Asherman v. State

Decision Date03 March 1987
PartiesSteven M. ASHERMAN v. STATE of Connecticut.
CourtConnecticut Supreme Court

Maxwell Heiman, with whom was William J. Tracy, Jr., Bristol, for appellant (petitioner).

John M. Massameno, Asst. State's Atty., with whom were Roseann Wagner, Legal Intern, and, on brief, Dennis A. Santore, State's Atty., for appellee (state).


PETERS, Chief Justice.

The dispositive issue in this case is whether the discovery of new evidence unavailable at a previous criminal trial required the trial court to grant a petition for a new trial. On August 13, 1979, the petitioner, Steven M. Asherman, was convicted by a jury of manslaughter in the first degree, in violation of General Statutes § 53a-55, for the homicide of Michael Aranow. 1 Upon appeal to this court, the conviction was upheld in State v. Asherman, 193 Conn. 695, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985). The discovery of new physical evidence in the vicinity of the scene of the crime in May, 1980, prompted the petitioner to file an amended two count petition for a new trial pursuant to General Statutes § 52-270(a) when his criminal appeal proved to be unsuccessful. 2 After a hearing, the trial court denied his petition and this appeal ensued. We find no error.

As we concluded in State v. Asherman, supra, the jury in the criminal trial could reasonably have found the following facts, which are relevant to the present appeal. On July 29, 1978, the petitioner and Michael Aranow, who were students at Columbia Medical School, took a break from school and traveled to the country estate of the victim's family in New Hartford. State v. Asherman, supra, 697-98, 475 A.2d 227. Shortly after their arrival between 9 and 9:30 p.m., the two men walked through the woods to a lookout at the top of Jones Mountain. Id., 698, 478 A.2d 227. After their arrival at the lookout, "some unexplained emotion or circumstance, induced perhaps by a mind-altering drug," led the petitioner to kill the victim by stabbing him with a knife over 100 times. Id.

After attempting to hide the body, the petitioner "left the scene, covered with blood, looking for some place where he could wash the blood off his clothing." Id., 698-99, 475 A.2d 227. As he walked through the woods, he hid, somewhere, both the knife that he had carried to the scene in a "day pack" and the blood drenched shirt that he was wearing. Id. He then attempted to wash the blood from the rest of his clothing in a stream or nearby pond. Id., 699, 478 A.2d 227. Once day broke, he returned to the home of the victim's uncle, Frank Jones, and told him that he and the victim had been in the woods when they encountered "two guys with a gun" who had accosted them. Id. He also told Jones that he had escaped but could not find the victim, and that he wanted to call the police and the victim's parents immediately. Id.

As a result of the hearing held on the petition for a new trial, the trial court found certain further facts. On or about May 11, 1980, some nine months after the jury had convicted the petitioner, two items were found in an open field near Steele Road, approximately two miles from the site on Jones Mountain where the victim had been fatally stabbed. These items consisted of a blue knapsack and a blue "shirt" and "tie." 3

The trial court denied the petition for a new trial. That petition was in two counts, one relying on the materiality of the newly discovered evidence, the other on allegations of juror misconduct.

With respect to the first count, claiming newly discovered evidence, the court concluded that the petitioner had failed to establish, by a preponderance of the evidence, that the evidence in question was " 'newly discovered, material to the issues on a new trial ... not merely cumulative and likely to produce a different result. Lombardo v. State, 172 Conn. 385, 390-91 (1977).' " In the court's view, the shirt was not material evidence because it bore no resemblance to the shirt reportedly worn by the petitioner on the night of the homicide. With respect to the knapsack, the court determined that, because the petitioner had conducted a diligent, but unsuccessful, pretrial search for this item, it was indeed newly discovered evidence. Nonetheless, the court concluded that its discovery would not warrant a new trial because its introduction into evidence would probably not lead to the petitioner's acquittal if a new trial were to be held.

