Opposition Brief — Asherman v. Connecticut

6) F trice-Supreme Court, US. |

>

FILED

NO. 84-853 FEB 15 1985

In The a

Supreme Court Of Che United States

NOVEMBER TERM, 1984

STEVEN M. ASHERMAN,

Petitioner,

Ve

STATE OF CONNECTICUT,

Respondent.

BRIEF IN OPPOSITION TO THE PETITION FOR

A WRIT OF CERTIORARI TO

THE CONNECTICUT SUPREME COURT

JOHN M. MASSAMENO

Assistant State’s Attorney

Appellate Bureau

Office of the Chief State’s

Attorney

340 Quinnipiac Street

P.O. Box 5000

Wallingford, CT 06492

(203) 265-2373

Counsel for Respondent

BEST AVAILABLE COPY

ay

QUESTIONS PRESENTED

Whether the jury's consideration of a

dictionary definition of the word

"inference" during jury deliberations

violated the petitioner's due process

right to a fair trial.

Whether the jury's performance of an

experiment, which introduced into the

case no new evidential fact, was

conceded below to have been reliable,

and was suggested by the conduct of

defense counsel at trial, violated the

petitioner's due process right to a fair

trial.

Whether the trial court's instructions

to the jury violated this court's

holding in the case of Sandstrom vy.

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

Whether the limitations placed by the

trial court on cross-examination of two

state's witnesses violated the petition-

er's confrontation and due process.

Whether there was sufficient evidence to

support the jury's verdict.

Whether the consumptive testing per-

formed by the State denied the petition-

er his right to due process of law.

