State v. Cobb

BERDON, J.,

dissenting.1 To put it mildly, the defendant, Sedrick Cobb, is not a very nice person. But our *523laws are designed to protect every citizen in an evenhanded manner. They protect not only the rights of the innocent, but also the rights of those individuals who are not so nice. That is a bedrock principle of our democracy. As Justice Frankfurter stated almost fifty years ago, “[i]t is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” United States v. Rabinowitz, 339 U.S. 56, 69, 70 S. Ct. 430, 94 L. Ed. 653 (1950) (Frankfurter, J., dissenting).

I continue to believe that the death penalty does not comport with contemporary standards of decency and morality and that its imposition violates our state constitution because it constitutes cruel and unusual punishment. State v. Webb, 238 Conn. 389, 555, 680 A.2d 147 (1996) (Berdon, J., with whom Norcott and Katz, Js., joined, dissenting); State v. Breton, 235 Conn. 206, 260, 663 A.2d 1026 (1995) (Berdon, J., dissenting); State v. Ross, 230 Conn. 183, 286, 646 A.2d 1318 (1994) (Berdon, J., dissenting), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995). Although in those prior opinions I have explicated broadly the unconstitutionality of the death penalty, in this dissent I focus on the arbitrariness of its application and the fact that, in practice, the imposition of the death penalty raises serious issues of whether it is driven by racism. I shall also *524point out that the majority of this court has failed to perform its legislatively mandated duties.2

I

The arbitrariness of the imposition of the death penalty that I discuss in this section of my dissent is a different type than that which I discussed in my dissent in State v. Ross, supra, 230 Conn. 305-10. It is the arbitrariness of the law upon which the state predicates its conviction that I concern myself with today. This arbitrariness is demonstrated by comparing this court’s decision in Ross with our more recent decision in State v. Malave, 250 Conn. 722, 687 A.2d 489 (1999).

In Ross, a death penalty case, the majority of this court upheld the trial court’s missing witness jury instruction (sometimes referred to as Secondino rule)— that is, the jury may draw an adverse inference because of the failure of the defendant “to produce a witness who is within his power to produce and who would naturally have been produced by him . . . .” Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960).

The challenged missing witness instruction in Ross was particularly important to the state in order to obtain the defendant’s conviction. The court’s instruction included references to two psychiatrists who had examined the defendant in regard to his sanity but who did not testify at trial. State v. Ross, supra, 230 Conn. 209. This insanity defense was the defendant’s only substantive defense with respect to his criminal liability for the multiple sexual assaults, kidnappings and murders with which he had been charged. Id., 192. The missing witness instruction undermined the testimony of a psychiatrist and a psychologist who the defendant did produce *525and who testified that he lacked the requisite mental capacity under General Statutes § 53a-13. See id., 215-17. In effect, their testimony was that at the times that he committed the crimes, the defendant “lacked substantial capacity as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law.” General Statutes § 53a-13 (a). Indeed, in Ross, the majority justified the missing witness instruction as being essential for “the truth finding function of the jury.” State v. Ross, supra, 214-15. The court stated: “[T]he Secondino charge serves important evidentiary interests. In contradistinction to an invocation of [the attorney-client] privilege, the Secondino inference derives from the maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted. . . . Permitting consideration of all relevant evidence that bears a reasonable assurance of reliability advances the truth finding function of the jury.” (Citation omitted.) Id., 214.3

