Petition for Writ of Certiorari — Asherman v. Connecticut

r

) Office -Supreme Court, us. |

84-853 Y FILED

NOV 26 1984

Iu Che ALEXANDER L. STEVAS,

Supreme Court Of The United States

OCTOBER TERM, 1984

STEVEN ASHERMAN

Petitioner

Wo

STATE OF CONNECTICUT

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF CONNECTICUT

MAXWELL HEIMAN

43 Bellevue Avenue

P.O. Box 1557

Bristol, CT 06010

(203) 589-4343

Attorney for Petitioner

Of Counsel:

WILLIAM J. TRACY, JR. ©

Furey, Donovan & Heiman, P.C.

Printed By:

Brescia Stenographic Service

66 Connecticut Boulevard

East Hartford, CT 06108

525-6029

QUESTIONS PRESENTED

ie The jury's consultation of a

dictionary definition of inference

during deliberation violated the Fifth,

Sixth and Fourteenth Amendments to the

United States Constitution.

a The jury's performance of

unreliable experiments using articles of

clothing smuggled into the deliberations

room violated the Fifth, Sixth and

Fourteenth Amendments to the United

States Constitution.

: The trial court instructed the jury

that "every person is presumed to intend

the natural and necessary consequences

of his or her acts" in violation of the

Fourteenth Amendment to the United

States Constitution.

atin

4, The trial court restricted the

defendant's cross examination of expert

witnesses with respect to bias interest

or prejudice and with respect to the

accuracy of an opinion, in violation of

the Sixth and Fourteenth Amendments to

the United States Constitution.

- The trial court instructed the jury

with respect to a charge for which there

was no evidence in violation of the

Fourteenth Amendment to the United

States Constitution.

6. The introduction of results of

tests performed on a destroyed blood

sample, not available to the defendant,

violated the Fourteenth Amendment to the

United States Constitution.

sites

TABLE OF CONTENTS

QUESTIONS PRESENTED... ..cccccvcces i

TABLE OF AUTHORITIES.............. iv

meee Ue UPAMLONS. occ ccccccnecse 1

PERCE RUM sn ccc ceecvsesecasessece 2

PROVISIONS OF CONSTITUTION,

STATUTES OR RULES INVCLVED...3

STATEMENT OF THE CASE.......2ccee. “

STATEMENT OF FACTS........... 4

STATEMENT OF PROCEEDINGS..... 10

REASONS FOR ALLOWANCE OF WRIT..... 14

PPUPEMS bebe hes ce cer oeseceseseecs

-iii-

TABLE OF AUTHORITIES

Alford v. United States, 282 U.S.

ORs CEPER ccc ceewacncveedoencsecens :

Alvarez v. People, Colo. ‘

Re eR aes eee

Bernard v. Henderson, 514 F.2d

Fae CGEM GEE, Sere sews ccdccescvees

California v. Trombetta,

U.S. , 81 L.Ed 2d 413,

oS eee Oey Tae ee

Chambers v. Mississippi, 410

De Be SOR CIPI) c ca cessscacesccuccess

Davis v. Alaska, 415 U.S. 308

eS 7.) Prerrererere sy wey Gay BA, F394

Douglas v. Alabama, 380 U.S.

BED CADGD) son ccceweercsssaccsnceses

Fillipon v. Albion Vein Slate Co.

r+ OP Pee ees ee ee

Fitch v. State, 138 Conn 534 (1952)..

Floyd v. Fruit Industries, 144

Fe ot. i) err err 36,

Hennessey v. Hennessey, 145 Conn.

BAL CEPPOP ccc nese escesevesscesevecs

In re Winship, 397 U.S. 358

Pi rere eer se eee ee | ae oP

Irvin v. Dowd, 366 U.S. 717 (1961)...

Isaack v. Clark, Rolle 1, 132, 2

eee. ae SEORPOLG) ¢. 4 saw e e408 ds 0

Jackson v. Virginia, 443 U.S. 307

oy ) rT eT ee Te Tee ee ere eee 18,

Leary v. United States, 395 U.S.

© CEIGD) 2. cc cececewccecsscesssceess

Livingstone v. New Haven, 125 Conn.

be et: ) Pr ee eee ee

Morford v. Peck, 46 Conn. 380 (1878).

-iv-

Moye v. Connecticut, 444 U.S. 983

Cee We i.os Koes Ke een ceeeeeen 29, 30

Parker v. Gladden, 385 U.S. 363

| ee eer re 25

People v. Brown, 48 N.Y. 2d 388, 399

< ae 8 Fee ee 26

People v. Dodsworth, 60 I11l.App. 3d

207, 17 111.Dec. 450, 376 N.E. 2d

a ee. | ee ree 46

People v. Taylor, 54 I1l.App. 3d

454, 12 111.Dec. 76, 369 N.E. 2d

PO gs ere ee ere eee Te ree 46

Pointer v. Texas, 380 U.S. 40 (1965)..32

Sandstrom v. Montana, 442 U.S. 510

Leeer cake ea cek Ck bee Kes aed ‘27, 28, 29

Schultz v. State, 417 N.E.2d 1127

ee | Fe RETR T ECCT RT CLE e 18

Shields v. United States, 273 U.S.