ii

TABLE OF CONTENTS

Page

GURETIONS PRESENTED . . «© «© © © © ow @ oo oh

rr (5 6 » «© eo we ee wee

Dame Ge tee CABR . 1 s ts te ew ow ow oe lk

I. THE PETITIONER HAS NOT MADE A SUBSTAN-

TIAL CLAIM THAT HE WAS DEPRIVED OF

HIS RIGHT TO A FAIR TRIAL BY ANY

JUROR MISCONDUCT THAT OCCURRED BE-

LOW OR THAT SUCH A CLAIM IS OTHER-

WISE WORTHY OF REVIEW ....... 28

A. Facts Relating To the Petition-

ers Claim e e e e e e e e ” e 7 8

B. The Conduct Complained Of Did

Not Deprive the Petitioner Of A

a EN Ee eee eee |

Eke THE PETITIONER'S SANDSTROM CLAIM

Is FRIVOLOUS . oa -_ - « . . s e a . 14

III. THE PETITIONER'S CLAIM THAT HIS

OPPORTUNITY TO CROSS EXAMINE TWO

STATE'S WITNESSES WAS UNCONSTITU-

TIONALLY RESTRICTED IS ENTIRELY FACT

LADEN AND UNIQUE TO THIS CASE, AND

FAILS TO PRESENT A SUBSTANTIAL FED-

ERAL QUESTION .... =. 6 « « « « 16

IV. THERE WAS AMPLE EVIDENCE TO SUPPORT

THE JURY'S DECISION TO MITIGATE THE

CRIME PROVED FROM MURDER TO MAN-

SLAUGHTER, AND THE QUESTION PRESENT-

ED WAS, IN ANY EVENT, EITHER NOT

PROPERLY RAISED BELOW OR IS NOT

APPROPRIATE FOR REVIEW BY THIS

kn co * ek = % «© @ « « « «+ « « 2B

iii

V. THE CONSUMPTIVE TESTING, WHICH

OCCURRED PRIOR TO THE PETITIONER'S

ARREST, DID NOT DEPRIVE HIM OF ANY

DUE PROCESS RIGHTS ..... ++ « «24

CONCLUSION o 4 e e e e e e 7. s e . e e . -29

iv

TABLE OF AUTHORITIES

Cases: Page

Brady v. Maryland, 373 U.S. 83 (1963) . .25

Davis v. Alaska, 415 U.S. 308 (1974) .. 19

California v. Trombetta, ss F P

6 Me @ikme: °) awe Fe

Hoover v. Ronwin, U.S. _, 104

S. Ct. 1989 (1984) . . : 13, 23

Illinois v. Gates, U.S. _, 103

So Ghee SSA0 CATS) « « 6 « © © 0 @ Sy 23

Jackson v. Virginia, 443 U.S. 307

(1979) co ” . * . . e e e e e + s . e e 20

Michigan v. Tyler, 436 U.S. 499 (1978) . 24

Partain v. State, 238 Ga. 207, 232

S.E.2d 46 (1977) — * ~ *

- « 28

People v. Harris, 84 App. Div. 2d 63

N.¥.S.2d 520 (2d Dept. 1981) ..... 13

People v. Kurena, 87 Ill. App. 3d 771,

410 N.E.2d 227 (1980) . -14

Poole v. State, 291 So. 2d 723 (Miss.

1974) e e e « e o e « . e e o s e e . -28

Remmer v. United States, 347 U.S. 227

(1954) . . ° . e . « . 10

Rushen v. Spain, _ U.S. _, 104

Ds CEs 453 (1983) . o « « * e e e e e -14

Sachem's Head Association v. Lufkin,

166 Conn. 365, 362 A.2d 519 (1975) .. 23

Vv

Cases-Continued: Page

Sandstrom v. Montana, 442 U.S. 510

(1979) 15, 16

See v. State, 511 P.2d 1076 (Alaska

ns + « «<<. 8 * + a =e =e

Smith v. Phillips, 455 U.S. 209 (1982) .10,

e e e e e e . e e e . e e © e os e Ll» 14

State v. Atkins, 369 So. 2d 389 (Fla.

App. 1979) e o o « = e e 7 . ae + . . o 28

State v. Clutier, 302 A.2d 84 (Me.

ee f . b «. «© + 6 6 6 0: el Se wo! oe ee

State v. Elliot, 177 Conn. 1, 411 A.2d

3 (1979) o © e * . . . . . . om . © . . 21

State v. Gooch, 186 Conn. 17, 438 A.2d

867 ( 982) . . « . . . oo ” © o - 7 . . 18

State v. Herrera, 365 So. 2d 399 (Fla.

“2 > | ee oe en ee

State v. Lightle, 210 Kan. 415, 502 F.2d

834 (1972) e . . . e . e e ° . e e o e 28

State v. Thompson, 524 P.2d 1115 (Mont.

1974) ” e e e o o . o e + 7 o e © . e -13

Ulster County Court v. Allen, 442 U.S.

PC ENEwE 6 6 6-0-6 «© 8 @ @ © 0 « «6 @ SS

United States v. Callahan, 442 F. Supp.

Rae Gs WRMs LOPE) «6 « te st ew eo ew 8 le A

United States v. Hill, 688 F.2d 18 (6th

ate 1982) . e . . © © . . . o o e « e ll

United States v. Johnston, 268 U.S. 220

(1925) e . . . . . . o . o * ~ . . . . 19

vi

a N

Cases-Continued:

Wainwright v. Goode, 104 S. Ct. 378

(1983) . . Ts ot oe oe oe

Rules of Court:

Conn. Prac. Bk. § 732-38

Conn. Prac. Bk. § 758

Conn. Prac. Bk. § 759

Conn. Prac. Bk. § 3060F

Conn. Prac. Bk. § 3063

Statutes:

Conn. Gen. Stat. 53a-55(a) (2)

(Rev. to 1979) oe

vii

Page

21

28

22

22

23

23

-20

STATEMENT OF THE CASE

On April 29, 1980, the petitioner was

convicted of manslaughter in the first

degree in the stabbing death of Michael

Aranow. The facts upon which the conviction

rests are set out in the opinion of the

Connecticut Supreme Court:

On a Saturday evening, July 29,

1978, the defendant and the victim,

who were both students at the Columbia

Medical School, traveled from the

victim's family home in Hastings-on-

Hudson, 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 introductions, 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 particularly “buggy” night,

Philip offered to them some insect

Spray. The four parted, but neither

the defendant nor the victim went to

Philip's cabin later that night.

The 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 unex-

plained emotion or circumstance,

induced perhaps by a mind-altering

drug, led the defendant to slay the

victim brutally by stabbing 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 defendant 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 off 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

Girt 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 defendant appeared to

be on drugs or to have been drinking.

