State v. Breton

562 A.2d 1060, 212 Conn. 258, 1989 Conn. LEXIS 225

• Court: Supreme Court of Connecticut
• Decided: July 25, 1989
• Docket: 13677
• Status: Published

Opinions

Peters, C. J.

The sole issue in this appeal is whether the aggravating factor “especially cruel,” contained in this state’s death penalty statute, General Statutes § 53a-46a (h) (4), is unconstitutionally vague. The trial court granted the defendant’s motion to dismiss the state’s alleged aggravating factor and we then granted the state’s motion for an expedited appeal pursuant to General Statutes § 52-265a. We remand the case to the trial court with direction to proceed with the capital sentencing hearing.

By substitute information the state charged the defendant with two counts of murder, pursuant to General Statutes § 53a-54a (a), and one count of capital felony, pursuant to General Statutes § 53a-54b (8).¹ Before trial and in response to the defendant’s motion for written notice of any aggravating factors, the state alleged that the defendant had committed the offense “in an especially cruel manner,”² and therefore should be sentenced to death if convicted of the predicate capital felony. The defendant moved the trial court to dismiss the aggravating factor, claiming that its vagueness violated our federal and state constitutions.

The trial court granted the defendant’s motion to dismiss, holding that the term “especially cruel” was facially vague and overbroad in violation of the federal constitution. U.S. Const., amends. VIII and XTV. While the trial proceeded on the murder and capital felony charges, the state sought and received permission to file an expedited appeal to this court. General Statutes § 52-265a. Thereafter a jury returned guilty verdicts on all three counts of the information.

On appeal, the state urges us to remand the case to the trial court for further proceedings leading to the defendant’s sentencing. The state suggests one of two possible courses of action: (1) to order the trial court to devise an appropriate limiting construction of the term “especially cruel”; or (2) to adopt a limiting construction ourselves to guide the trial court. The defendant, on the other hand, argues that the trial court correctly dismissed the aggravating factor because the legislature, which defines criminal conduct in this state, should by statute undertake the task of limiting the definition of the term “especially cruel” to meet constitutional standards.

Our death penalty statute, General Statutes § 53a-46a,³ permits a person convicted of a capital felony to be sentenced to death if the state proves the existence of an aggravating factor beyond a reasonable doubt and the defendant fails to prove the existence of a mitigating factor by a preponderance of the evidence. General Statutes § 53a-46a (g) and (h); State v. Daniels, 207 Conn. 374, 384-85, 542 A.2d 306 (1988) {Daniels I). Because “the death penalty is exacted with great infrequency even for the most atrocious crimes [there must be a] meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” Furman v. Georgia, 408 U.S. 238, 313, 92 S. Ct. 2726, 33 L. Ed. 2d 346, reh. denied sub nom. Jackson v. Georgia, 409 U.S. 902, 93 S. Ct. 89, 34 L. Ed. 2d 164 (1972) (White, J., concurring).⁴ Our statute reflects the effort of our legislature to distinguish the most culpable of homicides from all other homicides.

The United States Supreme Court has held that “if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State’s responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates ‘stan-dardless [sentencing] discretion.’ ” Godfrey v. Georgia, 446 U.S. 420, 428, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980). Thus, “where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U.S. 153, 189, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (opinion of Stewart, Powell and Stevens, Js.). Of special importance to this case, a state must avoid defining aggravating factors in an open-ended, subjective manner that would allow the trier unfettered discretion in levying a death sentence and thus create a substantial risk that the trier will inflict punishment arbitrarily or capriciously. California v. Brown, 479 U.S. 538, 541, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987).⁵ A capital sentencing “system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of [triers] with the result that a pattern of arbitrary and capricious sentencing . . . could occur.” Gregg v. Georgia, supra, 195 n.46.⁶ Therefore, “an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, 462 U.S. 862, 877, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

Most of the aggravating factors contained in Connecticut’s death penalty statute direct the trier to make a definite, objective finding. See General Statutes § 53a-46a (h) (1), (2), (5) and (6). Section 53a-46a (h) (4), however, contains an arguably subjective standard, that “the defendant committed the offense in an especially . . . cruel . . . manner.” Two United States Supreme Court decisions are particularly instructive on the constitutional validity of this criterion as a basis for imposition of the death penalty.

