State v. Pastet

• Decision Date: 24 June 1975
• Citation: 363 A.2d 41,169 Conn. 13
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. John PASTET.

Page 41

363 A.2d 41

169 Conn. 13

STATE of Connecticut v. John PASTET.

Supreme Court of Connecticut.

June 24, 1975.

Certiorari Denied Nov. 3, 1975. See 96 S.Ct. 297.

James A. Wade, Special Public Defender, for appellant (defendant).

William F. Gallagher, Special Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., Jerrold H. Barnett and Ernest J. Diette, Jr., Asst. State's Attys., for appellee (state).

Before COTTER, LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ.

COTTER, Associate Justice.

On May 3, 1962, the defendant was indicted on a charge of murder in the first degree in perpetrating a robbery. After a trial the jury returned a verdict of guilty of murder in the first degree without recommending a sentence of life imprisonment which they were empowered to do under the law applicable at the time of trial, General Statutes § 53-10. ¹ Subsequently, after the state moved for sentence, the court imposed the only other penalty prescribed by the statute pursuant to which the defendant was convicted, the sentence of death. An appeal from the judgment was taken to this court, which affirmed. State v. Pastet, 152 Conn. 81, 203 A.2d 287. No appeal or petition for certiorari to the United States Supreme Court was taken from that judgment.

While awaiting execution of the sentence, the defendant was declared insane by the Superior Court in Tolland County (Barber, J.) under General Statutes § 54-101 and transferred to the Norwich State Hospital and, subsequently, to the Security Treatment Center at Middletown for confinement, support and treatment, pending recovery of his sanity as provided by that statute. While thus confined, the defendant petitioned for a writ of habeas corpus in the Superior Court. At the hearing on this petition, the defendant testified in his own behalf in support of his claims that his constitutional rights were violated at his murder trial. This petition was denied (Grillo, J.) on June 19, 1972.

Thereafter, on June 29, 1972, the United States Supreme Court decided Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, and companion cases. As that court's per curiam opinion established, certiorari in those cases was granted limited to a single question: 'Does the imposition and carrying out of the death penalty in (these cases) constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?' Ibid., 239, 92 S.Ct. at 2727. The holding answered that question in the affirmative in those cases considered, and the per curiam opinion continued: 'The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings.' Ibid., 240, 92 S.Ct. at 2727. (Emphasis added.) The statutes imvolved in those cases ² were not held unconstitutional per se; rather, only the imposition of death sentences pursuant to the authority conferred by these statutes was invalidated. See, e.g., Eaton v. Capps, 480 F.2d 1021, 1023 (5th Cir.). For theose cases pending before the Supreme Court and for those in which a petition for certiorari had been filed, summary action was taken vacating the various judgments insofar as they left undisturbed the death penalty imposed and remanding the cases for further proceedings. Such was the disposition ordered, for example in State v. Delgado, 408 U.S. 940, 92 S.Ct. 2879, 33 L.Ed.2d 764, and State v. Davis, 408 U.S. 935, 92 S.Ct. 2956, 33 L.Ed.2d 750. In both of these cases the death penalty had been imposed pursuant to § 53-10 and the judgments affirmed by this court. State v. Delgado, 161 Conn. 536, 290 A.2d 338; State v. Davis, 158 Conn. 341, 260 A.2d 587. Petitions for writs of certiorari were pending on these cases in the United States Supreme Court at the time of its decision in Furman. That court granted both petitions; on remand, this court in each case set aside the judgment insofar as it imposed the death penalty and then remanded each case to the Superior Court for further proceedings and the imposition of penalty. State v. Delgado, 163 Conn. 641, 297 A.2d 75; State v. Davis, 163 Conn. 642, 316 A.2d 512.

On September 15, 1972, the defendant filed a motion in this court to 'reopen' the judgment in this case, 'insofar as the imposition of the death penalty is concerned' and moved that the case be subsequently remanded to Superior Court for further proceedings. This court dismissed the motion 'since the Superior Court still has jurisdiction of the case and over the person of the defendant,' and ordered that 'any proceedings to determine whether the defendant has recovered his sanity, how he should be confined, and for change of the sentence to life imprisonment because of the Furman decision must be pursued in that court.' State v. Pastet, Conn., 298 A.2d 784.