In response to Jones’ questions avout

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

- 3-

a

view, when they were approached by two

drunken men, one of whom had a gun.

According to the defendant, the men

asked the victim and him for some-

thing, 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, saying that

he had seen 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 proceed-

ed on foot towards the lookout. Jones

had taken his car and gcne 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. Hie ap- |

proached the body while the three

oie

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 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

influence of something.

Later, the defendant was asked to

reduce his statement to writing at the

New Hartford Town dHall. 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 produced a key ring on which

a red hair, similar to the victim'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 the 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, 1° «ing down, said "no." Before

he left the New Hartford Town Hall, he

shook hands with DesChamps, thanked

him for the way he had treated him,

and promised to come back some day and

tell him what had happened on the

hill.

The investigation of the scene

began upon discovery of the body and

continued for a number of days

thereafter. An expert in crime

analysis testified that there was no

Sign of a struggle on the small path

leading to the lookout or at the

nearby road, but 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. 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 disturbance to

the path or the vegetation surrounding

it.

Expert dog track evidence was

presented by Trooper Andrew Rebmann

who handled the bloodhound "Clem."

- « « The track demonstrated that the

victim had never run from any assai-

lant, 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

that would substantiate the defen-

dant'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, testified that human blood

was found in the knees and surrounding

front area of the defendant's blue

jeans and was especially apparent on

the front inside portion of the jeans.

Other expert testimony indicated

that the hair on the key ring origina-

ted 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 odontolo-

gist, testified, after exhaustive

comparative analysis that, to a

"reasonable degree of dental certain-

ty," 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 manslaugh-

ter in the first degree; General

Statutes § 53a-55; and was sentenced

thereon to a prison term of not less

than seven years nor more- than

fourteen.

State v. Asherman, 193 Conn. 695, 697-704,

478 A.2d 227 (1984).

The petitioner appealed his conviction

to the Connecticut Supreme Court, which by

unanimous decision, affirmed the judgment.

Id. at 697. It also rejected the petition-

er's motion to reargue, which was followed

by this petition for a writ of certiorari.

I. THE PETITIONER HAS NOT MADE A SUBSTAN-

TIAL CLAIM THAT HE WAS DEPRIVED OF HIS

RIGHT TO A FAIR TRIAL BY ANY JUROR

MISCONDUCT THAT OCCURRED BELOW OR THAT

SUCH A CLAIM IS OTHERWISE WORTHY OF

REVIEW

A. Facts Relating To the Petitioner's

Ciaim

During the course of jury delibera-

tions, one juror read to the others a

definition of the word “inference” that he

had copied from a Funk & Wagnall dictionary.

The definition read to the jury follows:

Item 1, that which is inferred; a

deduction or conclusion; Two, the act

Or process of inferring; Three,

loosely a conjecture .. .; Fourth, is

the comprehensive term for the formal

drawing of conclusions; it includes

both induction and deduction. Deduc-

tion [sic] 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.

Petitioner's App. at 127A. The definition

that the petitioner particularly objects to

is “loosely, a conjecture."

Another juror brought into the jury

room a belt and a shirt, not introduced into

evidence as exhibits, in order to use these

items 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 purpose of the experiment, suggested by

the conduct of defense counsel during the

course of the trial, was to test the

plausibility of the State's theory of the

case, as well as that proffered by the

petitioner. Petitioner's Brief at 128A,

130A.

B. The Conduct Complained Of Did Not

Deprive the Petitioner Of A Fair

Trial

The Connecticut Supreme Court's

careful treatment of the petitioner's claim

discloses that the defendant's right to a

fair trial was not violated.l The Court

first observed that juror misconduct

deprives a criminal defendant of a fair

trial when it results in “substantial

prejudice." Petitioner's App. at 126A. In

the absence of conduct that by its nature

would create a presumption of prejudice;

see, e.g., Remmer v. United States, 347 U.S.

1 Although the defendant claims that several consti-

tutional rights were violated by the alleged juror

misconduct, Petitioner's Brief at 14, 18, 20, 22-23,

these various formulations of his claim are properly

subsumed by the fair trial guarantee implicit within the

due process clause. See Smith v. Phillips, 455 U.S.

