Appendix — Asherman v. Connecticut
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NO. 84- WOV 26 1904
In The | MOR
Supreme Court Of The United States
OCTOBER TERM, 1984
STEVEN ASHERMAN
Petitioner
Vv.
STATE OF CONNECTICUT
Respondent
APPENDIX TO 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.
ee
TABLE OF CONTENTS
PROVISIONS OF CONSTITUTION,
STATUTES AND RULES INVOLVED..... 2A
MOTION FOR DISCOVERY..........+4-. 10A
TRIAL COURT'S DECISION ON
MOTION TO STRIKE EXHIBITS....... 12A
EXCERPTS OF INQUIRY OF DR.
LUNTZ AND TRIAL COURT'S RULINGS
ON OBJECTIONS. .....ccccccccccces 14A
EXCERPTS OF INQUIRY OF DR.
SOPHER AND TRIAL COURT'S
RULINGS ON OBJECTIONS........... 24A
TRIAL COURT'S INSTRUCTION
CONCERNING PRESUMPTION OF
TRIAL COURT'S DECISION ON
MOTION FOR NEW TRIAL..........4.. 37A
TRIAL COURT'S INSTRUCTION
CONCERNING MANSLAUGHTER...... ooo DSA
TRIAL COURT'S DECISION ON MOTION
FOR NEW TRIAL AND IN ARREST..... 56A
STATE V. ASHERMAN, 193 Conn.
OFS C1L9IGG) cc cccccccccccces TTT
ORDER ON MOTION FOR REARGUMENT..133A
1A
APPENDIX A
PROVISIONS OF CONSTITUTION,
STATUTES AND RULES INVOLVED
(i) United States Constitution,
Fourth Amendment:
The right of the people to be
secure in their persons, houses, papers
and effects against unreasonable
searches and seizures shall not be
violated...
(ii) United States Constitution,
Fifth Amendment:
No person...shall be compelled in
any criminal case to be a witness
against himself, nor be deprived of
2A
life, liberty or property without due
process of law...
(iii) United States Constitution,
Sixth Amendment:
In ali criminal prosecutions, the
accused shall enjoy the right...to be
confronted with the witnesses against
him, ... and to have the assistance of
counsel for his defence.
(iv) United States Constitution,
Sixth Amendment:
..-No State shall make or enforce
any law which shall abridge the
privileges or immunities of citizens of
the United States nor shall any State
deprive any person of life, liberty or
property without due process of law, nor
3A
deny to any person within its
jurisdiction the equal protection of the
laws.
(v) Connecticut General Statutes,
Section 53a-54a.
(a) A person is guilty of murder
when, with intent to cause the death of
another person, he causes the death of
such person or of a third person or
causes a suicide by force, duress or
deception; except that in any
prosecution under this subsection, it
shall be an affirmative defense that the
defendant committed the proscribed act
or acts under the influence of extreme
emotional disturbance for which there
was a reasonable explanation or excuse,
the reasonableness of which is to be
4A
determined from the viewpoint of a
person in the defendant's situation
under the circumstances as the defendant
believed them to be, provided nothing
contained in this subsection shall
constitute a defense to a prosecution
for, or preclude a conviction of,
manslaughter in the first degree or any
other crime.
(b) Evidence that the defendant
suffered from a mental disease, mental
defect or other mental abnormality is
admissible, in a prosecution under
subsection (a), on the question of
whether the defendant acted with intent
to cause the death of another person.
(vi) Connecticut General Statutes,
Section 53a-55:
5A
A person is guilty of manslaughter
in the first degree when: (1) With
intent to cause serious physical injury
to another person, he causes the death
of such person or of a third person; or
(2) with intent to cause the death of
another person, he causes the death of
such person or of a third person under
circumstances which do not constitute
murder because he committed the
proscribed act or acts under the
influence of extreme emotional
disturbance, as provided in subsection
(a) of section 53a-54a, except that the
fact that homicide was committed under
the influence of extreme emotional
disturbance constitutes a mitigating
circumstance reducing murder to
manslaughter in the first degree and
6A
need not be proved in any prosecution
initiated under this subsection; or (3)
under circumstances evincing an extreme
indifference to human life, he
recklessly engages in conduct which
creates a grave risk of death to another
person, and thereby causes the death of
another person.
(vii) Connecticut Practice Book,
1978, Section 758:
If a defendant intends to rely upon
the defense of mental disease or defect
at the time of the alleged crime, he
shall, within the time provided for the
filing of pretrial motions pursuant to
Sec. 811 or at such later time as the
judicial authority may direct, notify
the prosecuting authority in writing of
7A
such intention and file a copy of such
notice with the clerk. If there is a
failure to comply with the requirements
of this section, mental disease or
defect may not be raised as a defense.
The judicial authority may for cause
shown allow late filing of the notice or
grant additional time to the parties to
prepare for trial or make such other
order as may be appropriate.
(viii) Connecticut Practice Book,
1978, Section 759:
If a defendant intends to introduce
expert testimony relating to a mental
disease or defect, or another condition
bearing upon the issue of whether he had
the mental state required for the
offense charged, he shall, within the
8A
time provided for the filing of pretrial
motions or at such later time as the
judicial authority may direct, notify
the prosecuting authority in writing of
such intention and file a copy of such
notice with the clerk. He shall also
furnish the prosecuting authority with
copies of reports of physical or mental
examinations of the defendant made in
connection with the offense charged,
within five days after receipt thereof.
The judicial authority may for cause
shown allow late filing of the notice or
grant additional time to the parties to
prepare for trial or make such other
order as may be appropriate.
9A
APPENDIX B
MOTION FOR DISCOVEKY
The defendant moves pursuant to
Sections 2142 et seg., Connecticut
Practice Book, for an order directing
and prosecuting authority, within a time
set by the Court, to disclose in writing
the existence of and allow the defendant
to inspect, copy, photograph and to have
reasonable tests made on any of the
following relevant materials:
vo ee ee eT
y Books, tangible objects,
papers, photographs or documents
obtained from or claimed to belong to or
used by the defendant including, but not
limited to clothing, shoes, key rings,
10A
finger nail scrapings, hair samples,
belt with buckle, urine, knife, finger
prints, and blood samples
Filed October 16, 1976
llA
APPENDIX C
TRIAL COURT'S DECISION
ON MOTION TO STRIKE EXHIBITS
THE COURT: I have some
decisions to announce in this case.
There is a motion to strike the
testimony of the hair on the key ring.
It is my ruling that there was merit to
the defendant's argument in this case
but the merit would go to the weight and
not to the admissibility and so
therefore the motion to strike is
overruled. And I will take your
exception.
MR. ALBRECHT: Yes. pen for the
record so the record is clear there was
really -- the motion to strike was in
12A
two parts, if you Honor recalls. One
part was as to the consummation of the
sample, that was the Stabler case, and
the other part was as to the fact that
-- the other fact was that the testimony
as read to your Honor indicated that the
hair was seen on the key and that there
was testimony that the hair was seen on
the key ring without explanation as to
why the discrepancy.
I assume by your Honor's ruling
that you have denied or overruled both
of those motions.
THE COURT: That is correct.
MR. ALBRECHT: And for the record
may I have an exception.
THE COURT: Your exception may
be noted. (T. 2-3, July 18, 1979).
13A
APPENDIX D
EXCERPTS OF INQUIRY OF DR. LUNTZ
AND TRIAL COURT'S RULINGS ON OBJECTIONS
In the course of examining Dr.
Luntz, the state's forensic
odontologist, the defendant's trial
counsel pursued the following inquiry:
Q And are you not a collector of
police uniforms?
MISS DRANGINIS: Objection, your
Honor.
MR. ALBRECHT: It goes to interest,
your Honor.
THE COURT: Sustained.
MR. ALBRECHT: Your Honor, it goes
to this man's interest and that is a
14A
question for the Jury, his motive and
his interest.
MISS DRANGINIS: The lecturing
might possibly go to interest, your
Honor, although I doubt it, but I don't
think whether or not he collects
uniforms has anything to do with this
case.
THE COURT: I'll sustain the
objection.
BY MR. ALBRECHT:
Q Doctor, are you not a
collector of police badges?
MISS DRANGINIS: Objection, your
Honor, same grounds.
MR. ALBRECHT: Your Honor, I want
to demonstrate to the Jury what this --
how this man operates. And I think I
15A
have a right to go into this particular
area on his interest.
MISS DRANGINIS: Your Honor, I
think that Mr. Albrecht is utilizing an
argument probably for inappropriate
purposes. I don't think that there is
anything germane or relevant insofar as
his testimony is concerned as to whether
or not he is a collector of anything.
MR. ALBRECHT: Your Honor, this
man, came here and says he is testifying
as a doctor and I think the Jury is
entitled to know the background as he
inclinations of Dr. Luntz and if I am
not permitted to do that in cross
examination I think the Jury may get a
distorted picture.
THE COURT: I'll sustain the
objection to that particular question.
16A
MR. ALBRECHT: May I have an
exception to your Honor's both rulings.
THE COURT: Exception may be
noted to both rulings. (T. 45-46, July
20, 1979).
Q Okay. Rare occasions.
Doctor, let me ask you this, you did
come to Court in March of 1979 wearing a
tie pin made of handcuffs, did you not?
MISS DRANGINIS: Objection.
MR. ALBRECHT: It goes to his
interest, your Honor.
THE COURT: I'll sustain the
objection to that question.
BY MR. ALBRECHT:
Q Doctor, did you ever receive a
gift from a police department of a tie
pin made of handcuffs?
MISS DRANGINIS: Objection.
17A
MR. ALBRECHT: That is a different
area, your Honor.
THE COURT: I'll overrule the
objection.
A Yes.
Q And did you wear that gift pin
of handcuffs when you came to Court?
MISS DRANGINIS: Objection.
THE COURT: I'll sustain the
objection to the last question.
BY MR. ALBRECHT:
Q Doctor, are you a collector of
handguns?
MISS DRANGINIS: Objection, it
is not relevant, your Honor.
THE COURT: Sustain the
objection.
18A
MR. ALBRECHT: May I have an
exception, your Honor, to both of your
Honor's rulings in regard to that.
THE COURT: Exception may be
noted. (T. 50-51, July 20, 1979).
Q And likewise it's impossible,
it is possible that the bite was imposed
after death, is that not true?
A Yes.
Q In fact, Doctor, it's possible
that at the time the bite was imposed
the decedent was alive and moving, is
that not correct, when I say moving we
have already assumed that he was alive
but that he could move around, I mean he
was able to move?
A Yes.
Q Obviously if it was imposed
after death you would have a different
19A
situation, then the deceased would be
immobile, theoretically, is that
correct?
A Yes.
Q So that in this particular
instance, in the particular instance
because it was not determined that the
bite had occurred subsequent to the
demise of the deceased there could have
been significant movement by the
deceased between the time the bite was
made and the time the decedent died and
the time when the photograph was taken
as well as considering that rigor mortis
had to be broken before the shirts were
removed, is that not correct, Becta’
A That is correct.
Q Now, you have testified,
Doctor, in another case a few years ago
20A
where you gave an opinion, did you not,
regarding a young girl out in Illinois
who met her untimely demise a few years
ago, is that not correct?
A ‘That is correct.
Q And in that case is it not
true that the young girl -- is it not
true that it was determined by expert
testimony that the bite mark occurred
subsequent to the heart stopping
beating, is that not true, Doctor?
A That is correct.
Q And, likewise do you not
recall, Doctor, that in that particular
case rigor mortis had set in and it was
claimed that the body was in the same
position it was at the time the bite was
made when the photograph, photography
was done, is that not correct?
2iA
A That is correct.
Q Likewise in that particular
case silicone impressions were made, it
that not correct, Doctor?
A That is correct.
Q And likewise in that case the
defendant, the alleged defendant had a
chip on No. 9, right here, right Doc?
A That is correct.
Q And in that case wasn't it
your opinion that the most significant
point for identification was the fact
that there was a mark left by the
chipped tooth, is that not correct,
Doctor?
A You said most significant.
Q I'll say a significant.
A A significant.
22A
Q All right. I don't want to
argue semantics with you, Doctor, is
that not true, Doctor.
A That is true.
Q And, is it not true, Doctor,
that an other man confessed to that
crime?
MISS DRANGINIS: Objection, your
Honor.
THE COURT: Sustained. The Jury
may disregard the question and answer
may be stricken.
MR. ALBRECHT: May I have an
exception to your Honor's ruling.
THE COURT: Exception may be
noted. (T. 120-22, July 20, 1979).
23A
APPENDIX E
EXCERPTS OF INQUIRY OF DR. SOPHER
AND TRIAL COURT'S RULINGS ON OBJECTIONS
Q Now, Doctor, you have
testified -- you have testified in other
jurisdictions, have you not?
A Yes, sir.
Q The first case you testified
in, if I'm not mistaken, was a case in
14 Maryland, in the State of Maryland,
bite mark analysis case?
A I think that might be
correct....
Q Was Dr. Luntz involved in that
case with you?
MISS DRANGINIS: Objection, it’s
not relevant.
24A
MR. ALBRECHT: it is relevant, Your
Honor. I claim it.
MISS DRANGINIS: Who testified,
when, what case, with whom, and who was
on whose team is not relevant before
this court at this time, Your Honor.
MR. ALBRECHT: Your Honor, I claim
there is a pattern, and I intend to
prove it.
MISS DRANGINIS: Your Honor, I
really don't know what to do about a
statement like that that is made in
front of this jury, except to move to
strike it and ask Your Honor to indicate
to the jury to disregard it. Perhaps
Mr. Albrecht has proven his point.
MR. ALBRECHT: I would like to have
the opportunity to prove my point, Miss
Dranginis.
25A
MISS DRANGINIS: It is not
relevant.
THE COURT: I will sustain the
objection. The question may be
stricken.
MR. ALBRECHT: May I have an
exception to Your Honor's ruling?
THE COURT: Exception noted.
BY MR ALBRECHT CONTINUING:
Q Did you testify in a case,
Milone case, in Illinois?
A That is correct, yes.
Q Dr. Luntz testified with you
on that case?
MR. ALBRECHT: Objection, Your
Honor, same grounds and, Your Honor, at
this point --
THE COURT: What is the
relevancy?
MR. ALBRECHT: Your Honor, I claim
MISS DRANGINIS: I ask that the
jury be excused from the courtroom so he
can make an orfer of proof on the
record. He already made certain
statements that are improper.
THE COURT: All right. The jury
will please retire.
THE COURT: Well, I still don't
understand how the question is relevant?
MR. ALBRECHT: You Honor, this
witness has been working hand and glove
with Dr. Lester Luntz for about eight
years now. It is the typical situation,
Dr. Luntz and Dr. Sopher, first Dr.
Luntz testifies and Dr. Sopher testifies
for the prosecution or vice versa, with
one exception, and that is in the
27A
Vermont case where Dr. Luntz and Dr.
Sopher testitied for the defense, and
then Dr. Sopher came up with an opinion
that was consistent with Dr. Luntz's.
Now, lI want this jury to know the
history of these two experts testifying
together in the past -- practically in
every major case this doctor has
testified in, he has been involved with
Dr. Luntz from Fort Mead to Vermont, and
it is like I am dealing with a
vaudeville team.
MR. ALBRECHT: I would like the
opportunity to present this evidence, by
offer of proof. I want to show there is
a relationship between these two men and
how that relationship may affect their
judgment. I have an absolute right
under law to go into interest, motive
28A
and credibility on the question of cross
examination, and I claim it.
MISS DRANGINIS: Your Honor,
it's so remote, and it is not in any
way, shape or form connectable and is
prejudicial and thoroughly irrelevant.
THE COURT: I don't see where
this type of questioning would be
relevant.
MR. ALBRECHT: It goes to his
credibility, Your Honor. I have to have
the latitude. This is a murder case. I
have to have the latitude of cross
examination of this witness and if Your
Honor ftorecloses my questioning of his
relationship with the other witness who
testified for the State, you are
foreclosing an area of cross examination
of motive and subjectivity and integrity
29A
as far as his testimony is concerned. I
have that right, I suggest to Your
Honor, and I say if you foreclose that,
you foreclose a very important part of
cross examination.
THE COURT: I'll sustain the
objection to this line of questioning.
MR. ALBRECHT: May I have an
exception?
THE COURT: An exception may be
noted.
THE COURT: Let the record note
that the jury has returned to the
courtroom.
CROSS EXAMINATION
BY MR. ALBRECHT CONTINUING:
Q How long have you known Dr.
'
Luntz?
30A
MISS DRANGINIS: Objection, it's
not relevant, Your Honor. It's the same
question, and Your Honor sustained the
objection, outside the presence of the
jury.
MR. ALBRECHT: It's not the same
question. It's an absolutely different
question.
