State v. Rizzo (dissenting)
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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--THIRD CONCURRENCE VERTEFEUILLE, J., concurring and dissenting. I agree with and join parts I A through E, II, III, IV, V, VI, VII and VIII of the majority opinion. I do not join part I F of the majority opinion because I do not agree with the majority s construction of General Statutes (Rev. to 1997) ยง 53a-46a as requiring that the jury must be instructed that it must be persuaded beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors . . . . Accordingly, I join part I of Chief Justice Sullivan s dissent, which would affirm the trial court s judgment in this regard. I do not join part II of the Chief Justice s dissent, however, because I agree with the majority that there was prosecutorial misconduct in this case and that this misconduct so infected the trial with unfairness as to make the resulting [imposition of the death penalty] a denial of due process. (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 161, 824 A. 2d 611 (2003). Accordingly, I would remand the case for a new penalty hearing because of that prosecutorial misconduct.
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