State v. Thomas

• Citation: 533 A.2d 553,205 Conn. 279
• Decision Date: 17 November 1987
• Docket Number: No. 12492,12492
• Parties: STATE of Connecticut v. Kenneth THOMAS.
• Court: Supreme Court of Connecticut

Page 553

533 A.2d 553

205 Conn. 279

STATE of Connecticut v. Kenneth THOMAS.

No. 12492.

Supreme Court of Connecticut.

Argued Oct. 2, 1987.

Decided Nov. 17, 1987.

Robert M. Casale, Branford, for appellant (defendant).

Judith Rossi, Deputy Asst. State's Atty., with whom were Jack W. Fischer, Certified Legal Intern, and, on brief, Arnold Markle, State's Atty., and James G. Clark, Asst. State's Atty., for appellee (State).

Before ARTHUR H. HEALEY, SHEA, GLASS, COVELLO and HULL, JJ.

COVELLO, Associate Justice.

On January 23, 1984, a jury found the defendant guilty of murder in violation of General Statutes § 53a-54a. ¹ A judgment of conviction followed. The defendant claims on appeal that the trial court erred in: (1) failing to charge the jury on the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(2); ² (2) admitting testimony concerning a rope allegedly used in the murder; (3) admitting evidence relative to the state of mind of the victim and her daughter; (4) admitting evidence of two acts of violence committed by the defendant; and (5) denying the defendant's motion for mistrial on the ground that improper cross-examination of former counsel impaired the defendant's right to a fair trial and constituted prosecutorial misconduct. We disagree with each of these claims and find no error.

The jury reasonably could have found the following facts. The defendant lived with the victim, Sara Rose, and her twelve year old daughter in a New Haven apartment. Because of her deteriorating relationship with the defendant, the victim moved out of that apartment on or about March 31, 1982. She and her daughter lived temporarily with her parents while they prepared to move to a new apartment in West Haven. On several occasions the defendant attempted to effect a reconciliation, but the victim rejected his efforts. On Palm Sunday, April 4, 1982, the day the victim was last seen alive, witnesses observed the defendant in the early morning standing behind a pillar near the entrance to the telephone company where the victim was employed. He also was seen that day at the 11 a.m. church service the victim attended, and again in the telephone company parking lot when the victim left work at 7 p.m. A security guard saw the defendant drive the victim's car recklessly out of the parking lot with the victim as his passenger. The victim was not seen again until her body was found floating in the Quinnipiac River in New Haven on May 8, 1982. The victim's hands were bound behind her back, her legs were bound together at the ankles, and a bucket was attached to her feet, all with the type of rope used for clothesline.

The defendant first claims error in the trial court's failure to charge the jury on the lesser included offense of manslaughter in the first degree. A manslaughter instruction is appropriate when the evidence is legally sufficient to justify a conclusion that a murder has been committed "under the influence of extreme emotional disturbance." General Statutes § 53a-55(a)(2). "[A]n extreme emotional disturbance is one where self-control and reason are overborne by intense feelings such as passion, anger, distress, grief, excessive agitation or other similar emotions." State v. Elliott, 177 Conn. 1, 9, 411 A.2d 3 (1979).

A lesser included offense instruction is "purely a matter of our common law"; State v. McIntosh, 199 Conn. 155, 158, 506 A.2d 104 (1986); rather than a constitutional right. Such an instruction is required when "there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense...." State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). In this case, neither did the defendant specifically assert the affirmative defense of extreme emotional disturbance, ³ nor was there sufficient evidence put forth at trial to require a charge on extreme emotional disturbance. ⁴ See State v. Asherman, 193 Conn. 695, 732, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985); State v. D'Antuono, 186 Conn. 414, 419-22, 441 A.2d 846 (1982). Indeed, the defendant did not admit that he killed the victim, let alone that he did so under mitigating circumstances. The principal facts on this issue related to the defendant's allegedly distraught condition after the victim's disappearance. We conclude that, under these circumstances, the trial court did not err in refusing to charge the jury on manslaughter in the first degree as a lesser included offense.