THE COURT: That is a different
question. What is the purpose of this
offer?
MR. ALBRECHT: I intent to use that
preliminarily as to his relationship
with Dr. Luntz. That's the purpose of
the inquiry.
MISS DRANGINIS: It is not
relevant, Your Honor. Your Honor has
ruled.
31A
THE COURT: I will sustain the
objection.
MR. ALBRECHT: May I have an
exception?
THE COURT: Exception may be
noted.
CROSS EXAMINATION
BY MR. ALBRECHT CONTINUING:
Q How many cases have you
testified in where you and Dr. Luntz
appeared in the same cases, Doctor?
MISS DRANGINIS: Objection, Your
Honor.
THE COURT: Sustain the
objection.
MR. ALBRECHT: May I have an
exception?
THE COURT: Exception may be
noted.
32A
BY MR. ALBRECHT CONTINUING:
Q Has Dr. Luntz ever referred
you work, Doctor?
MISS DRANGINIS: Objection, Your
Honor. It's not relevant.
THE COURT: Sustained.
MR. ALBRECHT: Your Honor, I claim
that specifically. If there is a
monetary relationship between these two
doctors, I think the jury is entitled to
know it. |
MR. ALBRECHT: May I have an
exception to Your Honor's ruling in all
of the entire area of my inquiry into
the relationship between this Dr. Sopher
and Dr. Luntz?
THE COURT: Yes.
Q Doctor, did you see Dr. Luntz
during the iunch recess?
33A
MISS DRANGINIS: Objection, Your
Honor, this borders on definance of your
order.
MR. ALBRECHT: If it is, Your
Honor, I don't intend to do that.
MISS DRANGINIS: It certainly
does.
MR. ALBRECHT: Miss Dranginis,
please, now, please, now, Miss
Dranginis, I wiil not further this
inquiry if Your Honor directs me not to.
THE COURT: I so do that. (T.
131-141, August 1, 1979).
34A
APPENDIX F
TRIAL COURT'S INSTRUCTION
CONCERNING PRESUMPTION OF INTENT
"The third element which the State
must prove is that the person
causing the death of the person
must have done so with the intent
to cause the death. In other
words, the State must prove beyond
a reasonable doubt that the accused
intended to cause the death of
Michael Aranow.
Now, intent is a mental process.
The person's intention may be
inferred from his conduct. Ever
person is presumed to intend the
natural and necessary consequences
of his or her acts. It is often
impossible and never necessary to
prove criminal intent by direct
evidence.
Ordinarily, intent can be proved
only by circumstantial evidence, as
I have explained that term to you.
What a person's purpose or
intention has been is necessarily
very largely a matter of inference.
A person may take the stand and
testify directly as to what his or
35A
her purpose or intention was, and
that testimony you can believe or
not according to whether or not it
warrants belief, but no witness can
be expected to come here and
testify that he looked into another
person's mind and saw therein a
c. rtain purpose or intention. The
only way in which a Jury can
determine what a person's purpose
or intention was at a given time,
aside from that person's own
testimony, is by determining what
that person's conduct was and what
the circumstances were surrounding
his conduct, and from those infer
what his or her purpose or
intention was. To draw such an
inference is not only a privilege,
but it is also the duty of the jury
provided, of course, the inference
drawn is a reasonable one. In this
case, therefore, it will be part of
your duty to draw all reasonable
inferences from the conduct of the
accused in the light of the
surrounding circumstances as to
what purpose or intention was in
his mind at various times. (T.
38-40, August 7, 1979). Record, pp.
34-36.
36A
APPENDIX G
TRIAL COURT'S DECISION ON
MOTION FOR NEW TRIAL
The defendant was indicted for
murder in violation of Connecticut
General Statutes §53a-54a (1979) on
October 31, 1978. Om August 13, 1979, a
jury of twelve returned a verdict of
guilty of manslaughter in the first
degree. See Connecticut General Statutes
§53a-55 (1979).
Pursuant to Practice Book §901
(1978), the defendant moved for a new
trial based on alleged jury misconduct.
The court denied the motion and the
defendant appealed. The Supreme Court
dismissed the appeal as interlocutory.
37A
See State v. Asherman, 41 Conn. L.J. No.
38, p. 1 (Mar. 18, 1980). With the
permission of the court the defendant
has filed a revised motion for a new
trial, challenging the court's
instructions on intent and on
manslaughter as a lesser included
offense of murder.
The court's charge on the intent
element in murder and manslaughter is
attached in Appendix A. The defendant
claims that the portion stating that
"le]very person is presumed to intend
the natural and necessary consequences
of his or her acts” violates due process
under Sandstrom v. Montana, 442 U.S.
38A
510, 99 S. Ct. 2450, 61 L.Ed 2d 39
(1979) and State v. Harrison, 41 Conn.
L.J. No. 9, p. 3 (Aug. 28, 1979) by
impermissibly establishing either a
conclusive or burden-shifting
presumption of the element of intent.
The court disagrees.
Language in State v. Arroyo, 41
Conn. L.J. No. 39, p. 6 (Mar. 25, 1980)
is dispositive of this issue. In Arroyo
our Supreme Court held that an
instruction by she court on the crime of
murder nearly identical to the instant
one “could not be reasonably construed
to require a conclusive presumption or a
shifting of the burden of proof and did
not deprive the defendant of his due
process right to a fair trial." Id. at
8. The basis of the holding was that
39A
the language upon which the defendant
relies, although forbidden in isolation
by Sandstrom 442 U.S. at 513, 99 S.Ct.
at 2453, 61 L. Ed. 2d at 44, was
overcome by the qualifying language
indicating that the jury could infer,
but need not necessarily presume, the
element of intent. 41 Conn. L.J. No. 39,
at 8. The court's instruction on the
murder and §53a-55(a)(1) manslaughter
charges in question contained the same
qualifying language.
The Arroyo court reversed the
defendant's manslaughter conviction
because, unlike the murder instructions
in that case, the charge to the jury on
manslaughter did not contain or refer to
the passages explaining that intent is a
matter of inference. Id. at 8-9. In
4OA
this Case the §53-55(a)(2) manslaughter
charge referred to the court's previous
explanation of the intent element. Thus
because of the court's reference to its
previous instruction and because of the
content of the material referred to,
this court has complied completely with
Arroyo. Accordingly the court finds no
error in its instructions on intent.
Ithe instructions given do differ from
the Arroyo charge in their deletion or
inclusion of certain adjectives, such as
a "reasonable" inference as opposed to a
"reasonable [inference] and a logical
one," in the use of the neutral gender
("person") as opposed to the male gender
("man"), and in the use of
parentheticals such as "now." These
differences are ones of form, not
substance, and do not serve to
distinguish the legal effect of the
charge in question from the murder
instruction in Arroyo.
41A
The defendant next makes three
challenges to the manslaughter
instruction. The first stems from the
fact that State v. Whistnant, 41 Conn.
L.J. No. 33, at 5, 8 (Feb. 12, 1980) now
requires that to justify the giving of a
lesser included offense instruction the
evidence differentiating the greater and
lesser offense must be in dispute. The
argument is that since the court twice
commented that it saw no evidence of
extreme emotional disturbance, see
Appendix B, its instruction permitting
the jury to find the defendant guilty of
manslaughter because of this mental
state, see Conn. Gen. Stat.
42A
§53a-55(a)(2) (1979), instead of murder,
see id. §53-54a (1979), was unwarranted.
Defendant's reliance on Whistnant
is misplaced. First, it is not clear
that Whistnant, which was decided
subsequent to the charge to the jury in
the instant case, should apply
retroactively. When a new
constitutional rule, such as the one
pronounced in Whistnant, does not relate
to the accuracy of guilty verdicts, the
test for retroactivity considers the
nature of reliance by the state on the
old rule and the impact of the new rule
on the administration of justice.
Handerson v. North Carolina, 432 U.S.
£233, 243, 97 &. Ce. 2339, 33 L. Bd. 2¢
306 (1976). Here reliance on the old
rule would seem totally justified. As
43A
late as three months after the trial our
Supreme Court had defined lesser
included offenses without reference to
the evidence component upon which
defendant relies. See State v. Amaral,
41 Conn. L.J. No. 21, at 9, 10 (Nov. 20,
1979). Although the burden on the
administration of justice of applying
Whistnant retroactivity is difficult to
assess, even if that burden were light
this factor could be seen as less
significant than the good faith reliance
on the old rule.
Even assuming that Whistnant
operates retroactively, it does not
necessarily apply to the particular
offenses in question. Whistnant does not
eliminate the rule, stemming from State
v. Brown, 163 Conn. 52, 61, 30-1 A.2d
44A
547 (1972), that for offenses to be
considered included one must necessarily
commit the lesser in the act of
committing the greater. 41 Conn. L.J.
No. 33, at 5, 8 & n.12. Since one need
not act under extreme emotional
disturbance to commit murder - in fact,
under General Statutes §53a-54a(a), such
a mental state precludes a murder
conviction -- it follows, as the
defendant admitted at orai argument,
that extreme emotional disturbance
manslaughter, see Conn. Gen. Stat.
§53a-55(a)(2) (1979), is not a lesser
included offense of murder. Thus the
Whistnant requirement that the
evidence distinguishing included
offenses be in dispute before charging
45A
on the lesser offense has no relevance
2
here.
2Insofar as defendant takes issue with
the court's comments on the evidence, as
opposed to the giving of the affirmative
defense instruction in light of those
comments, that claim has no merit. It
is well settled that a trial court may,
at its discretion, call the attention of
the jury to the evidence or lack thereof
so long as it does not direct or advise
the jury how to decide a particular
matter. State v. Mullings, 166 Conn.
268, 274, 348 A.2d 645 21974) . Here the
court specifically informed the jury
with respect to whether evidence of
extreme emotional disturbance existed
that "it is your recollection that
counts, not mine." See Appendix B.
46A
Defendant's second challenge to the
manslaughter instruction focuses on the
court's use of the example of a
husband's killing of an adulterer in bed
with his wife to illustrate the offense
of extreme emotional disturbance -
manslaughter. It is true that the new
murder defense of extreme emotional
disturbance, see Conn. Gen. Stat.
§53a-54a(a) (1979), and the traditional
"heat of passion" defense are not
interchangeable. State v. Elliot, 177
Conn. 1, 4, 411 A. 2d 3 (1979).
However, the court finds nothing in the
leading discussions of the new murder
defense, see id; People v. Shelton, 88
Misc. 2d 136, 385 N.Y.S. 2d .708 (1976),
that inextricably links the illustration
given with the heat of passion defense.
47A
If anything, the Elliot court's
statement that "[a] homicide influenced
by an extreme emotional disturbance, in
contrast, is not one which is
necessarily committed in the ‘hot blood'
stage,'' 177 Conn. at 7, 411 A.2d 3
(emphasis added), allows for the
possibility that the hypothetical
husband's killing would have given rise
to an extreme emotional disturbance
defense. Further support for this view
comes from Elliot's definition of
killing under an extreme emotional
disturbance as one in which "reason was
overborne by extreme intense feelings,
such as passion, anger, distress, grief,
excessive agitation or other similar
emotions." Id. at 9, 411 A.2d 3.
48A
The court also relies on the
proposition that the test to be applied
to any part of a charge is whether the
charge considered as a whole presents
the case to the jury so that no
injustice will result. State v. Spates,
176 Conn. 227, 235, 405 A.2d 656 (1978).
Since the court defined the extreme
emotional disturbance defense as
specified in Elliot, 177 Conn. at 9-10,
411 A.2d 3; Appendix B, it finds no
injustice in the affirmative defense
instruction.
Defendant's final argument is that
the court erred in instructing the jury
that it could convict on intent to cause
serious physical injury - manslaughter,
see Conn. Gen. Stat. §53a-55(a)(1)
(1979), as a lesser included offense of
49A
murder. Relying on Whistnant, defendant
claims that the evidence of the elements
distinguishing the two offenses was not
“sufficiently in dispute to permit the
jury consistently to find the defendant
innocent of the greater offense but
guilty of the lesser." 41 Conn. L.J. no.
33, at &.
The court has already indicated its
reluctance to apply Whistnant
retroactively. In any event, the
defendant would gain nothing from its
application. The element
differentiating murder and §53a-55(a) (1)
manslaughter is intent. Murder requires
the intent to cause death, while
§53a-55(a)(1) manslaughter requires only
intent to cause serious physical injury.
See State v. Arroyo, 41 Conn. L.J. No.
590A
39, pp. 6, 7? n.2 (Mar. 25, 1980); Conn.
Gen. Stats. §§53a-54a(a), 55(a)(1)
(1979). Intent is a question for the
jury and is usually inferred from
conduct. State v. Holley, 174 Conn. 22,
26, 381 A.2d 537 (1977). Thus it is
appropriate to draw on authority
justifying the giving of a lesser
included offense instruction when the
evidence on the distinguishing elements,
although not explicitly in dispute,
permits contrary inferences by the jury.
United States v. Comer, 421 F. 2d 1149,
1154 (D.C.Cir. 1970). Our Supreme Court
has just today announced agreement with
these principles. State v. Rodriguez, 41
Conn. L.J. No. 44, pp. 12, 20 (Apr. 29,
1980).
51A
There was ample evidence at this
defendant's trial permitting contrary
inferences as to, if not explicitly
controverting, the level of intent
involved in the killing. The court, in
fact, instructed the jury that this
matter "is for you to determine from all
the facts." See Appendix C. Accordingly,
the court finds no error in the
instructions on the charge of
manslaughter in the first degree.
For the foregoing reasons, the
defendant's motion for a new trial is
denied.
MISSAL, J.
Filed April 29, 1980.
52A
APPENDIX H
TRIAL COURT'S INSTRUCTION
CONCERNING MANSLAUGHTER
"If the State has failed to prove
any one of the three elements of
the crime of murder, then your
conclusion must be that the State
has failed to make out a case of
murder, and you should then turn
your attention to the consideration
of the question as to whether or
not the accused is guilty of some
lesser offense, lesser degree of
homicide.
Our statutes state that
manslaughter in the first degree
consists of causing the death of
another person in two different
classifications. The first
classification is causing the death
of such person with intent to cause
serious physical injury, and the
second classification is
intentionally causing such death
under circumstances which do not
constitute murder because he acts
under the influence of extreme
emotional disturbance. In other
words, the second classification of
manslaughter in the first degree is
53A
distinguished from murder because
the intentional causing of the
death was under circumstances which
do not constitute murder because he
acts under the influence of extreme
emotional disturbance.” (T. p.
40-41, August 7, 1979).
"The second element the State must
prove in connection with the second
classification of the lesser charge
of manslaughter in the first degree
is that the person causing the
death of the person must have done
so with intent to cause the death.
In other words, the State must
prove beyond a reasonable doubt
that Steven Asherman attacked
Michael Aranow with the intent to
cause his death but under
circumstances showing extreme
emotional disturbance. The classic
example of such cases are when the
husband returns home to find his
wife making love to a stranger and
then kills one or both of them. I
recall nothing in the events of
this nature but remember, it is
your recollection that counts, not
mine." (T. p. 47, August 7, 1979),
See, Record pp. 36-38.
and further charged as follows:
"Therefore, in order for this
accused to be found guilty of the
crime of manslaughter in the first
degree under this second
54A
classification that we have been
discussing, you must find beyond a
reasonable doubt that he intended
to cause the death of Michael
Aranow, that he did cause the death
of Michael Aranow, but under
circumstances which do not
constitute murder, as I have
defined it, because he was acting
under the influence of extreme
emotional disturbance for which
there was a reasonable explanation
or excuse, and, as I stated before,
I recall no such disturbance." (T.
p. 48, August 7, 1979).
55A
APPENDIX 1
TRIAL COURT'S DECISION ON MOTION FOR
NEW TRIAL AND IN ARKEST OF JUDGMENT
Defendant moved to set aside and
arrest the verdict of guilty of
manslaughter in the first degree because
of alleged improper conduct of the trial
jury during the deliberative process.
The motion also pursues such matters as
improper instructions to the jury, and
admissibility of certain evidence, but
these were not briefed or argued. As
far as this motion is concerned, they
are considered abandoned.
A public hearing was held on the
motion in which jurors were examined and
56A
cross-examined by counsel for the
parties hereto.
Jurors Warden Henry, Allan Turner,
Thomas McGahan, Henry Streib and William
Casey testified.
Defendant claims the following
matters constituted jury misconduct
sufficient to warrant a new trial in
that the listed activities deprived him
of his right to a fair trial:
A belt and shirt, not exhibits
admitted at the trial, were brought into
the jury room and a body-dragging
experiment was conducted with these
items.
oe Eleven jurors deliberated
while juror Streib was ill and not
present.
