726 A.2d 531 (Conn. 1999), 15266, State v. Hodge

Docket Nº:15266.
Citation:726 A.2d 531, 248 Conn. 207
Opinion Judge:PALMER, J.
Party Name:STATE of Connecticut v. Dennis HODGE.
Attorney:Mark Rademacher, special assistant public defender, for the appellant (defendant)., Rita M. Shair, assistant state's attorney, with whom were Michael Dearington, state's attorney, and Ann Mulcahy, legal intern, for the appellee (state)., Richard A. Reeve, Michael O. Sheehan, New Haven, and Ann M....
Judge Panel:Before CALLAHAN, C.J., and BORDEN, BERDON, PALMER and McDONALD, JJ. In this opinion CALLAHAN, C.J., and BORDEN and McDONALD, JJ., concurred. McDONALD, J., with whom CALLAHAN, J., joins, concurring.
Case Date:April 06, 1999
Court:Supreme Court of Connecticut
 
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Page 531

726 A.2d 531 (Conn. 1999)

248 Conn. 207

STATE of Connecticut

v.

Dennis HODGE.

No. 15266.

Supreme Court of Connecticut

April 6, 1999

Argued March 18, 1998.

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[248 Conn. 209] Mark Rademacher, special assistant public defender, for the appellant (defendant).

Rita M. Shair, assistant state's attorney, with whom were Michael Dearington, state's attorney, and Ann Mulcahy, legal intern, for the appellee (state).

Richard A. Reeve, Michael O. Sheehan, New Haven, and Ann M. Parrent filed a brief for the Connecticut Civil Liberties Union Foundation as amicus curiae.

Before CALLAHAN, C.J., and BORDEN, BERDON, PALMER and McDONALD, JJ.

PALMER, J.

Following a jury trial, the defendant, Dennis Hodge, was convicted of one count of murder [248 Conn. 210] in violation of General Statutes § 53a-54a (a), 1 one count of manslaughter in the first degree in violation of General Statutes § 53a-55 (a)(1), 2 and carrying a pistol without a permit in violation of General Statutes § 29-35. 3 The trial court rendered judgment in accordance with the jury verdict, and the defendant appealed to this court pursuant to General Statutes § 51-199(b)(3). 4 On appeal, the defendant claims that he is entitled to a new trial because: (1) the state, in selecting the twelve person jury that convicted him, improperly used its peremptory challenges in a discriminatory manner; and (2) the trial court improperly instructed the jury with respect to the affirmative defense of extreme emotional disturbance. We reject these claims and, accordingly, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On or about January 29, 1992, the defendant's mother, Willie Mae Hodge Perry, who resided in New Haven, contacted the defendant to inform him that her kitchen had sustained damage as a result of a fire. Several days thereafter, the defendant, who was living in New Jersey at the time, returned to Connecticut and [248 Conn. 211] took up residence with Perry. Perry, in the meantime, had retained the services of Biller Associates, an independent insurance adjuster, 5 to assess the extent of the fire damage and to process a claim with Perry's insurance company. Over the next several days, the defendant met with the victims, Lawrence Biller, the owner and president of Biller Associates, and Bruce Horowitz, who was employed by Biller Associates as an adjuster, at Perry's residence. Biller and Horowitz already had arranged for an independent cleaning contractor, known as Servpro, to clean Perry's house and, according to the defendant, had received an assignment form, signed by Perry, authorizing payment of a portion of the insurance proceeds directly to Servpro.

During March and April, 1992, questions arose concerning the amount of the insurance settlement and the manner in which payment to Servpro was to be made. Because the defendant and Perry had expected to receive approximately $20,000 from Perry's insurer,

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they were disappointed to learn from Horowitz, on April 8, that Perry, instead, would be receiving a total net settlement of approximately $15,500. Horowitz assured them, however, that he had done all that he could. When asked by the defendant about the payment for cleaning services, Horowitz stated that Servpro's bill of $4700 already had been paid.

Later in April, 1992, however, the defendant learned from an agent of Perry's insurance company that the insurer had prepared two checks, one payable to Perry in the approximate amount of $12,500, and the other payable to Servpro in the approximate amount of $4700. The defendant telephoned Biller Associates several times in an unsuccessful effort to discuss the apparent [248 Conn. 212] discrepancy in the payment to Servpro, which the defendant believed was the reason why Perry was to receive $3000 less than she had been promised originally. When the defendant telephoned the company on April 29, he indicated that he would be away for a short period of time, and provided the company with a telephone number where he could be contacted. The defendant expressly requested, moreover, that Biller Associates contact him, rather than Perry, to resolve the matter. Notwithstanding this request, Horowitz contacted Perry during the defendant's absence. Upon the defendant's return, he arranged a meeting at Horowitz' office on May 4 to discuss further the matter of the payment to Servpro.

