State of Connecticut v. Richard Roszkowski (2014)

CONSOLIDATED MEMORANDUM OF DECISION RE DEFENDANT'S MOTIONS TO DISMISS AGGRAVATING FACTORS

The defendant Richard Roszkowski has previously been convicted of two counts of capital felony stemming from the murder of three individuals.   The state is seeking the death penalty in this retrial of the penalty phase.   On September 24, 2013, the state filed its Notice of Aggravating Factors, in which it gave notice to the defendant of the specific aggravating factors that it is alleging as to those two counts of capital felony.   The state is claiming two aggravating factors with respect to the first count of capital felony (the murders of Holly Flannery and Thomas Gaudet in violation of § 53a–54b(7)), and one aggravating factor with respect to the second count (the murder of Kylie Flannery in violation of § 53a–54b(8)).   The state alleges that in the commission of the first capital felony, the defendant knowingly created a grave risk of death to another person (Kylie Flannery) in addition to the victims of the offense, in violation of General Statutes § 53a–46a(i)(3).   As to both counts of capital felony, the state also alleges that the defendant committed those offenses in an especially heinous, cruel or depraved manner, in violation of General Statutes § 53a–46a(i)(4).

Before the court are two motions:  (1) the defendant's December 9, 2013 Motion to Dismiss or Strike the “Heinous, Cruel or Depraved” Aggravating Factor;  and (2) the defendant's December 9, 2013 Motion to Dismiss or Strike the “Grave Risk” Aggravating Factor.   The motions are procedurally grounded in General Statutes § 54–56, which provides:  “All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.”   The state filed a written objection to the first motion on December 23, 2013, and it also voiced an objection to the second motion at the hearing of these two motions on December 18, 2013.

Having considered the arguments of counsel, and the legal authorities they rely upon, the court hereby rules as follows.

I

MOTION TO DISMISS OR STRIKE THE “HEINOUS, CRUEL OR DEPRAVED” AGGRAVATING FACTOR

The defendant moves to dismiss or strike the state's aggravating factor alleging that the defendant violated General Statutes § 53a–46a(i)(4) in that he committed “the offense[s]” in an “especially heinous, cruel or depraved manner.”   The defendant moves to dismiss or strike this aggravating factor on both constitutional and evidentiary grounds, as follows:  (1) it is unconstitutionally vague;  (2) it is inconsistently applied and void for vagueness;  (3) our Supreme Court's judicial gloss violates the separation of powers;  (4) it deprives the defendant of the right to have a jury determine the existence of an aggravating factor because the jury cannot be adequately instructed;  (5) it would yield an unreliable, disproportionate, and arbitrary result;  and (6) there is no cognizable theory under which the evidence in this case can sufficiently sustain a finding of the aggravating factor.   In the alternative, the defendant requests an instruction pursuant to State v. Breton, 212 Conn. 258, 270–71, 562 A.2d 1060 (1989) (Breton I), that does not include any subsequent judicial gloss containing the language “callous or indifferent,” “mental anguish,” or “psychological pain,” on the ground that the additional language is vague and fails to provide any objective standard for distinguishing between these murders and any other murders by gunshot.   Instead, the defendant asks the court to instruct the jury that the defendant must have specifically intended to—and in fact did—inflict extreme physical pain or torture upon the victims, above and beyond that necessarily accompanying the underlying killing.

In Breton I, our Supreme Court held that § 53a–46a(i)(4) was unconstitutionally vague, but it added a “judicial gloss” to the term so that it could pass constitutional muster.  State v. Breton, supra, 212 Conn. 268.   In Ross, the court thereafter elaborated that the pain or torture contemplated by that definition could be either physical or psychological.   State v. Ross, 230 Conn. 183, 260, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995).   The Supreme Court has explained further that, “with respect to the requisite state of mind and consequences thereof, either of the following will suffice [to satisfy § 53a–46a(i)(4) ]:  (1) the defendant intended to, and in fact did, inflict extreme physical or psychological pain, suffering or torture on the victim;  or (2) the defendant was callous or indifferent to the extreme physical or psychological pain, suffering or torture that his intentional conduct in fact inflicted on the victim.”  State v. Cobb, 251 Conn. 285, 445, 743 A.2d 1 (1999), 531 U.S. 841, 121 S.Ct. 106, 148 L.Ed.2d 64 (2000).   Later, in State v. Breton, 264 Conn. 327, 413, 824 A.2d 778 (2003) (Breton III), the court reaffirmed its ruling in Breton I that it could constitutionally add the judicial gloss, notwithstanding the defendant's separation of powers argument.

