State v. Ross

• Citation: 849 A.2d 648,269 Conn. 213
• Decision Date: 01 June 2004
• Docket Number: (SC 16328)
• Court: Supreme Court of Connecticut
• Parties: STATE OF CONNECTICUT v. MICHAEL B. ROSS

269 Conn. 213

849 A.2d 648

STATE OF CONNECTICUT v. MICHAEL B. ROSS

(SC 16328)

Supreme Court of Connecticut.

Argued September 10, 2003

Officially released June 1, 2004

Sullivan, C. J., and Norcott, Vertefeuille, Zarella, Lavery, Foti and Dranginis, Js.

Lauren Weisfeld, assistant public defender, with whom was James B. Streeto, assistant public defender, for the appellant (defendant).

Michael A. Fitzpatrick, special public defender, with whom was Felix Esposito, special public defender, for the appellant (defendant) on the proportionality review.

Harry Weller, supervisory assistant state's attorney, with whom were Kevin T. Kane, state's attorney, and, on the brief, Peter McShane and Marjorie Allen Dauster, senior assistant state's attorneys, and Susan C. Marks, supervisory assistant state's attorney, for the appellee (state).

Opinion

SULLIVAN, C. J.

The defendant, Michael B. Ross, was charged in three cases¹ with eight counts of capital felony in violation of General Statutes § 53a-54b. The trial court dismissed two counts for lack of territorial jurisdiction and, after a jury trial, the defendant was convicted of four counts of capital felony in violation of § 53a-54b (5) and two counts of capital felony in violation of § 53a-54b (6).² State v. Ross, 230 Conn. 183, 188, 194-95, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995) (Ross II).³ After a separate penalty phase hearing pursuant to General Statutes (Rev. to 1987) § 53a-46a,⁴ he was sentenced to death. The defendant appealed from the judgments to this court. We affirmed the defendant's convictions, but determined that certain evidentiary rulings by the trial court in the penalty phase had impaired the defendant's ability to establish a mitigating factor and, accordingly, we reversed the judgments imposing the death penalty. Id., 286. On remand, a second penalty phase hearing was held before a jury, which found an aggravating factor for each capital felony conviction and no mitigating factor. In accordance with the jury's findings, the court, Miano, J., imposed a death sentence on each count. On appeal to this court pursuant to General Statutes § 51-199⁵ and General Statutes (Rev. to 1987) § 53a-46b,⁶ the defendant raises numerous challenges to the sentences of death. We affirm the judgments imposing the death penalty on each count of capital felony.

As set forth in Ross II, supra, 230 Conn. 191-92, the jury at the guilt phase trial reasonably could have found the following facts. "On June 13, 1984, the defendant accosted seventeen year old Wendy B. as she was walking along Route 12 in Lisbon. After a short conversation, he pulled Wendy B. over a stone wall, forcing her to go with him into a wooded area that led to an open field. There he sexually assaulted her, forced her to turn over on her stomach, and then strangled her.

"On Thanksgiving Day, 1983, the defendant accosted nineteen year old Robyn S. on the grounds of Uncas on Thames State Hospital in Norwich. He forcefully pulled Robyn S. into a wooded area and ordered her to remove her clothing. He then sexually assaulted her and, after ordering her to turn over on her stomach, strangled her. Before leaving, he covered her body with leaves.

"On Easter Sunday, 1984, the defendant picked up fourteen year old April B. and fourteen year old Leslie S., who were hitchhiking to Jewett City on Route 138. Once the girls had entered his car, he drove them easterly on Route 165 and, over their protests, past their intended destination. When April B. tried to force the defendant to stop the car by threatening him with a knife, he disarmed her and continued to transport the girls against their will, through eastern Connecticut, to Beach Pond in Rhode Island. At Beach Pond, he parked his car and bound both girls hand and foot. He then untied April B.'s feet and forced her to walk a short distance from his car, where he assaulted her sexually, turned her over on her stomach and strangled her. Returning to the car, the defendant killed Leslie S. without sexually assaulting her. He then placed the bodies of both girls in his car and drove back to Preston, Connecticut, where he deposited their bodies in a culvert." Id.

At the second penalty phase hearing, the state sought to prove as an aggravating factor that the defendant committed all of the offenses in an especially heinous, cruel or depraved manner within the meaning of § 53a-46a (h) (4). The defendant sought to prove two statutory and fourteen nonstatutory mitigating factors.⁷ The jury found an aggravating factor and no mitigating factor for each count. Thereafter, the court imposed six sentences of death. This appeal followed.