57A
de A telephone conversation
between jurors Henry and Turner prior to
coming to court during the period of
time in which the jury was considering
its verdict was improper.
4, Juror Streib read a dictionary
definition of the word "inference" to
the other jurors which was prejudicial.
De An experiment consisting of
stabbing a tree over one hundred times
to determine what effect, if any, there
would be on the hand of the wielder of
the knife was allegedly carried out by
juror Henry.
It is the contention of defendant
that these activities of the jurors
deprived him of his fundamental
constitutional rights and a fair trial.
58A
With respect to the burden of proof
in a hearing on alleged jury misconduct
such as this, where there is a claim of
intrusion into the constitutional rights
of an accused, the accused has the
burden of establishing the acts of jury
misconduct. Once the defendant
establishes misconduct, the burden
shifts to the State. Aillion v. State,
168 Conn. 541. The verdict of the jury
must be set aside and a new trial
ordered unless the State establishes
beyond a reasonable doubt that the
misconduct was harmless. A finding that
misconduct occurred creates a
presumption of prejudice that must be
overcome by affirmative evidence
produced by the State. The Court,
applying an objective test, shall assess
59A
for itself whether or not there is a
likelihood that the misconduct woulda
affect a jury's verdict. Aillon v.
State, supra, Before constitutional
error can be held not to affect a jury's
verdict, the Court must be able to
conclude that the error was harmless
beyond a reasonable doubt. Chapman v.
California, 386 U.S. 18, 24.
The duties of jurors are defined in
Section 51-245 of the General Statutes
of Connecticut, and require that the
jurors shall not “converse with any
person, not a member of the jury,
relative to the cause under
consideration, before they have returned
their verdict; and when they have agreed
upon a verdict they shall return it to
the court....
60A
Historically, a juror could not
provide any testimony to the court to
defeat his verdict. Vaise v. Deleval, 1
T.R. 11 (K.B. 1785). Over the years
this rule has been eroded.
The present Connecticut rule has
been articulated in the Aillon case,
supra, where the court allowed testimony
from a juror as to the fact of
"extraneous influence", but refused to
hear any testimony involving the effect
of that influence on the deliberative
process. The first step in deciding
whether a new trial should be granted
because of jury misconduct is whether
any of the claims of defendant come
within the definition of "extraneous
influence". Secondly, if so, whether
61A
the "extraneous influence" had a
prejudicial effect on the jury.
One group of Connecticut cases
prior to Aillon v. State, supra, mostly
concerned statements made by jurors to
third persons or by third parties to
jurors wherein the State Supreme Court
upheld the trial court's denial of a
motion for mistrial. Bluett v. Eli
Skating Clug, 133 Conn. 99; Burns v. The
State, 84 Conn. 518, Genuario, et ai v.
Fuikler, et al. 136 conn. 500; State v.
Williamson, 134 Conn. 203; State v.
Savage, 161 Conn. 445; State v. Siberon,
166 Conn. 455.
Several Connecticut cases have
addressed the issue of certain documents
being sent into the jury room in error,
during the deliberative process. Gimelli
62A
v. Waterbury Cadillac Co., Inc., 109
Conn. 722; Yavis v. Sullivan, 137 Conn.
233»
Thus is can be concluded that the
Connecticut Statutes and case law have
recognized the inherent danger in a
juror communicating with a person other
than other jurors and, in civil cases,
of improper documents being sent into
the jury deliberating room along with
the pleadings, exhibits and verdict
forms. There are no Connecticut
Statutes or cases on the claimed
misconduct of this jury so that it is
necessary to study the various claims of
a defendant through decision in other
jurisdictions.
63A
Experimentation by Jurors in
Deliberation Room.
Defendant claims that a juror
surreptitiously brought into the jury
room a belt and shirt, not introduced
into evidence as exhibits and utilized
them in an experiment in which one juror
tried to lift another juror lying prone
on the floor and carry him five to six
feet.
Connecticut Statutes, case law and
the Practice Book are silent on jury
experimentation. Nowhere is it a
prohibited or an accepted practice.
In other jurisdictions, the courts
in the following cases refused to grant
new trials because of experimentation by
the jury.
64A
|
In U.S. v. Hephner, 410 F. 2d 930,
a juror covered his head and put on
sunglasses in accordance with testimony
in order to determine whether
identification was possible with that
disguise. The court states at page 936
that "jurors must be given enough
latitude in their deliberations to
permit them to us their common
experience and illustrations in reaching
their verdict."
In both U.S. v Callahan, 442 F.
Supp. 1213 and McLane v. State, 379 S.W.
2d 339 (Tex.), a woman's stocking was
used by jurors to determine if a person
wearing the stocking as a mask could be
identified.
Experiments by jurors with articles
imported into the jury deliberation room
65A
were sanctioned in the following cases:
U.S. v. Welch, 377 F. Supp. 363
(adhesive tape used); Douthit v. State,
482 S.W. 2d 155 (Tex) (electrical cord
used); State v. Houston, 209 N.W. 2d 42
(lowa) (turning of lights to test
visibility at night, through glass
windows); State v. James, 424 P.2d 1005
(Wash); Thompson v. State, 518 P.2d
(Okla).
In State v. Smith, 196 Lowa 1003,
193 N.W. 418, a juror brought in a
magnifying glass to examine the exhibits
for the purpose of identifying writing
on disputed exhibits, during
deliberation. Jurors produced such
items of their own property, not
admitted into evidence such as checks
66A
and letters to buttress their respective
viewpoints.
The court stated at 422-423:
"It cannot be fairly said that this
violates the rule to which we have
referred against the introduction
into the jury room of additional or
other evidence not produced at
trial. A juror is not forbidden to
consider and pass upon the evidence
in light of common experience and
common observation. Discussion and
deliberation in the jury room would
be idle form if jurors were bound
to refrain from illustrating or
emphasizing their views by
reference to any matter or thing
which they have found to be true or
false in their individual
experience, and if verdicts were to
be held violated thereby, the jury
system would better be abandoned
altogether."
Thus, in any other jurisdictions,
the use of experiments by jurors have
been approved including experiments with
items that have not been accepted as
exhibits. Here, the jury conducted the
experiment to test the State's claim
67A
that a single person such as the
defendant could have lifted the victim
and carried him several feet. The
experiment was suggested by the
activities of defendant's counsel and
his investigator in reenacting part of
the same experiment in the courtroom
before the jury.
The items which were brought into
the jury deliberation room, a shirt and
a belt, were common everyday items which
practically every male wears. The
experiment was conducted in a manner
that has reasonably been consistent with
the testimony presented to the jury.
The experiment merely tested the
credibility of the testimony.
The Court, therefore, finds that
the State has provided beyond a
68A
reasonable doubt that any misconduct of
the jury in this regard was harmless and
without prejudice to the defendant.
Il.
Defendant claims that eleven jurors
deliberated in the absence of the
twelfth juror who was not present
because of illness.
Prior to the opening of court on
Tuesday, August 8, 1979, a message was
received from a doctor that juror Streib
had chest pains and had been advised to
remain at home because of his long
history of heart problems. At the
suggestion of the Court, juror Streib
went to the New Milford Hospital; was
examined and pronounced able to resume
his duties as a juror. He returned to
the deliberations at 2:10 p.m..
69A
SS
Defendant contends that during his
absence the eleven remaining jurors
continued their deliberations of the
case.
The Clerk's log of the activities
in the courtroom on August 8, 1979, that
court opened at 10:20 a.m. with eleven
jurors present and the jurors were
excused until noon, with an admonition
by the court not to deliberate until the
entire jury was together. Court was
then reconvened at 12:09 P.M. with 11
jurors present and was recessed at 12:10
p.m. for lunch until 2:00 p.m.. Juror
Streib joined the eleven other jurors at
2:10 p.m. and the jury started
deliberating.
Prior to the time that juror Streib
returned, the State proved beyond a
70A
reasonable doubt that there was no jury
deliberations in the instant trial.
During the short period of time the
eleven jurors were together, discussion
was limited to the health of juror
Streib.
IIl.
Defendant claims that a telephone
conversation between Juror Henry
and Juror Turner prior to coming to
court during the period of time in
which the jury was considering its
verdict was improper and
prejudicial to the defendant.
Juror Henry and juror Turner each
testified that the conversation lasted
less than two minutes and that their
discussion was relative to bringing the
shirt and
discussed
This
construed
there was
innocence
belt for the experiment
above.
telephone call cannot be
to be deliberation because
no discussion of the guilt or
of the defendant. The alleged
misconduct is not an extraneous
influence
but rather an intra-jury
communication. The State has proved
beyond a reasonable doubt that this
conduct was harmless and not prejudicial
to the defendant.
IV.
Defendant claims that Juror Streib
read
a definition of the word
"inference" to the other jurors
which was prejudicial.
during the deliberations, Juror
Sctreib read a definition of the word
72A
"inference" which he had copied from a
Funk and Wagnall Dictionary. The
definition as read to the jury is as
follows:
"Item 1, that which is inferred; a
deduction or conclusion. Two, the
act or process of inferring.
Three, loosely, a conjecture...
Four, is the comprehensive term for
the formal drawing of conclusions;
it includes both induction and
deduction. Deduction is the
inferring of a universal or general
rule from particular instances.
Deduction is the reverse process of
drawing a conclusion as to a
particular instance from general
premises."
The definition most objected to is
"loosely, a conjecture”.
The Court's charge to the jury was
lengthy and complete on the word
"inference" and the jury asked that the
part of the charge involving
circumstantial evidence and inference be
repeated.
73A
In United States v. Sanchez, 380 F.
Supp. 1260, a juror defined the word
“conspiracy” by relation an incident in
which he was convicted of the crime of
conspiracy.
The court at page 1271, citing
other authorities states:
"Most of the acts complained of
took place in the jury room and related
largely to discussions between the
jurors.'' The Court concluded that this
was not grounds for a new trial.
Juror Streib's reading of the
definition of the word "inference"
imparted to the jury only the common
meaning of the word.
The jury was instructed that they
must accept the charge of the court as
to the law of the case, whether they
74A
agreed with the charge or not. These
instructions are sufficiently strong to
override any common dictionary
definition which was discussed by the
jury during their deliberations.
The State has proved to the court
beyond a reasonable doubt that the
definition of "inference" as represented
by juror Streib was not sufficiently
prejudicial to defendant to warrant a
finding that defendant's Sixth Amendment
rights were infringed and was harmless.
Defendant claims that an alleged
experiment by juror Henry
consisting of stabbing a tree over
one hundred times to determine what
75A
effect, if any, there would be on
the wielder of the knife.
A pathologist had testified on
behalf of defendant that a person who
stabbed a body over one hundred times
would injure his hands. ANother
pathologist who testified on behalf of
the State stated that there would not
necessarily be any damage to the hand.
From the evidence elicited at this
hearing, juror Henry denied making the
experiment but said, "There might have
been some misleading statements that Il
made to the jury that indicated that I
might have either had the desire to try
that or had in fact done so."
The Court finds that the State has
proved beyond a reasonable doubt that
such experiment was not conducted by
76A
juror Henry and that any discussion
about said experiment was strictly
intra-jury remarks made during a lengthy
deliberation which did not prejudice the
defendant nor infringe upon his
constitutional rights.
Conclusion
The stability of jury verdicts, and
the finality of legal proceedings are an
important concern for our system of
justice. The Court must concern itself
with the integrity of the jury system,
and the right of privacy and secrecy
allowed to the jurors. In order to
maintain our Constitutional Rights to a
trial by jury, we must have competent
jurors. It is essential that the
integrity of each person who serves the
State of Connecticut as a juror, be
assured that his actions will not be
scrutinized outside the limits of the
law.
It is clear from Connecticut
Statutes and cases that jurors should
not converse with any person not a
member of the jury, regarding the case
being considered, Tomlinson v. Derby, 4l
Conn. 268, 274, and that no one other
than the jurors should be present to
speak to the jurors when assembled for
deliberation. Cook v. Miller, 103 Conn.
267, 273.
The jury must decide the case free
from external influences, which
interferes with its unbiased judgment.
78A
In the instant case, any activities
of the jury which might be considered
improper were harmless. Defendant
failed to prove that the other
allegations of jury misconduct were
improper.
Therefore, defendant's motion for a
new trial and motion to set aside the
verdict and arrest judgment is
overruled.
MISSAL, J.
Filed November 23, 1979.
79A
APPENDIX J
JUDGMENT OF
CONNECTICUT SUPERIOR COURT
STATE OF CONNECTICUT
NO. 18-28922 SUPERIOR COURT
STATE OF CONNECTICUT JUDICIAL DISTRICT
vs. OF LITCHFIELD
STEVEN M. ASHERMAN APRIL 29, 1980
Present, Hon. Harold M. Missal, Judge
JUDGMENT
Upon indictment laid before the
Grand Jurors of the County of
Litchfield, duly summoned, impaneled and
sworn, on October 31, 1978, charging
said Steven M. Asherman with the crime
of Murder in the words and figures
following:
580A
No. 18-28922
IN THE SUPERIOR COURT OF THE STATE OF
CONNECTICUT, JUDICIAL DISTRICT OF
LITCHFIELD, SEPTEMBER TERM, 1978.
The Grand Jury of the County of
Litchfield by this indictment accuses
STEVEN M. ASHERMAN of New York City, New
York, of the crime of Murder and charges
that at the Town of New Hartford, July
29, 1978, the said STEVEN M. ASHERMAN,
with intent to cause the death of
another person, MICHAEL ARANOW, did
cause the death of such other person, in
violation of Subsection A of Section
53a-54a, General Statutes of
Connecticut.
ATTEST:
/s/ Paul R. Phalen
Foreman
S1A
Dated at Litchfield, Connecticut this
29th day of July A.D. 1978 as by
indictment on file will appear.
The said defendant appeared, and
being of the age of twenty-nine years,
then for plea said "Not Guilty” to said
indictment on October 31, 1978, and
elected to be tried by a Jury of Twelve.
Thence said cause came to this
Court on the thirteenth day of August,
1979 when the defendant having again
appeared and after a full hearing, the
case was committed to the jury; who, at
12:28 P.M. returned a verdict of guilty
of a lesser included charge of
Manslaughter in the First Degree, which
verdict was accepted and ordered
recorded by the Court.
Thence to November 23, 1979 when
the parties having appeared and argued
motions for a New Trial and in Arrest of
Judgment, the Court overruled said
motions.
Thence to April 28, 1980 when the
parties having appeared and argued
revised motion for a New Trial, the
Court denied said motion.
A written report of investigation
as to the defendant by the Probation
Department was presented to and
considered by the Court before sentence.
Whereupon it is adjudged that the
said defendant Steven M. Asherman be
placed in the custody of the
Commissioner of Corrections for the term
of not less than seven years nor more
than fourteen years.
83A
BY THE COURT
David C. Bristol
Date of Judgment, April 29, 1980
84A
APPENDIX K
193 Conn 695 JULY, 1984 695
State v. Asherman
STATE OF CONNECTICUT v. STEVEN M. ASHERMAN
(10160)
PETERS, PARSKEY, GRILLO, HENNESSY and SPADA, Js.
Indicted for the crime of murder and convicted of the lesser included offense
of manslaughter in the first degree, the defendant appealed. From the
evidence presented at trial the jury could reasonably have found that,
on the night in question, the defendant and the victim had hiked to the
top of a mountain where the defendant stabbed the victim with a knife
over 100 times. There was also evidence presented by L, a physician,
to the effect that a bite mark which appeared on the victim’s back had
been inflicted by the defendant. Held:
1. Because, under all of the circumstances, the police had probable cause
to believe that the defendant had killed the victim when, on the day
following the killing, they interviewed him at the crime scene, the trial
court did not err in refusing to suppress from evidence certain items
which they had seized from him on that day.
2. The defendant was not deprived of his right under the state constitu-
tion (article first, § 8) not to give evidence against himself when he was
compelled by court order to allow for identification purposes the tak-
ing of wax impressions and photographs of his teeth; those impressions
and photographs constituted nontestimonial evidence.
3. The taking of a dental impression of the defendant’s teeth did not con-
stitute an impermissibly suggestive identification procedure which was
violative of his right to due process.
4. There was an adequate factual basis for the expert testimony of L to
the effect that, in his opinion, the bite mark on the victim’s back had
been inflicted by the defendant.
5. The trial court did not unduly restrict the scope of the defendant’s cross-
examination of the state’s expert medical witnesses.
6. The trial court did not err in admitting into evidence a hair sample which
had been found on the defendant’s key ring and which, upon examina-
tion, matched the characteristics of the victim's hair; the fact that the
hair sample had been broken did not, as the defendant claimed, consti-
85A
696 JULY, 1984 193 Conn 695
State v. Asherman
tute a material alteration of evidence.
