State v. Cobb, 14384

• Decision Date: 08 August 1995
• Docket Number: No. 14384,14384
• Citation: 234 Conn. 735,663 A.2d 948
• Parties: STATE of Connecticut v. Sedrick COBB.
• Court: Connecticut Supreme Court

Page 948

663 A.2d 948

234 Conn. 735

STATE of Connecticut v. Sedrick COBB.

No. 14384.

Supreme Court of Connecticut.

Argued March 15, 1995.

Decided Aug. 8, 1995.

David S. Golub, with whom was Jonathan M. Levine, Stamford, in support of the motion.

Jack W. Fischer, Assistant State's Attorney, and John A. Connelly, State's Attorney, in opposition to the motion.

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON, NORCOTT and KATZ, JJ.

BORDEN, Associate Justice.

The defendant, Sedrick Cobb, who has appealed from the judgment of conviction of capital felony and from the imposition of the death sentence following that conviction, has moved ¹ for enlargement of the class of similar cases that we will consider in determining whether his death sentence is justified in light of the prohibition against disproportionality provided by General Statutes § 53a-46b(b)(3). ² In his motion, the defendant requests that we consider "all cases prosecuted in Connecticut after October 1, 1973, in which a capital felony could have been charged pursuant to Conn.Gen.Stat. § 53a-46b and which resulted in a homicide conviction, following a plea or trial." ³ (Emphasis added.) The defendant argues that this expanded universe of cases is necessary to enable this court to evaluate his claim that race has an impermissible effect on capital sentencing decisions in Connecticut, rendering the imposition of the death penalty upon him disproportionate under § 53a-46b(b)(3).

The defendant argues in his motion that "because of the fundamental distinction between the death penalty and all other punishments, there is a 'corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.' " Further, the defendant argues that "[p]roportionality review is one of the critical measures adopted by the Connecticut legislature to help achieve such reliability."

The defendant accordingly seeks to expand the universe of cases in order to present evidence that the death penalty scheme has been disproportionately applied to black defendants or to defendants whose victims were white. ⁴ The defendant argues that "the preliminary evidence of racial ... disparities in the administration of the death penalty in Connecticut presents a genuine risk that the death penalty scheme in this State is tainted by impermissible considerations." (Emphasis added.)

In setting out the defendant's claim, it is useful to make explicit what the defendant does not claim. The defendant does not claim that either the federal or the state constitution requires that the universe of cases for purposes of proportionality review pursuant to § 53a-46b(b)(3) include the class of cases that he seeks to have us include. Thus, we are not faced with a constitutional claim in passing on the defendant's motion.

Moreover, the defendant does not claim that the type of appellate review of a death sentence that he seeks to have us perform could not be conducted pursuant to § 53a-46b(b)(1), which provides for setting aside such a sentence if we were to determine that it "was the product of passion, prejudice or any other arbitrary factor." Indeed, the defendant's proportionality review counsel; see footnote 1; asserts that he brings this motion under § 53a-46b(b)(3) because the defendant's other appellate counsel do not intend to raise such a claim under § 53a-46b(b)(1). The defendant's claim, therefore, is that, independent of the state constitution, federal constitution or § 53a-46b(b)(1), § 53a-46b(b)(3) requires, as a matter of statutory interpretation, that we expand the universe of cases for purposes of proportionality review to include the class of cases that he has identified.

The state posits four arguments in opposition to the defendant's motion to expand the universe of cases. The state argues that: (1) the defendant's motion is not in compliance with Practice Book § 4066A(b) because it does not "identify the additional case or cases claimed to be similar and set forth ... the circumstances of the crime and the character and record of the defendant involved"; (2) this court has already rejected, in State v. Ross, 225 Conn. 559, 561, 624 A.2d 886 (1993) (Ross I ), ⁵ a claim nearly identical to that of the defendant in this case, and this court should adhere to that decision; (3) practical considerations militate against granting the defendant's motion because it would require an evidentiary hearing to determine which cases could have been charged as capital felonies, and a hearing to determine the significance of the statistical evidence revealed by such a hearing; and (4) the defendant's motion is based on a legally insufficient federal constitutional claim, and therefore it should be denied.