ee SE a eek 6a eek 4 eed oon 21

Smith v. Illinois, 390 U.S. 129

8 Py eee eee ee Se 38

State v. Arroyo, 180 Conn. 171

Be EPCOT, CE ETO CCC 30

State v. Asherman, 193 Conn. 695

8 ee er ere er ree ren, 40, 41

State v. Brokaw, 183 Conn. 29 (1981)..30

State v. Cosgrove, 186 Conn. 476

Ee 7 a ee ener eae 31

State v. D'Antuono, 186 Conn 414

Pa i a bth ewe bebe elas 40, 41

State v. DeCoster, 147 Conn. 502

BO PT ee ee ee ae 20

State v. Foord, 142 Conn. 285 (1955)..19

State v. Gaynor, 182 Conn. 501 /

SB ter ay eee ee, 37

State v. Gunning, 183 Conn. 299

CSOD kd 66s 065s 05 See eh ese eee eee 31

State v. Harden, 175 Conn. 315

0 A ee ee eee 44

State v. Harris, 182 Conn. 220

Tt chs ecg h Cp ene awe wh eRe eek b 8 eS 30

State v. Harrison, 178 Conn. 689

a De er ee ae 31

State v. Holmes, 17 Ore.App. 464,

oo Sm RBS, >} Para 17, 18

State v. Johnson, 185 Conn. 163

Se eee ee ere 31

State v. Marino, 190 Conn. 639

re eee ee ee 4]

State v. Maselli, 182 Conn. 66

PPT Te eee eee eee ree 30

State v. Mason, 186 Conn. 574 (1982)..31

State v. Miller, 186 Conn. 654

RP re ee eee eee eee ree 31

State v. Moye, 179 Conn. 761 (1979)...30

State v. Orsini, 187 Conn. 264

State v. Perez, 181 Conn. 299 (1980)..30

State v. Pina, 186 Conn. 261 (1982)...31

State v. Ralls, 167 Conn. 408 (1974)..21

State v. Schoenbneelt, 171 Conn.

119 (1976) Tere TT Te Tee rT Tee TT eee Te 19

State v. Stankowski, 184 Conn. 121

0 Er re ees ye ee eee ree 31

State v. Theriault, 182 Conn. 366

0 ar ee ee ee eee 31

State v. Vasquez, 182 Conn. 242

i cece 2s dene chek ae kha sds 6a be 30

State v. Vitale, 190 Conn. 219

Cs + ¢sted Kkhtke Cee ee CEA KERRESS 31

State v. Zdanis, 182 Conn. 388

rr eer re are 40, 41

Turcio v. Manson, 186 Conn 1 (1982)...31

Turner v. Louisiana, 379 U.S. 466

Co errr rere: Tee eT eT eee 25, 26

Ulster County Court v. Allen, 442

ee hU eee ee eee 28, 29

United States v. Elliott, 571 F.2d

om ee eee 38

United States v. Herndon, 536 F.2d

Dee Gee GG BUR h hehe e658 b0 66004 44

United States v. Morris, 1 Curtis

ateette, CAGe Gals SOURS cc ved ans ce 15, 16

United States v. Owen, 415 F.2d 383

Tn Sd BOO Pa csc chee bendeonen sees 47

United States v. Riley, 5 Blatch C.C.

a ee ak 8 ae ll a errr 16

United States v. Stabler, 490 F.2d

ae. Se es. Bee 66s bes Fhe ce cewe 46

United States v. Summers, 598 F.2d

—, Bt @- Pea. 2. Aree rea 38

Wardius v. Oregon, 412 U.S.

ge ee if ) ere eee eee ee ee 42

Connecticut General Statutes,§1-25....25

Connecticut General Statutes, §53a-54a.27

Connecticut General Statutes, §53a-55..27

Connecticut General Statutes, §54-89...16

Connecticut Practice Book, 1978,§738..47

Connecticut Practice Book, 1978,§758..42

Connecticut Practice Book, 1978,§759..42

Connecticut Practice Book, 1978,§855..16

McCormick, Evidence, §40 (2d.Ed 1972).34

3 Wigmore, Evidence, §940 (Chadbourne

BT BUPOR svc nsscccebensessbaseaness 34

3 Wigmore, Evidence, §945 (Chadbourne

MG, SPOR ov occcc ct enctas socuséeuces 34

3 Wigmore, Evidence, §949 (Chadbourne

BG. APPOD ccm acectussseecasscanseces 34

3 Wigmore, Evidence, §991 (Chadbourne

et, | Peer r er errr irr rr TT ere 35

-vii-

5 Wigmore, Evidence, §1395 (Chadbourne

3 er ee ee 24, 32

6 Wigmore, Evidence, §1800 (Chadbourne

A, a rrrrry Tree TTT Te 24

6 Wigmore, Evidence, §1802 (Chadbourne

Bs SUPE 66 64660.664600666 Cebb OCR ASOS 24

-viii-

No. 84-

IN THE

SUPREME COURT OF THE UNITED STATES

STEVEN M. ASHERMAN

v.