Five years later, in State v. Malave, supra, 250 Conn. 738, an en banc court unanimously held “that the time has come to abandon the missing witness rule,” and ordered trial courts not to instruct jurors that they may draw an adverse inference for the failure of a party to call a witness under Secondino. In Malave, the court recognized that the “application of the Secondino rule in criminal cases gives rise to constitutional issues not present in civil cases. Indeed, some courts have concluded that a missing witness instruction unconstitutionally diminishes the state’s burden of proving the defendant’s guilt beyond a reasonable doubt by suggesting to the jury that the defendant has some obligation to produce evidence. See, e.g., State v. Brewer, *526[505 A.2d 774, 777 (Me. 1985)] (‘To allow the missing-witness inference in a criminal case is particularly inappropriate since it distorts the allocation of the burden of proving the defendant’s guilt. The defendant is not obligated to present evidence on his own behalf. The inference may have the effect of requiring the defendant to produce evidence to rebut the inference. If he fails to do so, the missing-witness inference allows the state to create “evidence” from the defendant’s failure to produce evidence. Such a result is impermissible.’); Russell v. Commonwealth, [216 Va. 833, 837, 223 S.E.2d 877 (1976)] (‘[Missing witness instructions] . . . run head on into the presumption of innocence to which every accused is entitled and upon which juries are universally instructed. . . . To tell a jury that the failure of the defense to call a material witness raises an adverse presumption against the accused is to weaken, if not neutralize, the presumption of innocence which, if given its full strength, might be sufficient to tip the scales in favor of acquittal.’).” State v. Malave, supra, 737-38.

Just three years ago, in my dissent in State v. Taylor, 239 Conn. 481, 512-13, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997), I pointed out that the missing witness instruction is unconstitutional, stating: “[I]t is well established that ‘ [a]n instruction that dilutes the state’s burden, or places a burden on the defendant to prove his innocence, is unconstitutional. Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979).’ State v. Reddick, 197 Conn. 115, 131-32, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). In my view, the Secondino rule unconstitutionally diminishes the state’s burden of proving the defendant’s guilt beyond a reasonable doubt. It is incomprehensible to me that, although the defendant bears no burden and need not present evidence or call witnesses, it is *527permissible for the trial judge to instruct the jury, or for the state to comment, that the jury may draw an unfavorable inference on the defendant’s failure to produce a witness.”4

*528Although this court in Malave found the improper missing witness instruction to the jury to be “harmless error” by fancily sidestepping the constitutional issues, one can only speculate as to whether a jury would have acquitted him if the instruction had not been given. “The trial court essentially instructed the jury that it could infer that the testimony of another witness— whom the defendant did not call — would have cast doubt upon the defendant’s alibi. The harm that inheres in this instruction is self-evident. The trial court authorized the jury to discredit the testimony of the defendant’s alibi witnesses, based on nothing more substantial than the fact that another witness had failed to testify. In short, the trial court encouraged the jury to reject the defendant’s alibi. If this kind of encouragement from the court is ‘harmless,’ then I must not understand the meaning of that word.” State v. Malave, supra, 250 Conn. 746 (Berdon, J., concurring and dissenting).

Although the missing witness instruction finally was abandoned in Malave, the change in the predicate law upon which the conviction of the defendant in Ross, who now faces a new death penalty hearing, rested has undermined the reliability of his conviction, which may very well lead to a sentence of death.5 This kind of injustice is unconscionable and should be intolerable in the context of the death penalty.

*529The majority in this case concedes, “as judges we have long understood that, as . . . Justice . . . Oliver Wendell Holmes articulated in his famous aphorism, ‘[t]he life of the law has not been logic: it has been experience.’ ” The majority seems to view the “constitutional” imposition of death as a matter of trial and error. When death is the consequence there is no margin for error. Even Justice Rehnquist acknowledged: “One of the principal reasons why death is different is because it is irreversible; an executed defendant cannot be brought back to life. This aspect of the difference between death and other penalties would undoubtedly support statutory provisions for especially careful review of the fairness of the trial, the accuracy of the factfinding process, and the fairness of the sentencing procedure where the death penalty is imposed. . . . The second aspect of the death penalty which makes it ‘different’ from other penalties is the fact that it is indeed an ultimate penalty which ends a human life rather than simply requiring that a living human being be confined for a given period of time in a penal institution.” Woodson v. North Carolina, 428 U.S. 280, 323, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (Rehnquist, J., dissenting). “An executed person has indeed lost the right to have rights.” (Internal quotation marks omitted.) Spaziano v. Florida, 468 U.S. 447, 469 n.3, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984). Because the law evolves continuously as a result of changes in the personnel of the court or as a result of justices who revise their positions,6 such as in Malave, the imposition of *530the death penalty has no place in a civilized democratic society. It embodies an arbitrariness that cannot be tolerated when the state determines who should live and who should die.

