State of Connecticut v. Michael Skakel
SUPREME COURT OF THE STATE OF CONNECTICUT
Judicial District of Fairfield
STATE OF CONNECTICUT VS. MICHAEL SKAKEL
BRIEF OF THE STATE OF CONNECTICUT/APPELLEE
WITH SEPARATELY BOUND APPENDIX
TO BE ARGUED BY:
SUSANN E. GILL
SENIOR ASSISTANT STATE'S ATTORNEY
JUDICIAL DISTRICT OF FAIRFIELD
FAIRFIELD POST CONVICTION REMEDY UNIT
COUNTER STATEMENT OF ISSUES
1. DID THE TRIAL COURT CORRECTLY DETERMINE THAT DEFENDANT'S PROSECUTION WAS NOT BARRED BY THE STATUTE OF LIMITATIONS?
2. DID THE STATE VIOLATE THE COURT'S DISCOVERY ORDERS OR FAIL TO DISCLOSE EXCULPATORY EVIDENCE?
3. DID THE JUVENILE COURT APPROPRIATELY ORDER THE TRANSFER OF THE DEFENDANT TO THE CRIMINAL DIVISION OF SUPERIOR COURT?
4. ARE THE DEFENDANT'S UNPRESERVED CLAIMS OF PROSECUTORIAL MISCONDUCT SUPPORTED BY THE RECORD?
5. DID THE ADMISSION OF COLEMAN'S PROBABLE CAUSE HEARING TESTIMONY VIOLATE THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION?
6. DOES THE DEFENDANT'S INADEQUATE BRIEF AND AN INADEQUATE RECORD PRECLUDE REVIEW OF DEFENDANT'S COERCED CONFESSION CLAIM?
7. DID THE TRIAL COURT ABUSE ITS DISCRETION IN ANY OF THE THREE DISCRETE EVIDENTIARY RULINGS DEFENDANT CHALLENGES?
TABLE OF AUTHORITIES
CASES: Algonquin Gas Transmission Co. v. Zoning Board of Appeals, 162 Conn. 50, 291 A.2d 204 (1971); Bhinder v. Sun Company, Inc., 263 Conn. 358, 819 A.2d 822 (2003); Brady v. Maryland, 373 U.S. 83 (1963); California v. Green, 399 U.S. 149 (1970); Colorado v. Connelly, 479 U.S. 157 (1986); Commonwealth v. Johnson, 553 A.2d 897 (Pa. 1989); Commonwealth v. Kater, 432 Mass. 404, 734 N.E. 2d 1164 (2000); Crawford v. Washington, 124 S.Ct. 1354 (2004); Falter v. United States, 23 F.2d 420 (2d Cir.) cert. denied, 277 U.S. 590 (1928); Fied v. Washington, 485 U.S. 938 (1988); Furman v. Georgia, 408 U.S. 238 (1972); Idaho v. Wright, 497 U.S. 805 (1990); In re: Michael S., 258 Conn. 621, 784 A.2d 317 (2001); Kyles v. Whitley, 514 U.S. 419 (1995); Lostrito v. Community Action Agency, 269 Conn. 10, A.2d (2004); Mattox v. United States, 156 U.S. 237 (1895); Mucci v. Lemonte, 157 Conn. 566, 254 A.2d 879 (1969); Ohio v. Roberts, 448 U.S. 56 (1980); 58 People v. Hodgson, 740 P.2d 848 (Wash. 1987) cert. denied sub nom 28 People v. Sample, 161 Cal. App. 3d 1053 (App. Div. 1984); Roberts v. Caton, 224 Conn. 483, 619 A.2d 844 (1993); Smith v. State, 50 Conn. 193 (1882); State v. Aillon, 164 Conn. 661, 295 A.2d 676 (1972); State v. Ammons, 251 Ill. App. 3d 345, 622 N.E. 2d 58 (Ill. App. 1993) cert. denied, 154 Ill. 2d 562, 631 N.E.2d 711 (1994); State v. Anderson, 209 Conn. 622, 553 A.2d 589 (1989); State v. Angel C., 245 Conn. 93, 715 A.2d 652 (1998); State v. Anthony, 448 A.2d 744 (R.I. 1982); State v. Armes, 607 S.W.2d 234 (Tenn. 1980); State v. Blasko, 202 Conn. 541, 522 A.2d 753 (1987); State v. Braswell, 194 Conn. 297, 481 A.2d 413 (1984) cert. denied 469 U.S. 1112 (1985); State v. Burns, 236 Conn. 18, 670 A.2d 851 (1996); State v. Byrd, 239 Conn. 405, 685 A.2d 669 (1996); State v. Carter, 228 Conn. 412, 636 A.2d 821 (1994); State v. Christiano, 228 Conn. 456, 637 A.2d 382 cert. denied 513 U.S. 821 (1994); State v. Courchesne, 262 Conn. 537, 816 A.2d 562 (2003); State v. Cronin, 64 Conn. 293 (1894); State v. Crowell, 228 Conn. 393, 636 A.2d 804 (1994); State v. Dollinger, 20 Conn. App. 530, 568 A.2d 1058 cert. denied 215 Conn. 805, 574 A.2d 220 (1990); State v. Dowd, 19 Conn. 388 (1849); State v. Ellis, 197 Conn. 436, 497 A.2d 974 (1985); State v. Francis, 267 Conn. 162, 836 A.2d 1191 (2003); State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. Golino, 201 Conn. 435, 518 A.2d 57 (1986); State v. Grenier, 257 Conn. 797, 778 A.2d 159 (2001); State v. Hamlin, 47 Conn. 95 (1879); State v. Harvey, 77 Conn. App. 225, 822 A.2d 360 cert. denied 265 Conn. 906, 831 A.2d 252 (2003); State v. Hoyt, 46 Conn. 330 (1878); State v. Jacowitz, 128 Conn. 40, 20 A.2d 470 (1941); State v. James G., 268 Conn. 382, 844 A.2d 810 (1984); State v. James. 237 Conn. 390, 678 A.2d 1338 (1995); State v. James, 268 Conn. 382, 844 A.2d 810 (2004); State v. Jarrett, 82 Conn. App. 489, 845 A.2d 476 (2004); State v. Kelly, 206 Conn. 323, 537 A.2d 483 (1988); State v. Kurz, 131 Conn. 54 (1944); State v. LaPointe, 237 Conn. 694, 678 A.2d 942 cert. denied 519 U.S. 994 (1996); State v. Magnano, 204 Conn. 259, 528 A.2d 760 (1987); State v. McGuire, 84 Conn. 470, 80 A. 761 (1911); State v. Medina, 228 Conn. 281, 636 A.2d 351 (1994); State v. Merriam, 264 Conn. 617, 835 A.2d 895 (2003); State v. Mims, 61 Conn. App. 406, 764 A.2d 222 cert. denied, 255 Conn. 944, 769 A.2d 60 (2001); State v. Muhammad, 359 N.J. Super 361, 820 A.2d 70 cert. denied, 178 N.J. 36, 834 A.2d 408 (2003); State v. Nardini, 187 Conn. 513, 447 A.2d 396 (1982); State v. Outlaw, 216 Conn. 492, 582 A.2d 751 (1990); State v. O'Neill, 796 P.2d 121 (Idaho 1990); State v. Palozie, 165 Conn. 288, 334 A.2d 468 (1973); State v. Paradise, 189 Conn. 346, 456 A.2d 305 (1983); State v. Pin, 56 Conn. App. 549, 745 A.2d 204, cert. denied 252 Conn. 951, 748 A.2d 299 (2000); State v. Pinder, 250 Conn. 385, 736 A.2d 857 (1999); State v. Rivera, 268 Conn. 351, 844 A.2d 191 (2004); State v. Rizzo, 266 Conn. 171, 833 A.2d 363 (2003); State v. Ross, 269 Conn. 213, 343, A.2d (2004); State v. Sauris, 227 Conn. 389, 631 A.2d 238 (1993); State v. Schiappa, 248 Conn. 132, 692 A.2d 820 cert. denied 528 U.S. 862 (1999); State v. Sharpe, 195 Conn. 651, 491 A.2d 345 (1985); State v. Singh, 259 Conn. 693, 793 A.2d 226 (2002); State v. Smith. 200 Conn. 465, 512 A.2d 189 (1986); State v. Spiegelmann, 81 Conn. App. 441, 840 A.2d 69 cert. denied, 268 Conn. 921, 846 A.2d 882 (2004); State v. Stanley, 223 Conn. 674, 613 A.2d 788 (1992); State v. Stevenson, 2004 Conn. Lexis 230, 11-12 (June 15, 2004); State v. Sucharew, 205 Ariz. 16, 66 P.3d 59, 63-64 (Ariz. Ct. App. Div. 1, Dept B 2003); State v. Tanzella, 28 Conn. App. 581, 601 (1992) cert. granted other issue, rev'd 226 Conn. 601, 628 A.2d 973 (1993); State v. Thompson, 266 Conn. 440, 832 A.2d 626 (2003); State v. Whelan, 200 Conn. 743, 513 A.2d 86 cert. denied, 479 U.S. 994 (1986); State v. Wilcox, 254 Conn. 441, 758 A.2d 824 (2000); Stogner v. California, 539 U.S. 607, 123 S.Ct. 2446 (2003); Strickler v. Greene, 527 U.S. 263 (1999); Ullman v. State, 230 Conn. 698, 647 A.2d 324 (1994); United States v. Payne, 63 F.3d 1200 (2d Cir. 1995) cert. denied, 516 U.S. 1165 (1996); United States v. LeRoy, 687 F.2d 610 (2d Cir. 1982) cert. denied, 459 U.S. 1174 (1983); United States v. Matthews, 20 F.3d 538 (2d. Cir. 1994); United States v. Mulderig, 120 F.3d 534 (5th Cir. 1997) cert. denied, 523 U.S. 1071 (1998); United States v. Provenzano, 423 F.Supp. 662 (S.D. N.Y. 1976) aff'd 556 F.2d 562 (2d Cir. 1977); United States v. Runyon, 290 F.3d 233 (5th Cir.) cert. denied, 537 U.S. 888 (2002); United States v. Zackson, 6 F.3d 911 (2d Cir. 1993)
CONNECTICUT GENERAL STATUTES: Acts of 1870, Ch. 73; General Statutes, Title 6, Ch. 2, Subsections 3, 4, 5; General Statutes Section 17-53 (Rev. to 1975); General Statutes Section 17-59 (Rev. to 1975); General Statutes Section 17-60 (Rev. to 1975); General Statutes Section 17-60a (Rev. to 1975); General Statutes Section 17-66 (Rev. to 1975); General Statutes Section 17-68 (Rev. to 1975); General Statutes Section 17-70(b) (Rev. to 1975); General Statutes Section 46b-120(1) (Rev. to 2003); General Statutes Section 46b-121(a) (Rev. to 2003); General Statutes Section 46b-127 (Rev. to 2003); General Statutes Section 53a-28 (Rev. to 1975); General Statutes Section 53a-35 (Rev. to 1975); General Statutes Section 53a-45 (Rev. to 1975); General Statutes Section 53a-46 (Rev. to 1975); General Statutes Section 53a-46a (Rev. to 1975); General Statutes Section 53a-54 (Rev. to 1975); General Statutes Section 53a-54 (Rev. to 1972); General Statutes Section 53a-54a (Rev. to 1975); General Statutes Section 53a-54b (Rev. to 1975); General Statutes Section 53a-55 (Rev. to 1975); General Statutes Section 53a-55(a) (Rev. to 2003); General Statutes Section 53a-93 (Rev. to 1975); General Statutes Section 54-193 (Rev. to 1977); General Statutes Section 54-193 (Rev. to 1975)
LEGISLATIVE HISTORY: 19 S. Proc., Pt. 1, 1976 Sess., p. 341; H-136, 1973 H.P., Vol. 16, Part 6, p. 2925
MISCELLANEOUS: 1874 Rev. Swift's Digest Ch. III; 5 Wigmore, Evidence (Chadbourne Rev. 1974) Section 1421; Adelstein, Alan, L., Article: Conflict of the Criminal Statutes of Limitations with Lesser Offenses at Trial, 37 William and Mary L. Rev. 199 (1995); Belli, M.M., Modern Trials (2d Ed. 1982), Vol. 5, Section 70.18; Carney, B. and Feigenson, N., Visual Persuasion in the Michael Skakel Trial: Enhancing Advocacy Through Interactive Media Presentations, 19 Criminal Justice (ABA) Spring 2004,22; Comment: Meeting the Statute of Limitations or Beating it: Using "John Doe" Indictments based on DNA to Meet the Statute of Limitations, 150 U.Pa. L. Rev. 1079 (2002); Commission Comments to the Penal Code re: Section 53a-54a; Haydock and Sonstag, Opening and Closing: How to Prepare a Case (West 1994); Lubet, S., Modern Trial Advocacy (Nat'l Inst. for Trial Advocacy, 1997) 49 Manuet, T.A., Trial Techniques (Little, Brown 4th Ed. 1996); Moore, A.J., Bergman, P. and Binder, D.A., Trial Advocacy, Inferences, Arguments and Techniques (West 1996); Singer, Sutherland Statutory Construction, Section 47:14 (6th Ed. 2000); Smith, L. J., Art of Advocacy: Summation (1987) Section 1.5; Sup. Ct. Rec. and Br. State v. Crowell, S.C. 14478; Torcia, Wharton's Criminal Law (14th ed. 1978) (Supp. 1992) Section 90; Wharton, Criminal Law, '140 (15th Ed. 1994)
PUBLIC ACTS: PA 03-154; PA 73-137; PA 76-35
RULES OF COURT: Conn. Evid. Code. Section 4-2; Conn. Evid. Code Section 4-3; Conn. Evid. Code Section 6-7; Conn. Evid. Code Section 8-3; Conn. Evid. Code Section 8-6 (1); Conn. Evid.Code Section 8-9; Practice Book Section 40-11; Practice Book Section 40-14; Practice Book Section 42-54; Practice Book Section 60-5; Federal Rules of Evidence, Rule 609 (b)
On February 8, 2000, the state charged the defendant, Michael Skakel, with murder pursuant to General Statutes 53a-54a (Rev. to 1975) for the October 30-31, 1975 death of Martha Moxley. The charge was originally brought to the juvenile division of Superior Court. After a hearing, the Juvenile Court (Dennis, J.) ordered the prosecution transferred to the criminal division of Superior Court. The defendant appealed the decision transferring his prosecution to criminal court. After briefing and argument, this Court held that the transfer order was not a final judgment and dismissed defendant's appeal. In re: Michael S., 258 Conn. 621, 784 A.2d 317 (2001). Following a trial before the Honorable John F. Kavanewsky, Jr. and a jury of twelve, the defendant was found guilty. On August 29, 2002, the court sentenced the defendant pursuant to General Statutes Section 53a-35 (Rev. to 1975), to the custody of the Commissioner of Correction for a period of not less than twenty years nor more than life. T. 8/29 at 86.
Statement of Facts
a) Events Surrounding the Murder
Based on the evidence adduced at trial, the jury could have reasonably found the following facts:
In 1975, fifteen-year-old Martha Moxley lived on Walsh Lane in a section of Greenwich known as Belle Haven. T. 5/7 at 27, 35-36. The defendant's family lived diagonally across the street from Martha, in a house that fronted onto Otter Rock Drive. (Footnote 1) Id. at 32. The Skakel family consisted of the father, Rushton Skakel, and seven children, most of whom were teenagers in 1975. (Footnote 2) The children's names, from eldest to youngest, were: Rushton, Jr., Julie, Thomas, John, Michael, David and Stephen. T. 5/9 at 69; see SE 69 (Skakel family photograph found at EPP/MainMenu/photographs/sailboat).
During the late summer of 1975, Martha had become acquainted with two of the Skakel sons -- Thomas, called Tommy, who was 17, and Michael, who was 15. The defendant became infatuated with Martha. T. 5/20 at 152-55; T. 5/21 at 143. Unfortunately, so did his brother, Tommy. Friends testified they had seen Tommy "flirting" with Martha. T. 5/9 at 41, 70-71; see SE 81 (Martha's Diary) at EPP/MainMenu/documents/diary.
On the evening of Thursday October 30, 1975, Martha left her home to go out with a neighborhood friend, Helen Ix, at about 6:30. T. 5/7 at 37. Martha did not have school the next day, but the children who went to private school did. Id. at 36.
Martha, Helen, and other children from the neighborhood stopped by the Skakel home a couple of times that evening, but the Skakel children, along with their tutor, Ken Littleton, their cousin, James "Jimmy" Terrien and a friend, Andrea Shakespeare, were at the Belle Haven Club for dinner. T. 5/9/02 at 42-43; 118. At about 9 p.m., Martha and her friends went to the Skakel house again. The Skakels had returned from dinner at this point. Martha, Helen Ix, and another youngster from the neighborhood, Jeffrey Byrne, (Footnote 3) and the defendant sat in a Lincoln Continental parked in the Skakel's side driveway, listening to music and talking. See EPP/MainMenu/BelleHaven/Skakel residence; T. 5/9 at 65-67, 95. Michael later stated that he considered the time he and Martha were in the car as a "moment of closeness" with her. T. 5/21 at 144. Soon, however, his brother Tommy joined them. T. 5/9 at 68-69.
At about 9:30, Rushton, Jr., John Skakel, and Jimmy Terrien came out of the Skakel house. They informed the teens sitting in the car that they needed the car to drive Jimmy Terrien home. T. 5/9 at 68-70; 102-5. Tommy, Martha, Helen and Jeff Byrnes got out of the car. Id. at 69, 102-5. Helen Ix testified that as she was leaving to go home, Tommy and Martha were in the Skakel driveway, and the car going to the Terrien's was in the process of leaving. She stated that Tommy and Martha were engaging in flirtatious "horse play." Helen felt a little embarrassed by the flirting. She and Jeff Byrne left together. Id. at 69-71.
Meanwhile, at the Moxley house, Mrs. Dorthy Moxley, Martha's mother, was home alone. T. 5/7 at 38. Martha's father, David Moxley, was out of town on a business trip. Her 17-year-old brother, John, was out with friends. Mrs. Moxley spent the evening upstairs in the master bedroom painting the mullions on the windows. Id. at 37-9.
After hearing a "commotion" outside at about 9:30 or 10:00, Mrs. Moxley decided to stop painting for the evening. She cleaned up her paint supplies and took a shower. Id. at 42-45.
By this time, it was about 11:00 p.m. Mrs. Moxley went downstairs to watch the news. While she was watching the news or shortly thereafter, her son John came home. Mrs. Moxley started watching a movie, but fell asleep on the sofa. Id. at 45-46.
When she woke up at about 1:30 or 2:00 a.m., Martha was still not home. Mrs. Moxley woke John and asked him to go out to look for his sister. Id. When John returned with no information, Mrs. Moxley called Helen Ix. Helen told Mrs. Moxley that she had last seen Martha at the Skakel's with Tommy. Mrs. Moxley called the Skakel house. Id. at 46-7.
Mrs. Moxley stated that she called the Skakel residence three or four times during the course of the night; each time the phone was answered by eighteen-year-old Julie Skakel. Mrs. Moxley testified that it did not take Julie a long time to answer the phone and she did not sound groggy or sleepy when she did, despite the fact it was then about 2 a.m. Id. at 47-48.
During one of her calls to the Skakels that night, Mrs. Moxley asked to speak to Tommy. She stated that it did not take long to bring Tommy to the phone and he did not sound sleepy when he answered. During the last phone call to the Skakels, Julie suggested Dorthy Moxley call Jimmy Terrien's house. Id. at 48-49.
When Mrs. Moxley called the Terriens, Jimmy's mother answered. Mrs. Moxley explained that she was looking for her daughter, Martha. Mrs. Terrien asked for Mrs. Moxley's number and stated she would check to see if Martha was there and call her back. When Mrs. Terrien called back, she said that neither Martha nor Jimmy were there. Id. at 62-3.
At that point, Mrs. Moxley called everyone she thought could possibly know where Martha was. Eventually, she called the Greenwich Police, who sent an officer to the house. Id. at 63-64. After the officer left, Mrs. Moxley fell asleep in the library. When she awoke the next morning, she went to the Skakel's to see if Martha had fallen asleep in the motor home that was often parked in the Skakel driveway. Id. at 64-5.