The second count of the petition alleged that a new trial should be ordered because of various alleged acts of juror misconduct at the petitioner's criminal trial. The court found that these allegations of juror misconduct had been previously raised and fully considered in the motion for a new trial and a motion in arrest of judgment filed by the petitioner immediately after his conviction. Both motions had been denied by the trial court, Missal, J., and that judgment was affirmed by this court in State v. Asherman, supra. The trial court rejected the petitioner's argument in this case that changes in the law in and subsequent to State v. Asherman, supra, entitled him to conduct an evidentiary inquiry into the mental processes of the jurors who had convicted him in his criminal trial.

From these adverse trial court rulings on both counts of his petition, the petitioner appealed to this court. He claims that the trial court erred in: (1) finding that the petitioner, despite the introduction of newly discovered physical evidence, had not met his burden of proving that a new trial was warranted; (2) permitting the state to amend its answer after the hearing on the petition; and (3) restricting the scope of the petitioner's examination of jurors in his effort to impeach the jury's verdict.


The petitioner's first claim of error contends that the trial court erred in denying his petition for a new trial on the basis of the newly discovered physical evidence. The petitioner maintains that the shirt and knapsack introduced at the hearing constitute exculpatory evidence which, if presented to a jury, would lead to his acquittal. He insists that the absence of these items at his trial allowed the state "to speculate endlessly" as to the whereabouts of these items, to his prejudice. Furthermore, the introduction of these items would, in the petitioner's view, highlight numerous flaws and inconsistencies in the state's theory of the case. We disagree.

The standard that governs the granting of a petition for a new trial based on newly discovered evidence is well established. The petitioner must demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial. Kubeck v. Foremost Foods Co., 190 Conn. 667, 670, 461 A.2d 1380 (1983); Burr v. Lichtenheim, 190 Conn. 351, 355, 460 A.2d 1290 (1983); Pass v. Pass, 152 Conn. 508, 511, 208 A.2d 753 (1965). This strict standard is meant to effectuate the underlying "equitable principle that once a judgment is rendered it is to be considered final," and should not be disturbed by posttrial motions except for a compelling reason. Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037 (1983); see In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983). In determining the potential impact of new evidence, the trial court must weigh that evidence in conjunction with the evidence presented at the original trial. Kubeck v. Foremost Foods Co., supra, 190 Conn. at 699, 461 A.2d 1380. It is within the discretion of the trial court to determine, upon examination of all the evidence, whether the petitioner has established substantial grounds for a new trial, and the judgment of the trial court will be set aside on appeal only if it reflects a clear abuse of discretion. Id., 670, 461 A.2d 1380.

In the present case, there is no dispute that in fact the shirt and the knapsack are newly discovered evidence. The state does not dispute that the petitioner made a diligent, good faith effort to discover the items prior to his trial. The parties disagree, however, about the significance of these items and what effect, if any, their production would have on the outcome of a new trial.

The petitioner explains the significance of the shirt as follows. At the criminal trial, the state accounted for the absence of his shirt by theorizing that after the attack, the petitioner was covered with blood and therefore hid his bloodstained shirt, along with the knapsack, prior to descending from the mountain. 4 He points out that the shirt presented at the new trial hearing had no trace of blood on it. This fact, according to the petitioner, is probative of his innocence and casts doubt on the state's argument that he schemed to conceal all evidence of his guilt.

The petitioner's argument, however, sidesteps the fundamental question of whether the shirt presently at issue is actually the shirt that he wore on the night of July 29, 1978. The testimony at the criminal trial established that the petitioner then told the police that he had been wearing a long-sleeved blue shirt with a collar, which buttoned up the front and at the cuff, similar to a dress shirt. The item the petitioner now relies upon was described by the trial court as appearing to be "a short bathrobe or wrapper with a cloth tie belt." Our own examination of this item leads us to agree with the finding of the trial court that it bears no similarity to the shirt reportedly worn by the petitioner at the scene of the crime. This shirt is immaterial to the case, and unquestionably would not have been admissible into...

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