Opinion
No. CR99-148396
July 10, 2007
The motion now before the Court seeks "to dismiss this death penalty prosecution because the jury's general verdict does not reveal whether it convicted the defendant on the basis of conspiratorial or accessorial liability." The motion was filed on February 1, 2007 and argued on June 25, 2007.
The general verdicts of guilt in this case have been accepted by the court and affirmed on direct appeal. State v. Peeler, 271 Conn. 338, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845 (2005). Our Supreme Court has remanded the case "for a new penalty hearing on both capital felony counts." Id. at 345. Under these circumstances, the general verdicts of guilt cannot be disturbed by a lower court.
In any event, the defendant conceded at argument that the present motion could not succeed in the event of a denial of his Motion For A Hearing On Whether The Jury Unanimously Rejected An Aggravating Factor (No. 1). By a decision dated today, that motion has been denied.
The motion now before the court is denied as well.
MEMORANDUM OF DECISION RE MOTION TO DISMISS THE CAPITAL PENALTY HEARING BECAUSE THE STATUTORY SCHEME IS UNCONSTITUTIONAL (No. 11)
The motion now before the court attacks the constitutionality of Connecticut's capital felony statute; Conn. Gen. Stat. § 53a-46a; on a number of grounds. The motion was filed on April 8, 2006, and argued on June 25, 2007. Unhappily for the defendant, all of the grounds asserted have been rejected by either the Supreme Court of the United States or the Supreme Court of Connecticut. Our Supreme Court has repeatedly upheld the constitutionality of the statute as construed by that court. State v. Rizzo, 266 Conn. 171, 833 A.2d 363 (2003). The defendant's arguments are manifestly made to preserve the issues for reviewing courts. Under these circumstances, his specific arguments can be answered with appropriate citations.
1. "To the extent that § 53a-46a does not require the prosecution to prove that the aggravating factor outweighs the mitigating factors beyond a reasonable doubt, the statute is unconstitutional." This argument was rejected in State v. Rizzo, supra, 266 Conn. at 242.
2. "Section 53a-46a's requirement that the defendant prove that mitigating factors are `mitigating in nature' by a preponderance of the evidence creates a constitutionally intolerable risk that when weighing the aggravating and mitigating factors jurors will not include mitigating factors which they believe are of some mitigating value." The Supreme Court of the United States has held that, "So long as a State's method of allocating the burdens of proof does not lessen the State's burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant's constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency." Walton v. Arizona, 497 U.S. 639, 650 (1990).
3. "Section 53a-46a's `mitigating in nature' requirement is constitutionally infirm because it allows the jury to refuse to consider constitutionally relevant mitigating evidence." This argument was rejected in State v. Cobb, 251 Conn. 285, 462, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841 (2000).
4. "Section 53a-46a's requirement that jurors determine whether mitigating factors are `mitigating in nature' by considering all of the `facts and circumstances of the case' is constitutionally infirm because there is a reasonable possibility that jurors will conclude that there must be a nexus between the mitigating evidence and the offense and because the requirement directs jurors to view mitigating evidence through the prism of the facts and circumstances of the case." This argument was rejected by State v. Rizzo, supra, 266 Conn. at 299.
5. "Section 53a-46a's requirement that jurors determine whether the defendant's mitigating factors are `mitigating in nature, considering all of the facts and circumstances of the case' creates a constitutionally intolerable risk that the defendant's mitigation will be put out of the effective reach of the jury." This argument was rejected by State v. Rizzo, supra, 266 Conn. at 298.
6. "Section 53a-46a violates the 6th, 8th and 14th Amendments to the United States Constitution and Article I, §§ 8 and 9 of the Connecticut Constitution because it gives prosecutors unfettered and standardless discretion to seek or decline to seek a sentence of death." The Supreme Court of the United States rejected the defendant's federal constitutional argument in Gregg v. Georgia, 428 U.S. 153, 199 (1976). Given the fact that the Connecticut Supreme Court has upheld the constitutionality of several death sentences resulting from the very prosecutorial discretion of which the defendant complains, his state constitutional argument is unpersuasive.
7. "Section 53a-46a is unconstitutional because it fails to charge individual human being(s) with the awesome responsibility of deciding whether a fellow human being must be sentenced to death or of returning a verdict sentencing that fellow human being to die." The specific jury instruction mandated by State v. Rizzo, supra, 266 Conn. at 242, adequately responds to this contention.
8. "Section 53a-46a is unconstitutional because it permits imposition of a death sentence without requiring jurors to determine that the ultimate sanction of death is warranted by the facts of the case." The specific jury instruction mandated by State v. Rizzo, supra, 266 Conn. at 242 adequately responds to this contention.
