Summerville v. Warden, State Prison

• Citation: 614 A.2d 842,29 Conn.App. 162
• Decision Date: 25 November 1992
• Docket Number: No. 10114,10114
• Court: Appellate Court of Connecticut
• Parties: Robert SUMMERVILLE v. WARDEN, STATE PRISON.

Page 842

614 A.2d 842

29 Conn.App. 162

Robert SUMMERVILLE v. WARDEN, STATE PRISON.

No. 10114.

Appellate Court of Connecticut.

Argued May 7, 1992.

Decided Sept. 15, 1992.

Certification Granted for limited

question Nov. 25, 1992.

Paula Mangini Montonye, Deputy Asst. Public Defender, for appellant (petitioner).

Judith Rossi, Asst. State's Atty., with whom, on the brief, were Eugene J. Callahan, State's Atty., and David I. Cohen, Asst. State's Atty., for appellee (respondent).

Before DUPONT, C.J., and FOTI and FREDERICK A. FREEDMAN, JJ.

DUPONT, Chief Judge.

The petitioner was convicted, after a jury trial, of the crime of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(1). ¹ The conviction was upheld by this court. State v. Summerville, 13 Conn.App. 175, 535 A.2d 818 (1988). The petitioner subsequently filed a petition for a writ of habeas corpus alleging (1) that his trial counsel rendered ineffective assistance and (2) that his conviction was based on unreliable medical evidence. After a hearing, the habeas court denied his petition and certified its decision for review by this court. We affirm the judgment of the habeas court regarding the ineffective assistance of counsel claim and reverse its judgment regarding the unreliable evidence claim.

The following facts from the petitioner's trial are relevant to the issues in the present appeal. On October 12, 1985, the petitioner and the victim, who had been friends for several years, met in a bar in Bridgeport. The victim invited the petitioner to attend a party in Stamford later that evening. Instead of attending the party, the two checked into a hotel room in Stamford at approximately 11:30 p.m. that evening. Both the victim and the petitioner remained in the room for several hours drinking, socializing, and ingesting cocaine.

At approximately 5:30 a.m. the following morning, the petitioner summoned a security guard to the room claiming that the victim had suffered a stroke. When the security guard entered the room, he observed the victim on the floor partially covered by a bed sheet. He checked for a pulse but found none. The security guard called the police for assistance. An emergency medical technician responded to the scene shortly thereafter. Upon finding no pulse, he began efforts to resuscitate the victim. Resuscitation efforts continued until the victim arrived at Stamford Hospital, but the victim never responded and was pronounced dead.

At trial, the state produced Arkady Katsnelson, an associate chief medical examiner, who testified that the victim died as a result of manual strangulation. Katsnelson based his conclusion on the following observations made during the autopsy process: (1) a semi-lunar abrasion on the victim's neck below the left ear that seemed to have been caused by a fingernail; (2) multiple petechial, or pinpoint, hemorrhages in the left eye and on the heart and lungs; (3) hemorrhages in the muscles on the left side of the neck; and (4) separation of the victim's hyoid bone, a U-shaped bone deep inside the neck, with evidence of hemorrhage at the place of separation. Katsnelson observed further injuries to the vocal chords and laryngeal area that he concluded could have been caused by intubation during resuscitation efforts. Katsnelson also testified that cocaine was present in the victim's blood and nose. Although the victim had a potentially fatal level of cocaine in her blood at the time of death, Katsnelson ruled out death by cocaine intoxication in light of the evidence pointing to manual strangulation.

