State of Connecticut v. Richard S. Roszkowski (2009)

MEMORANDUM OF DECISION RE MOTION FOR REARGUMENT

The defendant was convicted by a jury of two counts of capital felony, in violation of General Statutes § 53a-54b, and other offenses.   Following a penalty hearing pursuant to General Statutes § 53a-46a, the same jury returned a special verdict that the defendant should be sentenced to death on each of the two capital felony counts.   Thereafter, on July 17, 2009 the defendant filed a motion to set aside the special verdicts of the sentences of death and to impose sentences of life imprisonment without the possibility of release.   On October 9, 2009, following a hearing, the court granted the defendant's request to set aside the special verdicts of the sentences of death.   However, the court denied the defendant's request to impose sentences of life imprisonment without the possibility of release.   The court continued the case for the scheduling of a new penalty hearing.

On October 29, 2009 the defendant filed a notice of appeal to the Connecticut Supreme Court, appealing the court's decision of October 9, 2009.   State v. Roszkowski, S.C. 18484.   The defendant simultaneously filed a motion for reargument to this court “to request reconsideration by the Court of its decision declining to impose a sentence of life imprisonment after vacating the death sentence.”   Defendant's Motion for Reargument, p. 1.¹

The defendant's motion and appeal were filed simultaneously.   The defendant has not cited authority which allows consideration of the motion for reargument under these circumstances.²  Moreover, Practice Book § 60-2 states that “[t]he supervision and control of the proceedings on appeal shall be in the court having appellate jurisdiction from the time the appeal is filed, or earlier, if appropriate ․” However, the court will consider and decide the motion for reargument, especially inasmuch as the defendant has raised an additional claim that was not made previously.

In his motion for reargument, the defendant maintains that the court's denial of his request to impose life-sentences and to subject him to a new penalty hearing violates the eighth amendment to the United States constitution (DMR, 1) and due process protections of the Connecticut constitution (DMR, 6).   The defendant further argues that since a new penalty hearing is constitutionally prohibited, this court must enter a judgment of acquittal of the death penalty pursuant to Practice Book § 42-40.   Alternatively, the defendant requests the court to exercise its discretion to impose life sentences, based upon State v. Daniels, 209 Conn. 225, 550 A.2d 885 (1988) (DMR, 14-15).   These claims were made by the defendant in his original motion and memorandum, and in oral argument thereon, to set aside the special verdicts of the sentences of death and to impose sentences of life imprisonment without the possibility of release.   This court considered and rejected these claims in its decision of October 9, 2009.   The court, having again considered these claims in the defendant's motion for reargument, denies the relief he requests.

In his motion for reargument the defendant also claims that a new penalty hearing would violate the federal and state constitutional protection against double jeopardy (DMR, 13-14).³  The court notes that the defendant's motion for reargument appears to be the first and only time that he has invoked this principle.   It is devoid of any meaningful articulation that is independent of his other claims.   The sole ground for the defendant's claimed double jeopardy protection is his assertion that “․ the finding of a statutory mitigating factor by one or more jurors is a ‘finding sufficient to establish legal entitlement to a life sentence’ “ (DMR, 14).

The defendant's double jeopardy argument appears to be identical to that advanced in support of his previous claims, which were considered and rejected by the court.   The finding of a statutory mitigating factor ⁴ by one or more, but not all, jurors would result in a deadlock in a dispositive aspect of the penalty phase.   Under Connecticut's capital sentencing scheme as interpreted by our own Supreme Court, the absence of unanimity would preclude the jury from continuing its deliberations to reach any verdict.  State v. Colon, 272 Conn. 106, 353-54, 864 A.2d 666 (2004).   The result would be a mistrial and further proceedings.

The three decisions cited by the defendant clearly do not support his claim that “․ the finding of a statutory mitigating factor by one or more jurors is a ‘finding sufficient to establish legal entitlement to a life sentence’ “ (DMR, 14).   In Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), the defendant had received a life sentence, as required by Pennsylvania law, as a result of a jury deadlock on whether to impose a sentence of death.   The conviction was reversed and the case remanded for a new trial because of error in the court's jury instructions.   At the second trial, a jury convicted the defendant but this time it imposed a sentence of death.   The Supreme Court upheld the imposition of a death sentence on the defendant's second trial even though the defendant had received a life sentence at his first trial.   The Court stated that double jeopardy would have precluded a death sentence only had there been an acquittal “based on findings sufficient to establish legal entitlement to the life sentence-i.e., findings that the government failed to prove one or more aggravating circumstances beyond a reasonable doubt.”   Since there had been no such findings at the first trial, the Court held that double jeopardy did not bar a sentence of death on the retrial.  Sattazahn v. Pennsylvania, supra, 108.   In Arizona v. Ramsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984), the trial court had acquitted the defendant of the aggravating circumstances which were necessary to impose a sentence of death.   The defendant's conviction was overturned and, at a second trial, the court returned findings that mandated a sentence of death.   The Supreme Court held that, inasmuch as the state had not proven the aggravating circumstances at the first trial, double jeopardy considerations precluded a death sentence at the second trial of the defendant.  Arizona v. Ramsey, supra, 211.   Finally, in Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, L.Ed.2d (1981), the defendant had received a life sentence, but that sentence had been overturned because of an intervening decision ⁵ holding that Missouri's process of allowing exemptions from jury service was constitutionally flawed.   On remand, the state sought, as it had at the first trial, a sentence of death for the defendant.   However, the Supreme Court held that double jeopardy prevented Missouri from seeking a death sentence at the second trial.   This was because, as the Court had reasoned in Arizona v. Ramsey, the original jury had previously acquitted the defendant of whatever was necessary to impose a sentence of death.  Bullington v. Missouri, supra, 444-45.