7. The trial court did not err in denying the defendant’s motion to strike
certain evidence relating to the blood and hair which had been found
on his key ring; the fact that the entire blood sample which had been
taken from the key ring was used up in the test which established that
it was blood did not deprive the defendant of his right to a fair trial.
8. The trial court did not abuse its discretion in admitting into evidence
certain testimony to the effect that the defendant had smoked mari-
juana with the victim on the night of the killing.
9. The evidence was sufficient to support the jury’s conclusion that the
defendant was guilty of first degree manslaughter; the jury could justifi-
ably have concluded that when he killed the victim the defendant was
under extreme emotional disturbance.
10. The trial court did not err when, during its charge to the jury on the
definition of ‘extreme emotional disturbance,” it used the example of
a “heat of passion’”’ killing.
11. The trial court’s instruction to the jury that “every person is presumed
to intend the natural and necessary consequences of his acts,” did not,
when read in the context of the entire charge, shift to the defendant
the burden of proof on the issue of intent.
12. The trial court did not err in denying the defendant’s motion for a mis-
trial] made on the ground of juror misconduct; the defendant failed to
sustain his burden of demonstrating that his right to a fair trial had
been prejudiced as a result of the claimed misconduct.
Argued March 8—decision released July 17, 1984
Indictment charging the defendant with the crime
of murder, brought to the Superior Court in the judi-
cial district of Litchfield and tried to the jury before
Missal, J.; verdict and judgment of guilty of man-
slaughter in the first degree, and appeal by the defend-
ant to this court. No error.
Maxwell Heiman, with whom was William J. Tracy,
Jr., for the appellant (defendant).
John M. Massameno, assistant state’s attorney, with
whom were Anne C. Dranginis, assistant state’s attor-
ney, and, on the brief, Dennis A. Santore, state’s attor-
ney, and Lisa Sokoloff, James P. Rock and James R.
Turcotte, legal interns, for the appellee (state).
86A
198 Conn 695 JULY, 1984 697
re ee tee + eee
State », Asherman
— + em 10 wee ae ewe es ew = -* - ——e
Parskty, J. The defendant was indicted for the mur-
der of Michael Aranow at the town of New Hartford
on July 29, 1978. After a trial to the jury the defend-
ant was convicted of the lesser included offense of man-
slaughter in the first degree in violation of General
Statutes § 53a-55. In his appeal the defendant asserts
; that the court erred in (1) refusing to suppress a num-
} ber of items taken from him as a result of an alleged
illegal seizure; (2) compelling him to submit to dental
impressions and thereafter permitting the use of such
impressions for identification purposes; (3) permitting
evidence of alleged prior unrelated offenses; (4) restrict-
ing the defendant’s cross-examination of the state’s
expert witness; (5) admitting in evidence a set of keys
and a piece of hair taken from a key ring; (6) instructing
the jury with respect to the offense of manslaughter
in the first degree; and (7) refusing to set aside the
guilty verdict because of alleged.jury misconduct. We
have examined each of these claims and find no error.
Based on the evidence presented at trial, the jury
could have reasonably found the following facts: On a
Saturday evening, July 29, 1978, the defendant and the
victim, who were both students at the Columbia Medi-
cal School, traveled from the victim’s family home in
1 “(General Statutes] Sec. 53a-55. MANSLAUGHTER IN THE FIRST DEGREE:
CLASS B FELONY. (a) A person is guilty of manslaughter in the first degree
when: (1) With intent to cause serious physical injury to another person,
he causes the death of such person or of a third person; or (2) with intent
to cause the death of another person, he causes the death of such person
' or of a third person under circumstances which do not constitute murder
because he acts under the influence of extreme emotional disturbance, as
provided in subsection (a) of section 63a-64a, except that the fact that homi-
cide was committed under the influence of extreme emotional disturbance
constitutes a mitigating circumstance reducing murder to manslaughter
in the first degree and need not be proved in any prosecution initiated under
this subsection; or (3) under circumstances evincing an extreme indiffer-
ence to human life, he recklessly engages in conduct which creates a grave
risk of death to another person, and thereby causes the death of another
person.
“(b) Manslaughter in the first degree is a class B felony.”
87A
BEST AVAILABLE COPY
698 JULY, 1984 193 Conn 695
State v. Asherman
oe te | ee ee a ee
Hastingss-on-Iludson, New York, to New Hartford,
Connecticut, to take a break from work on a school
computer project. They arrived in New Hartford at the
country estate of the victim’s family between 9:00 and
9:30 p.m. As they drove to the Kingdom Game Club,
which adjoins the estate, the victim’s brother, Philip,
noticed the lights of their automobile from the cabin
in which he and a friend, Robert Lawrence Lane (Larry
Lane), were staying and decided to find out who was
entering the property. They drove to the game club and
met the defendant and the victim.
The four young men exchanged greetings and intro-
ductions, after which the victim told his brother that
he and the defendant were going to the lookout at the
top of Jones’ Mountain and that they might see them
later that night at Philip’s cabin. Because it was a par-
ticularly “‘buggy’’ night, Philip offered to them some
insect spray. The four parted, but.neither the defend-
ant nor the victim went to Philip’s cabin later that
night.
Tne defendant and the victim proceeded to walk
through the woods about one mile until they reached
the lookout. Because the night was so dark, the victim
had to lead the defendant by the hand. When they
arrived at the lookout some unexplained emotion or cir-
cumstance, induced perhaps by a mind-altering drug,
led the defendant to slay the victim brutally by stab-
bing him with a knife over 100 times in the face, back,
buttocks and left leg, and slashing his throat. Some of
the wounds were inflicted post-mortem. The defend-
ant also bit the victim on the upper left portion of his
back, over the scapula.
The defendant then attempted to hide the body by
moving it, but succeeded in moving it only five and one-
half to six feet. He left the scene, covered with blood,
looking for some place where he could wash the blood
88A
193 Conn 695 JULY, 1984 699
State v. Asherman
off of his clothing. As he walked through the woods,
he hid somewhere the knife that he had carried to the
scene in a “‘day pack’”’ and the shirt he was wearing,
which was drenched in blood, and came upon a stream
or nearby pond, where he attempted to wash the blood
from the rest of his clothing. He also smeared silt and
dirt all over the front of his jeans.
After day broke, on Sunday morning, he walked
down to the home of the victim’s uncle, Frank Jones.
Jones was awakened at 7:30 a.m. by the defendant’s
shouts at the front door and the barking of Jones’ dogs.
Coming to the door in his pajamas, Jones found the
defendant, stripped to the waist, clad in blue jeans that
were soaking wet. The defendant, who was obviously
tense, told Jones that he and the victim had been in
the woods when they encountered “‘two guys with a
gun.”’ He had escaped but could not find the victim,
and wanted to call the police and the victim’s parents
right away. Jones, who knew that his nephew was
familiar with the woods, wanted to find out more before
getting excited and calling the police or the Aranows.
After the defendant mentioned the victim’s name,
Jones let him into the house. The defendant asked for
a drink of water and asked also if he could wash his
hands, which he was permitted to do at the kitchen sink.
Jones noted that, while the defendant wore no shirt, he
had no bruises or insect bites anywhere on the exposed
part of his body. He could also observe that the defend-
ant appeared to be on drugs or to have been drinking.
In response to Jones’ question about the matter, the
defendant said that he thought he and the victim had
had a couple of beers.
The defendant went on to tell Jones that the night
before, he and the victim were walking to a place on
the top of the mountain, where there was a view, when
they were approached by two drunken men, one of
89A
700 JULY, 1984 193 Conn 695
—————
whom had a gun. According to the defendant, the men
asked the victim and him for something, after which
the defendant shoved the man with the gun into the
other, and he and the victim ran off into the woods.
Jones and the defendant then proceeded in Jones’
automobile up Steele Road and onto Henderson Road
to Philip Aranow’s cabin in order to see if Michael was
there. At the cabin, the defendant requested and was
given a shirt to wear. He began to give additional
details about what had happened the night before, say-
ing that he had seen the flash of a knife one of the men
had; that one of the men chased him through the woods
for a long time; and that his shirt had been lost as he
ran through the woods. The defendant kept repeating
that they should call the police. He then went by car
with Philip Aranow and Larry Lane to the victim’s car
and the Kingdom Game Club. Having parked Philip’s
car on the road to the lookout, they proceeded on foot
towards the lookout. Jones had taken his car and gone
back down Henderson Road and Steele Road to his
home and then up the mountain from the opposite
direction.
As the three young men approached the lookout, the
defendant, who had been calling out for the victim, fell
back from the other two. Jones approached from the
other direction and saw the body of the victim lying
face down at the lookout. He approached the body while
the three young men remained on the dirt road, tried
to find a vital sign, and, when he did not, told the others
that Michael was dead. Frank Jones left the three
young men near the lookout as he went to call the
police.
Trooper Joseph Bieluch was the first officer to arrive
and hear the defendant’s explanation. He noted that
the defendant’s jeans were extremely dirty and wet,
as if smeared with silt from a pond. His jogging shoes
90A
193 Conn 695 JULY, 1984 701
State v. Asherman
were also wet, though his hands and arms were clean.
He was wearing his glasses and had no apparent bug
bites, scratches or cuts. He had a red substance in the
corners of his mouth, which appeared to be blood, and
Bieluch detected the foul smell of rancid blood. The
trooper believed that the defendant was under the influ-
ence of something.
Later, the three young men went down to the Jones’
residence to give statements to the police. The defend-
ant was interviewed by Trooper Calkins. He stated
that, after he and Michael had left Philip and Larry,
they walked about one-half hour into the woods when
suddenly they were confronted by two men before they
reached the lookout. He said that these men ‘‘just
appeared right in front of them.” Yet, the only descrip-
tion he could give of them was their relative height.
He assumed that they were males by their voices, about
which there was nothing unusual. He said the shorter
of the two was carrying a long gun, and the taller had
something in his hand that “glinted.’’ Their breath
smelled of alcohol. He said the two men made a demand
of some kind for their belongings and that he suddenly
pushed the smaller of the two into the other and ran
off with Michael. Almost immediately, they became
separated. He said he ran in the woods for about one-
half hour before he stopped to rest, when he heard what
sounded like a gunshot. Neither Philip nor Larry heard
any gunshots or other strange sounds during the eve-
ning. The defendant also told Trooper Calkins that,
while running through the woods, he had lost his ‘‘day
pack”’ and his shirt had been ripped off of his body by
the branches and brush.
Later, the defendant was asked to reduce his state-
ment to writing at the New Hartford Town Hall. There,
Troopers Robert Terry and Richard Raposa saw spots
on the defendant’s blue jeans that appeared to be blood.
When asked to empty his pockets, the defendant pro-
91A
702 JULY, 1984 193 Conn 695
State v. Asherman
duced a key ring on which a red hair, similar to the vic-
tim’s, was embedded in blood. The defendant, who was
surprised to see the blood and hair, wanted to know
how long it would take the lab to determine whether
or not it was blood. When Sergeant Henry DesChamps
later asked the defendant to describe his assailants, he
merely shrugged his shoulders and gave no answer.
During the interview at Town Hall, Sergeant
DesChamps asked the defendant if he had killed the
victim. The defendant paused for a few moments and,
looking down, said ‘‘no.’’ Before he left the New Hart-
ford Town Hall, he shook hands with DesChamps,
thanked him for the way he had treated him, and prom-
ised to come back some day and tell him what had hap-
pened on the hiil.
The investigation of the scene began upon discovery
of the body and continued for a number of days there-
after. An expert i in crime scene analysis testified that
there was no sign of a struggle on the small path Jead-
ing to the lookout or at the nearby road, but that there
was a primary and secondary crime scene at the look-
out, and that the body had been lifted five and one-half
to six feet from the primary to the secondary scene.
He also stated that there would have been no way for
two men to drag or otherwise force the victim onto the
lookout over the small path without creating some dis-
turbance to the path or the vegetation surrounding it.
. Expert dog track evidence was presented by Trooper
Andrew Rebmann who handled the bloodhound “Clem.”
An American Kennel Club registered bloodhound, Clem
had been cited for tracking a person who had been miss-
ing for eight days and another young girl, found alive
after being missing for three days. Clem acquired the
scent of the victim from his shoe and tracked him,
with a good strong pull, from the Kingdom Game Club
(where his car was parked) along the dirt roads leading
92A
193 Conn 695 JULY, 1984 703
State v. Asherman
to the lookout. Without variation, Clem went directly
to the lookout, circled at a pool of scent of the vic-
tim and stopped. The track demonstrated that the vic-
tim had never run from any assailant, but proceeded
directly to the lookout.
A wide-ranging search of Jones’ Mountain by the
state police and over one hundred volunteers with metal
detectors, failed to yield evidence of a ripped shirt, day
pack, spent gun shells or any other evidence that would
substantiate the defendant’s story. All the ponds were
searched by Connecticut state police divers without
yielding evidence of the crime.
The mountain, as depicted in state’s exhibits A, D,
X, and Y, was a rugged area of deep, thick woods and
full underbrush.
Agent Robert Spalding, of the FBI laboratory, tes-
tified that human blood was found in the knees and sur-
rounding front area of the defendant’s blue jeans and
was especially apparent on the front inside portion of
the jeans. The blood stain covered a surface of 12” x
8” on the front of the right leg and 9” x 5” on the front
of the left leg. No further tests could be done, however,
because of the dirt embedded in the fabric and the fact
that the blood had been diluted by water.
Other expert testimony indicated that the hair on the
key ring originated from the head of the victim and had
been embedded in human blood on the defendant’s key
ring. Finally, Dr. Lester Luntz, a forensic odontologist,
testified, after exhaustive comparative analysis that,
to a ‘‘reasonable degree of dental certainty,”’ the bite
mark on the victim’s back had been inflicted by the
defendant’s teeth.
On the basis of this evidence, the defendant was
convicted of manslaughter in the first degree; General
93A
704 JULY, 1984 193 Conn 695
— <i i . —- ec ee
" Sisto s Adhermen
Statutes § 53a-55; and was sentenced thereon to a pri-
son term of not less than seven years nor more than
fourteen.
I
PROBABLE CAUSE TO SEIZE ON JONES’ MOUNTAIN
The defendant claims that he was illegally seized by
Trooper Bieluch while the two of them were at the top
of Jones’ Mountain and that since Bieluch had insuffi-
cient probable cause to make a warrantless arrest at
that point any statements or items of personal prop-
erty taken from him incidental to such arrest were ille-
gally seized in violation of the fourth and fourteenth
amendments to the United States constitution. If, in
fact, the defendant was seized in a constitutional sense
at that point, in the absence of probable cause, such
seizure would be unreasonable within the meaning of
the fourth amendment; v. New York, 442
U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); and
under article first, § 7 of the Connecticut constitution;
State v. Ostroski, 186 Conn. 287, 290, 440 A.2d 984,
cert. denied, US. ,10358. Ct. 173, 74 L. Ed.
2d 142 (1982); and the fruit of such seizure, whether
isting of oral statements; Wong Sun v. United
States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441
(1963); or personal property; State v. Federici, 179
Conn. 46, 53, 425 A.2d 916 (1979); would be subject
to suppression.
It is not at all clear that the defendant was seized
in a constitutional sense by Trooper Bieluch on Jones’
Mountain. The trial court observed that Bieluch had
a right to preserve the scene where the body was found.
To the extent that this observation suggests a murder
scene exception to the constitutional requirements
respecting search and seizure no such exception is
recognized. Mincey v. Arizona, 437 U.S. 385, 98 S. Ct.
2408, 57 L. Ed. 2d 290 (1978). Nevertheless, the situa-
94A
193 Conn 695 JULY, 1984 705
State r “ Asherman
— = mmm a a me
tion in which Bieluch found himself at the murder scene
is not totally irrelevant to the question of whether the
defendant was detained on Jones’ Mountain.
If Trooper Bieluch had probable cause to arrest the
defendant at the lookout on Jones’ Mountain then any
articles seized from him incidental to that arrest would
not be subject to suppression on fourth amendment
grounds. State v. Penland, 174 Conn. 153, 155, 384
A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237,
56 L. Ed. 2d 404 (1978). Probable cause means more
than mere suspicion. There must be facts and circum-
stances within the officer’s knowledge, and of which
he has trustworthy information, sufficient to justify the
belief of a reasonable person that a felony has been com-
mitted and that the person subject to being arrested
has committed it. State v. Acklin, 171 Conn. 105, 113,
368 A.2d 212 (1976). If probable cause to arrest exists,
whether the officer intended to arrest at that point is
of no consequence. State v. Carter, 189 Conn. 611, 619,
458 A.2d 369 (1983). Because our consideration of the
probable cause issue is dispositive of the trial court's
ruling on the motion to suppress we need not consider
whether the defendant was in fact seized at the look-
out and if so whether his detention could be justified
on the basis of something less than probable cause,
namely, an articulable suspicion. See United States v.
Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed.
2d 497, reh. denied, 448 U.S. 908, 100 S. Ct. 3051, 65
L.. Ed. 2d 1138 (1980).
The facts pertinent to the seizure issue are the fol-
lowing: At approximately 8:25 on the morning of July
30, 1978, Trooper Bieluch of the Connecticut state
police received a call in his office at the Town Hall in
New Hartford from Frank Jones advising him that
there had been a murder on Jones’ Mountain. Jones,
who is part owner of a large country estate in New
Hartford, informed Bieluch that he had discovered on
OSA
706 JULY, 1984 193 Conn 695
—_— ms +
State v. Asherman
the mountain the body of his nephew and related some
sketchy details of what he knew of the incident. He
stated that his nephew and a friend had been camping
out on the mountain when they were accosted by two
intoxicated people; the friend ran away and, in the
morning, came to the Jones’ house telling Jones what
had happened and that he could not find Michael. They
later discovered Michael's body.
Trooper Bieluch, who arrived at the Jones’ home at
around 8:30 a.m., picked up Jones and proceeded with
him to the lookout, which is located near the top of
Jones’ Mountain and about 1.4 miles from the Jones’
residence. The gravel road to the lookout is surrounded
on both sides by woods and dense brush. When they
arrived at the lookout they met Philip Aranow, the vic-
tim’s brother, Larry Lane, a friend of Philip’s, and
Steven Asherman, the defendant. Bieluch saw the body
of the victim, which had multiple stab wounds and was
surrounded by large amounts of blood.
The trooper then proceeded to interview those who
were present. He began with Philip Aranow who told
him that on the previous evening he and Lane had been
at the Aranow cabin, which is on the same road that
leads to the lookout, when the victim and the defend-
ant arrived on the property. After speaking briefly with
them at the Kingdom Game Club, the victim and the
defendant both left. At around 7:30 the next morning,
his uncle, Jones, and the defendant arrived, reported
to him that his brother Michael was missing, and asked
him to help in the effort to find him. Lane, who was
interviewed next, confirmed the account given by Philip
Aranow.
Trooper Bieluch then asked the defendant what had
happened. The defendant responded by saying that the
night before he and the victim were walking on the road
toward the lookout when they were met by two intoxi-
96A
193 Conn 695 JULY, 1984 707
(ee State v. Asherman
the brush and hid for awhile. He later resumed running
through the woods, after which he stopped and fell
asleep. When he awoke it was daylight, and, although
he did not know where he was, he proceeded down the
mountain where he came upon the home of Frank
Jones. When Jones came to the door in response to the
defendant's knocking, the defendant related to him the
same account of what had occurred.
As the defendant was speaking, the trooper noticed
several things about his appearance: He was looking
down at the ground all of the time. His blue jean pants
and shoes were wet and extremely soiled. The pants
looked as if somebody had deliberately rubbed silt from
a pond or stream on them. The entire front and sides
of the pants were covered with silt while the rest of
his body was very clean. The defendant was wearing
glasses, which were clean and had no device to hold
them in place, and he did not have any visible scratch
marks or insect bite marks.
As the interview continued, these facts combined to
raise in the trooper’s mind serious doubts about the
truthfulness of the defendant’s story given the density
of the brush in the area, the number of insects, and the
obvious fact that whoever perpetrated the killing would
probably be covered with blood or would have attempted
to wash it out of his clothing or discard any stained
clothing. Moreover, Bieluch also observed what, from
his training and substantia] experience, appeared to be
dried blood caked on the corners of the defendant’s
mouth and detected from his mouth the foul odor of
rancid blood. Finally, Bieluch observed that the defend-
ant, who was incoherent at times and unsure of his
answers to questions, appeared to be under the influ-
97A_
708 JULY, 1984 193 Conn 695
— i ~ oe oe eee we oer owe ri eT: il, ee ae cay
Hate ». Ashermen
ence of some mind-altering drug, the symptoms of
which he had seen on numerous occasions. That fact,
of course, would have been consistent with the unex-
plained brutality of the slaying.
At this point the defendant began asking the trooper
if he could go down to the Jones’ house to take a shower.
Trooper Bieluch advised him that he would prefer that
he not leave because certain things needed to be done at
the scene and that he wanted him to remain there until
troopers from the Canaan barracks would arrive. The
defendant, who agreed to remain, went on to respond
to questions from Bieluch concerning the details of his
account. When asked about his shirt, he said that it had
been ripped off by the branches as he was running
through the brush and that he did not know where it
was.
Trooper Bieluch then asked Jones to recount what
had happened. He reiterated that the defendant had
come to his home that morning reporting that there
had been trouble on the hill and that he could not find
Michael. Jones had not been particularly concerned
since he knew that the victim was familiar with the
woods. Jones went on to state that when the defend-
ant arrived at his home he was wearing no shirt and
that Philip Aranow and Lane had supplied him with
the yellow shirt he was then wearing.
When the defendant asked again if he could go to’the
Jones’ house and take a shower, Trooper Bieluch sug-
gested that he could take the defendant to the house
where he could have a cup of coffee. Again, the trooper,
who had substantial doubts about the veracity of the
defendant’s story, was concerned about alteration of
the crime scene or any potential evidence before the
arrival of the investigative team from Canaan and the
major crime squad. The trooper, Jones and the defend-
ant left the scene of the homicide at around 9:30 a.m.
98A
193 Conn 695 JULY, 1984 709
wen State v. Asherman
and drove to the Jones’ home in the trooper’s cruiser,
meeting as they arrived simultaneously three troop-
ers from the Canaan barracks. The defendant exited
the cruiser and walked across the lawn and entered
the Jones’ home as Bieluch began briefing Sergeant
Timmons, in Trooper Calkins’ presence, on what had
occurred prior to his arrival. Timmons then assigned
Troopers Bieluch and Bernstein, who had arrived with
him, to guard the scene of the crime. They both went
to the scene after which Bieluch brought Philip Aranow
and Lane down to the Jones’ residence. In the mean-
time Lieutenant Smith, commander of the Canaan bar-
racks, and Trooper John McGoldrick arrived. Troopers
Bieluch, Calkins and McGoldrick were then assigned
to interview individually the witnesses Aranow, the
defendant, and Lane, respectively. Bieluch gathered
all three witnesses together on the closed-in porch of
the home and advised them all together of their
Miranda rights. When he asked them whether they
understood their rights each one individually indicated
that he was fully aware of his rights. The individual
interviews then began.
There was sufficient probable cause to justify the
defendant’s seizure on Jones’ Mountain. Thus there was
no fourth amendment basis for suppressing any of the
evidence obtained from him. The following information
was available to Bieluch at the time he requested the
defendant to remain at the scene: the victim’s body was
lying face down next to a pool of blood and the defend-
ant was the last person known to have been with the
victim before his death. The person who killed the vic-
tim would probably have been covered with blood as
a result of the method of killing. The defendant was
wearing blue jeans that were wet and soiled in front
with what appeared to be silt from a nearby pond and
stream. The silt appeared to have been deliberately
rubbed into the pants. The remainder of the defend-
99A.
710 JULY, 1984 193 Conn 695
State v. Asherman
ant’s body was very clean, except that what appeared
to be dried blood was caked on the corners of the
defendant’s mouth. The foul odor of rancid blood was
detected on the defendant’s breath. The defendant, who
claimed to have been running and stumbling through
dense forest throughout a black midsummer night,
nevertheless had no visible scratch marks or insect bite
marks on his body. There were also no scratch marks
on the glasses he was wearing. During the interview
the defendant would not look at Bieluch but instead
kept looking on the ground. The defendant appeared
to be under the influence of some kind of mind-altering
drug, a possible explanation for the brutality of the
crime. Viewing this information in its totality, Bieluch
had reasonable grounds to believe that the defendant
had committed the murder.
II
RULINGS ON EVIDENCE
A
USE OF DENTAL IMPRESSIONS
On motion of the state, Practice Book, 1963, § 2186
et seq. (now § 775 et seq.), the defendant, pursuant to
court order, was compelled to permit the taking of wax
impressions and photographs of his teeth. The defend-
ant claims that the taking of these impressions and pho-
tographs violated his right, under article first, § 8 of the
Connecticut constitution, not to give evidence against
himself. The defendant asserts further that the use of
such evidence by the state’s dental expert constituted
an impermissible identification procedure in violation
of the due process clause of the fourteenth amendment
of the United States constitution and that, in any evert,
the state’s dental expert should not have been permit-
ted to give an opinion concerning the probability that
100A
193 Conn 695 JULY, 1984 711
State v. Asherman
the bite mark on the shoulder blade of the victim was
made by the defendant because there was no factual
basis for such opinion.
(1)
Connecticut’s Privilege of Self-Incrimination
Article first, § 8 provides in part: “‘No person shall be
compelled to give evidence against himself . . . .” The
defendant points to the language of the fifth amend-
ment of the federal constitution which reads that ‘“[no
person] shall be compelled . . . to be a witness against
himself’ and argues that because of the difference in
language the protection afforded by the state consti-
tution is broader and that by the use of the word “‘evi-
dence’ the state constitution was intended to cover
both testimonial and nontestimonial evidence. We dis-
agree.
The privilege against self-incrimination embodied in
article first, § 8 has its genesis in the common law.
Historically the privilege became part of the common
law because of the experience with the oath ex officio
as used originally in the ecclesiastical courts and later ©
in the Court of the Star Chamber. 8 Wigmore, Evidence
(McNaughton Rev.) § 2250. The seemingly innocuous
oath which bound a person under examination to make
a true answer to all questions that might be asked was
used to force him to destroy himself by his own testi-
mony. If his compelled testimony convicted him, he was
punished. If he refused to take the oath, he was sub-
. jected to torture. Finally, when John Lilburn in 1637 |
refused to take the oath ex officio in the Star Chamber
and recrived parliamentary support in his refusal, the
principle embodied in the Latin phrase nemo tenetur
_seipsum accusare (no one is bound to accuse himself)
had its origins and ultimately came to be accepted in
the common law courts. McCormick, Evidence (2d Ed.)
§ 114. At common law the privilege protected against
101A
712 JULY, 1984 193 Conn 695
State v. Asherman
any activity performed for the purpose of communicat-
ing. Id., § 124. Noncommunicative evidence such as fin-
gerprints or photographs was not included within the ;
privilege. The purpose of incorporating the privilege
in our state constitution was to place this right as it
was known at common law beyond legislative abolition.
State v. Torello, 103 Conn. 511, 513, 131 A. 429 (1925).
The defendant argues that the difference in language
between article first, § 8 of the state constitution (‘[njo
person shall be compelled to give evidence against him-
self’’) and the fifth amendment of the federal consti-
tution (“[no person] shall be compelled . . . to be a
witness against himself”’) suggests that the two provi-
sions should not receive the same construction. The
thrust of his argument is that being a witness gener-
ally refers to giving testimony whereas giving evidence
includes both testimonial and nontestimonial material.
Our cases, while not focusing on the linguistic differ-
ences nevertheless have not drawn the suggested dis-
tinction. Cf. State v. Anonymous (1976-2), 32 Conn.
Sup. 306, 311, 353 A.2d 789 (1976). We have approved,
for example, the admission of a photograph taken of
the accused; State v. Hackett, 182 Conn. 511, 516, 438
A.2d 726 (1980); the taking of paraffin casts of a defend-
ant’s hands; State v. Chesney, 166 Conn. 630, 640, 353
A.2d 783, cert. denied, 419 U.S. 1004, 95 S. Ct. 324,
42 L. Ed. 2d 280 (1974); the seizure of mud-stained
shoes to compare with a plaster cast of a footprint; State
v. Smith, 156 Conn. 378, 383, 242 A.2d 763 (1968); the
introduction in evidence of the defendant’s blood stained
shoes; State v. Hassett, 155 Conn. 225, 232, 230 A.2d
553 (1967); and the use of fingerprints. State v. Chin
Lung, 106 Conn. 701, 723, 189 A. 91 (1927).
We have construed the state constitutional privi-
lege as being declaratory of the common law. State v.
Monahan, 96 Conn. 289, 290, 114 A. 102 (1921). “The
common-law maxim nemo tenetur seipsum accusare has
‘102A
193 Conn 695 JULY, 1984 713
State v. Asherman
been incorporated in the constitutions of nearly every
State and appears in our Declaration of Rights in the
provision that an accused ‘shall not be compelled to give
evidence against himself.’ Conn. Const., Article First,
§ 9 [now § 8]. The history of the development of the
privilege discloses that the object sought to be attained _
thereby was the prevention of the employment of legal
process to extract from the person’s own lips an admis-
sion of his guilt which would then take the place of evi-
dence.” State v. Ford, 109 Conn. 490, 496, 146 A. 828
(1929). We have also noted that compulsion which
makes a suspect or accused the source of real or phys-
ical evidence has been held not to violate a person’s
constitutional rights as it is not such as compels “‘com-
munications” or ‘‘testimony’’; State v. Chesney, supra;
and in this respect we cited the following examples.
Cupp v. Murphy, 412 U.S. 291, 93 S. Ct. 2000, 36 L.
Ed. 2d 900 (1973) (taking scrapings from fingernails
over protest); Gilbert v. California, 388 U.S. 263, 87
S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); United States
v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149
(1967) (compelling a demonstration of the accused’s
voice); Schmerber v. California, 384 U.S. 757, 86 S.
Ct. 1826, 16 L. Ed. 2d 908 (1966) (withdrawing blood
sample).
In our most recent discussion of the constitutional
privilege against self-incrimination we made the follow-
ing observation: “Judicial review of an asserted invasion
of the protection against compelled self-incrimination
must focus on whether the state (1) actually compelled
the claimant to disclose (2) testimonial communications
(3) which tended to incriminate him.’ (Emphasis added.)
State v. Smith, 185 Conn. 63, 83, 441 A.2d 84 (1981).
And in State v. Acquin, 187 Conn. 647, 678 n.15, 448
A.2d 163 (1982), cert. denied, US. , 103 S. Ct.
3570, 77 L. Ed. 2d 1411 (1983), we noted that compel-
ling an accused to drop his pants so as to expose non-
103A
Fe
714 JULY, 1984
mo es eee
193 Conn 695
——— —— ee ce se 7.
State v. Asherman
testimonial scratches on his thigh would not violate his
constitutional rights. Thus, if there is a constitutional
distinction to be drawn in self-incrimination cases
between giving testimony and giving evidence, our
cases have not reflected it. State v. Anonymous
(1976-2), supra.
Seventeen states? have language in their constitu-
tions comparable to the “giving evidence”’ language in
article first, § 8. None of these states® has construed
this phrase as excluding all nontestimonial evidence.
Utah, which construes its provision as broader than the
federal counterpart, would preclude compelling an
accused to give a handwriting sample because that
would require a defendant to perform an affirmative
act. Hansen v. Owens, 619 P.2d 315 (Utah 1980); accord
? Alabama (Ala. Const., Art. I § 6); Arizona (Ariz. Const., Art. II § 10);
Delaware (Del. Const., Art. I § 7); Illinois (Ill. Const., Art. I § 10); Ken-
tucky (Ky. Const., § 11); Maine (Me. Const., Art. I § 6); Maryland (Md. Decl.
of Rights, Art. 22); Mississippi (Miss. Const., Art. III § 26); Nebraska (Neb.
Const., Art. I § 12); North Carolina (N.C. Const., Art. I § 23); Pennsylvania
(Pa. Const., Art. I § 9); South Dakota (S.D. Const., Art. VI § 9); Tennes-
see (Tenn. Const., Art. I § 9); Texas (Tex. Const., Art. I § 10); Utah (Utah
Const., Art. I § 12); Vermont (Vt. Const., Ch. I, Art. X); Washington (Wash.
Const., Art. I § 9).
* See, e.g., Hill v. State, 366 So. 2d 318, 322 (Ala. 1979); State v. White,
102 Ariz. 162, 426 P.2d 796 (1967); State v. Smith, 47 Del. Super. Ct. 334,
91 A.2d 188 (1952); People v. Schmoll, 77 Ill. App. 3d 762, 396 N.E.2d 634
(1979), cert. denied, 447 U.S. 928, 100 S. Ct. 3026, 65 L. Ed. 2d 1122 (1980),
Newman v. Stinson, 489 S.W.2d 826, 829 (Ky. 1972); State v. O'Conner,
320 So. 2d 188 (La. 1975); State v. Buzynski, 330 A.2d 422 (Me. 1974); Reed
v. State, 35 Md. App. 472, 372 A.2d 243 (1977); McCrory v. State, 342 So.