We conclude that, as a matter of statutory interpretation, proportionality review pursuant to § 53a-46b(b)(3) does not contemplate the type of inquiry that would be necessitated by the defendant's motion. We also conclude that the type of appellate claim presented by the defendant in his motion under § 53a-46b(b)(3) is more appropriately presented under § 53a-46b(b)(1), provided that it is based on a proper, preexisting trial record. Lastly, we conclude that, despite the defendant's failure to raise this claim at trial and, therefore, to have created a proper trial record, he will be permitted to raise it by way of a petition for a writ of habeas corpus after appeal, if the ultimate disposition of his direct appeal in this case renders his claim still viable.

I

We first address the state's claim that we should deny the defendant's motion because it does not comply with the requirements of the Practice Book. The state argues that the defendant's motion did not identify the additional cases claimed to be similar and did not set forth the circumstances of the crime and the character and record of the defendant involved as required by Practice Book § 4066A. ⁶

We reject this claim. The defendant's motion, by definition, cannot comply with § 4066A. The defendant requests that he be given an opportunity to identify those cases that would be relevant to proportionality review of his death sentence, and to create a record sufficient to support his claim. Although strict adherence to the requirements of § 4066A in this case would defeat the defendant's motion, we decline to rest our decision on those requirements because of the serious nature of the defendant's claim. Thus, notwithstanding its procedural deficiencies, we consider the defendant's motion on its merits.

II

We next address the state's contention that the defendant's request in this case is virtually identical to the application that was considered and rejected in Ross I, ⁷ and that our decision in Ross I controls this motion. The defendant counters that our decision in Ross I "did not address--and did not foreclose--the claim presented here that expansion of the proportionality universe is necessary to enable the court to assess whether Connecticut's capital punishment scheme is impermissibly influenced by racial considerations." Our review of the Ross motion, however, reveals that, in fact, the issue was squarely before this court by virtue of the claims contained in that motion. ⁸ As a result, our decision in that case impliedly rejected the claim presented here. ⁹ Nonetheless, because the published opinion did not address directly the claim that racial considerations impermissibly taint the administration of Connecticut's death penalty scheme, we decline to rely on our opinion in Ross I in resolving the issues presented by the defendant's motion.

III

A

We turn, therefore, to the merits of the question presented by the defendant's motion, namely, whether as a matter of statutory construction, § 53a-46b(b)(3) contemplates the universe of cases proposed by the defendant. The merits of the defendant's motion must be viewed in the light cast by the history of the concept of proportionality review within the context of capital punishment jurisprudence. In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the United States Supreme Court rendered a decision effectively invalidating our capital punishment statute because it provided the sentencing jury with no clear, objective guidelines and virtually unlimited discretion in imposing a death sentence. In 1976, the United States Supreme Court examined several states' revised death penalty statutes. All of these statutes provided for automatic appeal of death sentences. Georgia's statute required the reviewing court, to some extent at least, to determine whether, considering both the crime and the defendant, the sentence was disproportionate to that imposed in similar cases. In some states, such as Florida, the appellate court performed proportionality review despite the absence of a statutory requirement. Others, such as California and Texas, conducted no proportionality review whatsoever. The United States Supreme Court, without explicitly addressing the question of proportionality review, concluded that each of these states' capital punishment schemes was constitutional. See Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

Nonetheless, until 1984, it was generally believed that any capital punishment statute that did not provide for proportionality review was constitutionally vulnerable. Therefore, in 1980, when our legislature enacted § 53a-46b, which for the first time provided for appellate review, including proportionality review, of all death sentences, the then House of Representatives chairman of the legislature's Judiciary Committee described the proposed bill as "clarify[ing] our existing death penalty law without any expansion of it or retraction from it.... It also mandates that there be an automatic review by the ...