Thereafter, upon a motion of the defendant, the Superior Court ordered a psychiatric examination of the defendant to inquire into his 'mental status' prior to resentencing proceedings. Counsel for the defendant and the state agreed upon the selection of a single psychiatrist of the court's choosing to conduct this examination. Dr. Jay Katz, the psychiatrist so appointed by the court, interviewed the defendant after talking to and receiving materials from counsel for both the defendant and the state, filed his report with the court, and subsequently testified at the sentencing hearing. Dr. Katz diagnosed the defendant as having 'a personality disorder with passive aggressive tendencies and paranoid trends showing also evidence of immaturity.' Nevertheless, he considered the defendant's testimony as set forth in the transcript of the hearing held on the habeas corpus petition on June 13, 1972, to be inconsistent with the finding of insanity made in 1965 pursuant to § 54-101. Finally, Dr. Katz believed that the defendant was able to undergo and participate in court proceedings without reverting to a psychotic state.

At the sentencing hearing, Dr. Joyce Millette, another psychiatrist, was called as a witness by the defendant. At the time of the proceedings she was employed by the State Department of Mental Health and assigned to both the Security Treatment Center in Middletown and the Division of Alcohol and Drug Dependency in Hartford. The defendant had been her patient at the Security Treatment Center, and she had participated in and approved a decision to transfer the defendant on December 7, 1972, from the Treatment Center to the Connecticut Correctional Institution at Somers. At the time of the sentencing proceedings her diagnosis of the defendant's mental state was that 'he both understood and related to the proceedings and was not psychotic.'

On July 19, 1973, a little over a month before the sentencing proceedings, the defendant was returned to the Security Treatment Center following a series of incidents at the Correctional Institution during which he destroyed personal property in his cell and tried to injure himself. Before being transferred, however, he was examined by Dr. Jacob Van der Werff, a consulting psychiatrist at Somers for eleven years, who diagnosed the defendant at this time as 'suffering from a personality disorder but as non-psychotic.'

Both Drs. Millette and Katz submitted additional opinions to the court concerning the defendant's condition. Dr. Millette indicated that after sentence was imposed, the Security Treatment Center would be a 'better place' for him than the Correctional Institution at Somers. In Dr. Katz's opinion, if the sentence to be imposed allowed release in a reasonable period of time, 'then perhaps the defendant should be returned to a hospital for the express purpose of further rehabilitation but that it should be made quite clear to the defendant that this was not done because the court considered him to be insane.'

The defendant, present at the sentencing hearing and at the time of sentence, when asked by the court if he had anything to say in his own behalf, responded: 'Your Honor, I am not concerned about what happens to me. And I didn't have to come here and I don't want to be here and no matter what your decision is Your Honor, I will go on living the way I know I will have to live. If Mr. Rosoff (the victim) can't fulfill any life or happiness, I don't want any.'

After these proceedings, the Superior Court (Saden, J.) sentenced the defendant to life imprisonment from which judgment the defendant has appealed.

I

The defendant claims that the court lacked the authority, statutory or otherwise, to sentence him to life imprisonment, so that in imposing this sentence the court violated his rights under the due process clauses of the state ³ and federal ⁴ constitutions ⁵ and the separation of powers provision of the state constitution. ⁶ The essence of his claim is that under § 53-10 as it applied to this case the only procedure authorized by the statute for the imposition of a sentence of life imprisonment was upon a recommendation to that effect by the jury in their discretion as part of their verdict; in sentencing the defendant to life imprisonment absent such a recommendation, he argues, the trial court exceeded its statutory authority and thereby violated his constitutional rights.

We stated on another occasion that the purpose of an identical provision in the statutory predecessor of § 53-10, viz., General Statutes § 3266d (Cum.Sup.1955), empowering the jury to recommend life imprisonment instead of the otherwise mandatory death penalty in cases of first degree murder, was to make it possible for an act of clemency in behalf of a person convicted of this offense to take place at the trial stage of a criminal prosecution in the discretion of the jury. State v. Walters, 145 Conn. 60, 71-72, 138 A.2d 786. That statute, however, limited this discretionary power of the jury to the recommendation of a sentence of life imprisonment alone, so that under the statute two alternative forms of punishment,...