The defendant's claims on appeal fall into ten general categories involving: (1) rulings pertaining to the jury selection phase of the penalty hearing; (2) the denial of the defendant's motion to sever the cases; (3) the denial of the defendant's motion to order a competency examination; (4) evidentiary rulings; (5) the state's alleged nondisclosure of exculpatory materials in violation tion of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); (6) rulings relating to the sufficiency of the evidence in support of the mitigating and aggravating factors; (7) instructions given to the jury; (8) the constitutionality of the death penalty statute; (9) the reliability of the death sentences in light of the alleged cumulative errors; and (10) the proportionality of the death sentences, which we review pursuant to § 53a-46b (b) (3). We address each of these categories in turn.

I JURY SELECTION PHASE ISSUES

The defendant raises four claims pertaining to the jury selection phase of the trial. We address each claim in turn.

A Denial of the Defendant's For Cause Challenges

The defendant claims that the trial court improperly denied eight of his for cause challenges, thereby forcing him to use his peremptory challenges to remove the challenged venirepersons in violation of: (1) his statutory and constitutional right to challenge jurors peremptorily, as provided by General Statutes §§ 54-82g and 54-82h⁸ and guaranteed by article first, § 19, of the constitution of Connecticut, as amended by article four of the amendments;⁹ and (2) his state and federal constitutional right to a fair trial by an impartial jury, as guaranteed by the sixth¹⁰ and fourteenth¹¹ amendments to the United States constitution, and article first, § 8, of the constitution of Connecticut, as amended by articles seventeen and twenty-nine of the amendments.¹² We disagree.

The following facts and procedural history are relevant to our resolution of this claim. Prior to voir dire, the trial court, pursuant to § 54-82h, granted thirty peremptory challenges to the state and to the defendant. After twelve jurors and one alternate had been accepted, the court granted one extra peremptory challenge to each party. At that time, the defendant had exhausted twenty-eight peremptory challenges and the state had exhausted seventeen. The defendant had exercised eight out of the twenty-eight peremptory challenges to excuse prospective jurors whom the trial court had refused to excuse for cause. The defendant exhausted all of his remaining challenges before the fourth and final alternate juror was accepted. At that time, the defendant requested, and the court denied, an additional challenge. The court indicated, however, that the defendant should renew his request on the following day. As instructed, on the following day, the defendant made a second request for a peremptory challenge and that too was denied. Neither of the defendant's requests for an additional peremptory challenge was made in connection with a specific juror. On May 27, 1999, the fourth and final alternate juror was accepted. Between the time that the defendant exhausted his peremptory challenges and the time that the fourth alternate was accepted, the defendant did not proffer any challenge for cause that was denied by the court.

After the jury had been selected, an interlocutory appeal was filed and, because of the delay occasioned by the appeal, the jury was not recalled until January, 2000. At that time, four regular jurors and the fourth alternate juror, who was the only juror who had been selected after the defendant had exhausted his peremptory challenges, were dismissed. With the parties' agreement, the court moved the three alternates into the seats vacated by three of the dismissed jurors so that eleven jurors and no alternates remained on the panel. When jury selection to replenish the panel began, the trial court granted each party nine peremptory challenges. The defendant used eight of his nine peremptory challenges. One juror and six alternates were accepted during the second voir dire.¹³

The defendant now claims that the trial court improperly denied his for cause challenges to the eight jurors during the first voir dire, thereby forcing him to use his peremptory challenges to remove those jurors and denying him his constitutional and statutory right to exercise his full complement of peremptory challenges. We conclude that, because the defendant did not seek an additional peremptory challenge to exercise against a specific juror who ultimately served on the jury, even if it is assumed that the trial court improperly denied one or more of the defendant's for cause challenges, any such impropriety necessarily was harmless under State v. Esposito, 223 Conn. 299, 613 A.2d 242 (1992). Accordingly, we do not review the merits of the trial court's rulings.

In Esposito, the defendant was required to exercise three peremptory challenges to excuse prospective jurors whom the court had refused to excuse for cause, thereby exhausting his peremptory challenges. Id., 303-304. Thereafter, "the defendant challenged another prospective juror, Richard Artkop, for cause. The trial court overruled the challenge for cause and denied the defendant's...