Argued
December 12, 2017
Procedural
History
Substitute
information charging the defendant with three counts of the
crime of murder, two counts of the crime of capital felony,
and one count of the crime of possession of a firearm,
brought to the Superior Court in the judicial district of
Fairfield, where the guilt phase of the proceedings was tried
to the jury before Kavanewsky, J.; verdict
of guilty; thereafter, during the penalty phase of the
proceedings, the jury found the existence of aggravating
factors and one or more mitigating factors and that the
aggravating factors outweighed the mitigating factor or
factors; subsequently, the court Kavanewsky,
J., granted the defendant's motion to set aside
the jury's verdict during the penalty phase of the
proceedings, and the court, Devlin, J.,
denied the defendant's motion for a competency
evaluation; thereafter, a second penalty phase was tried to
the jury before Blawie, J.; finding of the
existence of aggravating factors and one or more mitigating
factors and that the aggravating factors outweighed the
mitigating factor or factors; subsequently, the court,
Blawie, J., rendered judgment in accordance
with the jury's verdict during the guilt phase and the
jury's finding with respect to the aggravating and
mitigating factors during the second penalty phase,
sentencing the defendant to death, and the defendant appealed
to this court. Appeal dismissed in part;
reversed in part; judgment directed.
Adele
V. Patterson, senior assistant public defender, for the
appellant (defendant).
Harry
D. Weller, senior assistant state's attorney, with whom,
on the brief, were John C. Smriga, state's attorney, and
C. Robert Satti, Jr., supervisory assistant state's
attorney, for the appellee (state).
Palmer, McDonald, Robinson, D'Auria and Mullins,
Js.[*]
OPINION
PALMER, J.
Following
a jury trial, the defendant, Richard S. Roszkowski, was
convicted of three counts of murder, in violation of General
Statutes § 53a-54a (a), for the 2006 murders of Thomas
Gaudet, Holly Flannery (Flannery), and Kylie Flannery
(Kylie); one count of capital felony, in violation of General
Statutes (Rev. to 2005) § 53a-54b (7), for the
coincident murders of Gaudet and Flannery; a second count of
capital felony, in violation of General Statutes (Rev. to
2005) § 53a-54b (8), for the murder of nine year old
Kylie; and one count of criminal possession of a firearm, in
violation of General Statutes (Supp. 2006) § 53a-217 (a)
(1). In 2014, the defendant was sentenced to death for his
second capital felony conviction. On appeal, the defendant
contends that he should not have been subjected to a penalty
phase hearing because (1) the imposition of capital
punishment became unconstitutional in Connecticut following
the legislature's prospective repeal of the death penalty
in 2012; see Public Acts 2012, No. 12-5 (P.A. 12-5); and (2)
the trial court improperly denied his request for a
competency evaluation. He further contends that the trial
court improperly merged his three murder convictions with the
corresponding capital felony convictions. We conclude that
the defendant's penalty phase challenges must be
dismissed as either moot or unripe. We agree, however, that
the defendant's murder convictions should have been
vacated rather than merged. Accordingly, we dismiss in part
the defendant's appeal and reverse in part the judgment
of the trial court.
The
following additional procedural history is relevant to our
resolution of the defendant's appeal. During the
defendant's penalty phase proceedings in 2009, the jury
found, by special verdict, that a sentence of death was the
appropriate punishment for both of the capital felony
convictions. The trial court, Kavanewsky, J.,
granted the defendant's subsequent motion to set aside
the jury's special verdict because the jury did not
unanimously find that the defendant had failed to establish a
statutory mitigating factor. However, the court denied the
defendant's request in that motion to impose a sentence
of life imprisonment without the possibility of release.
Instead, the case was continued for a second penalty phase
hearing.
In the
interim, in 2011, the defendant was deemed incompetent to
stand trial pursuant to General Statutes § 54-56d (a).
The following year, the trial court, Devlin,
J., found that the defendant had been restored to
competency. Also in 2012, the legislature enacted P.A. 12-5,
which repealed the death penalty for crimes committed on or
after April 25, 2012, the effective date of P.A. 12-5, but
purported to retain the death penalty for capital crimes
committed prior to that date.
In
response to those developments, the defendant filed two
motions in 2013, the denial of which is at issue in the
present appeal. First, the defendant moved for a
reexamination of his competency, citing various new
developments that again called into question his competency
to stand trial. The trial court, Devlin,
J., denied the motion for a competency evaluation,
although the court did grant an accompanying request for the
appointment of a guardian ad litem to assist the defendant in
making decisions necessary to conduct his defense. Second,
the defendant moved for a stay of the penalty phase hearing
to await the resolution of State v. Santiago (SC
17413), in which we considered whether, following the
enactment of P.A. 12-5, the state constitution continues to
permit the imposition of the death penalty in Connecticut.
See State v. Santiago, 318 Conn. 1, 9, 122 A.3d 1
(2015). The trial court, Blawie, J., denied
that motion, and Chief Justice Rogers denied the
defendant's petition for certification to appeal pursuant
to General Statutes § 52-265a.
Following
the denial of those motions, a second penalty phase hearing
was held in 2014. At that time, the jury found, by special
verdict, that a sentence of death was the appropriate
punishment for the defendant's second capital felony
conviction, for the murder of Kylie, but the jury was not
persuaded beyond a reasonable doubt that death was the
appropriate punishment for the capital felony conviction for
the murders of Gaudet and Flannery. The trial court,
Blawie, J., accepted the verdict and
imposed a sentence of death in connection with the second
capital felony count, a consecutive sentence of life
imprisonment without the possibility of release in connection
with the first capital felony count, and a consecutive
sentence of five years incarceration in connection with the
firearms charge. The court also merged the three murder
convictions with the corresponding capital felony
convictions. This appeal followed. Additional facts will be
set forth as necessary.
I
We
first consider the defendant's claims that (1) his
sentence of death for the second capital felony conviction
was imposed pursuant to an unconstitutional statute, and (2)
the trial court improperly failed to order an examination to
determine whether he was competent for the second penalty
phase hearing and for sentencing. As a remedy for both claims
of error, the defendant asks that we declare the special
verdict and judgment imposing a sentence of death
‘‘void and a nullity, '' and remand the
case for imposition of a sentence of life imprisonment
without the possibility of release. The state responds, and
we agree, that the defendant is entitled to have his death
sentence vacated and a sentence of life imprisonment without
the possibility of release ...