The defendant next claims that the trial court erred in admitting testimony concerning a rope allegedly used in the crime. The victim's sister, Joanne Thompson, testified that on Friday, April 2, 1982, she helped the victim move her belongings from the apartment she had shared with the defendant. While there, Thompson observed a clothesline hung with clothes in the basement. On Monday, April 5, 1982, the day after the victim disappeared, Thompson returned to the defendant's apartment to look for the victim and noticed that the clothesline had been cut. At trial, Thompson identified the rope which had been used to bind the victim's hands and feet as similar to the clothesline rope she had observed, first intact and later cut, in the defendant's basement.

The defendant claims that the trial court erred in admitting this testimony without first establishing that the rope removed from the victim was indeed the rope hung as the defendant's clothesline. We disagree. Evidence is relevant if it " 'tends to establish the existence of a material fact or to corroborate other direct evidence in the case....' " State v. Fritz, 204 Conn. 156, 168, 527 A.2d 1157 (1987). Determinations of relevancy are within the broad discretion of the trial court and will not be overturned in the absence of clear abuse of that discretion. Id., at 167-68, 527 A.2d 1157. In making such determinations, a trial court is not required to find as a prerequisite to admissibility that evidence is conclusively linked to other evidence. "Evidence is not rendered inadmissible simply because it is not conclusive. It is admissible if it tends to support a relevant fact even in a slight degree, so long as it is not prejudicial or merely cumulative.... The defendant's objection goes essentially to the weight of the evidence rather than to its admissibility." State v. Morrill, 197 Conn. 507, 548-49, 498 A.2d 76 (1985). In analogous factual settings, this court has explicitly found admissible evidence tending to show that an accused had access to the means to commit the crime charged. See, e.g., State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987) (evidence that handcuffs were used at defendant's place of work admissible to show defendant's access to handcuffs); State v. Smith, 198 Conn. 147, 157, 502 A.2d 874 (1985) (evidence of knife in defendant's possession admissible despite lack of proof establishing it as the knife used in the crime). We find no error in the admission of this testimony.

The defendant next claims error in the admission of testimony concerning the state of mind of the victim and her daughter, from which the jury could have inferred that they feared the defendant. Evidence in this regard consisted of testimony from four witnesses centering on two events. Kevin Moore, a frequent visitor to the home of the victim's parents, and Patricia Rose, the victim's sister, both testified as to certain events of April 1, 1982. Both witnesses stated that on that date, while the victim was staying at her parents' apartment, the defendant came to look for her there. Both witnesses testified that when the victim was told that the defendant was at the door, she ran into a bedroom to hide.

Two other witnesses were Shirley Wright and Sherry Springer, neighbors of the victim and the defendant during the time they lived together. The women testified concerning arguments between the victim and the defendant, and their effect on the victim's twelve year old daughter, Nicole. The witnesses testified that, in one of these incidents shortly before the victim moved out, the defendant had held a knife to the victim's throat. Nicole had sought the neighbors' intervention and had been "shaking," "trembling" and "afraid."

The defendant objected to this evidence at trial and continues to challenge it on appeal on grounds of hearsay and prejudice. The state introduced the testimony that the victim hid from the defendant to support its theory that the motive for the murder was the deteriorating relationship between the victim and the defendant. The trial court expressly instructed the jury that the purpose of the evidence was to show that the relationship had broken down, and that, consistent with the state's theory of the case, the victim's estrangement from the defendant supplied the motive for him to commit murder. ⁵ Similarly, the neighbors' testimony relative to the argument and the defendant's knife wielding was admitted to show that the defendant had threatened the victim and, further, to support the state's theory as to motive and intent. Testimony describing Nicole's observable distress as a consequence of the domestic arguments was introduced as further evidence of the deteriorating and stormy relationship between the victim and the defendant.

Nonassertive conduct such as running to hide, or shaking and trembling, is not hearsay. State v. McCarthy, 197 Conn. 166, 173, 496 A.2d 190 (1985). The trial court correctly determined that the contested testimony was reliable circumstantial evidence of a deteriorated relationship. As such, it was relevant and probative because it tended to support the state's claim that the relationship had broken down, and from that circumstance the jury could infer motive.

While the testimony concerning these episodes was adverse to the defendant, we find no unfair prejudice. See State v. Graham, ...