II

There is a second type of arbitrariness which is inherent in the imposition of the death penalty. Justice Black-mun, in his “I no longer shall tinker with the machinery of death” dissent to the denial of certiorari in Callins v. Collins, 510 U.S. 1141, 1145, 114 S. Ct. 1127, 127 L. Ed. 2d 435 (1994),7 cogently wrote: “The arbitrariness inherent in the sentencer’s discretion to afford mercy is exacerbated by the problem of race. Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die. Perhaps it should not be surprising that the biases and prejudices that infect society generally would influence the determination of who is sentenced to death, even within the narrower pool of death-eligible defendants selected according to objective standards. No matter how narrowly the pool of death-eligible defendants is drawn according to objective standards, [the] promise [of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972)] still will go unfulfilled so long as the sentencer is free to exercise unbridled discretion within the smaller group and thereby to discriminate. ‘ “[T]he power to be lenient [also] is the power to discriminate.” ’ McCleskey v. Kemp, [481 U.S. 279, 312, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987)], quoting K. Davis, Discretionary Justice 170 (1973).” Callins v. Collins, supra, 1153 (Blackmun, J., dissenting).

The perception of the “virus of racism” which infects the imposition of the death penalty has not only been *531demonstrated to exist in other jurisdictions, such as Georgia,8 but also in the state of Connecticut. In the present case, the defendant is an African-American and the victim was white. In State v. Cobb, 234 Conn. 735, 663 A.2d 948 (1995) (Cobb I), I pointed to the following disturbing statistics not from the South but with respect to the application of the death penalty in Connecticut. “First, the data indicates that of all the defendants who have been charged with capital felony, African-American defendants have been convicted twice as often— and, therefore, have been subjected to the death penalty twice as often — as defendants who are not African-American. In other words, if a defendant who is not African-American is charged with capital felony, there is a 200 percent greater chance that the jury will return a verdict of not guilty on that charge, and therefore not subject him to the death penalty, than if the defendant is African-American.

*532“Second, the data indicates that the death penalty is more likely to be imposed if the victim of the crime was white or otherwise not African-American. The defendant points to several specific instances:

“(1) Those defendants who murder African-Americans are substantially less likely to be charged with capital felony and, consequently, substantially less likely to be subject to the death penalty, than those defendants who murder persons who are not African-Americans.

“(2) None of the defendants now on death row was sentenced to death for the murder of an African-American, although 40 percent of those persons murdered in this state since 1976 have been African-American.

“(3) Of the twenty-eight cases in which a person was convicted of capital felony, only four, or 14 percent, have involved a victim who was African-American. As indicated previously, however, 40 percent of murder victims since 1976 have been African-American.

“(4) Of the eighteen cases that have proceeded to the ‘death penalty phase’ hearing, only one, or 5.5 percent, involved a victim who was African-American.

“(5) If the victim was an African-American, those defendants who are accused of kidnapping and murder — two of the specific crimes of which the defendant in this case was convicted — will not be charged with capital felony, and therefore will not be subject to the death penalty.

“(6) Similarly, if the victim was an African-American, those defendants who are accused of sexual assault and murder — also two of the specific crimes of which the defendant in this case was convicted — will very rarely be charged with capital felony, and therefore will very rarely be subject to the death penalty.

*533“The significance of the capital felony data brought forward by the defendant may be summarized as follows. If the defendant is an African-American, he is more likely to receive the death penalty than if he were white. If the victim is white, a defendant also is more likely to receive the death penalty. If the defendant is an African-American and the victim is white, the defendant is highly more likely to receive the death penalty.” Cobb I, supra, 234 Conn. 766-68 (Berdon, J., with whom, Norcott and Katz, Js., joined, dissenting).

Indeed, when this case is compared to State v. Hafford9 Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CR91-0084381 (August 9, 1996), which by no means is an isolated example, the perception of racism becomes evident. In Hafford, a three judge panel found that the white defendant was guilty of the capital felony of murder that occurred in the course of a sexual assault and during the course of a robbery. They also found that the murder was committed in an especially cruel manner in that the defendant intentionally inflicted extreme pain and torture on his victim above and beyond that which would necessarily accompany the underlying killing. More specifically, the defendant in Hafford used five different weapons and inflicted more than sixty wounds on the victim during the attack, stabbing her repeatedly in the head with a shovel and striking her body with an ice chopper. Nevertheless, the three judge panel noted the confession the defendant had given to the police, in which he expressed remorse, and determined that that constituted a nonstatutory mitigating factor that resulted in his life being spared and his being sentenced to life imprisonment.