By this time, it was after 8:00 a.m. High school students from the neighborhood who went to private school had left for school already. Yet the defendant, who was fifteen and a private school student, answered the door. Mrs. Moxley told him who she was and that she was looking for Martha. Michael, whom Mrs. Moxley described as looking "hung over," in bare feet and dressed in a pair of jeans and a t-shirt, said Martha was not there. Mrs. Moxley asked if she could look in the Winnebago. A Skakel employee said that he would look for her. He found no sign of Martha. Id. at 66-68.
Mrs. Moxley returned home. At about 12:30 that day, a teenage friend of Martha's found Martha's body under a large pine tree. Id. at 70, 114-16. The victim was lying face down, with her pants and panties pulled down around her knees. Id. at 120; SE 15, 16, 17; EPP/BelleHaven/CrimeScene/Victim
When news of the killing spread, Andrea Shakespeare was called to the office at the high school she and Julie attended and asked to accompany Julie Skakel home. T. 5/9 at 129. When the two girls pulled down Otter Rock Drive, they could not park in the Skakel driveway because there were vehicles blocking the way. Julie parked on the street. Id. at 130. Upon seeing them, the defendant, who appeared "hyper," ran up to the car and told them that Martha had been killed and "he and Tommy were the last to see her that night." Id. at 132.
b) Crime Scene and Autopsy Evidence
The investigation of the crime scene and the autopsy of the victim revealed that Martha had died from blunt traumatic head injuries sometime between 9:30 p.m. and 5:30 a.m. T. 5/8 at 108, 126. The murder weapon, a Tony Penna 6 iron golf club, was found soon after the body was discovered. The head of the golf club and two pieces of shaft were found at the crime scene. T. 5/7 at 161; SE 26A; see EPP\MainMenu\BelleHaven\CrimeScene. An eighteen to twenty inch section of the golf club, which included the handle, was never found. T. 5/7 at 170.
The autopsy revealed that the assailant struck the victim in the head at least eight or nine times with the golf club. T. 5/8 at 124. Dr. Henry Lee testified that the assailant used such force that the golf club broke. Id. at 144-47. After it broke, he used it to stab her in the neck, driving a piece of her hair from one side of her neck to the other. Id. at 121; see SE 28. Dr. Harold Carver, who interpreted the findings of the coroner who performed the autopsy in 1975, testified that the coroner used an ultraviolet light to detect the presence of semen on the victim's pubic area. No semen was found in this area, or in vaginal or anal swabs taken from the victim. Nothing in the original coroner's report, however, indicated he applied the ultraviolet light to the victim's buttocks or any other part of her body. Id. at 101-3.
Examination of the body revealed a reddish mark at the top of the victim's inner left thigh. Autopsy pictures reveal a similar mark on her right thigh. Dr. Lee stated that these marks were consistent with bloody hands trying to push the victim's legs apart. Id. at 149.
Detective James Lunney, from the Greenwich Police Department, went to the Skakel house on the afternoon of October 31, following the discovery of the body. While he was in the house, he observed golf clubs, along with umbrellas and other things, in a barrel. The barrel was in a hallway leading to a back door. T. 5/9 at 9-12.
On the following day, November 1, Lunney returned to the Skakel house and, with Rushton, Sr.'s consent, seized a golf club. It was a Tony Penna four iron. Id. at 13-15. That club, as well as the murder weapon, had belonged to the defendant's mother. The club seized by Lunney bore a label near the handle which read: Mrs. R. W. Skakel. Id. at 17-19; SE 65; EPP/Main Menu/Photographs/Label. The handle of the murder weapon, which presumably bore an identical label, was never found. Id. at 21.
c) The 1975 Alibi
The morning after the victim had been found murdered, the defendant, Tommy, John, and Jimmy Terrien went to a house the Skakel family owned in Windham, New York. Ken Littleton went with them. Julie Skakel and the two youngest Skakel boys, Stephen and David, stayed behind. T. 5/9 at 175-76.
On November 14, 1975, Mr. Skakel brought Julie, Tommy, Michael, John, and Jimmy Terrien to the police station to give statements. T. 5/28 at 83. Mr. Skakel remained with Michael while he gave his statement. Id. at 109, 112-13. In his statement, Michael claimed he went with his brothers and cousin to Jimmy Terrien's house the night of the murder. SE 112 (transcript of defendant's 1975 Police Interview) The purpose of the trip was to bring Jimmy home, and also to watch "Monty Python's Flying Circus," which was on television that night. Michael claimed that they stayed at the Terrien's until between 10:30 and 11:00 and then returned home. Id. Michael stated that he went to bed shortly after returning home and did not leave the house again that night. He admitted, however, that he had snuck out of the house late at night on previous occasions. Id.
d) The Demise of the Alibi
Although defendant's brother, Rushton, and cousin, Jimmy Terrien, testified at trial that defendant had accompanied them to Terrien's on October 30, 1975, John Skakel stated, as he had to the Grand Jury in 1998, that he could not remember who went to Terrien's. See T. 5/22 at 11-13, 64-65; T. 5/28 at 57-60.
Another cousin of the defendant's, Georgeann Dowdle, Jimmy's sister, testified that she was home on the evening of October 30, 1975. She stated, as she had to the Grand Jury, that she heard voices in the house that night belonging to her Skakel cousins, but could not identify the voice of any particular cousin. T. 5/23 at 53-65.
Helen Ix testified that she was not sure whether Michael was in the car headed for Terrien's as she left for home. T. 5/9 at 75, 81. In her first oral statement to the police on October 31, 1975, Helen Ix said that when Rushton, Jr., Jimmy and John came out to take Jimmy home, "they all got out of the car." Id. at 95. On November 14, 1975, when she gave a tape recorded statement to the police, she said she, Martha, Tommy and Jeff got out of the car. Id. at 102-5. During that interview, she was not asked whether Michael was in the car as it left for Terrien's or not, but she did state that she did not see the car drive away. Id. At trial, she reiterated that she did not see the car drive away. Id. at 96.
Andrea Shakespeare testified that, after the car going to Terrien's had left, she and Julie came out the front door of the Skakel house. T. 5/9 at 125-6. Julie was going to drive Andrea home in another Skakel vehicle. This car was parked in the circular driveway in front of the house, rather than in the side driveway where the Lincoln had been parked. Id. Andrea was certain that at the time she and Julie went outside to get in Julie's car, the car going to Terriens had already departed. Id. at 127. As they were walking from the house to the car, Julie saw a figure running by and yelled, "Michael, come back here." T. 5/29 at 19-20. When they got to the car, Julie realized she did not have the keys. Andrea went back to the house to collect the keys. Because the front door had locked behind them, she had to ring the bell. Tommy answered. As she went into the front entranceway and collected the car keys from a bureau near the door, she saw Ken Littleton on the stairs. Id. at 126-7, 140-43.
Andrea Shakespeare testified that she was certain the defendant was at the house after the car left for Terrien's. Id. at 127.
e) The Defendant's Admissions
In the Spring of 1976, the defendant, Julie, and Rushton, Jr. went into a barbershop in Greenwich. Julie asked the barber, Matthew Tucharoni, if he had time for a haircut. Tucharoni said he did. As he was preparing to cut the defendant's hair, the defendant said, "I'm going to kill him." Julie responded, "Shut up, Michael." Michael's reply was, "Why not? I did it before." T. 5/15 at 158-167; T. 5/20 at 149.
In 1977, Rushton Skakel, Sr. asked Larry Zicarelli, who worked for the family as a gardener and driver, to drive Michael into New York City for an appointment. Michael and his father had been fighting and Michael was distraught. T. 5/16 at 13-15. On the way into the city, the defendant told Zicarelli that he had done something very bad and he had to either kill himself or get out of the country. T. 5/16 at 15. As they were driving home, they were stopped in traffic on the Triboro Bridge. The defendant jumped out of the car and ran to the side of the bridge. Zicarelli grabbed him and forced him back into the car. The defendant then leapt out of the other side of the car and again tried to make it to the side of the bridge. After getting him back in the car a second time, the defendant told Zicarelli that if he knew what he had done, he'd never talk to him again. Id. at 22-23.
In March of 1978, the defendant's family sent him to a residential school for troubled youth in Poland Springs, Maine, called "Elan." T. 5/16 at 57-58, 69. While there, he met an acquaintance and fellow Greenwich resident, Dorothy Rogers. Rogers testified that they met at a social function at Elan and began talking. Id. at 136-38. The defendant told her that he had been drinking the night Moxley was murdered and could not remember what he had done. He explained that he thought his family had put him in Elan because they were afraid he might have committed the murder. In addition, he said his family was trying to hide him from the police so that he would not go to jail. Id. at 138.
After Michael was returned to Elan from a failed escape attempt, fellow resident Gregory Coleman was assigned to guard him. T. 5/17 at 134. Coleman noticed that Skakel had a stereo and albums, things Elan denied to other residents. He made a comment about Skakel getting away with murder. The defendant responded that he was going to get away with murder because he was a Kennedy. He explained that he had made advances to a girl who spurned him. He then drove her skull in with a golf club. The golf club broke. He said it happened in a wooded area near his house. The defendant said he was in Elan to avoid the police investigation. Coleman also recalled the defendant saying he returned to the body two days later and masturbated on it. Id. at 136-38.
Another former resident of Elan, John Higgins, testified that he and the defendant were alone one night on guard duty. T. 5/16 at 179-80. He and Skakel were sitting on the porch to the men's dormitory, talking. Skakel told Higgins he had been involved in a murder. Higgins testified he remembered the defendant saying he was going through his garage and found a golf club. According to Higgins, the defendant also said he remembered running through the woods with the club in his hand, and he remembered seeing pine trees. In the course of the conversation, the defendant became very emotional. As he cried, the defendant progressed from saying "maybe I did it," to "I must have done it," to "I did it." Id. at 181-82.
Elizabeth Arnold, who knew the defendant at Elan, remembered him saying that the night of the murder his brother had "fucked" his girlfriend. She also recalled the defendant saying he did not know if he had killed her or if his brother had killed her. T. 5/17 at 4. Defendant told another person he met at Elan, Alice Dunn, that it could have been him or his brother who killed the girl in Greenwich. T. 5/17 at 67. He also said if he did, he was not in his normal state. Id. at 69.
In approximately 1981, Rushton Skakel, Sr. told his close friend and confidant, Mildred "Cissy" Ix (Footnote 4) that Michael had said he might have done it. T. 5/15 at 128.
In the summer of 1987, the defendant became acquainted with Michael Meredith, who had resided at Elan in 1985. T. 5/20 at 108. Meredith lived at the Skakels' Greenwich home that summer while he and Michael worked on a class action lawsuit against Elan. Id. at 109. Meredith testified that he knew nothing of the murder until one night when the defendant brought the subject up. The defendant said that he had been in a tree on the Moxley property the night of the murder and he masturbated while watching Martha through a window of her house. T. 5/20 at 111-12. Michael further said that while he was in the tree, he saw his brother Tommy walk through the property toward the Moxley house. Michael claimed he then climbed down from the tree without his brother seeing him. Id. at 113.
Andrew Pugh, who had been the defendant's best friend in 1975, stated that after the murder, things changed at the Skakel residence and he did not see Michael often. Id. at 143, 157, 159-63. When he met Michael again in 1991, Michael wanted to renew their friendship. Id. at 163. Pugh told Michael he had some misgivings regarding the murder. Michael told Pugh that he did not kill Martha, but that he had been in "the tree" masturbating the night she was killed. Pugh said he knew the defendant was referring to the tree under which her body was found. Id. at 164-65.
During the Spring of 1997, Skakel was at a party at Geranne Ridge's home. T. 5/21 at 9. In a taped conversation with a friend, Ridge stated that during the course of the party the defendant admitted that the night of the murder he had been outside smoking "pot" and "doing LSD and acid and really big-time drugs, mind, you know, altering drugs." SE 104 at 11-16; see EPP\MainMenu\audio\RidgeExcerpt. When he found out that Tommy had sex with Martha, "he got so violent and he was so screwed up" that he hit her with the golf club. Id.
In 1997, the defendant planned to write his autobiography with the help of author Richard Hoffmann. T. 5/21 at 139. Skakel and Hoffman spent a few days together at the Skakel family home in Windham, during which time the defendant talked about his life. Id. at 139-40. Hoffman recorded their conversations. Id. One section of the recordings concerned the night of the Moxley murder. Id. at 144-47. The defendant told Hoffman that he went to his cousin's house that night. SE 108 (CD of interview); see EPP/Audio/RichardHoffman-Screen50-52. When he returned, he claimed he went through the house looking for various people. He stopped at the door to his sister's room and "remembered that Andrea had gone home." Id. at Screen 74. He reported that he went to bed, but was "horny" and decided to spy on a woman on Walsh Lane. Id. at Screen 77-79. He claimed he was drunk and "couldn't get it up" so he thought "fuck this. . . Martha likes me, I'll go, I'll go get a kiss from Martha." Id. at Screen 84-85. He claimed he went to the Moxley house, climbed a tree and masturbated. Id. at Screen 86-94. As he climbed down the tree and headed for home, he stated that something told him not to go through the dark oval section in their front lawn. Id. at Screen 96-98. He began to "chuck" rocks into the oval, saying, "Come on motherfucker, I'll kick your ass." Id. at 100. As he ran home, Michael said he was worried that someone had seen him "jerking off." Id. at Screen 103.
Michael described how he woke the next morning to Mrs. Moxley saying, "Michael, have you seen Martha?" He claimed he was still high and a little drunk from the night before. He stated he remembered thinking:
"Oh my God, did they see me last night? And I'm like, I don't know, I'm like, and I remember just having a feeling of panic. Like 'oh shit.' You know. Like my worry of what I went to bed with, like may . . . I don't know, you know what I mean, I just had, I had a feeling of panic." Id. at Screen 105-107.
I. THE TRIAL COURT CORRECTLY DETERMINED THAT DEFENDANT'S PROSECUTION WAS NOT BARRED BY THE STATUTE OF LIMITATIONS
The defendant's primary contention is that the trial court erred in denying his Motion to Dismiss. Defendant asserts that a murder committed in 1975 is subject to a five year statute of limitation. DB at 16. In so doing, defendant relies on the provision within our former statute of limitations, General Statutes Section 54-193 (Rev. to 1975) which imposed a five year limit on prosecutions for any offense the punishment for which "is or may be imprisonment." Defendant argues that State v. Paradise, 189 Conn. 346, 456 A.2d 305 (1983) determined that murder under General Statutes Section 53a-54a (Rev. to 1975) was subject to this provision, and not the statute's exemption from limitation for crimes "punishable by death." DB at 16-20.
In addition, defendant argues that second degree murder, an offense recognized in Connecticut prior to the enactment of the penal code, was subject to a statutory time limit on prosecutions. This, he contends, is why the parties and the court in Paradise assumed that murder was so limited, and, rather than address the applicable time limit, focused on whether an amendment to the statute of limitations should be applied retroactively. See DB at 20.
State v. Paradise rests on a faulty assumption. Connecticut has never recognized a time bar to the prosecution of murder. As this court held in State v. Golino, the phrase "crimes punishable by death" contained in our former statute of limitations referred to a category of offenses so atrocious as to be subject to prosecution at any point. The 1976 amendment to the statute of limitations, which expressly exempts all class A felonies and capital felonies from repose, clarified the meaning of the original enactment. That amendment, therefore, made clear that murder had been, and remained, exempt.
Further, defendant is wrong to suggest that the type of murder of which he stands convicted was subject to a statutory time limit from 1851 to 1971. It is not at all clear that second degree murder was subject to a statutory limit on prosecutions as defendant contends. But even if it were, murder in the second degree was akin to modern day manslaughter, not murder. Under pre-penal code law, the intentional taking of human life -- of which defendant stands convicted -- was murder in the first degree, and hence indisputably outside any limitation period. Thus, if committed at any point from colonial times to the present day, defendant's offense would be subject to prosecution without limitation.
A. Defendant's Motion to Dismiss and the Trial Court's Ruling Thereon
Pursuant to an arrest warrant dated January 14, 2000, the defendant was arrested and charged with the October 30-31, 1975 murder of Martha Moxley. The defendant moved to dismiss. He argued that the statute of limitations in effect on the date of the offense, General Statutes Section 54-193 (Rev. to 1975) (Footnote 5) barred his prosecution because it was not commenced within five years of the homicide. See DA at A31.
After additional briefing, the trial court (Kavanewsky, J) denied the motion in a written Memorandum of Decision (reproduced in DA at A32-39). The trial court gave careful consideration to a trilogy of cases from this court: State v. Paradise, supra, State v. Ellis,197 Conn. 436, 497 A.2d 974 (1985) and State v. Golino, 201 Conn. 435, 518 A.2d 57 (1986). The court relied on the teaching of Ellis and Golino that Connecticut's statute of limitations "`as a whole, represents a system, a classification scheme whereby the allowable period of prosecution is related to the gravity of the offense.'" DA at A38, quoting State v. Golino, 201 Conn. at 444 (emphasis supplied in Memorandum). The court further relied on this Court's conclusion that the "`legislature used the phrase 'punishable by death' in our limitations statute as a shorthand reference to a category of crimes which, because of their atrocious nature, would always be amenable to prosecution.'" DA at A38-39; quoting Golino, 201 Conn. at 446. The court concluded that the gravity of the offense at issue, murder, has been "historically unquestioned." Accordingly, the trial court denied defendant's motion to dismiss. DA at A39.
B. The Assumption Underlying Paradise Is Wrong: Connecticut Has Never Placed a Time Limit on the Prosecution of Murder
In Paradise, the defendant was arrested in 1981 for a 1974 murder. State v. Paradise, 189 Conn. at 347. He was charged with the same version of the murder statute at issue here: General Statutes Section 53a-54a (Rev. to 1975). He claimed that his prosecution was barred under the statute of limitations. The state did not contend that the offense was exempt under the statute. Instead, it argued that the 1976 amendment to the statute of limitations, which expressly exempts all class A felonies and capital felonies, should be applied retroactively. See State's Brief in Paradise, DA at A140-A160; see also PA76-35 codified in General Statutes Section 54-193 (Rev. to 1977). Thus, in Paradise, the sole issue presented was "whether or not the current criminal statute of limitations, General Statutes Section 54-193, is to be applied retroactively." Id. at 347.
After considering cases addressing the issue of retroactivity, and the policy implications of retroactive application of criminal statutes, this court held that "criminal statutes are not to be given retroactive effect absent language clearly necessitating such a construction" and "54-193 contains no such language." Id. at 353. Accordingly, this court affirmed the trial court's dismissal of the murder charge Paradise faced.
It is clear, therefore, that Paradise did not decide whether a 1975 murder is subject to a five year limit on prosecution. See State v. Ellis, 197 Conn. at 461 ("The only issue actually litigated and decided in Paradise I was whether the amended statute of limitations would receive retrospective application.") It is also clear, however, that both the parties and the court assumed that the pre-1977 statute of limitations precluded the prosecution of murder under General Statutes 53a-54a (Rev. to 1975) unless commenced within five years of the offense. That assumption, arrived at "without the benefit of either a crystallization of the issue that naturally evolves out of an adversarial presentation, or the most persuasive legal authority that can be mustered in support of a position"; State v. Magnano, 204 Conn. 259, 277, 528 A.2d 760 (1987); should be examined and discarded.
1. The term "crimes punishable by death" refers to a category of offenses which has always included the intentional killing of another
Testing the assumption underlying Paradise requires an examination of the history, language, and precedent surrounding both our statute of limitations and our murder statute. At the time of this offense, General Statutes Section 54-193 (Rev. to 1975) "prescribed a five year limitation period on prosecutions `for treason . . . or for any crime or misdemeanor of which the punishment is or may be imprisonment in the Connecticut Correctional Institution, Somers . . . `" State v. Golino, 201 Conn. at 438. "The second clause of the statute provided a one year period of limitation on prosecutions `for the violation of any penal law, or for other crime or misdemeanor, except crimes punishable by death or imprisonment at Somers.'" Id. "Implicit in this statutory scheme is that `crimes punishable by death? were outside any limitation period, and thus always amenable to prosecution." Id.
The murder statute under which defendant was convicted, General Statutes Section 53a-54a (Rev. to 1975), provides in pertinent part: "(a) A person is guilty of murder when, with intent to cause the death of another, he causes the death of such other person or a third person . . . . (c) Murder is punishable as a class A felony unless it is a capital felony and the death penalty is imposed, as provided by Section 53a-46a."
