Summerville v. Warden, State Prison

• Decision Date: 24 May 1994
• Docket Number: No. 14649,14649
• Court: Connecticut Supreme Court
• Parties: Robert SUMMERVILLE v. WARDEN, STATE PRISON.

Page 1356

641 A.2d 1356

229 Conn. 397

Robert SUMMERVILLE v. WARDEN, STATE PRISON.

No. 14649.

Supreme Court of Connecticut.

Argued Oct. 29, 1993.

Decided May 24, 1994.

Paula Mangini Montonye, Asst. Public Defender, for appellant-appellee (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-appellant (respondent).

Before PETERS, C.J., and BORDEN, BERDON, NORCOTT and LAVERY, JJ.

BORDEN, Associate Justice.

This certified habeas corpus appeal raises two principal issues. They are: (1) whether habeas corpus recognizes a claim of actual innocence affecting the fairness of the petitioner's criminal trial even if that claim does not depend upon an antecedent constitutional violation; and (2) whether, in the circumstances of this case, the petitioner has produced sufficient evidence to require a remand to the habeas court for a consideration of his claim of actual innocence because his conviction of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(1) ¹ had been based on unreliable medical evidence.

Pursuant to our grants of certification to appeal, the petitioner, Robert Summerville, appealed, and the respondent, the warden of the state correctional institution at Somers, ² cross appealed from the judgment of the Appellate Court. That judgment: (1) affirmed the determination of the habeas court that the petitioner had not been denied his constitutional right to the effective assistance of counsel at his trial; and (2) reversed the judgment of the habeas court insofar as that court had not evaluated the evidence produced by the petitioner purporting to establish that his original conviction had been based on unreliable medical evidence. See Summerville v. Warden, 29 Conn.App. 162, 614 A.2d 842 (1992). With respect to the reversal, the Appellate Court remanded the case to the habeas court for a determination of the merits of the petitioner's claim.

We granted the petitioner's petition for certification to appeal, limited to the following issue: "Did the Appellate Court correctly conclude that it should not decide the issue of whether an ineffective investigation by a defense expert witness in a fashion that impairs the petitioner's defense is impugned to the defense attorney?" Summerville v. Warden, 224 Conn. 918, 617 A.2d 172 (1992). We also granted the respondent's petition to appeal, limited to the following issue: "Did the Appellate Court have proper grounds for remanding this case to the habeas court for a consideration of expert testimony that was not presented at the petitioner's criminal trial?" Id.

We conclude that the petitioner's petition for certification was improvidently granted, and we therefore decline to consider the issue presented by that petition. With respect to the issue presented by the respondent's petition for certification, we agree with the Appellate Court that a claim of actual innocence of the crime of which the petitioner has been convicted is cognizable in a habeas corpus proceeding. We conclude, however, that the evidence produced by the petitioner in this case was insufficient to establish such a claim on habeas corpus, and was, therefore, insufficient to justify any remand to the habeas court for evaluation of that evidence. Accordingly, we reverse the judgment of the Appellate Court.

I

A proper understanding of our determination of the issues presented in this case requires a thorough review of the evidence produced at the petitioner's criminal trial and at the habeas proceeding, as well as the procedural history of this case. The evidence supporting the petitioner's conviction was summarized in his original appeal on the merits in the Appellate Court. "On October 12, 198, ³ 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. Terrance Shea, a Stamford fireman and emergency medical technician, responded to the scene shortly thereafter. Shea checked the victim's pulse and upon finding none 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 further testified that he found an abrasion on the victim's neck below the left ear which seemed to have been caused by someone's fingernail. Katsnelson also noted a separation of the victim's hyoid bone, a U-shaped bone deep inside of the neck, hemorrhages to the victim's neck, eye, heart, and lungs, and cocaine in the victim's blood and nose.

"The [petitioner] called Elliot Gross, the former chief medical examiner in Connecticut, to support his theory that the victim died of cocaine intoxication. Gross, after reviewing the records and examining the larynx, tongue and hyoid bone which were made available to him through the chief medical examiner's office, testified that the victim's injuries and hemorrhages were due to the resuscitation efforts. On cross-examination, Gross conceded that microscopic slides of the areas of hemorrhaging could determine if the injuries had occurred before or after death, but that he did not order such slides in this case.

"The state then called William Q. Sturner, chief medical examiner for the state of Rhode Island, as a rebuttal witness. Sturner rebutted Gross' opinion by testifying that the injuries he observed were inconsistent with resuscitation. He based his testimony in large part on his examination of microscopic slides made from the area of hemorrhaging, the type of slides the [petitioner's] expert chose not to order. By examining the microscopic slides of where the hemorrhaging occurred, Sturner was able to determine that the hemorrhages occurred before the victim stopped breathing, and therefore were not the result of resuscitation efforts. Sturner concluded that the death of the victim was by strangulation." ⁴ State v. Summerville, 13 Conn.App. 175, 176-78, 535 A.2d 818 (1988).

In addition to this evidence, the following evidence was presented to the jury at the petitioner's criminal trial. Thomas Aiello, the occupant of the adjoining hotel room, testified that shortly after 5 a.m. he had heard heavy breathing, grunting and slapping noises coming from the petitioner's room, and that he had heard a woman's voice say "stop." Aiello interpreted the sounds as those of vigorous sexual activity, but the autopsy indicated no signs of recent sexual activity, and the petitioner did not describe any sexual activity with the victim in his statements to the police.

Gregory Cinque, a hotel employee who had assisted in the attempts to resuscitate the victim, testified that the victim's tongue had been protruding from her mouth. In addition, there was evidence that the bedclothes had been bloodstained, and that there had been blood under the victim's fingernails.

There was also evidence that the petitioner had summoned Irwin Osorio, the hotel security guard, to the room. He told Osorio that the victim had suffered a stroke while he and the victim had been fighting, and that he had tried to put her protruding tongue back into her mouth. The petitioner later told the police that, as the victim had gotten up from the bed to go to the bathroom, she had experienced a seizure and had fallen to the floor. He also stated to the police that the victim had choked on her tongue, and that when he had forced her jaw open and reached into her mouth to pull her tongue out, she had bitten his hands. The police observed marks or scratches on the backs of the petitioner's hands and fingers, but the physician who treated him at the hospital emergency room observed no wounds on his palms.

Katsnelson performed the autopsy on the victim. His initial external examination of the body disclosed certain marks and hemorrhages that he recognized as signs of asphyxiation, namely, a crescent-shaped abrasion on the left side of the victim's neck, that he attributed to pressure from a fingernail, and antemortem petechial hemorrhages ⁵ in the victim's lower left eyelid.

In addition, Katsnelson's autopsy disclosed other indications of asphyxiation. There were petechial hemorrhages in the posterior aspect of the heart and in the posterior and lateral aspect of the lung. There were also antemortem hemorrhages on the left sternocleidomastoid muscle and the left sternohyoid muscle, located in the area where the neck connects to the collarbone.

Further, according to Katsnelson, the victim's hyoid bone, which is a horseshoe shaped bone located deep in the upper part of the neck, had a separation of its right horn with hemorrhages in the connecting soft tissue. Katsnelson testified that during the autopsy he had performed the extraction of the hyoid bone with particular care so as to avoid any artifactual ⁶ damage to it because, from his external observations of the victim's body, he had suspected manual strangulation as the cause of death. He testified that he had observed the separation before removing the bone from the soft tissue in the victim's neck. He also testified that,...