In Godfrey v. Georgia, supra, a jury convicted the petitioner of two counts of murder and one count of aggravated assault. At the sentencing hearing, the trial court charged the jury that it could impose a death sentence if it found beyond a reasonable doubt that the offense was “outrageously or wantonly vile, horrible and inhuman,” the aggravating factor promulgated by the Georgia legislature. The United States Supreme Court held this factor unconstitutionally vague under Gregg v. Georgia, supra, explaining that the jury had sentenced the petitioner to death “based upon no more than a finding that the offense was ‘outrageously or wantonly vile, horrible and inhuman.’ There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost every murder as ‘outrageously or wantonly vile, horrible and inhuman.’ ” Godfrey v. Georgia, supra, 428-29.⁷

In Maynard v. Cartwright, 486 U.S. 356, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988), an Oklahoma jury sentenced the petitioner to death based in part upon a finding that he had committed murder in an “especially heinous, atrocious, or cruel” manner. The trial court had not limited, in any fashion, the jury’s construction of this aggravating factor. A unanimous court relied on Godfrey to hold that “the language of the Oklahoma aggravating circumstance at issue . . . gave no more guidance than the ‘outrageously or wantonly vile, horrible or inhuman’ language that the-jury returned in its verdict in Godfrey” Id., 363-64. The court therefore struck the aggravating factor as facially vague and remanded the case to allow the Oklahoma court the opportunity to define the statutory aggravating factor with sufficient precision to satisfy constitutional standards.⁸

As we have recently noted, Godfrey and Maynard raise serious questions about the constitutional validity of § 53a-46a (h) (4). See State v. Daniels, 209 Conn. 225, 228-29 n.1, 550 A.2d 885 (1988) (Daniels II). On its face, there is no apparent distinction between our statutory reference to the commission of the offense “in an especially . . . cruel . . . manner” and the Oklahoma statute that Maynard struck down. Indeed, the trial court in this case granted the defendant’s motion to dismiss the aggravating factor precisely on this ground. The state does not take issue with the trial court’s ruling insofar as it concluded that, without more, the “especially cruel” aggravating factor cannot withstand a vagueness challenge. We agree.

Godfrey and Maynard, however, contain an important caveat. In each case, the United States Supreme Court alluded to an absence of jury instructions that might have limited the ambit of a statutory term that was otherwise unconstitutionally vague.⁹ More pointedly, the court in Maynard stated that it did “not hold that some kind of torture or serious physical abuse is the only limiting construction of the heinous, atrocious, or cruel aggravating circumstance that would be constitutionally acceptable.” Maynard v. Cartwright, supra, 365. By implication, certain limiting constructions of the aggravating circumstance would correct the constitutional infirmity.

This observation in Maynard is entirely consistent with the United States Supreme Court’s earlier decision in Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913, reh. denied, 429 U.S. 875, 97 S. Ct. 197, 50 L. Ed. 2d 158 (1976). In Proffitt the petitioner attacked on vagueness grounds the state’s enumerated aggravating factor: “[The capital felony was] ‘especially heinous, atrocious, or cruel.’ ” The court held that “[t]hese provisions must be considered as they have been construed by the Supreme Court of Florida.” Id., 255. The Florida Supreme Court had held that the “provision [was] directed only at ‘the conscienceless or pitiless crime which is unnecessarily torturous to the victim.’ ” Id., quoting (State v. Dixon, 283 So. 2d 1, 9 (Fla. 1973). Thus, the United States Supreme Court concluded that it could not “say that the provision, as so construed, provides inadequate guidance to those charged with the duty of recommending or imposing sentences in capital cases.” Proffitt v. Florida, supra, 256; see also Gregg v. Georgia, supra, 201 (arguably any murder involves depravity of mind, but “there is no reason to assume that the Supreme Court of Georgia will adopt such an open-ended construction”).

