's motions to preclude/dismiss/strike are denied.So Ordered at Bridgeport, Connecticut this 21st day of September 2010.