STATE OF CONNECTICUT DOCKET NO. CR07-241860 STATE OF CONNECTICUT, v. JOSHUA KOMISARJEVSKY.

: : : : SUPERIOR COURT JUDICIAL DISTRICT FOR NEW HAVEN AT NEW HAVEN SEPTEMBER 15, 2011

DEFENDANT JOSHUA KOMISARJEVSKYS MOTION IN LIMINE RE: TESTIMOMY OF WILLIAM A. PETIT, JR. AND POINTS AND AUTHORITIES IN SUPPORT THEREOF COMES NOW Defendant Joshua Komisarjevsky, by and through undersigned counsel and pursuant to the Connecticut Code of Evidence and related precedent, the Fifth, Sixth and the Fourteenth Amendments to the Constitution of the United States and Article I, 8 of the Connecticut Constitution, and respectfully moves that the Court to limit the testimony of William A. Petit, Jr., an anticipated state witness, so as to conform with the requirements of the law. In support of this request, Mr. Komisarjevsky states as follows: 1. Evidence in the above-captioned matter is scheduled to begin on September 19, 2011. As confirmed through its July 8 response to Mr. Komisarjevskys motion to sequester witnesses, as amended on July 15, the state intends to call William Petit during its case-in-chief. Resp. 3 (It is undisputed that the State intends, as in the Hayes case, to call Dr. Petit as a witness.). In support of its argument that Petit not be sequestered prior to his testimony, the state offered his prior statements to police as well as his testimony in State v. Hayes, Docket No. CR07-241860. See Resp. Exs. 1-6. Exhibit 5, William Petits testimony in Hayes, is incorporated herein by reference.1
1

In referencing this exhibit, Mr. Komisarjevsky does not waive any prior opposition to the states response, including its lack of standing to take up Petits cause. Rather, the transcript is cited by reference to prevent increasing unnecessarily the volume of the trial courts file.

2. Whereas the states response can be read to suggest that William Petits direct testimony will be limited to what little he witnessed (i.e., the assault on himself on the porch, being taken to the basement and what occurred in the basement), his testimony in Hayes, on September 14, 2010, was much more far-ranging and concerned matters not properly before the jury. Resp. 7.2 In particular, Mr. Komisarjevsky objects to the following lines of testimony from William Petit, whether elicited from the state or otherwise: (a) Petit testified as to being the president of the Hartford County Medical Association (9/14/10 Tr. 8); (b) In response to the states questioning, Petit testified that the family moved into its home in July 1989, meaning it had lived there 18 years at the time of the charged offenses (id. 9); (c) In response to the states questioning, Petit testified not only as to his job as the medical director of the Juvenile Diabetes Center affiliated with the Hospital of Central Connecticut,3 but also to his multiple responsibilities, to his training and experience, to his medical specialty and to the private practice he operated from July 1989 through July 1997 before selling it, including in the context of state witness Mona Huggards employment (id. 10-11); (d) In response to the states questioning, Petit testified as to the nature of his wifes profession, including her place and length of employment, and to her medical history (id. 11-12, 14);

To the extent that the state might point out that Hayes did not object to any of Petits testimony, such a tack is completely immaterial to the issue before the Court or to the propriety of Mr. Komisarjevskys arguments. 3 Mr. Komisarjevsky does not object to the mention of this job title despite the obvious lack of relevance. 2

(e) In response to the states questioning, Petit testified as to the length of his marriage as of 2007 (id. 12); (f) In response to the states questioning, Petit testified concerning where his youngest daughter was born, what year she was in school and what school she attended, in what extracurricular activities she participated and her affinity for cooking (id. 12-13, 18); (g) In response to the states questioning, Petit testified concerning his oldest daughters educational history, her future school plans, and in what extracurricular activities she participated, including charitable activities (id. 13-15, 64-65); (h) In response to the states questioning, Petit testified concerning the type of neighborhood in which the family resided, including his perception of its safeness (id. 15, 49); (i) In response to the states questioning, Petit testified concerning what the family did during the summer of 2007, including vacations and graduation parties (id. 15-16, 44); (j) In response to the states questioning, Petit testified concerning a trip his oldest daughter reportedly took with friends the weekend of the charged offenses (id. 16); (k) In response to the states questioning, Petit testified concerning the family attending church the morning of July 22, 2007 (id. 17); (l) In response to the states questioning, Petit testified concerning playing golf with his father on July 22, 2007 (id. 17); (m) In response to the states questioning, Petit testified concerning what his wife and two daughters did in his absence on July 22, 2007 (id. 17);

