Sec. 53a-46a. Imposition of sentence for capital felony. Hearing. Special verdict. Mitigating and aggravating factors. Factors barring death sentence. - Connecticut Statutes

      Sec. 53a-46a. Imposition of sentence for capital felony. Hearing. Special verdict. Mitigating and aggravating factors. Factors barring death sentence. (a) A person shall be subjected to the penalty of death for a capital felony only if a hearing is held in accordance with the provisions of this section.

      (b) For the purpose of determining the sentence to be imposed when a defendant is convicted of or pleads guilty to a capital felony, the judge or judges who presided at the trial or before whom the guilty plea was entered shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant's character, background and history, or the nature and circumstances of the crime, and any aggravating factor set forth in subsection (i). Such hearing shall not be held if the state stipulates that none of the aggravating factors set forth in subsection (i) of this section exists or that any factor set forth in subsection (h) exists. Such hearing shall be conducted (1) before the jury which determined the defendant's guilt, or (2) before a jury impaneled for the purpose of such hearing if (A) the defendant was convicted upon a plea of guilty; (B) the defendant was convicted after a trial before three judges as provided in subsection (b) of section 53a-45; or (C) if the jury which determined the defendant's guilt has been discharged by the court for good cause, or (3) before the court, on motion of the defendant and with the approval of the court and the consent of the state.

      (c) In such hearing the court shall disclose to the defendant or his counsel all material contained in any presentence report which may have been prepared. No presentence information withheld from the defendant shall be considered in determining the existence of any mitigating or aggravating factor. Any information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but the admissibility of information relevant to any of the aggravating factors set forth in subsection (i) shall be governed by the rules governing the admission of evidence in such trials. The state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any mitigating or aggravating factor. The burden of establishing any of the aggravating factors set forth in subsection (i) shall be on the state. The burden of establishing any mitigating factor shall be on the defendant.

      (d) In determining whether a mitigating factor exists concerning the defendant's character, background or history, or the nature and circumstances of the crime, pursuant to subsection (b) of this section, the jury or, if there is no jury, the court shall first determine whether a particular factor concerning the defendant's character, background or history, or the nature and circumstances of the crime, has been established by the evidence, and shall determine further whether that factor is mitigating in nature, considering all the facts and circumstances of the case. Mitigating factors are such as do not constitute a defense or excuse for the capital felony of which the defendant has been convicted, but which, in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of his culpability or blame for the offense or to otherwise constitute a basis for a sentence less than death.

      (e) The jury or, if there is no jury, the court shall return a special verdict setting forth its findings as to the existence of any factor set forth in subsection (h), the existence of any aggravating factor or factors set forth in subsection (i) and whether any aggravating factor or factors outweigh any mitigating factor or factors found to exist pursuant to subsection (d).

      (f) If the jury or, if there is no jury, the court finds that (1) none of the factors set forth in subsection (h) exist, (2) one or more of the aggravating factors set forth in subsection (i) exist and (3) (A) no mitigating factor exists or (B) one or more mitigating factors exist but are outweighed by one or more aggravating factors set forth in subsection (i), the court shall sentence the defendant to death.

      (g) If the jury or, if there is no jury, the court finds that (1) any of the factors set forth in subsection (h) exist, or (2) none of the aggravating factors set forth in subsection (i) exists, or (3) one or more of the aggravating factors set forth in subsection (i) exist and one or more mitigating factors exist, but the one or more aggravating factors set forth in subsection (i) do not outweigh the one or more mitigating factors, the court shall impose a sentence of life imprisonment without the possibility of release.

      (h) The court shall not impose the sentence of death on the defendant if the jury or, if there is no jury, the court finds by a special verdict, as provided in subsection (e), that at the time of the offense (1) the defendant was under the age of eighteen years, or (2) the defendant was a person with mental retardation, as defined in section 1-1g, or (3) the defendant's mental capacity was significantly impaired or the defendant's ability to conform the defendant's conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution, or (4) the defendant was criminally liable under sections 53a-8, 53a-9 and 53a-10 for the offense, which was committed by another, but the defendant's participation in such offense was relatively minor, although not so minor as to constitute a defense to prosecution, or (5) the defendant could not reasonably have foreseen that the defendant's conduct in the course of commission of the offense of which the defendant was convicted would cause, or would create a grave risk of causing, death to another person.

