By Paul Frisman
The Connecticut Law Tribune
July 29, 1996
In a matter-of-fact decision belying the case's significance, the state Supreme Court has voted 4-3 to allow once again the execution of death row inmates in Connecticut.
The decision in State v. Webb, officially released July 30, represents the first time the seven sitting justices have upheld the constitutionality of the state death penalty. It affirms the death sentence of a state inmate for the first time since such sentences were invalidated as the result of the 1972 U.S. Supreme Court case Furman v. Georgia.
Connecticut has not put a man to death since 1960. At present, six men face the possibility of execution.
The majority opinion, written by Justice David M. Borden, is straightforward and by the book. Borden, joined by Chief Justice Ellen A. Peters and Justices Robert J. Callahan and Richard N. Palmer, finds no natural law barrier to capital punishment; disposes of a catalog of objections to Daniel J. Webb's two-part trial; approves the state's scheme of proportionality review; and finds that Webb's death sentence is in keeping with others meted out in the state.
"There is nothing freakish, arbitrary, wanton or aberrational about the sentence in this case," Borden writes. "The sentence of death . . . therefore, must be affirmed."
The dissents are as passionate as the majority opinion is unemotional. Justices Robert I. Berdon, Joette Katz and Flemming L. Norcott Jr. say the death penalty as it now stands is, in Norcott's words, "infected" with arbitrariness and racism.
"I am confident," writes Berdon, "that eventually both the judicial system and the citizens of this state will reflect back on this day with the same disbelief and sense of outrage that we currently hold in regard to those punishments that were inflicted during the eighteenth and nineteenth centuries in this state."
Natural Law
The court remands Webb to the trial court for the sole purpose of allowing him to challenge the constitutionality of death by lethal injection. The General Assembly changed the method of execution from electrocution to lethal injection in 1995, four years after Webb was convicted of the attempted rape and brutal murder of Connecticut National Bank Vice President Diane Gellenbeck, 37.
Webb, now 33, was charged with abducting Gellenbeck from the bank's parking garage on Aug. 24, 1989, driving her to Hartford's Keney Park and attempting to rape her. When Gellenback broke free, he shot her twice in the back. She then began crawling away, calling for help. Prosecutors said Webb followed her and fired three more shots at her from close range, killing her.
Borden recounts the facts of the case methodically as he rejects almost all of the 30 claims raised by Webb's lawyers, John R. Williams and Norman A. Pattis, of the Law Offices of John R. Williams in New Haven.
Borden says that Webb's constitutional challenge raises several of the same issues the court rejected in State v. Ross (1994) and State v. Breton (1995). In those cases, panels of the justices upheld the constitutionality of the death penalty, but found reversible error in the penalty phase. The full court did not hear those cases because several of the justices disqualified themselves. In this case, the parties waived any potential disqualification of any of the justices.
Borden wastes little time rejecting Webb's theory that natural law and the social compact, as incorporated in Article First, 1 of the state constitution, combines with the due-process provisions of Article First, 8 and 9, to make the death penalty unconstitutional.
Pattis argued at a Dec. 1 en banc hearing that individuals cede some of their natural rights in return for society's protections. But no one, he argued, would voluntarily give up his right to life. "There is a fundamental and inherent right to live that the state cannot abridge," Pattis told the court.
But Borden, referring to earlier decisions in the 1995 decision in Moore v. Ganim, which found no state constitutional right to minimal subsistence, and the 1993 ruling in State v. Joyner, which found that natural law does not require the state to bear the burden of establishing the sanity of a criminal defendant, rejects the theory that "natural law serves as an unwritten source of constitutional rights. . . . Unenumerated rights exist, if at all," he writes, "only if they are grounded in or derived from the constitutional text or Connecticut's unique historical record."
Borden agrees with Pattis that the state constitution must be read "within the context of the times." But he notes that the Legislature's restoration of the death penalty, after the U.S. Supreme Court provided the framework for such laws in Gregg v. Georgia (1976), is evidence that the times may not be going in the direction Webb's lawyers might wish.
Aggravating Factors
Most of the lengthy majority opinion concerns dozens of trial-related issues raised by Webb. Borden rejects nearly all of them.