2d 897 (Miss. 1971); State v. Swayze, 197 Neb. 149, 247 N.W.2d 440 (1976);
Wyman v. DeGregory, 101 N.H. 171, 187 A.2d 512 (1957) (preserves
common-law privilege); State v. Strickland, 276 N.C. 253, 260, 173 S.E.2d
129 (1970); State v. Thomason, 538 P.2d 1080, 1081-86 (Okla. Crim. App.
1975) (state constitution adopted privilege as at common law); Common-
wealth v. Moss, 233 Pa. Super. 541, 334 A.2d 777 (1975); Delk v. State, 590
S.W.2d 435, 440 (Tenn. 1979); Olson v. State, 484 S.W.2d 756, 772 (Tex.
Crim. App. 1972) (opinion on rehearing) (“‘evidence”’ self-incrimination clause
merely reflective of common-law privilege); State v. Picknell, 142 Vt. 215,
454 A.2d 711 (1982); Artis v. Commonwealth, 213 Va. 220, 191 S.E.2d 190
(1972); State v. Foster, 91 Wash. 2d 466, 589 P.2d 789 (1979).
104A
193 Conn 695 JULY, 1984 715
| . State v. Ashermen ee ee
Creamer v. State, 229 Ga. 511, 192 S.E.2d 350 (1972).
Utah would not preclude the use of a hair sample
because that does not require an affirmative act. State
v. Van Dam, 554 P.2d 1324 (Utah 1976). For our part,
we agree with the obse.°% ion that ‘there is really, in
spirit and in principle, no distinction arising out of such
difference of language.” Counselman v. Hitchcock, 142
U.S. 547, 586, 12 S. Ct. 195, 35 L. Ed. 1110 (1892).
We hold that compelling the defendant to submit to the
taking of a dental impression did not violate article first,
§ 8 of the Connecticut constitution.
(2)
Dental Impression—Due Process
The defendant objected to the state’s motion permit-
ting it to take a dental impression of the defendant on
the additional ground that the procedure violated the
defendant’s rights to due process in that it permitted
the state to identify the defendant by means of an
impermissibly suggestive procedure. The defendant's
claim is that by permitting Dr. Luntz, the state’s
expert, to compare the teeth of the defendant with the
bite mark on the victim’s body, when Luntz knew the
defendant was the accused, the court permitted an
impermissibly suggestive identification procedure. This
claim is without merit.
Expert testimony is used in a variety of situations
such as a comparison of fingerprints, voiceprints and
bite marks. The state correctly observes that the
defendant’s analogy to eyewitness identification is mis-
conceived. ‘Wade [United States v. Wade, 388 U.S. 218,
87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967)] and Gilbert
[Gilbert v. California, 388 U.S. 263, 87S. Ct. 1951, 18
L. Ed. 2d 1178 (1967)] fashion exclusionary rules to
deter law enforcement authorities from exhibiting an
accused to witnesses before trial for identification pur-
poses without notice to and in the absence of counsel.
105A
716 JULY, 1984 193 Conn 695
State v. Asherman
A conviction which rests on a mistaken identification
is a gross miscarriage of justice. The Wade and Gilbert
rules are aimed at minimizing that possibility by
preventing the unfairness at the pretrial confrontation
that experience has proved can occur and assuring
meaningful examination of the identification witness’
testimony at trial.’”’ Stovall v. Denno, 388 U.S. 293, 297,
87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). There are sub-
stantial differences between the problems faced by an
accused when confronted by identification procedures
utilized by law enforcement authorities with respect
to eyewitnesses and any problems which may arise from
a systematized or scientific analysis of the accused’s
fingerprints, blood sample, clothing, hair and the like.
“Knowledge of the techniques of science and technology
is sufficiently available, and the variables in techniques
few enough, that the accused has the opportunity for
a meaningful confrontation of the Government’s case
at trial through the processes of cross-examination of
the Government’s expert witnesses and the presenta-
tion of the evidence of his own experts.” United States
v. Wade, supra, 227-28.
(3)
Factual Basis for Dr. Luntz’s Opinion
The defendant claims that the testimony of Luntz was
inadmissible because there was no way of knowing the
precise position of the victim’s scapula at the time the
bite was inflicted. We disagree.
In order to render an expert opinion the witness must
be qualified to do so and there must be a factual basis
for the opinion. The trial court has a wide discretion
in ruling on. the admissibility of expert testimony and
the exercise of this discretion is not to be disturbed
unless it has been abused or the error is clear and
involves a misconception of the law. Going v. Pagani,
172 Conn. 29, 35, 372 A.2d 516 (1976). Where the fac-
106A
193 Conn 695 JULY, 1984 717
State v. Asherman
a ne ee eee
tual basis of an opinion is challenged the question before
the court is whether the uncertainties in the essential
facts on which the opinion is predicated are such as to
make an opinion based on them without substantial
value. Berndston v. Annino, 177 Conn. 41, 46, 411 A.2d
36 (1979); Sears v. Curtis, 147 Conn. 311, 314-15,
160 A.2d 742 (1960). The question is not whether the
opinion would be more or less persuasive depending
on the presence or absence of a given fact but rather
whether the missing fact is such an essential part of
the factual foundation for the opinion that its absence
would rob the opinion of its persuasive force. Maroncelli
v. Starkweather, 104 Conn. 419, 424, 133 A. 209 (1926).
Luntz believed that a meaningful comparison could
be made between the photographs of the bite mark and
the photographs and models of the defendant’s teeth.
He testified that after viewing the photographs that
showed the bite mark he obtained life size enlargements
of them. He then took impressions of the defendant’s
dentition and made corresponding models. He photo-
graphed the defendant’s teeth and took special scan
photographs inside the defendant’s mouth. He then
creaied a “mirror image” photograph of the defend-
ant’s teeth to aid the jury in comparing the bite mark
photograph with the photograph of the defendant’s
teeth. He then conducted bite mark experiments involv-
ing the scapula, over which the skin that was bitten
was located. He examined the photographs and models
for the purpose of discerning the unique characteris-
tics of the defendant’s dentition and comparing those
characteristics with the photographs of the bite mark.
Luntz observed from the photograph of the bite mark
that there was no impression made by the biter’s tooth
number nine (left frontal incisor). He also noted that
while teeth numbers four, seven and eight left distinct
marks, tooth number nine left none and teeth numbers
ten and eleven left only faint marks. He concluded that,
107A
718 JULY, 1984 193 Conn 695
State . Ackerman
because every other available point of comparison
between the bite mark and the defendant’s dentition
matched and the mark evidenced a variation of pres-
sure on imprint, the mark was produced while the scap-
ula was located so as to create pressure under teeth
numbers four, six, seven and eight but not under nine.
Although Luntz could not testify with certainty as to
the precise position of the scapula at the time of the
bite, this circumstance did not render his opinion inad-
missible. Assuming that the position of the scapula at
the time of the bite was a significant factor in making
a bite mark comparison, the fact that in this case the
position was unknown or unknowable would go the
weight of Luntz’s opinion and not to its admissibility.
B
RESTRICTIONS ON CROSS-EXAMINATION
OF STATE'S EXPERTS
The defendant claims that the trial court erred in
limiting his cross-examination of Luntz. Specifically the
defendant asserts that he was denied an opportunity
to inquire respecting Luntz’s hobby of collecting a vari-
ety of police accouterments and that he was further
denied the opportunity to demonstrate that on another
occasion his opinion concerning bite mark identifica-
tion turned out to be erroneous.
“The right of an accused to effectively cross-examine
an adverse witness is embodied in the confrontation
clause of the sixth amendment. Davis v. Alaska, 415
U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974);
Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074, 13
L. Ed. 2d 934 (1965). . . . The general rule is that
restrictions on the scope of cross-examination are
within the sound discretion of the trial judge . . . but
ant has been permitted cross-examination sufficient to
satisfy the sixth amendment.” State v. Gaynor, 182
108A
AS SEE GE hr RN Rt REN EN Re PS
193 Conn 695 JULY, 1984 719
State v. Asherman
Conn. 501, 508, 438 A.2d 749 (1980). Therefore, the
threshold question is whether the cross-examination of
Luntz accorded to defense counsel at trial satisfied the
principle enunciated in Davis v. Alaska, supra.
The defendant's avowed purpose for the inquiry into
Luntz’s hobby was to show his close relationship to law
enforcement authorities. This inquiry cannot be exam-
ined in a vacuum. Prior to this inquiry the defendant
had elicited ample evidence of Luntz’s relationship with
law enforcement agencies which rendered this testi-
mony cumulative. After Luntz had testified, as part of .
his qualification, that he had been appointed as a Con-
necticut state police surgeon in 1963 and currently held
this position with the rank of captain, the defendant
elicited on cross-examination testimony concerning
Luntz’s initial involvement with the state police, his pri-
vate socializing with police and attendance at police
social functions and his receipt of a gift from the police
department. In the light of the elicited information the
of questionable relevance and, in any event, in context
amounted to nothing more than evidential fluff.
ne M. Sopher, chief medical examiner for the
of West Virginia and a forensic pathologist and
ist, testified for the state as an expert rebuttal
wi . On cross-examination the defendant sought
to inquire if he and Luntz had testified in the same
cases, if Luntz had referred work to him, and if he had
seen Luntz over the lunch break. Upon objection all of
these questions were excluded. The defendant claimed
that he had a right to show the relationship of these
witnesses to each other and how that relationship may
affect their judgment.
Bias may consist of a friendly feeling or of hostility.
It may be shown in a variety of ways. Implied bias may
be shown by the relationship of a witness to a party;
109A
720 JULY, 1984 193 Conn 695
State v. Asherman
this may also include an intimate family relationship
to a person other than a party. 3A Wigmore, Evidence
(Chadbourn Rev.) § 949. Social and business relation-
ships depending on their nature or character, may also
have a tendency to show bias. When the issue involves
the relationship between a witness and a party, cross-
examination of the witness to demonstrate this rela-
tionship is a matter of right which may not be unduly
restricted. Alford v. United States, 282 U.S. 687, 51
S. Ct. 218, 75 L. Ed. 624 (1931). This may also be true
in many cases involving the relationship of witnesses
to each other. Under the peculiar facts of this case, how-
ever, the matter involved the exercise of discretion.
Although Luntz and Sopher were both on the prose-
cution team their roles were different. Luntz
the prosecution theory that the defendant had per-
petrated the homicide by identifying the bite mark on
the victim's shoulder blade as having been made by the
defendant. Sopher’s testimony, on the other hand, was
offered to rebut the testimony of the defendant's
experts, the main thrust of which was that the defend-
ant’s teeth could not have produced the bite mark in
question. It was Sopher’s opinion that the defendant
could not be excluded as the biter. Upon objection by
the defendant Sopher was precluded from testifying
whether in his opinion the defendant had actually bit-
ten the decedent.
The defendant’s claim was that Luntz and Sopher
_ were part of the sarne team and that as such cne tended
to testify consistently with the other. That being so,
the defendant argues, he had a right to show the social
and business relationship that may have played a role
in producing this symbiotic testimonial result. Had
Sopher supported Luntz’s opinion that the bite mark
had been caused by the defendant there is no question
but that it would have been appropriate for the defend-
ant to have shown the social and business relationship
110A
193 Conn 695 JULY, 1984 721
State v. Asherman
between the two in relation to their joint testimony in
this and other cases. Even in this case where the tes-
timonial connection is more attenuated the trial court
would have been well advised to have exercised its dis-
cretion in favor of permitting the inquiry. But on the
facts of this case we cannot conclude that the ruling
constituted an abuse of the court’s discretion. In
Luntz’s opinion the evidence ruled the defendant in.
In Sopher’s opinion the evidence did not rule the
defendant out. Although in a general sense Sopher’s
testimony supports Luntz it is much too oblique to war-
rant as a matter of right the implied bias inquiry based
on the relationship of the two expert witnesses.
In determining whether the cross-examination of
Sopher was unduly restricted it is the entire cross-
examination which we must examine. State v. Wilson,
188 Conn. 715, 720, 453 A.2d 765,(1982). When the
examination is measured against this standard we
cannot conclude that the defendant’s rights were vio-
lated. The examination of Sopher’s qualifications
covered more than twenty-nine pages of transcript and
covered such matters as Sopher’s knowledge of bite
mark analysis techniques, the extent to which he had
been informed about other witness’ testimony, the
accuracy of the molds and photographs he had prepared
and the accuracy of his analysis generally. He was also
confronted with his own testimony in an Illinois case
in which both he and Luntz had testified for the prose-
cution, testimony which appeared to contradict views
he was expressing in the case on trial. The defendant
on cross-examination was permitted to paint a suffi-
cient picture of Sopher so as to permit the jury to pass
on his credibility.
Ill
HAIR AND BLOOD SAMPLES
The trial court admitted into evidence a strand of hair
which had been removed from the defendant’s key
111A
722 JULY, 19%4 193 Conn 695
"State Y, Auwhe rman
es ee ee me oe —— — _———-— ——e--
ring. 4 At the time of seizure what appeared to be blood
was found on the strand of hair and on the key ring.
Agent Michael Malone of the FBI laboratory, an expert
in the examination of hair and fibers, identified the hair
as being that of the victim on the basis of twenty
characteristics which matched the known hair of the
victim. The amounts of blood on both the key ring and
the hair were too small for complete analysis. The blood
on the key ring was identified as human blood but could
not be typed. The blood on the hair could not be other-
wise identified. Both blood samples were entirely con-
sumed in testing.
The defendant moved to strike the hair and key ring
exhibits and the testimony relating thereto on the
grounds that there had been material alteration in the
exhibits from the time of seizure and that the consump-
tion of the blood sample during testing was prejudicial
to the defendant because it deprived him of an oppor-
tunity to defeat the inference that the hair was
deposited on the key ring at the time of Michael
Aranow’s death.
A
ALTERATION OF EVIDENCE
When proffered evidence is challenged on the ground
of material alteration, the trial court must satisfy itself
in reasonable probability that the substance has not
been changed in important respects. The trial court,
in making its determination, must consider the nature
' of the article, the circumstances surrounding its preser-
vation and custody and the likelihood of intermeddlers
tampering with it. In the absence of a clear abuse of
discretion the ruling of the trial court admitting the
evidence must stand. State v. Piskorski, 177 Conn. 677,
697, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S.
Ct. 283, 62 L. Ed. 2d 194 (1979).
* State’s Exhibit JJJ consists of a rectangular key ring and a set of 12 keys.
112A
BEST AVAILABLE COPY
193 Conn 695 JULY, 1984 723
State v. Asherman
The defendant claims that the hair which was
received by Agent Malone at the FBI laboratory was
changed in that it was broken at the proximal end, that
is, the side near the scalp. Malone, a hair and fiber
expert, testified that he received the hair in a sealed
package which contained a key ring and set of keys
wrapped in a piece of paper. He removed the items from
the package and upon examination noted that a hair
fragment was embedded in encrusted blood on a key
ring.® Despite its broken condition, Malone was able
to test the hair and to identify twenty matching charac-
teristics between the hair fragment and the known hair
of the victim. In the absence of a showing that the bro-
ken condition of the hair sample would have destroyed
or distorted its use for identification purposes, there
was no basis for its exclusion as evidence.
B ‘
CONSUMPTION OF BLOOD SAMPLES BY TESTING
The defendant argues that the trial court erred in
denying his motion to strike evidence relating to blood
found on the key ring and hair. His claim is that the
test which culminated in establishing the substance as
blood also consumed the entire substance discovered
and in the process not only deprived the defendant of
* Although the defendant makes the additional claim that there was a
material discrepancy with respect to where the hair was found, this dis-
crepancy is not sufficient to justify the exclusion of the evidence. It is
undisputed that a key ring containing a set of keys was seized from the
' defendant, that these items were wrapped in a plain piece of paper and
placed in a sealed package, that the sealed package was delivered to Agent
Spalding by Trooper White, that Spalding turned the sealed package over
to Agent Malone who opened the package, removed the various items and
made his observations. While it is true that both Troopers Terry and Raposa
testified that they had observed a hair embedded in encrusted blood on a
key instead of on the key ring, the discrepancy is one of observation, mem-
ory, or description. Since it is clear that the hair was found embedded in
dry blood on one of the items seized from the defendant, the precise loca-
tion of the hair goes to the weight of the evidence rather than to its admis-
sibility.
113A
724 JULY, 1984
193 Conn 695
Stater. Asherman
the opportunity of presenting evidence* on his own
behalf but by introducing the results of the tests denied
him a fair trial.
