# Opposition Brief — Asherman v. Connecticut

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 470 U.S. 1050

## Text

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

= 29 «

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1765%3A3. Public record. Not legal advice.