State Of Conn. v. Courchesne, No. 17174.

Citation296 Conn. 622,998 A.2d 1
Decision Date15 June 2010
Docket NumberNo. 17174.
CourtSupreme Court of Connecticut
PartiesSTATE of Connecticutv.Robert COURCHESNE.

296 Conn. 622
998 A.2d 1

STATE of Connecticut
v.
Robert COURCHESNE.

No. 17174.

Supreme Court of Connecticut.

Argued March 19, 2008.
Decided June 15, 2010.


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John Holdridge, assistant public defender, with whom was Mark Rademacher, assistant public defender, for the appellant (defendant).
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Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Eva Lenczewski, supervisory assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and SCHALLER, Js.*

PALMER, J.

At approximately 11 p.m. on September 15, 1998, the defendant, Robert Courchesne, and an acquaintance, Demetris Rodgers, were seated in the defendant's car in the parking lot of Webster Bank located on the corner of Chase and Wigwam Avenues in Waterbury, arguing over a drug debt that the defendant owed Rodgers' boyfriend. When Rodgers became upset upon learning that the defendant was unable to pay the debt, the defendant took a serrated kitchen knife that he kept in his car and repeatedly stabbed Rodgers with it in her chest and back. Rodgers, who was approximately eight and one-half months pregnant, managed to escape from the car and to run a short distance before collapsing in the street as a result of her wounds. The defendant fled the scene in his car. About fifteen minutes later, a passerby discovered Rodgers. Shortly thereafter, a police officer arrived at the scene and called for emergency medical personnel, who attempted to revive Rodgers. Rodgers then was transported to Waterbury Hospital (hospital), where she was pronounced dead. An emergency department physician performed an emergency cesarean section on Rodgers and delivered her baby, Antonia Rodgers.1 After Antonia was delivered, she immediately was subject to further resuscitation efforts and then placed on life support. Antonia remained on life support for forty-two days, at which time life support was removed. Within hours of removal, Antonia was pronounced dead. The cause of death was lack of oxygen to her brain, which she had suffered in utero as a result of the death of her mother.

The defendant was apprehended and charged in connection with the deaths of Rodgers and Antonia. Specifically, the defendant was charged with two counts of murder in violation of General Statutes § 53a-54a(a) 2 for the intentional killings of Rodgers and Antonia,3 one count of capital felony in violation of General Statutes (Rev. to 1997) § 53a-54b(8) 4 for the

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murder of two or more persons in the course of a single transaction, and one count of capital felony in violation of § 53a-54b(9) 5 for the murder of a person under sixteen years of age, namely, Antonia. The trial court Damiani, J., held a probable cause hearing in accordance with article first, § 8, of the state constitution, as amended by article seventeen of the amendments,6 and General Statutes § 54-46a(a),7 following which the court found probable cause to believe that the defendant had committed the crimes with which he was charged. 8 Thereafter, the defendant waived a jury trial with respect to the guilt phase of the proceedings and elected to be tried by a three judge panel (panel), which consisted of West, Cofield and D'Addabbo, Js. The panel found the defendant guilty on all counts, and, thereafter, the trial court, D'Addabbo, J.,9 conducted a penalty phase hearing before a jury in accordance with General Statutes (Rev. to 1997) § 53a-46a.10 At the conclusion
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of the penalty phase hearing, the jury returned a special verdict, finding, with respect to the defendant's conviction of capital felony under § 53a-54b(8), the existence of an aggravating factor, namely, that the defendant had committed the offense in an especially heinous, cruel or depraved manner within the meaning of § 53a-46a(i)(4), 11 and finding beyond a reasonable doubt that the aggravating factor outweighed any potential mitigating factor or factors. In accordance with the panel's finding of guilt and the jury's special verdict, the trial court, D'Addabbo, J., rendered judgment of guilty and sentenced the defendant to death.12

On appeal to this court,13 the defendant challenges the panel's finding of guilt and his death sentence. With respect to the guilt phase of the proceedings, he claims, inter alia, that the trial court improperly (1) denied his motion to suppress his written confessions and other evidence linking him to the murders, (2) denied his motion to dismiss the murder and capital felony charges relating to the death of Antonia because the court improperly invoked the common-law born alive rule 14 in concluding

