State v. Joly

• Decision Date: 18 June 1991
• Docket Number: No. 13569,13569
• Citation: 219 Conn. 234,593 A.2d 96
• Court: Connecticut Supreme Court
• Parties: , 16 A.L.R.5th 1093 STATE of Connecticut v. Michael JOLY.

Page 96

593 A.2d 96

219 Conn. 234, 16 A.L.R.5th 1093

STATE of Connecticut v. Michael JOLY.

No. 13569.

Supreme Court of Connecticut.

Argued Jan. 8, 1991.

Decided June 18, 1991.

Maurice A. Lescault, Jr., and Michael G. Zuk, Certified Legal Interns, with whom were Todd D. Fernow and, on the brief, Michael R. Sheldon, Timothy H. Everett and Donna L. Voss, Certified Legal Intern, for appellant (defendant).

Timothy J. Sugrue, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and John H. Malone, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and GLASS, COVELLO, SANTANIELLO and MENT, JJ.

GLASS, Associate Justice.

On February 18, 1982, the defendant, Michael Joly, was indicted by a grand jury and charged with the crime of murder in violation of General Statutes § 53a-54a(a). ¹ He was tried by different juries on three separate occasions between 1984 and 1988. After his first trial in 1984 before Judge Quinn, the jury found the defendant guilty as charged, but a new trial was ordered on the ground of juror misconduct. The defendant's second trial in 1986 before Judge Kline, resulted in a deadlocked jury and ended in a mistrial. His third trial in 1988 before Judge Kaplan, concluded in a guilty verdict and a sentence of sixty years imprisonment. This appeal followed.

On appeal, the defendant challenges several of the trial court's evidentiary rulings. He claims that the court should have: (1) suppressed Anthony Pasquarelli's allegedly hypnotically refreshed testimony describing and identifying the defendant; (2) suppressed Anthony Pasquarelli's testimony on the alternative ground that the defendant was prejudiced by the state's failure to disclose statements made by Anthony to the police before the hypnosis session; (3) excluded Detective Charles Miller's testimony recounting statements made by the defendant during the search of his apartment because Miller was incompetent to testify, and Miller's testimony was irrelevant, or alternatively, more prejudicial than probative; (4) excluded Daniel Pasquarelli's testimony describing the defendant's "silence" after Daniel accused him, while incarcerated, of committing the crime; and (5) admitted evidence offered by the defendant to rebut the inference of consciousness of guilt arising from certain evidence favorable to the state. We affirm.

The jury could reasonably have found the following facts. On July 17, 1981, between 5:26 and 5:55 p.m., the defendant made three emergency "911" telephone calls to the Bristol police department under an assumed name. He informed the police that a girl in need of medical attention was in the woods near a path along the railroad tracks by the Pequabuck River in the Forestville section of Bristol. Considering these to be crank calls, the police conducted a cursory search of the area and found nothing. At approximately 3:15 the next morning, however, Michael Mattei notified the police that his fifteen year old daughter, Diane Mattei, the victim, was missing. The police again searched the woods and discovered the victim's body. She was lying on her back, unclothed from the waist up, and her face was unrecognizable. The chief medical examiner testified that the victim had died of a fractured skull with subdural hemorrhage resulting from contusions of the brain and/or blunt force injuries to the head and neck. The time of death was placed between 2 and 6 p.m. on July 17, 1981.

At trial, the defendant stipulated that he had made the 911 calls. He defended against the charge of murder, without testifying, by presenting thirty-three witnesses to establish that he was a concerned citizen who had merely reported his discovery of the injured victim, and that the crime was more likely to have been committed by one of a number of persons who had been suspects in the case. The state presented circumstantial evidence to the contrary through the testimony of thirty-four witnesses and numerous exhibits. Several witnesses, including Anthony and Daniel Pasquarelli, testified that they had seen the defendant alone with the victim in the immediate area of the woods between 2:30 and 3:45 p.m. on the date of her death.

I

The defendant first claims that the court should have suppressed as the unreliable product of hypnosis all testimony by Anthony Pasquarelli (Anthony) describing or identifying him. The state counters that the trial court properly determined that Anthony had not been hypnotized. We provide the following facts to place the defendant's specific claims in their proper context.