In State v. Golino, this court held murder under General Statutes Section 53a-54 (Rev. to 1972) was exempt from any statutory time limit. At the time of the offense in Golino, Section 53a-54(c) (Rev. to 1972) provided that "[m]urder is punishable as a class A felony unless the death penalty is imposed as provided by section 53a-46." Despite this provision, Golino argued that the offense of murder was not, in fact, punishable by death because of the intervention of Furman v. Georgia, 408 U.S. 238 (1972). This court interpreted Furman as having invalidated Connecticut's capital sentencing statute. See State v. Aillon, 164 Conn. 661, 662, 295 A.2d 676 (1972). Golino claimed therefore, that because the only possible punishment for murder at that time was imprisonment, the five year limit should apply to his prosecution. Id. at 439.
In light of Furman, the question addressed in Golino was "whether, by using the phrase 'punishable by death' in Section54-193, the legislature intended to exempt from the statute crimes which actually could be punished by death, the exemption being because of the severity of the punishment imposed, or whether it intended to exempt a specific category of crimes which, because of their heinous nature, should always be amenable to prosecution." Id. at 443 (emphasis in original). Golino held it was the latter, and determined that the "legislature used the phrase 'punishable by death' as a shorthand reference to a category of crimes which, because of their atrocious nature, would always be amenable to prosecution." Id. at 446.
Golino arrived at this conclusion in reliance on the historical analysis undertaken by this court in State v. Ellis, supra. Id. at 443-44. Following the dismissal of charges in Paradise, the state recharged Paradise and his co-defendants, Ellis and Worthington, with capital felony murder under General Statutes Section 53a-54b (Rev. to 1975). On appeal in State v. Ellis, supra, this court rejected Ellis' claim that because capital murder could be punished by life imprisonment rather than death the five year limit should apply. Instead, this Court found the prosecution of Ellis et al exempt from limitation. In so doing, this Court emphasized that our statute of limitations must be read in light of its history and underlying policy:
This court does not interpret statutes in a vacuum, nor does it refuse to consider matters of known historical fact. When aid to the meaning of a statute is available, "there certainly can be no 'rule of law' which forbids its use, however clear the words may appear on 'superficial examination.'". . . A statute such as this, enacted more than one hundred sixty years ago, cannot meaningfully be interpreted "in isolation, but must be read in light of the common notions of the day and the assumptions of those who drafted [it].". . . And although criminal statutes are strictly construed, it is equally fundamental that the rule of strict construction does not require an interpretation which frustrates an evident legislative intent.
State v. Ellis, 197 Conn. at 445.
Viewing the language of the statute through the prism of history, this court held that despite changes to the crime of murder and its punishment, it could discern no legislative intent to thereby change the allowable period of prosecution. State v. Ellis, 197 Conn. at 459. Ellis also interpreted the statute as classifying offenses by their maximum possible penalty for purposes of determining the applicable time period. Id. at 454. In addition, Ellis found the legislative history of the 1976 amendment to the statute of limitations, which removed the antiquated language and stated expressly that capital crimes and class A felonies are never time barred, instructive. That history revealed that the amendment was intended to clarify, rather than change, existing law. Id. at 459-60. See 19 S. Proc., Pt. 1, 1976 Sess., p. 341. The court, therefore, concluded that a crime punishable by either death or imprisonment was 'punishable by death' for purposes of the statute of limitations. The prosecution of the defendants, who were charged with capital felony, was not barred. Id. at 460.
Applying Ellis and Golino to this case reveals the soundness of the trial court's decision. Importantly, the elements of the crime of murder which this defendant faced, and those at issue in Golino, are identical: causing the death of another person with the intent to cause death. Compare General Statutes Section 53a-54 (a) (1) (Rev. to 1972) with General Statutes Section 53a-54a(a) (Rev. to 1975). Therefore, if the offense at issue in Golino was so atrocious as to be subject to prosecution at any point, the same must be said for this offense.
The only change between the time of the Golino homicide and this offense came, not to our statute of limitations, but to our murder statute. In 1973 the legislature enacted Public Act 73-137 (PA 73-137) (reproduced in its entirety in SA A14-22). That Act repealed the former murder statute, General Statutes Section 53a-54 (Rev. to 1972), retained the old statute's definition of murder as the intentional killing of another, and added a provision which designated certain murders capital felonies. See PA 73-137 Section 2(a); but see PA 73-137 Section 3(6). The Act also provided that "murder is punishable as a class A felony unless it is a capital felony and the death penalty is imposed by Section 53a-46a." PA73-137 Section 2(c).
Although PA73-137 repealed and amended the murder statute between the commission of the crime at issue in Golino and the commission of this offense, nothing in the Act's language or history suggests a change to the allowable period of prosecution for murder was intended or effectuated.
2. Public Act 73-137, which amended our murder statute and created the offense of capital felony, did not change the allowable period of prosecution for murder
a. Nothing in the language of PA 73-137 suggests such a change
Neither the language nor the legislative history of PA73-137 suggests our former statute of limitations should be interpreted differently than this court did in Golino. "'The process of statutory interpretation involves a reasoned search for the intention of the legislature. State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003). In determining that meaning, [a reviewing court] look[s] first to the words of the statute and its relationship to other statutes. If the meaning of the statute is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." Lostrito v. Community Action Agency, 269 Conn. 10, 18-19, A.2d (2004) relying on PA 03-154. Because neither the text of the two statutes at issue nor the relationship between them reveals the legislature's intent plainly and unambiguously, this Court may appropriately consider extratextual evidence.
Turning first to the language of PA73-137, several sections of the Act either indicate the legislature did not intend to charge the statute of limitations, or are at least ambiguous on this point. For instance, Section 2 (c) of PA73-137, (codified in General Statutes Section 53a-54a(c) (Rev. to 1975)) provides that "[m]urder is punishable as a class A felony unless it is a capital felony and the death penalty is imposed as provided by section 4 of this act" (emphasis added). Notably, the legislature did not say murder is punishable as a class A felony, and capital felony is punishable as either a class A felony or by sentence of death. Instead, the legislature continued to use the term "murder" to describe a category of crimes "punishable by death." Thus, the legislature did not materially change the classification of murder from what it had been under General Statutes Section 53a-54 (Rev. to 1972) interpreted in Golino. See also PA 73-137, Section 1 (codified as General Statutes Section 53a-45(a) (Rev. to 1975) ("Murder is punishable as a class A felony unless it is a capital felony and the death sentence is imposed as provided by section 4 of this act") (emphasis added).
The placement of this language in Section 2 of PA 73-137 (and later codified in the same section as the definition of murder, General Statutes Section 53a-54a (Rev. to 1975)) is also significant. Subsection 6 (c) of PA 73-137 indicates that the "classification of each felony defined in this chapter is expressly designated in the section defining it." Therefore, because the PA 73-137 Section 2 both defines murder as the intentional killing of another (PA 73-137 2(a)) and expressly designates murder as either a class A felony or a capital felony (PA 73-137 2(c)), this legislation classifies murder as an offense "punishable by death." (Footnote 6)
Importantly, the section defining capital felony, PA 73-137 Section 3, does not contain a classification for that offense. Section 4 of the Act, however, which sets forth capital sentencing procedures, states in subsection (e) that if the fact-finder fails to make the requisite findings for the death penalty, "the court shall impose the sentence for a class A felony." See General Statutes Section 53a-46a(e). (Rev. to 1975), codifying PA 73-137 Section 4(e). Capital felony, therefore, like murder, is subject to two possible punishments, either as a class A felony, punishable with imprisonment, or as a capital felony punishable by death.
Two offenses may be the same for some purposes yet different for others. State v. Ellis, 197 Conn. at 471-72. Here, the legislature gave murder and capital felony a common penalty classification despite the fact that their elements differ. (Footnote 7) The singular classification of murder and capital felony brings the Ellis analysis to the fore.
In Ellis, this court considered whether capital felony should be held to the five year limit for offenses the punishment for which "is or may be imprisonment" or whether it should be exempt as an offense punishable by death. See General Statute 54-193 (Rev. to 1975). At issue in Ellis, therefore, was the exact same classification language at issue here, PA73-137, Section 2 (c) codified as General Statutes Section 53a-54a(c) (Rev. to 1975). Ellis interpreted the statute as classifying offenses by their maximum possible penalty for purposes of determining the allowable period of prosecution. Ellis held, therefore, that although capital felony was punishable by either death or imprisonment, it remained exempt from the statute of limitations as an offense "punishable by death." Murder, which is similarly classified, must be similarly exempt. (Footnote 8)
A further indication that the legislature did not change the allowable period of prosecution for murder is the fact that, although PA73-137 amended several provisions of the General Statutes to reflect changes wrought by the new death penalty provisions, it did not amend the statute of limitations in General Statutes Section 54-193. (Footnote 9) Had the legislature intended to change the statute of limitations for murder, it is reasonable to assume it would have done so expressly.
This is especially so because to impose a limitation on the prosecution of murder would not only have broken with over 150 years of Connecticut history; see State v. Ellis, 197 Conn. at 443-44, 451, 456-57 (recognizing that murder, or at least first degree murder, had never been subject to a limitation period); it would have removed Connecticut from the overwhelming consensus among states that the crime of murder should always be subject to prosecution. "Nearly all statutes of limitations exclude limitation periods for capital offenses and noncapital murder, and many do not limit the time for prosecution of other major offenses." Adelstein, Alan, L., Article: Conflict of the Criminal Statutes of Limitations with Lesser Offenses at Trial, 37 William and Mary L. Rev. 199, 251-252 (1995) (footnotes omitted); see also, Comment: Meeting the Statute of Limitations or Beating it: Using "John Doe" Indictments based on DNA to Meet the Statute of Limitations, 150 U.Pa. L. Rev. 1079, 1088, 1091 (2002) (generally no statute of limitations for murder); see Torcia, Wharton's Criminal Law (14th ed. 1978) (Supp. 1992) Section 90, p. 418 ("It is commonly provided that a prosecution for murder or for any offense punishable by death or life imprisonment may be commenced at any time.")
"`In the interpretation of a statute, a radical departure from an established policy cannot be implied. It must be expressed in unequivocal language.'" State v. Ellis, 197 Conn. at 459. No language indicating a clear break with 150 years of Connecticut history and the established policy of nearly every state in the union is found in PA73-137.
b. The legislative history of PA 73-137 and PA 76-35 makes clear that the legislature never intended to change the limitation period for murder
The genesis of PA 73-137 is Furman v. Georgia, 408 U.S. 238 (1972) which Connecticut interpreted as invalidating its capital sentencing statutes. State v. Aillon, 164 Conn. at 662. In the wake of Furman, the Connecticut legislature struggled to pass capital sentencing provisions that would comply with the constitution. Our murder statute was amended in 1973 with a view toward bringing our capital procedures into compliance with constitutional mandates. H-136, 1973 H.P., Vol. 16, Part 6, p. 2925; see State v. Ross, 269 Conn. 213, 343 n. 77, A.2d (2004).
The lines drawn by the legislature in designating some murders as capital felonies were drawn to comply with Furman; they do not reflect the legislature's diminished abhorrence for other murders. This point is made clear by the discussion surrounding a proposed amendment adding murders committed in the course of a robbery or burglary to the list of capital felonies. The amendment was disfavored, not because that type of murder was less serious, but because of the fear that its inclusion would render the act unconstitutional. See Remarks of Rep. Bingham, 1973 H.P., Vol. 16, Part 6, p. 2929.
Importantly, when the legislature expressly addressed the issue of the allowable period of prosecution for murder, it made clear that murder was, and should remain, exempt from any limitation period. In 1976, the legislature amended the statute of limitations to expressly state that there is no statute of limitations for class A felonies and capital felonies. See General Statutes Section 54-193 (Rev. to 1977). As this court noted in Ellis, the legislative history of 1976 Public Act 76-35 (PA 76-35), makes clear that this provision was intended to "clarify" rather than change existing law. See State v. Ellis, 197 Conn. at 459-60 citing 19 S. Proc.; Pt 1, 1976 Sess., p. 341 (Remarks of Senator David H. Neiditz). "[A] clarifying act, which `in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act.' " State v. Blasko, 202 Conn. 541, 557, 522 A.2d 753 (1987). Accordingly, in Golino, this court viewed the 1976 amendment as a "clear indication that the pre-1976 statute of limitations was not intended to bar a prosecution for murder[.]" State v. Golino, 201 Conn. at 445. (Footnote 10)
Thus, the language and legislative history of both PA 73-137 and PA 76-35 make plain that the 1973 legislature did not intend to change the allowable period of prosecution for murder. The new legislation continued to classify murder as an offense punishable by imprisonment or, in certain circumstances, death. Under the teachings of Ellis and Golino, the allowable period of prosecution under our statute of limitations is determined by the maximum penalty provided, and thus, an offense punishable by either imprisonment or death is a crime punishable by death for purposes of the statute, whether or not the penalty of death is actually available in a particular prosecution. State v. Ellis, 197 Conn. at 455; State v. Golino, 201 Conn. at 443, 446. Murder thus remained within a category of offenses so atrocious as to be subject to prosecution at any time.
3. Defendant's argument regarding second degree murder is both wrong and irrelevant
Defendant argues that in 1973 our legislature divided murders into two categories for purposes of our statute of limitations: Those that are punishable by death and hence exempt from repose, and those that are subject to a five year limit on prosecutions. DB at 25-26. He contends that Connecticut had recognized a similar division among murders from 1846 until the enactment of the penal code in 1971. Specifically, he claims that when the legislature divided murder into degrees in 1846, it created the offense of second degree murder, designated it noncapital, and subjected it to a limitation period. DB at 23. The implication of defendant's argument is that in creating the offense of capital felony in 1973 the legislature intended to classify murders into exempt and nonexempt categories as the legislature had supposedly done in 1846. The defendant's argument regarding second degree murder is both wrong and irrelevant.
a. Neither the language of the 1846 Act nor the cases interpreting it suggest it divided murder into two categories for purposes of the statute of limitations
Defendant's argument fails at each juncture. First of all, despite some dicta in Ellis and Golino to the contrary; State v. Ellis, 197 Conn. at 456; State v. Golino, 201 Conn. at 445; it is not at all clear that the 1846 amendment to the murder statute effectuated a change in the limitation period. That statute provided as follows:
Sec. 3. All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in perpetration or in attempting to perpetrate, any arson, rape, robbery, or burglary, shall be deemed murder in the first degree; and all other kinds of murder shall be deemed murder in the second degree; and the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty, ascertain in their verdict whether it be murder in the first degree or second degree; but if such person shall be convicted by confession, the court shall proceed, by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly.
Sec. 4. Every person who shall commit murder in the first degree, shall suffer death.
Sec. 5. Every person who shall commit murder in the second degree, shall suffer imprisonment in the Connecticut State prison during his natural life.
General Statutes, Title 6, Ch. 2, Subsection 3, 4, 5 (Rev. to 1849).
The import of this act was explained in State v. Dowd, 19 Conn. 388, 392 (1849): "It is apparent from this statue, that it was not the design of the legislature to create any new offence; or change the law applicable to murder, except so far as the punishment was concerned. The crime still remains, as it was at common law; and in the more aggravated cases, the person convicted is liable to the original punishment, while others, whose crimes are less aggravated, are punished with less severity." (emphasis added) As Dowd reveals, therefore, the 1846 act sprang from much the same impetus as guided PA 73-137 -- a changing approach toward capital punishment; not a change in the allowable period of prosecution for murder. See Wharton, Criminal Law, Section 140 (15th Ed. 1994) (stating that similar Pennsylvania statute was designed to narrow the application of the death penalty).
Further, the italicized portion of this statute requires that a person be indicted and tried for murder, not murder in any particular degree. Not until conviction is the degree of the offense determined, either by a jury, or by a judge after hearing witnesses. See State v. Dowd, 19 Conn. at 393 (jury found the defendants, charged with murder by poison, guilty of murder in the second degree). Therefore, if the defendant's argument is correct, the appropriate period of prosecution could not be determined until after a conviction. It is axiomatic that statutes are not to be given a construction that results in absurd or unworkable results. State v. Burns, 236 Conn. 18, 26-27, 670 A.2d 851 (1996); Singer, Sutherland Statutory Construction, Section 45:12. Defendant's construction is plainly unworkable because neither the state nor the defendant would know, prior to trial, whether the offense of murder was time-barred. (Footnote 11)
The 1846 amendment is better interpreted the same way Ellis interpreted both the 1951 amendment abrogating the mandatory death sentence for first degree murder and the capital felony statute. See State v. Ellis, 197 Conn. at 456-58. In each instance, this court recognized that legislation designed to effectuate the state's policy with regard to capital punishment and silent on the issue of repose should not be interpreted as altering a deep-rooted understanding. Id. at 457-58. The 1846 legislature desired to ameliorate the harsh penalty of death for some persons convicted of murder, not to grant them a complete defense to their crimes.
Moreover, the absence of such a defense to murder, in any degree, is supported by the absence of case law concerning it. Neither the state, nor apparently the defense, has uncovered any pre-penal code cases in which a statute of limitations defense was asserted for murder. If such a defense existed for over 120 years as defendant contends, one would expect to find instances in which it was asserted.
All of this supports the application of the Ellis/Golino analysis to this early murder statute. An offense punishable by either death or imprisonment, as was the offense of capital felony in Ellis, and the offense of murder in 1846, is an offense "punishable by death" for purposes of the statute of limitations.
b. Because second degree murder was the equivalent of modern day manslaughter, not murder, its limitation period is irrelevant
Nevertheless, even if the legislature in 1846 did bring about a change in the period of prosecution for second degree murder, this does not advance defendant's cause. Defendant argues that both murder under General Statutes Section 53a-54a (Rev. to 1975), and second degree murder under General Statutes, Title 6, Ch. 2, Section 3 (Rev. to 1849), are "noncapital murders" and that "noncapital murders" have been subject to a statutory limit on prosecution for 120 years. See DB at 20. This argument, however, ignores the teaching of Golino. Under Golino, the period of prosecution is tied to the seriousness of the offense not the actual punishment available. State v. Golino, 201 Conn. at 443. The appropriate comparison, then, is between offenses of comparable culpability. Because the common law offense of second degree murder was comparable to present day manslaughter rather than murder, the determination of its period of repose does not inform the inquiry before this court.
Murder in the second degree was not defined in the 1846 statute but simply consisted of all murders not included in the category of first degree murder. At common law, which the 1846 statute did not change; State v. Dowd, 19 Conn. at 392; State v. Jacowitz, 128 Conn. 40, 20 A.2d 470 (1941); murder was "the unlawful killing of one human being by another with malice aforethought." State v. McGuire, 84 Conn. 470, 481, 80 A. 761 (1911). "Malice aforethought" denotes various mental states, including an intent to kill, intent to cause great bodily harm, intent to do an act knowing it will probably cause death or great bodily harm, and an intent to commit an imminently dangerous act regardless of the risk to human life. Wharton's Criminal Law Section 139 (15th Ed. 1994) Therefore, because the 1846 Act designated deliberate killings and felony murders as murder in the first degree, other homicides designated murder in the second degree fell into the category of present day manslaughter. See General Statutes Section 53a-55(a) (Rev. to 2003) (manslaughter defined). Thus, the period of repose for second degree murder, if one existed, has no relevance to the question before this court. The only significance of a time limit for second degree murder would be to show the legislature's consistency in imposing a similar restriction on the prosecution of present day manslaughter.
It must be remembered that defendant was convicted of an intentional killing. Intentional killings such as this would always have been recognized as murder in the first degree and, hence, outside any limitation period. General Statutes, Title 6, Chapter 2, Subsection 3, 4, 5 (Rev. to 1849) ("All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing . . . shall be murder in the first degree); State v. Hoyt, 46 Conn. 330, 336 (1878) (If the jury is satisfied that it had been the deliberate will and intent of the accused to take the life of his victim, they would have grounds for a verdict of murder in the first degree); State v. Cronin, 64 Conn. 293, 305 (1894) (to sustain a conviction for first degree murder, there must be evidence of a specific intent to take life, which was formed prior to the act of killing, so that the jury can say that act was willful, deliberate and premeditated); State v. Kurz, 131 Conn. 54, 60 (1944) (murder in the second degree does not require a specific intent to kill); see also 1874 Rev. Swift's Digest Ch. III, pp. 294-95 (malice is the essential ingredient in murder, and it is this circumstance which distinguishes murder from every other species of homicide , especially manslaughter . . . The plainest cases of express malice are when a deliberate intention is evinced to kill a particular individual); Commission Comments to the Penal Code re: Section 53a-54a (explaining that the penal code eliminated the elements of malice, premeditation and deliberation from the definition of murder because the common law concepts did not clearly denote planning and preparation as long as there was sufficient time to form the intent); Wharton's Criminal Law Section 141 (15th Ed. 1994) (most common requirement for murder in the first degree is that the actor intended to kill; acting "purposely" or "willfully" is usually equivalent to acting `intentionally). It is clear, therefore, that this offense would have been exempt from the statute of limitations if committed at any time in Connecticut's history.
