State v. Foreshaw

• Decision Date: 10 April 1990
• Docket Number: No. 13304,13304
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Bonnie Jean FORESHAW.

Page 1006

572 A.2d 1006

214 Conn. 540

STATE of Connecticut v. Bonnie Jean FORESHAW.

No. 13304.

Supreme Court of Connecticut.

Argued Jan. 9, 1990.

Decided April 10, 1990.

Richard Emanuel, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Rita M. Shair, Deputy Asst. State's Atty., with whom were James E. Thomas, Asst. State's Atty., and, on the brief, John M. Bailey, State's Atty., for appellee (state).

Before PETERS, C.J., and ARTHUR H. HEALEY, GLASS, HULL and SANTANIELLO, JJ.

HULL, Associate Justice.

A jury found the defendant, Bonnie Jean Foreshaw, guilty of murder in violation of General Statutes § 53a-54a(a), ¹ of carrying a pistol without a permit in violation of General Statutes § 29-35, ² and of tampering with physical evidence in violation of General Statutes § 53a-155(a)(1). ³ The trial court thereupon sentenced her to a total effective sentence of forty-five years incarceration. On appeal, the defendant claims that: (1) the trial court erred in improperly instructing the jury on the affirmative defense of extreme emotional disturbance; (2) the trial court erred in improperly instructing the jury on an element of the crime of tampering with physical evidence; and (3) the evidence presented was insufficient to support the verdict on the charge of tampering with physical evidence. We find no error.

The jury could reasonably have found the following facts. On the evening of March 26, 1986, Joyce Amos attended a dance at the Jamaican Progressive League, a club located on Albany Avenue in Hartford. At approximately midnight, Amos arranged to get a ride home from an acquaintance, Hector Freeman, and Freeman's friend, Elmer Pickett. As they left the club, Freeman, who needed some cigarettes, asked Pickett to meet him across the street at a twenty-four hour gas station and convenience store.

Freeman then walked toward the store and encountered the defendant as he was crossing the street. When Freeman greeted her with the words "Hello, Dred," ⁴ the defendant began shouting obscenities at him, claiming that he had "disrespected her." The defendant continued to swear at Freeman, prompting him to respond in similar language. Meanwhile, Pickett had driven his car into the parking lot in front of the store and Amos had gotten out of the car to join Freeman. Both Amos and Freeman then proceeded into the store.

Upon walking out of the store, Amos approached the defendant and began talking to her. Freeman soon joined Amos and listened as Amos admonished the defendant for using such vile language. Undaunted, the defendant continued her tirade and eventually disappeared behind a nearby building. She emerged again quickly, however, and pulled from under her coat a .38 caliber pistol. The defendant then screamed at Amos to get out of the way because she intended to kill someone. Almost immediately thereafter, the defendant fired the shot that killed Amos.

The defendant fled from the scene in her automobile, but was arrested within a short time after the shooting. The arresting officer found a .38 caliber bullet on the floor of the automobile. Upon police inquiry about the location of the gun, the defendant responded that, while driving her car, she had thrown the gun out of the car window. The defendant then retraced her route with the police in an attempt to find the gun, but eventually became confused and upset and discontinued her search. The gun was never recovered.

At trial, the defendant took the witness stand in her defense and gave testimony concerning the events that had transpired before, during and after the shooting incident. She explained that on the night of March 26, 1986, she had stopped at the Jamaican Progressive League for a drink. While she was at the club, she had been insulted and embarrassed by Freeman after he unsuccessfully had offered to buy her a drink. She immediately decided to leave the club, but was followed to her car by Freeman and Amos. The defendant testified that, although Freeman did not block her from getting into her car, his presence had threatened her. The defendant claimed further that she had grabbed her gun and deliberately pulled its trigger in response to Freeman's movements toward her. Upon seeing Amos fall, the defendant immediately drove away and discarded the gun en route so that she would not be caught with it.