A fair trial is implicit in the term “‘due process of
law.” ‘‘The requirements of due process are met in the
trial of a person accused of crime if he has been given
the benefit of a fair and impartial trial in accordance
with the settled course of judicial proceedings in this
state.”” Wojculewicz v. Cummings, 145 Conn. 11, 19,
138 A.2d 512, cert. denied, 356 U.S. 969, 78 S. Ct. 1010,
2 L. Ed. 2d 1075 (1958). Whether the defendant, under
the facts of the present case, has been deprived of his
right depends upon the materiality of the missing evi-
dence, the likelihood of mistaken interpretation of it
by witnesses or the jury, the reason for its nonavaila-
bility to the defense and the prejudice to the defend-
ant caused by the unavailability of the evidence. State
v. Hamele, 188 Conn. 372,381, 449 A.2d 1020 (1982);
State v. Harden, 175 Conn. 315, 327, 398 A.2d 1169
(1978).
“The state is under an affirmative duty to disclose
to a defendant any evidence that is favorable to him
and material to his guilt or innocence. [Brady v. Mary-
land, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963)]. The duty to disclose includes a duty to preserve
evidence prior to trial. . . . In order to show a viola-
tion of the constitutional right set forth in Brady, a
defendant must demonstrate, to the extent possible
' under the circumstances, that the evidence is both
favorable and material to an element of his defense
. . . . The scope of the required showing of favora-
bleness is gauged against what it would be possible to
show under the circumstances. .. .
* In a pretrial motion for discovery the defendant requested production
of tangible objects including key rings, hair samples and blood samples in
order to have reasonable tests made.
114A
193 Conn 695 JULY, 1984 725
State v. Asherman
“Thus, where evidence sought to be disclosed has
been functionally destroyed, but was subjected to scien-
tific testing by the state prior to its destruction, a
defendant must show that a retest would have been pos-
sible and must challenge the state’s test results, either
by attacking the manner in which the test was con-
‘ducted or by other evidence. . . . On the other hand,
if the state has not tested an item of evidence before
its loss or destruction, and no other facts indicate that
test results might have proved unfavorable to the
defendant, little more is required than a showing that
the test could have been performed and results obtained
which, in the context of the defendant’s version of the
facts, would prove exculpatory. . . . If a due process
violation is established, the trial court must take what-
ever action is reasonably necessary to prevent preju-
dice to the defendant.” (Citations omitted.) State v.
Kersting, 50 Or. App. 461, 623 P.2d 1095, 1103-1104
(1981).”
That the blood samples tested by the state were mate-
rial is beyond dispute. The fact that a fragment of the
victim’s hair was found embedded in human blood on
the defendant’s key ring was highly inculpatory. The
defendant does not question the results of the state’s
test, namely, that the substance on the key ring was
human blood and the substance on the hair was blood.
Nor does he contend that the destruction was deliber-
ate. United States v. Beltempo, 657 F.2d 472, 479 (2d
Cir.), cert. denied, 457 U.S. 1135, 102 S. Ct. 2963, 73
L. Ed. 2d 1353 (1982). His chief complaint is that if he
had had an opportunity to test the samples he might
have been able to establish that the blood on the key
’ We agree with Kersting that in cases where destruction of evidence is
likely during the testing, questions concerning the deprivation of due pro-
cess rights would be substantially obviated if the state adopted a proce-
dure to notify the defendant that tests are about to be conducted thereby
giving the defendant an opportunity to arrange for his expert to be in attend-
ance. State v. Kersting, 50 Or. App. 461, 623 P.2d 1095, 1104 m4 (1981).
115A
726 JULY, 1984 193 Conn 695
State v. Asherman
ring and the hair was not the blood of the deceased and
that such evidence would have defeated the inference
that the hair was deposited at the time of the decedent’s
death. The rationale for this theory was that the defend-
ant and the decedent were close friends who spent
much time together and that both were medical stu-
dents and as such were exposed to clinical blood. The
difficulty with the defendant’s claim is that it is unsup-
ported. The defendant offered no evidence nor made
any offer of proof that the amounts of blood on the key
ring and the hair were sufficient, if properly tested,
to establish blood type. In the absence of such evidence
or offer the defendant’s claim was speculative. Further-
more, the defendant does not challenge the state’s
assertion that the testing of the samples necessarily
consumed each sample. In the circumstances we cannot
conclude that the defendant has been denied a fair trial.
IV
EVIDENCE OF PRIOR UNRELATED OFFENSE
While the defendant was at the New Hartford Town
Hall to give a statement to the troopers investigating
the homicide, he was asked by Trooper Terry whether
in the course of the previous evening he or the victim
had consumed any alcohol or drug of any kind. Over
the objection of the defendant, Terry testified that the
defendant had responded by saying that he and the vic-
tim ‘“‘had smoked some marijuana on the way down
from New York.” Thereafter, at the defendant’s
request, the court gave an instruction to the jury cau-
tioning them that, if they believed this testimony they
were not to consider it as bearing adversely on the
defendant’s character and should not be prejudiced
against the defendant by reason of it; rather, it could
be considered by them only to the extent they believed
it to be relevant to the issues in the case. The defend-
ant took no exception to the cautionary instruction.
116A
nae SAR a SE alain ei ie anes
193 Conn 695 JULY, 1984 727
State v. Asherman
The defendant told part of his story to a number of
people. The first person the defendant saw when he
came down from the mountain on the morning of July
30, 1978, the day after the murder, was Frank Jones.
Jones, on noting the defendant’s apparently drugged
or intoxicated state asked the defendant whether he
had been on drugs or drinking to which the defendant
responded that he thought they (he and the victim) had
“had a few beers.” Later that morning the defendant
told Trooper Terry that, on the trip from New York
to New Hartford the night before, he and the deceased
had smoked marijuana but ‘‘no hard stuff.’
Although these two accounts were not necessarily
contradictory in that the response to Jones referred
to what the defendant and the victim were doing on
Jones’ Mountain whereas the statement to Trooper
Terry referred to what had transpired during the trip
to New Hartford, their significance is more readily
apparent when viewed in context. The what, the when,
the where and the how of a sequence leading up to an
event may sometimes reveal the who and the why.
A spectacular incident such as a murder is not merely
a snapshot of an event fixed in time. To be understood
it must be viewed as part of a sequence both before
and after its occurrence. The events leading up to the
brutal assault on Jones’ Mountain help to place the ulti-
mate crime in its proper setting. Since the defendant
was at the very least a supporting actor in these events
‘ his description of what occurred assists the trier in
defining his role. Since, by his own account, the defend-
ant was the last known person to have seen the victim
alive and since he and the deceased had been together
for a considerable period of time before the murder,
the defendant’s story takes on added significance. Upon
careful analysis the account may assist in determining
whether the defendant was a feature actor in the mur-
der drama or merely a bit player.
117A
728 JULY, 1984 193 Conn 695
State v. Asherman
The murder was brutal. The victim had been sub-
jected to numerous stab wounds and had been bitten
on his shoulder blade. The murder appeared to have
been perpetrated by someone who was mentally or
emotionally agitated probably while under the influence
of mind-altering drugs. Jones noted that the defend-
ant appeared to be under the influence of drugs or alco-
hol. Trooper Bieluch, who observed the defendant a few
hours later, noticed that he appeared to be under an
altered state of consciousness, apparently drug related.
In context the defendant’s statement to Jones can be
regarded as a cover-up. His later admission to Trooper
Terry that he had smoked marijuana but no hard stuff
on the trip from New York might also suggest that he
was attempting to cover up the fact that he may have
ingested more than a few beers on the mountain.
Evidence of other misconduct, although ordinarily
not admissible to prove the bad character of the accused
may be allowed for the purpose of proving, inter alia,
such things as intent, motive, identity, malice or a sys-
tem of criminal activity. State v. Williams, 190 Conn.
104, 107-108, 459 A.2d 510 (1983). That such evidence
tends to prove the commission of other crimes by the
accused does not render it inadmissible if it is other-
wise relevant and material. State v. Jbraimov, 187
Conn. 348, 352, 446 A.2d 382 (1982). ‘‘Where such evi-
dence is offered in proof of an issue in the case, and
not merely to show an evil disposition on the part of
‘ the accused, the trial court must still consider whether
its prejudicial tendency outweighs its probative value
before ruling upon its admissibility.”’ Id. Since the
admission of such evidence involves judicial discretion
our review is limited to whether this ruling exceeded
the latitude accorded to the exercise of such discration.
_ Id. The bounds of discretion were not exceeded in this
respect.
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193 Conn 695 JULY, 1984 729
State v. Asherman
Vv
EXTREME EMOTIONAL DISTURBANCE
At the request of the state and over the objections
of the defendant the trial court charged the jury on the
lesser included offense of manslaughter in the first
degree predicated on the defendant’s having committed
the homicide under circumstances showing extreme
emotional disturbance. General Statutes § 53a-55 (a)
(2).8 The grounds of the defendant’s objection are that
there was an insufficient evidential basis for the sub-
mission of this crime to the jury and that the illustra-
tion given to the jury for their consideration of this case
was legally inappropriate.
At the outset the state suggests that we need not
review this assignment because the jury returned a gen-
eral verdict. The state argues that the trial court sub-
mitted the manslaughter issue to the jury not only
under the extreme emotional disturbance subsection
but also under subsection (a) (1) which covers situations
in which an accused “[w]ith intent to cause serious phys-
ical injury to another person . . . causes the death of
such person,” that there was sufficient evidence to con-
vict under this subsection, that the defendant could
have requested the court to inquire of the jury under
which subsection they were basing their verdict; State
v. Cartier, 189 Conn. 611, 629, 458 A.2d 369 (1983); and
that by failing to do so the defendant has failed to pre-
* “tGeneral Statutes] Sec. 53a-56. MANSLAUGHTER IN THE FIRS DEGREE:
CLASS B FELONY. (a) A person is guilty of manslaughter in the first degree
when: . . . (2) with intent to cause the death of another person, he causes
the death of such person or of a third person under circumstances which
do not constitute murder because he acts under the influence of extreme
emotional disturbance, as provided in subsection (a) of section 53a-54a,
except that the fact that homicide was committed under the influence of
extreme emotional disturbance constitutes a mitigating circumstance reduc-
ing murder to manslaughter in the first degree and need not be proved
in any prosecution initiated under this subsection .. . .”
119A
730 JULY, 1984 193 Conn 695
State v. Asherman
sent this court with an adequate record to review his
claim; see Kaplan v. Kaplan, 186 Conn. 387, 388 n.1,
441 A.2d 629 (1982); and therefore we should not specu-
late on which subsection the jury relied.
In State v. Marino, 190 Conn. 639, 650-51, 462 A.2d
1021 (1983) we stated, “w]Jhere a person may have been
convicted under more than one statutory alternative,
the judgment cannot be supported unless the evidence
was sufficient to establish guilt under each statutory
provision which the trier may have relied upon.”’ Since
Marino involved an indictment for murder under which
a three judge panel convicted the defendant of man-
slaughter in the first degree with a firearm, General
Statutes § 53a-55a,® without specifying under which
subsection of General Statutes § 53a-55 (the statute
involved in this case) the defendant was found to have
committed the manslaughter, the ruling in Marino is
applicable here. See State v. Reid, 193 Conn. 646,
A.2d (1984). We must therefore review the defend-
ant’s claim about the sufficiency of the evidence with
regard to extreme emotional disturbance.
Extreme emotional disturbance is not an element of
the crime of murder. State v. Elliott, 177 Conn. 1, 5,
411 A.2d 3 (1979); People v. Patterson, 39 N.Y.2d 288,
383 N.Y.S.2d 573, 347 N.E.2d 898 (1976). It is, how-
* “(General Statutes] Sec. 53a-55a. MANSLAUGHTER IN THE FIRST DEGREE
WITH A FIREARM: CLASS B FELONY: ONE YEAR NOT SUSPENDABLE. (a) A
person is guilty of manslaughter in the first degree with a firearm when
he commits manslaughter in the first degree as provided in section 53a-55,
and in the commission of such offense he uses, or is armed with and
threatens the use of or displays or represents by his words or conduct that
he possesses a pistol, revolver, shotgun, machine gun, rifle or other fire-
arm. No person shall be found guilty of manslaughter in the first degree
and manslaughter in the first degree with a firearm upon the same trans-
action but such person may be charged and prosecuted for both such offenses
upon the same information.
“(b) Manslaughter in the first degree with a firearm is a class B felony.
for which one year of the sentence imposed may not be suspended or reduced
by the court.”
120A
eae
193 Conn 695 JULY, 1984 | 731
State v. Asherman
ever, a mitigating circumstance which will reduce the
crime of murder to manslaughter. State v. Elliott,
supra, 9. In an indictment for murder, under General
Statutes § 53a-54a, the defendant may raise extreme
emotional disturbance as an affirmative defense,?® in
which case the burden is on the defendant to establish
this defense by a preponderance of the evidence. Gen-
eral Statutes § 53a-12 (b); State v. Zdanis, 182 Conn.
388, 390, 438 A.2d 696 (1980), cert. denied, 450 U.S.
1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981); State
v. Eliott, supra, 6.
Under General Statutes § 53a-55 (a) (2)!! manslaugh-
ter predicated on the mitigating circumstance of
extreme emotional disturbance is a lesser included
offense of murder. See State v. Rodriguez, 180 Conn.
382, 404, 429 A.2d 919 (1980). Under § 53a-45 (c) the
“jury before which any person indicted for murder is
tried may find him guilty of homicide in a lesser degree
than that charged.”’ It follows that in any murder prose-
cution the issue of the lesser included offense of man-
slaughter under § 53a-55 (a) (2) may be raised either
by the defendant by way of an affirmative defense or
by the state where it is warranted by the evidence. Thus
although in a given homicide the state may, in good
faith and where circumstances reasonably warrant,
assume that an accused acted with the most culpable
state of mind, where the evidence is reasonably sus-
ceptible of another conclusion the jury should not be
bound by that assumption and forced by its verdict to
choose only between the offense with the most culp-
© To raise this defense requires no special plea, notice or other formal
assertion by the defendant. State v. Marino, 190 Conn. 639, 651 n.11, 462
A.2d 1021 (1983).
'! The situation which we discuss above is to be differentiated from the
case of a prosecution initiated by the state under the same subsection. In
the latter case the state need only prove the elements of murder because
_the statute specifically provides that extreme ae: 5 disturbance need
not be proved.
121A
732 JULY, 19814 193 Conn 695
State v. Asherman
able state of mind and acquittal. Id. Given the existence
of the requisite mitigating circumstance and compli-
ance with the lesser included offense conditions set out
in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d
414 (1980), failure to give a requested instruction on
the lesser included manslaughter offense would limit
the jury’s function of determining the degree of homi-
cide contrary to § 53a-45 (c). In enacting this man-
slaughter statute the legislature intended to allow the
finder of fact the discretionary power to mitigate the
penalty of murder when presented with a situation
which, under the circumstances, appears to them to
have caused an understandable weakness in one of their
fellows. People v. Casassa, 49 N.Y.2d 668, 680, 427
N.Y.S.2d 769, 404 N.E.2d 1310, cert. denied, 449 U.S.
842, 101 S. Ct. 122, 66 L. Ed. 2d 50 (1980).!* The fact
that the defendant may rely on the mitigating circum-
stance as an affirmative defense to murder does not
mean that by his contrary election he may also circum-
scribe the homicide >ffenses which the jury may con-
sider.
The evidence, necessarily circumstantial; State v.
Rodriguez, supra; is sufficient to support a conviction
of manslaughter in the first degree under circurn-
stances of extreme emotional disturbance. The facts
that the victim’s body contained more than 100 stab
wounds and a bite mark made by the defendant, that
the defendant had not had much sleep during the time
preceding the killing, that on the morning of the kill-
ing he was so clearly under the influence of some drug
or alcohol, that persons who had never seen him before
came to that conclusion, and that he appeared to be
in a tense and agitated state would tend to show that
12 Because the Connecticut penal code has been modeled after its New
York counterpart we have derived sustenance from the New York deci-
sions interpreting its code. State v. EUiott, 177 Conn. 1, 4-5, 411 A.2d 3
(1979).
122A
193 Conn 695 JULY, 1984 733
os ———e
State v. Asherman
the defendant was motivated by more than just a desire
to take life. Taking all of these facts into account the
jury would have been justified in concluding that the
defendant committed the homicide at a time when he
was extremely emotionally disturbed.
A
PUTATIVE “‘HEAT OF PASSION’’ ILLUSTRATION
In discussing extreme emotional disturbance the trial
court commented: “The classic example of such cases
are [sic] when the husband returns home to find his wife
making love to a stranger and then kills one or both
of them. I recall nothing in the events of this nature
but remember, it is your recollection that counts, not
mine.’ The defendant argues that the example of a
“hot-blood”’ killing is not an appropriate example of
an extreme emotional disturbance as defined by Con-
necticut law. We do not completely agree.
