State of Connecticut v. Steven Hayes (2010)

CONSOLIDATED MEMORANDUM OF DECISION RE MOTION TO BAR THE PUNISHMENT OF THE DEATH PENALTY IN THE EVENT OF CONVICTION OF CAPITAL FELONY (No. 47) & DEFENDANT'S AMENDED MOTION TO PRECLUDE CAPITAL FELONY HEARING BECAUSE CONNECTICUT'S DEATH PENALTY SCHEME IS CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS (No. 76)

The consolidated motions now before the court seek to bar a death penalty hearing in a prosecution arising out of a triple homicide that occurred in Cheshire in 2007.

The defendant, Steven Hayes, is charged with six counts of capital felony, in violation of Conn. Gen.Stat. § 53a-54b.   The State is seeking the death penalty.   A death-qualified jury has been selected, and the guilt phase of the trial is scheduled to commence on September 13, 2010.   Although the death penalty issue may be mooted by the jury's verdict at the end of the guilt phase, it is nevertheless more efficient to hear and decide the issues presented by the motions now, prior to trial, than it would be to hear them later, following a hypothetical verdict of guilty on one or more counts of capital felony, with the jury awaiting the commencement of the penalty phase.

Both motions arise out of Conn. H.B. 6578 (2009), passed by the legislature as P.A. 09-107, An Act Concerning The Penalty For A Capital Felony (the “Bill”), and vetoed by the Governor on June 5, 2009 (the “Veto”).   A brief description of the Bill and the Veto will be helpful.

The Bill would have eliminated the death penalty as a sentencing options for crimes committed on and after its effective date (October 1, 1989).   It did not alter the penalty for crimes (such as the ones alleged in the present case) committed prior to the effective date.

On June 5, 2009, the Governor returned the Bill without her signature.   She accompanied the veto with a two-page message, reprinted at Connecticut Public and Special Acts 1154-55 (2009) (“Veto Message”).   One paragraph of the Veto Message is at issue here:

The death penalty sends a clear message to those who may contemplate such cold, calculated crimes.   We will not tolerate those who have murdered in the most vile, dehumanizing fashion.   We should not, will not, abide those who have killed for the sake of killing;  to those who have taken a precious life and shattered the lives of many more.   Dr. William Petit recently quoted Lord Justice Denning, Master of the Rolls of the Court of Appeals in the United Kingdom, who said:

Punishment is the way in which society expresses its denunciation of wrong doing;  and, in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them.   It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else ․ The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not.

2 Conn. Public and Special Acts 1154 (2009).  (Emphasis in original.) ¹

The Bill and the Veto Message form the basis of the motions now before the court.   On January 14, 2010, the defendant filed a Motion to Bar the Punishment of the Death Penalty in the Event of Conviction of Capital Felony (No. 47) (“Motion 47”).   On July 1, 2010, he filed an Amended Motion to Preclude the Capital Penalty Hearing Because Connecticut's Death Penalty Scheme is Cruel and Unusual Punishment in Violation of the State and Federal Constitutions (No. 76) (“Motion 76”).   The motions were argued in a consolidated hearing on July 27, 2010.   For the reasons set forth below, both motions must be denied.

The focus of Motion 47 is the Veto Message's statement that Dr. William Petit had quoted Lord Denning as indicated.   The defendant in this case is accused of assaulting Dr. Petit and murdering three members of his family.   According to the motion, “These statements of the Governor have irreparably damaged the defendant's right to fair trial in a trial that provides for the death penalty as punishment.   Her statements are so prejudicial that the irreparable harm must be presumed.”   Motion 47, at 6-7.

The circumstances under which a “presumption of prejudice” will be inferred by the courts have recently been analyzed in Skilling v. United States, No. 08-1394 (U.S. June 24, 2010).  Skilling identifies four relevant factors for judicial consideration, three of which are applicable here:  (1) “the size and characteristics of the community in which the crime occurred”;  (2) whether the publicity in question contains a “confession or other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight”;  and (3) the time elapsing between the crime and the trial.   Id., at 16-17.²

Application of the Skilling factors to the facts of the present case does not support the defendant's assertion that a presumption of prejudice should be inferred from the Veto Message.  (1) The jurors in this case are drawn from the New Haven Judicial District.   The New Haven Judicial District consists of thirteen towns, containing a diverse population consisting of urban and suburban (and a few rural) residents.  “Given this large, diverse pool of potential jurors, the suggestion that 12 impartial individuals could not be empanelled is hard to sustain.”  Skilling, Slip op., at 16.(2)  The Veto Message contains “no confession or other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight.”  Id., at 17.(3)  Over three years will have elapsed between the alleged crime and the trial.   Under these circumstances, no presumption of prejudice arises.

Even if a presumption of prejudice were to arise, the record of the voir dire would rebut it.   Approximately 1,300 venire persons appeared before the court during the course of the voir dire.   Of this multitude, only one or two were even aware of the Veto. No person with this knowledge was placed on the jury.   No venire person had read the Veto Message or had any familiarity with its contents.   A fair and impartial jury has been selected.   Under these circumstances, any presumption of prejudice is rebutted.

