STATE v. MICHAEL ROSS, SC 16328
Judicial District of New London

Criminal; Death Penalty; Whether Psychological Examination to Determine Defendant's Competency to Cooperate with Counsel was Required Following Defendant's Suicide Attempt; Parameters of Voir Dire Concerning Mitigating Factors; Whether Execution of Defendant Claiming Mental Illness Constitutes Cruel and Unusual Punishment; Interpretation of "Especially Cruel, Heinous or Depraved" Aggravating Factor; Proportionality Review. The defendant was convicted of six counts of capital felony arising from the kidnapping, rape and murder of four teenage girls in 1983 and 1984. Under the law in effect at the time of the crimes, a death sentence may be imposed on a defendant convicted of a capital felony if the state proves an aggravating factor and the defendant fails to prove any mitigating factor. Following a penalty hearing, the jury found that the state had proven an aggravating factor, i.e., that the crimes were committed in an especially cruel, heinous or depraved manner, and that the defendant had failed to prove any mitigating factor. The defendant had claimed, inter alia, that he suffered from sexual sadism, which he claims is a biologically based mental illness that significantly impaired his ability to conform his conduct to the requirements of the law. He also claimed that he was a good and productive prisoner. The trial court then sentenced the defendant to death. On appeal, the Supreme Court affirmed the defendant's convictions but reversed the death sentence and remanded for a new penalty hearing. State v. Ross, 230 Conn. 183 (1994). Following the second penalty hearing, the defendant was again sentenced to death based on a new jury's findings that the state had proven the aggravating factor and that the defendant had failed to prove any mitigating factors. In this appeal, the defendant raises a number of claims, including the claim that the trial court improperly denied his counsel's motion that the defendant be evaluated by an expert to determine his competency to make decisions and cooperate with counsel in his defense. This motion was prompted by the defendant's attempt to waive the second penalty hearing and accept execution and his later attempt to commit suicide. The defendant also challenges the trial court's refusal to allow him to question potential jurors on whether they would consider someone's good, productive behavior in prison to be a mitigating factor, based on the court's determination that counsel could not list potential mitigants to see whether they passed muster with potential jurors. He also claims that because he suffers from sexual sadism, it is cruel and unusual punishment to execute him for crimes that are linked to his mental illness. The defendant additionally requests that the Supreme Court reconsider prior decisions in which it interpreted the "especially cruel, heinous or depraved" aggravating factor to include, in addition to the intentional infliction of pain, a defendant's callousness or indifference to that pain and the infliction of psychological, as well as physical, pain. He argues that this interpretation expanded the class of those eligible for the death penalty, and because the expansion occurred subsequent to his crimes, the interpretation cannot be retroactively applied to him. The Supreme Court will additionally conduct proportionality review, pursuant to General Statutes (Rev. to 1995) 53a-46b, to determine if the death sentence is excessive or disproportionate to the penalty imposed in similar cases.