State v. Cole

• Decision Date: 15 September 1998
• Docket Number: No. 17617,17617
• Citation: 50 Conn.App. 312,718 A.2d 457
• Court: Connecticut Court of Appeals
• Parties: , 50 Conn.App. 312 STATE of Connecticut v. Donald COLE.

Page 457

718 A.2d 457

50 Conn.App. 2312, 50 Conn.App. 312

STATE of Connecticut v. Donald COLE.

No. 17617.

Appellate Court of Connecticut.

Argued June 2, 1998.

Decided Sept. 15, 1998.

Neal Cone, Assistant Public Defender, for appellant (defendant).

Mitchell S. Brody, Assistant State's Attorney, with whom, on the brief, were Maureen Keegan, Acting State's Attorney, and John A. Connelly, Former State's Attorney, for appellee (State).

Before FOTI, LAVERY and DALY, JJ.

FOTI, Judge.

The defendant, Donald Cole, appeals from the judgment of conviction, following a jury trial, of one count of murder in violation of General Statutes § 53a-54a (a). ¹ Following his conviction, the trial court sentenced the defendant to a total effective term of sixty years imprisonment. On appeal, the defendant claims that the trial court violated his due process rights by failing to require the state to disprove his insanity defense beyond a reasonable doubt. The defendant also claims that the trial court improperly (1) refused to instruct the jury that the "wrongfulness" component of the insanity defense includes standards of societal morality, (2) instructed the jury of the consequences for the defendant of an acquittal based on the insanity defense, (3) refused to instruct the jury on adverse inferences that could be drawn from the state's failure to offer psychiatric evidence to rebut his insanity defense and prohibited defense counsel from suggesting to the jurors that they should draw such inferences and (4) prohibited testimony from a defense expert of the consequences for the defendant of an acquittal based on the insanity defense. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 9, 1993, at approximately 8 p.m., the defendant telephoned Susan Hellwinkle at her home in Woodbury. The defendant told Hellwinkle that he had shot his girlfriend twice and that she was dead. After hanging up with the defendant, Hellwinkle immediately telephoned the police to report the defendant's statements. Shortly thereafter, state police officers from Troop L in Litchfield were dispatched to the defendant's residence in Woodbury. Upon arriving at the defendant's residence, the officers took up positions surrounding the house. William Longo, a sergeant with the Connecticut state police, telephoned the defendant from outside of the house and instructed the defendant to come out of the front door with his hands empty and in plain view. The defendant opened the front door and stepped onto the front porch. After the defendant stepped onto the front porch, Pete Warren, a lieutenant with the Connecticut state police, gave the defendant further instructions as to how to surrender. The defendant followed Warren's instructions and was handcuffed by Officer David Bland.

After turning over the defendant to other officers, Longo and Bland entered the house through the front door and proceeded to a master bedroom at the end of a hallway. Upon entering the bedroom, the officers discovered the victim on the floor at the foot of the bed. The victim was fully clothed, lying on her back. The top half of the victim's torso was wrapped in a blanket that was folded across her face. There were numerous tears in the upper part of the victim's blouse and a wound to the victim's face. The plastic casing from a discharged shotgun shell was entwined in the victim's hair. There was a small amount of blood splattered on the wall across from the victim. There were also bloody drag marks from the wall to the foot of the bed. In one of the bedroom walls, behind an undamaged poster, were three bullet holes surrounded by splattered blood and hair. A discharged shotgun shell was found under bloodstained clothes in a laundry basket. Another discharged shotgun shell was found at the foot of the bed. There was a pool of blood on the bedroom floor beneath a red flannel shirt. A twelve-gauge shotgun was found in the closet of a second bedroom. Forensic testing revealed that the discharged shotgun shells found in the master bedroom had been ejected from this shotgun.