209, 219 (1982) (prosecutorial misconduct resulting in

non-disclosure of potential juror bias analyzed under

fair trial guarantee of due process clause).

- 10 -

227 (1954) (evidence that juror had been

offered a bribe); the burden of proving the

existence of prejudice, said the court,

would rest on the defendant. See Smith v.

Phillips, 455 U.S. 209, 215-18 (1982) (claim

of juror bias); United States v. Hill, 688

F.2d 18 (6th Cir. 1982) (dictionary in jury

room); Petitioner's App. at 126A.

With respect to the jury's exposure to

the dictionary definition of inference, the

Connecticut Supreme Court found no possible

prejudice to the defendant based on the

following factors: (1) the definition of

words used in standard dictionaries is taken

as a matter of common knowledge which the

jury is supposed to possess; (2) the

instructions to the jury, which emphatically

cautioned against the drawing of inferences

based simply upon a "guess or surmise,"

amply guarded against the use by the jury of

anything but “logical and reasonable

- ll -

[inferences] well-founded upon the facts"

proved. Petitioner's App. at 127A (quoting

instructions given); and (3) there was no

evidence in the record to rebut the presump-

tion that the jury obeyed these instruc-

tions. Petitioner's App. at 127A-128A. A

colorable claim that reference to the

dictionary definition resulted in the

deprivation of a fair trial cannot arise

from these facts.

The petitioner's claim with respect to

juror experimentation also fails to raise a

substantial federal claim worthy of review

by this Court. That is so for several

reasons: (1) Although the juror conduct was

properly disapproved by the Connecticut

Supreme Court, it’clearly did not involve

introduction of any “new evidential fact"

into the case; Petitioner's App. at 129A-

131A; (2) the experiment tested the theories

of the parties and was well within the

bounds of the evidence introduced at trial;

Petitioner's App. at 129A, 131A; (3) the

experiment was itself suggested by a similar

demonstration conducted by defense counsel

during the course of the trial; Petitioner's

App. at 128A-12S9A; (4) no claim was made at

trial or on appeal that the experiment was

somehow intrinsically, or as conducted,

unreliable.2 Petitioner's App. at 130A.

Hence this record cannot support a

substantial claim that the experimentation

deprived the petitioner of a fair trial. See

United States v. Callahan, 442 F. Supp.

1213, 1225-26 (D. Minn. 1978); State v.

Thompson, 524 P.2d 1115, 119-20 (Mont.

1974); People v. Harris, 84 App. Div. 2d 63,

2 Nevertheless, in his petition, the petitioner

Claims for the first time in any court that, because the

items used in the experiment "differed substantially

form the evidence," the experiment was "unreliable."

Petition at 26. This claim, factually unsupported, is

not appropriate for review, not having been made below.

See Hoover v. Ronwin, U.S. __, 104 S. Ct. 1989,

1998 n.25 (1984); Illinois v. Gates, U.S. __, 103

S. Ct. 2317, 2321-22 (1983).

» 13 «

445 N.Y.S.2d 520, 546 (2d Dep't 1981);

People v. Kurena, 187 Ill. App. 3d 771, 410

N.E.2d 277 (1980). This is especially so in

light of the other circumstantial evidence

that "so overwhelmingly point[ed] to the

[petitioner's] guilt." Petitioner's App. at

132A (opinion of the Connecticut Supreme

Court). Cf. Rushen v. Spain, _ U.S. __,

104, S. Ct. 453, 456-57 (1983) (harmless

judicial misconduct). Juror misconduct that

does not undermine the reliability of the

jury verdict simply does not jeopardize the

fair trial guarantee. Cf. Smith v. Phil-

lips, 455 U.S. 209, 220-21 (1982) (prosecu-

torial misconduct).

Il. THE PETITIONER'S SANDSTROM CLAIM IS

FRIVOLOUS

The petitioner claims that the trial

court's instruction that “[e]very person is

presumed to intend the natural and necessary

consequences of his or her acts" had the

—)

effect of either creating a conclusive

presumption of intent or shifting to the

petitioner the burden of persuasion on the

issue of intent, in violation of the hoiding

of Sandstrom v. Montana, 442 U.S. 510, 524

(1979). But this Court has emphasized that

such an instruction violates the Sandstrom

holding only when the instruction, viewed

with the surrounding language, is cast in

mandatory, and not permissive terms. Id. at

517; Ulster County Court v. Allen, 442 U.S.

