State v. Burge
| Decision Date | 12 February 1985 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Gordon Andrew BURGE. |
Emanuel Margolis, Stamford, with whom were David M. Cohen and Tracy Alan Saxe, Stamford, for appellant (defendant).
Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty. and Jonathan C. Benedict, Asst. State's Atty., for appellee (state).
Before PETERS, C.J., and ARTHUR H. HEALEY, PARSKEY, SHEA and DANNEHY, JJ.
The principal issue in this case is the extent to which evidence of mental condition is relevant to criminal intent when the defendant has not raised a defense of insanity. The defendant, Gordon Andrew Burge, was indicted for the murder of James W. Hafner, in violation of General Statutes § 53a-54a(a), 1 and convicted, after a trial by a jury, of the lesser included offense of manslaughter in the second degree, in violation of General Statutes § 53a-56. 2
From the evidence presented at the trial, the jury might reasonably have found the following facts. The victim, James W. Hafner, was found strangled to death on the morning of October 15, 1980, in a wooded area near a cemetery in Darien. A thirteen year old junior high school student, the victim had last been seen alive on the previous day at a nearby school athletic field where a school soccer game was in progress. When his body was discovered, he was lying face-up, naked above the waist, with his trousers pulled down to expose his buttocks and his pubic hair. His hands were crossed behind his back, and his belt was wrapped around his neck. His blue bicycle was by a fence at the scene of the crime.
Students who had attended the soccer game told the police that the victim had been at the game in the company of someone wearing an "O.D. jacket." The police learned from school personnel that the defendant frequently wore an "O.D. jacket" and had been at the soccer game on October 14, 1980.
Acting on this information, Captain Angelo Toscano, commander of the Darien detective bureau, drove to the defendant's home on October 16, 1980, at 4 p.m., and invited the defendant to come to police headquarters to answer some questions. The defendant complied with this request and went to police headquarters. Although he was not then a suspect or in custody, he was, with his consent, photographed and given standard Miranda warnings. 3 The defendant signed a waiver-of-rights form. The police then questioned the defendant about the crime. Because some of the defendant's answers appeared to be incriminatory, at about 6 p.m. that same afternoon he was taken to the scene of the crime for further interrogation. Upon his return to police headquarters, the defendant agreed to give the police a complete statement about his involvement in the case. At that time the Miranda warnings previously given were repeated in part. The defendant signed a confession at about 8:30 p.m. Shortly thereafter he was permitted to see his father, who had come to police headquarters at about 7 p.m.
The defendant is a twenty year old man with limited physical and mental endowments. He has a mental age of 15, and an I.Q. that is on the lower borderline of the normal range. A serious automobile accident in 1976 caused brain damage which exacerbated problems with his speech, his powers of concentration, and his general lethargy. He had, however, received a high school diploma and a driver's license. He greatly admired the police and, before the present incident, entertained unrealistic aspirations to become a policeman.
The defendant did not testify at the trial but offered, through various members of his family, an alibi defense. In addition, a physician testified that, because of the defendant's brain damage, the defendant lacked the strength and the motor coordination required to perform the act of strangulation that led to the victim's death. Finally the defense stressed that none of the physical evidence recovered by the state police mobile crime unit, evidence consisting of fingerprints, soil samples, human hair, clothing fibers, and fingernail scrapings, was ever linked in any way to the defendant.
The defendant filed timely motions for acquittal, for a new trial, and for dismissal of the charges against him because of the state's alleged failure to disclose exculpatory material. The trial court denied these motions, and after the defendant was convicted this appeal ensued.
The defendant claims that he is entitled to a new trial because the trial court erred in its evidentiary rulings, in its instructions to the jury, and in its refusal to permit defense counsel to make an opening statement to the jury. The challenged evidentiary rulings concern: the admissibility of the defendant's confession; the impeachment of a defense witness on the basis of previously excluded identification evidence; and the exclusion of evidence relating to a third-party suspect. The challenged parts of the jury instructions relate to: the exclusion of evidence of the defendant's mental condition from the jury's deliberations about criminal intent; the exclusion of certain lesser included offenses from the jury's consideration; and the inclusion of a statement attesting to the state's good faith in prosecuting the defendant.
Because we have concluded that the defendant's most persuasive claims of error are those that arise out of the trial court's instructions to the jury, we will address those issues first. We will thereafter consider those of the remaining claims of error that relate to questions that are likely to arise again upon a new trial.
In his claims of error that relate to the trial court's instructions to the jury, the defendant first challenges the trial court's instruction prohibiting the jury from considering the defendant's mental condition in reaching a decision on criminal intent. Although the trial court permitted the jury to take the defendant's mental capacity into account in deciding whether his confession was voluntary, the court expressly ruled out any other role for the evidence that had been presented with regard to his mental state. The court told the jury: The defendant had requested a charge on mental capacity, and duly excepted to the charge as given. The impropriety of the charge was again called to the trial court's attention as one ground in the defendant's postjudgment motion for a new trial.
The crime with which the defendant was charged by indictment was the crime of murder in the first degree, a crime which requires the state to prove the defendant's specific intent to commit the acts alleged. This is not, however, the crime of which the defendant was convicted. The jury found him guilty of the lesser included offense of manslaughter in the second degree, which required the state to prove that the defendant recklessly caused the death of another person. General Statutes § 53a-56(a)(1). 4 The term "recklessly" is statutorily defined to cover conduct by a person "when he is aware of and consciously disregards a substantial and unjustifiable risk." General Statutes § 53a-3(13). 5
The court recognized that the defendant had introduced evidence of his mental condition through both lay and expert witnesses. That evidence was admitted at trial without objection or limitation. The court acknowledged that the jury was required to determine the defendant's capacity to form an intent or his ability to recognize a risk. The court decided nonetheless to exclude evidence of his mental condition from the deliberations of the jury with respect to his criminal intent for two reasons: (1) the defendant had failed to provide notice of his intention to raise his mental condition as a defense in the manner required by Practice Book § 759, and therefore could not rely on expert testimony; and (2) the defendant had provided insufficient non expert evidence of his mental condition to avoid speculation or guesswork by the jury. We disagree with this reasoning and thus find reversible error in the trial court's charge. 6
Practice Book § 759 requires, 7 as the trial court noted, that a defendant who "intends to introduce expert testimony relating to a mental disease or defect, or another condition bearing upon the issue of whether he had the mental state required for the offense charged" should, in a timely fashion, "notify the prosecuting authority in writing of such intention and file a copy of such notice with the clerk." It is conceded that the defendant in this case completely failed to give the requisite notification. Noncompliance with the requirements of § 759 does not, however, make all evidence of mental condition inadmissible. Only if the state objects during the trial when the defendant offers to introduce evidence concerning his mental condition does Practice Book § 761 authorize the court to "exclude the testimony of any expert witness offered by the defendant on the issue of his mental state." 8 Had the state made a timely objection, it might, therefore, have sought to exclude the defendant's expert testimony about his mental condition, although the defendant's lay testimony would still have been admissible. In the absence of a timely objection by the state, it cannot rely on the Practice Book rules. As we held in State v. Hines, 187 Conn. 199, 205, 445 A.2d 314 (1982), Practice Book § 761 provides the only sanction for noncompliance with § 759. Failure to comply with the notice...
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