******************************************************
  The ‘‘officially released’’ date that appears near the
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be published in the Connecticut Law Journal or the
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the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
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duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
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ORD319.7 10-30-15 15:30:59


STATE OF CONNECTICUT v. EDUARDO SANTIAGO
               (SC 17413)
  The motion of the state of Connecticut, filed October
19, 2015, for stay of execution of the judgment of this
court in State v. Santiago, 318 Conn. 1,        A.3d
(2015), pending the resolution of State v. Peeler, Docket
No. SC 18125 (argued July 10, 2014), having been pre-
sented to the court, it is hereby ordered denied; a sen-
tence of life imprisonment without the possibility of
release shall be imposed forthwith.
                      October 30, 2015

   PALMER, J. Following the release of our decision in
State v. Santiago, 318 Conn. 1,         A.3d       (2015),
in which a majority of this court concluded that the
enactment of Public Acts 2012, No. 12-5 (P.A. 12-5),
rendered the imposition of the death penalty on offend-
ers sentenced prior to the passage of that act unconsti-
tutional; and our denial of the state’s motion for
argument on October 7, 2015; see State v. Santiago,
319 Conn. 912,         A.3d      (2015) (order on state’s
motion for argument); the state filed a motion with this
court, pursuant to Practice Book §§ 60-1, 60-2, 61-14,
66-2 and 66-3, to stay the execution of the judgment in
this case pending the resolution of an appeal in a differ-
ent capital felony case, namely, State v. Peeler, Docket
No. SC 18125 (argued July 10, 2014), which appeal is
currently before this court. Although it appears that a
party could, under appropriate circumstances, move
this court pursuant to those rules to stay the execution
of a judgment, it would be improper for this court to
grant such a stay when, as in the present case, the party
that has not prevailed in an appeal before this court
seeks the stay in the hope that the outcome of a different
appeal—one filed later, by a different party, and that
will be decided subsequently by a different panel of
this court—may be more to its liking.1 See Practice
Book § 69-3; cf. Roberts v. Cooper, 61 U.S. (20 How.)
467, 481, 15 L. Ed. 969 (1858) (‘‘there would be no end
to a suit if every obstinate litigant could, by repeated
appeals, compel a court to listen to criticisms on their
opinions, or speculate of chances from changes in its
members’’). Accordingly, the state is not entitled to a
stay in the present case.
   We further note that the state, in both the present
motion and its motion for argument, repeatedly has
complained that the majority opinion in State v. Santi-
ago, supra, 318 Conn. 1, was reached on the basis of
issues that were raised sua sponte by the court, issues
that the state contends it had no opportunity to brief
or argue.2 As we explained at some length in State v.
Santiago, supra, 318 Conn. 120–26, this contention is
simply unfounded.
   As the majority opinion in Santiago observed, the
defendant indisputably raised and preserved ‘‘the claim
that, following the enactment of P.A. 12-5, the death
penalty now offends the state constitution in that it
(1) fails to comport with contemporary standards of
decency, and (2) is now devoid of any legitimate peno-
logical value. We recognized as much in our initial deci-
sion in [Santiago] . . . and, on reconsideration, the
defendant dedicate[d] pages of discussion to this claim
in his supplemental briefs. Indeed, his argument on
reconsideration begins with the statement that ‘[P.A. 12-
5] represents the considered judgment of our legislature
and governor that the death penalty is no longer consis-
tent with standards of decency in Connecticut and does
not serve any valid penological objective.’ ’’ (Citation
omitted; footnote omitted.) Id., 121. Later in his supple-
mental briefs, in connection with his discussion of the
relevant Geisler factors,3 the defendant expressly asked
this court to again consider the concerns that have been
raised in one-half dozen lengthy dissenting opinions of
this court, written over the past several decades, that
expressed the view that capital punishment offends the
state constitution for a variety of reasons.4 In his reply
brief, the defendant discussed this state’s failed histori-
cal experience with the death penalty and again argued
that capital punishment no longer serves any legitimate
penological purpose. That was more than sufficient to
put the state on notice that the court was being asked
to comprehensively reexamine the constitutionality of
the death penalty, in light of recent developments.
