State v. Ross

• Decision Date: 05 May 1993
• Docket Number: Nos. 13224,13225 and 13226,s. 13224
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Michael ROSS.

Page 886

624 A.2d 886

225 Conn. 559

STATE of Connecticut v. Michael ROSS.

Nos. 13224, 13225 and 13226.

Supreme Court of Connecticut.

May 5, 1993.

Berdon, J., filed dissenting opinion.

Michael A. Fitzpatrick, Sp. Public Defender, in support of motion.

Harry Weller, Asst. State's Atty., in opposition to motion.

Before PETERS, C.J., and CALLAHAN, BERDON, NORCOTT and DUPONT, JJ.

PER CURIAM.

The defendant, Michael Ross, who has appealed from the judgments of conviction of capital felony and from the imposition of the death sentence after those convictions, has filed a motion for enlargement of the class of similar cases that we will consider in determining whether his death sentence is justified in light of the proportionality requirement of General Statutes § 53a-46b(b)(3). ¹ Exercising its rule-making authority, this court has determined to limit the class of similar cases, in accordance with the requirements of the statute, to cases in which the conviction of a capital felony after trial was followed by a hearing to consider the imposition of the death penalty. Practice Book § 4066A(b). ² In the particular circumstances of this defendant's appeal, we have allowed the class of similar cases to be enlarged to include the defendant's two murder convictions for which consecutive life sentences were imposed as a result of his entering pleas of nolo contendere after the original charges of capital felony were reduced.

The defendant now asks that the class of similar cases be further amended in one of two ways. His more expansive proposal is to enlarge the class of similar cases to include any case prosecuted after October 1, 1973, in which the state could have charged the defendant with a capital felony and that resulted in a conviction of not less than manslaughter in the first degree. General Statutes §§ 53a-55, 53a-55a. His more limited proposal is to enlarge the class of similar cases to include all capital felony cases prosecuted after October 1, 1973, that resulted in a conviction of not less than manslaughter in the first degree following a plea or a trial.

We unanimously decline to accept the defendant's more expansive proposal. That proposal does not differ materially from the proposals that we rejected when, in exercising our rule-making authority, we defined the class of similar cases to include "[o]nly those capital felony cases that have been prosecuted in this state after October 1, 1973, and in which hearings on the imposition of the death penalty have taken place...." Practice Book § 4066A(b).

With regard to the defendant's more limited proposal, we unanimously agree, in the circumstances of this case, to amend our existing definition of the class of similar cases to add any case in which a capital felony conviction has been obtained and the conviction was followed not by a hearing on the imposition of the death penalty but by an imposition of a sentence other than death, either by virtue of a plea agreement or by virtue of the fact that the state did not seek the death penalty. If this predicate has been met, and if the record contains sufficient information to enable a relevant comparison to be undertaken, then we will consider such cases as part of the class of similar cases.

We decline, however, to include in the relevant class any cases in which the prosecution has failed to establish the commission of a capital felony. In the first appeal from the imposition of a death sentence, it is inevitable that proportionality review will have to be undertaken against the background of a limited number of similar cases. That inevitability warrants intensive scrutiny of the cases that are similar but does not justify distortion of the principle of similarity. ³

Under the express provisions of General Statutes §§ 53a-35a and 53a-46a, ⁴ only conviction of a capital felony subjects a defendant to the possible imposition of a death sentence. Only conviction of a capital felony occasions a hearing into mitigating and aggravating factors to determine whether the death penalty should be imposed. Only conviction of a capital felony will put on the record the circumstances that are relevant to the proportionality review mandated by § 53a-46b(b)(3).

In view of this unambiguous statutory pattern, the propriety of a death sentence imposed for conviction of a capital felony cannot appropriately be compared with sentences imposed as the result of convictions of less serious crimes. As a matter of law, sentences imposed as the result of such other convictions have not been "imposed in similar cases," as § 53a-46b(b)(3) requires.

The motion is granted in part to enlarge the class of similar cases for the purposes of this appeal to include all convictions of a capital felony after October 1, 1973, whether such convictions resulted from a trial or from a plea and whether or not such convictions were followed by the imposition of the death penalty.

In this opinion PETERS, C.J., and CALLAHAN, NORCOTT and DUPONT, JJ., concurred.

BERDON, Associate Justice, dissenting.

The defendant, Michael Ross, moves to expand the universe of cases because the present rules and case law are inadequate for proportionality review. The defendant lists only fifteen cases that can now be considered (including four cases in which he was a defendant).

I would grant the defendant's request for oral argument on the motion. Certainly, we should allow both the defendant and the state to supplement their written argument and respond to our questions on a matter as important as determining whether the death penalty should be imposed.

First, I must put the defendant's request in its proper perspective, as the New Jersey Supreme Court did in State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987). "Proportionality review has a function entirely unique among the review proceedings in a capital proceeding. Proportionality review, in the context of a capital sentencing scheme, is not appellate review to ensure that the aggravating factors outweigh beyond a reasonable doubt all the mitigating factors ... or to determine if the death sentence is disproportionate to the crime in violation of the ban against cruel and unusual punishment. That death is not disproportionate in the sense of being a cruel and unusual punishment is presumed by the nature of the review.... Rather, the purpose of review here is of a different sort.... It purports to inquire instead whether the penalty is nonetheless unacceptable in a particular case because [it is] disproportionate to the punishment imposed on others convicted of the same crime.

"The heightened concern in a capital case for whether a sentence is disproportionate in this sense is twofold and derives from the finality of the result and the risk that the proceedings are vulnerable to the influence of impermissible considerations. First, the imposition of death by public authority is ... profoundly different from all other penalties.... Because of this 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. Proportionality review assists us in assuring that we have designed procedures which are appropriate to the decision between life and death and ... [that] we have followed those procedures.

"Proportionality review further acts as a check against the random and arbitrary imposition of the death penalty by an aberrant jury.... [G]iven the emotions generated by capital crimes, it may well be that juries, trial judges, and appellate courts considering sentences of death [may be] affected by impermissible considerations.... Discrimination on the basis of race, sex, or other suspect characteristic cannot be tolerated. As the Florida Supreme Court stated: ...