State v. Breton, 13677

CourtSupreme Court of Connecticut
Citation562 A.2d 1060,212 Conn. 258
Decision Date25 July 1989
Docket NumberNo. 13677,13677
PartiesSTATE of Connecticut v. Robert J. BRETON, Sr.

Page 1060

562 A.2d 1060
212 Conn. 258
STATE of Connecticut
Robert J. BRETON, Sr.
No. 13677.
Supreme Court of Connecticut.
Argued June 6, 1989.
Decided July 25, 1989.

[212 Conn. 259] Steven M. Sellers, Asst. State's Atty., with whom were John A. Connelly, State's Atty., and, on the brief, John J. Kelly, Chief State's Atty., and Karen Diebolt, Asst. State's Atty., for appellant (State).

G. Douglas Nash, Public Defender, with whom, on the brief, was Richard Kelly, Asst. Public Defender, for appellee (defendant).

David S. Golub, Stamford, and Deborah Fins filed a brief for the NAACP Legal Defense and Educational Fund, Inc., et al. as amici curiae.


Page 1061

[212 Conn. 259] PETERS, Chief Justice.

The sole issue in this appeal is whether the aggravating factor "especially cruel," contained in this state's death penalty statute, General Statutes § 53a-46a(h)(4), is unconstitutionally vague. The trial court granted the defendant's motion to dismiss the state's alleged aggravating factor and we then granted the state's motion for an expedited appeal pursuant to General Statutes § 52-265a. We remand the case to the trial court with direction to proceed with the capital sentencing hearing.

By substitute information the state charged the defendant with two counts of murder, pursuant to General Statutes § 53a-54a(a), and one count of capital felony, pursuant to General Statutes § 53a-54b(8). 1 Before trial and in response to the defendant's motion for written notice of any aggravating factors, the state alleged that the defendant had committed the offense "in an especially cruel manner," 2 and therefore should [212 Conn. 260] be sentenced to death if convicted of the predicate capital felony. The defendant moved the trial court to dismiss the aggravating factor, claiming that its vagueness violated our federal and state constitutions.

The trial court granted the defendant's motion to dismiss, holding that the term "especially cruel" was facially vague and overbroad in violation of the federal constitution. U.S. Const., amends. VIII and XIV. While the trial proceeded on the murder and capital felony charges, the state sought and received permission to file an expedited appeal to this court. General Statutes § 52-265a. Thereafter a jury returned guilty verdicts on all three counts of the information.

On appeal, the state urges us to remand the case to the trial court for further proceedings leading to the defendant's sentencing. The state suggests one of two possible courses of action: (1) to order the trial court to devise an appropriate limiting construction of the term "especially cruel"; or (2) to adopt a limiting construction ourselves to guide the trial court. The defendant, on the other hand, argues that the trial court correctly dismissed the aggravating factor because the legislature, which defines criminal conduct in this state, should by statute undertake the task of limiting the definition of the term "especially cruel" to meet constitutional standards.

Our death penalty statute, General Statutes § 53a-46a, 3 permits a person convicted

Page 1062

of a capital [212 Conn. 261] felony to be sentenced to death if the state proves the existence of an aggravating factor beyond a reasonable doubt and the defendant fails to prove the existence of a mitigating factor by a preponderance [212 Conn. 262] of the evidence. General Statutes § 53a-46a(g) and (h); State v. Daniels, 207 Conn. 374, 384-85, 542 A.2d 306 (1988) (Daniels I ). Because "the death penalty is exacted with great infrequency even for the most [212 Conn. 263] atrocious crimes [there must be a] meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 33 L.Ed.2d 346, reh. denied sub nom. Jackson v. Georgia, 409 U.S. 902, 93 S.Ct. 89, 34 L.Ed.2d 164 (1972)

Page 1063

(White, J., concurring). 4 Our statute reflects the effort of our legislature to distinguish the most culpable of homicides from all other homicides.