(n) In response to the states questioning, Petit testified concerning what preparations his wife and two daughters made for dinner, including where he understood they went grocery shopping (id. 18); (o) Petit testified concerning the nature of a medical condition that necessitated his taking of Coumadin (id. 30, 36)4; (p) In response to the states questioning, Petit testified concerning the origin of a quilt gifted to his older daughter (id. 35)5; (q) In response to the states questioning, Petit testified concerning having given previous statements to the police (id. 38-39); (r) In response to the states questioning, Petit testified concerning being taken to the hospital after police found him at his neighbors house (id. 39); (s) In response to the states questioning, Petit testified concerning to where he was released upon discharge from the hospital, including that he lived at the residence up to the point of his testimony (id. 39); (t) In response to the states questioning, Petit testified concerning how something was said, including offering his 28 years experience listening to people in the office speak to support of his characterization of what was reportedly said (id. 46); (u) In response to the states questioning, Petit testified concerning his hospitalization, including the nature and extent of his of his injuries and the course of care medical professionals administered (id. 53-55); (v) Petit testified concerning his wife and daughters funeral (id. 53);

4 5

Mr. Komisarjevsky does not object to the mention of his taking Coumadin. Mr. Komisarjevsky does not object to the mention of the quilt being his daughters. 4

(w) Petit testified that items taken from the home were gifts, clarifying the point in response to the states questioning (id. 60, 65)6; (x) Petit testified concerning the reason why he and his wife obtained an ATM card for his oldest daughter, which was found in her wallet, which, in turn, was recovered from the vehicle Steven Hayess drove (id. 63); and (y) Petit testified concerning the origins of various gift cards found in his oldest daughters wallet as well as the purpose of the ATM, credit and library cards located therein (id. 64). The state emphasized much of Petits testimony during its merits phase closing argument. See, e.g., 10/1/10 Tr. at 11-14, 42. 3. All of the testimony cited in Paragraph 2 is not relevant to the current judicial proceedings since none of it tends to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without it, and it is, therefore, inadmissible. CT Code of Evidence 4-1, 4-2. The testimony lacks probative value because it does not support facts relevant to the issues to be decided. The testimony is not material because it has no bearing on what transpired in the Petit home in the early morning hours of July 23, 2007, the events that serve as the basis for all the charged counts. See State v. Gombert, 80 Conn.App. 477, 488-89 (2003) (materiality turns upon what is at issue in the case, which generally will be determined by the pleadings and the applicable substantive law; citation omitted, emphasis in original), cert. denied, 267 Conn. 915 (2004). Furthermore, assuming relevancy arguendo, whatever limited probative value the testimony may have is outweighed by the danger of unfair prejudice, meaning that it is inadmissible nonetheless. Id. 489 (citing CT Code of Evidence 4-3). Indeed, the states efforts to elicit such testimony reflect, in large
6

Mr. Komisarjevsky does not object to the mention of the item being his daughters. 5

measure, a powerful appeal to the emotions, passions and prejudices of the jurors, thereby diverting them impermissibly from their duty to decide the case on the evidence. See State v. Mills, 57 Conn.App. 202, 209, cert. denied, 253 Conn. 914, 915 (2000). 4. The testimony cited in Paragraph 2, sub-paragraphs (i), (j), (m), (n) and (u), supra, contains and/or dervives from hearsay without a recognized exception. See CT Code of Evidence 8-1, 8-2. 5. The testimony cited in Paragraph 2, sub-paragraph (q) is improper in that it reflects an effort to bolster a witnesss testimony, that is, to suggest the giving of prior inconsistent statements.7 See CT Code of Evidence 6-11(a). 6. The testimony cited in Paragraph 2, sub-paragraph (u) is improper because Petit cannot be heard to testify as both a lay fact witness and as an expert (medical) witness, particularly where he was the patient receiving treatment (not the doctor administering). As the United States Court of Appeals for the Second Circuit recognizes8, allowing a fact witness to testify as an expert witness affords said witness unmerited credibility when testifying about factual matters from first-hand knowledge. United States v. Dukagjini, 326 F.3d 45, 53 (2d Cir. 2003); accord United States v. Mejia, 545 F.3d 179, 196 (2d Cir. 2008). Moreover: expert testimony by a fact witness or case agent can inhibit cross-examination, thereby impairing the trials truth-seeking function. In general, impeaching an expert is difficult. The expert usually has impressive credentials, and he is providing an opinion that, unlike a factual matter, is not easily contradicted. Challenges to the expert are often risky because they can backfire and end up bolstering the credibility of the witness. Normally, this is an acceptable risk for the defense, because only the witnesss Mr. Komisarjevsky reserves the right to voir dire Petit prior to his direct testimony given his stated review of and reliance on past testimony in State v. Hayes. Cross-examination does not cure the defect of allowing a witness to matters which he cannot recall independently. 8 The Court has previously referenced unspecified Second Circuit authority as controlling on the issue of whether exhibits submitted during Mr. Komisarjevskys suppression hearing should have been released to the media. See 8/22/11 Tr. at 120. 6
7