On the morning of May 4, 1992, the defendant met with Horowitz and Biller in Biller's office. After expressing his dissatisfaction with the fact that Perry stood to receive $3000 less than she had expected, the defendant proposed that Biller Associates remit one half of that amount, $1500, to Perry. Biller asked the defendant whether he expected Biller to pay the defendant $1500 of Biller's own money, and inquired as to what measures the defendant expected to take if the defendant and Biller Associates were unable to resolve the matter. The defendant responded: "I would go to war with you. I will cause you and your company as much pain as you've caused me and my family." The defendant added that he would file a civil suit if necessary. Biller replied that no one had ever prevailed in a lawsuit against Biller Associates. After some further discussion, Biller stated that the matter would not be resolved that day. The defendant then inquired: "[S]o that's the way it is?" Biller replied: "[T]hat's the way it is." As the defendant rose to leave, he pulled out a nine millimeter handgun and shot and killed both Biller and Horowitz. The defendant immediately left the scene and, thereafter, fled to Costa Rica. 6

[248 Conn. 213] After a police investigation of the killings, the defendant was charged with two counts of murder in violation of § 53a-54a (a), one count of capital felony in violation of General Statutes § 53a-54b (8) 7 and one count of carrying a pistol without a permit in violation of § 29-35. Three weeks after the shootings, the defendant, who had returned to the United States from Costa Rica, was arrested. 8

At the defendant's trial, several employees of Biller Associates testified regarding the events leading up to and culminating in the deaths of the victims. The testimony of these witnesses, who were present in the Biller Associates office at the time of the shootings, established the defendant as the shooter. In addition, Edward McDonough, a physician with the state medical examiner's office, testified that both victims had died as a result of multiple gunshot wounds. McDonough concluded that Biller's body had seven entry wounds, one of which was from a bullet that had severed Biller's spinal cord. McDonough located three entry wounds on Horowitz' body, including one from a bullet

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that had entered his back and penetrated his aorta.

The defendant, who testified in his own defense, admitted that he had shot the victims, but sought to establish the affirmative defenses of mental disease or defect 9 and extreme emotional disturbance. 10 In support [248 Conn. 214] of these defenses, the defendant presented the testimony of Ezra Griffith, a psychiatrist and the director of the Connecticut Mental Health Center (mental health center), who opined that the defendant was legally insane at the time of the shootings and, further, that he had acted under an extreme emotional disturbance. The defendant also adduced the testimony of John Cegalis, a clinical psychologist, who testified that the defendant, although not legally insane when he shot the victims, was suffering from an extreme emotional disturbance. In rebuttal, the state presented the testimony of Donald Grayson, a psychiatrist, who refuted both affirmative defenses.

The trial court instructed the jury on capital felony, murder, first degree manslaughter as a lesser included offense of murder and carrying a pistol without a permit. After deliberating for nine days, the jury, which twice had indicated that it was deadlocked, returned a verdict of guilty of murder with respect to the death of Biller and of first degree manslaughter with respect to the death of Horowitz. The jury also found the defendant guilty on the charge of carrying a pistol without a permit. The trial court rendered judgment sentencing the defendant to consecutive prison terms of life on the murder count, twenty years on the manslaughter count and five years on the count of carrying a pistol without a permit. 11 Additional facts will be set forth as necessary.

[248 Conn. 215] I

THE PEREMPTORY CHALLENGES CLAIM

The defendant first claims that he is entitled to a new trial under the equal protection clause of the fourteenth amendment to the United States constitution 12 because the state, during jury selection, improperly discriminated against six minority venirepersons by exercising its peremptory challenges to strike those prospective jurors from the jury array in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny. We reject the defendant's claim.

The following additional facts are relevant to our resolution of this claim. Jury selection for the defendant's trial, which involved the potentially racially charged shooting deaths of two white men by the defendant, who is African-American, took place over thirty-eight days, during which thirty-three panels were summoned, approximately 400 venirepersons were sworn and seventy-two persons were fully voir dired. In light of the capital felony charges, the court granted each party thirty-one peremptory challenges. Of those, the state used twenty-four, six of which were challenged by the defendant as discriminatory under Batson. The trial court rejected the defendant's Batson challenges, concluding that, in...

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