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that Antonia was a “person” for purposes of this state's murder and capital felony statutes, (3) denied his motion to dismiss after concluding that both the murder and capital felony charges relating to the death of Antonia lawfully could be predicated on the doctrine of transferred intent, and (4) permitted the state to proceed under the born alive rule and the doctrine of transferred intent in violation of his rights under the due process and ex post facto clauses of the United States constitution. In addition, the defendant claims that, even if the trial court properly recognized the existence of the born alive rule for purposes of our Penal Code, (1) the evidence was insufficient to establish beyond a reasonable doubt that Antonia was, in fact, born alive and, therefore, a “person” within the meaning of this state's murder and capital felony statutes, and (2) the state's “novel integration” of the born alive rule and the transferred intent principle embodied in § 53a-54a(a) 15 violated his constitutional right to fair notice that his conduct with respect to the death of Antonia fell within the murder and capital felony statutes. With respect to the penalty phase of the proceedings, the defendant claims, inter alia, that (1) the evidence was insufficient to prove beyond a reasonable doubt that he committed the murder of Rodgers in an “especially heinous, cruel or depraved manner” within the meaning of § 53a-46a(i)(4), and (2) the jury reasonably could not have found that the aggravating factor outweighed any mitigating factor or factors.16

For the reasons that follow, we reject the defendant's guilt phase claims and the penalty phase claims that we address. We nevertheless conclude that the panel applied the wrong evidentiary standard in finding that the state had established beyond a reasonable doubt that Antonia was born alive. Specifically, the panel improperly failed to consider whether, in accordance with State v. Guess, 244 Conn. 761, 764, 780, 715 A.2d 643 (1998), Antonia was brain dead at the time of her delivery due to the irreversible cessation of brain function even though her circulatory and respiratory systems were maintained by artificial means for forty-two days after her delivery. Accordingly, with respect to the murder charge arising out of the death of Antonia and both capital felony charges, all of which are predicated on the state's contention that, because Antonia was born alive, she was a person within the meaning of our Penal Code, we conclude that the defendant is entitled to a new trial at which the state will be required to prove that Antonia was not brain dead at the time she was born. If, upon retrial, the defendant is found guilty of the capital felony charge concerning the murder of Rodgers and Antonia in the course of the same transaction, the defendant also is entitled to a new penalty phase hearing.

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Finally, we affirm the defendant's conviction for the murder of Rodgers.
I
SUPPRESSION CLAIMS

The defendant first claims that the trial court improperly denied his motion to suppress certain statements that he made to the police implicating himself in Rodgers' murder in violation of his rights under the fourth,17 eighth 18 and fourteenth 19 amendments to the United States constitution.20 The defendant contends that the trial court improperly rejected his claims that he was seized by the police, that the seizure exceeded the bounds of a Terry21 stop and that, following that stop, he did not voluntarily consent to accompany the police to the Waterbury police department for questioning. The defendant further contends, contrary to the conclusion of the trial court, that the fruits of these constitutional improprieties, including his oral and written statements in which he confessed to murdering Rodgers, must be suppressed. We disagree.

The following facts are necessary to our resolution of the defendant's suppression claims. The defendant filed a motion to suppress all oral and written statements that he had made to the police-in which he allegedly confessed to murdering Rodgers-on the ground that those statements had been obtained illegally. Thereafter, the trial court, O'Keefe, J., conducted a suppression hearing at which both defense counsel and the state presented evidence. The state called as witnesses Detective John Kennelly and Sergeant Gary Pelosi, both members of the criminal investigations division of the Waterbury police department. The defense witnesses included the defendant's girlfriend in 1998, Jacqueline Wilson, the defendant's neighbors, Tamara Oliver and Sydney Vega, and Paul Ariola, a detective with the Waterbury police department. No two witnesses gave the exact same account of events relating to the defendant's alleged seizure by the police.

The state's first witness, Kennelly, testified that, sometime in...

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