140, 157 (1979).

Examination of the instructions given

here establishes the presumption's permis-

Sive and non-mandatory nature. See T.

August 7, 1979, at 39-40 ("intention may be

inferred from his conduct"; what a person's

intention has been is “necessarily very

largely a matter of inference"; [t]o draw

such an inference is not only a privilege,

but it is also the duty of the jury provid-

» 1§ «

ed, of course, the inference drawn is a

reasonable one"; jury has a “duty to draw

all reasonable inferences").

Under the circumstances, no real claim

under Sandstrom _v. Montana, supra, is

tenable here.

III. THE PETITIONER'S CLAIM THAT HIS

OPPORTUNITY TO CROSS EXAMINE TWO

STATE'S WITNESSES WAS UNCONSTITUTION-

ALLY RESTRICTED IS ENTIRELY FACT LADEN

AND UNIQUE TO THIS CASE, AND FAILS TO

PRESENT A SUBSTANTIAL FEDERAL QUES-

TION

The petitioner seeks review of a claim

that he was deprived of his confrontation

rights when he was prevented at trial from

posing several questions to two expert

witnesses who testified for the State. One

expert witness testified that the bite mark

located on the victim's shoulder blade had

been made by the petitioner. The other

witness testified, in the State's case on

rebuttal, that the petitioner could not be

= 16 -

excluded as the person who bit the victim.

Petitioner's App. at 110A. The petitioner

sought to inquire about (1) one witness’

hobby of collecting police accoutrements,

thus attempting to show his close relation-

ship to law enforcement authorities; (2) a

professional and social relationship between

the two witnesses; and (3) the accuracy of

the opinion of one witness in another case.

Petitioner's App. at 718-19.

As to the first claim, the Connecticut

Supreme Court accurately pointed out that

the witness’ close relationship to the State

Police, including his then status as state

police surgeon with the rank of captain, had

been amply demonstrated by other evidence.

Petitioner's App. at 719. The court

rejected the second claim on the ground

that, while evidence of a relationship

between witnesses might have some probative

value on the issue of credibility, the

» 17

matter would fall within the discretion of

the trial court. Petitioner's App. at 220.

Given the difference between the testimony

of the two witnesses and the ample opgportun-

ity the petitioner had to test the reliabil-

ity of the testimony given, the Supreme

Court found neither a constitutional

violation nor an abuse of discretion.

Petitioner's App. at 1lllA. The claim to the

contrary is without persuasive force.

Finally, the petitioner claims that

under the confrontation clause of the Sixth

Amendment, he was entitled to ask questions

of one expert that would have revealed that

his opinion was erroneous in another case.

The defendant, who failed to make an offer

of proof, as required by state law; see

State v. Gooch, 186 Conn. 17, 24, 438 A.2d

867 (1982); never established that the prior

opinion was in fact erroneous. Moreover, the

inguiry would clearly have required a

- 18 -

lengthy excursion into speculative and

collateral matters and may well have

resulted in a trial within a trial. The

Sixth Amendment does not require such a

result. Instead, examination of all of the

cross-examination discloses that the jury

was given ample basis for testing the

reliability of the witness. See Davis v.

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

At a minimum, these are fact-laden and

unique claims, the review of which would not

at all advance the jurisprudential role of

this Court. See United States v. Johnston,

268 U.S. 220, 227 (1925) (Holmes, J.) (this

Court does not grant certiorari "to review

evidence and discuss specific facts").

- 19 -

IV. THERE WAS AMPLE EVIDENCE TO SUPPORT

THE JURY'S DECISION TO MITIGATE THE

CRIME PROVED FROM MURDER TO MANSLAUGH-

TER, AND THE QUESTION PRESENTED WAS,

IN ANY EVENT, EITHER NOT PROPERLY

RAISED BELOW OR IS NOT APPROPRIATE FOR

REVIEW BY THIS COURT

The petitioner claims that the jury

ought not to have been instructed on the

lesser included offense of murder, murder

under extreme emotional disturbance, which

is classified as manslaughter in the first

degree. See Conn. Gen. Stat. § 53a-55(a) (2)

(Rev. to 1979). One aspect of the claim,

that there was insufficient evidence of

extreme emotional disturbance, involves a

question of state law and is entirely

without basis. The other, that the instruc-

tion deprived the petitioner of equal

protection of the laws, was never raised

below.