STATE OF CONNECTICUT

The petitioner, Steven M. Asherman,

respectfully prays that a writ of

certiorari issue to review the judgment

of the Supreme Court of the State of

Connecticut entered ir this proceeding

on September 26, 1984.

REPORTS OF OPINIONS

The official opinion of the Supreme

Court of Connecticut is reported at 193

| |

Conn. 695 (1984). The unofficial report

is published at 478 A2d 227 (1984). The

summary denial of the petitioner's

motion to reargue is unpublished and

appears in the Appendix hereto.

The trial court issued unpublished,

written opinions on the petitioner's

motion to suppress and motions for new

trial and on the state's motion for

nontestimonial evidence. The opinions

appear in the Appendix hereto.

JURISDICTION

(i) The decision of the Supreme

Court of Connecticut was released on

July 17, 1984.

(ii) The Supreme Court of the State

of Connecticut denied the petitioner's

motion to reargue on September 26, 1984.

(iii) The petitioner invokes this

Court's jurisdiction under 28 U.S.C.

§1257(3).

PROVISIONS OF CONSTITUTION,

STATUTES AND RULES INVOLVED

(i) United Sta es Constitution,

Fourth Amendment:

(ii) United States Constitution,

Fifth Amendment:

(iii) United States Constitution,

Sixth Amendment:

(iv) United States Constitution,

Fourteenth Amendment:

(v) Connecticut General Statutes,

Section 53a-54a.

(vi) Connecticut General Statutes,

Section 53a-55.

(vii) Connecticut Practice Book,

1978, Section 758.

(viii) Connecticut Practice Book,

1978, Section 759.

STATEMENT OF THE CASE

STATEMENT OF FACTS

On the morning of July 30, 1978, on

Jones Mountain in New Hartford,

Connecticut, the body of Michael Aranow

was discovered, dead as a result of

multiple stab wounds.

Earlier that morning, Steven

Asherman had reported Aranow missing.

He reported to Frank Jones, Aranow's

uncle, that he and Aranow had arrived in

New Hartford after dark on the previous

evening anc had walked along a trail

toward a place described by Aranow as

"the Lookout". Asherman and Aranow were

medical students in the same class and

had long been close friends. They were

taking a respite from their studies by

visiting Jones Mountain, a place

familiar to Aranow but unknown to

Asherman. Asherman reported that he and

Aranow were confronted along the trail

by two drunken, armed and belligerent

men. Asherman and Aranow fled into the

woods and were separated. Asherman

became lost in the darkness. After

daybreak, he found his way to the Jones'

house.

Evidence indicated that Aranow died

of multiple stab wounds, consistent with

the use of two weapons; one weapon was

likely to have been a heavy bladed

instrument such as an axe. An

exhaustive search of the area failed to

uncover any weapons. Asherman had with

him only a small day-pack which he lost

some time after he was separated from

Aranow; the search also failed to

produce the pack. At trial, one witness

testified that, on the morning of

Aranow's death, she gave a hitchhiker

who appeared nervous and apprehensive

and whose clothing appeared blood

soaked.

After Asherman was taken into

custody, a set of keys were seized from

his pants pocket. An officer noticed a

hair stuck in crusty-like material on a

key. The keys and key ring were trans-

ferred, unprotected, in an envelope

contained in a box with other items, all

of which were loosely packaged. A

substance on the key ring was determined

to be blood; it was consumed by the

testing. A broken hair removed from the

key ring could have originated from

Aranow's head. No one could explain how

the blood and hair could have migrated

from the key to the key ring.

Pictures taken at the autopsy were

introduced and expert testimony

presented to identify marks on Aranow's

body as bite marks. The state's

forensic odontologist, Dr. Luntz,

testified that in his opinion the bite

marks were caused by Asherman. Luntz

based his opinion upon comparison of

impressions and photographs of

Asherman's teeth with photographs of

Aranow's body. Identifying bite marks

involves the use of generally accepted

techniques, many of which were not

utilized in this case. The autopsy

photographs were distorted. Forensic

odontologists called by the petitioner

testified that "to a reasonable degree

of dental certainty, to the point of

absolute certainty, [Asherman's] teeth

could have in no way made this mark."

Dr. Sopher, called by the state in

rebuttal, testified that the petitioner

could not be excluded from the class of

those who might have inflicted the mark.

The trial court restricted the

cross-examination of Luntz and of

Sopher, concerning relationships between

the two experts and between Luntz and

law enforcement agencies, and concerning

the accuracy of Luntz's methods.

A jury of twelve rendered a verdict

of guilty of manslaughter.

Subsequently, jurors testified at a

hearing concerning acts of misconduct.

During deliberations, Juror Streib read

to the jury a Funk & Wagnall's

definition of "inference" which included

"3. loosely, a conjecture". Jurors

Henry and Turner described experiments

performed by using a shirt and belt

smuggled into the deliberation room.

