# Appendix — Asherman v. Connecticut > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1765%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1985 - **Citation:** 470 U.S. 1050 ## Text g4-8353" [TED 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 — 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 128A 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 129A 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 130A 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1765%3A2. Public record. Not legal advice.