He does agree with Webb's contention that Hartford Superior Court Judge Thomas H. Corrigan erred when he instructed the jury, but finds the error to be harmless.
To impose the death penalty, the jury in Webb had to find the presence of at least one aggravating factor claimed by the state: Either the crime was committed in an "especially heinous, cruel or depraved" manner, or it was committed during the commission or attempted commission of a felony of a kind for which Webb had previously been convicted. Webb had previously been convicted of first-degree sexual assault.
Corrigan, Borden finds, defined "especially cruel" in such a way as to allow the jury to consider mental suffering -- a broader definition than that allowed by the state Supreme Court. "Not only did the instructions improperly fail to incorporate the judicial gloss," Borden writes, ". . . but, arguably, the instructions rendered the statutory language constitutionally vague as well. . . . " evertheless, Borden writes, the error was harmless because the jurors found both aggravating factors to be present in the case, and only one aggravant is needed to impose a death sentence. "We are convinced beyond a reasonable doubt that the trial court's improper instructions . . . did not affect the jury's deliberations concerning the other alleged aggravant," Borden finds.
Borden also rejects a defense claim that Corrigan failed to give as much weight to mitigating factors as aggravating factors, thereby violating Webb's Eighth Amendment and 14th Amendment federal constitutional rights. Williams and Pattis noted that the Supreme Court itself had so held in similar circumstances in Breton.
Borden acknowledges the Breton rule, which instructs trial courts to provide jury instructions on each mitigant, but rebuffs the defense claim.
"We require this not as a matter of federal constitutional law, but, rather, as a matter of sound judicial policy," he writes. Webb could prevail, he writes, only if the trial court's instructions violated federal constitutional requirements. That was not the case, Borden finds.
Under the law in effect at the time of trial, a jury could not impose the death penalty if it either found no aggravating factors, or any mitigating factor. That law has since been changed to allow juries to weigh aggravating against mitigating factors. Under the new law, if mitigating factors outweigh aggravating factors, the sentence is life without the possibility of release. If aggravants outweigh mitigants, the sentence must be death.
Borden rejects a number of other objections, among them claims of conflict of interest, failure to provide new counsel and improper voir dire.
Proportionality Review
Much of the majority opinion concerns the court's conducting of the proportionality review requirement -- the first time the court has actually done so. Proportionality review requires the Supreme Court to affirm a sentence of death unless it finds the sentence is disproportionate to penalties imposed in similar cases "considering both the circumstances of the crime and the character and record of the defendant."
(The General Assembly in 1995 eliminated the Supreme Court's duty to reverse a case if a sentence is disproportionate or excessive. Cases that predate the change in the law are still subject to the law.)
The focus, Borden writes, is not on whether the sentence is proportional to those in similar cases, but on whether it's disproportionate. "The search was not necessarily for a similarity of the case on review to other cases . . . but for a gross disparity. . . . " The review, he writes, cannot be based on statistics -- there are too few cases for that in any event -- but on comparisons to other cases.
The cases to which Webb must be compared, Borden writes, must be limited to capital felony cases -- the only cases in Connecticut in which the death penalty can be imposed. Borden eliminates from the universe of cases those in which the state did not seek the death penalty and those in which there were no death penalty hearings following conviction.
The universe of similar cases, Borden writes, need not be limited to those in which the crimes charged are identical to Webb's. The court must look at the essential facts, rather than the precise statutory elements.
"In our view similar cases means . . . cases in which the underlying capital felonies were based on conduct . . . that is substantially similar . . . to that of the defendant," he writes. The particular universe for cases similar to Webb, he writes, "consist of those capital felony convictions based upon kidnap-murders, sexual assault, attempted sexual assault or both."
Borden rejects the defense objections to the proportionality review statute, C.G.S. 53a-46b. Among other things, Webb contended that the proportionality review law gave no guidance to the court, leaving it with "little but its intuition" to determine which aspects of a crime or a defendant's character are relevant.
"Although certainly difficult, the process of proportionality review is neither arbitrary nor unprincipled," Borden writes. "We do not rely on our intuition in engaging in the process."
Finally, Borden selects seven cases to compare with Webb's -- four murders of which Michael B. Ross was convicted, and the cases of Sedrick Cobb, Richard Lapointe and Kevin Usry. Ross and Cobb were sentenced to death, Lapointe and Usry to life in prison without the possibility of release.
