State v. Rizzo

303 Conn. 71

31 A.3d 1094

STATE of Connecticut

v.Todd RIZZO.

No. 17527.

Supreme Court of Connecticut.

Argued Oct. 22, 2010.Decided Nov. 29, 2011.

Judith L. Borman and Ann M. Parrent, assistant public defenders, with whom, on the brief, was Jennifer L. Bourn, deputy assistant public defender, for the appellant (defendant).

Harry Weller, senior assistant state's attorney, with whom was John A. Connelly, former state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, VERTEFEUILLE and DiPENTIMA, Js.^*

ROGERS, C.J.

The defendant, Todd Rizzo, appeals from the judgment rendered by a three judge panel, following a penalty phase hearing held pursuant to General Statutes (Rev. to 1997) § 53a–46a,¹ sentencing him to death for the murder of a thirteen year old victim, Stanley G. Edwards. The defendant claims on appeal that: (1) his waiver of a jury for the penalty phase hearing was constitutionally invalid; (2) the presiding judge at the penalty phase hearing should have disqualified himself due to bias; (3) the absence of a specific intent requirement in the aggravating factor found by the panel renders his death sentence unconstitutional; (4) the panel's finding of an aggravating factor lacks evidentiary support; (5) the method of establishing mitigating factors pursuant to § 53a–46a (d) violates the eighth amendment to the United States constitution; (6) the panel's finding of a single cumulative mitigating factor but no individual mitigating factors was improper; (7) the panel improperly weighed aggravating and mitigating factors and determined that death was the appropriate punishment; (8) the death sentence was the product of passion, prejudice and other arbitrary factors; and (9) the death penalty is a per se violation of the state constitution. We disagree with each of these claims and, accordingly, affirm the judgment sentencing the defendant to death.

The basic facts and procedural history of the case are as follows. In the early evening hours of September 30, 1997, the defendant lured the young victim into the defendant's backyard under false pretenses and, thereafter, bludgeoned the victim to death with a small sledgehammer. The defendant initially attempted to conceal his crime, but the following day, when confronted with powerful evidence of his guilt, he confessed to murdering the victim. The defendant pleaded guilty to murder in violation of General Statutes § 53a–54a (a) and capital felony in violation of General Statutes (Rev. to 1997) § 53a–54b (9) and, following a § 53a–46a penalty phase that was tried to a jury, he was sentenced to death. State v. Rizzo, 266 Conn. 171, 175–76, 833 A.2d 363 (2003). On appeal, this court reversed the judgment as to the death sentence after concluding that the jury had not been instructed properly as to a legal standard to be employed in its imposition; ² id., at 243, 833 A.2d 363; and that the prosecutor had engaged in serious impropriety during his closing argument. Id., at 243–44, 833 A.2d 363. The case was remanded for a new penalty phase hearing, during which the defendant waived his right to have a jury determine his sentence, instead opting for sentencing by a three judge panel. After the penalty phase hearing, the panel again sentenced the defendant to death. This appeal followed. Additional facts and procedural history will be provided where pertinent to the claims raised.

I

The defendant claims first that his waiver of a jury for the penalty phase proceedings was constitutionally invalid.³ He argues specifically that his decision to forgo a jury determination of whether death was the appropriate penalty, and to opt instead for sentencing by a three judge panel; see General Statutes (Rev. to 1997) § 53a–46a (b)(3); General Statutes §§ 53a–45 and 54–82; ⁴ was not knowing, intelligent and voluntary. According to the defendant, an examination of the totality of the circumstances surrounding his waiver leads to the conclusion that it was ineffective. We disagree.

The following additional procedural history is relevant to this claim. Jury selection for the defendant's penalty phase proceedings began on March 15, 2005. During jury selection and throughout the penalty phase proceedings, the defendant was represented by Ronald Gold and David Channing, both of whom were experienced public defenders. As of April 15, 2005, the twentieth day of voir dire proceedings and a Friday, eight jurors had been chosen. Late that day, after the trial court, O'Keefe, J., had dismissed the current panel of prospective jurors and while the court was preparing to adjourn the proceedings until the following Monday, the defendant requested permission to waive his right to a sentencing jury. Initially, Gold indicated to the trial court that some issue had arisen, and requested a recess to confer with the defendant. The trial court granted Gold's request, encouraging him to “[t]ake [his] time.” When the defendant and Gold returned, the following discussion ensued:

“[Gold]: Your Honor, [the defendant] wanted to address the court about something.

