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State v. O'Brien-Veader

Supreme Court of Connecticut

September 8, 2015

STATE OF CONNECTICUT
v.
MATTHEW O'BRIEN-VEADER

Argued January 14, 2015

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Substitute information charging the defendant with one count each of the crimes of murder, kidnapping in the second degree, and felony murder, brought to the Superior Court in the judicial district of Waterbury, where the court, Cremins, J., granted in part the defendant's motion to suppress; thereafter, the case was tried to the jury before Cremins, J.; verdict and judgment of guilty, from which the defendant appealed to this court.

SYLLABUS

Convicted, after a jury trial, of murder, felony murder and kidnapping in the second degree in connection with the stabbing death of the victim, the defendant appealed to this court. The defendant had lived with the victim in an abandoned factory. After being confronted by the defendant about a perceived sexual advance, the victim told the defendant that he had ejaculated on the defendant one night. Two days later, the victim gave the defendant $10 to purchase beer. When the defendant returned to the factory without beer, the two argued. The defendant then pushed the victim down a flight stairs, beat him and forced him back up the stairs at knifepoint. The defendant then pushed the victim through a hole in the floor causing him to fall to the floor below, and then stabbed him more than thirty times. At trial, the defendant asserted a defense of extreme emotional disturbance, claiming that severe homophobia had caused him to kill the victim. The defendant presented this defense though the testimony of F, a psychiatrist. The trial court excluded, on hearsay grounds, testimony from V, the defendant's brother, indicating that the defendant was sexually abused as a child. The trial court also excluded, on relevancy grounds, testimony from I, an individual who would have testified to a same sex encounter with the victim in 1991. The jury subsequently returned a verdict finding the defendant guilty, and the trial court rendered a judgment of conviction in accordance with that verdict. From that judgment, the defendant appealed, claiming, inter alia, that he was deprived of a fair trial by various acts of prosecutorial impropriety and that the trial court improperly excluded the testimony of V and I. Held :

1. The defendant could not prevail on his claim that various instances of prosecutorial impropriety deprived him of his constitutional right to a fair trial: although the prosecutor's description of the defendant as a " mean and nasty person who was looking to kill somebody" was an inappropriate personal attack and his reference to certain medical records that had been excluded from evidence breached an order of the trial court, those two instances of impropriety did not require reversal of the defendant's convictions where they were confined to cross-examination of F, were not particularly severe, were not central to the state's case, and where the state's case against the defendant was strong and any harm was mitigated by the trial court's prompt curative instructions; furthermore, the defendant's challenge to, inter alia, the prosecutor's suggestion that F's testimony was not " based on any hard science," the prosecutor's representation that the defendant had murdered the victim for $10, the prosecutor's comparison of the $10 given to the defendant to F's hourly rate, and the prosecutor's suggestion that the defendant's theory of emotional disturbance did not " make sense" during closing arguments, although abrasively worded, did not rise to the level of constitutional impropriety.

2. The trial court did not abuse its discretion by denying the defendant's motions for a mistrial based on the improper presentation of certain uncharged misconduct evidence, this court having concluded that the prosecutor's breach of an evidentiary ruling by questioning F using assertions of fact rather than hypotheticals to describe certain instances of prior misconduct did not implicate the defendant's right to due process and that a spontaneous reference to a previous booking photograph of the defendant during the testimony of a police detective who helped apprehend the defendant was not excessively prejudicial because neither the prosecutor nor the detective dwelled on the point and because there was mention of the previous crime during the trial; furthermore, the trial court could have reasonably concluded that any prejudice to the defendant would be addressed adequately by a curative instruction.

3. The defendant could not prevail on his claim that the evidence was insufficient to support his conviction of kidnapping in the second degree, which served as the predicate for his felony murder conviction, this court having concluded that the jury could have found beyond a reasonable doubt that the defendant's movement and confinement of the victim was not merely incidental to the crime of murder; the nature and length of the altercation between the defendant and the victim demonstrated that the defendant prevented the victim's escape from the attack and forced him to move among the various floors of the factory at knifepoint.