The defendant additionally argued at the hearing that, regardless of any actual prejudice, the Veto Message's reference to Dr. Petit in this context forecloses the State from seeking the death penalty in this case as a matter of law.   This goes well beyond the “presumption of prejudice” addressed in Skilling, since the defendant apparently views the prejudice-if that is the word-created by the Veto Message to be irrebuttable as a matter of law.   No authority is cited for this proposition.   This approach cannot be squared with Skilling.   The Skilling analysis is appropriate in these circumstances, and a careful application of the Skilling factors establishes that Motion 47 must be denied.

While Motion 47 focuses on the Veto Message, Motion 76 focuses on the Bill. According to the motion, “The Governor's veto cannot supply the necessary legislative determination that the death penalty is an effective and appropriate means of punishment once the legislature has determined that it is not.”   Motion 76, at 2.

The basic thrust of Motion 76 is to ask the Court to “revisit” past decisions of the Supreme Court of the United States and the Supreme Court of Connecticut and declare the death penalty unconstitutional.   The motion states that, “Even if the legislature had not acted, the vastly different legal landscape that exists today would require this Court to revisit the past decisions of the Connecticut Supreme Court that have held the death penalty is constitutional and hold that the opposite conclusion is required today.”   Motion 76, at 3-4.   The motion seemingly asks this court to overrule Gregg v. Georgia, 428 U.S. 153 (1976), and State v. Webb, 238 Conn. 389, 680 A.2d 147 (1996).

The short answer to this contention is that, in our system of jurisprudence, lower courts do not have the power to “revisit” past decisions of higher court.   Both the Supreme Court of the United States and the Supreme Court of Connecticut have recently emphasized this cornerstone of our legal system.  “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [lower court] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”  United States v. O'Brien, 130 S.Ct. 2169, 2174 (2010).  (Internal quotation marks and citation omitted.)  “It is axiomatic that a trial court is bound by Supreme Court precedent ․ This principle is inherent in a hierarchical judicial system ․ [R]evision of Supreme Court precedent is not the trial court's function.”  Jolly, Inc. v. Zoning Board, 237 Conn. 184, 195, 676 A.2d 831 (1996).

The Bill's legislative passage does not change this analysis.   Several considerations support this conclusion.

First, the defendant's argument that “[i]mposing the death penalty after its repudiation by the legislature would violate the separation of powers doctrine”;  Motion 76, at 29;  cannot be squared with Conn. Const.  Art. Fourth, § 15, which expressly gives the Governor the right to “disapprove” a bill.   This, of course, follows the familiar example of Art. I, § 7 of the Federal Constitution, giving a similar veto power to the President of the United States.

Second, while the Supreme Court of the United States frequently considers state legislation in determining the presence or absence of a “national consensus” with respect to a particular practice claimed to violate the Eighth Amendment;  see Graham v. Florida, No. 08-7412 (U.S. July 6, 2010), slip op., at 10-11, and authorities cited therein;  this is not a mechanical matter of simply looking to bills passed by legislative bodies without regard to their ultimate procedural fate.   The Court has long recognized that “a Governor's signing or vetoing of a bill constitutes part of the legislative process.”   Bogan v. Scott-Harris, 523 U.S. 44, 55 (1998).   See Smiley v. Holm, 285 U.S. 355, 372-73 (1932).

Third, governors, like legislators, are popularly elected.   Their official acts, like the official acts of legislators, provide courts with independent indicia of the presence or absence of a national consensus.   Both categories of official acts are entitled to judicial respect.   The Supreme Court has adopted this approach at least twice in recent years.   In Atkins v. Virginia, 536 U.S. 304 (2002), in determining the existence of a national consensus as to whether mentally retarded defendants may be sentenced to death, the Court considered a 2001 act of the Texas Legislature subsequently vetoed by the Texas Governor.   The Court noted, however, that, “In his veto statement, the Texas Governor did not express dissatisfaction with the principle of categorically excluding the mentally retarded from the death penalty ․ Instead, his motivation to veto the bill was based upon what he perceived as a procedural flaw.”  Id., at 315 n.16. In a somewhat different context, in Roper v. Simmons, 543 U.S. 551 (2005), in determining the existence of a national consensus as to whether juvenile offenders younger than 18 may be sentenced to death, the Court considered the 2003 action of the Governor of Kentucky in commuting the sentence of Kevin Stanford because he was under 18 at the time of his offense.  Id., at 565.   In each case, the Court treated the governor in question as an independent constitutional actor, whose substantive views, reflected in official acts, are entitled to respect.