On July 21, 1981, at an interview with Detective Thomas Killiany of the Bristol police department, Anthony revealed that while walking along the tracks with his brother, Daniel Pasquarelli, at approximately 3:15 p.m. on the date of the crime, he had observed and conversed with a man accompanied by the victim. He described the man, signed a written statement incorporating the description and assisted in the making of a composite drawing of the man's face. Although the police eventually lost this statement, Anthony testified that he had described the man as follows: dark hair, dark eyes, approximately 5'8" tall, one hundred sixty pounds, wearing blue jeans and a tee-shirt with a pocket. Anthony gave an "identical" or "fairly identical" description to the police on July 22, 1981, which also was reduced to writing and thereafter lost. On one or both of the above occasions, Anthony told the police that he had recognized the man but could not remember his name. He later testified, however, that he had remembered the man's name as that of the defendant on July 21 or 22, 1981, but had deliberately withheld it on those dates and at subsequent interviews because he had been displeased with his treatment by the police. It was not until August 11, 1981, that Anthony disclosed the defendant's name to the police.

In the meantime, at Killiany's request, Anthony had agreed to submit to hypnosis as an aid to recall the name. John Haksteen, a psychologist and practicing hypnotist, conducted the hypnosis session on July 23, 1981. ² Haksteen testified that in his opinion, Anthony at some point had gone into a "hypnotic trance," during which time he had disclosed the following information that Haksteen had later compiled in a report: Young man of his age (twenty), dark hair, dark eyes, two days growth of beard, black or navy blue polo shirt, blue jeans, brown leather belt with tarnished oval buckle, a little taller than he, with a French name that was very hard to pronounce. Haksteen also testified, however, that although he had regarded Anthony's behavior during the session as consistent with that of a hypnotized person, he had not been trained to "spot malingerers" or subjects who might be intentionally feigning hypnosis. Haksteen admitted that Anthony "could have faked it."

Immediately after the session, Anthony again described the man to the police. ³ Killiany testified that "the only thing that was new" in the July 23, 1981 description was the "brass buckle on the belt of the person he had seen." Similarly, Anthony testified that "[t]he statement[s] that I gave before I saw the hypnotist and after I saw the hypnotist are the same," "except for I might have ... said ... different words or described maybe something that they didn't press on the day before or the day before that."

Contrary to Haksteen's perception that Anthony had achieved a hypnotic state, Anthony testified that at "no time" during the hypnosis session had he been unaware of "what was going on." He described the tests Haksteen had performed in detail that matched Haksteen's testimony, and stated that he had told Haksteen "pretty much exactly what I told the police the first time I talked to them." Anthony also testified that he had known the man's name as the defendant's name before the session, but when Haksteen "got to the part about who I saw ... I would always come back with the same answer ... I would just keep telling him I saw faces." Eventually, Anthony had given Haksteen "a different name" that he had made up, and he stated that "it was a French name and I was trying to think of French names when I was sitting there." Anthony explained that he had withheld the name at and after the session " '[because] of the attitude problem we were having with the police department."

On these facts, the court ruled that Anthony had not been hypnotized and denied the defendant's motion to suppress. The court thus declined to consider the effect of any alleged "hypnosis" on the reliability of Anthony's subsequent descriptions and identification of the defendant. ⁴ Following this ruling, the state called Anthony as a witness and he testified to his recollections in full.

The defendant argues that the court incorrectly admitted Anthony's testimony for several reasons. He claimed in his brief that the "majority American rule" "presumes that anyone who has undergone hypnosis has in fact been hypnotized," and only in "the rare case" can this presumption "be overcome by expert opinion to the contrary." At oral argument, the defendant contended that the question of whether a witness has in fact been hypnotized is "not a proper inquiry for the court" because "the court cannot tell whether the [witness] has been affected or not by hypnosis." He further asserted at argument that "the last person who is competent to testify as to whether he was influenced by the hypnosis session is the person who was subjected to the procedure," and that in the absence of expert testimony that the witness had not been hypnotized, "the court has no discretion to bypass the state's burden of showing that [the witness'] testimony was recalled and related prior to the hypnosis process."

Initially, we note that while the defendant refers us to a number of cases that purportedly follow a "majority rule" of presumptive hypnosis, only one of those cases involves a situation where the...