For this reason, defendant's reliance on a supposed statute of limitations for second degree murder affords him no advantage. This is especially so because, at the time of this crime, there was no offense of murder in the second degree and, under Golino, it is clear that the post-penal code crime of murder had no limitation. Therefore, whatever the intent of the legislature may have been in 1846, it sheds no light on whether the 1973 legislature intended to impose a time limitation on the prosecution of murder. As previously argued, the clearest expression of intent by the legislature indicates it intended no such change. See PA 76-35.
In sum, the changes to our murder statute between the offense in Golino and this reflect a changed approach to the death penalty, mandated by Furman, not a different view of whether murder should be time barred. Despite the changing scope of capital punishment, our legislature has always held that the intentional taking of human life is a crime so atrocious as to be subject to prosecution at any time.
C. Alternatively, this Court Should Overrule Paradise and Apply the 1976 Amendment to the Statute of Limitations to this Prosecution
A recent decision by the United State Supreme Court undermines the holding of Paradise. In Stogner v. California, 539 U.S. 607, 123 S.Ct. 2446 (2003), the United States Supreme Court held that a new statute of limitations cannot revive a previously time-barred prosecution without violating the ex post facto clause of the federal constitution. The holding in Stogner is limited to expired prosecutions and the reasoning employed strongly suggests that a new statute of limitations may be applied so long as the original time period has not expired. See e.g. Stogner, 123 S.Ct. at 2451. Under Stogner, therefore, there is nothing retroactive about the application of an extension of a statute of limitations so long as the original statutory period has not expired. See Stogner v. California, 123 S.Ct. at 2453, 2461; but see State v. Crowell, 228 Conn. 393, 399, 636 A.2d 804 (1994).
Applying the 1976 Amendment to our statute of limitations to this offense does not offend the Constitution, and should not offend our sense of fairness. The violation of a criminal statute does not confer upon the violator a vested right under the then existing statute of limitations. State v. O'Neill, 796 P.2d 121, 125 (Idaho 1990); Commonwealth v. Johnson, 553 A.2d 897, 900 (Pa. 1989); People v. Hodgson, 740 P.2d 848, 851 (Wash. 1987) cert. denied sub nom, Fied v. Washington, 485 U.S. 938 (1988); People v. Sample, 161 Cal. App. 3d 1053, 1058 (App. Div. 1984).
As Judge Learned Hand stated in Falter v. United States, 23 F.2d 420, 425-26 (2d Cir.) cert. denied, 277 U.S. 590 (1928):
[T]he question is one of degree and depends upon whether the result [is] harsh and oppressive. Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease on life. The question turns upon how much violence is done to our instinctive feeling of justice and fair play. For the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But while the chase is still on, it does not shock us to have it extended beyond the time first set, or if it does, the stake forgives it.
Although this Court rejected a similar argument by the state in State v. Crowell, supra; the state asks this Court to reconsider and overrule the retroactivity analysis of Paradise. See State's Br. in Sup. Ct. Rec. and Br. State v. Crowell, S.C. 14478 (reproduced in SA at A98-109); see also Roberts v. Caton, 224 Conn. 483, 492, 619 A.2d 844 (1993) (extending civil statute of limitations).
II. THE STATE NEITHER VIOLATED THE COURT'S DISCOVERY ORDERS NOR FAILED TO DISCLOSE EXCULPATORY EVIDENCE
The defendant alleges that the state violated the trial court's discovery orders and due process by 1) allegedly failing to disclose a composite sketch, and 2) submitting the suspect profile reports prepared in 1992 regarding Thomas Skakel and Kenneth Littleton to the court in camera rather than directly to the defense. While certain legal principles are common to both claims, the factual context is different for each.
As to the composite sketch, this court lacks an adequate record on which to decide this claim. The defendant's claim that this sketch is exculpatory rests on his assertion that it resembles Ken Littleton as he appeared in 1975. No such factual finding was ever made by the trial court. Therefore, this court is without a record to support the defendant's claim that this evidence is favorable to the defense. Nevertheless, even if a resemblance is assumed, the findings made by the trial court defeat defendant's claim. The trial court found that the sketch was disclosed and that it was not material under Brady. The record amply supports both findings.
As for the summary profiles, the trial court's finding that these reports, which were submitted to the court in camera during a post verdict hearing, constitute work product and were hence outside the rules of discovery is sound. Furthermore, all of the raw data from which these summaries were compiled was disclosed to the defense prior to trial.
A. The State's Duty to Disclose under Brady and Our Rules of Discovery
"In Brady [the United State's Supreme] Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). Such evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. at 682; see also Kyles v. Whitley, 514 U.S. 419, 433-434 [(1995)]; Strickler v. Greene, 527 U.S. 263, 280 (1999). To establish a violation under Brady and its progeny, therefore, the defendant must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the defendant, and (3) it was material to either guilt or punishment. State v. Wilcox, 254 Conn. 441, 452, 758 A.2d 824 (2000).
Under Practice Book Section 40-11, the state was required to disclose in writing the existence of any exculpatory evidence or any tangible objects such as photographs which the state intended to offer or which were material to the presentation of the defense. The state was also required to make these items available to the defendant for copying or inspection. Reports or other work product are generally not discoverable. Practice Book Section 40-14.
B. The Defendant Has Not Established That the Composite Sketch Was Exculpatory, Suppressed, or Material
Two and a half months after the verdict, the defendant filed an Amended Motion for New Trial, alleging for the first time that the state had failed to disclose a composite sketch as required by due process and under our rules of discovery. DA at A243-A329. Appended to the defendant's motion were certain investigative reports which the state had provided the defense in the course of discovery. See DA at A298-A313. These reports concern an encounter between a special duty police officer and a person he observed in Belle Haven the night of the murder.
In a report dated October 31, 1975, Special Officer Charles Morganti states that he spoke with a man he observed out walking at about 10:00 p.m. the night of the murder. Morganti described the man as a blond haired, six foot tall, 200 pound white male, in his late 20's to early 30's, wearing dark rimmed glasses, a fatigue jacket and tan pants. He stated that he saw the man walking in a northerly direction on Field Point Road. Morganti asked the man where he was going, and the man replied that he lived on Walsh Lane and was going home. Morganti stated the person then turned into Walsh Lane. Morganti further stated that he saw the same person a few minutes later walking north on the west side of Otter Rock Drive just north of Walsh Lane. DA at A298.
A police report dated the following day indicates Morganti agreed to appear at the Detective Bureau for the purpose of preparing a composite sketch of the man he saw on October 30. DA at A301. Another police report, dated November 6, 1975, indicates that Special Officer John Duffy, who was on duty at the Field Point police booth, reported seeing Carl Wold, age 23, out walking at about 6 - 6:30 the night of the murder. Duffy stated that he knows Wold to be a daily walker who lives on Walsh Lane. The two men conversed briefly, with Wold telling Duffy that he was heading home. DA at A299.
As a follow up to the reports concerning Morganti and Duffy, the police interviewed Carl Wold and his father. The son reported that he left his house at about 7:20 the night of October 30, a little later than usual, and began his nightly walk. He reported that he had a short conversation with the officer on duty at the Field Point police booth. He continued walking and then headed home. He stated that as he did so he was stopped by a special officer on Field Point Road just south of the intersection with Walsh Lane. The officer asked him where he was going and he told the officer he was going to his home on Walsh Lane. He stated that he walked down Walsh Lane to approximately the Ix's driveway, then turned around and walked to his house. He stated that he got home about 8 p.m. Wold described his clothes that evening as "Brown (olive) field jacket, yellow corduroy shirt, tan slacks, top sider shoes." DA at A304. Wold was described as 6'1", 210 lbs, dark brown, straight hair, medium length with silver rimmed glasses. DA at A304. Wold's father confirmed his son's account of his activities on October 30. DA at 306-7.
A 1975 interview with another Belle Haven resident, Cynthia Bjork, indicated that she saw Officer Morganti outside her house on Otter Rock Drive at about 9:40 p.m. on October 30. A white road stanchion had apparently been knocked over by a passing car, and Bjork saw Officer Morganti replacing it. DA at A312.
A further investigative report indicates that Morganti was reinterviewed on October 8, 1994 by both an investigator for the state and one hired by the Skakel family. DA at A309-10. By 1994, Morganti's recollection of the time he saw the man out walking had changed. Although he originally reported seeing the man at about 10 p.m., speaking with him briefly, and then seeing what he thought was the same person again a few minutes later, he now reported seeing the man first at about 8 p.m., and then someone he thought was the same person at about 9:30 to 10 p.m. As in 1975, Morganti stated that he stopped the person as he was walking on Field Point Road, and the man stated that he was heading to his home on Walsh Lane. Morganti now stated, however, that at about 10 p.m. when replacing a road stanchion on Otter Rock Drive, he observed what he thought was the same person walking in a northerly direction across from the Skakel residence. Both the investigator for the state and the one hired by the Skakel family went with Morganti to the area he claimed he made the second sighting. The distance from the figure to where Morganti said he was located was about 100 yards. The 1994 report states that when Morganti originally reported the matter he assisted in making a composite sketch of the man he saw. The report further states: "A complete investigation into the matter was instigated, and it was determined that the individual was one Carl Wold." DA at A309.
In his Amended Motion for New Trial, defendant claimed the composite sketch prepared by Morganti is exculpatory because it resembles Ken Littleton in 1975. He argued that evidence concerning the man Morganti saw could have been used to impeach Littleton's testimony as to his activities at around 10:00 p.m. the night of the murder. DA at A290. In support of his contention that the composite sketch resembles Ken Littleton in 1975, the defendant submitted affidavits from two of his siblings, John and Julie Skakel, and photocopies of pictures. DA at A315-329.
Also, during the hearing on defendant's numerous post-verdict motions, the defendant marked for identification three boxes of material. Defendant's counsel, Hubert Santos, represented that he had received these materials from Michael Sherman, defendant's original trial counsel, who had received them from the state. T. 8/29 at 2-3, 9. Santos asserted that the composite sketch was not among the over 1800 documents included in these boxes. The state responded that it did not know if the submitted boxes contained everything that the state had photocopied for the defense. Further, the state maintained that even if they did, the contents of the boxes would not represent the full extent of discovery. T. 8/29 at 3. The state indicated that it had also made other items available to the defense for copying or inspection. Id. In response to a question by the court, the state further represented that the composite sketch was most likely not among the materials it photocopied for the defense, but rather was among the objects made available for inspection. T.8/29 at 6.
The state argued that by giving the defendant all of the reports concerning Morganti and the person he observed, and by virtue of the fact these reports reference the composite sketch made with Morganti's assistance, the defendant was provided written notice of the sketch's existence. Further, the state represented that it had invited defense counsel to inspect and copy other portions of the state's file which had not been photocopied for him. T. 8/28 at 66-67; T. 8/29 at 3, 6. The state further represented that the first time defense counsel requested a copy the sketch mentioned in these reports, which was shortly before sentencing, the state provided them with a copy. Id. at 67.
The trial court found the defendant's Amended Motion for New Trial untimely. T. 8/28 at 93-94. It also found that the sketch had not been suppressed. It noted that the defense had access to two reports which refer to the creation of the sketch. The court found this enough to put the defendant on notice that it existed and was available for inspection. The court further found that the defendant's discovery request and its orders thereon did not require anything more than a right to inspect. T. 8/28 at 89-90.
In addition, the court found that the sketch was not material. The court stated that the sketch would not have been admissible at trial without the testimony of Morganti. Inasmuch as the defendant never called Morganti, the court found this evidence immaterial. Id. at 90-91.
2. The trial court's finding that defendant's Amended Motion for New Trial was untimely precludes review
The defendant filed his "Amended" Motion for New Trial on August 26, 2002, just two days before sentencing, and approximately 2 1/2 months from the verdict. The state objected as to timeliness. See SA at A61-A72. The defense attempted to justify the delay by noting, inter alia, that new counsel had entered an appearance since the verdict. T. 8/28 at 25. However, as the trial court noted, original trial counsel, Michael Sherman, remained in the case. The trial court found no justification for the untimely attempt to amend. Id. at 93-94. Defendant's trial default should preclude consideration of his late-day claims. See Practice Book Section 42-54.
3. The defendant has not established that the sketch is exculpatory
As noted previously, defendant's claim that the composite sketch resembles Ken Littleton in 1975 rests on affidavits from two obviously interested persons, a younger brother and his sister, and a couple of poor-quality reproductions of photographs. Because this court cannot find facts and because the trial court made no determination as to resemblance, the record does not establish that this sketch is, in fact, favorable to the defense. See State v. Anderson, 209 Conn. 622, 632, 553 A.2d 589 (1989) (Supreme Court cannot decide disputed issue of fact).
4. The trial court correctly found that the sketch was not suppressed and was not material
If this Court assumes the sketch resembles Ken Littleton, the trial court's findings with regard to both the supposed suppression of the sketch and its materiality are amply supported by the record. As the court concluded, the state's disclosure provided the defendant written notice of the existence of the sketch. Moreover, an investigator hired by defendant's family interviewed Morganti in 1994. Therefore, it is clear defendant knew of the existence of the sketch prior to trial. Further, the defendant never contested the state's representations that it had made items such as this sketch available for inspection. Therefore, although the record does not reveal whether the defendant actually saw the sketch when going through the state's file prior to trial, it was certainly available for him to inspect and copy. This is all that Brady and our rules of practice require. See Practice Book 40-11. (Footnote 12) "[E]vidence is not considered to have been suppressed within the meaning of the Brady doctrine if the defendant or his attorney "either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence." United States v. Zackson, 6 F.3d 911, 918 (2d Cir. 1993) (quoting United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982) cert. denied, 459 U.S. 1174 (1983)).; United States v . Payne, 63 F.3d 1200, 1208 (2d Cir. 1995) cert. denied, 516 U.S. 1165 (1996). The Government is not required, in other words, to facilitate the compilation of exculpatory material that, with some industry, defense counsel could marshal on their own. United States v. Runyon, 290 F.3d 233, 246 (5th Cir.) cert. denied, 537 U.S. 888 (2002). Further, the government is not required to "point the defense to specific documents within a larger mass of material that it has already turned over." United States v. Mulderig, 120 F.3d 534, 541 (5th Cir. 1997) cert. denied, 523 U.S. 1071 (1998).
Even if, however, the state's disclosure is considered somehow deficient, the trial court's finding of materiality must be affirmed. The fact that the defendant never requested a copy of the sketch until after the verdict is a reflection of its insignificance. As the police reports appended to defendant's motion make clear, Special Officer Morganti and Carl Wold are reporting the same meeting, although one is apparently mistaken as to time. By comparing Morganti's description of the encounter and of the person he spoke with that night, with Wold's account of the meeting and his description of what he wore that night, it is apparent the person Morganti saw was Carl Wold. The two accounts dovetail as to location, words spoken, and description of the walker, i.e. Wold. See DA at A298-313.
Moreover, for the two possible time periods during which Morganti relates this encounter occurred, Littleton has a reliable alibi. If the encounter occurred around 10 p.m. as Morganti reported in 1975, Littleton is observed shortly before this by Andrea Shakespeare when she returns to the house to get the keys and shortly after this by Thomas Skakel. T. 5/29 at 126-7, 140-43; T. 5/9 at 169. Julie Skakel also reports seeing Littleton around this time. T. 5/29 at 28. If the encounter occurred around 8 p.m., as Morganti's 1994 account indicates; see DA at 309-10; Littleton was still at the Belle Haven Club with members of the Skakel family. T. 5/9 at 118. In 1994, Morganti explains that he sees the same person again between 9:30 and 10:00. DA at 309-10.
Finally, if Morganti's testimony regarding the man he saw that night was of any value to the defense despite these considerations, defendant could have offered it at trial. The fact that the defendant chose not to present any evidence regarding Morganti's encounter speaks volumes as to its lack of significance.
C. All of the Information in the Summary Reports Was Disclosed to Defendant Pre-trial; the Reports Themselves Were Work Product and Not Discoverable
In his Amended Motion for New Trial, newly-hired defense counsel requested copies of the summary profile reports prepared in about 1992 by inspectors within the State's Attorney's Office regarding Thomas Skakel and Kenneth Littleton. (Footnote 13) In his trial testimony outside the presence of the jury, former Chief Inspector John F. Solomon described the reports as a 'summary of. . . . why that person is a suspect.' T. 5/13 at 77-78. Solomon had the report concerning Ken Littleton with him while he testified. T. 5/13 at 77. When defense counsel asked for a copy of it, the court replied: "Not right now." Id. Defendant never renewed his request for the report during trial.
During the post verdict hearing on defendant's request for the reports, the state argued that the reports were not subject to discovery because they were work product. The state explained that they were a summary of all the investigatory efforts the state had made up to 1992 or so concerning Tommy Skakel and Littleton. See T. 8/28/02 at 58. The state represented that "the raw data from which they were compiled . . . was disclosed to the defendant well before trial." Id. at 58. The state submitted the reports to the court in camera. Id. at 59. The state also submitted a copy of a letter to Attorney Sherman dated 3/5/02 inviting him to inspect or copy the tapes within the possession of the state. Attached to the letter was an index and a listing of all the audio and video tapes in the state's possession. T. 8/28 at 81 (reproduced in SA at A73-A97).
In its ruling on this aspect of defendant's Amended Motion for New Trial, the court noted that defendant never renewed his request for a copy of Littleton's report during trial. Id. at 88. The court found that reason enough to deny defendant's post-verdict motion for an evidentiary hearing on this matter. Id; DA at A331. The court noted, however, that it had reviewed the Tommy Skakel and Littleton reports in camera and concluded that they were protected from disclosure under the work product doctrine. T. 8/28 at 88-89.
2. The trial court correctly concluded that the reports were not subject to discovery by the defense
"The work product rule protects an attorney's 'interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible items.' . . . 'Work product can be defined as the result of an attorney's activities when those activities have been conducted with a view to pending or anticipated litigation.' . . . " Ullman v. State, 230 Conn. 698, 714-15, 647 A.2d 324 (1994). Practice Book Section 40-14 extends the protection of the work product doctrine to the state by exempting from disclosure "[r]eports, memoranda or other internal documents made by a prosecuting authority or by law enforcement officers in connection with the investigation or prosecution of the case."
The trial court correctly held that these reports, which are summaries of the state's investigatory efforts with regard to Tommy Skakel and Littleton, fall within this doctrine. (Footnote 14)
3. As represented, all of the data contained in the reports was disclosed to the defendant pre-trial
As indicated above, defendant submitted three boxes of material during the post verdict hearing on his Amended Motion for New Trial. At the time of the hearing, the state had not had an opportunity to examine the contents of the boxes. A recent examination by a member of the state's attorney's office has, however, confirmed the state's representation at that hearing. The Tommy Skakel report was compiled from the reports and other documents contained in footnote 15 below. (Footnote 15) All of these documents are in the boxes of material submitted by the defendant at the post-verdict hearing. The numbers refer to the state's numbers, handwritten at the top right corner of the document, and not to the labels apparently attached by the defendant.
The Littleton report was compiled from the reports and other documents listed in footnote 16, below. (Footnote 16) All of these documents are contained in the boxes of material submitted by the defendant at the post-verdict hearing. In addition, certain other information in the Littleton report came from audio tapes which were disclosed to the defendant as indicated by the state's 3/5/02 letter to Attorney Sherman with its attachments. See SA at A73.
III. THE JUVENILE COURT APPROPRIATELY ORDERED THE TRANSFER OF THE DEFENDANT TO THE CRIMINAL DIVISION OF SUPERIOR COURT
The defendant claims that the order of the Juvenile Court (Dennis, J.) transferring his prosecution to the adult division of Superior Court was erroneous in two respects. First, he claims that the Juvenile Court failed to abide by General Statutes Sections 17-60 and 17-66 (Rev. to 1975), which requires that an investigation be made of the child's home life and educational needs. DB at 46. Second, he claims the court erred in relying on Department of Children and Family regulations which prohibit the placement of anyone over 18 in a State juvenile facility. DB at 46-49.
There is no merit to either contention. First of all, because the juvenile division of Superior Court provides a forum for adjudicating the needs of children, the juvenile court was not the proper venue for deciding defendant's guilt or innocence. Further, defendant's specific claims regarding the Section 17-66 report and the Department's regulations were never raised in the trial court and should not now be reviewed. If reviewed, they are without merit. The juvenile court came to the only reasonable conclusion in transferring this case to the adult division.