9. "Section 53a-46a is unconstitutional because it fails to define the terms `mitigating in nature, considering all the facts and circumstances of the case' and this allows defendants to be sentenced to death for clearly arbitrary and capricious reasons, including racial discrimination, socio-economic prejudice, public outrage and physical unattractiveness; furthermore, the statute is unconstitutional because jurors are given unfettered discretion to reject in one case a factor that has been recognized as mitigating in another case." This argument was rejected in State v. Ross, 230 Conn. 183, 284, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165 (1995).
10. "Section 53a-46a is unconstitutional because it gives the defendant the burden of proving both that a mitigating factor exists `in fact' and that the factor is `mitigating in nature, considering all the facts and circumstances of the case,' and, therefore, erroneously allocates the risk of error and impermissibly allows the death penalty to be imposed where there are factors calling for a less severe sentence or where there is a substantial or reasonable doubt as to the appropriateness of a death sentence." This argument was rejected by Walton v. Arizona, supra, 497 U.S. at 650.
11. "Section 53a-46a is unconstitutional because it contains a presumption of death rather than a presumption of life." This argument was rejected by State v. Ross, supra, 230 Conn. at 241.
12. "State executions violate the Connecticut Constitution's and the United States Constitution's prohibition against cruel and unusual punishments." This argument was rejected by State v. Ross, supra, 230 Conn. at 252.
13. "Race has an arbitrary, capricious, impermissibly discriminatory and disproportionate effect on capital sentencing in Connecticut and the rest of the United States in violation of the 8th and 14th Amendments to the United States Constitution, Article I, §§ 8, 9 and 20 of the Connecticut Constitution, and § 53a-46b(b)(1)." This claim must be presented in a habeas corpus proceeding. State v. Reynolds, 264 Conn. 1, 234, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908 (2004).
The motion is denied.
MEMORANDUM OF DECISION RE MOTION TO DISMISS BECAUSE CO-DEFENDANT ADRIAN PEELER WAS ACQUITTED OF CAPITAL MURDER AND RECEIVED A LESSER SENTENCE (No. 17)Russell Peeler, the defendant in the above-entitled case was convicted by a jury of two counts of capital felony in violation of Conn. Gen. Stat. § 53a-54b(8) (9), respectively. His convictions have been affirmed on appeal, but his case has been remanded "for a new penalty hearing on both capital felony counts." State v. Peeler, 271 Conn. 338, 345, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845 (2005).
The motion now before the court arises from the different jurisprudential fates of the defendant and his brother, Adrian Peeler (Adrian). To briefly recount the facts described in State v. Peeler, supra, the defendant and Adrian "operated a large-scale drug trafficking network that sold crack cocaine . . . throughout the city of Bridgeport." 271 Conn. at 348. The defendant wished to kill a young boy, Leroy Brown, Jr., who was a witness in cases pending against him. The defendant asked Adrian to kill Brown and his mother, Karen Clarke. Id. at 353.
The defendant planned every detail of the crime. This included soliciting the commission of the murders by Adrian, purchasing the gun that eventually was used by Adrian to commit the crimes, and paying [Josephine] Lee to inform him when both Brown and Clarke were home so that the murders could be committed simultaneously. The defendant even demonstrated to Adrian how he wanted Brown to be killed. Id. at 448. On January 7, 1999, Adrian fatally shot Brown and Clarke in their home. Id. at 354.
The defendant, as mentioned, was convicted by a jury of two counts of capital felony and has been ordered to face a new penalty hearing on both counts. (The defendant's first jury was unable to reach a unanimous verdict in the penalty phase.) Depending on the jury's penalty-phase verdict, he will receive a sentence of either life imprisonment without the possibility of release or a sentence of death. Conn. Gen. Stat. § 53a-35a(1).
Adrian was also charged with two counts of capital felony but was tried to a different jury subsequently to the defendant. Adrian's jury, however, acquitted him of both counts of capital felony and, instead, convicted him of one count of conspiracy to commit murder. On April 27, 2001, Adrian received a sentence of twenty years, consecutive to a previously imposed sentence. His conviction was subsequently affirmed on appeal. State v. Peeler, 267 Conn. 611, 620, 841 A.2d 181 (2004).
The defendant filed the motion now before the court on February 1, 2007. The motion argues that "[i]t will be arbitrary and capricious," in violation of the Eighth Amendment and Art. First, §§ 8 9 of the Connecticut Constitution, to impose a death sentence on the defendant when the triggerman is serving a twenty-year sentence. The motion was argued on June 25, 2007.
Because of its uniqueness, the death penalty cannot "be imposed under sentencing procedures that create a substantial risk that it would be inflicted in an arbitrary and capricious manner." Gregg v. Georgia, 428 U.S. 153, 188 (1976) (opinion of Stewart, Powell Stevens, JJ.). Gregg, however, teaches that concerns about arbitrariness "can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance." Id. at 195. Connecticut's death penalty statutes are drafted with this concern in mind, and their validity under the state and federal constitutions has repeatedly been upheld. State v. Webb, 238 Conn. 389, 406, 680 A.2d 147 (1996).