Juror Turner had concealed a cut-off

shirt and a belt in a bag of apples and

carried them. To test the claim of the

State that Asherman, alone, could have

carried Aranow, one juror put on the

belt and shirt while another attempted

to lift him. The first try was

unsuccessful. The second was not.

Neither the shirt nor the belt were in

evidence. In fact, there was no

evidence that Aranow had been wearing a

belt. Aranow's shirt was not cut off;

it was a full trial exhibit.

STATEMENT OF PROCEEDINGS

On October 31, 1978, the defendant

was indicted for murder, in violation of

10

Connecticut General Statutes, Section

53c-54a(a).

By pretrial motion, the defendant

requested the production of blood

samples for testing by his expert. The

request is set forth as Appendix B.

. During the presentation of the state's

evidence, the trial court admitted a set

of keys and a hair sample into evidence,

over the defendant's objection. The

trial court permitted a state's witness

to testify that he found blood on the

key ring and hair. The defendant moved

to strike the testimony and the

exhibits. The trial court's decision is

set forth as Appendix C. The question

was presented on appeal.

The state called Dr. Luntz and Dr.

Sopher as expert witnesses. During the

11

cross-examination of each, the trial

court restricted the defendant's inquiry

and the defendant excepted to the

rulings. The defendant's questions and

the court's rulings are set forth as

Appendix D and Appendix E. The

questions were presented on appeal.

The trial court instructed the jury

concerning a presumption of intent. The

court's instruction is set forth as

Appendix F. The defendant raised the

question in his motion for new trial;

the trial court's decision is set forth

as Appendix G. The question was

presented on appeal.

The trial court instructed the jury

concerning the lesser-included offense

of manslaughter. The court's

instruction is set forth as Appendix H.

12

The defendant took exception to the

instruction and raised the question in

his motion for new trial; the trial

court's decision is set forth as

Appendix G. The question was presented

on appeal. The defendant's claim under

the equal protection clause of the

Fourteenth Amendment was addressed in

his motion to reargue.

The jury, during its deliberations,

consulted a dictionary definition of the

term “inference". The jury also

imported a shirt and belt, not in

evidence, into the deliberation room for

an experiment. The defendant moved for

a new trial; the trial court's writtea

decision denying the motion is set forth

as Appendix I. The question was

presented on appeal.

13

REASONS FOR ALLOWANCE OF WRIT

Ae JURY'S CONSULTATION OF DICTIONARY

A. The use of a dictionary, by

the jury, to define the term

"inference", constituted a violation of

the due process guarantee of the Fifth

and Fourteenth Amendments to the United

States Constitution.

In consulting an ordinary

dictionary for the meaning of the term

"inference", the jury invaded the

function of the court

"Ad questionem facti, non

respondent judices, ad questionem juris,

non respondent juratores." Isaack v.

Clark, Rolle 1, 132, 2 Bulstr. 314

(1613-14). The jury shall decide issues

of fact, the Court shall decide the law.

14

The division of functions within

the courtroom was recognized in early

common law. That division forms a basic

element of trial by jury. The same

division of functions was accepted by

the drafters of the Constitution and

became a part of the Constitutional

guarantee of due process.

“Tribunals for the trial

of crimes were intended to

be constituted as all common

law tribunals in which trial

by jury was practiced were

constituted, having one or

more judges who were to

preside at the trials and

form one part of the

tribunal, and a jury who

were to form the other

part." United States v.

Morris, 1 Curtis C.C.R. 23,

49 (Ist Cir. 1851).

The division is reflected in

Connecticut law:

"The court shall decide all

issues of law and all

questions of law arising in

15

the trial of criminal

cases...otherwise the court

shall submit the facts to

the jury without directing

how to find their verdict."

Connecticut General

Statutes, Section 54-89,

Connecticut Practice Book,

» vection 655.

It is fundamental that the court shall

decide the law and state the law to the

jury, and that the jury shall apply that

law to the facts as the jury finds them.

The jury are a coordinate branch of the

tribunal having their appropriate

powers, rights and duties, but it is not

within their province to decide any

question of law. United States v.

Morris, supra at 61, United States v.

Riley, 5 Blatch, C.C. 204, 206 (S.D.N.Y.

1864).

The evidence at trial was primarily

circumstantial. A case of

16

circumstantial evidence depends upon the

drawing of inferences to establish

guilt. Accordingly, the jury was

instructed on the drawing of inferences

from circumstantial evidence.

Although the drawing of inferences

is within the province of the jury, the

definition of the term “inference” as it

is applied in the law, is not.

The Connecticut Court failed to

acknowledge the distinction, recognized

within the cases upon which it relied,

between commonly known words and words

having a particular meaning within the

law. "Inference" has a particular legal

meaning, as does “reasonable” in the

phrase "reasonable doubt", Alvarez v.

People, _Colo___ 653:~ P.2d 1127 (1982),

"circumstantial evidence", State v.

17

Holmes, 17 Ore. App. 464, 522 P. 2d 900

(1974), or “undue influence", Schultz v.

State, 417 N.E. 2d 1127 (Ind. App.