Because respondent was fifteen at the time of the homicide, he was initially presented in juvenile court. After hearing evidence and arguments, the juvenile court (Dennis, J.) determined that there was reasonable cause to establish that defendant killed Martha Moxley, and that the case should be transferred to the adult division of Superior Court. See DA at A335-A348.
During the reasonable cause hearing, the state offered the testimony of Judith Kallen. Kallen is the program director of the Bridgeport Office of the Department of Families and Children. T. 6/21/00 at 92. Kallen testified that there was no facility within the Connecticut juvenile system that provides for treatment, on a custodial or noncustodial basis, for persons over 18. Id. at 94. She explained that the licensing regulations of the department prohibit the placement of any person over 18. Id.
On October 20, 2000, the juvenile court heard further evidence regarding disposition. The defendant presented the testimony of Joseph Paquin, a supervisor in the juvenile probation department. Paquin testified that he had conducted the required investigation under General Statutes Section 17-66 (Rev. to 1975) and submitted a three-page report to the court. Paquin stated that the Department of Children and Families is unable to meet the programmatic treatment or residential needs of delinquent persons committed to their care beyond the age of 18. T. 10/20/00 at 8-9. Paquin concluded that there are no dispositional alternatives available for the defendant in the State of Connecticut. T. 10/20/00 at 10, 13.
Following this testimony, the juvenile court issued a Memorandum of Decision dated January 31, 2001. DA A348-53. The court held that "there is no available suitable state institution designed for the care and treatment of children to which the Juvenile Court could commit the now forty- year-old[.]" DA at A353. The court further found that the "facilities of the adult criminal division of the Superior Court afford and provide a more effective setting for the disposition of this case, and the institutions to which the adult criminal division of the Superior Court may sentence a defendant are more suitable for the care and treatment of this respondent should he be found guilty of the murder of Martha Moxley." DA at A354. Accordingly, the court ordered this case transferred to the adult criminal division of the Superior Court. Id.
B. The Juvenile Court Came to the Only Reasonable Conclusion
1. The Juvenile Division of Superior Court was not the proper forum for adjudicating defendant's guilt
Before turning to the specifics of defendant's claim, the mandate of the juvenile division of Superior Court must be considered. The jurisdiction of the juvenile court in 1975 was limited to "proceedings concerning uncared-for, neglected, dependent and delinquent children within this state . . . " General Statutes Section 17-59 (Rev. to 1975). Under Section 17-53 of the 1975 General Statutes, a "child" is defined as "any person under sixteen years of age." Modern day statutes similarly limit the authority of the juvenile court to matters concerning "children," which continues to mean a person under sixteen. General Statutes Sections 46b-120(1), 46b-121(a) (Rev. to 2003).
It is apparent, therefore, that because at the time of the transfer hearing the defendant was over 40, the juvenile division of Superior Court was not the proper venue for adjudicating the defendant's guilt. Defendant's age precluded the juvenile court from doing other than it did. In this respect, defendant's status is analogous to that of a present day 14-year-old charged with murder, arson murder, capital felony or a class A or B felony. See General Statutes Section 46b-127 (Rev. to 2003). The mandatory transfer provisions for such persons means that, although the juvenile court may be the appropriate forum in which to initiate prosecution, the juvenile court's contact with the case is essentially temporary and for a limited, procedural purpose. See State v. Angel C., 245 Conn. 93, 111, 715 A.2d 652 (1998). The defendant, like a fourteen-year-old charged with an enumerated offense, "has no right to avail himself of juvenile court jurisdiction because the statute expressly precludes the exercise of jurisdiction by the juvenile court." Id. at 108. (Footnote 17)
2. The Juvenile Court's transfer order was legally and logically correct
a. Defendant's claims should not be reviewed
Neither defendant's claim that the juvenile court failed to undertake the investigation provided in General Statute Section 17-66, nor his contention that the trial court erroneously relied on regulations promulgated by the Department of Children and Families (DCF), was raised below. Moreover, defendant has failed to brief these claims under either State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989) or plain error. Therefore, no further consideration is warranted. See State v. Christiano, 228 Conn. 456, 464, 637 A.2d 382 cert. denied 513 U.S. 821 (1994); State v. Harvey, 77 Conn. App. 225, 230-31, 822 A.2d 360 cert. denied 265 Conn. 906, 831 A.2d 252 (2003).
b. If considered, defendant's claims are without merit
Nevertheless, if considered, defendant's claims are patently without merit. The investigation undertaken by the juvenile probation officer was appropriately tailored to the situation before the court. In view of the fact the defendant was an adult, any investigation into his "parentage and surroundings, . . . his age, habits, and history . . . [including] an inquiry into the home conditions, habits and character of his parents or guardian . . . [and his] school adjustment"; see General Statutes Section 17-66 (Rev. to 1975); was unnecessary. In fact, the distance between the defendant's situation and the needs of a child for whom the juvenile system is designed is evident in any attempt to apply this statute to the defendant.
Further, defendant's claim that the juvenile court erred in relying on DCF regulations which prohibit the placement of anyone over 18 in a juvenile facility, is unfounded. These regulations do not "trump" the statute, as defendant claims. Rather, they appropriately accommodate the mandate of the juvenile court to adjudicate the needs and misdeeds of children, that is, those under sixteen.
Finally, in transferring this case to the adult division, the juvenile court took the only reasonable route. Under the 1975 transfer statute, the juvenile court's decision whether to transfer a child accused of murder to the adult court was dependent on three findings. Specifically, after a hearing, the court was required to find whether there was reasonable cause to believe that " (1) the child [had] committed the act for which he [was] charged, and (2) there [was] no state institution designed for the care and treatment of children to which said court may commit such child which [was] suitable for his care or treatment, or (3) the safety of the community require[d] that the child [continue] under restraint for a period extending beyond his majority, and (4) the facilities of the superior court [provided] a more effective setting for disposition of the case and the institutions to which said court may sentence a defendant [were] more suitable for the care or treatment of such child." General Statutes Section 17-60a (Rev. to 1975).
Defendant's claims strike at the court's determinations under the second and fourth factors. As to the second, the juvenile court focused on its 1975 dispositional authority under General Statutes Section 17-68. Within this statute, the court noted only two possibilities which would qualify as a commitment to a "state institution designed for the care and treatment of children." General Statutes Section 17-60a(a) (Rev. to 1975).
The two possibilities noted by the court are contained in Section 17-68 (b) and (c). Subsection (b) provides for a commitment to the Department of Children and Youth Services, the predecessor to the current Department of Children and Families. Subsection (c) allows for a commitment to a mental health facility if the court finds the child to be either mentally ill or mentally deficient. See General Statutes Section 17-68 (c) (Rev. to 1975).
After reviewing the evidence before it, including Kallen's testimony that there were no placements available to someone over 18, the court concluded that "based on respondent's age, in conjunction with the lack of evidence of mental illness and/or mental deficiency, neither commitment option is available or appropriate in this matter." DA at A353. The court also found the facilities of the adult division of Superior Court and its sentencing options more suitable for the care and treatment of the respondent should he be found guilty. DA at A354.
The standard of review for the findings made by the court in support of its transfer order is contained in General Statutes Section 17-70(b) (Rev. to 1975). Under this provision, this Court must "determine whether the juvenile court found facts without evidence or reached conclusions which cannot be reasonably derived from the facts found or the law applicable thereto or both, or has acted illegally or arbitrarily." The state submits that, under either this standard or the "clearly erroneous" standard of Practice Book Section 60-5, the juvenile court must be affirmed.
IV. THE DEFENDANT'S UNPRESERVED CLAIMS OF PROSECUTORIAL MISCONDUCT ARE NOT SUPPORTED BY THE RECORD
The defendant raises six challenges to the state's closing argument. Despite the absence of objection below, and despite the lack of intervention by the trial court to curb this allegedly outrageous argument, he claims misconduct so egregious as to compel a new trial. DB at 49-63. If the state's argument is considered as a whole, and in light of the evidence produced, it is apparent that it was proper and effective.
A. Legal Principles Governing Review
"Prosecutorial misconduct has become the criminal equivalent of the CUTPA claim, seemingly attached to all criminal appeals whether meritorious or not." State v. Jarrett, 82 Conn. App. 489, 501, 845 A.2d 476 (2004) (footnote omitted). "The touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor's conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . In determining whether the defendant was denied a fair trial. . . We must view the prosecutor's comments in the context of the entire trial." (Internal quotation marks omitted.) State v. Rizzo, 266 Conn. 171, 245-46, 833 A.2d 363 (2003). State v. Stevenson, 2004 Conn. Lexis 230, 11-12 (June 15, 2004).
"The failure of the defense counsel to object to the improper remarks of the [State's Attorney] is highly persuasive evidence that the remarks did not deprive the defendant of a fair trial because defense counsel was in the best position to hear the remarks as prejudicial, and the one most likely to do so." State v. Thompson, 266 Conn. 440, 479 n. 19, 832 A.2d 626 (2003).
B. The State Presented a Fair and Forceful Argument
1. The state's argument regarding the masturbation evidence (def's issues IV B. 1. and 5)
Four of the six claims of misconduct leveled by the defendant allege that the state argued inferences not reasonably supported by the evidence. See Def's claims IV B. 1., 2., 3., and 5. A review of the state's summation in light of the evidence adduced at trial, however, reveals that each of these arguments finds ample support in the record.
The defendant's claim that the state argued a "false and misleading story about a forensic cover up" and made a "false allegation that the defendant masturbated on the victim's body" is based on a serious distortion by defense counsel on appeal but none from the state below. The state appropriately argued reasonable inferences from the evidence.
First, defendant misrepresents the state's argument. The state did not argue a "forensic cover up" -- neither that phrase nor that concept appears in the state's argument. What the state argued is that the defendant created a tale of masturbating in a tree on the Moxley property, and told this tale to Michael Meredith, Andy Pugh, Geranne Ridge, and Richard Hoffman, in order to provide an explanation should his semen ever be found on items connected to this crime. See T. 6/3 at 10-12; 93-94, 112-113, 121-22, 132-33. This argument simply asked the jury to draw a reasonable inference from the evidence. See T. 6/3 at 132-33.
Second, the state did not mislead the jury, as defendant claims, by arguing that defendant first told his masturbation story in 1991 or 1992. The defense brief states: "The State then argued - falsely - that Michael only started telling people his masturbation tale after Dr. Henry Lee became involved in the case in the early 1990's." Def's Br. at 51. This statement is demonstrably false. The state argued in its initial summation:
In 1985 (sic), he told Michael Meredith that he had climbed a tree and spied on Martha as he had on a number of prior occasions and masturbated, and conveniently pointed his finger at his brother Thomas coursing through the yard towards Martha's house.
In 1992, he told somewhat the same story to Andy Pugh, this time though saying it was the tree under which both he and Pugh were fully aware that Martha's body had been hidden. And he asked Pugh to please return Sutton Associates, their persistent telephone calls. This, of course, to get out the appropriate explanation should there by semen at the scene one day connected to the crime.
T. 6/3 at 17-18.
It is clear, therefore, that the state did not obscure the Meredith testimony. What the state did, legitimately, was emphasize the defendant's statement to Pugh. See T. 6/3 at 10-12. This emphasis was appropriate to draw the jury's attention to the significance of the defendant wanting Pugh to return Sutton's phone calls. (Footnote 18) The public announcement that this case had been reopened and Dr. Lee would be reinvestigating the crime scene, the advent of DNA technology, the Skakel family's employment of Sutton Associates, and the defendant's entreaties to Pugh all occurred at roughly the same time period. See T. 5/15 at 149-50; T. 5/8 at 132, 154-56; T. 5/20 at 163-170. The jury was free to infer, and the state was free to argue, that the story he had floated by Michael Meredith years earlier to explain the presence of his semen now took on a certain urgency.
The defendant's claim that there was no evidence to support the state's argument that he had masturbated on the victim's body is also demonstrably false. See DB at 58-59. As previously recounted, the defendant bragged to Coleman that he drove a girl's head in with a golf club, and came back two days later and masturbated on the body. Admittedly, because the victim was found the next day, the defendant either exaggerated the time period between the murder and the masturbation to heighten the drama, or Coleman's memory on this point was faulty. Nevertheless, the jury was free to find, and the state was free to argue, that the defendant did in fact masturbate on the victim's body.
This is especially so because defendant's claim to Coleman is consistent with the forensic evidence. When found, the victim's pants and panties were down below her knees. Although the medical examiner did not find any evidence of semen on the body, his report indicates that he tested for semen in her vaginal and anal cavities and in her pubic area. That testing, therefore, would not have revealed semen on her buttocks or back. See EPP/documents/autopsy report/highlight 1; see T. 6/3 at 10-12. In addition, the victim had two bloody smudges, one on her left inner thigh and one on her right. Dr. Lee testified these stains appeared to be contact smears and were consistent with bloody hands trying to push the victim's legs apart. T. at 149; see EPP at MainMenu/Medical/Autopsy Photos/SE 23.
Further, the fact that defendant told Michael Meredith, Andy Pugh, Geranne Ridge, and Richard Hoffman that he masturbated in a tree on the Moxley property the night the victim was killed provides further reason to find he actually masturbated on or near the victim's body. If the defendant had truly masturbated in a tree as he claimed, it is hard to conceive of any reason to tell anyone. This is especially so because to do so undermines his 1975 police statement claiming he went to Terrien's and then home to bed. The state's argument asked the jury to infer that the defendant told others he had masturbated in the area where the victim was found because he had in fact masturbated on the body as he told Coleman and as the blood smears on the victim's inner thighs suggest. Knowing he had done so, he tried to provide an explanation should his semen ever be discovered. T. 6/3 at 17-18. The state's argument that the defendant invented the masturbation-in-a-tree story to hide the truth about his masturbation that night was reasonably based on the evidence.
2. The state's arguments regarding defendant's alibi and Elan's awareness of his culpability for this murder (def's issues IV B. 2. and 3.)
The defendant contends the state's argument regarding his alibi and the family members who participated in its creation had no support in the evidence. See DB at 55. A fair overview of the evidence reveals that if the jury disbelieved the alibi, as they were free to do, they could reasonably conclude that the defendant's family members knowingly propagated a false alibi to protect the defendant. The state's argument inviting the jury to draw this inference was entirely appropriate.
As to the issue of who decided to take the trip to Windham the day after the murder was discovered, the state argued merely that 'somebody' decided to take the defendant, Tommy, John, and Jim Terrien out of town. See T. 6/3 at 20, 97. Nevertheless, the jury could reasonably infer the father was behind the decision. On direct, Littleton stated that he was told by someone at the Skakel house the night the body was discovered to take the boys to Windham the following morning. He could not remember whether the defendant's father had arrived home at the time he was so directed. T. 5/9 at 175.
On cross, Littleton did allow that going to Windham was probably a group decision in which he participated. See T. 5/13 at 17, 20, 22, 23. On redirect, Littleton clarified that he would not at that time have known the Skakel's owned a house in Windham, so he must have heard about Windham from one of the "suits" and volunteered to take the children up. T. 5/13 at 139. When Rushton Skakel, Sr. testified, he indicated that Littleton would not have had the authority to take his children anywhere without his permission. T. 5/15 at 79.
In addition, the state appropriately pointed out to the jury that those who took the Windham trip, the defendant, Tommy, John and Jimmy Terrien were key proponents of the alibi. The jury was free to infer, and the state was free to argue, that the trip provided an opportunity for the alibi to solidify. See T. 6/3 at 20-21, 97.
As to the defendant's claim that the state inappropriately commented on the role of defendant's father in the creation of the alibi, see DB at p. 55-56, the state's argument was again drawn from the evidence. The fact that the father did not volunteer to take his children to the police station to be interviewed, but rather responded to a police request, does not diminish the force of the argument that the father brought the children as a group and remained in the room with the defendant while his statement was given. Although defendant was free to argue this showed only parental concern, the state could ask the jury to draw an inference of parental control.
The defendant's contention that evidence of cooperation by the Skakel family immediately after the murder belies any wrongful concealment on their part, is a defense argument that the jury apparently rejected. In any event, the jury was free to find, in light of all the evidence, that the Skakels' supposed cooperation was limited and short-lived.
The state's argument that Elan's awareness of defendant's involvement in the murder demonstrates the family's awareness, finds ample support in the evidence. The state was not arguing, as the defendant suggests, that the family had an opinion of the defendant's guilt, but rather that they knew he was guilty. If the jury found the alibi false, this alone provided a reasonable basis on which to conclude family members knew he was guilty. In addition, the defendant told fellow Elan resident, Dorothy Rogers, that his family "was afraid" he may have killed Moxley and sent him to Elan to avoid the investigation. T. 5/16 at 138. The defendant made a similar statement to Greg Coleman. T. 5/17 at 138.
The evidence also established that Elan residents were generally confronted about whatever issues precipitated their enrollment at Elan. T. 5/23 at 135-4; T. 5/23 at 192. The defendant was confronted on two issues: being a 'spoiled brat' and killing his neighbor. T. 5/23 at 177; T. 5/24 at 4. Dunn testified that Elan received its information concerning the issues a resident needed to confront from the family and whatever records accompanied the resident's admission. T. 5/17 at 106. According to Dunn, when Ricci confronted the defendant at the infamous General Meeting, he was reading from a "good sized file." Id. at 97.
All of this is particularly significant because during this time period, 1978-80, the police did not consider the defendant a suspect. T. 5/29 at 166-67. Therefore, if persons in a position to know he was guilty were communicating that to the administration of Elan in 1978, that is significant evidence that he was in fact guilty. The state appropriately made this argument to the jury.
3. The state's use of exhibits during summation was appropriate and effective advocacy
The defendant attacks the state's use of exhibits during its summation by alleging the state showed the jury a "movie". DB at 59. The defendant contends the state "literally produced an audio -visual confession by flashing huge six- foot high gruesome images of the victim's body at the murder scene while simultaneously playing an edited audiotape of defendant's admission of guilt - about a different event. " DB at 59-60 (emphasis omitted). Defendant's argument is replete with accusations of "splicing", "deceptive editing", "subliminal messages", and the "manipulative use of prejudicially edited evidence." See DB at 59-61. Defendant even goes so far as to refer to the prosecution team as a "movie crew." DB at 60.
In so arguing, the defendant gives this court a false impression of the state's summation. Both appellate counsels' unsupported description of what occurred and the affidavit of trial attorney Michael Sherman are inaccurate. (Footnote 19) See DB at 60-61 n. 80.
Viewing the presentation disc while reading the transcript makes these inaccuracies apparent. The state engaged in appropriate and effective advocacy by using trial exhibits to highlight certain evidence and inferences. See Manuet, T.A.,Trial Techniques (Little, Brown 4th Ed. 1996) p. 369 ("Successful courtroom techniques maximize the use of exhibits and other demonstrative aids . . . . Closing arguments should use. . . those exhibits admitted in evidence that corroborate and highlight the main points of [the] argument."); Lubet, S., Modern Trial Advocacy (Nat'l Inst. for Trial Advocacy, 1997) p. 493 ("[V]isual aids can be extremely valuable during final argument. Counsel is generally free to use any exhibit that has been admitted in evidence and also to create visual displays solely for the purpose of final argument.")
For example, in the initial phase of summation, the state published twelve exhibits by displaying them on a screen in the courtroom. See EPP / closing / photographs / State's exhibit 5 (Martha), 4 (Moxley house), 13 (Moxley house 2), 14 (tree), 26B (Crime scene), 19 & 20 (stab), 32, 34 (driveway), 16 (under tree), 37 (drag path), 23 (blood smear). Each photograph displayed corresponded with the particular point the state's attorney was making at the time. See e.g. T. 6/3 at 9 (state displays SE 32 and 34, photographs of Moxley driveway, to point out where the assault began); T. 6/3 at 11 (State displays SE 23 and argues the significance of the blood smears apparent in that photograph) In so doing, the state did nothing more than act as an advocate: highlighting the important evidence and arguing its significance. (Footnote 20)
During its final summation, the state played about two minutes of the 32 minute Hoffman interview of the defendant. The entire 32 minute recording had been played to the jury, while a simultaneous transcript appeared on the screen, during trial. T. 5/21 at 149 ; EPP/ MainMenu/audio/Richard Hoffman. During summation, the state chose to highlight three segments of that interview. If State's Exhibit 108 (CD Rom of Hoffman interview) is compared with the segments played during the state's summation, it is apparent that the state did not distort or deceptively splice the tape in any manner. See SE 108; compare EPP/MainMenu/audio/RichardHoffman with EPP/MainMenu/Closing.