Thus, it is apparent that the term “especially cruel,” while unconstitutionally vague standing alone, can be limited and construed so as to pass constitutional muster.¹⁰ The dispositive question therefore becomes who should undertake to provide a limiting construction of “in an especially cruel manner.” The defendant argues that neither this court nor the trial court should engage in any further definition of the term because that task falls within the legislature’s domain. The state maintains that we have an independent responsibility for statutory construction that it is our duty to exercise. We agree with the state.

The defendant is correct in his assertion that the power to define crimes and to designate the penalties therefor resides in the legislature. State v. Ellis, 197 Conn. 436, 455-56, 497 A.2d 974 (1985). Courts must avoid imposing criminal liability where the legislature has not expressly so intended. State v. Grullon, 212 Conn. 195, 200, 562 A.2d 481 (1989); State v. Hufford, 205 Conn. 386, 392, 533 A.2d 866 (1987). Thus, we construe penal statutes strictly in favor of the accused. State v. Whiteman, 204 Conn. 98, 101, 526 A.2d 869 (1987); State v. Edwards, 201 Conn. 125, 132, 513 A.2d 669 (1986). This construction is all the more compelling where, as here, the defendant’s life is at stake. State v. McGann, 199 Conn. 163, 177, 506 A.2d 109 (1986).

The party attacking a validly enacted statute, however, bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute’s constitutionality. Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 212 Conn. 83, 100, 561 A.2d 917 (1989); Zapata v. Burns, 207 Conn. 496, 507-508, 542 A.2d 700 (1988); State v. Hernandez, 204 Conn. 377, 385, 528 A.2d 794 (1987). In choosing between two constructions of a statute, one valid and one constitutionally precarious, we will search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent. See Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, supra, 96; McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 706, 553 A.2d 596 (1989); Bishop v. Kelly, 206 Conn. 608, 617, 539 A.2d 108 (1988); French v. Amalgamated Local Union 376, 203 Conn. 624, 636-37, 526 A.2d 861 (1987); see also Lublin v. Brown, 168 Conn. 212, 219-20, 362 A.2d 769 (1975). We undertake this search for a constitutionally valid construction when confronted with criminal statutes as well as with civil statutes. State v. Snook, 210 Conn. 244, 251, 555 A.2d 390 (1989); State v. Champagne, 206 Conn. 421, 437, 538 A.2d 193 (1988).

Conjoining these various canons of statutory construction, we conclude that we must, if possible, put a judicial gloss upon the term “especially cruel” that adopts a definition that saves this term from its facial vagueness and yet construes it as narrowly as possible in the defendant’s favor. Both the state and the defendant admit to the availability of such a core construction, although the defendant counsels us against its adoption.

Both parties agree that if “especially cruel” has any meaning in the capital felony context, that meaning must include the intentional infliction of extreme pain or torture above and beyond that necessarily accompanying the underlying killing. We agree. We hereby adopt this definition of “especially cruel” as an acceptable core construction of § 53a-46a (h) (4). This construction comports with, and indeed is somewhat narrower than, the common definition of “cruel”¹¹: “[Disposed to inflict pain . . . in a wanton, insensate, or vindictive manner . . . . ” Webster’s Third New International Dictionary.¹² Further, we can infer from Proffitt, Godfrey and Maynard, that such an objective judicial gloss protects the term “especially cruel” from attack on vagueness grounds. While the parties may disagree over how broadly the term “especially cruel” may be construed, “we rewrite nothing in the language of the statute” by assigning to it a limited core construction.¹³ State v. Snook, supra, 251. Our construction of “especially cruel” rests on our perception that the legislature, in enacting § 53a-46a (h) (4), meant to impose the death penalty at least in those cases in which the trier has found that the defendant intentionally inflicted extreme pain or torture upon the victim, above and beyond the pain necessarily accompanying the victim’s death.