1981).

In this case, the jury invaded the

province of the court, denying the

defendant the protection of due process

of law as guaranteed by the Constitution

of the United States.

B. The jury further denied the

defendant due process of law by

relieving the State of the burden of

proving guilt beyond a reasonable doubt.

A defendant in a criminal case is

protected against conviction except upon

proof beyond a reasonable doubt of every

fact necessary to constitute the crime

with which he is charged. Jackson v.

18

Virginia, 443 U.S. 307, 315 (1979), In

re Winship, 397 U.S. 358, 374 (1970).

Inferences may be drawn by the

trier of fact from other facts which

have been proven. However, the

inference must be a reasonable

deduction; it is not enough that the

inferred fact possibly follows from the

proven fact. State v. Foord, 142 Conn.

285, 294 (1955). Fitch v. State, 138

Conn. 534 (1952). State v. Schoenbneelt,

171 Conn. 119, 126 (1976). The

inference drawn must be strong enough

that it is more probable than not that

the fact to be inferred is true.

Hennessey v. Hennessey, 145 Conn. 211,

214-15 (1958). A conclusion based on

conjecture or speculation is not a

19

product of due process of law. State v.

DeCoster, 147 Conn. 502, 504 (1960).

The definition derived from Funk &

Wagnall's Dictionary included:

ie loosely, a conjecture."

By indicating to themselves that

inferences could be drawn as conjecture

or surmise, the jurors greatly reduced

the quantum of proof required to convict

the defendant and relieved the State of

the burden of estabiishing guilt beyond

a reasonable doubt.

C. The jury deprived the

defendant of the assistance of counsel,

as guaranteed by the Sixth Amendment to

the Constitution of the United States.

The time of instruction to the jury

is a critical juncture in the course of

20

a trial. State v. Ralls, 167 Conn. 408,

419-20 (1974). Since the jury is bound

to apply the law as instructed, it is

essential that the instructions conform

to the law. Counsel is afforded the

opportunity to request instructions and

to take exception to the instructions as

a means of assuring the propriety of the

instruction. Fillipon v. Albion Vein

Slate Co., 250 U.S. 76, 81 (1919),

Shields v. United States, 273 U.S. 583

(1927).

In this case, counsel had no

opportunity to take exception to the

definition, and no opportunity to argue

that a corrective instruction ought to

be given.

The detinseten of inference,

supplied to the jury out of the presence

of the Court, and of counsel, deprived

the defendant of the assistance of

counsel at a crucial moment in the

trial, in disregard of the defendant's

Constitutional rights.

2. JURY'S USE OF EXTRANEOUS EVIDENCE

The introduction by the jury of

evidence not admitted at trial and the

performance of experiments by the jury

during deliberation denied the defendant

the rights of confrontation, of the

assistance of counsel, and of

cross-examination guaranteed by the

‘Sixth Amendment to the United States

Constitution.

The jury misconduct also denied the

defendant his right to a trial by an

impartial jury as guaranteed by the

Sixth Amendnient and denied him the

22

opportunity for a fair trial inherent in

the guarantee of due process of law of

the Fifth and Fourteenth Amendments to

the United States Constitution.

During the deliberations, a juror

smuggled a shirt and a belt, concealed

in a bag of apples, into the jury room

for use in experiments. The defendant

had no opportunity to be confronted with

the items, or with the results of the

experiment. The defendant had no

opportunity to test the evidence or to

question the premises, the methods or

the results of the experiment.

Inherent in the rights of

confrontation and of counsel is the

right of cross-examination. Chambers v.

Mississippi, 410 U.S. 284, 295 (1973).

It is an essential and fundamental

23

requirement of a fair trial and

invaluable in assuring the accuracy of

the truth-determining process. Id.

Cross-examination cannot be had except

by the direct putting of questions and

obtaining immediate answers. 5 Wigmore

Evidence, § 1395 (Chadbourne Rev. 1970).

By examining the items not

introduced into evidence, and by

engaging in the experiment, the jurors

became witnesses against the defendant

possessed of certain circumstantial

evidence who should have been called as

witnesses and been subjected to proper

cross-examination before the evidence

could be allowed to play a part in the

verdict. See 6 Wigmore, Evidence, §§

1800, 1802 (Chadbourne Rev. 1970).

24

It is fundamental to a fair trial,

by an impartial jury, that no evidence

reach the jury unless it be introduced

in open court. Turner v. Louisiana, 379

U.S. 466, 472-73 (1965). Parker v.

Gladden, 385 U.S. 363, 364 (1966). The

right to a trial by an impartial jury

lies at the very heart of due process.

Irvin v. Dowd, 366 U.S. 717, 721-22

(1961). The jurors’ oath required no

less. See Connecticut General Statutes,

Section 1-25. Evidence introduced at

trial is subject to the safeguards of

judicial scrutiny as well as the

scrutiny of the defendant exercising his

rights of confrontation and

cross-examination. Where such tainted

evidence reaches the jury, their verdict

must be set aside if due process is to

25

be guaranteed. Turner v. Louisiana,

supra.

