State v. Bowman

• Citation: 289 Conn. 809,960 A.2d 1027
• Decision Date: 30 December 2008
• Docket Number: No. 17699.,17699.
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Curtis BOWMAN.

960 A.2d 1027

289 Conn. 809

STATE of Connecticut v. Curtis BOWMAN.

No. 17699.

Supreme Court of Connecticut.

Argued October 20, 2008.

Decided December 30, 2008.

Lauren Weisfeld, assistant public defender, for the defendant (appellant).

Sarah Hanna, deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and James G. Clark, senior assistant state's attorney, for the state (appellee).

ROGERS, C.J., and KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

VERTEFEUILLE, J.

The defendant, Curtis Bowman, appeals directly to this court pursuant to General Statutes § 51-199(b)(3)¹ from the judgment of conviction, rendered after a jury trial, of one count each of murder in violation of General Statutes § 53a-54a and arson in the second degree in violation of General Statutes § 53a-112(a)(1)(B), and two counts of tampering with physical evidence in violation of General Statutes § 53a-155(a)(1). The defendant claims on appeal that the trial court improperly: (1) instructed the jury on the affirmative defense of extreme emotional disturbance; and (2) admitted into evidence "exceptionally gruesome" photographs of the deceased victim.² We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant has a history of suffering from psychosis, which causes him auditory hallucinations delusions and severe fear, paranoia and anxiety. He has been both institutionalized and treated with a variety of antipsychotic medications. For the most part, however, when not institutionalized, the defendant has failed to continue taking his medications because he has no health insurance and cannot independently afford the medication. During these periods, the defendant often has resorted to the abuse of alcohol and illegal drugs, including marijuana, cocaine, ecstasy, phencyclidine or PCP, and "wet," which is marijuana that has been dipped in embalming fluid.

The defendant and the victim, Laurisse DaSilva, began dating in November, 2002, and dated for nearly seven months leading up to the day of the murder. Throughout their relationship, the defendant and the victim regularly abused both alcohol and illegal drugs. On the morning of July 13, 2003, the defendant and the victim were heavily under the influence of alcohol and illegal drugs when they drove with the defendant's brother to drop him off at work. They continued to use illegal substances during the course of the trip, stopping one time on the side of the road. The defendant's brother testified at trial that on that morning, the defendant and the victim were "high out of their mind[s]...." On the way home, the defendant and the victim drove to a secluded road in New Haven.

There, after he and the victim consumed more illegal drugs, including cocaine and marijuana, they got into an argument, and, while still in the car, the defendant stabbed the victim several times in the chest and neck with a knife. When the victim then got out of the car and tried to run away, the defendant backed the car over her. He then beat her with a tire iron, causing blunt trauma to her head, chest and abdomen. Finally, he lifted the victim's body, put her in his car, and drove to a secluded dead-end street fourteen blocks away where he dragged her body from the car and concealed it in a brush area.

The defendant then drove home, where he met his mother and appeared visibly confused about what had transpired and the victim's whereabouts. After telling his mother that he would go look for the victim, the defendant then drove his car to a secluded and abandoned parking lot. There, he removed the tire iron from the car, placed the bloody knife in the car, and set the car on fire using gasoline, trash and matches. After returning home on foot, the defendant turned himself in to the police and confessed to killing the victim.

The defendant subsequently was charged with murder, arson in the second degree, and two counts of tampering with physical evidence. At trial, both the state and the defense presented evidence, including expert testimony, regarding the defendant's history of psychosis and its effect on the defendant at the time of the murder. The jury returned a guilty verdict on all four counts. The trial court rendered judgment in accordance with the verdict, and this appeal followed.