4. The defendant could not prevail on his claim that the trial court improperly excluded testimony from V and I who, the defendant claimed, would have corroborated aspects of his extreme emotional disturbance defense: although the trial court improperly granted what was, in essence, an oral motion in limine by the prosecutor in violation of the rules of practice (§ 42-15), the defendant failed to preserve that claim or to supply legal analysis under the plain error doctrine; the defendant failed to analyze the trial court's ruling that V's proffered testimony regarding the alleged child sexual abuse in the defendant's family was inadmissible hearsay by applying law to facts and therefore that claim was inadequately briefed; moreover, the trial court did not abuse its discretion in determining that I's testimony regarding an alleged same sex sexual encounter by the victim eighteen years prior to his death was irrelevant, the state having not challenged the defendant's assertion that the victim was homosexual and the victim's sexual orientation not being probative of whether he was likely to have engaged in nonconsensual sexual acts.

James B. Streeto, assistant public defender, for the appellant (defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Terrence Mariani and Amy L. Sedensky, senior assistant state's attorneys, for the appellee (state).

Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa, Robinson and Vertefeuille, Js.

OPINION

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[318 Conn. 517] ROBINSON, J.

The principal issue in this appeal requires us to determine when a prosecutor's apparent breach of a trial court ruling becomes prosecutorial impropriety implicating a defendant's due process right to a fair trial, rather than an evidentiary matter without constitutional import. The defendant, Matthew O'Brien-Veader, appeals[1] from the judgment of the trial court, rendered after a jury trial, convicting him of murder in violation of General Statutes § 53a-54a (a),[2] kidnapping in the second degree in violation of General Statutes § 53a-94 (a), and felony murder in violation of General Statutes § 53a-54c. On appeal, the defendant claims that he is entitled to a new trial because: (1) numerous instances of prosecutorial impropriety during the cross-examination of the defendant's expert witness and closing arguments deprived him of his right to a fair trial; (2) the trial court improperly denied his motions for a mistrial; (3) the evidence is insufficient to support his kidnapping conviction under State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008); and (4) the trial court [318 Conn. 518] improperly precluded the testimony of two witnesses who would have corroborated his defense of extreme emotional disturbance. We disagree with all of these claims and, accordingly, affirm the judgment of the trial court.

The record reveals the following facts, which the jury reasonably could have found, and procedural history. In the spring of 2009, the defendant was twenty-one years old and working for a residential construction company. He shared an apartment in Waterbury with several friends and coworkers in a multifamily house on East Liberty Street. In June, 2009, the defendant quit his job and moved out of the apartment, despite being invited to remain there. The defendant then moved into an abandoned factory building in Waterbury where the victim, Joed Olivera, lived. The two men, who had been friendly since the defendant was fourteen years old, lived on the building's third floor, which was full of garbage and lacked power and water. They shared a large mattress in that makeshift living space.

The relationship between the defendant and the victim rapidly deteriorated. The defendant stated that the victim " had been

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making some comments" that " made [him] feel uncomfortable." After the defendant confronted the victim about a perceived sexual advance, the victim told the defendant that he had ejaculated on him one night. Because of his increasing anger over what the victim had told him, on June 8, 2009, the defendant checked into a motel with his girlfriend, Samantha O'Connor. At the motel, the defendant told O'Connor about his discomfort with the victim, and his intention to kill him.

The following day, June 9, 2009, the defendant returned to the factory. In a statement to police, the defendant recounted the events of that day as follows: " I just hung out with [the victim] all day at the factory. [318 Conn. 519] [The victim] said it was safe and he wasn't going to do anything to me. I told [the victim] that if he had some kind of crush on me then he had to tell me so I could leave. I told [the victim] again that I had a girlfriend and I am not a fag. I asked him if I could trust him and he said 'yes.' Eventually I went to sleep . . . in the corner of the bed. But before I went to sleep I had a knife on me. . . . I went to sleep with the knife because if [the victim] tried any of the faggot shit with me I was going to kill him. If I felt a hand in the wrong place I probably would have cut his hand off. . . . I fell asleep and nothing happened that night."