Gregg does not mean that arbitrariness can be entirely eliminated from the human world. Immanuel Kant famously observed that, "Out of the crooked timber of humanity no straight thing can ever be made." Oxford Dictionary of Quotations 425 (5th ed. 1999). But, absent a showing that the Connecticut "capital punishment system operates in an arbitrary and capricious manner, [the defendant] cannot prove a constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty." McCleskey v. Kemp, 481 U.S. 279, 306-07 (1987). "Any capital sentencing scheme may occasionally produce aberrational outcomes. Such inconsistencies are a far cry from the major systemic defects identified in Furman [v. Georgia, 408 U.S. 238 (1972)]." Pulley v. Harris, 465 U.S. 37, 54 (1984). In a world populated by human beings, verdicts delivered by different juries are unlikely to be perfectly consistent. "This case does no more than manifest the simple, if discomforting, reality that `different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system.' " Standefer v. United States, 447 U.S. 10, 25 (1980) (quoting Roth v. United States, 354 U.S. 476, 492 (1957)).
Of course, the real arbitrariness at issue in this case involves guilt-phase verdicts rather than penalty-phase verdicts. Because of their differing guilt-phase verdicts, the defendant and Adrian would serve markedly different sentences even if the motion now before the court were to be granted. It might be one thing if different juries had separately considered the fates of the defendant and Adrian in capital felony penalty phase proceedings and then delivered conflicting verdicts. That did not happen here. Adrian, unlike the defendant, was acquitted of the crime of capital felony. These verdicts reflect different factual findings in the guilt phase rather than different moral judgments in the penalty phase. This difference in factual findings by separate juries may be "discomforting," but it "is one of the consequences we accept under our jury system." Standefer v. United States, supra, 447 U.S. at 25.
Even if this difference in outcomes reflected a difference in moral judgments — which it does not — it is not at all clear that it would reflect an impermissible difference in moral judgments. The principal authority relied upon by the defendant, Getsy v. Mitchell, 456 F.3d 575 (6th Cir. 2006) (vacated and petition for rehearing en banc granted November 22, 2006), stands for the proposition that the Eighth Amendment prohibits a pattern of outcomes whereby "the defendant with arguably the lesser culpability receive[s] the harsher sentence — the death penalty." Id. at 585. Getsy is somewhat analogous to this case in that it involves a murder for hire in which one co-defendant received a life sentence and another received a death sentence. In Getsy, however, it was the defendant who ordered the killing who received life imprisonment and the triggerman who received a death sentence. The panel was plainly offended by this outcome, because it viewed the defendant who ordered the killing as the more culpable of the two. In reaching this holding, Getsy relied on the only discovered case in which a state court has actually overturned a death sentence as disproportionate on the ground that a co-defendant in the same case received a sentence of life imprisonment. Hall v. State, 244 S.E.2d 833 (Ga. 1978). In Hall — like Getsy but unlike the present case — there was no evidence that the defendant receiving the death sentence "ordered the killing or was the `prime mover' in the crime." Id. at 839.
In this case, however, it was the defendant, not Adrian, who "ordered the killing [and] was the `prime mover' in the crime." There would be nothing shocking or intuitively disproportionate in a finding that — in what is, admittedly, a choice between two exceptionally bad apples — the defendant is the more culpable of the two. The Eighth Amendment does not categorically prohibit such a result, and nothing in Getsy or Hall is to the contrary.
Our Supreme Court has, in any event, determined in this very case that it is not arbitrary to subject a nontriggerman to the death penalty if he is "a `major' participant" and he "exhibit[s] a `reckless indifference to human life.' " State v. Peeler, supra, 271 Conn. at 448 (quoting Tison v. Arizona, 481 U.S. 137, 158 (1987)). The Court has specifically determined that the defendant's participation in the murders in question rises to this constitutional level. Id. The Court expressly remanded the case "for a new penalty hearing on both counts." Id. at 345. It did so, moreover, with full institutional knowledge of Adrian's conviction and sentence. (Adrian's appeal was decided on February 24, 2004; 267 Conn. at 613; while the defendant's appeal was decided more than seven months later, on October 12, 2004; 271 Conn. at 343.) This express mandate of the Supreme Court must be obeyed by a lower court.
The court's disposition of this pretrial motion does not, however, mean that the equitable argument made by the defendant can never be employed. Gregg, as mentioned, requires that the sentencing authority be "given adequate information and guidance." 428 U.S. at 195. It will be up to the trial court to decide what, if any, evidence concerning Adrian's conviction and sentence will be admitted for the jury's consideration. Any argument asserting arbitrariness may thereafter be made on the basis of a full record.
The motion is denied.