*534In the present case, the defendant also confessed and was remorseful before he was convicted.10 The murder *535in Hafford was committed in a manner that was just as cruel as that committed in this case and both defendants voluntarily confessed and expressed remorse. The only difference I can detect is the race of the defendant— in Hafford, the white defendant’s life was spared and in this case the African-American defendant has been sentenced to death.

The three judge panel in the present case refused to credit the defendant’s confession, cooperation and remorsefulness merely because his attorney moved to suppress his confession. Thus, according to the majority, the defendant must be put to death because the defendant exercised his constitutional right to challenge a potentially coerced confession through a pretrial motion to suppress.

During the argument on the defendant’s motion to dismiss the penalty hearing, defense counsel argued that the three judge panel should find that it was a mitigating factor that the defendant had assisted the police in the investigation of the crime and had confessed to the crime, whereupon one of the judges interrupted, stating, “[b]ut then [the defendant] sought to suppress his confessions and the searches, right? . . . You claim that [the defendant] cooperated with the police, [yet] [t]here were extensive suppression hearings.” The majority contends that because this colloquy occurred at the hearing on the motion to dismiss the *536penalty hearing as opposed to during the actual penalty hearing itself — although heard by a panel of the exact same judges — “this record does not support [the defendant’s] assertion that in imposing the death penalty, the panel considered and held against him, in connection with his proposed mitigant of his confession, the fact that he had moved to suppress the confession.” According to the majority, “[t]he colloquy engaged in by one of the three panel members with the defendant’s counsel, during argument on the defendant’s motion prior to the penalty hearing, is an inadequate basis for such an assertion.” This reasoning by the majority, in and of itself, will foster the perception that the death penalty is driven by racism.11

The defendant’s confession in conjunction with his mental illness and borderline intelligence are also mitigating factors. Our own case law tells us this.12 Under these facts, the sentence of death imposed on a mentally ill man whose intelligence tested in the seventh percentile nationwide evidences a statutory structure not only laden with arbitrariness and bias, but also bereft of compassion and mercy.

Ill

The legislature has mandated a special type of review by this court when a defendant has been sentenced *537to death. It requires that the Supreme Court before affirming a sentence of death must determine that the sentence was not the “product of passion, prejudice or any other arbitrary factor . . . .” General Statutes § 53a-46b (b) (1). The majority refuses to make this determination because “we rejected [that claim] in an earlier proceeding during the course of this appeal.” See Cobb I, supra, 234 Conn. 761-63. Merely to pass this statutory obligation off by stating that the defendant can raise it before a habeas court ignores the plain language of § 53a-46b (b) (1). Furthermore, it was not the intent of the legislature to place on the defendant the same baggage a petitioner must carry before a habeas court on this issue — e.g., the burden of proof.13

One week before oral argument in this case, I urged the justices of this court at conference to grant my motion to remand this case to the trial court in order to determine whether the sentence of death was the result of passion, prejudice or any other arbitrary factor. This motion was flatly rejected. In a memorandum to my colleagues in support of the motion, I wrote: “When a capital defendant marshals a compelling argument that the death penalty as it is administered in our state is incurably racist, we should stop dead in our tracks until we have given the argument our most serious attention. The public in general, the African-American community in particular, and any person with an ounce of either compassion or common sense would be appalled if we were to do anything else. It is, quite literally, a matter of life and death.

“In Cobb I, supra, 234 Conn. 763, the prevailing justices appeared to agree with this proposition, writing *538that ‘the nature of the defendant’s claim of systemic racial bias, and the seriousness and finality of the death penalty, counsel against raising any undue procedural barriers to review of such a claim.’ More importantly, the prevailing justices expressly stated that the defendant ‘could have . . . claim[ed] that the statistical analysis he seeks to establish demonstrates that his death sentence was the product of “prejudice or any other arbitrary factor” ’ pursuant to § 53a-46b (b) (1). Id., 761-62. Because I agree with these two statements, I will make a motion at this morning’s conference to remand the case to the trial court for an evidentiary hearing to determine the merits of the defendant’s argument.”