   More important, however, any suggestion that the
state was not on notice that the issues discussed in the
majority opinion in Santiago were before this court, or
that the state was not afforded a fair opportunity to
address them, is belied by the state’s own submission
in this case. See id., 126. In its supplemental brief, the
state systematically reviewed the Geisler factors,
explaining why, in its view, the Connecticut constitution
provides no greater protection from cruel and unusual
punishment than does its federal counterpart. See State
v. Santiago, Conn. Supreme Court Records & Briefs,
April Term, 2013, State’s Supplemental Brief pp. 32–38.
Specifically, the state argued that the death penalty
continues to find support in (1) the text of the Connecti-
cut constitution, (2) federal constitutional develop-
ments—despite the elimination of capital punishment
for certain categories of offenders, (3) developments
in sister states—despite the repeal of capital punish-
ment in those states, (4) recent Connecticut precedents,
including this court’s lengthy discussion of the evolving
standards of decency in State v. Rizzo, 303 Conn. 71,
31 A.3d 1094 (2011), and (5) various public policy con-
siderations.5 It is precisely on the basis of our disagree-
ment with the state on each of these fundamental points
of contention that a majority of this court concluded
that capital punishment no longer passes constitutional
muster in Connecticut. Quite clearly, the state’s analysis
of the various Geisler factors refutes its contention that
it lacked notice that this court would consider those
factors in evaluating the defendant’s claim. See State
v. Santiago, supra, 318 Conn. 17–46 and n.14 (analyzing
Geisler factors and explaining that those factors also
are interwoven into our consideration of legal frame-
work applicable to defendant’s state constitutional
claim).
   In repeatedly arguing to the contrary, the state dem-
onstrates its fundamental misunderstanding of this
court’s decision in Blumberg Associates Worldwide,
Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn.
123, 84 A.3d 840 (2014) (Blumberg). In Blumberg, we
held that, ‘‘with respect to unpreserved issues that do
not involve subject matter jurisdiction, plain error or
constitutional error, if the reviewing court would have
the discretion to review the issue if raised by a party
because important considerations of justice outweigh
the interest in enforcing procedural rules governing the
preservation of claims and adversarial principles, the
court may raise the claim sua sponte, as long as it
provides an opportunity for all parties to be heard on
the issue.’’ (Emphasis added.) Id., 162. We also hastened
to add, however, that, ‘‘when [a case] is properly before
the court, the court is not limited to the particular legal
theories advanced by the parties, but rather retains the
independent power to identify and apply the proper
construction of governing law . . . .’’ (Citations omit-
ted; footnote omitted; internal quotation marks omit-
ted.) Id., 148, quoting United States National Bank v.
Independent Ins. Agents of America, Inc., 508 U.S. 439,
446, 113 S. Ct. 2173, 124 L. Ed. 2d 402 (1993). As we
explained in Santiago, this is all the more so ‘‘when
plenary consideration is necessary to thoroughly
address and accurately decide constitutional claims and
other matters of substantial public importance, our res-
olution of which will surely redound to the benefit or
detriment of parties not presently before the court.’’
State v. Santiago, supra, 318 Conn. 124.
   It is this court’s responsibility to construe the consti-
tution of the state of Connecticut, and parties’ briefs and
arguments play an indispensable role in that process. It
has never been the practice or policy of this court,
however, to refuse to consider any factor or point or
line of reasoning that may be relevant under Geisler,
including relevant scholarship, sister state authority,
historical context, undisputed or unchallenged facts,
and legal argument and analysis, unless first fully vetted
by the parties themselves. In other words, as long as
the state constitutional claim is adequately briefed in
accordance with Geisler, as it unarguably was in this
case, it is this court’s responsibility to identify and eval-
uate all of the relevant factors and considerations so
that we may reach the correct constitutional result. For
these reasons, the state’s contentions in its motion for
stay of execution are without merit.6
  In this opinion NORCOTT, EVELEIGH and McDON-
ALD, Js., concurred.