While the due process clause requires

that there be sufficient evidence of every

element of an offense; see Jackson vy.

- 20 «-

Virginia, 443 U.S. 307, 316 (1979); the

interpretation of the elements of a state

Statute is a question of state law. See

Wainwright v. Goode, U.S: _, 104 S. Ct.

378, 382 (1983). Thus, it is for the

Supreme Court of the State of Connecticut to

define the parameters of "extreme distur-

bance” as that term is used in Conn. Gen.

Stat. § 53a-55(a)(2) (Rev. to 1979). This

the Court has done. See State v. Elliot, 177

Conn. 1, 7-10, 411 A.2d 3 (1970). Its con-

clusion that the evidence was sufficient to

permit the jury to mitigate the seriousness

of the crime charged cannot be impeached. 3

3 As the Connecticut Supreme Court noted:

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 killing 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 che defendant

was motivated by more than just a desire to

take life. Taking all of these facts into

- 21 «

The petitioner further claims that he

was deprived of the equal protection of the

laws because a defendant raising his extreme

emotional disturbance as an affirmative

defense to a charge of murder must provide

prior notice to the State; Conn. Prac. Bk.

§§ 758, 759 (1978); while the trial court

may, at the State's request and without

prior notice by the State, instruct the jury

on the mitigated crime of manslaughter

(murder under extreme emotional disturbance)

where the evidence warrants. As the peti-

tioner acknowledges, however; Petition at

13; this claim was mentioned for the first

time in the State courts in a motion to

reargue, filed after final judgment in the

Connecticut Supreme Court. The Court

summarily rejected that motion.

account the jury would have been justified in

concluding that the defendant committed the

homicide at a time when he was extremely

emotionally disturbed.

Petitioner's App. at 122A-123A.

o» 29 «

The petitioner's failure to comply

with the fundamental and virtually universal

rule of appellate procedure that requires

parties to identify and brief the claims

they seek to make on appeal is without

excuse. See Conn. Prac. Bk. §§ 3063, 3060F;

Sachem's Head Ass'n yv. Lufkin, 168 Conn.

365, 366, 362 A.2d 519 (1975) (failure to

brief issue constitutes abandonment). This

Court will not issue a writ of certiorari to

review claims not properly raised below.

Hoover v. Ronwin, U.S. __, 104 S. Ct.

1989, 1998 n.25 (1984); Illinois v. Gates,

_. UsBe _, 103 S. Ct. 2317, 2321-22 (1963).

Moreover, the Connecticut Supreme Court's

Summary rejection of the claim made in the

motion to reargue may properly be sustained

on alternate, independent state grounds:

failure to comply with the state rules of

» 23 «

court. Michigan v. Tyler, 436 U.S. 499, 512

n.7 (1978).4

V. THE CONSUMPTIVE TESTING, WHICH

OCCURRED PRIOR TO THE PETITIONER'S

ARREST, DID NOT DEPRIVE HIM OF ANY DUE

PROCESS RIGHTS

The petitioner's final claim is that

the testing of blood found on his key ring,

which consumed the sample, deprived him of a

fair trial and the rigrt to present evi-

dence, protected under the due process

4 This claim is also insubstantial on the merits.

Where the defendant raises his extreme emotional

disturbance as an affirmative defense to a murder

charge, it is appropriate for the State to be given

advance notice so that it might be prepared to rebut the

claim. Where, on the other hand, the affirmative

defense is not raised but the evidence adduced at trial

would nevertheless support such a finding, it is not so

much the State's adversarial interest that is served by

submission of the appropriate manslaughter instruction

(murder under extreme emotional disturbance); it is,

rather, the search for the truth and a verdict that

reflects the truth that compels submission of the

charge. Moreover, a defendant's extreme emotional

disturbance can be the predicate of both an affirmative

defense and a lesser included offense; State v. Asher-

man; Petitioner's App. at 121A; it is clear that the

charge of the greater offense, murder, includes within

it notice of the lesser offense. Any further notice

would be superfluous. There is, under the circumstan-

ces, no equal protection violation.

o 2h «

clause of the fourteenth amendment. In

resolving this claim, the Connecticut

Supreme Court acknowledged the affirmative

duty of the State to disclose to a defendant

any evidence favorable to him and material

to his guilt or innocence. Brady v.