Ira Kanfer, a forensic pathologist with the state medical examiner's office, conducted an autopsy of the victim. Kanfer's examination revealed a gunshot wound to the victim's chest with the bullet traveling upward and lodging in the victim's brain. Kanfer's examination also revealed a second gunshot wound to the victim's neck with the bullet traveling downward and exiting through her back. Kanfer opined that the gunshot to the neck occurred first and that the second shot occurred while the victim was on the floor. Kanfer attributed the victim's death to multiple gunshot wounds.

While the police were searching the defendant's residence, the defendant was brought inside and calmly stated: "It was self-protection. She was yelling at me." The defendant also stated that the victim had swung the shotgun at him and that he had to protect himself. In addition, the defendant stated: "I'm not going to let anyone come in and push me around. I have my gun." Later, while the police were transporting the defendant to the state police barracks in Litchfield, he stated that the victim was fighting him like a man, had threatened to kick him in the groin and was going to get the shotgun and kill him. After arriving at the barracks, the defendant stated that the victim was going to kill him and was trying to take over his life. The defendant also stated that the victim had told him that he was unfit to raise his children and that he had been aggravated into killing her.

The defendant testified as follows. Approximately one month prior to the incident, the victim, who had been living with the defendant, moved out of the defendant's home and was living in New Milford. On December 9, 1993, at approximately 4 p.m., the victim telephoned the defendant and asked if she could come over for dinner. The defendant agreed to have the victim over for dinner with him and his three children. The victim arrived after the defendant and his children had finished eating and ate alone in the kitchen while the defendant watched his children playing in the basement. After approximately fifteen minutes, the victim angrily called downstairs to the defendant: "Get your ass up here or I'm going to kill you." The defendant went upstairs to the master bedroom and the victim asked him why she had to work for a living and pay her own rent. The defendant responded that it was not his responsibility to take care of her. The defendant told the victim that it was best for her to move out, that they were stuck in a rut and that she should go home. The victim became upset with the defendant and began slapping and kicking him. The defendant told her to stop and to get out of the house. The victim said that she knew the defendant had a loaded shotgun in the bedroom closet and that she was going to shoot him with it. The defendant removed the shotgun from the closet and told the victim that she was not going to get any guns and that she should get out of the house. The victim again slapped and kicked the defendant. The defendant backed up approximately five feet and pointed the shotgun at the victim. The defendant turned off the safety mechanism and fired two shots at the victim. The first shot was fired when the victim was standing and the second as the victim fell. The defendant stated that he did not intend to kill the victim and characterized his conduct as a subconscious reaction. Although the defendant acknowledged that the victim never touched the shotgun, he said that he was trying to protect himself because he was convinced that the victim would shoot him if she could get her hands on the gun. The defendant also said, however, that he had not shot the victim in self-defense and that he was incorrect in previously having thought that he had. In addition, the defendant stated that he did not know what made him shoot the victim.

I

The defendant first claims that the trial court violated his due process rights by failing to require the state to disprove his insanity defense beyond a reasonable doubt. ² We disagree.

The defendant concedes that this claim was not properly preserved at trial and seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). "In Golding, the court held: '[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (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.' " (Emphasis in original.) State v. Perry, 48 Conn.App. 193, 203 n. 7, 709 A.2d 564, cert. denied, 244 Conn. 931, 711 A.2d 729 (1998). "The first two questions relate to whether a defendant's claim is reviewable, and the last two relate to the substance of the actual review." (Internal quotation marks omitted.) State v. Manfredi, 17 Conn.App. 602, 621, 555 A.2d 436 (1989), aff'd, 213 Conn. 500, 569 A.2d 506, cert. denied, 498 U.S. 818, 111 S.Ct. 62, 112 L.Ed.2d 37 (1990). Because the defendant's claim is of constitutional magnitude and the record adequate to review it, we will review the claim. It fails, however, under the third requirement of Golding.

The defendant argues that because his sanity is presumed, once he offered evidence in support of a defense of insanity, the state was required to disprove his defense beyond a reasonable doubt. Moreover, the defendant claims that the effect of an insanity defense is that the presumption of innocence, which is rooted in the due process principles of the federal and state constitutions,...