   1
     On pages 4 and 5 of the state’s motion for stay, for example, the state
argues that it would be unfair for it to be bound by the decision of the
Santiago panel if ‘‘a majority of the present (i.e., the Peeler) court concludes
that it was wrongly decided . . . .’’
   2
     Among the purported ‘‘issues’’ that the state contends this court was
precluded even from considering without first notifying the state thereof
are basic facts that indisputably are matters of record, such as that the
death penalty is rarely imposed in Connecticut, that offenders remain on
death row for decades awaiting execution, that individuals sentenced to
death in other jurisdictions have subsequently been exonerated, and that
the trend among our sister states is in favor of abolition.
   3
     In ascertaining the contours of the protections afforded under our state
constitution, we utilize a multifactor approach that we first adopted in State
v. Geisler, 222 Conn. 672, 684–85, 610 A.2d 1225 (1992). The six nonexclusive
factors to be considered are (1) the text of the relevant constitutional
provisions, (2) related Connecticut precedents, (3) persuasive federal prece-
dents, (4) persuasive precedents of other state courts, (5) historical insights
into the intent of the constitutional framers, and (6) contemporary under-
standings of applicable economic and sociological norms. See id.
   4
     At no point did the defendant suggest that this court’s review of the
constitutionality of the death penalty should be limited exclusively to the
theory that a new consensus had emerged in opposition to that punishment.
   5
     In addition, the state dedicated no less than six pages to arguing that
‘‘Connecticut’s standard[s] of decency [have] not evolved to the point that
the death penalty has been rejected . . . .’’ State v. Santiago, Conn. Supreme
Court Records & Briefs, April Term, 2013, State’s Supplemental Brief p. 18.
See generally id., pp. 18–23. The state spent six more pages contending that
‘‘[e]xecuting the defendant would not violate the Connecticut constitution’s
ban on cruel and unusual punishment . . . .’’ Id., p. 32. See generally id.,
pp. 32–38. In making those arguments, the state recognized that ‘‘[t]he defen-
dant . . . presumes throughout much of his brief that Connecticut has made
a moral decision that executing a guilty prisoner is no longer an acceptable
form of punishment.’’ Id., p. 18. In response to the defendant’s claims, the
state contended that neither the legislature, the governor, nor the people
of Connecticut have come to see the death penalty as indecent. Id., pp.
18–23. It further argued that the death penalty continues to satisfy the
legitimate penological objectives of deterrence and retribution, and that
the continued imposition of the death penalty would not be impermissibly
revengeful. See id., pp. 23, 29–31.
   6
     We are baffled by the suggestion of Chief Justice Rogers, in her concur-
ring opinion on this motion, that, in addressing the concerns that the state
has raised in its various postjudgment motions in this case, we are somehow
engaging in an ‘‘irregular,’’ ‘‘eleventh hour attempt to justify the majority
opinion [in Santiago] . . . .’’ In the majority opinion in Santiago, we
responded at length to Chief Justice Rogers’ contention that the constitution-
ality of the death penalty was not at issue in the case, notwithstanding that
the defendant repeatedly had asked us to consider that very question and
had briefed it at some length. Despite our explanation, the state, in the
present motion, contends that it was denied the opportunity to address the
questions decided in Santiago. There is nothing irregular or improper about
us pointing out that the state not only was on notice, but did in fact spend
more than one dozen pages briefing those issues. Indeed, we note that Chief
Justice Rogers herself chose to write and publish an eight page dissenting
opinion in response to the state’s postappeal motion for argument in this
case, in which she expounded at length on the arguments in her initial
dissenting opinion in Santiago.