The experiments conducted by the

jury were more than a mere application

of everyday experiences, although the

items used were everyday items. The

jurors' need to perform the experiment

indicates that the results were beyond

their own experience. People v. Brown,

48 N.Y. 2d 388, 399 N.E. 2d 51 (1979).

Furthermore, the items used differed

substantially from the evidence and

rendered the experiments unreliable.

3. PRESUMPTION OF INTENT INSTRUCTION

The trial court erred in

instructing the jury that "every person

is presumed to intend the natural and

necessary consequences of his or her

acts". The instruction shifted the

26

a a ee ee ae

burden of proof and enabled the jury to

find intent absent proof beyond a

reasonable doubt, in violation of the

Fourteenth Amendment to the United

States Constitution.

The defendant was charged with the

crime of murder and convicted of

manslaughter. Both involve intent as a

necessary element. Connecticut General

Statutes, Section 53a-54a, and Section

53a-55. The Court properly charged the

jury that, in order to find the

defendant guilty of either murder or

manslaughter, they must first find the

requisite intent, beyond a reasonable

doubt, from facts established by the

State. In re Winship, supra, Sandstrom

v. Montana, 442 U.S. 510, 524 (1979).

27

However, the Court's charge that

“every man is presumed to intend the

natural and necessary consequences of

his or her acts" provided the jury with

a means of finding the necessary element

of intent without evidence. Sandstrom v.

Montana, supra.

The Court's charge was phrased in

terms of a presumption. A presumption

is an evidentiary device which enables a

fact-finder to establish an ‘ultimate'

fact from the proof of a different,

"basic' fact. Ulster County Court v.

Allen, 442 U.S. 140, 157 (1979). To

presume a fact is to “take or assume

[that fact] beforehand, without proof."

Morford v. Peck, 46 Conn. 380, 385

(1878) (emphasis supplied). A

presumption will be constitutionally

28

invalid if it affects the strength of

the reasonable doubt standard, or if it

places the burden of proof upon the

defendant. In re Winship, supra, Ulster

County Court v. Allen, supra. Sandstrom

v. Montana, supra at 523-24.

A reasonable juror could give the

presumption either conclusive or

persuasion-shifting effect. It cannot

be discounted that the jurors in this

case actually proceeded upon one or the

other interpretation. Sandstrom v.

Montana, supra at 519.

The instruction used by the trial

court is similar to the instruction

invalidated in Sandstrom v. Montana.

The instruction is identical to the

instruction given in Moye v.

Connecticut, 444 U.S. 983 (1979); in

29

Moye, the judgment of the Connecticut

court was vacated and the case remanded

for further consideration in light of

Sandstrom. On remand, the Connecticut

Supreme Court ordered a new trial. State

v. Moye, 179 Conn. 761 (1979).

Nevertheless, in this case, the

Connecticut Supreme Court failed to

follow either Sandstrom or Moye.

Furthermore, the Connecticut Court has

consistently failed to follow the

Sandstrom rule except in the most

egregious circumstances. Compare, State

v. Arroyo, 180 Conn. 171 (1980), State

v. Perez, 181 Conn. 299 (1980), State v.

Maselli, 182 Conn. 66 (1980), State v.

Harris, 182 Conn. 220 (1980), State v.

Vasquez, 182 Conn. 242 (1980), State v.

Brokaw, 183 Conn. 29 (1981), State v.

30

Gunning, 183 Conn. 299 (1981), State v.

Stankowski, 184 Conn. 121 (1981), State

v. Pina, 186 Conn. 261 (1982) State v.

Cosgrove, 186 Conn. 476 (1982), State v.

Mason, 186 Conn. 574 (1982), State v.

Miller, 186 Conn. 654 (1982), State v.

Orsini, 187 Conn. 264 (1982), State v.

Vitale, 190 Conn. 219 (1983) with State

v. Harrison, 178 Conn. 689 (1979), State

v. Theriault, 182 Conn. 366 (1980),

State v. Johnson, 185 Conn. 163 (1981),

Turcio v. Manson, 186 Conn. 1 (1982).

4, RESTRICTION OF CROSS-EXAMINATION

The limitations imposed upon the

cross-examination of the state's expert

witnesses constituted a denial of his

right to confront and cross-examine the

witnesses against him, in violation of

31

the Sixth and Fourteenth Amendments to

the United States Constitution.

The Sixth Amendment right of an

accused to be confronted with the

witnesses against him is secured for

defendants in state criminal

proceedings. Pointer v. Texas, 380 U.S.

400 (1965). The primary interest

secured by the right of confrontation is

to secure the opportunity of

cross-examination. , Douglas v. Alabama,

380 U.S. 415 (1965), 5 Wigmore,

Evidence, § 1395 (Chadbourne Rev. 1970).

Cross-examination is the principle means

by which the credibility of a witness

and his testimony may be tested. Davis

v. Alaska, 415 U.S. 308,316 (1974).

Cross-examination involves not only

testing the witness’ perceptions and

32

recollection, but also involves the

opportunity to reveal biases, prejudices

or ulterior motives of the witness as

they may relate to the issues or

personalities of the cause. Davis v.