I went on to state in my memorandum the following: “Furthermore, if the death penalty in our state is driven by racism — and all preliminary statistics indicate that it is — then we should face this issue head on. We should not sit back and let a federal court on habeas chide us for ignoring the defendant’s claim. That would be an embarrassment and a disgrace. More importantly, we would have failed to have done justice for the defendant, and for every other defendant who might receive the ultimate punishment based upon the invidious factor of race.

“As I stated in Cobb I, the defendant’s argument, ‘having been raised, will continue to cast a dark cloud over the courts and the integrity of our judicial system. We must put it to rest.’ Cobb I, supra, 234 Conn. 783 (Berdon, J., with whom Norcott and Katz, Js., joined, dissenting). We cannot do so unless we remand to the trial court for an evidentiary hearing.”

I can feel the frustration of Justice Marshall when the majority of the United States Supreme Court, in Sawyer v. Smith, 497 U.S. 227, 259-60, 110 S. Ct. 2822, 111 L. Ed. 2d 193 (1990), refused to stay the imposition of the death penalty in order to allow the defendant to *539pursue a writ of habeas corpus on the basis of his claim that the jury that convicted him “was deliberately misled about the significance of its verdict,” when he wrote in his dissent: “The court’s refusal to allow a federal habeas court to correct this error is yet another indication that the Court is less concerned with safeguarding constitutional rights than with speeding defendants, deserving or not, to the executioner.”

The majority, in rejecting my motion at conference, succeeded to expedite the executioner’s hand. The rush to snuff out the life of the defendant will only deepen African-Americans’ perception of racism in this court, in the judicial system and in society. The 237 pages that it takes the majority to confirm the defendant’s sentence of death will not wash the stain of blood that results from the majority’s decision today.

IV

Notwithstanding the arbitrariness and the perception of racism inherent in the imposition of the death penalty, I also continue to oppose it because it is cruel and unusual punishment under our state constitution. Justice Brennan, in his dissent in Gregg v. Georgia, 428 U.S. 153, 230-31, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), eloquently summarized similar feelings, stating: “Death for whatever crime and under all circumstances is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity. . . . Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment; therefore the principle inherent in the [cruel and unusual punishments clause of the eighth amendment to the United States constitution (clause)] that prohibits pointless infliction of excessive punishment when less severe punishment can adequately *540achieve the same purposes invalidates the punishment. . . .

“The fatal constitutional infirmity in the punishment of death is that it treats members of the human race as nonhumans, as objects to be toyed with and discarded. [It is] thus inconsistent with the fundamental premise of the [c] lause that even the vilest criminal remains a human being possessed of common human dignity. ... As such it is a penalty that subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the [clause]. I therefore would hold, on that ground alone, that death is today a cruel and unusual punishment prohibited by the [c]lause. Justice of this kind is obviously no less shocking than the crime itself, and the new official murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first. ” (Citations omitted; internal quotation marks omitted.)

V

In footnote 103 of the majority opinion, all six of my colleagues who took part in deciding this case accuse me of violating the principles of confidentiality of the conference. I answer this accusation in this part of my dissent rather than bury it in a footnote because it raises profound moral and legal issues that transcend this case. Moreover, the gravity of this case, in which the majority’s opinion carries the day by just one vote and will allow the state to kill the defendant, compels me to focus on this matter. Let us first, however, address my alleged transgressions. Prior to oral argument before this court, as I indicated in part III of this dissent, I made a motion at conference to remand this case to the trial court for a determination of whether the penalty of death was imposed as a result of “passion, prejudice or any other arbitrary factor” in accordance with the *541legislative mandate of § 53a-46b.14 According to my colleagues, the disclosure in this dissent of the fact that I made such a motion violates the principles of confidentiality and undermines the integrity of the judicial process. I have three responses.