Although the defendant admitted at trial that she had fired the fatal shot, she claimed that she had done so while under the influence of extreme emotional disturbance. In support of this affirmative defense, the defendant presented expert testimony from Anne E. Price, a psychiatrist. Price testified that the defendant had experienced an abusive childhood and had endured two abusive marriages. Price explained that these experiences had affected the defendant's state of mind at the time of the shooting. She further explained that the defendant suffered from posttraumatic stress disorder, a condition similar to that suffered by certain Vietnam veterans. The condition is caused by a traumatic event, such as persistent abuse, not within the range of usual human experiences. The trauma may cause a person to overreact to relatively benign events or to respond to a situation of danger in an irrational way. Price testified that when the defendant was confronted by Freeman, she had become scared that he would beat her as her husbands had done in the past. Consequently, the defendant became so overwhelmed by panic that she reacted irrationally and impulsively. According to Price, the defendant fired the gun before she could really think about what she was doing.

I

The defendant first claims that the trial court erred in improperly instructing the jury on the affirmative defense of extreme emotional disturbance. The basis of the defendant's claim is the court's inclusion in its charge of the following sentence: "Now, to determine whether the defendant has established the affirmative defense of extreme emotional disturbance by a preponderance of the evidence as a mitigation of murder, to manslaughter in the first degree, you must find first, that the emotional disturbance is not a mental disease or defect that rises to the level of insanity, as defined by our statutes." (Emphasis added.) The defendant argues that the court's instruction misstated the controlling law, confused the jury, improperly added to the defendant's burden of proof by requiring that the defendant prove that her level of mental disease or defect did not rise to the level of insanity, and failed to include a statutory definition of insanity.

The defendant concedes that she did not except at trial to the portion of the charge she now claims as error; see Practice Book § 852; ⁵ but maintains that her claim is reviewable under both State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and the plain error rule of Practice Book § 4185. We do not agree.

We turn first to the defendant's argument that because the court's instruction violated her due process right to establish a defense; Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967); her challenge to that instruction warrants review under State v. Evans, supra. This court recently restated the Evans guidelines for dealing with alleged constitutional violations that are raised for the first time on appeal. State v. Golding, 213 Conn. 233, 238-42, 567 A.2d 823 (1989). In Golding, we held that "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. In the absence of any one of these conditions, the defendant's claim will fail." (Emphasis in original.) Id., at 239-40, 567 A.2d 823. We conclude that the defendant's constitutional right to establish a defense was not violated.

In State v. Preyer, 198 Conn. 190, 502 A.2d 858 (1985), this court was faced with an unpreserved challenge to a clearly erroneous affirmative defense instruction. We held, inter alia, that a trial court's failure independently to instruct the jury on an affirmative defense supported by the evidence at trial does not rise to the level of a constitutional violation. Id., at 196-97, 502 A.2d 858. In support of that holding, we stated that "Washington v. Texas, supra [388 U.S. at] 19 [87 S.Ct. at 1923, 18 L.Ed.2d 1019], does not establish an unqualified constitutional right to correct jury instructions on any defense the defendant may have. The only relevant issue therein decided was the applicability, in state court proceedings, of the sixth amendment right of a criminal defendant to have compulsory process for obtaining witnesses in his favor." Id., 198 Conn. at 197 n. 9, 502 A.2d 858. "Implicit in [our] decision [in Preyer ] was the conclusion that claims of error pertaining to the inadequacy of instructions on an affirmative defense do not raise a constitutional question." State v. Suggs, 209 Conn. 733, 751, 553 A.2d 1110 (1989). Accordingly, pursuant to State v. Golding, supra, and State v. Evans, supra, the defendant cannot prevail on her unpreserved challenge to the court's affirmative defense instruction.

The defendant likewise cannot succeed in her attempt to raise this claim under the plain error rule. We decline to review the defendant's claim as plain error, because we are not convinced that there was any manifest injustice under all the circumstances of the case. Practice Book § 4185 provides that this court "may in the interests of justice notice plain error not...