It bears mentioning what we have not decided in this case. First, we have not decided whether the death penalty, per se or as applied, violates any provision of our state constitution. While the defendant asks us to interpret our own constitution to provide relief beyond that afforded to him by the federal constitution, we agree with the trial court that he has not advanced any concrete arguments for a separate state constitutional treatment of this issue. State v. Herring, 210 Conn. 78, 98 n.19, 554 A.2d 686 (1989); State v. Mercer, 208 Conn. 52, 67 n.9, 544 A.2d 611 (1988). Second, we have not determined what standard of review will govern any future appeal of the defendant’s conviction or death sentence, should one be imposed, except with regard to the core construction of the aggravating factor “especially cruel.” See General Statutes § 53a-46b. Finally, because we construe the term “especially cruel” as narrowly as possible in the defendant’s favor, we have not considered to what extent the legislature may constitutionally broaden the definition of the term “especially cruel.”

There is error and the case is remanded to the trial court to proceed with the sentencing hearing in a manner consistent, with this opinion.

In this opinion Shea, Callahan, Covello, Hull and Santaniello, Js., concurred.

1 General Statutes § 53a-54b provides in pertinent part: “A person is guilty of a capital felony who is convicted of any of the following ... (8) murder of two or more persons at the same time or in the course of a single transaction.”

2 The state originally alleged that the defendant had committed the offense “in an especially heinous, cruel or depraved manner,” but amended its notice to allege only that he had committed the offense “in an especially cruel manner.”

3 “[General Statutes] Sec. 53a-46a. hearing on imposition of death PENALTY. AGGRAVATING AND MITIGATING FACTORS, (a) A person shall be subjected to the penalty of death for a capital felony only if a hearing is held in accordance with the provisions of this section.

“(b) For the purpose of determining the sentence to be imposed when a defendant is convicted of or pleads guilty to a capital felony, the judge or judges who presided at the trial or before whom the guilty plea was entered shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, including any mitigating factor set forth in subsection (g), and any aggravating factor set forth in subsection (h). Such hearing shall not be held if the state stipulates that none of the aggravating factors set forth in subsection (h) of this section exists or that one or more mitigating factors exist. Such hearing shall be conducted (1) before the jury which determined the defendant’s guilt, or (2) before a jury impaneled for the purpose of such hearing if (A) the defendant was convicted upon a plea of guilty; (B) the defendant was convicted after a trial before three judges as provided in subsection (b) of section 5Sa-45; or (C) if the jury which determined the defendant’s guilt has been discharged by the court for good cause or, (3) before the court, on motion of the defendant and with the approval of the court and the consent of the state.

“(c) In such hearing the court shall disclose to the defendant or his counsel all material contained in any presentenee report which may have been prepared. No presentence information withheld from the defendant shall be considered in determining the existence of any mitigating or aggravating factor. Any information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but the admissibility of information relevant to any of the aggravating factors set forth in subsection (h) shall be governed by the rules governing the admission of evidence in such trials. The state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any mitigating or aggravating factor. The burden of establishing any of the factors set forth in subsection (h) shall be on the state. The burden of establishing any mitigating factor shall be on the defendant.

“(d) In determining whether a mitigating factor exists concerning the defendant’s character, background or history, or the nature and circumstances of the crime, pursuant to subsection (b) of this section, the jury or, if there is no jury, the court shall first determine whether a particular factor concerning the defendant’s character, background or history, or the nature and circumstances of the crime, has been established by the evidence, and shall determine further whether that factor is mitigating in nature, considering all the facts and circumstances of the case. Mitigating factors are such as do not constitute a defense or excuse for the capital felony of which the defendant has been convicted, but which, in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of his culpability or blame for the offense or to otherwise constitute a basis for a sentence less than death.

“(e) The jury or, if there is no jury, the court shall return a special verdict setting forth its findings as to the existence of any aggravating or mitigating factor.