In accordance with the preceding authority, the defendant's motion is denied as to his claim that the aggravating factor is unconstitutionally vague, and as to his claim that our Supreme Court's holding in Breton I, which was upheld in Breton III, violates separation of powers principles.¹  Our Supreme Court has consistently rejected these arguments, and it is not for this trial court to reconsider the merits of those Supreme Court precedents.   Likewise, the court rejects the defendant's constitutional claim that this aggravating factor is inconsistently applied and void for vagueness.   Given our Supreme Court's construction of this aggravating factor, the court finds that it is not so vague or indefinite that common people cannot understand and apply its meaning;  see United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954);  or that it fails to give fair warning as to what constitutes heinous, cruel, or depraved conduct.   See Grayned v. City of Rockford, 408 U.S. 104, 108–09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).   The court also rejects the defendant's fourth and fifth grounds for dismissal, as they are variations of the same vagueness arguments.²

In support of his final ground for dismissal, the defendant argues that the evidence is insufficient to sustain a finding of the aggravating factor.   The defendant points out that, under current law, “ § 53a–46a(i)(4) ․ require [s] proof that the defendant engaged in intentional conduct that inflicted extreme physical or psychological pain, [suffering] or torture on the victim above and beyond that necessarily accompanying the underlying killing, and that the defendant specifically intended to inflict such extreme pain, [suffering or] torture ․ or ․ the defendant was callous or indifferent to the extreme physical or psychological pain, suffering or torture that his intentional conduct in fact inflicted on the victim.”  (Internal quotation marks omitted.)  State v. Rizzo, 303 Conn. 71, 145, 31 A.3d 1094 (2011), cert. denied, 133 S.Ct. 133, 184 L.Ed.2d 64 (2012).   According to the defendant's argument, the state's evidence in support of this aggravating factor should be restricted to only the immediate timeframe of the killings themselves on September 7, 2006, which is insufficient as a matter of law to support the aggravant.   Alternatively, the defendant requests this court to limit the state's argument to the jury to only those theories of liability for which there is adequate evidentiary support.

The state responds that there is sufficient evidence to sustain a finding of this aggravating factor.   According to the state, it is permitted to introduce evidence in the penalty phase of the facts and circumstances leading up to the three victims' murders in order to show the defendant's intent to inflict extreme physical or psychological pain, suffering, or torture, and that one or more victims in fact suffered such pain, suffering, or torture.   The state further asserts that because the jury in the penalty phase is constitutionally required to make “an individualized determination on the basis of the character of the individual and the circumstances of the crime”;  (emphasis in original) Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983);  and the jury cannot be asked to decide such facts in a vacuum;  State v. Ross, supra, 230 Conn. 284;  the facts and circumstances of the defendant's prior interactions with the three victims outside of the timeframe of the actual killings themselves are relevant and therefore admissible.   The state further contends that there are multiple versions of the underlying material facts, and it would be inappropriate for the court to adjudicate this issue now.   Lastly, the state cites State v. Reynolds, 264 Conn. 1, 158–60, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004), for the proposition that the defendant is not entitled to a preliminary determination in a capital felony case as to whether there is sufficient evidence to proceed with an aggravating factor.