To find that a homicide has been committed under
circumstances of extreme emotional disturbance the
trier of fact must find that: (a) the emotional distur-
bance is not a mental disease or defect that rises to the
level of insanity as defined by the penal code; (b) the
defendant was exposed to an extremely unusual and
overwhelming state, that is, not mere annoyance or
unhappiness; and (c) the defendant had an extreme
emotional reaction to it, as a result of which there was
a loss of self-control, and reason was overborne by
extreme intense feeling, such as passion, anger, dis-
tress, grief, excessive agitation or other similar emo- '
tions. State v. Zdanis, 182 Conn. 388, 390-91, 438 A.2d
696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715,
68 L. Ed. 2d 207 (1981). Although a homicide influenced
by an extreme emotional disturbance is not one which
is necessarily committed in the “hot blood” state but
rather can be one brought about by a significant men-
tal trauma that caused the defendant to brood for a
123A
734 JULY, 1984 193 Conn 695
State v. Asherman
long period of time and then react violently, seemingly
without provocation; State v. Elliott, 177 Conn. 1, 7-8,
411 A.2d 3 (1979); nothing that we said in Elliott would
preclude a trier from finding a hot blood homicide to
have occurred under extreme emotional disturbance.
As we pointed out in Elliott, at p. 10, a charge that
limits extreme emotional disturbance to the “‘hot blood”’
stage is erroneous because it is too narrow. It thus
precludes a trier from convicting a defendant of the
lesser degree of homicide. If despite or because of the
“thot blood’’ charge a defendant is convicted of man-
slaughter instead of murder he cannot be heard to com-
plain.
B
PRESUMED INTENT
The defendant claims that the effect of the trial
court’s instruction that “[e]very person is presumed to
intend the natural and necessary consequences of his
or her acts” was either to create a conclusive presump-
tion of intent under certain circumstances or to shift
to the defendant the burden of persuasion and that in
either event this instruction denied to the defendant
- a fair trial. Sandstrom v. Montana, 442 U.S. 510, 524,
99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). The charge*®
in this case, when examined in context, is no different
from similar charges which we have examined in the
18 “Now, intent is a mental process. The person's intention may be inferred
from his conduct. Every person is presumed to irtend the natural and neces-
sary consequences of his or her acts. It is often impossible and never neces-
sary to prove criminal intent by direct evidence. Ordinarily, intent can be
proved only by circumstantial evidence, as I have explained that term to
you. What a person's purpose or intention has been is necessarily very
largely a matter of inference. A person may take the stand and testify
directly as to what his or her purpose or intention was, and that testimony
you can believe or not according to whether or not it warrants belief, but
no witness can be expected to come here and testify that he looked into
another person's mind and saw therein a certain purpose or intention. The
only way in which a Jury can determine what a person's purpose or inten-
124A
193 Conn 695 JULY, 1984 735
State v. Asherman
past. In those cases we have found no basis for revers-
ible error when the trial court defined the presump-
tion in permissive terms and left it to the jury to decide
whether the state had proven intent beyond a reason-
able doubt. State v. Miller, 186 Conn. 654, 668, 443
A.2d 906 (1982) (and cases cited therein). Upon exami-
nation of the challenged instruction we find no basis
for reaching a different result in the present case.
VI
JUROR MISCONDUCT
The defendant moved for a new trial on a number
of grounds, two of which he has pressed on appeal.
These are two instances of juror misconduct, one
involving the use of a dictionary definition of “‘infer-
ence,’’ the other concerning the use of nonevidential
material in conducting an experiment during deliber-
ations. After a hearing the trial court denied the motion
on both grounds. We find no error.
A motion for a new trial is addressed to the sound
discretion of the trial court and is not to be granted
except on substantial grounds. Bernier v. National
Fence Co., 176 Conn. 622, 628, 410 A.2d 1007 (1979).
If the motion is based on juror misconduct “‘{t]he rule
extracted from the cases seems to be, that however
improper such conduct may have been, yet if it does
tion was at a given time, aside from that person’s own testimony, is by
determining what that person’s conduct was and what the circumstances
were surrounding his conduct, and from those infer what his or her pur-
pose or intention was. To draw such an inference is not only a privilege,
but it is also the duty of the Jury provided, of course, the inference drawn
is a reasonable one. In this case, therefore, it will be part of your duty to
draw all reasonable inferences from the conduct of the accused in the light
of the surrounding circumstances as to what purpose or intention was in
his mind at various times.
“In order for the accused to be tound guilty of the charge of murder,
you must find beyond a reasonable doubt that he had an intent to cause
the death of Michael Aranow. If you do not find proven beyond a reason-
able doubt that the accused had that intent, then he is not guilty of murder.”
125A
736 JULY, 1984 193 Conn 695
State ». Asherman
not appear that it was occasioned by the prevailing
party, or anyone in his behalf; if it [does] not indicate
any improper bias upon the juror’s mind, and the court
cannot see, that it either had, or might have had, an
effect unfavorable to the party moving for a new trial;
the verdict ought not to be set aside.’’ Pettibone v.
Phelps, 13 Conn. 445, 450 (1840); State v. Watkins, 9
Conn. 46, 51 (1831).
Juror misconduct which results in substantial preju-
dice to the defendant is not to be tolerated. But not
every irregularity in a juror’s conduct compels rever-
sal. ‘The dereliction must be such as to deprive the
defendant of the continued, objective and disinterested
judgment of the juror, thereby foreclosing the accused’s
right to a fair trial.” Nelson v. United States, 378 A.2d
657, 660 (D.C. 1977); United States v. Fay, 238 F. Sup.
1005, 1007 (S.D.N.Y. 1965). Consideration of extrin-
sic evidence is presumptively prejudicial because it
implicates the defendant’s constitutional right to a fair
trial before an impartial jury. State v. McCall, 187 Conn.
73, 80 444 A.2d 896 (1982). A presumption of preju-
dice may also arise in cases involving communications
between a juror and third persons. Remmer v. United
States, 347 U.S. 227, 74S. Ct. 447, 98 L. Ed. 650 (1954)
(attempted jury tampering); Aillon v. State, 168 Conn.
541, 547-48, 363 A.2d 49 (1975) (ex parte communica-
tion between judge and juror). But unless the nature
of the misconduct on its face implicates his constitu-
tional rights the burden is on the appellant to show that
the error of the trial court is harmful. Aillon v. State,
supra, 547; State v. L'Heureux, 166 Conn. 312, 323,
348 A.2d 578 (1974).
A
USE OF DICTIONARY DEFINITION OF “INFERENCE”
The trial court found that during the deliberations
Juror Streib read a definition of the word ‘‘inference”’
126A
OS a ra
193 Conn 695 JULY, 1984 737
State vr. Asherman
which he had copied from a Funk & Wagnall diction-
ary. The definition as read to the jury is as follows:
“Item 1, that which is inferred; a deduction or conclu-
sion; Two, the act or process of inferring; Three, loosel y
a conjecture . . . ; Four, is the comprehensive term
for the forma] drawing of conclusions; it includes both
induction and deduction. Deduction is the inferring of
a universal or general rule from instances. Deduction
is the reverse process of drawing a conclusion as to a
particular instance from general premises.” The defi-
nition particularly objected to is “loosely, a conjecture.”
To begin with, the definition of words in our stan-
dard dictionaries is taken as a matter of common knowl-
- edge which the jury is supposed to possess. Dulaney
v. Burns, 218 Ala. 493, 119 So. 21 (1928). Therefore
the fact that one juror tells another juror what the other
juror is supposed to know does not qualify to raise a
presumption of prejudice. Prejudice must be demon-
strated. Shultz v. State, 417 N.E.2d 1127 (Ind. App.
1981). In this case the claim of prejudice is that the jury
might have believed that in drawing inferences they
were entitled to rely on guess, surmise or conjecture.
The trial court, pointing out that its charge to the jury
was lengthy and complete on the word “inference” and
that the jury asked that the part of the charge involv-
ing circumstantial evidence and inference be repeated,
could find no such prejudice and neither can we. Not
only did the court give the jury the customary instruc-
tion that they must accept the law from the court but
during the discussion of inferences cautioned that “t]he
inference you draw, however, must not be a guess or
surmise upon the evidence but must be from a fact
which the evidence has established. Inferences that you
may draw from these established facts must be logical
and reasonable and well-founded upon the facts which
have [been] proven in the trial of the case.” In the
absence of a clear indication to the contrary, we must
127A
738 JULY, 1984 193 Conn 695
State ». Asherman
presume that the jury followed this instruction. State
v. Griffin, 175 Conn. 155, 160, 397 A.2d 89 (1978).
We hasten to add that the fact that we have found
no error in this case does not mean that a trial judge
is authorized to furnish a dictionary to a jury upon their
request. There may be situations where furnishing
a dictionary to a jury may create a presumption of
prejudice arising out of injecting unauthorized infor-
mational and definitional material into the jury instruc-
tions; State v. Holmes, 17 Ore. App. 464, 522 P.2d 900
(1974); but that is not this case.
B
EXPERIMENT BY JURORS IN DELIBERATION ROOM
The defendant claims that it was prejudicial for Juror
Turner surreptitiously to bring into the jury room a belt
and shirt, not introduced into evidence as exhibits, and
to utilize these articles in an experiment in which one
juror tried to lift another juror lying prone on the floor
and carry him five or six feet. The defendant maintains
that the introduction of articles not admitted into evi-
dence and their use in conducting an experiment denied
the defendant his right to test the evidence or to ques-
tion the premises, the methods or the results of the
experiment and that such actions of the jury constitute
a denial of the defendant’s rights of confrontation, of
counsel and of cross-examination and also denied him
a fair trial.
After hearing the evidence on the defendant’s
motion, the trial court found that the jury conducted
the experiment to test the state’s claim that a single
person such as the defendant could have lifted the vic-
tim and carried him several feet, and that the experi-
ment was suggested by the activities of the defendant’s
counsel and his investigator in reenacting part of the
same experiment in the courtroom before the jury. The
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193 Conn 695 JULY, 1984 739
State v. Asherman
court further found that the items which were brought
into the jury deliberating room, a shirt and a belt, were
common everyday items which practically every male
wears, and that the experiment was conducted in a
manner that has reasonably been consistent with the
testimony presented to the jury and merely tested the
credibility of that testimony. The trial court concluded
that the state had proved beyond a reasonable doubt
that any misconduct of the jury in this regard was
harmless and without prejudice to the defendant. We
agree.
“In the constitutional sense, trial by jury in a crimi-
nal case necessarily implies at the very least that the
‘evidence developed’ against a defendant shall come
from the witness stand in a public courtroom where
there is full judicial protection of the defendant’s right
of confrontation, of cross-examination, and of counsel.”
Turner v. Louisiana, 379 U.S. 466, 472-73, 85 S. Ct.
546, 13 L. Ed. 2d 424 (1965). ‘The problems presented
by an experiment conducted by jurors on their own defy
precise, systematic analysis. A juror is expected to
draw upon his general knowledge and experience in
deciding the case, and he is encouraged to participate
in full and robust debate and deliberations with his fel-
lows in reaching a verdict. However, he should not con-
sider facts relating to the case unless introduced at
trial under constitutional and legal safeguards .. . .
Accordingly, when a juror passes beyond the record
evidence in reaching a decision, whether a new trial
will be granted depends upon the magnitude of the
juror’s deviation from his proper role, the degree to
which the accused was deprived of the benefits of the
constitutional and statutory safeguards, and the likeli-
hood that the impropriety influenced the jury’s verdict.
All of these elements must be weighed in determining
whether there is a reasonable possibility that the
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740 JULY, 1984 193 Conn 695
State vr. Asherman
defendant's right to a fair trial has been prejudiced.”
State v. Graham, 422 So. 2d 128, 132 (La. 1982).
That it was inappropriate for Juror Turner to bring
the shirt and belt into the deliberating room for exper-
imental purposes is beyond dispute. But in themselves
neither item proved anything. Moreover, the experi-
ment was not designed to test whether the victim’s
body had in fact heen moved. It was apparent from an
examination of the area that there was a primary and
secondary crime scene at the lookout and that the body
had been lifted five and one-half to six feet from the
primary to the secondary scene. Thus the question
posed to the jury by the defendant’s challenge to the
state’s theory about how the crime had been committed
was whether it was likely that the defendant could have
carried the victim from one place to the other because
the victim outweighed him by some fifteen pounds. In
the experiment the juror who played the role of the vic-
tim outweighed the lifting juror by some nineteen
pounds. Thus the situations were comparable. Indeed,
the defendant does not challenge the reliability of the
experiment for the limited purpose for which it was
used. Although the victim was not wearing a belt, the
reason a belt was used by the jury can be explained by
the fact that when the defendant’s attorney had his
investigator play the role of the victim in a partial
demonstration before the jury, the investigator was
. wearing a belt. Since the jury were well aware not only
of the limited purpose of the experiment but also of the
fact that the belt was being used to avoid the possibil-
ity of ripping the pants of the victim-juror the possi-
bility that the jury could have been influenced by the
use of a belt in the experiment is remote. Nor does the
defendant contend otherwise. In the circumstances, the
trial court’s finding that the jury experiment was not
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193 Conn 695 JULY, 1984 741
State v. Asherman
prejudicial to the defendant not being clearly erroneous,
its denial of the defendant’s motion for a new trial on
the ground stated cannot be disturbed.
The cases cited by the defendant are distinguishable.
With one possible exception which we discuss infra they
all have one thing in common, namely, the unautho-
rized introduction into the deliberating process of a new
evidential fact. Bulger v. McClay, 575 F.2d 407 (2d Cir.
1978) (unauthorized discovery of defendant’s address
which was located at some distance from the crime
scene and therefore tended to discredit his excuse for
being at a particular bus stop near the scene of the
crime); Durr v. Cook, 442 F. Sup. 487 (W.D. La. 1977)
(jury foreman reenacted the homicide outside of the
jury room and reported the results to his fellow jurors);
People v. Holmes, 69 Ill. 2d 507, 372 N.E.2d 656 (1978)
(several members of jury made independent investiga-
tion of a type of shoe claimed: to be worn by the
assailant); People v. Brown, 48 N.Y.2d 388, 423 N.Y.S.
2d 461, 399 N.E.2d 51 (1979) (juror conducted indepen-
dent test of visibility, using motor vehicle different from
that described in the evidence and reported results to
the jury); People v. Crimmins, 26 N.Y.2d 319, 310
N.Y.S. 2d 300, 258 N.E.2d 708 (1970) (jury made
unauthorized visit to the neighborhood of the crime
scene).
In United States v. Beach, 296 F.2d 153 (4th Cir.
1961), a perjury case, the defendant had testified before
the grand jury that he did not know that certain men
were using a certain room in a certain home, that he
had not seen one of the men in the home and that he
had not heard certain machinery in the home. The men
were evidently connected with a numbers operation and
had put in their rented room certain adding machines
at which they worked for several hours daily. After the
jury retired to consider their verdict, they sent back
a message requesting the court to send them an elec-
131A
742 AULY, 1984 193 Conn 695
‘St: lev. eter rman
tric drop cord. The defense attorney w was then absent
from the courtroom. The court had an electric drop cord
delivered to the jury and so advised the defense coun-
sel on his return to the courtroom. The defense coun-
sel objected on the ground that the jury obviously
wanted the cord in order to test the amount of noise
made by the running of the adding machines. The
machines had been introduced in evidence and sent to
the jury in the jury room. However, when being oper-
ated as part of the numbers operation each machine
sat on a foam rubber pad two inches thick. The pad-
ding had been removed from the machines when the
machines were introduced into evidence and was sep-
arately introduced. Because of the possibility that the
jury might conduct the experiment without the pad-
ding and, therefore, under conditions dissimilar to the
circumstances which existed where the numbers oper-
ation was being carried on, the fourth circuit reversed.
Although there are some similarities between Beach
and the present case, the significance of the experiment
in Beach to the issues in the case and the greater risk
of prejudice involved in that case also distinguishes it
from the case at bar.
Even were we to conclude that there was a reason-
able possibility of prejudice from the use of the belt in
the experiment, the other circumstantial evidence so
overwhelmingly points to the defendant’s guilt of man-
s!aughter in the first degree that the trial court was
correct in concluding that any error created by juror
misconduct was harmless beyond a reasonable doubt.
There is no error.
In this opinion the other judges concurred.
132A
APPENDIX L
ORDER
THE MOTION OF THE DEFENDANT, STEVEN
M. ASHERMAN, FILED ON JULY 26, 1984, FOR
REARGUMENT, HAVING BEEN PRESENTED TO THE
COURT, IT IS HEKEBY ORDERED DENIED.
BY THE COURT,
FRANCIS J. DRUMM, JR.
CRIEF CLERK
SEPTEMBER 26, 1984
133A
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