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 CONCURRENCE AND DISSENT ZARELLA, J., concurring in part and dissenting in part. I agree with and join the majority opinion except for part I F, with respect to which I join part I of Chief Justice Sullivan s dissenting opinion.1 I emphasize that I find particularly troubling the majority s failure to perform an analysis, under State v. Geisler, 222 Conn. 672, 684 85, 610 A.2d 1225 (1992), of the defendant s state constitutional claim that there is a gap in General Statutes (Rev. to 1997) § 53a-46a (f) that must be filled by a requirement that the trial court instruct the jury that it must be persuaded beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors in order to impose the death penalty. The majority performs such an analysis in connection with the defendant s alternative claim that § 53a-46a (f) violates the state constitution inasmuch as it does not require the aggravating factors to outweigh the mitigating factors beyond a reasonable doubt. Accordingly, it is clear that the majority recognizes that Geisler is applicable in death penalty cases. I must presume, therefore, that the majority abandons that analysis when considering the claim pertaining to the purported constitutional gap in the statute and, instead, relies on a vague standard that focuses on the special nature of the death penalty because it recognizes that that claim also would fail under Geisler. Citing State v. Floyd, 217 Conn. 73, 89, 584 A.2d 1157 (1991), the majority asserts that a Geisler analysis is not required because the majority is merely identifying, rather than resolving, a constitutional question. See footnote 32 of the majority opinion. In my view, Floyd does not support this argument. In Floyd, this court concluded that General Statutes (Rev. to 1991) § 53a176b was capable of a narrow construction that passed constitutional muster and, therefore, declined to decide whether a broader reading of that provision would render it constitutionally infirm. State v. Floyd, supra, 89 95. The court reached that conclusion, however, only after engaging in a thorough analysis of the defendant s constitutional claims that provided context for the court s conclusion that a broader reading would place the statute in constitutional jeopardy. See id., 79;2 see also Roth v. Weston, 259 Conn. 202, 232 33, 789 A.2d 431 (2002) (concluding after lengthy constitutional analysis that literal construction of statute would raise serious constitutional questions); State v. Metz, 230 Conn. 400, 424, 645 A.2d 965 (1994) (same). In all of these cases, this court declined to decide whether a broad reading of the statute under review would render the statute unconstitutional. It did not, however, decline to engage in a constitutional analysis to determine whether such a reading would raise constitutional questions. The majority concedes that a Geisler analysis is necessary in order to determine whether our state constitution affords greater protection than the federal constitution . . . . Footnote 32 of the majority opinion. That is precisely what the majority does, however, when it states that, under our state constitution, our overarching concern for consistency and reliability in the imposition of the death penalty extends to the ultimate decision of whether to impose or to decline to impose that penalty. (Emphasis in original.) Part I F of the majority opinion. The fact that the majority refrains from deciding whether § 53a-46a (f) is unconstitutional in the absence of the instructional requirement that it nevertheless superimposes on the statute does not, in my view, excuse it from providing, in the first instance, a justification for the imposition of that requirement in accordance with Geisler. 1 I also join footnote 1 of the Chief Justice s dissenting opinion. I do not join part II of the Chief Justice s dissenting opinion, however. 2 In Floyd, this court stated that it would consider in turn the factors that may constitute a seizure under the fourth amendment or a deprivation of privacy or liberty without due process of law under the fourteenth amendment, and we examine the balancing tests that must be applied to determine whether a violation of constitutional norms has occurred. We then turn to [General Statutes (Rev. to 1991)] § 53a-167b to determine whether it can be construed to incorporate the relevant constitutional commands. State v. Floyd, supra, 217 Conn. 79. Thus, the court clearly identified the relevant constitutional demands before determining whether the statute was questionable in light of those demands.
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