I

The defendant first claims that the trial court improperly instructed the jury on the affirmative defense of extreme emotional disturbance. Specifically, the defendant asserts that by improperly defining the term "extreme" as "the greatest degree of intensity away from the normal state of the defendant," the trial court denied him the right to present his defense and violated his state constitutional right not to be discriminated against or denied equal protection because of his mental disability. The defendant concedes that this claim is unpreserved, and requests that we review it under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine, which is now codified at Practice Book § 60-5.³ In response, the state contends that this claim is not reviewable under the second prong of Golding because unpreserved claims relating to the trial court's instructions on extreme emotional disturbance are not of constitutional magnitude. The state further claims that this case does not present the "extraordinary situation" required for application of the plain error doctrine. We agree with the state.

The following undisputed additional facts and procedural history are relevant to our resolution of this claim. At trial, the defendant asserted extreme emotional disturbance as an affirmative defense. He presented both lay and expert testimony regarding his history of psychosis, and claimed that, at the time of the murder, the symptoms of his mental illness were uncontrolled because he was not taking medication. At the conclusion of the trial, before instructing the jury, the trial court provided the state and the defendant with its proposed charge, and asked both parties to state any comments or objections for the record. The defendant did not take exception to any portion of the trial court's written charge. The trial court subsequently instructed the jury that in the defense of extreme emotional disturbance, "[t]he word `extreme' refers to the greatest degree of intensity away from the normal state of the defendant." The defendant again failed to take exception to the charge as given by the trial court.

We first address the reviewability under Golding of the defendant's claim that the trial court improperly instructed the jury as to the definition of "extreme" for the purposes of his extreme emotional disturbance defense. "[I]f a defendant fails to preserve a claim for appellate review, we will not review the claim unless the defendant is entitled to review under the plain error doctrine or the rule set forth in State v. Golding, [supra, 213 Conn. at 239-40, 567 A.2d 823]." State v. Spencer, 275 Conn. 171, 177, 881 A.2d 209 (2005); State v. Ramos, 261 Conn. 156, 171, 801 A.2d 788 (2002). "A party is obligated ... affirmatively to request review under these doctrines." State v. Ramos, supra, at 171, 801 A.2d 788, citing State v. Waz, 240 Conn. 365, 371 n. 11, 692 A.2d 1217 (1997) ("defendants who seek consideration of unpreserved constitutional claims [on appeal] ... bear the burden of establishing their entitlement to such review under the guidelines enumerated in Golding").

"Under Golding, a defendant can prevail on an unpreserved claim of constitutional error only if the following conditions are satisfied: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Internal quotation marks omitted.) State v. DeJesus, 260 Conn. 466, 472, 797 A.2d 1101 (2002); see also State v. Peeler, 271 Conn. 338, 359-60, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S.Ct. 94, 163 L.Ed.2d 110 (2005). "The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two ... involve a determination of whether the defendant may prevail." (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 500, 903 A.2d 169 (2006); State v. Peeler, supra, at 360, 857 A.2d 808.

Although we agree with the defendant that the record is adequate for our review of his claim, we are not persuaded that the defendant's claim is of constitutional magnitude, as is required under the second prong of Golding. In State v. Austin, 244 Conn. 226, 243-44, 710 A.2d 732 (1998), this court specifically declined to review under Golding an identical claim by the defendant regarding the same definitional jury instruction for extreme emotional disturbance. This court recognized that, because it is well established that "improper jury instructions concerning the defense of extreme emotional disturbance are not of constitutional dimension," claims of this nature fail under the second prong of Golding and therefore do not warrant our review. Id., at 244, 710 A.2d 732; see also State v. Foreshaw, 214 Conn. 540, 546, 572 A.2d 1006 (1990) ("claims of error pertaining to the inadequacy of instructions on an affirmative defense do not raise a constitutional question" [internal quotation marks omitted]), quoting State v. Suggs, 209 Conn. 733, 751, 553 A.2d 1110 (1989).

The defendant asks us to overrule our conclusions in both Austin and Foreshaw that unpreserved claims of impropriety in jury instructions concerning the affirmative defense of extreme emotional disturbance are not of constitutional magnitude. The defendant provides us with...