      (i) The aggravating factors to be considered shall be limited to the following: (1) The defendant committed the offense during the commission or attempted commission of, or during the immediate flight from the commission or attempted commission of, a felony and the defendant had previously been convicted of the same felony; or (2) the defendant committed the offense after having been convicted of two or more state offenses or two or more federal offenses or of one or more state offenses and one or more federal offenses for each of which a penalty of more than one year imprisonment may be imposed, which offenses were committed on different occasions and which involved the infliction of serious bodily injury upon another person; or (3) the defendant committed the offense and in such commission knowingly created a grave risk of death to another person in addition to the victim of the offense; or (4) the defendant committed the offense in an especially heinous, cruel or depraved manner; or (5) the defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value; or (6) the defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value; or (7) the defendant committed the offense with an assault weapon, as defined in section 53-202a; or (8) the defendant committed the offense set forth in subdivision (1) of section 53a-54b to avoid arrest for a criminal act or prevent detection of a criminal act or to hamper or prevent the victim from carrying out any act within the scope of the victim's official duties or to retaliate against the victim for the performance of the victim's official duties.

      (P.A. 73-137, S. 4; P.A. 80-332, S. 1; 80-442, S. 14, 28; P.A. 85-366, S. 1; P.A. 93-306, S. 12; P.A. 95-19, S. 1; P.A. 01-151, S. 1, 2, 5.)

      History: P.A. 80-332 restated provisions and referred to mitigating or aggravating factors throughout, replacing references to factors set forth in Subsecs. (f) and (g); P.A. 80-442 referred to imposition of sentence in accordance with Sec. 53a-35a(1) rather than to sentence for a Class A felony in Subsec. (e), effective July 1, 1981; P.A. 85-366 added a new Subsec. (d) to specify the procedure for the determination by a jury or court of the existence of a mitigating factor and to add a definition of mitigating factors, relettered the remaining Subsecs. and amended Subsec. (f) to replace "a sentence in accordance with Sec. 53a-35a(1)" with "a sentence of life imprisonment without the possibility of release"; P.A. 93-306 amended Subsec. (h) to add as an aggravating factor that the defendant committed the offense with an assault weapon; P.A. 95-19 revised section to permit the jury or court to make findings as to whether any aggravating factor or factors outweigh any mitigating factor or factors and require the court to sentence the defendant accordingly, while retaining provision that the existence of certain factors concerning the defendant will operate to automatically bar the imposition of the death sentence, and, more specifically, amended Subsec. (b) to provide that the separate hearing shall not be held if the state stipulates "that any factor set forth in subsection (h) exists" rather than "that one or more mitigating factors exist" and make technical changes, amended Subsec. (c) to make technical changes, amended Subsec. (e) to require the jury or court to return a special verdict setting forth its findings as to "the existence of any factor set forth in subsection (h), the existence of any aggravating factor or factors set forth in subsection (i) and whether any aggravating factor or factors outweigh any mitigating factor or factors found to exist pursuant to subsection (d)" rather than "the existence of any aggravating or mitigating factor", amended Subsec. (f) to revise the circumstances that must be found for the court to impose the death sentence by requiring the court to sentence the defendant to death if the jury or court finds "that (1) none of the factors set forth in subsection (h) exist, (2) one or more of the aggravating factors set forth in subsection (i) exist and (3)(A) no mitigating factor exists or (B) one or more mitigating factors exist but are outweighed by one or more aggravating factors set forth in subsection (i)" rather than "that one or more of the factors set forth in subsection (h) exist and that no mitigating factor exists", designated provisions of Subsec. (f) re the circumstances that must be found for the court to impose a sentence of life imprisonment without the possibility of release as new Subsec. (g) and amended said Subsec. to require the court to impose said sentence if the jury or court finds "that (1) any of the factors set forth in subsection (h) exist, or (2) none of the aggravating factors set forth in subsection (i) exists or (3) one or more of the aggravating factors set forth in subsection (i) exist and one or more mitigating factors exist, but the one or more aggravating factors set forth in subsection (i) do not outweigh the one or more mitigating factors" rather than "that none of the factors set forth in subsection (h) exists or that one or more mitigating factors exist", redesignated former Subsec. (g) as new Subsec. (h) and amended said Subsec. to replace the provision that the court shall not impose the death sentence if the jury or court finds that "any mitigating factor exists" and that "the mitigating factors to be considered concerning the defendant shall include, but are not limited to" the five enumerated factors with the provision that the court shall not impose the death sentence if the jury or court finds any of the enumerated factors and deleted former Subdiv. (3) as a factor that would in and of itself bar the imposition of the death sentence the circumstance that at the time of the offense the defendant "was under unusual and substantial duress, although not such duress as to constitute a defense to prosecution", renumbering Subdivs. (4) and (5) as Subdivs. (3) and (4), respectively, redesignated former Subsec. (h) re aggravating factors as new Subsec. (i) and amended said Subsec. to replace the provision requiring the court to impose the death sentence if no mitigating factor is present and the jury or court finds one of the enumerated factors with "The aggravating factors to be considered shall be limited to the following:"; P.A. 01-151 amended Subsec. (h) to add new Subdiv. (2) barring the imposition of the death sentence on a defendant who was a person with mental retardation, as defined in Sec. 1-1g, redesignate existing Subdivs. (2), (3) and (4) as Subdivs. (3), (4) and (5), and make technical changes for purposes of gender neutrality and amended Subsec. (i) to add Subdiv. (8) establishing as an aggravating factor the commission of the offense set forth in Sec. 53a-54b(1) to avoid arrest for a criminal act, prevent detection of a criminal act, hamper or prevent the victim carrying out the victim's official duties or retaliate against the victim for performance of the victim's official duties and make a technical change for purposes of gender neutrality, effective July 1, 2001.

