STATE  v. ROBERT COURCHESNE, SC 17174

Judicial District of Waterbury

 Criminal; Death Penalty; Whether Unborn Child is a "Person"; Whether Defendant Intended to Murder Unborn Child; If Common Law "Born Alive" Rule Applies, whether Child was born "Alive";  Whether Capital Punishment Scheme gives Unfettered Discretion to Prosecutors to Seek a Sentence of Death; Whether State v. Courchesne, 262 Conn. 537 (2003), was Overruled in its Entirety by General Statutes § 1-2z. The defendant was convicted of murder and capital felony murder in connection with the stabbing of a mother and her unborn child. The mother died shortly after being stabbed.  The child was born by emergency cesarean section and placed on life support. She died forty-two days later when she was removed from life support. Prior to the defendant's penalty phase hearing, the trial court ruled that, in order for the death penalty to be imposed, the state had to prove the aggravating factor that it indicated that it would rely on - that the defendant had committed the offense in an especially heinous, cruel or depraved manner - as to the murders of both victims. In an interlocutory appeal by the state, the Supreme Court held that the state was required only to prove that the defendant killed one of the victims in an especially heinous, cruel or depraved manner. In a separate portion of its opinion, the court discussed its approach to statutory construction and stated that it would ordinarily consider all relevant sources of meaning of a statute without first having to determine whether the language at issue is ambiguous.  State v. Courchesne, 262 Conn. 537 (2003).  Subsequently, at the penalty phase hearing, a jury of twelve found that the defendant had committed the murder of the mother in an especially heinous, cruel or depraved manner.  He was thereupon sentenced to death for her murder and to life imprisonment without the possibility of release for the murder of the child. On appeal, the defendant has raised numerous issues relating to his convictions and sentence of death. Among the specific issues he has raised are: (1) Should the trial court have dismissed the counts alleging murder of an unborn child because an unborn fetus is not legally a "person" and, even if the unborn fetus was a person, the defendant lacked the requisite intent to kill her?  (2) If the trial court correctly ruled that someone who injures an unborn fetus can be prosecuted for murder if the fetus is subsequently born alive and then dies, was there sufficient evidence presented to show that the child was alive when the cesarean section was performed? (3) Should the trial court have granted the defendant's motion to impose a life sentence without release where the defendant argues that Connecticut's capital punishment scheme gives prosecutors unfettered and standardless discretion to seek a sentence of death, that such discretion is unconstitutional under both the federal and state constitutions, and that such discretion violates General Statutes § 53a-46b (b) (1), which states that a death sentence shall be affirmed unless it was "the product of passion, prejudice or any other arbitrary factor"? and (4) Should the trial court have instructed the jury that for the death penalty to be imposed for the capital felony of murder of two or more persons in the course of a single transaction and where the state has alleged the aggravating factor of the offense's being "especially heinous, cruel or depraved" under General Statutes § 53a-46a (i) (4), the state must prove that factor as to both victims?  With regard to the latter issue, the defendant claims that by enacting General Statutes § 1-2z (the "plain meaning rule"), the legislature overruled State v. Courchesne, supra, in its entirety.  He thus contends that he is entitled to a new penalty phase hearing at which the jury will be instructed that the state must prove the aggravating factor as to both victims.