The United States Supreme Court has held that "if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State's responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates 'standardless [sentencing] discretion.' " Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). Thus, "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious [212 Conn. 264] action." Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell and Stevens, Js.). Of special importance to this case, a state must avoid defining aggravating factors in an open-ended, subjective manner that would allow the trier unfettered discretion in levying a death sentence and thus create a substantial risk that the trier will inflict punishment arbitrarily or capriciously. California v. Brown, 479 U.S. 538, 541, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987). 5 A capital sentencing "system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of [triers] with the result that a pattern of arbitrary and capricious sentencing ... could occur." Gregg v. Georgia, supra, 428 U.S. 195 n. 46, 96 S.Ct. at 2935 n. 46. 6 Therefore, "an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably [212 Conn. 265] justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).

Most of the aggravating factors contained in Connecticut's death penalty statute direct the trier to make a definite, objective finding. See General Statutes § 53a-46a(h)(1), (2), (5) and (6). Section 53a-46a(h)(4), however, contains an arguably subjective standard, that "the defendant

Page 1064

committed the offense in an especially ... cruel ... manner." Two United States Supreme Court decisions are particularly instructive on the constitutional validity of this criterion as a basis for imposition of the death penalty.

In Godfrey v. Georgia, supra, a jury convicted the petitioner of two counts of murder and one count of aggravated assault. At the sentencing hearing, the trial court charged the jury that it could impose a death sentence if it found beyond a reasonable doubt that the offense was "outrageously or wantonly vile, horrible and inhuman," the aggravating factor promulgated by the Georgia legislature. The United States Supreme Court held this factor unconstitutionally vague under Gregg v. Georgia, supra, explaining that the jury had sentenced the petitioner to death "based upon no more than a finding that the offense was 'outrageously or wantonly vile, horrible and inhuman.' There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost every murder as 'outrageously or wantonly vile, horrible and inhuman.' " Godfrey v. Georgia, supra, 446 U.S. at 428-29, 100 S.Ct. at 1765. 7

[212 Conn. 266] In Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), an Oklahoma jury sentenced the petitioner to death based in part upon a finding that he had committed murder in an "especially heinous, atrocious, or cruel" manner. The trial court had not limited, in any fashion, the jury's construction of this aggravating factor. A unanimous court relied on Godfrey to hold that "the language of the Oklahoma aggravating circumstance at issue ... gave no more guidance than the 'outrageously or wantonly vile, horrible or inhuman' language that the jury returned in its verdict in Godfrey." Id., 108 S.Ct. at 1859. The court therefore struck the aggravating factor as facially vague and remanded the case to allow the Oklahoma court the opportunity to define the statutory aggravating factor with sufficient precision to satisfy constitutional standards. 8

As we have recently noted, Godfrey and Maynard raise serious questions about the constitutional validity of § 53a-46a(h)(4). See State v. Daniels, 209 Conn. 225, 228-29 n. 1, 550 A.2d 885 (1988) (Daniels II ). On its face, there is no apparent distinction between our statutory reference to the commission of the offense "in an especially ... cruel ... manner" and the Oklahoma statute that Maynard struck down. Indeed, the trial court in this case granted the defendant's motion to dismiss the aggravating factor precisely on this ground. The state does not take issue with the trial court's ruling insofar as it concluded that, without more, the "especially cruel" aggravating factor cannot withstand a vagueness challenge. We agree.

Godfrey and Maynard, however, contain an important caveat. In each case, the United States Supreme Court alluded to an absence of jury instructions that [212 Conn. 267] might have limited the ambit of a statutory term that was otherwise unconstitutionally vague. 9 More pointedly, the court in Maynard

Page 1065

stated that it did "not hold that some kind of torture or serious physical abuse is the only limiting construction of the heinous, atrocious, or cruel aggravating circumstance that would be constitutionally acceptable." Maynard v. Cartwright, supra, 108 S.Ct. at 1859-60. By implication, certain limiting constructions of the aggravating circumstance would correct the constitutional...

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