The first segment displayed contained the defendant's unwitting contradiction of his 1975 alibi. The evidence established that by the time Andrea Shakespeare and Julie came out of the Skakel house to take Andrea home, the car going to Terrien's had left. See T. 5/9 at 126. Yet, in his 1997 interview with Hoffman, the defendant undermines his 1975 alibi in the following passage:
anyway we got home and all the lights, most of the lights were out, and I went walking around the house, nobody was on the porch, um, went upstairs to my sister's room her door was closed, um, and I remember that Andrea had gone home.
EPP/MainMenu/closing/photographs/Andrea; T. 6/3 at 135.
For purposes of argument, the state chose to highlight the last phrase, above, by enlarging and displaying in red the words "and I remember that Andrea had gone home." In so doing, the state did what a good advocate must do, draw the factfinder's attention to evidence of particular significance. Manuet, T.A. Trial Techniques, p. 369 (Effective trial lawyers selectively pick and emphasize those parts of, and inferences from, the evidence that, when presented as an integrated whole, create an impression that convinces the jury that their side should win.) Immediately after playing this passage, the state argued:
On supposedly getting home from Terriens, he goes to his sister's room and remembers that Andrea had gone home. If you recall the credible testimony in this trial, the Monte Python tour, it had already departed when Julie and Andrea had stepped out of the house to take Andrea home. Somebody who had actually left already would have had no idea of Julie's trip to take Andrea home. On the other hand, the ["] Michael come back here, ["] as he ran past Julie as she exited the house, would have been fully aware of this fact.
T. 6/3 at 135-36.
Although the jury had already heard the Hoffman tape in its entirety, the powerful import of this passage may not have been apparent until highlighted and explained by the state in argument. The state would have failed in its obligation as an advocate had it not emphasized this momentous evidence. See Haydock and Sonstag, Opening and Closing: How to Prepare a Case (West 1994) p. 68 (One of the purposes of summation is to draw reasonable inferences, argue conclusions, . . . and to explain implications which the factfinder may not perceive) (emphasis added).
The second segment of the Hoffman interview the state displayed during argument was the defendant contradicting his 1975 assertion that he did not leave the house after returning from Terrien's. In the Hoffman tape he is heard not only undermining this claim, but placing himself at the crime scene looking for Martha:
I said, "Fuck this,
You know why should I do this, you know,
Martha likes me,
I'll go, I'll go get a kiss from Martha.
I'll be bold tonight."
booze gave me,
gave me courage again.
EPP/MainMenu/closing/photographs/kiss; T. 6/3 at 136, 137.
Finally, the state argued that the defendant created the masturbation tale he told to Meredith, Pugh, Ridge, and Hoffman as a cover to his crime. "As he explained to Mr. Hoffman, what if somebody saw me last night and then --
[Screen 1] "And I woke up, went to sleep, then I woke up to Mrs. Moxley saying `Michael, have, have you seen Martha?" [SE 5, photo of Martha Moxley is shown] I'm like, 'What?' And I was like still high from the night before, a little drunk, then I was like `What?"
[Screen 2] "I was like `Oh my God, did they see me last night?' And I'm like, I don't know, I'm like and I remember just having a feeling of panic." [SE 16 photo of the victim's body under the tree is shown].
[Screen 3] "like 'Oh shit.' You know, Like my worry of what I went to bed with, like may . . . , I don't know, you know what I mean I just had, I had a feeling of panic." [SE 17 photo of the victim's body under the tree].
EPP/MainMenu/closing/photographs/panic; T. 6/3 at 138.
The state argued what the juxtaposition of defendant's words with certain exhibits had suggested: "How could the sight of Dorthy Moxley possibly produce a feeling of panic in an innocent person, in a person who had gone to sleep knowing nothing of Martha Moxley's murder?" The state answered this question by its oral and visual argument: "The evidence tells you that only a person who had experienced that poor girl lying under the tree, not in his dreams but first hand, would have a cause to panic on awakening that morning." T. 6/3 at 138.
The state's display of Martha alive, and then of her body at the crime scene while playing this passage was not a blatant appeal to "passion" as defendant suggests. The state appropriately displayed the crime scene pictures to define the defendant's panic. The changing frame from the picture of Martha alive to the crime scene photos underscored what he knew at that point, and Mrs. Moxley did not.
Just as the state should not be deprived of its most valuable evidence unless there is a compelling reason to do so, the state should not be prohibited from making its best arguments. The state's use of audio and photographic exhibits during argument was a matter of effective advocacy. The state did not, as defendant claims, distort the evidence in any respect. By placing certain exhibits next to defendant's words, or by displaying two related exhibits simultaneously, the state was making explicit the inferences it was asking the jury to draw. This is the job of an advocate. Moore, A.J., Bergman, P. and Binder, D.A., Trial Advocacy, Inferences, Arguments and Techniques (West 1996) p. 214 ("[M]any different inferences or conclusions can be drawn from circumstantial evidence. Explicit arguments explain to a factfinder what inferences you want them to draw an (sic) why, and are thus often more persuasive than implicit arguments"); Smith, L. J., Art of Advocacy: Summation (1987) Section 1.5 ("[K]ey points which the jury must retain should be communicated visually as well as verbally. The use of both of these levels of communication form an integral part of the art of advocacy and the techniques of effective summation."); Belli, M.M., Modern Trials (2d Ed. 1982), Vol. 5, Section 70.18 ("To increase learning, appeal to as many of the five senses as you can").
As for defendant's contention that his panic on awakening was due to his fear someone saw him masturbating in a tree the night before, defendant was free to make that argument to the jury, but that does not mean the state was prohibited from urging a different interpretation. Moreover, defendant's claim that the state deceptively edited the Hoffman tape in such a way as to remove defendant's fear of having been seen from his self serving explanation is not true. See DB at 60, n. 80. The defendant's statement to Hoffman that as he was running home he hoped no one saw him "jerking off" concerned his thoughts the night of the murder, not the morning after when Mrs. Moxley woke him. See SE 108; EPP/MainMenu/Audio/Hoffman/Screen 103. Thus, it was a different segment of defendant's interview than the one the state chose to emphasize. Further, the jury heard the Hoffman tape in its entirety, and defendant's claim of masturbating in the tree was the subject of much testimony at trial. Thus, the state did not obscure defendant's self serving claim. The defendant was free to argue, and the jury was free to accept, defendant's explanation for his fear of discovery. This cannot mean, however, that the state could not present the jury with a different interpretation of defendant's fear, especially since the defendant himself linked his "panic" the following morning, not to his masturbating in a tree, but to Mrs. Moxley looking for her daughter.
Far from commit misconduct through its use of exhibits in summation, the state merely fulfilled its obligation as an advocate. (Footnote 21)
4. The state did not engage in gratuitous "name calling" as defendant alleges
The defendant's claim that the state "engaged in highly prejudicial name-calling" must be rejected. DB at 58. The state's use of the word "killer" was an appropriate appellation. In the section of argument in which that word appears, the state was asking the jury to consider how Ricci got information about defendant's involvement in the murder, since the police did not suspect the defendant at that time. The state argued:
Where did Ricci get that information [?]. Clearly he didn't get it from the police. Why did Ricci have that information[?] Why did Ricci confront the defendant with that information[?] The answer, the only one that makes sense, lies in why the defendant was there in the first place, lies in why his family felt a need to put him in that awful place. Why, because that's what they decided they had to do with the killer living under their roof.
T. 6/3 at 130-31.
The appellation "killer" was thus not gratuitous name-calling; it was an accurate description of what the jury could infer the family knew.
The state's use of the term "spoiled brat" was similarly rooted in the evidence. Both times the state used the phrase, it was discussing the defendant's admissions to Coleman. T. 6/3 at 16, 126. The defendant had insinuated in his cross of Coleman that it was unlikely the defendant would confide in someone assigned to guard him. See T. 5/17 at 157, 170. The state was countering this claim by suggesting why the defendant would divulge his guilt -- not because he and Coleman were close confidantes, but because the defendant wanted to prove he was tough. Two of the defendant's witnesses had testified that, along with the murder, the other issue with which defendant was confronted at Elan was "being a spoiled brat." T. 5/24 at 4; 5/23 at 177. The state argued, in essence, that this description of the defendant explained his smug bravado in confessing to Coleman. The state's use of the phrase was taken straight from the evidence. Unfortunately, the transcript does not include quotation marks to make that point clearer. Nonetheless, the jury would know the source of the term.
5. If the state erred in any aspect of argument, that error is clearly harmless
If this court were to find error in any aspect of the state's argument, the defendant must establish that the "trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process." State v. Singh, 259 Conn. 693, 700, 793 A.2d 226 (2002). This he cannot do.
First, despite defendant's numerous protestations to the contrary, the state's case against the defendant was strong. The state produced compelling evidence of motive, opportunity, linkage to the murder weapon, consciousness of guilt due to the defendant's ever changing account of his activities that night, a repudiation of his alibi, numerous incriminatory admissions, and three explicit confessions of guilt by the defendant. In light of this evidence, and the court's charge to the jury regarding the nature of argument; see T. 6/3 at 148; any error in the state's summation was harmless.
Moreover, as noted before, the failure of the defendant to object is powerful evidence that the challenged remarks did not deprive the defendant of a fair trial. In addition, the failure of the trial court to intervene sua sponte is an indication that the court did not view the state's argument as prejudicial. The trial court twice interrupted defendant's argument in order to cure what it viewed as improper argument. T. 6/3 at 46, 69-70; see also T. 613 at 105-9, 141-43 (Court gives curative instructions re: defense arguments). There is no reason to think it would not have done so had it thought the state's summation improper.
V. THE ADMISSION OF COLEMAN'S PROBABLE CAUSE HEARING TESTIMONY DID NOT VIOLATE THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION
The defendant claims that the trial court erred in admitting the probable cause hearing testimony of Gregory Coleman. Specifically, the defendant claims that despite the witness' unavailability and his prior opportunity to cross examine, this testimony was not sufficiently reliable to be admitted under the Sixth Amendment to the federal constitution.
Defendant's claim must be rejected. Coleman's prior testimony, which was vigorously cross examined at the prior hearing, satisfies the strictures of the Sixth Amendment.
Coleman testified under oath three times: before the Grand Jury in 1998, at the juvenile transfer hearing in June 2000 and again at the hearing in probable cause held in April 2001. Defendant cross examined him extensively at both the juvenile and probable cause hearings. See T. 4/18 at 98-131; 4/19 at 1-91, 109-121 (HPC); T. 6/20 at 176-84; T. 6/21 at 1-45, 57-65 (Juv.). Because Coleman died prior to trial, the state introduced his probable cause hearing testimony as substantive evidence. T. 5/16 at 52. Coleman's entire testimony from that hearing, including cross and subsequent examinations, was read to the jury, while a transcript of it appeared on the screen in the courtroom. See EPP/MainMenu/documents/Coleman.
Coleman testified that while he and Skakel were both residents of Elan, he was assigned to guard the defendant after a failed escape attempt. The defendant bragged that he would get away with murder because he was a Kennedy. He told Coleman that his advances to a girl had been spurned, and so he "drove her skull in with a golf club." The defendant said it happened in a wooded area, and he had hit her so hard, the club broke. The defendant claimed that he returned two days later and masturbated on the body. Skakel also told Coleman he was in Elan to avoid the investigation into this murder. T. 5/17 at 137-38. (Footnote 22)
B. The Admission of Coleman's Prior Testimony, Which Was Vigorously Cross-examined, Did Not Violate the Sixth Amendment
In Crawford v. Washington, 124 S.Ct. 1354 (2004), decided subsequent to the filing of defendant's brief, the United State's Supreme Court overruled Ohio v. Roberts, 448 U.S. 56 (1980) and supplanted its "indicia of reliability" analysis with a new test which looks to the nature of the statement at issue. After reviewing the history of the Confrontation Clause, the High Court concluded that "the principal evil at which [it] was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Crawford v. Washington, 124 S.Ct at 1363. Accordingly, the court held that "where testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Id. at 1374. Although the court left for another day any attempt at a comprehensive definition of "testimonial," it is clear that prior testimony such as that at issue here falls within it.
It is also clear that the Sixth Amendment standard was satisfied. Coleman's unavailability is not disputed. Furthermore, defendant had ample opportunity to challenge Coleman's probable cause testimony, as demonstrated by his extensive cross, recross, and further cross examination extending over 130 pages of transcript. See T. 4/18 at 98-131; T. 4/19 at 1-91, 109-120. During the course of cross examination, the defendant confronted the witness, inter alia, with prior acts of misconduct and alleged prior inconsistent statements, challenged his memory due to the passage of time, questioned Coleman regarding any expectation of benefit in exchange for his testimony, asked Coleman why he had not reported his conversation with the defendant sooner, and impeached his recollection due to drug use. See e.g. T. 4/18/01 at 98, 101, 102, 104, 105-6, 108, 109-10, 112, 113-4, 118, 122, 124, 127, 128-9; T. 4/19/01 at 3-5, 7, 8, 24, 31-32, 33-34, 36-7, 41, 45, 47, 51, 52, 60-61, 65, 67, 69, 75-76, 80-2, 83-6, 87, 89, 112-13, 116.
On appeal, defendant does not contest his opportunity to cross examine Coleman. Instead, he contends that Coleman's testimony lacks the requisite "indicia of reliability." DB at 65. The factors defendant points to in support of his contention do not rightly inform the issue of admissibility under Crawford, or even under the supplanted standard of Ohio v. Roberts. (Footnote 23)
Crawford held that the guarantee of reliability under the confrontation clause is a procedural rather than a substantive guarantee: "It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but on how reliability can best be determined." Crawford thus dispenses with the reliability inquiry formerly required under Ohio v. Roberts where an opportunity for cross examination has been provided. There is no need to consider the defendant's arguments regarding the alleged unreliability of Coleman's testimony.
If considered, however, they must be found wanting. The claims defendant makes regarding alleged inconsistencies and other matters of impeachment may be appropriate grist for cross examination but they do not supply a basis for excluding this evidence. Reliability of a hearsay statement depends on the circumstances surrounding its making. Idaho v. Wright, 497 U.S. 805, 820-21 (1990); see State v. Rivera, 268 Conn. 351, 368, 844 A.2d 191 (2004). Here, Coleman's prior statement was made under oath, subject to criminal penalties of perjury, before a judicial tribunal that kept an accurate record of the proceedings. State v. Outlaw, 216 Conn. 492, 505, 582 A.2d 751 (1990). Further, defendant was present in court, was represented by the same counsel who represented him at trial, and had a full opportunity to cross examine. Id. The trial court did not err in admitting Coleman's testimony pursuant to this well-established hearsay exception. See Conn. Evid. Code Section 8-6 (1); see also California v. Green, 399 U.S. 149, 165-66 (1970); Mattox v. United States, 156 U.S. 237 (1895). (Footnote 24)
VI. THE DEFENDANT'S CLAIM OF COERCED CONFESSIONS WAS NEVER RAISED BELOW AND FINDS NO SUPPORT IN THE RECORD
The defendant claims that the trial court erred in admitting what he contends were confessions coerced from him by the administration of Elan. He asserts that despite the absence of state action in producing these supposedly coerced confessions, and despite his failure to raise any challenge to this evidence below, their admission violates due process under the state and federal constitutions. DB at 67, 68.
The infirmities of this claim are legion. First, defendant never moved to suppress this evidence below. Hence, there was no suppression hearing at which evidence could be adduced specifically addressing defendant's claim, and no factual findings by the trial court concerning his allegations.
Second, the record that does exist provides no support for what defendant is alleging. In fact, a careful review of the transcript reveals that defendant's claim rests on a serious distortion of the record. The statements offered by the state all occurred in either private conversations between the defendant and another teenage resident, or during small group therapy sessions. The context of these statements, therefore, supply no evidence of coercion. Defendant's allegations of abuse derive principally from testimony concerning the General Meeting. Evidence of this meeting and the defendant's alleged mistreatment at Elan was largely introduced by the defendant, not the state. Moreover, the witnesses who testified to these occurrences all agreed that defendant did not confess when so confronted.
In its case in chief, the state presented six witnesses who knew the defendant during the time he spent at Elan -- Chuck Seigen, Dorothy Rogers, John Higgins, Elizabeth Arnold, Alice Dunn and Gregory Coleman. Chuck Seigen testified that the first time he heard about the defendant's involvement in a murder was through an announcement by Joe Ricci, the director of Elan, at a General Meeting (Footnote 25) held after the defendant had attempted to run away. Seigen did not testify to any statements by the defendant during the course of that meeting. He did, however, testify that he was present on two occasions when Skakel was asked about this murder. T. 5/16 at 78-79. Both were therapeutic group meetings. Id. He recalled the defendant being annoyed that he was asked. He also recalled the defendant crying, shaking his head, and saying he did not know if he did it. Id. at 78. The defendant also said that he was blind drunk and stumbling the night of the murder. Id. at 78, 82,123.
Dorothy Rogers, who had been acquainted with the defendant in Greenwich, saw Skakel at an Elan social function. During the course of their conversation, the defendant told Rogers that he had been drinking the night Moxley was murdered and could not remember what happened. He also stated that he thought his family put him in Elan because they were afraid he may have committed the crime, and that they were trying to hide him so the police would not put him in jail. T. 5/16 at 138. Rogers further testified that she recalled one group session she was in with the defendant where someone asked him how it felt to beat a girl to death with a golf club. Rogers stated, however, that the defendant did not admit to the crime when so confronted. Id. at 143-44.
John Higgins testified that the defendant admitted killing Moxley during a private conversation when they sat up one night on guard duty. See T. 5/16 at 181. Higgins stated they talked about a lot of things that night, including why each of them was at Elan. The defendant told Higgins he was involved in a murder, that he remembered going through his garage and finding a golf club. T. 5/16 at 181-82. The defendant further stated that he recalled running through the woods with a golf club in his hands, and seeing pine trees. Id. As the conversation continued and the defendant became emotional, he progressed from saying "maybe I did it," to "I must have done it," to "I did it." Id. at 182.
Elizabeth Arnold, another former resident of Elan, testified that she recalled one group session in which the group discussed the murder of a girl in the defendant's hometown. T. 5/17 at 3. She recalled the defendant saying that he did not know what happened that night. He claimed he was very drunk and had some sort of a blackout, and he didn't know if he had killed her or if his brother had done it. She further recalled him saying he had been running around outside that night. He also said his brother "fucked his girlfriend." T. 5/17 at 4. When Arnold asked him how his brother could have done that to him, he said that they did not actually have sex, but they were "fooling around" and his brother 'stole his girlfriend.' Id. Arnold stated the facilitator of the group tried to reassure the defendant that his brother was probably responsible for the murder. Despite the reassurance, the defendant still appeared "pained". Id. at 5-6, 12. According to Arnold, he kept repeating that he did not know if he did it, that he could have done it but he did not remember. Id. at 6, 19.
Alice Dunn testified to two private conversations with the defendant. The first occurred when the defendant was scrubbing floors in Elan's kitchen. The defendant led her to believe that he did not know if he killed Moxley, but he did state that he had been drinking that night. T. 5/17 at 61. The second conversation occurred eight months or a year later while the two of them were at a restaurant. In her Grand Jury testimony, which was admitted under State v. Whelan, 200 Conn. 743, 513 A.2d 86 cert. denied, 479 U.S. 994 (1986), Dunn testified that the defendant said he did not know if he killed Moxley, but if he did, he was not in his normal state. He also said it could have been either him or his brother. Id. at 75-76.
On cross examination of Dunn, the defendant inquired extensively about the General Meeting held for the defendant. Dunn stated she recalled Ricci looking at a "good sized" file and asking the defendant what happened to his neighbor. T. 5/17 at 83-85, 96-98, 106. Dunn stated that the defendant was crying and continually claimed he did not kill her. She asserted that every time he denied responsibility, he was put in a boxing ring and forced to fight one opponent after the other. Id. at 83. Dunn further stated that Skakel went from denying he killed Moxley to saying "I don't know." According to Dunn, when he finally claimed he did not know what happened, the pummeling stopped. Id. at 85. Dunn admitted on re-direct, however, that she did not have boxing gloves on during her conversation with the defendant in the kitchen, or later at the restaurant. Id. at 104.
The state's final Elan witness to testify to admissions by the defendant was Gregory Coleman. The circumstances of his conversation with the defendant have already been recounted. For purposes of this claim, however, it is important to note that the conversation was a private conversation between teenage residents. The defendant's incriminating admissions were not prompted by any threats or inducements.
