State v. Breton, (SC 15876).

CourtSupreme Court of Connecticut
Writing for the CourtSULLIVAN, C. J.
Citation824 A.2d 778,264 Conn. 327
Docket Number(SC 15876).
Decision Date24 June 2003

264 Conn. 327
824 A.2d 778


(SC 15876).

Supreme Court of Connecticut.

Argued September 9, 2002.

Officially released June 24, 2003.

Sullivan, C. J., and Norcott, Palmer, Zarella, Foti, Schaller and Mihalakos, Js.

264 Conn. 331
Mark Rademacher, assistant public defender, for the appellant (defendant)

Lisa J. Steele, special public defender, with whom, on the brief, was David B. Bachman, special public defender, for the appellant (defendant) on the proportionality review.

Harry Weller, senior assistant state's attorney, with whom were John A. Connelly, state's attorney, and, on the brief, Maureen M. Keegan, supervisory assistant state's attorney, for the appellee (state).



The defendant, Robert J. Breton, Sr., appeals from a sentence of death imposed after his conviction of capital felony in violation of General Statutes (Rev. to 1987) § 53a-54b (8).1 The defendant was charged with one count of capital felony and two counts of murder in violation of General Statutes § 53a-54a (a)2 for the intentional killings of his former wife, JoAnn Breton, and his son, Robert J. Breton, Jr. After a jury convicted the defendant of all counts, a separate sentencing hearing was conducted pursuant to General Statutes (Rev. to 1995) § 53a-46a,3 at which the same

264 Conn. 332
jury considered further evidence. At the conclusion of
264 Conn. 332
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 judgment of guilty of capital felony and imposed the death penalty on the defendant. The defendant then appealed to this court pursuant to General Statutes § 51-199 and General Statutes (Rev. to 1995) § 53a-46b.4 We
264 Conn. 334
concluded that there were ambiguities in the special verdict form and in the trial court's jury instructions in the sentencing phase of the trial and, accordingly, we reversed the judgment imposing the death penalty and remanded the case for a new penalty phase hearing. State v. Breton, 235 Conn. 206, 260, 663 A.2d 1026 (1995) (Breton II)

On remand, the defendant elected to hold his new penalty phase hearing before a three judge panel pursuant to General Statutes (Rev. to 1995) § 53a-46a (b) and General Statutes §§ 53a-45 (b)5 and 54-82 (b).6 The chief court administrator appointed a panel, consisting of Judges Fasano, Damiani and Vertefeuille (panel), to hear the case. At the hearing, the state claimed as an aggravating factor that the defendant had committed the offense in an especially cruel manner within the meaning of § 53a-46a (h) (4). The defendant claimed

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two statutory and twenty-five nonstatutory mitigating factors.7

The panel found that the state had proved beyond a reasonable doubt that the defendant had committed

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both murders in an especially cruel manner. The panel also found that the defendant had proved by a preponderance of the evidence the factual underpinnings of certain claimed nonstatutory mitigating factors,8 but that none of the proved facts alone or in combination constituted mitigation considering all of the facts and circumstances of the case. In accordance with those findings, the panel rendered judgment sentencing the defendant to death. The defendant then appealed to this court

On appeal, the defendant claims that: (1) after the close of evidence, the panel improperly refused to grant a continuance to investigate newly discovered evidence that the defendant claims would have established a new mitigating factor, namely, that he was suffering from a mental impairment at the time that he killed his father in 1966;9 (2) the state improperly failed to disclose,

264 Conn. 337
prior to the penalty phase hearing, evidence that the defendant could have used to prove a mitigating factor involving his mental and volitional impairment;10 (3) the panel arbitrarily concluded that the defendant's proved factual claims pertaining to mitigation were not mitigating under the facts and circumstances of this case; (4) the panel improperly found that the defendant's mental and volitional impairment was not a mitigating factor;11 (5) the panel improperly failed to consider the cumulative effect of the defendant's mitigating evidence; (6) the panel improperly considered mitigating evidence produced by the defendant as proof of the aggravating factor; (7) the panel's failure to articulate the basis of its verdict violated the eighth amendment to the United States constitution12 and the defendant's constitutional right to due process; (8) the trial court improperly failed to hold a hearing to determine whether the existence of racial disparities in the administration of the death penalty in Connecticut violated the defendant's constitutional and statutory rights; (9) there was insufficient evidence that the defendant committed the capital felony in an especially cruel manner; (10) the cruel, heinous and depraved aggravating factor is unconstitutional; (11) § 53a-46a is unconstitutional on its face and as applied because it provides no meaningful limits on the sentencer's consideration of mitigating factors; and (12) Connecticut's capital sentencing
264 Conn. 338
scheme violates the eighth amendment and article first, §§ 8 and 9, of the Connecticut constitution.13 In this appeal, we also conduct mandatory proportionality review of the defendant's sentence pursuant to General Statutes (Rev. to 1995) § 53a-46b.