The petitioner relied on the testimony of Elliot Gross, then the chief medical examiner for the city of New York and formerly the chief medical examiner in Connecticut, to support his theory that the victim died of cocaine intoxication. Gross indicated that after reading Katsnelson's autopsy report, he had questions about its findings in part because of the lack of external injuries to the victim's face and neck. After reviewing the various records and examining the larynx, tongue and hyoid bone, which were made available to him through the chief medical examiner's office, Gross testified as follows regarding Katsnelson's findings and conclusion: (1) the single abrasion on the left side of the victim's neck, which he agreed was semi-lunar in shape, although consistent with manual strangulation, was also consistent with resuscitation efforts and therefore was an insufficient basis for a conclusion of manual strangulation; (2) he was unable to conclude that the hemorrhage in the left eye was petechial, and he explained that, although petechial hemorrhages to the eyes, lungs, and heart are consistent with death by manual strangulation, they are indicators of an asphyxial death, that is, any death caused by the lack of oxygen to the brain, including seizure or convulsion, which can be caused by excessive cocaine ingestion; (3) the hemorrhages found in the neck muscles were near a puncture wound caused by the insertion of an intravenous line on the victim's left side and could have been an extension of the hemorrhage that resulted from that trauma as opposed to any injury to the neck muscles caused by strangulation; (4) although separation of the hyoid bone can occur as a result of manual strangulation or intubation during resuscitation or removal during the autopsy, he concluded that the separation of the hyoid bone in this case occurred during the autopsy, that is, it was an artifact of the dissection process, because he did not see extensive hemorrhages in the area of the separation and because another portion of the hyoid bone had been cut off by Katsnelson during the removal process. Gross, as did Katsnelson, testified that the hemorrhages in the laryngeal area were not petechial and were likely caused by intubation, the insertion of a tube into the breathing passages during resuscitation efforts. Gross also testified that the victim had a fatal level of cocaine in her blood at the time of death and that excessive levels of cocaine can cause convulsions and anoxia. Although Gross admitted that he could not exclude the possibility of manual strangulation based on each piece of evidence relied on by the state, he maintained the opinion that taken together the evidence was not sufficient to enable him to conclude that the victim died by strangulation. In light of the evidence of cocaine intoxication and, in his view, the inconclusive evidence of manual strangulation, Gross concluded that the cause of death was cocaine intoxication.

On cross-examination, Gross conceded that microscopic slides of the areas of the hemorrhaging could help determine if the injuries had occurred before death, but that he did not order such slides. While hemorrhaging will most often occur only in injuries inflicted before death, Gross noted that hemorrhaging can also appear in injuries caused within a short time after breathing has stopped.

The state then called William Q. Sturner, chief medical examiner for the state of Rhode Island, as a rebuttal witness. Sturner testified that the injuries in the laryngeal area were not caused by intubation and therefore were inconsistent with resuscitation. He based this testimony in part on his examination of microscopic slides made from the area of hemorrhaging, the same type of slides that Gross did not order. By examining the slides, Sturner claimed to be able to determine that the hemorrhages occurred before the victim stopped breathing and, therefore, in his opinion, were not the result of resuscitation efforts. Sturner examined slides of the tissue at the separation in the hyoid bone but was unable to render any opinion as to whether the separation was caused before the death of the victim. Sturner also testified that the hemorrhaging in the neck muscles was not caused by intubation or the insertion of the central intravenous line which was placed on the other side of the victim's neck by hospital personnel. In this regard, Sturner noted that hospital records showed that a "practice" line was put into the left side of the victim's neck by hospital staff very soon after she was pronounced dead. Sturner further testified that the semi-lunar abrasion on the victim's neck was caused by a fingernail before the victim died and not during resuscitation efforts. On the basis of the factors observed by him, including information gathered from his review of the slides, Sturner concluded the cause of death was not cocaine intoxication.

At trial, defense counsel objected to Sturner's testimony on the grounds that it was not appropriate rebuttal testimony and that the use of the slides by the state constituted unfair surprise. The state offered defense counsel a continuance in order to examine the slides. The petitioner's trial counsel, however, rejected the offer of a continuance.

On direct appeal, the petitioner challenged, inter alia, the trial court's decision to allow the rebuttal testimony of Sturner. This court concluded that Sturner's testimony was appropriate as rebuttal testimony and that it was not improperly admitted even though the slides used by Sturner were not made available to the petitioner prior to the day Sturner testified. State v. Summerville, supra, 13 Conn.App. at 181-84, 535 A.2d 818. We rejected the petitioner's argument that he was unfairly surprised by the state's use of the slides in part because the petitioner rejected the state's offer of a continuance; id., 183-84; and we did not agree with the petitioner's claim that the evidence was insufficient to support the conviction. Id., at 184-85, 535 A.2d 818.

The petitioner subsequently challenged his conviction in this habeas corpus proceeding. In his petition for a writ of habeas corpus, the petitioner claimed that the evidence on which his conviction rested was unreliable and that he was denied the effective assistance of counsel at his trial. The petitioner introduced evidence before the...