expertise is at stake. However, when the expert is also a fact witness, the risks are greater. A failed effort to impeach the witness as expert may effectively enhance his credibility as a fact witness. Because of this problem, a defendant may have to make the strategic choice of declining to cross-examine the witness at all. Dukagjini, 326 F.3d at 53-54; see CT Code of Evidence 4-3. No instruction can adequately protect from the prejudice and confusion that would result from Petits dual lines of testimony and the implicit imprimatur of credibility and reliability that it risks. See United States v. Cruz, 363 F.3d 187, 193 (2d Cir. 2004). This potential harm to Mr. Komisarjevsky exists no matter the nature of Petits expert testimony and, in fact, exacerbated by the fact that Petit is already known to the majority of jurors. 7. The testimony cited in Paragraph 2, sub-paragraphs (a) through (n), (p), (r), (s) and (u) through (y), supra, is tantamount to a victim impact statement being given to the jury, something that Connecticut law prohibits. Indeed, during the most recent legislative session, State Senator Edward Meyer (12th District) introduced Proposed Senate Bill No. 136, An Act Concerning Victim Impact Statements in Capital Murder Cases. It is self-evident that if the law already so allowed Senator Meyer, Assistant Majority Leader and father of William Petits attorney, Quinnipiac Law School Professor Jeffrey Meyer, would not waste the legislatures time with draft legislation proposing to allow surviving family members to appear before juries to give statements that include information presented in the form of narrative, photographs or a video recording that describes the victims general life history, family and social ties and accomplishments and the physical, emotional, psychological and economic impact on the surviving family members and the victims community of the murder of the victim by the defendant. Significantly in this regard, Senator Meyer offered this bill as an amendment to

General Statutes 53a-46d, which contains no allowance for victim impact statements to juries.9 Furthermore, to the extent there is any ambiguity (there is none), such statements clearly have no place in the merits phase of a capital prosecution. 8. Finally and collaterally related, Mr. Komisarjevsky wishes to confirm, as the Court recognized on August 22, that on cross-examination of William Petit (or any witness) he is free to explore Petits biases, interests, inconsistencies, etc. [T]he Eighth Circuit has said that [e]vidence tending to show a substantial reason for bias or interest in an important witness is never collateral or irrelevant. It may be ... the very key to an intelligent appraisal of the testimony of the [witness]. Barnard v. United States, 342 F.2d 309, 317 (9th Cir. 1965). United States v. Peltier, 585 F.2d 314, 332 (8th Cir. 1978), cert. denied, 440 U.S. 945 [] (1979); see Davis v. Alaska, 415 U.S. 308, 316-17 [] (1974); see also 3A Wigmore, Evidence (Chadbourn Rev. 1970) 940, pp. 775-76. The Second Circuit has put it this way: Special treatment is accorded evidence which is probative of a special motive to lie for if believed it colors every bit of testimony given by the witness whose motives are bared. United States v. Blackwood, 456 F.2d 526, 530 (2d Cir. 1972). United States v. Harvey, 547 F.2d 720, 722 (2d Cir. 1976). State v. Milum, 197 Conn. 602, 610 (1985). Impeachment of a witness for bias is a matter of right [i]t is generally held that cross-examination for the purpose of eliciting facts which tend to show motive, interest, bias or prejudice is a substantial legal right which may not be abrogated or abridged at the discretion of the court to the prejudice of the cross-examining party. State v. Shipman, 195 Conn. 160, 163 (1985); see CT Code of Evidence 6-5. Further, Mr. Komisarjevsky must be allowed to inquire concerning specific acts of misconduct that bear a special significance upon the issue of veracity. State v. Martin, 201 Conn. 74, 85-86 (1986) (citations and internal quotation marks omitted); see CT Code of Evidence 6-6.
9

Mr. Komisarjevsky leaves to another day any effort by the state to offer victim impact evidence during whatever penalty phase may be had in the case, noting that such an attempt to violate the law would, at a minimum, open the door to testimony concerning, inter alia, Jennifer Hawke Petits known opposition to the death penalty. 8

WHEREFORE, for all of the reasons set forth above, together with such other reasons as may be advanced in any memorandum of law submitted and/or hearing conducted in connection herewith, Joshua Komisarjevsky respectfully prays the Court grant the relief requested. Respectfully submitted, JOSHUA KOMISARJEVSKY, Defendant

BY: JEREMIAH DONOVAN, JN 305346 123 Elm Street--Unit 400 P.O. Box 554 Old Saybrook, CT 06475-4108 (860) 388-3750; Fax: (860) 388-3181 donolaw@sbcglobal.net WALTER C. BANSLEY, III, JN 407581 Bansley Law Offices, LLC 20 Academy Street New Haven, CT 06510 (203) 776-1900; Fax: (203) 773-1904 Bansley3@BansleyLaw.com

TODD A. BUSSERT, JN 420221 103 Whitney Avenue, Suite 4 New Haven, CT 06510-1229 (203) 495-9790; Fax: (203) 495-9795 tbussert@bussertlaw.com Attorneys for Joshua Komisarjevsky

ORDER The foregoing Motion having been considered, it is hereby Ordered: GRANTED / DENIED

THE COURT

By:

, J.

CERTIFICATE OF SERVICE I hereby certify that, in accordance with Connecticut Practice Book 10-12, 10-13 and 10-14, a copy of the foregoing was served via hand this 15th day of September 2011 on the following: Michael Dearington, States Attorney Gary W. Nicholson, Senior Assistant States Attorney Office of the States Attorney 235 Church Street New Haven, CT 06510

_______________________________________ Todd Bussert Commissioner of the Superior Court