“The Court: I don't have any problem with that. What do you want to tell me ...?

“The Defendant: Your Honor, over the past few weeks since we've begun selecting a jury, my mind has changed from back in [1999] when I elected a three judge panel, it might have been during the probable cause hearing or the arraignment or my guilty plea, when I originally elected—

“The Court: A jury.

“The Defendant: A jury.

“The Court: You elected a jury.

“The Defendant: A jury. I reviewed the law and my lawyers presented me with a lot of information that showed that while I'm, you know, if you're arrested for a crime, you're guaranteed a jury trial by jury. But there are conditions, if a defendant wants to elect a three judge panel, and I understand that it is the consent of the state and the approval of the court, and in this situation I haven't prepared any motion and I just wanted to put on the record that I wanted to—

“The Court: You are thinking about changing your election to a three judge panel?

“The Defendant: I have—right. I have no right to do so, but what I—

“The Court: You are thinking about it.

“The Defendant: Yes. I wanted to find out if—

“The Court: If it could be done.

“The Defendant: If it can be done only in the sense, if the state opposes, it's a dead issue. I fully accept a jury. I had a jury before. A jury can be fair, but I feel it's in my best interest this time around to have three judges review the evidence for what it is.

“The Court: Okay. That's a surprise to me, what you said. I'll consider it. There's nothing before me. There's nothing formal before me. So you think about it over the weekend, talk to your lawyers. Tell me how you feel on Monday. And, [state's attorney].

“[State's Attorney]: This is the first. I'm also surprised, Your Honor, but I will think about it over the weekend.

“The Court: Yeah, how's that?

“[State's Attorney]: Just to let [the defendant] know, that the state is not foreclosed to the possibility of a three judge panel.

“The Court: Given my involvement so far in the case, I would not be part of the—I wouldn't be one of the three judges. That probably wouldn't be a good idea, would it?

“[Gold]: I haven't thought about that, Your Honor.

“The Court: We don't need to cross that bridge right at this point. But—okay. You heard what [the state's attorney] said.

“The Defendant: I appreciate you taking the time to hear my request.

“The Court: No problem.

“The Defendant: Thank you, sir.

“The Court: Okay. We're adjourned.”

Before court reconvened the following Monday, the defendant and his two attorneys met and discussed the defendant's options for the penalty phase proceedings.⁵ Upon returning to the courtroom, defense counsel indicated that they disagreed with the defendant's decision to waive a jury, but had been unable to dissuade him from doing so. After the state consented to the defendant's election of a three judge panel, the trial court asked the defendant if he had any questions, to which the defendant replied: “I just wanted to put on the record, Your Honor, that the law has been explained to me by both of my lawyers, very thoroughly.” The trial court then referred the defendant to a different judge to be canvassed as to his jury waiver.

At the outset of the canvass proceedings, defense counsel notified the trial court that they both had “explained the various ramifications of the decision [to the defendant] and [had] recommended against it.” The trial court, Iannotti, J., proceeded to canvass the defendant:

“The Court: Now ... it's my understanding that since some time on Friday afternoon or Friday morning, up until now, that you had indicated to your attorneys that you were contemplating changing your election from a [twelve] person jury and electing a three judge court—a three judge court, three judge panel. Is that correct?

“[The Defendant]: Yes, sir.

“The Court: Now, have you had enough time to talk to your lawyers about that change, sir?

“[The Defendant]: Yes, sir. Judge O'Keefe granted us much time this morning to—

“The Court: Okay.

“[The Defendant]:—discuss it.

“The Court: And you're obviously, sir, aware that your lawyers are recommending to you not to do this?

“[The Defendant]: Yes, sir. They've thoroughly explained the differences between a jury trial and a court trial and—

“The Court: Tell me what they explained to you ....

“[The Defendant]: Well, they explained to me how selecting a jury, considering the evidence, and it's different, it's different. It's different for the defense to put on a case for [twelve] people compared to [twelve] experienced judges.

“The Court: Three experienced judges.

“[The Defendant]: Did I say [twelve]?

“The Court: Yes, sir.

“[The Defendant]: I meant three, sir.

“The Court: Yes, sir.

“[The Defendant]: And they would prefer and I don't really—I'm not sure how much I'm allowed to say.

“The Court: Well, you don't...