The defendant's statement continued: " For some reason when I woke up I felt like I was violated, I kept thinking about [the victim] saying he jerked off on me. Every minute that went by, I got madder and madder. [The victim] gave me [$10] and asked me to go [buy] beer . . . . I took the money and . . . bought a [$5] bag of . . . marijuana. I went back to the factory and stayed on the first floor and smoked some of the [marijuana]. I was pacing back and forth thinking about what I was going to do to [the victim]. I decided that I needed to kill [the victim] for what he did to me. I wanted answers from him and I was going to get them before I killed him."

The defendant then went upstairs to the third floor to see the victim, who asked why he had not purchased any beer. Following an angry exchange, in which the defendant asked the victim why he had ejaculated on him and the victim accused the defendant of being " selfish and . . . trying to screw him over" because of the beer money, the confrontation turned physical. The defendant believed that the victim saw his knife, which the defendant had hidden in the sleeve of his sweatshirt, and the victim started moving toward a second knife that was sticking out of a nearby wall. At that point, the defendant took the second knife out of the wall, [318 Conn. 520] grabbed the victim by the shoulder, and tried to throw him down a flight of stairs that led to the second floor. When the victim caught himself in the middle of the staircase, the defendant began to beat him repeatedly with a pair of crutches that the victim used because he had a foot injury.

The defendant then tried to push the victim through a hole in the floor at the bottom of the stairs so that the victim would fall down to the first floor. When the victim's leg and part of his body were in the hole, he pleaded and apologized to the defendant, who continued to yell at him, " [w]hy did you do this to me . . . I trusted you, you were like a father to me." After the victim climbed out of the hole, the defendant hit him with a metal rod and his fists. The defendant subsequently forced the victim at knifepoint to go back up the stairs, so he could push him down a larger hole between the third and second floors. The defendant stated that he wanted the victim " to suffer and be tortured." The defendant then pushed the victim through that hole, causing him to land on wood and debris on the second

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floor below. As the victim continued to plead with the defendant, the defendant hit him with a fluorescent light tube, and then stabbed him in the neck, chest, shoulder, and head with the dagger more than thirty times until the victim appeared dead.[3] The defendant then covered the victim's body with debris, and gathered his belongings from the third floor.

After cleaning himself up and burying his blood covered knife and sweatshirt nearby, the defendant purchased a forty ounce container of Natural Light beer, returned to the factory, and poured some of it on the victim's body " because . . . it was his favorite." While [318 Conn. 521] sitting on the third floor, the defendant saw a note inviting him and the victim to come to the East Liberty Street house to meet some friends, among whom were Jason Benoit and Gary Peden. The defendant visited his friends at their house, and when Benoit asked the defendant where the victim was, the defendant--with no change in his ordinary demeanor--confessed what he had done. Benoit did not believe the defendant, so the defendant brought him to the factory and showed him the victim's body. Benoit and the defendant then went to pick up O'Connor at her grandmother's house in Naugatuck. The defendant also sought to retrieve his tools so that Benoit and Corey Bosse, another friend, could pawn them for him.

After he confessed to her, O'Connor did not believe what the defendant had done and wanted to see the body, so the defendant again returned to the factory with her, Benoit, and another friend, Dominic Wells. O'Connor and the defendant then went to Saint Mary's Hospital in Waterbury where the defendant received treatment for cuts to his hand sustained during his attack on the victim.

The defendant and O'Connor spent that night at his friends' house on East Liberty Street. The following day, the defendant decided to leave Connecticut, and he and O'Connor began to walk to her grandmother's home in Naugatuck. In the meantime, Bosse reported the defendant's actions to the Waterbury police, who, with the subsequent assistance of Benoit, located the victim's body on June 11, 2009. Waterbury police officers subsequently ...


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