In the capital felony case of State v. Reynolds, supra, 264 Conn. 157, the defendant requested that our Supreme Court exercise its supervisory authority to require a preliminary hearing, prior to the start of evidence, to determine whether there is sufficient evidence to establish the existence of the aggravating factor or factors as alleged by the state.   In support, the defendant in Reynolds argued that such a hearing would provide a necessary check on the power of the state to allege the existence of aggravating factors for which there is insufficient evidence, prevent “the spect[re] of death” from hanging over the head of an accused without some basis of fact, eliminate the unnecessary selection of death-qualified jurors, and support considerations of judicial economy.  (Internal quotation marks omitted.)  Id., 158.   The Supreme Court in Reynolds declined to impose such a requirement.  Id. It reasoned that the procedures governing the prosecution of capital cases are the subject of a comprehensive legislative scheme, and it would not tinker with those procedures in the absence of a compelling justification to do so.   Id., 158–59.   The court also rejected the notion that prosecutors often allege aggravating factors in bad faith, and opined that constitutional, statutory, and procedural limitations are generally adequate to protect the rights of the defendant and the integrity of the judicial system.  Id., 159.

In light of Reynolds, this court rules that the defendant is not entitled to a preliminary determination as to whether there is sufficient evidence to proceed with this aggravating factor.   The court will be in a far better position to rule on this specific issue after all of the evidence has been presented to the jury.   Moreover, as part of its preliminary instructions to the jury at the start of the evidence, the court carefully explains the notion of alleged aggravating factors, but it does so without specifying exactly what those aggravating factors are.   Accordingly, the defendant's motion is denied as to his sixth ground.

Finally, the court denies the defendant's alternative request to charge the jury in accordance with the instructions in Breton I, rather than using any of the subsequent refinements since that decision was issued in 1989.   For any trial court to attempt to do so now would be contrary to current settled appellate decisions handed down over the years since Breton I, and therefore beyond its authority.   To the extent the defendant's motion makes any additional requests regarding the court's future instructions to the jury, they are denied at this time without prejudice.   They should be resubmitted as appropriately framed requests to charge.

II

MOTION TO DISMISS OR STRIKE“GRAVE RISK” AGGRAVATING FACTOR

The defendant has also moved to dismiss or strike the state's aggravating factor alleging that the defendant violated General Statutes § 53a–46a(i)(3) in that he committed a capital felony and “in such commission knowingly created a grave risk of death to another person in addition to the victim of the offense.”   He moves to dismiss or strike this aggravating factor on the following grounds:  (1) Connecticut's death penalty scheme and the text of § 53a–46a(i)(3) preclude the application of the “grave risk” factor to the facts and circumstances of this case;  (2) construing the factor to encompass the state's theory in this case renders it unconstitutionally vague and overbroad;  and (3) there is insufficient evidence or cause to justify an allegation that while committing the murders of Thomas Gaudet and Holly Flannery, the defendant knowingly created a grave risk of death to Kylie Flannery.

With respect to the “grave risk” aggravating factor, the court finds that in light of the holding in Reynolds, and the ability of the trial court to further evaluate the defendant's claims at the conclusion of the evidence before any specific theories of aggravation are submitted to the jury, the defendant is similarly not entitled to a preliminary determination as to whether there is sufficient evidence to proceed with this particular aggravating factor.

III

CONCLUSION

For all of the aforementioned reasons, the defendant's motions to dismiss the aggravating factors are DENIED.

IT IS SO ORDERED,

Blawie, J.

FOOTNOTES

FN1. Previously, the defendant requested that this court require the phrase “heinous, cruel or depraved” to be replaced with the complete judicial gloss explaining that term when used throughout these penalty phase proceedings.   See State v. Roszkowski, Superior Court, judicial district of Fairfield, Docket No. FBT–CR–06218479–T (September 18, 2013, Blawie, J.).   This court denied that request.  Id..  FN1. Previously, the defendant requested that this court require the phrase “heinous, cruel or depraved” to be replaced with the complete judicial gloss explaining that term when used throughout these penalty phase proceedings.   See State v. Roszkowski, Superior Court, judicial district of Fairfield, Docket No. FBT–CR–06218479–T (September 18, 2013, Blawie, J.).   This court denied that request.  Id.

FN2. Many of the defendant's arguments in support of his fifth ground are relevant to the defendant's sixth ground, which pertains to the state's theory of how the defendant's conduct allegedly meets the appropriate standard..  FN2. Many of the defendant's arguments in support of his fifth ground are relevant to the defendant's sixth ground, which pertains to the state's theory of how the defendant's conduct allegedly meets the appropriate standard.

Blawie, John F., J.