Maryland, 373 U.S. 83 (1963); Petitioner's

App. at 114A. It went on to adopt the

following test with respect to evidence that

has been consumed in testing by the State:

{[W]here evidence sought to be

disclosed has been functionally

destroyed, but was subjected to

scientific testing by the state prior

to its destruction, a defendant must

show that a retest would have been

possible and must challenge the

State's test results, either by

attacking the manner in which the test

was conducted or by other evidence.

Petitioner's App. at 115A. Cf. California

v. Trombetta, __ U.S. _, 81 L. Ed. 2d 413

(1984) (evidence is material only when it

"possesses an exculpatory value that was

apparent before the evidence was destroyed,"

= 25 -

and when it is "of such a nature that the

defendant would be unable to obtain compar-

able evidence by other reasonably available

means").

The standard applied by the Connecti-

cut Supreme Court to the challenged unavail-

ability of evidence necessarily consumed in

testing comports with constitutional

safeguards. Cf. California v. Trombetta,

Supra (unnecessary destruction of breath

sample following testing by State did not

constitute due process violation under the

circumstances). Absent some substantial

evidence that would impeach the _ test

results, a defendant would simply obtain the

windfall suppression of reliable evidence if

the rule the petitioner advances were

applied. Legitimate protections against the

introduction of unreliable evidence would

not be involved, since the record would have

to establish the reliability of the testing

» 26 -

process, while the truth seeking function of

a trial would be severely undermined.

The petitioner failed to satisfy the

applicable standard. He never even claimed,

much less demonstrated, that a retest would

have been possible. That the sample was

necessarily consumed in testing was simply

never chailenged below. Petitioner's App.

at 116A. Nor did the petitioner challenge

the testing methods used, the competency of

the examiner, or even the results of the

test. Moreover, the petitioner, who would

have sought to establish only that the blood

was not that of the victim, offered no

evidence to show that the amounts of blood

on the key ring were sufficient, if properly

tested, to establish blood type. Petition-

er's App. at 116A. Under the circumstances,

2 The State's test results showed only that the

substance on the key ring was human blood. Petitioner's

App. at 115A.

the petitioner's claim has no support.6 See

State v. Herrera, 365 So. 2d 399, 401 (Fla.

App. 1978) (“the weight of authority in the

country is that the destruction of [evi-

dence] unavoidably consumed during chemical

testing by a state chemist does not consti-

tute an act of suppression of evidence by

the state sufficient to trigger a due

process violation"); accord, State vv.

Atkins, 369 So. 2d 389, 390 (Fla. App.

1979); Partain v. State, 238 Ga. 207, 232

S.E.2d 46-47 (1977); Poole v. State, 291

So.2d 723, 725-26, (Miss. 1974); See v.

State, 511 P.2d 1076, 1077 (Alaska 1973);

State v. Lightle, 210 Kan. 415, 502 P.2d

834, 836 (1972); see also State v. Clutier,

302 A.2d 84, 89 (Me. 1973).

6 While consumptive testing should be performed by

the State with notice to the defendant and an opportuni-

ty for him to have his expert present, such procedure

would only be used when the testing follows the initia-

tion of the defendant's prosecution, which did not occur

here. See Conn. Prac. Bk. § 732-38.

= 28 «

CONCLUSION

For the foregoing reasons, the State

of Connecticut urges this Court to deny the

petition for a writ of certiorari.

Respectfully submitted.

TRE STATE OF CONNECTICUT

By:

ENO

e's Attorney

Dpellate Bureau

Office of the Chief State's

Attorney

340 Quinnipiac Street

Wallingford, Connecticut 06492

(203) 265-2373

Counsel of Record for the

Respondent

With whom on the Brief:

ANNE C. DRANGINIS

Assistant State's Attorney

Litchfield, Connecticut

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