State v. Rizzo (Dissent)

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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** STATE v. RIZZO FIRST DISSENT NORCOTT, J., dissenting. I continue to maintain my position that the death penalty has no place in the jurisprudence of the state of Connecticut. 1 State v. Ross, 269 Conn. 213, 392 93, 849 A.2d 648 (2004) (Norcott, J., dissenting). Thus, I disagree with the majority s analysis in part IX of its opinion, rejecting the arguments of the defendant, Todd Rizzo, in support of reconsideration of this court s previous decisions2 upholding the constitutionality of the death penalty under article first, §§ 8 and 9, of the Connecticut constitution. I therefore respectfully dissent from the judgment of this court affirming the judgment of the trial court sentencing the defendant to death by lethal injection. As in my past dissenting opinions; see footnote 1 of this dissenting opinion; I do not intend to reiterate in full the reasoning behind my belief that the death penalty per se is wrong, violates the state constitution s prohibition against cruel and unusual punishment . . . [and] that our statutory scheme for the imposition of the death penalty cannot withstand constitutional scrutiny because it allows for arbitrariness and racial discrimination in the determination of who shall live or die at the hands of the state. State v. Cobb, 251 Conn. 285, 543, 743 A.2d 1 (1999) (Norcott, J., dissenting), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000). Rather, I pause to reflect on my previously expressed optimis[m] that very early in the twenty-first century we will all witness the abolition of [the death penalty] by Connecticut as a state and the United States as a country. State v. Webb, 252 Conn. 128, 147, 750 A.2d 448 (Norcott, J., dissenting), cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000); see also State v. Cobb, supra, 552 (Norcott, J., dissenting) ( with the alternative of life imprisonment without the possibility of parole as a penalty, the continuation of the death penalty simply makes no sense as we approach a hopefully more enlightened new millennium ). Recent history has, however, shown that my predictive abilities are no better than those of any other court. Indeed, my optimism waned significantly six years ago, when I found myself questioning, on the eve of an execution, whether our thirst for this ultimate penalty [has] now been slaked, or do we, the people of Connecticut, continue down this increasingly lonesome road? State v. Ross, 273 Conn. 684, 723, 873 A.2d 131 (2005) (Norcott, J., concurring and dissenting). Part IX of the majority s opinion in the present case, coupled with the subsequent failures of two legislative measures that would have repealed the death penalty,3 has, to my regret, answered the rhetorical question that I asked in 2005. Although the scholarship and drafting of the majority s opinion is beyond reproach as a technical matter, it nevertheless leaves Connecticut in step with much of the United States,4 which, in 2010, trailed only China, Iran, North Korea and Yemen with respect to the number of reported executions.5 See Amnesty International, Report: Death Sentences and Executions 2010 (2011), p. 41, available at http://www.amnesty.org/en/ library/asset/ACT50/001/2011/en/ea1b6b25-a62a-4074927d-ba51e88df2e9/act500012011en.pdf (last visited November 17, 2011). Given this company;6 see State v. Allen, 289 Conn. 550, 585, 958 A.2d 1214 (2008) (international practices relevant to constitutional question of whether particular penalty constitutes cruel and unusual punishment); I therefore remain disappointed that a majority of this court continues to decline to declare the death penalty unconstitutional under the Connecticut constitution, and continue to respectfully dissent from its failure to do so. I would reverse the judgment of the trial court sentencing the defendant to death by lethal injection, and remand the case to the trial court with direction to impose a sentence of life imprisonment without the possibility of release. 1 See State v. Ross, 273 Conn. 684, 721, 873 A.2d 131 (2005) (Norcott, J., concurring and dissenting); State v. Peeler, 271 Conn. 338, 464, 857 A.2d 808 (2004) (Katz, J., with whom Norcott, J., joins, dissenting), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005); State v. Ross, supra, 269 Conn. 392 93 (Norcott, J., dissenting); State v. Breton, 264 Conn. 327, 446 49, 824 A.2d 778 (Norcott, J., dissenting), cert. denied, 540 U.S. 1055, 124 S. Ct. 819, 157 L. Ed. 2d 708 (2003); State v. Webb, 252 Conn. 128, 147, 750 A.2d 448 (Norcott, J., dissenting), cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000); State v. Griffin, 251 Conn. 671, 742 48, 741 A.2d 913 (1999) (Norcott, J., dissenting); State v. Ross, 251 Conn. 579, 597, 742 A.2d 312 (1999) (Norcott, J., dissenting); State v. Cobb, 251 Conn. 285, 543 52, 743 A.2d 1 (1999) (Norcott, J., dissenting), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); State v. Webb, 238 Conn. 389, 566 70, 680 A.2d 147 (1996) (Norcott, J., dissenting); see also State v. Ross, 272 Conn. 577, 613, 863 A.2d 654 (2005) (Norcott, J., concurring); State v. Rizzo, 266 Conn. 171, 313 14, 833 A.2d 363 (2003) (Norcott, J., concurring); State v. Courchesne, 262 Conn. 537, 583 84, 816 A.2d 562 (2003) (Norcott, J., concurring). 2 See, e.g., State v. Webb, 238 Conn. 389, 405 406, 680 A.2d 147 (1996); State v. Ross, 230 Conn. 183, 249 52, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995). 3 See Senate Bill No. 1035, 2011 Sess., An Act Revising the Penalty for Capital Felonies (died prior to receiving floor vote); Public Acts 2009, No. 09-107 (legislation vetoed by former Governor M. Jodi Rell). 4 As the majority notes, thirty-four states, plus the federal government and military, have the death penalty. Connecticut and New Hampshire are the only states in the New England region with the death penalty. See generally Death Penalty Information Center, Facts About the Death Penalty, available at http://www.deathpenaltyinfo.org/documents/Fact Sheet.pdf (last visited November 17, 2011). 5 The remainder of the top ten countries with respect to the number of reported executions in 2010 consists of Saudi Arabia, Libya, Syria, Bangladesh and Somalia. See Amnesty International, Report: Death Sentences and Executions 2010 (2011), p. 41, available at http://www.amnesty.org/en/ library/asset/ACT50/001/2011/en/ea1b6b25-a62a-4074-927d-ba51e88df2e9/ act500012011en.pdf (last visited November 17, 2011). 6 Cf. Aesop s Fables, The Ass and His Purchaser ( [a] man is known by the company he keeps ), available at http://etext.virginia.edu/toc/modeng/ public/AesFabl.html (last visited November 17, 2011).

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