      See Sec. 53a-35b re definition of "life imprisonment".

      See Sec. 53a-35c re availability of sentence of life imprisonment without possibility of release.

      Former Sec. 53-10 unconstitutional. 164 C. 162. Cited. 197 C. 436. Cited. 207 C. 374. Cited. 209 C. 225. Cited. 212 C. 258. Cited. 221 C. 430. Cited. 225 C. 559. Does not violate prohibition of cruel and unusual punishment nor infringe on rights to due process. 230 C. 183. Death penalty statutes cited. Id. Cited. 233 C. 813. Cited. 234 C. 735. Cited. 235 C. 206. Cited. 237 C. 332. Cited. 238 C. 389. Capital sentencing statutes cited. Id. Death penalty statutes cited. Id. Cited. 240 C. 743. Cited. 242 C. 409. Court upheld previous holding that statute does not require a capital sentencer to give mitigating force to any particular proven factor solely because that factor establishes something good about the defendant. Instead, statute leaves the decision as to whether a proven factor is mitigating in nature to sentencer's reasoned moral judgment. 264 C. 1. Once sentencer has found an aggravating factor proven beyond a reasonable doubt, there is no requirement that it go further and make an additional determination that the presence of that factor justifies imposition of the death penalty. Id. Statutory scheme does not contemplate right of allocution in a capital sentencing hearing. 272 C. 106. Once one or more jurors find that defendant has proven existence of a mitigating factor by a preponderance of the evidence, entire jury, and not just those jurors who have found the existence of that mitigating factor, proceed to the weighing process. Id. Nonunanimous decision during penalty phase of a capital trial does not result automatically in sentence of life imprisonment without the possibility of release. Id. Trial court improperly declined to instruct jury that, in order to sentence defendant to death, it must be persuaded beyond a reasonable doubt that aggravating factor or factors outweigh mitigating factor or factors and that, accordingly, it is persuaded beyond a reasonable doubt that death is the appropriate punishment. Id.

      Cited. 9 CA 686. Cited. 32 CA 296. Cited. 36 CA 364.

      Subsec. (b):

      Term "judges" in the first sentence does not entitle defendant who elected to have a jury determine his sentence at the penalty phase hearing to have all three members of the panel before whom the guilt phase was conducted preside at such hearing. 264 C. 1. Provision does not preclude trial court's declaring a mistrial and impaneling new jury after original jury becomes deadlocked in penalty phase of a capital case. 271 C. 338.

      Subsec. (c):

      Cited. 241 C. 57. The state may present evidence to rebut mitigation at the penalty phase that would not be admissible under normal rules of evidence. Under the statute, the state like the defendant only has to meet the relevancy standard for evidence to be allowed. 251 C. 579. Although defendant may offer any evidence relevant to any mitigating factor, trial court is vested with discretion to exclude irrelevant information. 272 C. 106.