First, I find their argument to be, for want of a better description, nonsensical. We continually consider motions, both those from parties and sua sponte motions of our own.15 We discuss and vote on them at conference, and, of course, we notify the parties of our decision. At times, as we did in this case, we have published our decision and our reasoning. Cobb I, supra, 234 Conn. 735. It is incredible to believe that my colleagues would advocate that the making of such a motion, together with a written memorandum explaining my reasoning to support the motion, would in some manner fall within the confidentiality of the conference. I would concede that the arguments and discussions of my colleagues at conference are confidential and I am unable to and do not disclose that dialogue. We, however, are not a private club. We are a constitutionally created court of this state whose “powers and jurisdiction . . . [are] defined by law,”16 not by consensus of the sitting justices.

Second, even if the motion and the decision were confidential, as a justice of this court, I would be compelled legally and morally to disclose that information. The defendant has a constitutional right to know about this court’s failure to follow the mandated review that *542the legislature set forth in § 53a-46b. I find it difficult to follow my colleagues’ reasoning that I have breached the principles of confidentiality. Therefore, I will play their reasoning out in an extremely outrageous but more simplistic scenario in order to demonstrate the fallacies of their argument. I do so in the context of the vote in this case, that is, four justices voted in favor of upholding the death penalty and three found it unconstitutional. My colleagues would have one believe that an individual justice would be bound by the conference’s confidentiality even under the following hypothetical scenario: one of the four justices that voted in favor of the majority’s decision admitted at conference that he or she had voted to uphold the penalty of death for no other reason than a dislike for the defendant’s attorney. It simply is outrageous to believe that under those circumstances any justice would be bound by principles of confidentiality. Although the subject of the motion I disclosed and my supporting memorandum is not as heinous a breach of trust as, for example, a vote that had been motivated by racial animus, or by discontentment with one’s choice of attorney, the failure to perform a legislatively mandated procedure to guard against the imposition of the penalty of death based upon “passion, prejudice or any other arbitrary factor” as required by § 53a-46b (b) (1), is a serious breach of the duty imposed on us by the legislature. The fact that I raised the issue at conference in this case and sought such a review must be made public.

Third, I must remind my colleagues that the decision it renders today is not about dollars and cents, nor is it about the loss of liberty. The decision today is about the loss of the life of a human being. The defendant is entitled to the information that I have disclosed so that he may have it for whatever use may be made of it before state and federal habeas corpus courts.

Accordingly, I dissent.

Although, of course, I do not join in the endorsement of Justices Noreott and Katz of footnote 103 of the majority opinion, I do join in the substantive reasoning of their respective dissents. As I read Justice Norcott’s dissent, *523he now believes that the death penalty is unconstitutional without qualification and under all circums1anc.es. This is a substantial change from his position in State v. Webb, 238 Conn. 389, 566, 680 A.2d 147 (1996), which prevented me from joining his dissent in that case. In his dissent in Webb, Justice Norcott wrote: “I do not believe that the penalty of death for certain crimes is necessarily forbidden by the state constitution Id.

I also agree with Justice Katz’ resolution of the Stoddard issue; see State v. Stoddard, 206 Conn. 157, 173, 537 A.2d 446 (1988) — that is, waiver of the right to counsel is invalid when the police fail to inform a suspect of the efforts by counsel to consult with him, thereby requiring a per se rule of exclusion of the suspect’s confession.

In this dissent I have discussed a limited number of the issues reached by the majority. I want to make it clear that it should not be implied that I agree with those issues that I have not addressed.

I strenuously dissented on the issue of the missing witness instruction in State v. Ross, supra, 230 Conn. 324-34 (Berdon, J., dissenting).

