Judicial District of Fairfield


      Criminal; Death Penalty; Whether Special Verdict Form Improperly Permitted Jury to Impose Death Penalty even if it was Unable to Unanimously Find that no Statutory Mitigating Factor Existed; Whether Public Act’s Prospective Abolition of Death Penalty Applies Retroactively.  The defendant was convicted of two counts of capital felony in connection with the shooting deaths of Karen Clarke and her eight year old son, Leroy Brown, Jr.  The state alleged that the defendant directed his brother to kill Clarke and Brown because he expected that the boy would testify as a state’s witness at the defendant’s pending trial on a murder charge.  A penalty hearing was held before a jury in which the state sought the death penalty.  The state maintained that the death penalty was warranted pursuant to General Statutes § 53a-46a in light of the existence of the following aggravating factors: (1) the defendant committed the murders in an especially heinous, cruel or depraved manner; (2) the defendant procured the commission of the murders by payment, or promise of payment, of something of pecuniary value; and (3) in murdering the child, the defendant knowingly created a grave risk of death to Clarke.  The defendant countered that the death penalty should not be imposed due to the following mitigating factors: (1) while he was criminally liable as an accessory for the murders, his participation in the crimes was relatively minor; and (2) he could not reasonably have foreseen that his conduct in the course of committing the murder of the child would cause Clarke’s death.  The defendant also claimed that there were several nonstatutory mitigating factors, including that he was not present at the scene when the victims were murdered, that his brother was acquitted of the murders, and that he is a supportive father to his three children.  The jury determined that the state had established the existence of the aggravating factors and that the defendant had failed to prove the existence of the statutory mitigating factors.  Although the jury also found that the defendant had proven that some of the nonstatutory mitigating factors existed, it concluded that the aggravating factors outweighed those mitigating factors.  Accordingly, the trial court sentenced the defendant to death.  In this appeal, the defendant argues, among other things, that while § 53a-46a required the jury to unanimously reject his two statutory mitigating factors before a death sentence could be imposed, the special verdict form that the jury completed was defective because it essentially permitted the jury to impose the death penalty even if it was unable to make a unanimous finding that no statutory mitigating factor existed.  The defendant further maintains that this problem was compounded by the trial court’s improper instruction that if the jury could not unanimously find that no statutory mitigating factor existed, the jurors that found that a statutory mitigating factor existed could treat it as a nonstatutory mitigating factor and weigh it against the aggravating factors.  He also argues that his death sentence is unconstitutional in light of the legislature’s enactment of a public act that abolished the death penalty prospectively.  He claims that, although the death penalty may still be imposed where, as here, the capital felony was committed prior to the effective date of the act, any execution that is carried out after the act’s passage would constitute cruel and unusual punishment because the act represents the belief that the death penalty is no longer consistent with standards of decency in Connecticut.