State v. Sherman, 13649

• Citation: 38 Conn.App. 371,662 A.2d 767
• Decision Date: 13 September 1995
• Docket Number: No. 13649,13649
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Edward R. SHERMAN.

Page 767

662 A.2d 767

38 Conn.App. 371

STATE of Connecticut v. Edward R. SHERMAN.

No. 13649.

Appellate Court of Connecticut.

Argued Oct. 25, 1994.

Decided July 11, 1995.

Certification Denied Sept. 13, 1995.

[38 Conn.App. 373] James A. Wade, with whom were Daniel F. Sullivan and, on the brief, John W. Steinmetz, Hartford, for appellant (defendant).

[38 Conn.App. 374] C. Robert Satti, Sr., State's Atty., with whom were Sarah E. Steere, Groton and, on the brief, Holly Cini, certified legal intern, for appellee (state).

Before DUPONT, C.J., and LANDAU and SPEAR, JJ.

LANDAU, Judge.

The defendant appeals ¹ from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. ² He claims that prosecutorial misconduct deprived him of his constitutional right to a fair trial. The defendant also claims that the trial court improperly (1) admitted into evidence expert opinion testimony regarding the time of death that was based on unestablished factual assumptions and unreliable methodology, (2) excluded from evidence the defendant's expert's opinion as to time of death because of an alleged sequestration order violation, (3) admitted evidence of the victim's subjective state of mind, and (4) denied the defendant's motions for judgment of acquittal and a new trial.

The jury reasonably could have found the following facts. The victim, Ellen Sherman, was the defendant's wife. Due in part to extramarital affairs on the part of both the defendant and the victim, their marriage was contentious. On Friday, August 2, 1985, the defendant and the victim both arrived home after work at about 4 p.m. Several hours later, the defendant left the house for a week long sailing trip with four friends. On Sunday, August 4, the defendant made a ship to shore call to Barbara LeValley, a friend of the victim's, [38 Conn.App. 375] and asked her to check on the victim, as he had been unsuccessful in his efforts to contact her for two days. LeValley sent another friend, Len Fredriksen, to the Sherman residence. When Fredriksen arrived and found the house locked, he pried open a window and entered. Fredriksen discovered the naked body of the victim, then five and one-half months pregnant, in the master bedroom. The victim had died as a result of strangulation, both manual and ligature. When the body was discovered, the air conditioner in the bedroom was on and the door was closed, causing the room to be noticeably cold.

The defendant was not arrested for the murder of his wife until March, 1990. Initially, Catherine Galvin, then chief medical examiner for the state of Connecticut, determined that the victim had died between twenty-four and thirty-six hours prior to her observation of the body. The defendant had left on his trip over sixty hours prior to Galvin's observation. After being informed that the temperature of the bedroom when the body was found was "very cold, like a refrigerator," Galvin reevaluated the time of death and determined that the victim had died between forty-eight and ninety-six hours prior to observation.

A probable cause hearing lasting fourteen days preceded a jury trial, at the conclusion of which the jury returned a verdict of guilty. The trial court subsequently denied the defendant's motions for judgment of acquittal and for a new trial. This appeal followed.

I PROSECUTORIAL MISCONDUCT

The defendant first claims that the misconduct of the state's attorney throughout the probable cause hearing and trial deprived him of a fair trial in violation of the due process clause of the fourteenth amendment [38 Conn.App. 376] to the United States constitution and article first, § 8, of the Connecticut constitution. ³ He alleges that the prosecutor's misconduct falls into seven categories of proscribed behavior, each of which was sufficient to deny him a fair trial: (1) suppression of evidence favorable to him in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) deliberate disregard of the trial court's ruling on a motion in limine and improper questioning; (3) withholding of witnesses' statements; (4) commenting on facts not in evidence; (5) expressions of opinion as to the defendant's credibility and guilt; (6) injection of extraneous matter into the trial and appeal to the jurors' emotions; and (7) misrepresentation that the state would call a certain witness. The defendant also seeks review of the cumulative effect of this claimed misconduct, asserting that the various instances can be viewed as "individual strands in a web of prosecutorial impropriety that blanketed the entire trial"; State v. Castonguay, 218 Conn. 486, 509, 590 A.2d 901 (1991); and violated his right to a fair trial.