In the instant case, on the special verdict form the jury reported that it had unanimously found proven the existence of one or more aggravating factors ⁶ as to each of the two capital offenses charged.   Therefore, there can be no argument that the defendant was, in any sense, ‘acquitted’ due to the state's lack of proof and that double jeopardy considerations bar a second penalty hearing.   Moreover, on the same special verdict form, the jury simply indicated that it was unable to make a unanimous finding concerning the defendant's claimed statutory mitigating factors.   It is thereby wholly inaccurate to suggest that the jury made any finding whatsoever concerning the existence of statutory mitigating factors.   The lack of unanimity in this instance cannot be transformed into a finding of any kind whatsoever.  “A nonunanimous jury ․ cannot render any finding of fact.”  State v. Peeler, 271 Conn. 338, 416, 857 A.2d 808 (2004).   Therefore, the decision by the court to set aside the special verdicts of the sentences of death and order a new penalty hearing corresponds to a mistrial for double jeopardy purposes.   See, Lee v. United States, 432 U.S. 23, 30-31, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977).⁷

For the foregoing reasons, and for the reasons stated at the hearing on October 9, 2009, the defendant's motion for reargument, after having been considered, is denied.

KAVANEWSKY, J.

FOOTNOTES

FN1. Subsequent references to specific pages in the Defendant's Motion for Reargument shall be indicated as followed by the page number..  FN1. Subsequent references to specific pages in the Defendant's Motion for Reargument shall be indicated as followed by the page number.

FN2. The court recognizes, however, that Practice Book § 63-1(c)(1) refers to a motion for reargument of a judgment or decision in the context of the period of time within which an appeal may be taken..  FN2. The court recognizes, however, that Practice Book § 63-1(c)(1) refers to a motion for reargument of a judgment or decision in the context of the period of time within which an appeal may be taken.

FN3. The federal double jeopardy clause is contained in the fifth amendment to the United States constitution.   The Connecticut constitution has no express double jeopardy provision, although it has been held that the due process guarantees of article first, § 9 include protection against double jeopardy.  State v. Miranda, 260 Conn. 93, 119, 794 A.2d 506 (2002)..  FN3. The federal double jeopardy clause is contained in the fifth amendment to the United States constitution.   The Connecticut constitution has no express double jeopardy provision, although it has been held that the due process guarantees of article first, § 9 include protection against double jeopardy.  State v. Miranda, 260 Conn. 93, 119, 794 A.2d 506 (2002).

FN4. General Statutes § 53a-46a(h)..  FN4. General Statutes § 53a-46a(h).

FN5. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979)..  FN5. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979).

FN6. General Statutes § 53a-46a(i)..  FN6. General Statutes § 53a-46a(i).

FN7. This is also evidenced by responses of defendant's counsel during the oral hearing on the motion to set aside the special verdicts, when the court inquired as to whether, in the event the court vacated the special verdicts of death, that would constitute “good cause” under General Statutes § 53a-46a(b)(2)(c) to empanel a second jury for a penalty hearing.   The following colloquy occurred:THE COURT:  Okay. I understand what you're saying are the Court's options, I think, but-but I just want to make sure that you don't disagree that there is not good cause here within the meaning of the statute.[COUNSEL]:  ․ [P]robably not is the best I could say.   I don't want to waive anything, but I don't think-I think it happens, where, for instance, I know there are death penalty cases where the guilt phase verdict is upheld and there's a new penalty hearing ordered, and obviously there's another jury.   If a mistrial had happened during the penalty phase, having been granted, there'd be another jury.   If the Court declares a mistrial because the jury has a defective verdict here, I agree, under that circumstance, the Court can-and that would be good cause-to-to order a new penalty hearing and empanel a new jury.Transcript, pp.   22-23 (October 9, 2009)..  FN7. This is also evidenced by responses of defendant's counsel during the oral hearing on the motion to set aside the special verdicts, when the court inquired as to whether, in the event the court vacated the special verdicts of death, that would constitute “good cause” under General Statutes § 53a-46a(b)(2)(c) to empanel a second jury for a penalty hearing.   The following colloquy occurred:THE COURT:  Okay. I understand what you're saying are the Court's options, I think, but-but I just want to make sure that you don't disagree that there is not good cause here within the meaning of the statute.[COUNSEL]:  ․ [P]robably not is the best I could say.   I don't want to waive anything, but I don't think-I think it happens, where, for instance, I know there are death penalty cases where the guilt phase verdict is upheld and there's a new penalty hearing ordered, and obviously there's another jury.   If a mistrial had happened during the penalty phase, having been granted, there'd be another jury.   If the Court declares a mistrial because the jury has a defective verdict here, I agree, under that circumstance, the Court can-and that would be good cause-to-to order a new penalty hearing and empanel a new jury.Transcript, pp.   22-23 (October 9, 2009).

Kavanewsky, John F., J.