“Other jurisdictions have come to the conclusion that it is constitutionally impermissible in criminal cases to draw an adverse inference from a defendant’s failure to call a witness. See State v. Brewer, [supra, 505 A.2d 777] (‘To allow the missing-witness inference in a criminal case is particularly inappropriate since it distorts the allocation of the burden of proving the defendant’s guilt. The defendant is not obligated to present evidence on his own behalf. The inference may have the effect of requiring the defendant to produce evidence to rebut the inference. If he fails to do so, the missing-witness inference allows the state to create “evidence’’ from the defendant’s failure to produce evidence. Such a result is impermissible.’); State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197 (1974) (per curiam) (‘such comment might suggest to the jury that [the] defendant has some duty to produce witnesses or that he bears some burden of proof); Ross v. State, 106 Nev. 924, 927, 803 P.2d 1104 (1990) (‘[Missing witness argument] can be viewed as impermissibly shifting the burden of proof to the defense. . . . Such shifting is improper because it suggests to the jury that it was the defendant’s burden to produce proof by explaining the absence of witnesses or evidence.’ [Citation omitted; internal quotation marks omitted.]); State v. Leyba, 89 N.M. 28, 29, 546 P.2d 876 (1976) (concluding that prosecutor’s remarks with respect to missing witness inference ‘suggest that a defendant has some duty to produce witnesses or has some burden of proof); State v. Jefferson, 116 R.I. 124, 139-40, 353 A.2d 190 (1976) (‘[w]e now believe that the Minnesota court’s concern about the jury’s possible mistaken belief that a defendant has a duty to prove his innocence is well taken’); State v. Posey, 269 S.C. 500, 503, 238 S.E.2d 176 (1977) (‘An accused has the right to rely entirely upon [the] presumption of innocence and the weakness in the State’s case against him. He would clearly be deprived of that right if an adverse inference is permitted to be indulged against him because of its exercise.’); Russell v. Commonwealth, [supra, 216 Va. 837] (‘[Missing witness instructions] would run head on into the presumption of innocence to which every accused is entitled and upon which juries are universally instructed. The burden is upon the prosecution to prove its case against the accused. The defense need not prove anything; it may rely upon the presumption of innocence. To tell a jury that the failure of the defense to call a material witness raises an adverse presumption against the accused is to weaken, if not neutralize, the presumption of innocence which, if given its full strength, might be sufficient to tip the scales in favor of acquittal.’); see also Commonwealth v. Schatvet, 23 Mass. App. 130, 135, 499 N.E.2d 1208 (1986) (‘[circumspection ... is especially called for where the inference would run against a defendant in a criminal prosecution, for the inference may come uncomfortably close to invading constitutional righls’). Indeed, the Fifth Circuit Court of *528Appeals pointed out that ‘we do not approve of comments reflecting on the lack of evidence presented by a defendant in a criminal case .... Such a course of action by the prosecutor is a parlous one at best, of necessity sailing close to implying that the defendant is obligated to produce evidence of his innocence.’ United States v. Iredia, 866 F.2d 114, 118 (5th Cir.), cert. denied, 492 U.S. 921, 109 S. Ct. 3250, 106 L. Ed. 2d 596 (1989).” State v. Taylor, supra, 239 Conn. 513-15 (Berdon, J., dissenting).

The judgment imposing the death penalty in Ross was reversed and the matter remanded to the trial court for a new hearing on the penalty phase. The court let stand the defendant’s conviction for capital felony. State v. Ross, supra, 230 Conn. 286. Accordingly, the decision in Malave with respect to the missing witness instruction cannot benefit the defendant in Ross on direct appeal.

Perhaps the most prominent example of a judge’s change of heart is that of Justice Blackmun who, in dissenting from the United States Supreme Court’s denial of certiorari, wrote: "From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years, I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than ihe mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experi*530ment has failed.” Callins v. Collins, 510 U.S. 1141, 1145, 114 S. Ct. 1127, 127 L. Ed. 2d 435 (1994).

See footnote 6 of this dissent.

Justice Brennan, in his dissent in McCleskey v. Kemp, supra, 481 U.S. 321, pointed out the following: “At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to his question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey’s past criminal conduct were more important than the fact that his victim was white. . . . Furthermore, counsel would feel bound t.o tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. ... In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey’s victim would determine whether he received a death sentence: 6 of every 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black . . . while, among defendants with aggravating and mitigating factors comparable to McCleskey’s, 20 of every 34 would not have been sentenced to die if their victims had been black. . . . Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim. . . . The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died.”

Although the Supreme Court appeal in Hafford is still pending, the issues raised in the appellate briefs do not address any impropriety in the death penalty phase and the trial court’s judgment on that issue will stand.