Fourth, while the defendant's contention that “[t]he General Assembly's decision to eliminate the death penalty is consistent with the growing national and international consensus that it is not an appropriate form of punishment”;  Motion 76, at 3;  is an argument that must be directed to reviewing courts, the claimed “growing national ․ consensus” is not as evident as the defendant suggests.   In 1976, when Gregg v. Georgia was decided, a total of 35 States and the Federal Government had enacted legislation providing for the death penalty for at least some crimes resulting in the death of another person.   428 U.S., at 179-80.   Thirty-four years later, that total remains exactly the same, notwithstanding the fact that a few individual States have shifted to one side or the other during the intervening period.   See States With and Without the Death Penalty, http://www.deathpenaltyinfo.org/states-and-without-death-penalty (visited July 20, 2010).³

The empirical question of whether a national consensus exists on this subject is, of course, different from the question of whether a consensus exists on the issue in question within a particular State.   The defendant's focus on this latter question is not without justification in our jurisprudence.   In upholding the constitutionality of the death penalty, the Supreme Court explained that, “The most marked indication of society's endorsement of the death penalty for murder is the legislative response to Furman [v. Georgia, 408 U.S. 238 (1972) ].”  428 U.S., at 179.   This brief sentence incorporates two important jurisprudential principles.   First, “society's endorsement” is a critical component of the death penalty's constitutional justification.   Second, “[t]he most marked indication” of that endorsement is state legislation.

As mentioned, the Court has recognized that a Governor's signing or vetoing of a bill constitutes part of the legislative process.  Bogan v. Scott-Harris, supra, 523 U.S., at 55.   But, as discussed supra, the Court has taken a somewhat more nuanced view of the legislative process in the context of death penalty litigation, giving independent judicial respect to both branches of government.   This means that, in determining the presence or absence of the societal endorsement constitutionally necessary to justify the death penalty, courts must give due weight to the actions of both the legislative and executive branches of government.   The action of a single legislature, vetoed in accordance with state law, is insufficient to justify a judicial finding that societal endorsement of the death penalty no longer exists in Connecticut.   Whether a hypothetical series of future legislative actions to the same effect would result in a different judicial conclusion can be left for another day.

The motions are denied.

Jon C. Blue

Judge of the Superior Court

FOOTNOTES

FN1. The Veto Message's quotation from Lord Justice Denning appear verbatim in Gregg v. Georgia, 428 U.S. 153, 184 n.30 (1976).   The citation supplied in Gregg is “Royal Commission on Capital Punishment, Minutes of Evidence, Dec. 1, 1949, p. 207 (1950).”  Id. The Royal Commission's Report contains a differently edited version of Lord Justice Denning's 1949 testimony:The punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them.   It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else ․ The ultimate justification of any punishment is not that it is a deterrent, but that it is the emphatic denunciation by the community of a crime:  and from this point of view, there are some murders which, in the present state of public opinion, demand the most emphatic denunciation of all, namely the death penalty.Royal Commission on Capital Punishment 1949-1953 Report 18 (1953).After Gregg but prior to the Veto Message, Lord Denning wrote:After the debates in Parliament I altered my view.   I asked the rhetorical question:  Is it right for us, as a society, to do a thing-hang a man-which none of us individually would be prepared to do or even to witness?   The answer is ‘No, not in a civilized society.’Lord Denning, Landmarks in the Law 27 (1984)..  FN1. The Veto Message's quotation from Lord Justice Denning appear verbatim in Gregg v. Georgia, 428 U.S. 153, 184 n.30 (1976).   The citation supplied in Gregg is “Royal Commission on Capital Punishment, Minutes of Evidence, Dec. 1, 1949, p. 207 (1950).”  Id. The Royal Commission's Report contains a differently edited version of Lord Justice Denning's 1949 testimony:The punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them.   It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else ․ The ultimate justification of any punishment is not that it is a deterrent, but that it is the emphatic denunciation by the community of a crime:  and from this point of view, there are some murders which, in the present state of public opinion, demand the most emphatic denunciation of all, namely the death penalty.Royal Commission on Capital Punishment 1949-1953 Report 18 (1953).After Gregg but prior to the Veto Message, Lord Denning wrote:After the debates in Parliament I altered my view.   I asked the rhetorical question:  Is it right for us, as a society, to do a thing-hang a man-which none of us individually would be prepared to do or even to witness?   The answer is ‘No, not in a civilized society.’Lord Denning, Landmarks in the Law 27 (1984).

FN2. The fourth Skilling factor is the jury's eventual verdict.   Slip op., at 17.   The jury's eventual verdict in the present case is, of course, unknown at this time..  FN2. The fourth Skilling factor is the jury's eventual verdict.   Slip op., at 17.   The jury's eventual verdict in the present case is, of course, unknown at this time.

FN3. As the commentary to the site cited in the text explains, the current total cited in the text arguably errs on the side of minimizing the current number of States with death penalty statutes.   While New Mexico voted to abolish the death penalty in 2009, the repeal was not retroactive, leaving two persons on death row.   New York's death penalty statute remains on the books, but has been rendered partially unconstitutional by judicial decision.   If these States were counted as States with at least some current capital punishment legislation, the total would rise to 37, representing an increase of two over the Gregg total..  FN3. As the commentary to the site cited in the text explains, the current total cited in the text arguably errs on the side of minimizing the current number of States with death penalty statutes.   While New Mexico voted to abolish the death penalty in 2009, the repeal was not retroactive, leaving two persons on death row.   New York's death penalty statute remains on the books, but has been rendered partially unconstitutional by judicial decision.   If these States were counted as States with at least some current capital punishment legislation, the total would rise to 37, representing an increase of two over the Gregg total.

Blue, Jon C., J.