During his case, the defendant presented the testimony of four former residents of Elan, Sarah Peterson, Michael Wiggins, Donna Kavanaugh and Angela McFillan. Sarah Peterson testified that the defendant was required to wear a sign that said "confront me on the death of my friend." T. 5/23 at 111. She recalled the defendant being beaten and spanked. She claimed that after hours of such brutal treatment, the defendant would say maybe he did it, but he did not know and that would "at least get them to lay off of him for a little while." T. 5/23 at 122.
Defendant's second Elan witness, Michael Wiggins, testified that Joe Ricci confronted the defendant at the General Meeting by announcing to the assembled students that "we are going to get to the bottom of this, and Michael is going to tell us why he murdered Martha Moxley." T. 5/23 at 171. Wiggins further stated that each time the defendant denied killing Moxley, he would have to fight another opponent in the boxing ring. According to Wiggins, Ricci only stopped putting the defendant in the ring when he finally said, "I don't know." Id. at 175. Wiggins also stated that the defendant was forced to wear two different signs while at Elan. The first said: "Confront me on why I killed Martha Moxley." Id. at 177. The second said: "Please confront me on why I am a spoiled brat." Id.
Donna Kavanaugh testified that although she recalled Skakel being the subject of a General Meeting, she could not recall him being confronted about the murder. T. 5/23 at 207. She did, however, remember him wearing a sign that said he was a murderer. Id. at 207. She also claimed she never heard Skakel confess to killing anyone. Id. at 209.
Angela McFillan testified for the defense also. She remembered the defendant wearing a sign that said "I am a spoiled brat." T.5/24 at 4. She further recalled a sign that said "Please confront me on the murder of my friend, Martha Moxley." Id. McFillan testified Ricci confronted the defendant with this murder at the General Meeting. She recalled the defendant initially denying that he killed Moxley, but after being put in the boxing ring several times, finally saying he did not know what happened. Id. at 6, 10, 14. The General Meeting was the only occasion McFillan remembers seeing the defendant confronted about his responsibility for the murder. Id. at 18.
B. Defendant's Claim Should Not Be Reviewed Due to an Inadequate Brief and an Inadequate Record
As the foregoing fact statement makes clear, the defendant made numerous admissions to various persons during his time at Elan. Each of the statements offered by the state occurred in a discrete context. The defendant has failed in his brief to explain which of these statements he is challenging. He has also failed to provide this court with an analysis of the circumstances surrounding each challenged statement. It is not sufficient, as the defendant has done, simply to lump all the "Elan statements" together as if they all occurred at the same time under the same circumstances. See State v. Mims, 61 Conn. App. 406, 410, 764 A.2d 222 cert. denied, 255 Conn. 944, 769 A.2d 60 (2001) (analysis rather than mere assertion of error is required to avoid abandoning a claim).
Defendant's appellate failure is compounded by his trial default. Because the defendant below failed to challenge the admission of this evidence, the trial court did not hold a suppression hearing. The state, therefore, had no opportunity to present evidence specifically addressing defendant's claim. Even more importantly, the trial court made no findings of fact on this issue.
The lack of factual findings is fatal to defendant's claim; his passing reference to State v. Golding, 213 Conn. at 239-40 cannot save it. See DB at 67 n. 92. As this court has often recognized, "the test of voluntariness is whether an examination of all the circumstances discloses that the conduct of law enforcement officials was such as to overbear [the defendant's] will to resist and bring about confessions not freely self- determined . . . " State v. Pinder, 250 Conn. 385, 418, 736 A.2d 857 (1999). The preliminary determination of voluntariness must be made by the trial court. State v. James, 237 Conn. 390, 410, 678 A.2d 1338 (1995). "[T]he trial court's findings as to the circumstances surrounding the defendant's interrogation and confession are findings of fact . . . which will not be overturned unless they are clearly erroneous . . ." State v. Pinder, 250 Conn. at 420. As to the ultimate issue of whether the circumstances found by the trial court, including the characteristics of the accused and the details of the interrogation, rendered the confession involuntary, this court's review is plenary. Id. at 421.
Because of the intensely fact-bound nature of the claim, the lack of factual findings below renders the record insufficient to review defendant's contention. State v. Medina, 228 Conn. 281, 295-302, 636 A.2d 351 (1994) (refusing to review claim of involuntary confession under the state constitution where failure to raise it below left the record inadequate); State v. Stanley, 223 Conn. 674, 689-90, 613 A.2d 788 (1992) (refusing to review Miranda claim under state constitution where failure to raise it below left the record inadequate).
In this case, even more so than Medina, the lack of factual findings by the trial court precludes review. As the foregoing fact statement makes clear, the state did not introduce any statements made under coercive circumstances. Evidence of abusive practices by the administration of Elan was introduced by the defendant for the purpose of showing that the defendant did not confess under such circumstances. The inference the defendant apparently hoped the jury would draw is that if he did not confess in the face of such pressure, it is unlikely he would have confessed in the other contexts offered by the state.
The defendant's claim, therefore, has no basis in this record. The only plausible predicate for his claim would be a finding by the trial court that whatever coercion defendant experienced at the hands of Ricci caused the defendant to confess in other contexts and to other people. See State v. LaPointe, 237 Conn. 694, 732 and n. 44, 678 A.2d 942 cert. denied 519 U.S. 994 (1996) (without a causal connection between the coercive tactics and the challenged statements, defendant's claim fails). No such finding was ever made by the trial court and none can be made by this court on appeal. See State v. Anderson, 209 Conn. at 632 (1989) (Supreme Court cannot decide disputed issue of fact). Moreover, the present record undermines rather than supports such a finding. (Footnote 26)
VII. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ANY OF THE THREE DISCRETE EVIDENTIARY RULINGS DEFENDANT CHALLENGES
In his final claim on appeal, defendant asserts error in three discrete evidentiary rulings by the trial court. Specifically, the defendant claims the trial court should not have admitted a prior inconsistent statement made by Mildred (Cissy) Ix to the Grand Jury, which contained two levels of hearsay, that the court erred in admitting certain "tabloid" articles to refute the claim by Gerrane Ridge that she learned details of the crime from those articles rather than from the defendant, and in excluding remote felony convictions of Ken Littleton's.
All of these claims are evidentiary in nature and therefore governed by an abuse of discretion standard of review. On appeal, the trial court's exercise of discretion is entitled to great deference. Reversal is required only where there has been a manifest abuse of that discretion. See e.g. State v. James, 268 Conn. 382, 396, 844 A.2d 810 (2004); State v. Braswell, 194 Conn. 297, 309, 481 A.2d 413 (1984) cert. denied 469 U.S. 1112 (1985); State v. Spiegelmann, 81 Conn. App. 441, 448, 840 A.2d 69 cert. denied, 268 Conn. 921, 846 A.2d 882 (2004). Examination of the circumstances surrounding each evidentiary claim reveals no such abuse.
A. The Trial Court Did Not Abuse Its Discretion in Admitting the Prior Inconsistent Statement of Cissy Ix
The defendant claims the trial court abused its discretion in admitting a statement made to the Grand Jury by Mildred (Cissy) Ix under State v. Whalen, 200 Conn. 743, 513 A.2d 86 (1996), which itself contained double hearsay. As required, the trial court found each layer of hearsay admissible under a hearsay exception. It did not abuse its discretion in admitting this highly probative evidence.
The defendant's father, Rushton Skakel, Sr., testified that he had known his former neighbor, Cissy Ix, a long time. He agreed that he considers her a close friend and confidant. He testified that he did not recall a conversation with Cissy Ix in about 1981, in which he expressed some concern about his son, Michael. T. 5/15/02 at 82. Reading Cissy Ix's Grand Jury testimony regarding this conversation did not refresh his recollection. Id. at 87
Cissy Ix testified that she was very close with the Skakel family, particularly the deceased mother, Anne Skakel. Id. at 89; see also T. 5/19 at 100, 114-15. She testified that she considered Rushton, Sr. a good friend. She stated that after Anne Skakel died, she tried to help Rushton, Sr. raise his seven children. Id. at 91.
Cissy Ix denied having a conversation with Rushton, Sr. in which he told her Michael had wanted to take a sodium pentothal test because, he said, he had a lot to drink the night Martha was killed and he wanted to see if, perhaps, he had forgotten something and he could have murdered Martha. Id. at 128. One page of her Grand Jury testimony, in which she relates such a conversation, was admitted under State v. Whelan. See SE 87.
The defendant's hearsay objection to this statement was overruled by the court. The trial court recognized that the Grand Jury statement contained three levels of hearsay and each level would have to be independently admissible. Id. at 117. The court found the first level, Cissy Ix's Grand Jury statement which was inconsistent with her trial testimony, admissible under State v. Whelan. The third level, the defendant's statement to his father, was admissible as an admission by a party. The court recognized that the most difficult level was the statement of Rushton Skakel, Sr. to Mrs. Ix. As to this level, the court reasoned that there was a reasonable necessity for the admission of the statement, as the father professed a lack of memory of the conversation even after an attempt was made to refresh his recollection. As to the trustworthiness of the statement, the court found several factors militated toward its trustworthiness:
One is Mr. Skakel's statement and this witness's statement as to their relationship and this witness's statement about the defendant's mother, deceased, the fact that he from time to time went to her as a neighbor and as a friend of his former wife in matters involving the children.
Also, while it is not a direct admission against Mr. Skakel, by Mr. Skakel, Sr. it certainly is not the type of thing that a father would confide to a close confidante such as this lady at a personal level about his son's involvement in a crime of this nature.
Id. at 118.
2. The trial court did not err in finding the statement from Rushton, Sr. to Cissy Ix admissible under the residual exception
Defendant does not claim that the trial court's determinations with regard to the first and third levels of hearsay are erroneous. Instead, he centers his claim on the second level of hearsay, the father's conveyance of the defendant's admission to Cissy Ix. Because this layer carries significant indicia of reliability, the trial court properly admitted it under the residual hearsay exception. See Conn. Code of Evid. Section 8-9. Under this provision, evidence is admissible if 1) there is a reasonable necessity for the admission of the statement, and 2) the statement is supported by guarantees of reliability and trustworthiness comparable to that of other evidence admitted under the traditional hearsay exceptions. State v. Merriam, 264 Conn. 617, 633, 835 A.2d 895 (2003).
"Wigmore explains that the necessity requirement is met when, unless the hearsay statement is admitted, the facts it contains may be lost, either because the declarant is dead or otherwise unavailable, or because the assertion is of such a nature that evidence of the same value cannot be obtained from the same or other sources. [5 Wigmore, Evidence (Chadbourne Rev. 1974) Section 1421].; State v. Sharpe, 195 Conn. 651, 665, 491 A.2d 345 (1985).
As to reliability, Wigmore notes: "The circumstantial probability of trustworthiness and reliability can be found in a variety of situations. One example is "[w]here the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed." State v. Sharpe, 191 Conn. at 665, citing Wigmore, Section 1422. "Such a statement is considered sufficiently trustworthy to be admissible despite the inability to cross-examine the declarant in the traditional sense." Id.
As to necessity, because the declarant, Rushton Skakel, Sr., claimed to have no memory of the conversation, the only way to present this evidence was through Cissy Ix.
As to the second criteria, the circumstances surrounding the father's statement to Ix provide sufficient guarantees of trustworthiness to allow this evidence to go to the jury. Importantly, the father's statement, while not falling squarely within an established exception, shares attributes indicative of reliability with a number of hearsay exceptions. For instance, while the father's statement may not be directly against his penal interest, it is certainly a statement against his familial interest. Because a parent's interests are usually closely aligned with that of his child, a statement that reflects negatively on his son is against his interest as a parent. Such a statement is against the father's interest in his reputation, and the regard and esteem of his family. Because the statement incriminates his son, it is difficult to imagine any reason why Rushton Skakel, Sr. would have relayed the admission to Ix had it not been made. See State v. Rivera, 268 Conn. at 368.
The natural alliance between a father and his son also makes Rushton Skakel, Sr.'s statement to Ix akin to an admission by a party. Included within the exception for party admissions are statements made by one who, though not a true party to the litigation, is so closely aligned with a party on the subject of the litigation that his statement may in fairness be offered against the party. See Conn. Code of Evid. Section 8-3(1)(C) (a statement by an authorized agent); Section 8-3(1)(D) (statement by a coconspirator); Section 8-3(1)(e) (in an action for debt for which the party was surety, a statement by the party's principal regarding the principal's obligations); Section 8-3(1)(F) (in certain circumstances, a statement by a predecessor in title). Here, the father's interest in protecting the son from prosecution mirrors the son's self-interest. Therefore, although the father is not strictly an agent of the son, the commonality of interest weighs in favor of admitting the father's statement against the son.
The reliability of the statement is further established by the nature of the relationship between Rushton Skakel, Sr. and Cissy Ix. As Cissy Ix testified, she was a long-time friend and confidante of Mr. Skakel. Because Cissy Ix is someone Rushton Skakel, Sr. trusted, it is likely that he would be candid with her in reporting a serious admission by his son. See State v. Rivera, 268 Conn. at 365, 370.
Further, because Rushton Skakel, Sr.'s statement was against his own interest when made, and was made to a trusted friend, it falls within the rationale for admitting dual inculpatory statements. In State v. Schiappa, 248 Conn. 132, 692 A.2d 820 cert. denied 528 U.S. 862 (1999), this court admitted a statement made by one participant in a crime that inculpated both himself and another participant. Part of the court's reasoning for admitting the statement was the trust that existed between the declarant and his friend, the state's witness. Because of that relationship, the court found no apparent motive for the declarant to lie. Id. at 155-56. In addition, the court noted that the statement itself did not attempt to shift blame to the other or minimize the declarant's responsibility. Id.; accord State v. Rivera, 268 Conn. at 371.
Here, too, the father's statement was made to a trusted friend, not a law enforcement officer. See State v. Rivera, 268 Conn. at 370. Also, in the statement, the father is not attempting to distance himself from his son and his transgression. See also United States v. Matthews, 20 F.3d 538 (2d. Cir. 1994).
Finally, the timing of the statement further underscores its reliability. Rushton, Sr. made the statement on his own initiative, to a trusted friend, at a time when his son, Michael, was not a serious suspect. See T. 5/29 at 166. The statement, therefore, was not influenced by an impending arrest or prosecution.
Thus, although the hearsay statement of Mr. Skakel, Sr. to Mrs. Ix may not fit neatly into one of the traditional exceptions to the hearsay rule, it is nevertheless clothed in indicia of reliability similar to that found in established exceptions. The trial court did not abuse its discretion in admitting it under Connecticut's residual exception. See Conn. Evid. Code Section 8-9; see also State v. Merriam, 264 Conn. at 641-45; State v. Tanzella, 28 Conn. App. 581, 601 (1992) cert. granted other issue, rev'd 226 Conn. 601, 628 A.2d 973 (1993); State v. Dollinger, 20 Conn. App. 530, 541-42, 568 A.2d 1058 cert. denied 215 Conn. 805, 574 A.2d 220 (1990); State v. Sharpe, 195 Conn. at 664-666; see also State v. Rivera, supra; State v. Schiappa, supra; United States v. Matthews, supra. (Footnote 73)
B. The Trial Court Did Not Err in Admitting Articles from Which Gerrane Ridge Claimed She Obtained Information Regarding the Crime
During her testimony, Gerrane Ridge admitted that she met the defendant in the spring of 1997 when he attended a party at her condominium. She testified that as she walked into the room, she heard the defendant say, "in jest," "Ask me why I killed my neighbor." T. 5/21 at 13. Ridge claimed not to recall anything else the defendant said about the murder. Id. at 14.
A tape recorded phone conversation between Ridge and Matthew Attanian, a friend of hers, was admitted under State v. Whelan, supra. During that conversation, Ridge told Attanian the defendant admitted hitting the victim with a golf club. See SE 104 at 11. (transcript of the conversation) see also EPP/MainMenu/Audio/GerraneRidge/ at Screen 11; see also Screens 26, 78, 101. In addition, Ridge related the following:
"Um, John Doe was, was um, watching this particular girl at her bedroom window, changing. And he was up in a tree, masturbating, cause he liked her. She went and had sex with his brother Tommy that same night, while he was outside smoking pot and doing LSD and acid and really big-time drugs, mind, you know, altering drugs. After he found out that, that his, that John Doe's brother had sex with this girl, he got so violent and he was so screwed up, he did that to her.
Id. at Screens 14-15.
On cross examination, Ridge claimed that she had lied to Attanian about overhearing the defendant's admissions. She claimed that she wanted to appear more knowledgeable than she was. She claimed that the information she gave Attanian about the defendant hitting Martha with a golf club, and ingesting mind-altering drugs the night of the murder all came from "the tabloids." T. 5/21/02 at 71, 74, 75-6, 80.
On redirect examination, the state asked Ridge whether the three newspapers her attorney brought with her to court were the source of the information she had provided to Attanian. She responded: "Most of the source, yes, sir." Id. at 110. After the publications were marked for identification, Ridge indicated that she had placed the yellow post-it stickers on them to mark the pertinent pages. Id. at 111. The state then asked Ridge to look at the pages she had marked and point out anywhere in those articles where it mentioned the defendant climbing a tree and spying on the victim. Id. at 111-112. The defendant objected, arguing that this inquiry was improper because the articles were not in evidence. The court sustained the defendant's objection. Id. at 112.
The state then asked Ridge whether certain details she provided Attanian, such as the defendant spying on the victim while in a tree, having consumed pot and LSD, really liking the victim, learning that his brother had sex with the victim, and how this knowledge led him to kill her was in the newspapers that had been marked for identification. Ridge answered yes to each inquiry. Id. at 113.
It was at this point that the state offered SE 105 (March 12, 2002 Inquirer), SE 106 (February 29, 2000 Globe), and SE 107 (May 13, 1997 Star). The defendant objected, stating the evidence was "irrelevant" and "prejudicial." Id. at 115. The court overruled the defendant's objection and instructed the jury not to consider these periodicals for their truth, but only in connection with Ridge's testimony that they were a source of the facts she provided to Attanian. Id. at 115, 116; see also T. 6/3 at 149 (reiterating limiting instruction in charge).
The state then asked the witness to read the pages she had marked to see if those articles mentioned any of the details she relayed to Attanian. She admitted the articles did not contain anything about the defendant masturbating in a tree, but claimed "there was a mention of illicit drug use" and "something to [the] effect" of the defendant having learned his brother had sex with the victim. Id. at 117. She also claimed she had not had an opportunity to read them thoroughly, saying: "I just skimmed them[.]" Id. at 117.
On recross examination, Ridge stated that these articles were not the only source of the information she gave Attanian. Id. at 130.
2. The trial court did not abuse its discretion in admitting these articles for the limited purpose of impeaching Ridge's explanation of the source of her information
Once the court's ruling admitting these articles is placed in context, something the defendant's brief takes pains not to do, the propriety of that ruling is apparent. As the court's limiting instruction made clear, the jury was to consider these exhibits only to assess Ridge's claim that they were the source of her information, not for the truth of anything contained therein. Further, it was the defendant who first elicited from Ridge the claim that she got her information from the "tabloids." When the state asked Ridge whether the information she gave Attanian was in these newspapers, the defendant objected that these items were not evidence. The defendant's objection, which the court sustained, along with the witness' continued insistence that some of the information she gave Attanian was contained in these newspapers, necessitated their admission.
The trial court did not abuse its discretion in determining that the probative value of these articles outweighed their prejudicial effect. This is especially so when the court's limiting instruction is considered. Conn. Code Evid. Section Section 4-2, 4-3. (Footnote 73)
C. The Trial Court Did Not Abuse its Discretion in Excluding Littleton's 1977 Felony Convictions
The defendant claims the trial court abused its discretion in excluding Ken Littleton's three 1977 burglary convictions on the ground of remoteness. Contrary to the defendant's claim, the trial court acted appropriately in excluding these ancient convictions.
During the cross examination of Ken Littleton, outside the presence of the jury, the court heard argument regarding Littleton's past record and which part, if any, would be admissible for impeachment. The state indicated that Littleton had three 1977 burglary convictions, for incidents occurring in 1976. Id. at 37-38. The witness also had a 1982 drunk and disorderly conviction in Florida in which he gave police the name "Kenny Kennedy". Id. at 38.
The court ruled that the 1976-77 felony convictions were too remote to be admissible as impeachment. It permitted defendant, however, to question the witness regarding his use of a false name "on a prior occasion in a law enforcement interaction unrelated to this case." Id. at 40.