Two psychologists as well as prison mental health professionals who worked with the defendant prior to trial, testified that he continued to be remorseful about his crime beyond December of 1989. For example, during a psychological evaluation, the defendant expressed concern about the pain that his actions had inflicted on both the victim’s family, as well as on his own, and was tearful and very depressed. According to the testing psychologist, the defendant has forced himself, during his incarceration, to confront his crimes and has expressed a desire to obtain help to understand his actions. According to a department of correction psychiatric treatment worker, the defendant in fact obtained treatment, attending a group workshop on anger and aggression in which he was an active participant and in which he expressed the desire to learn more about himself and the reasons that caused him to commit his crimes.

In addition, during a hearing on the defendant’s motion to suppress his confession, Detective Neil O’Leary of the Waterbuiy police department testified in response to questioning by defense counsel as follows:

“A. I asked him if he wanted a lawyer. He said, no. And I asked, Ricky [the defendant], do you understand your rights? You got the card [reciting the Miranda warnings]. The card was still on the table. You understand your rights? You have the right to remain silent. Do you want a lawyer? I asked him about three times. He said no, I want to get this off my chest. He started to cry. ... I asked him at least twice if he wanted a lawyer. He said, no. I said, do you understand your rights? I read him the rights off of the card. I said, you have the right to remain silent. He said, I understand my rights. I said, do you want to talk to us? With that, he starts to cry. He said, I want to get this off my chest.
“Q. He said, I want to get this off my chest. He started to cry?
“A. Yes, sir.
“Q. Did you tell him why you were there?
“A. We told him we wanted to talk to him about [the victim].
“Q. He again started to cry and said, I want to get this off my chest?
“A. Yes. That’s correct.
“Q. Then what happened?
“A. Then I told him to start from the beginning and tell us what happened.
“Q. Did he do that?
“A. Yes, he did.
“Q. Was this in a narrative type form with [the defendant] or was it question and answers? What were the mechanics of it?
“A. A little bit of both. I said, start from the beginning. He started to talk. Every once in a while I would ask him, you know, I would ask him a question or I would ask him to clarify something if I didn’t understand what he was saying. You know, he would go back and forth. I was taking notes as we were going. . . .
*535“Q. How long did that conversation last?
“A. Twenty minutes to half air hour.
“Q. Now, after [the defendant] gave you this oral statement, what happened next?
“A. I asked him if he would give us a formal police statement.
“Q. What do you mean by a formal police statement?
“A. A regular handwritten formal police statement on a police department statement form, voluntary form.
“Q. What was his answer in response to that?
“A. He said he would.”

Furthermore, the trial judge’s colloquy with defense counsel raises another serious issue. It unquestionably indicates that the panel did, indeed, punish the defendant for exercising his constitutional rights in clear violation of the mandates of Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). In Simmons, the United States Supreme Court held that the accused’s exercise of his right to suppress evidence, which he alleged was illegally seized, could not be used to punish the accused by then using the accused’s motion testimony against him at trial on the issue of guilt. Id., 389-94. The Supreme Court held that to let the prosecution use, as substantive evidence of guilt, the accused’s testimony in support of his motion to suppress would create an undeniable tension between two constitutional rights and that it was “intolerable that one constitutional right should have to be surrendered in order to assert another.” Id., 394.

See footnote 9 of this dissent.

It would appear that, based upon the plain language of § 53a-46b (b) (1), the state would be required to prove that the sentence was not the product of passion, prejudice or any other arbitrary factor. If the legislature intended to place the burden on the defendant, it knew very well how to provide for it. See, e.g., General Statutes § 53a-46a (c) (“[t]he burden of establishing any mitigating factor shall be on the defendant”).

Prior to the conference, I circulated a memorandum that stated that I would make such a motion and the reasons to support such a motion. See part III of this dissent. The memorandum was distributed to all the justices’ clerks and secretaries.

See, e.g., Doyle v. Metropolitan Property & Casualty Ins. Co., Supreme Court, Docket No. SC 15939 (court granted its own motion to consider case en banc without further briefing or argument).

Conn. Const., amend. XX, § 1.