“(f) If the jury or, if there is no jury, the court finds that one or more of the factors set forth in subsection (h) exist and that no mitigating factor exists, the court shall sentence the defendant to death. If the jury or, if there is no jury, the court finds that none of the factors set forth in subsection (h) exists or that one or more mitigating factors exist, the court shall impose a sentence of life imprisonment without the possibility of release.

“(g) The court shall not impose the sentence of death on the defendant if the jury or, if there is no jury, the court finds by a special verdict, as provided in subsection (e), that any mitigating factor exists. The mitigating factors to be considered concerning the defendant shall include, but are not limited to, the following: That at the time of the offense (1) he was under the age of eighteen or (2) his mental capacity was significantly impaired or his ability to conform his conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution or (3) he was under unusual and substantial duress, although not such duress as to constitute a defense to prosecution or (4) he was criminally liable under sections 53a-8, 53a-9 and 53a-10 for the offense, which was committed by another, but his participation in such offense was relatively minor, although not so minor as to constitute a defense to prosecution or (5) he could not reasonably have foreseen that his conduct in the course of commission of the offense of which he was convicted would cause, or would create a grave risk of causing, death to another person.

“(h) If no mitigating factor is present, the court shall impose the sentence of death on the defendant if the jury or, if there is no jury, the court finds by a special verdict as provided in subsection (e) that (1) the defendant committed the offense during the commission or attempted commission of, or during the immediate flight from the commission or attempted commission of, a felony and he had previously been convicted of the same felony; or (2) the defendant committed the offense after having been convicted of two or more state offenses or two or more federal offenses or of one or more state offenses and one or more federal offenses for each of which a penalty of more than one year imprisonment may be imposed, which offenses were committed on different occasions and which involved the infliction of serious bodily injury upon another person; or (3) the defendant committed the offense and in such commission knowingly created a grave risk of death to another person in addition to the victim of the offense; or (4) the defendant committed the offense in an especially heinous, cruel or depraved manner; or (5) the defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value; or (6) the defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.”

4 In Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), the United States Supreme Court decided 5-4 to vacate death sentences imposed upon the three petitioners. Because each Justice wrote his own opinion, courts most often cite the concurring opinions decided on the narrowest grounds, those of Justices Stewart and White. See R. Rosen, “The ‘Especially Heinous’ Aggravating Circumstance in Capital Cases— The Standardless Standard,” 64 N.C.L. Rev. 941, 948 n.40 (1986). In voting to vacate the judgments, Justice Stewart concluded that “the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.” Furman v. Georgia, supra, 310 (Stewart, J., concurring).

5 In Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976), three justices opined that a bifurcated procedure, in which the trier does not consider the defendant’s sentence until it has determined his guilt, is another way of avoiding potential constitutional infirmities. Id., 190-92 (opinion of Stewart, Powell and Stevens, Js.). Connecticut has adopted such a bifurcated procedure. General Statutes § 53a-46a.

6 “Objections to vagueness under the Due Process Clause rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk____Claims of vagueness directed at aggravating circumstances defined in capital punishment statutes are analyzed under the Eighth Amendment and characteristically assert that the challenged provision fails adequately to inform juries what they must find to impose the death penalty and as a result leaves them and appellate courts with the kind of open-ended discretion . . . held invalid in Furman v. Georgia [408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972)] . . . . ” Maynard v. Cartwright, 486 U.S. 356, 361-62, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988). As in Maynard, the more stringent eighth amendment principles control this case, except to the extent that due process principles further enlighten our analysis. See Kolender v. Lawson, 461 U.S. 352, 358, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983) (recognizing the more important aspect of the vagueness doctrine as not actual notice, but the requirement that the legislature establish minimal guidelines to govern law enforcement); see also State v. Schriver, 207 Conn. 456, 460, 542 A.2d 686 (1988); M. Radin, “Cruel Punishment and Respect for Persons: Super Due Process for Death,” 53 S. Cal. L. Rev. 1143 (1980).