Alaska, supra at 316.

The testimony sought to be elicited

from the two dental experts may be

separated into two general categories.

First, the defendant sought to examine

the relationship between Dr. Luntz and

law enforcement agencies and the

relationship between Dr. Sopher and Dr.

Luntz. Second, the defendant sought to

examine the accuracy of Dr. Luntz'

opinion in a prior case involving

similar facts and similar methods of

evaluating evidence.

33

Partiality of mind, whether from

bias, prejudice or interest, is always

relevant as discrediting a witness.

Davis v. Alaska, supra at 316. 3

Wigmore, Evidence, § 940 (Chadbourne

Rev. 1970). Such partiality may arise

from a relationship between the witness

and a party or between witnesses. 3

Wigmore, Evidence, § 945, 949

(Chadbourne Rev. 1970). Partiality is

any favor or friendly feeling and may

arise from a social or business

relationship. McCormick, Evidence, § 40

(2d Ed. 1972). Cross-examination to

show bias, motive, interest or prejudice

is a matter of right, the denial or

undue restriction of which will

constitute error. Davis v. Alaska, supra

at 316

34

The defendant sought to elicit from

Dr. Luntz information concerning the

accuracy of a prior identification made

by Dr. Luntz involving similar facts and

similar techniques and methods. A

defendant is permitted to expose to the

jury facts from which the jurors could

appropriately draw inferences relating

to the reliability of the witness. Davis

v. Alaska, supra at 316. When a special

qualification is required by a witness,

the lack of that qualification may be

ascertained by evidence of specific

instances of the witness’ failure to

possess or exercise it. 3 Wigmore,

Evidence, § 991 (Chadbourne Rev. 1970).

Questions relating to prior erroneous

evaluations in similar instances may be

put to the witness

35

himself. Id. The purpose of the inquiry

is to test the accuracy and

reasonableness of the witness’ direct

testimony, Floyd v. Fruit Industries,

Inc., 144 Conn. 659, 667 (1957), or to

expose the unreasonableness of his

opinion. Livingstone v. New Haven, 125

Conn. 123, 128 (1939).

The defendant elicited testimony

that Dr. Luntz had utilized the methods

used in this case in evaluating other

bite marks and had offered his opinion

as to the origin of such bite marks in

other cases. The similarities in both

data and examination technique between

the prior case and this case laid a

foundation sufficient to establish that

the facts in the prior matier bore a

fair relation to the evidence in this

36

———————eeeeeorr

case. See Floyd v. Fruit Industries,

Inc., supra at 666. The defendant

sought to establish that the methods

used by the expert in this case had, in

a prior case, led the expert to an

erroneous conclusion.

The trial court can only exercise

its discretion to restrict the scope of

cross-examination if the defendant has

otherwise been permitted

cross-examination sufficient to satisfy

the constitutional threshold. State v.

Gaynor, 182 Conn. 501, 508 (1980). The

constitutional standard is met if the

defendant is permitted to expose facts

from which the jury could appropriately

draw inferences relating to the

reliability of the witness. Id., Davis

v. Alaska, supra at 318. "Prejudice

37

ensues from a denial of the opportunity

to place the witness in his proper

setting and put the weight of his

testimony and credibility to a test,

without which the jury cannot fairly

appraise them". Alford v. United States,

282 U.S. 687, 692 (1929), Smith v.

Illinois, 390 U.S. 129, 132 (1968).

Here, the defendant was denied an

opportunity to impeach i key witness who

may have had reason to cooperate with

the state. United States v. Summers, 598

F.2d 450, 460 (5th Cir. 1979), United

States v. Elliott, 571 F.2d. 880. 908

(5th Cir. 1978).

5. MANSLAUGHTER INSTRUCTION

The court's instruction enabled the

jury to find the defendant guilty of an

offense without evidence necessary to

38

the conviction, in violation of the

Fifth and Fourteenth Amendments to the

United States Constitution.

The jury's verdict did not

distinguish between manslaughter as set

forth in Connecticut General Statutes,

Section 53a-55(a)(2) (extreme emotional

disturbance) or as set forth in

Connecticut General Statutes, Section

53a-55(a)(1) (intent to cause serious

physical injury). Where a person may

have been convicted under more than one

statutory alternative, the judgment

cannot be supported unless there was

evidence to support each alternative.

Leary v. United States, 395 U.S. 6,

31-32 (1969). The trial court, in

addressing the jury, concluded that no

evidence of extreme emotional

39

disturbance existed. Furthermore, the

evidence of extreme emotional

disturbance upon which the state relied

clearly does not establish the elements

required under the standard set forth by

the Connecticut Court. Compare State v.

Asherman, 193 Conn. 695, 732, 733

(1984).

No evidence of an emotional

disturbance, mental disease or mental

defect is shown. Intoxication, even if

established, is not equivalent to an

emotional disturbance. See, State v.

Zdanis, 182 Conn. 388 (1980), State v.

D'Antuono, 186 Conn. 414 (1982).