In analyzing the defendant's claim, we ask whether the prosecutor's conduct ' "so infected the trial with unfairness as to make the resulting conviction a denial of due process." ' Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); State v. Hawthorne, 176 Conn. 367, 372, 407 A.2d 1001 (1978). We do not focus alone, however, on the conduct of the prosecutor. ' "The fairness[38 Conn.App. 377] of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct." ' State v. Palmer, 196 Conn. 157, 163, 491 A.2d 1075 (1985), quoting State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S.Ct. 280, 78 L.Ed.2d 259 (1983); see also Darden v. Wainwright, supra; State v. Doehrer, 200 Conn. 642, 654, 513 A.2d 58 (1986).

"In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument; State v. Fullwood, [194 Conn. 573, 585, 484 A.2d 435 (1984) ]; State v. Falcone, 191 Conn. 12, 23, 463 A.2d 558 (1983); the severity of the misconduct; see United States v. Modica, 663 F.2d 1173, 1181 (2d Cir.1981); the frequency of the misconduct; State v. Couture, [194 Conn. 530, 562-63, 482 A.2d 300 (1984) ]; see State v. Doehrer, supra, [200 Conn. at] 654 [513 A.2d 58]; State v. Palmer, supra, [196 Conn. at] 163 [491 A.2d 1075]; the centrality of the misconduct to the critical issues in the case; Hawthorne v. United States, 476 A.2d 164, 172 (D.C.App.1984); the strength of the curative measures adopted; United States v. Modica, supra; Harris v. United States, 402 F.2d 656, 657 n. 1 (D.C.Cir.1968); State v. Doehrer, supra; and the strength of the state's case. See United States v. Modica, supra; State v. Couture, supra, [at] 564 [482 A.2d 300]; State v. Glenn, [194 Conn. 483, 492, 481 A.2d 741 (1984) ]." State v. Williams, 204 Conn. 523, 539-40, 529 A.2d 653 (1987).

A

The defendant first argues that the state suppressed ten distinct sets of evidence that were favorable to him in violation of Brady v. Maryland, supra, 373 U.S. 83, 83 S.Ct. 1194,

10 L.Ed.2d 215. [38 Conn.App. 378] In particular, he asserts that, at the probable cause hearing, the state withheld (1) a statement made by Fredriksen wherein he admitted to having had an affair with the victim, (2) a statement made by Fredriksen to the police on August 4, 1985, (3) a police report of an interview with Carol Colangeli on August 5, 1985, (4) LeValley's date book, (5) Detective Michael Malchik's report regarding the condition of the locks at the defendant's residence, (6) a copy of the bill from the Shermans' dinner at the Inn at Chester on August 1, 1985, (7) a police report of an interview with trial witness Theodore Mathieu, (8) the autopsy of the fetus, (9) the state police major crime squad checklist on which was recorded the temperature taken at the crime scene on August 5, 1985, and (10) the police report of an interview with LeValley on August 4, 1985

It has long been held, "on the basis of Brady v. Maryland, [supra, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215], and its progeny, that [s]ince the adversarial probable cause hearing [mandated by article first, § 8, of the Connecticut constitution as amended] ... is an essential part of a defendant's criminal prosecution, the constitutional obligation to disclose exculpatory material attaches at that time.... [I]n State v. Shannon, 212 Conn. 387, 406, 563 A.2d 646 [cert. denied, 493 U.S. 980, 110 S.Ct. 510, 107 L.Ed.2d 512] (1989), [the Supreme Court] held that in order for this court to consider claims of nondisclosure of exculpatory material at a probable cause hearing required by our state constitution, the defendant must demonstrate: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material. State v. Milner, 206 Conn. 512, 539, 539 A.2d 80 (1988)...." (Internal quotation marks omitted.) State v. White, 229 Conn. 125, 134-35, 640 A.2d 572 (1994), quoting State v. McPhail, 213 Conn. 161, 166-67, 567 A.2d 812 (1989).

[38 Conn.App. 379] If, after applying that analysis, we conclude that the state did suppress evidence in violation of Brady at the probable cause hearing, it is then incumbent upon us to determine whether " 'the nondisclosure did in fact taint the defendant's subsequent prosecution' and 'deprived the defendant of his constitutional right to a fair trial.' " State v. White, supra, 229 Conn. at 138, 640 A.2d 572. " 'Where there has been an initial disclosure of exculpatory evidence at trial, the appropriate standard to be applied is whether the disclosure came so late as to prevent the defendant from receiving a fair trial.' (Internal quotation marks omitted.) State v. Walker, 214 Conn. 122, 127, 571 A.2d 686 (1990). In other words, exculpatory evidence 'must be disclosed at a time in which it can...