Webb's death sentence is not disproportionate to the sentences in those cases, given the aggravating and mitigating factors in each, Borden writes.
Cruel and Unusual
In dissent, Berdon, joined by Katz, reiterates the objections to capital punishment he raised in Ross and Breton.
Berdon and Katz say capital punishment violates the state constitution's prohibition against cruel and unusual punishment and call for the expansion of the universe of cases used in proportionality review.
Berdon and Katz, joined by Norcott, also say that capital punishment necessarily raises questions of arbitrariness and racism.
Berdon and Katz note that statistics show that black capital felony defendants are convicted twice as often as nonblack defendants, and that the death penalty is less likely to be imposed if the victim is African-American.
"I am greatly concerned that the majority of this court continues to evade the issue of whether racism exists with respect to the death penalty," Berdon writes. Although Webb, who is black, did not raise the issue, Berdon says, "the concern of possible systemic racism is a factor that must be considered when deciding whether the death penalty constitutes cruel and unusual punishment. . . . "
Borden takes umbrage at those remarks, wielding the sharp pen that was so evident in his dissent in Sheff v. O'Neill earlier this month.
". . . The dissent of Justices Berdon and Katz accuses the majority of `continuing to evade the issue of whether racism exists with respect to the death penalty,' " he writes in a footnote. "The accusation is false . . . the issue is not racism; the issue is the proper forum for making a record and presenting such a claim."
Borden says such claims can be raised either through habeas corpus petitions, or under a different section of the proportionality review law, which requires the court to reverse any death sentence that is "the product of passion, prejudice or any other arbitrary factor." Norcott, dissenting separately, says he doesn't believe the death penalty per se is unconstitutional, but that it cannot pass constitutional muster as currently applied.
"Our statutory scheme . . . admits of an unacceptable opportunity for arbitrariness and the influence of racial discrimination to operate in the determination of who shall die at the hands of the state," he writes.
Racial prejudice, writes Norcott, the court's only African-American justice, is "the prevalent unresolved and divisive issue in this country."
"The specter of racial discrimination touches every facet of our lives and the statutory scheme for the imposition of the death penalty does not escape its pervasive evil," he writes. "As long as racial prejudice is a factor in our lives . . . there can be no place for a capital penalty in our society."
Defense counsel Pattis, who calls himself an "absolutist" on the death penalty, says he is troubled and disappointed by the court's decision.
"The court's willingness to match an eye for an eye and tooth for tooth is breathtaking," he says. "I cannot comprehend how a court could conclude that people entering into an agreement to be governed would sacrifice their right to live."
Pattis vows to continue the fight in the federal courts. "This struggle is a long way from over," he says. "This office will do everything in its power to prevent the state from killing Daniel Webb."
"It's perhaps appropriate to view [this] litigation as a marathon," he says. We're a long way from tired, and we don't think we've reached the halfway point."
Pattis' opposing counsel, Assistant State's Attorney Timothy J. Sugrue, agrees the battle is not over. Sugrue, who argued Webb before the high court, foresees "years of litigation to follow in federal court."
Other inmates on the state's death row, meanwhile, will have to rework their own appeals to the high court in the wake of Webb, he says. The other state inmates who have been sentenced to death are Ross, Cobb, Robert Breton, Terry Johnson and Richard Reynolds. Ross was convicted and sentenced to death for sexually assaulting and murdering four women in eastern Connecticut; Cobb of sexually assaulting and killing a woman he abducted from a shopping mall parking lot; Breton of killing his ex-wife and son; Johnson of killing state trooper Terry Bagshaw; and Reynolds of killing a Waterbury policeman.
Sugrue says Webb is an "extremely significant decision. . . . This is a significant step toward bringing Webb closer to execution."
The prosecutor says reasonable people can differ about the death penalty -- "you have to respect the dissents," he says, although he disagrees with them -- but he has no doubt about Webb's guilt.
"There's absolutely no doubt that Daniel Webb did these crimes," he says. "No reasonable person could have any doubt that Webb did this."
(The Connecticut Law Tribune is an affiliate publication of Court TV.)
Copyright 1996, American Lawyer Media.