Evidence of a gruesome homicide is not

sufficient to establish an emotional

disturbance. State v. D'Antuono, supra.

Lack of sleep, intoxication, and

40

agitation are not the equivalent of

extremely unusual or overwhelming

states. State v. Zdanis, supra, State v.

D‘'Antuono, supra.

Furthermore, the Connecticut court

has adopted a standard, in violation of

the guarantees of equal protection of

the laws, which requires a defendant to

give notice of his intention to rely

upon evidence of extreme emotional

disturbance but permits the state to

introduce and rely upon such evidence

without prior notice. In State v.

Marino, 190 Conn. 639, 651 n.11 (1983)

and in State v. Asherman, supra at 731

n.10, in which the state successfully

relied upon evidence of extreme emotion-

al disturbance, the court indicated that

no special plea, notice or other formal

4]

assertion is required. Indeed, in both

cases, the state gave no notice to the

defendant and raised the issue only

after the introduction of all evidence.

Nevertheless, Connecticut law does

require a formal notice from the

defendant prior to trial. Connecticut

Practice Book, 1978, Sections 758 and

759. Failure to provide such notice may

preclude the defendant from raising the

defense. Connecticut Practice Book,

1978, Section 758. Those provisions do

not apply to the state. No rational

justification exists for requiring the

defendant to give advance notice without

requiring the same of the state. Wardius

v. Oregon, 412 U.S. 470, 475 (1973).

The state cannot compel a defendant to

disclose the details of his case without

42

being required, itself, to disclose

similar details of its case. Id. at

475-76.

6. DESTRUCTION OF EVIDENCE

The introduction of the results of

tests which were performed on the

destroyed blood sample denied the

defendant a fair trial, as guaranteed by

the Fourteenth Amendment to the United

States Constitution. The destruction of

the evidence also denied him the

opportunity of presenting evidence on

his own behalf, in violation of the due

process guarantee of the Fourteenth

Amendment.

The determination of whether the

destruction of evidence amounted to a

deprivation of due process of law

depends upon the materiality of the

43

missing evidence, the likelihood of

mistaken interpretation of the evidence

and the reason for its nonavailability.

State v. Harden, 175 Conn. 315, 326-27

(1978). United States v. Herndon, 536 F.

2d 1027, 1029 (5th Cir. 1976).

Furthermore, the evidence must

possess exculpatory value apparent

before the evidence was destroyed and be

a nature that the defendant would be

unable to obtain comparable evidence by

other means. California v. Trombetta,

__U.S.___, - 81 L. Ed. 2d 413, 422, 104

S.Ct. _—,_ (1984).

In this matter, the evidence was

material to the question of the

proximity of the defendant to the

deceased. A hair of the deceased,

embedded in blood on the defendant's key

44

ring would support an inference that the

hair was deposited at the time the blood

was fresh. But the defendant and the

deceased were close friends and spent

considerable time together. Both were

medical students; both had clinical

exposure to blood. Had the defendant

been able to establish, through testing,

that the blood on the key ring was not

Aranow's blood, he would have defeated

the inference that the hair was

deposited at the time of Aranow's death.

The remedy for the destruction of

the evidence is suppression of the

government's testimony relating to that

evidence. The blood consumed by the

test could not be recreated for testing

by the defendant. Since the defendant

was deprived of the opportunity to

45

defeat the inference that the hair was

deposited a the time of the decedent's

demise, the government should not have

been permitted to introduce evidence

supporting the inference. Under such

circumstances, the probative value of

the evidence is substantially outweighed

by the danger of prejudice to the

defendant. United States v. Stabler, 490

F. 2d 345, 349 (8th Cir. 1974).

A heavy burden is placed upon the

state to establish the need for evidence

of tests performed on a substance

destroyed by the state's testing. People

v. Taylor, 54 111, App. 3d 454, 12 Ill.

Dec. 76, 369 N.E. 2d 573, 576 (1977),

People v. Dodsworth, 60 Ill, App. 3d

207, 17 Ill. Dec. 450, 376 N.E. 2d 449,

452 (1978). A criminal defendant is

46

‘

;

&

-

entitled to an opportunity to have an

expert of his choosing, subject to

appropriate safeguards, examine physical

evidence which may be subject to varying

opinion. Connecticut Practice Book,

1978, Section 738. Bernard v. Henderson,

514 F. 2d 744, 746 (Sth Cir. 1975).

Fundamental fairness, inherent in the

due process guarantee, is violated when

the defendant is denied the opportunity

to evaluate and rebut such adverse

evidence. United States v. Owen, 415 F.

2d 383 (8th Cir. 1969).

7. CONCLUSION

For the foregoing reasons, this

Court should issue a writ of certiorari

to the Supreme Court of Connecticut.

Respectfully Submitted

47

Petitioner, Steven Asherman

By Maxwell Heiman

His Attorney

43 Bellevue Avenue

P.O. Box 1557

Bristol, CT 06010

(203) 589-4343

OF COUNSEL

William J. Tracy, Jr.

Furey, Donovan & Heiman, P.C.

48