As set forth in Breton II, supra, 235 Conn. 212-14, the jury reasonably could have found the following facts at the guilt phase of the defendant's trial. "The defendant and JoAnn Breton were married in 1967, and had one child, Robert Breton, Jr. [Robert, Jr.]. In January, 1987, JoAnn Breton was divorced from the defendant. Shortly after the divorce, JoAnn and Robert, Jr., then fifteen years old, moved to a two-story apartment located in Waterbury.

"On Saturday, December 12, 1987, at approximately 10 p.m., the defendant went to the Sears Castaway Lounge in Waterbury, where he had several drinks. At the lounge, the defendant introduced himself to Mary-Jane Modeen, and the two talked and danced for several hours until the bar closed. At around 2 a.m. on Sunday, December 13, the defendant and Modeen left the bar together and drove in the defendant's truck to his apartment. They remained in the defendant's apartment for only a few minutes, however, because the defendant told Modeen that he had to go some place else. The defendant thereupon drove Modeen home.

"After dropping Modeen off at her home at around 2:45 a.m., the defendant drove to the apartment complex

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in which his former wife and son resided. The defendant entered their apartment and proceeded to the upstairs bedroom where JoAnn Breton was sleeping. The defendant, wielding a sharp, five inch knife, proceeded to beat and stab her viciously. Struggling to escape from the defendant's attack, JoAnn Breton managed to move across the room and away from the defendant. The defendant caught her, however, and continued his assault, inflicting multiple bruises, scrapes and knife wounds on her face, chest and neck. The defendant finally killed his former wife by thrusting the knife into and through her neck, transecting the carotid artery, a wound from which she bled to death.

"Robert, Jr., was asleep in his bedroom when he was awakened by his mother's cries for help. At some point prior to his mother's death, Robert, Jr., entered her bedroom, where he, too, was attacked by the defendant. Although bleeding from a gash on his right forearm and severe cuts on his hands and fingers, Robert, Jr., escaped from the bedroom to a nearby landing area between the first and second floors, and then proceeded down the stairway to the first floor. The defendant pursued Robert, Jr., down the stairs, overtaking him at the bottom of the staircase. The defendant then resumed his attack on Robert, Jr., repeatedly stabbing him in the face, chest, shoulder and neck. Robert, Jr., as did his mother, bled to death from a knife wound that severed his carotid artery.

"After the killings, the defendant left the apartment. Later that Sunday evening, he went to work at the Somers Thin Strip Company. On Monday morning, December 14, the defendant met a friend and coworker, Domenic Aurigemma and the two men drove to JoAnn Breton's apartment. The defendant went to the front door of the apartment while Aurigemma remained in the defendant's truck. The defendant quickly returned to his truck and told Aurigemma that the door to the

264 Conn. 340
apartment was locked and that the doorknob appeared to be stained with blood. After Aurigemma had also inspected the doorknob, the police were called. The police, with the assistance of the building superintendent, entered the apartment. There the police found the body of Robert, Jr., clad only in his underwear and covered with blood, lying at the foot of the stairs leading to the second floor with his head propped up against the wall. They also found the body of JoAnn Breton, similarly clad and covered with blood, lying face up on the floor of the upstairs bedroom." Id.

The following additional evidence was presented at the second penalty phase hearing. Walter Borden, a psychiatrist, testified that he initially had been retained by the office of the chief public defender to perform a forensic psychiatric evaluation of the defendant in connection with the defendant's first penalty phase hearing. In connection with his evaluation, Borden interviewed the defendant and certain of the defendant's family members, including his sister, Catherine Bunker, and his aunt, Ruth Breton, and reviewed certain psychological reports and public records pertaining to the defendant. Borden testified at the second penalty phase hearing that, during the course of his review, he learned the following relevant facts.


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