      Subsec. (d):

      Mercy is a legitimate consideration only insofar as it is related to mitigating evidence. 264 C. 1. Requirement for capital sentencer to consider "all the facts and circumstances of the case" is not unconstitutionally vague. Id. Lack of remorse is not listed as a statutory aggravating factor, and so may not be relied upon as an aggravating factor, but because mitigating factors call upon jury to elect whether to exercise mercy, defendant's lack of remorse will be relevant generally to rebut defendant's claimed mitigating factors. 266 C. 171. Jury must make its determination of whether the proposed mitigating evidence is mitigating in nature considering all facts and circumstances of the case, but statute does not require that mitigating evidence have some nexus to the offense. Id. "Facts and circumstances" language is a constitutionally permissible method of determining how mitigating circumstances are to be established. Nowhere does statute require that mitigating evidence have some nexus to the offense. 272 C. 106.

      Subsec. (e):

      Cited. 199 C. 163. Imposition of death penalty premised on two unanimous findings by trier of fact that (1) existence of aggravating factor proved beyond a reasonable doubt by state; (2) existence of a mitigating factor not proved by defendant by a preponderance of the evidence. 207 C. 374.

      Subsec. (f):

      Cited. 199 C. 163. Cited. 208 C. 125. Cited. 237 C. 694. Statute requires that jury determine that aggravating factors outweigh mitigating factors by any amount or degree. 266 C. 171. In light of the unique nature of death penalty, of the need for reliability and consistency and the nature of rendering a verdict requiring death penalty, jury must be persuaded beyond a reasonable doubt that aggravating factors outweigh mitigating factors and therefore it is persuaded beyond a reasonable doubt that death sentence should be imposed. Id.

      Subsec. (g):

      Cited. 199 C. 163. Cited. 235 C. 206. Subdiv. (5) cited. 238 C. 828. Although trial court should generally use language of Subdiv. (2) in instructing jury on the statutory mitigating factor, it is not possible that court's minor misstatement, involving such a tenuous semantic distinction, could have misled jury. 269 C. 213. General thrust of statute as a whole persuades us that legislature intended to recognize as mitigating, per se, only those factors that tend to reduce defendant's moral culpability for the offense and make it unlikely that threat of execution would serve as effective deterrent. Id. "Mental capacity" as used in Subdiv. (2) is not open-ended term referring to any and all types of mental function, but refers specifically to defendant's ability, at time of the offense, to understand the wrongful nature and consequences of his conduct legislature's intent in enacting subsec. was to specify factual circumstances under which defendant's moral culpability for committing the offense is reduced. Id. In order to establish either prong of the mitigating factor of Subdiv. (2), defendant must show that his mental impairment had a causal nexus with the offense, thereby reducing his moral culpability. Id.

      Subsec. (h):

      Subdiv. (4): Meaning of "especially cruel" must include intentional infliction of extreme pain or torture above and beyond that necessarily accompanying the underlying killing. 212 C. 258. "Same felony" means a felony that is the same in all material respects as the felony that is committed in this state during commission of the capital felony. That requirement is fully satisfied only if the two felonies share the same essential elements. 264 C. 1.

      Subsec. (i):

      To qualify as an aggravating factor that defendant committed the offense in an especially heinous, cruel or depraved manner, victim must have suffered extreme pain and torture beyond that necessary to cause death. 253 C. 1. Subdiv. (6) does not apply to a capital felony committed during the course of a robbery. 261 C. 111. In order to establish the aggravating factor defined in Subdiv. (4), state must prove that defendant murdered both victims in an especially heinous, cruel or depraved manner. 262 C. 537. Principles of accessorial liability may be used to prove aggravating factors in the penalty phase of a capital case. 271 C. 338. Subdiv. (3): In order to establish this aggravating factor state must prove that defendant knew that in killing one person, another person would be subject to a very serious risk or danger to his or her life. Id. Subdiv. (4) requires proof that defendant engaged in intentional conduct that inflicted extreme physical or psychological pain, suffering or torture on victim above and beyond that necessarily accompanying the underlying killing, and that defendant specifically intended to inflict such extreme pain, suffering or torture or was callous or indifferent to the extreme physical or psychological pain, suffering or torture that his intentional conduct in fact inflicted on victim. 272 C. 106.

      Subdiv. (1): To ensure that prior felony conviction that is based on a constitutionally invalid guilty plea is not used as aggravant in a death penalty case, it is in the interests of justice that court hear evidence on whether the plea was voluntarily and knowingly made, and defendant bears burden of establishing the constitutional invalidity of prior plea. 48 CS 279.