7 Justice Stewart wrote the plurality opinion in which Justices Blackmun, Powell and Stevens joined. Justice Marshall, joined by Justice Brennan, concurred separately, but agreed that the standard was unconstitutionally vague. Godfrey v. Georgia, 446 U.S. 420, 435, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980).

8 The United States Supreme Court has continued to apply eighth amendment principles strictly. See, e.g., South Carolina v. Gathers, U.S. , 109 S. Ct. 2207, 104 L. Ed. 2d 876 (1989).

9 In Godfrey v. Georgia, 446 U.S. 420, 428-29, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980), the plurality stated: “A person of ordinary sensibility could fairly characterize almost every murder as ‘outrageously or wantonly vile, horrible and inhuman.’ Such a view may, in fact, have been one to which the members of the jury in this case subscribed. If so, their preconceptions were not dispelled by the trial judge’s sentencing instructions.” The plurality also noted that the Georgia courts in that case had not limited the jury’s construction of the aggravating factor to certain limited criteria as they had in earlier cases. Id., 431-32. In Maynard v. Cartwright, 486 U.S. 356, 359-60, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988), the court noted the Tenth Circuit Court of Appeals’ conclusion that the Oklahoma courts had not adopted a limiting construction that cured the vagueness of the aggravating factor.

10 Indeed the majority of jurisdictions confronting vagueness claims since the announcement of Maynard v. Cartwright, 486 U.S. 356, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988), have held that properly drawn constructions of otherwise vague terms can save the terms from constitutional infirmity. See, e.g., State v. McCall, 160 Ariz. 119, 125, 770 P.2d 1165 (1989); State v. Vickers, 159 Ariz. 532, 544, 768 P.2d 1177 (1989); State v. Tassin, 536 So. 2d 402, 411-12 (La. 1988); Minnick v. State, 551 So. 2d 77, 97 (Miss. 1988); Pinkney v. State, 538 So. 2d 329, 357 (Miss. 1988); Clemons v. State, 535 So. 2d 1354, 1364 (Miss. 1988); Lanier v. State, 533 So. 2d 473, 491 (Miss. 1988); Jones v. State, 767 S.W.2d 41, 45 (Mo. 1989); State v. Smith, 756 S.W.2d 493, 501 (Mo. 1988); State v. Griffin, 756 S.W.2d 475, 490 (Mo. enbanc 1988); State v. Fullwood, 323 N.C. 371, 400, 373 S.E.2d 518 (1988); State v. Thompson, 768 S.W.2d 239, 252 (Tenn. 1989); State v. Hines, 758 S.W.2d 515, 521 (Tenn. 1988); but see Wilson v. State, 295 Ark. 682, 687-90, 751 S.W.2d 734 (1988).

11 The word “especially” offers no constitutional assistance in further defining the term “cruel.” The court explained in Maynard v. Cartwright, 486 U.S. 356, 364, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988), with regard to the aggravating factor “especially heinous”: “The State’s contention that the addition of the word ‘especially’ somehow guides the jury’s discretion, even if the term ‘heinous’ does not, is untenable. To say that something is ‘especially heinous’ merely suggests that the individual jurors should determine that the murder is more than just ‘heinous,’ whatever that means, and an ordinary person could honestly believe that every unjustified, intentional taking of human life is ‘especially heinous.’

12 “Cruelty” is defined as the “intentional and malicious infliction of physical or mental suffering upon living creatures . . . or . . . the wanton, malicious, and unnecessary infliction of pain upon the body . . . .’’Black’s Law Dictionary (5th Ed. 1979).

13 Our characterization of this judicial gloss as a “core construction” does not rest upon due process notions of fair notice. See State v. Schriver, 207 Conn. 456, 463, 542 A.2d 686 (1988); State v. Pickering, 180 Conn. 54, 65, 428 A.2d 322 (1980). Rather, our construction aims to comply with the eighth amendment by distinguishing the few cases in which the death penalty is imposed from the many in which it is not. Furman v. Georgia, 408 U.S. 238, 313, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (White, J., concurring).