2. The trial court properly weighed the probative value against the prejudicial effect and excluded these remote convictions
Under Section 6-7 of the Connecticut Evidence Code, a prior conviction may be admitted to impeach a witness if the conviction was for a crime punishable for more than one year. In determining whether to admit any such conviction, the trial court should balance the extent of the prejudice likely to arise, the significance of the particular crime in indicating untruthfulness, and the remoteness in time of the conviction. Section 6-7 (a) Conn. Evid. Code; State v. Nardini, 187 Conn. 513, 522, 447 A.2d 396 (1982). Because this determination is entrusted to the discretion of the trial court, its ruling will be disturbed on appeal only where that discretion has been abused. State v. Braswell, 194 Conn. at 307.
The trial court acted well within its discretion in excluding these ancient convictions. "While leaving the matter to the general discretion of the trial court, [this court] has sanctioned a general guideline for the determination of remoteness that parallels rule 609 (b) of the Federal Rules of Evidence. Rule 609 (b) establishes a ten year limitation from conviction or release from resulting confinement upon the use of the conviction for impeachment purposes unless the probative value of the conviction substantially outweighs its prejudicial effect." State v. Sauris, 227 Conn. 389, 409-10, 631 A.2d 238 (1993) (footnote omitted).
Here, defendant's prior convictions were approximately 25 years old, more than twice as old as the ten year "benchmark." Inasmuch as their extreme age diminished whatever relevance they may have had to the witness' credibility, the trial court did not abuse its discretion in excluding them. Id. at 407-10 (upholding exclusion of three convictions more than thirty years old, even though they bore on the witness' veracity); State v. Carter, 228 Conn. 412, 429-432, 636 A.2d 821 (1994) (court did not abuse its discretion by excluding two felony convictions of state's witness that were older than 10 years).
D. If the Trial Court Erred in Any of These Evidentiary Rulings, the Defendant Has Not Established Harm
Because each of these claims is evidentiary in nature, the defendant has the burden of proving harm. State v. Grenier, 257 Conn. 797, 806-7, 778 A.2d 159 (2001). This court has articulated the standard for establishing harm as either a showing that it is more probable than not that the erroneous action of the court affected the result or a showing that the prejudice was so substantial as to undermine confidence in the fairness of the verdict. Id. at 807. Under either articulation, defendant's claim fails.
As to the prior statement of Cissy Ix, defendant's admission to his father was merely cumulative of the multitude of other incriminatory admissions heard by the jury. See State v. Magnano, 204 Conn. at 285-86 (admission of cumulative evidence does not require reversal). Although it was significant because made to a trusted family member, it was also somewhat qualified; it was certainly not as direct as his statements to Higgins, Coleman, and Ridge in which he unequivocally admitted killing Moxley.
In addition, the overwhelming strength of the state's case, in which the jury heard evidence of motive, opportunity, access to the murder weapon, the defendant's ever changing account of his activities that night, the demise of the alibi through the testimony of Shakespeare and defendant's family members, the defendant's own repudiation of his alibi in his taped statement to Hoffman, the significant circumstantial evidence indicating the defendant's family placed him in Elan because of his guilt at a time when the police did not suspect him of this murder, and finally defendant's numerous admissions of guilt, any error in admitting this one qualified admission is harmless. See State v. Francis, 267 Conn. 162, 180-88, 836 A.2d 1191 (2003) (finding error harmless under more stringent constitutional standard in light of overall strength of state's case).
As to the "tabloid" articles admitted to refute Ridge's claim of the source of her information, this too, if error, was harmless. As previously noted, the trial court instructed the jury as to the limited purpose for which these articles were admitted. In the absence of a clear indication to the contrary, it is assumed that the jury followed this instruction. State v. James G., 268 Conn. 382, 397-98, 844 A.2d 810 (1984). Defendant, therefore, cannot show prejudice from their admission.
Finally, as to Littleton's prior felony convictions, their probative value on the issue of credibility was slight in view of their extreme age. State v. Sauris, 227 Conn. at 409. In addition, the defendant extensively cross examined this witness, and his ex-wife, in an effort to impeach him. See T. 5/13 at 3-57, 91-118, 153-55; T. 5/12 at 169-76, T. 5/14 at 2-46, 178-201, 204. In view of all this, the exclusion of his prior convictions, if error, was harmless.
For all of the foregoing reasons, the State of Connecticut respectfully asks this Court to affirm defendant's conviction.
June 23, 2004
THE STATE OF CONNECTICUT BY:
SUSANN E. GILL
Senior Assistant State's Attorney
for the Judicial District of Fairfield
Fairfield Post Conviction Remedy Unit
Christopher L. Morano
Chief State's Attorney
Jonathan C. Benedict
State's Attorney for the Judicial District of Fairfield
Footnote 1 State's Exhibit (hereinafter SE)1 is a large aerial photograph of the section of Belle Haven which included both the victim's and the defendant's homes. Once admitted, it was projected on a screen in the courtroom and used as an aid to testimony throughout the trial. T. 5/7 at 29-31. This exhibit can be found on the evidence presentation program (hereinafter EPP), a CD Rom of which was made part of the record in response to the State's Motion to Rectify. The EPP contains copies of most of the state's exhibits, with exhibit numbers appearing in the lower right hand corner of the screen. The EPP was used throughout the trial to display exhibits on a screen in the courtroom that was visible to all participants. Defendant did not object to this method of publication. See T. 4/26 at 80;T. 5/7 at 31. To find State's Exhibit 1, click on Belle Haven in the Main menu. Rolling the cursor over various areas on the aerial photograph will bring up other state's exhibits. For instance, clicking on either the Moxley or Skakel residences will zoom in on each house. Clicking on an arrow in the upper right hand corner of the close-up screen will display photographs of these houses from various vantage points. Clicking on the grassy area to the left of the Moxley house will bring up an enlargement of the crime scene. Clicking on an arrow in the upper left hand corner of that enlargement will reveal where certain evidence was found. Pictures of the various items of evidence appear when you click on the marker for that evidence. See, SE 1 on EPP; see also Carney, B. and Feigenson, N., Visual Persuasion in the Michael Skakel Trial: Enhancing Advocacy Through Interactive Media Presentations, 19 Criminal Justice (ABA) Spring 2004, 22, 25-28 (explaining the basic features of the EPP).
Footnote 2 The defendant's mother, Anne Skakel, was deceased. T. 5/15 at 90.
Footnote 3 Jeffrey Byrne was deceased at the time of trial. T. 5/9 at 66.
Footnote 4 Mildred Ix is Helen Ix's mother. She lived next door to the Skakels, had been the deceased mother's best friend, and was very close to the family. T. 5/15 at 89-90.
Footnote 5 All pertinent statutory provisions and court rules are included in either the Defendant's Appendix (DA) or the State's Appendix (SA).
Footnote 6 The state recognizes that it was precluded from seeking the death penalty for the defendant, under PA 73-137, Section 4(f)(1), codified as General Statutes Section 53a-46a(f)(1) (Rev. to 1975) which prohibits a sentence of death for anyone under the age of eighteen at the time of the offense. Nevertheless, as this court recognized in Golino, 201 Conn. at 443, 446, by excluding offenses punishable by death from the reach of our limitations statute, the legislature intended to exclude a certain category of crimes based on their heinous nature, not crimes that were actually subject to the death penalty
Footnote 7 It is in this respect that the instant case is distinguishable from United States v. Provenzano, 423 F.Supp. 662 (S.D. N.Y. 1976) aff'd 556 F.2d 562 (2d Cir. 1977). There, the federal district court ruled that the legislature's repeal of the death penalty for the crime of kidnapping made that crime one no longer punishable by death and, hence, subject to a time limit on prosecutions. The amendment at issue in Provenzano, however, made kidnapping punishable "by imprisonment for any term of years or life." Id. at 666. Thus, in Provenzano, unlike here, the legislature clearly removed the offense at issue from the class of capital offenses. Id.
Footnote 8 Another section of the General Statutes, which was also repealed and amended by PA73-137, provides further support for according murder and capital felony the same treatment under our statute of limitations. General Statutes Section 53a-45 (Rev. to 1975), which is the codification of PA 73-137 Section 1, carries the heading: "Sec. 53a-45. Murder punishable by death or life imprisonment. Waiver of jury trial. Finding of lesser degree." The text of Section 53a-45 provides, as does Section 53a-54a(c), that "Murder is punishable as a class A felony unless it is a capital felony and the death sentence is imposed as provided by Section 53a-46a." Although this section heading was not part of the Public Act, this court has recognized that where the meaning of an act is ambiguous, a section heading may serve as an aid in its interpretation. Algonquin Gas Transmission Co. v. Zoning Board of Appeals, 162 Conn. 50, 55, 291 A.2d 204 (1971); Singer, Sutherland Statutory Construction, Section 47:14 (6th Ed. 2000). The wording of this heading, then, lends further support to the legislature's historic treatment of murder as an offense "punishable by death."
Footnote 9 The following statutes were expressly repealed and/or amended: PA 73-137 Section 1 (repealing General Statutes Section 53a-45, and substituting new language); PA 73-137 Section 5 (repealing General Statutes Section 53a-92 and substituting new language); PA 73-137 Section 6 (repealing General Statutes Section 53a-25 and substituting new language); PA 73-137 Section 7 (repealing subsection (b) of Section 53a-28 and substituting language); PA 73-137 Section 8 (repealing subsection (b) of Section 53a-35 and substituting language); PA 73-137 (repealing Section 53a-55 and substituting language); PA 73-137 Section 15 (repealing Section 53a-46, 53a-54 and 53a-93).
Footnote 10 A proper interpretation of the 1976 amendment undermines the actual holding of Paradise as well as its underlying assumption. Because the amendment is clarifying in nature, and hence an explication of the meaning of the original act, it was unnecessary for Paradise to determine whether it could be applied retroactively. Rather than retrospectively affecting the statute of limitations in effect on the day of this offense, PA 76-35 clarified that murder was exempt under that statute. See Bhinder v. Sun Company, Inc., 263 Conn. 358, 374 n.7, 819 A.2d 822 (2003); State v. Blasko, 202 Conn. at 559; State v. Magnano, 204 Conn. at 284.
Footnote 11 Although the General Assembly passed another Act in 1870, requiring that all indictments for murder specify the degree of the crime, the "object of that statute was to give the defendant information from the indictment itself, whether he is to answer to a willful, deliberate, and premeditated murder, or murder of a lower degree." State v. Hamlin, 47 Conn. 95, 117 (1879); Smith v. State, 50 Conn. 193, 197-99 (1882); Acts of 1870 Ch. 73. This enactment, therefore, did not address the allowable period of prosecution for murder. Moreover, a person indicted for first degree murder could still be convicted of second degree murder by a jury without any opportunity for a defendant to assert or the state to defend against a statute of limitations defense. See State v. Dowd, 19 Conn. at 393 (finding that the determination of the degree of the offense is relegated "without any exception or qualification" to the jury).
Footnote 12 Because the defendant indisputably knew of the sketch's existence, the cases on which defendant relies are inapposite. See DB at 38; Strickler v. Greene, 527 U.S. 263 (1999); State v. Wilcox, 254 Conn. 441, 758 A.2d 824 (2000). While an "open file" may not protect the state against later claims because the record may not show what was actually in the file at the time defendant reviewed it, here, defendant had notice the sketch existed and, if it had not been in the file when original defense counsel reviewed it, he could have, and if it had value to him, presumably would have asked for it directly.
Footnote 13 The state also prepared a report on Michael Skakel.
Footnote 14 The Tommy Skakel arrest warrant application disclosed at trial, also falls within this doctrine. Although defendant has not raised a claim concerning the unsworn arrest affidavit for Tommy Skakel, he has argued that the facts concerning the affidavit reveal a pattern of nondisclosure. DB at 38 n.59. Contrary to defendant's claim, however, the state did not fail in its discovery obligations. The trial court's discovery orders required the disclosure of arrest warrants for persons actually arrested for this or a significantly similar offense. T. 5/8 at 88-92; T. 8/28 at 64. The testimony at trial reveals that the affidavit was never signed or presented to a judge for a determination of probable cause. See T. 5/8 at 30-36, 66-68, 70-78, 84-92, T. 5/10 at 87-88, T. 5/13 at 90. Thus, it did not fall within the court's discovery orders. As with the summary profiles, however, the raw material from which the affidavit was prepared was disclosed to the defendant.
Footnote 15 The information in the Thomas Skakel profile report was compiled from information contained in the following documents: 5, 6, 7, 8, 11, 12, 13, 18, 19, 41, 59, 73, 101, 102, 248, 249, 251, 253, 269, 270, 271, 272, 273, 274, 275, 276, 283, 285, 286, 287, 288, 290, 292, 293, 294, 302, 303, 315, 319, 327, 328, 331, 332, 411, 412, 587LL - letter dated 2/3/1976 - 1975 interview w/ Michael Skakel - 1975 statement from Thomas Skakel - Martha Moxley's diary.
Footnote 16 The information contained in the Littleton profile report was gleaned from the following: 6, 7, 8, 11, 12, 13, 18, 55, 59, 100, 248, 249, 294, 296, 326, 329, 332, 336, 337, 341, 362, 364, 365, 366, 374, 375, 376, 377, 378, 379, 380, 381, 382, 383, 384, 385, 386, 392, 393, 394, 414, 460, 464, 580A, 581D, 581I, 581M, 581N, 581Q, 581W, 581X, 581Y, 582H, 585B, 586A, 586E, 587X, 587Y, 587Z, 587AA, 587BB, 587CC; 1975 statement from Thomas Skakel; statement from V. Oates (Littleton's girlfriend); statement from Mary Littleton on 9/25/1991; memo to David Moxley; transcript of a tape recorded conversation at a Howard Johnson's between Mary and Ken Littleton. Audio tapes of Littleton's polygraph exams and of his 11/14/75 police interview.
Footnote 17 As this Court explained in State v. Angel C.,, 245 Conn. at 108 n. 17, under Connecticut's modern day unified court system, all criminal and civil matters fall within the subject matter jurisdiction of the Superior Court. "Consequently, . . . the issue of juvenile "jurisdiction" is not a question of subject matter jurisdiction, but rather more a question of venue. State v. Kelly, 206 Conn. 323, 331-32, 537 A.2d 483 (1988)." Id.
Footnote 18 Evidence revealed that in 1990 or 91 the defendant's family hired a private investigating firm known as Sutton Associates to investigate this murder. T. 5/15 at 149-50. After telling his masturbation story to his boyhood friend, Andy Pugh, the defendant asked Pugh to agree to be interviewed by Sutton Associates. T. 5/20 at 164-70.
Footnote 19 The inaccuracies in Sherman's affidavit are at least plausibly attributable to faulty recall as he filed his affidavit without the benefit of the state's closing argument disc to check the accuracy of what he was alleging. Appellate counsel, however, have no such excuse. The disc was provided to appellate counsel after the verdict and marked into evidence at the sentencing hearing. See T. 8/28 at 50-51. Appellate counsel thus had ample opportunity to correct (rather than perpetuate) the misstatements in Sherman's affidavit and to ensure that their own representations were accurate.
Footnote 20 The state used the same method of displaying exhibits during closing that it had throughout the trial. That is, the exhibits were displayed onto a screen in the courtroom that was visible to all participants. The state had presented the defendant and the court with a draft of its EPP prior to trial and explained how it intended to use it in the courtroom. See T. 4/26 at 80. The defendant did not object at any juncture -- not in the pretrial setting when given the draft and told of the state's intentions, not during the trial when the method was used extensively, and not during the state's summation when the same method of publication was used. In fact, the defense, at the state's invitation, actually used the EPP itself during trial. See T. 5/7 at 86-87.
Footnote 21 The two cases cited by the defendant do not compel a different conclusion. In State v. Ammons, 251 Ill. App. 3d 345, 622 N.E. 2d 58 (Ill. App. 1993) cert. denied, 154 Ill. 2d 562, 631 N.E.2d 711 (1994) the court found error in allowing the state to replay defendant's 18 minute police statement during summation. The court held that allowing such evidence to be "reintroduced" dramatically overemphasized its credibility. The state here did not replay the entire Hoffman tape, but merely highlighted the most damning portions of it. State v. Muhammad, 359 N.J. Super 361, 820 A.2d 70 cert. denied, 178 N.J. 36, 834 A.2d 408 (2003) concerned the state's use of video of the trial testimony itself during closing argument. Muhammed approved the use of the video as an aid to argument, while expressing concern that a party not be permitted to essentially present its case a second time via videotape replay. Id. at 380, 383; see also State v. Sucharew, 205 Ariz. 16, 20-21, 66 P.3d 59, 63-64 (Ariz. Ct. App. Div. 1, Dept B 2003) (approving the state's use of a PowerPoint presentation in its opening statement); Commonwealth v. Kater, 432 Mass. 404, 423, 734 N.E. 2d 1164, 1181 (2000) (rejecting misconduct claim based inter alia on the state's use of a visual presenter during argument).
Footnote 22 Coleman's testimony was corroborated by two witnesses. His widow, Elizabeth Coleman, testified that her husband had told her about the defendant's confession in 1986. T. 5/20 at 89, 91, 93, 94. Jennifer Pease stated that Coleman had related the same to her when they were both still residents of Elan. T. 5/30 at 108. In addition, the court admitted statements made by Coleman at the juvenile hearing and during his Grand Jury testimony as prior consistent statements. See T. 5/20 at 72-79, 82-84.
Footnote 23 In addition, defendant's portrayal of Coleman's overall reliability is seriously skewed. Despite his admitted heroin addiction, Coleman was remarkably consistent in his recollection of defendant's confession each of the three times he testified. See T. 4/18 at 93-95 (HPC); T. 6/20/00 at 169-173 (Juv.); T. 9/23/98 at 15-17 (Grand Jury). In addition, despite persistent probing by the defense, there was no evidence Coleman had anything to gain in coming forward. See T. 5/20 at 33-36, 61. Further, contrary to defendant's contention, Coleman's testimony that the defendant told him he masturbated on the victim's body was corroborated by numerous other claims defendant made concerning masturbation. The fact that Coleman recalled him saying he did this two days later, even after he learned the victim's body was found the morning after she was killed, underscores Coleman's reliability -- he obviously was not trying to sculpt his testimony to track other evidence. See T. 5/20 at 44-45. As for defendant's further contention, see DB at 67 n. 91, Coleman clarified that it was his impression the defendant used a driver because defendant said he "drove her skull in with a golf club". Coleman made it clear he was not claiming defendant actually stated the club used was a driver. T. 5/20 at 42-45.
Footnote 24 Defendant mischaracterizes the holdings of two cases he claims support his position: See Def's Br. at 66 n. 90. In State v. Anthony, 448 A.2d 744 (R.I. 1982), the Rhode Island Supreme Court excluded prior testimony because the defendant did not have an adequate opportunity to cross examine it. See Id. at 755. The defendant has not claimed he had an inadequate opportunity to cross examine Coleman, nor would the record support such a claim. In State v. Armes, 607 S.W.2d 234 (Tenn. 1980), the prior testimony was excluded because there was no transcript of the proceedings. Obviously, that is not the situation here.
Footnote 25 A General Meeting was described as a disciplinary tool used by Ricci in response to a serious violation of the rules of Elan, such as an escape attempt. All the residents of Elan's various "houses," numbering close to a hundred persons, would attend. The subject was confronted, often brutally, with his or her transgressions. See T. 5/16 at 65-66, 70, 72-73.
Footnote 26 The lack of state action defeats any such claim under the federal constitution. Colorado v. Connelly, 479 U.S. 157 (1986). The inadequate record and insufficient briefing prevent this court from deciding whether state action is required under the Connecticut Constitution. See State v. Medina, 228 Conn. at 295-302; see also State v. Byrd, 239 Conn. 405, 685 A.2d 669 (1996); State v. Smith. 200 Conn. 465, 512 A.2d 189 (1986); State v. Pin, 56 Conn. App. 549, 745 A.2d 204, cert. denied 252 Conn. 951, 748 A.2d 299 (2000). 73 One further fact is significant regarding the admission of this statement: both Rushton Skakel Sr. and Cissy Ix were available at trial for cross examination.
Footnote 73 If the defendant felt that some portion of each exhibit was irrelevant to the purpose for which it was offered, it was incumbent on him to "point out the inadmissible parts with specificity and to give reasons why the specified parts were not admissible. . . . It was not the court's duty to separate the inadmissible parts of the [document] from the admissible parts." State v. Palozie, 165 Conn. 288, 296, 334 A.2d 468 (1973); see also Mucci v. Lemonte, 157 Conn. 566, 570-71, 254 A.2d 879 (1969). 2 0 10 13 7