State v. Cannon

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STATE OF CONNECTICUT v. PATRICK
JAMES CANNON
(AC 38000)
Beach, Keller and Lavery, Js.
Argued January 6—officially released May 10, 2016

(Appeal from Superior Court, judicial district of
Waterbury, Cremins, Crawford and Agati, Js.)
Deborah G. Stevenson, assigned counsel, for the
appellant (defendant).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Maureen Platt, state’s attorney, and
Cynthia S. Serafini, senior assistant state’s attorney,
for the appellee (state).
Opinion

LAVERY, J. The defendant appeals from the judgment
of conviction, rendered after a trial before a three judge
court (panel), of murder in violation of General Statutes
§ 53a-54a (a) and tampering with evidence in violation
of General Statutes § 53a-155 (a). On appeal, the defen-
dant claims that the panel improperly concluded that
he had failed to prove his affirmative defense of extreme
emotional disturbance by a fair preponderance of the
evidence. Because the factual findings and verdict of
the panel are supported by the evidence, we affirm the
judgment of conviction.
On the basis of the evidence presented at trial, the
panel reasonably could have found the following facts.
The defendant met the victim, Cynthia Cannon, in 2003.
At that time, the defendant was living in an apartment.
A few months after they met, the victim and her two
year old daughter from a prior marriage moved into the
defendant’s apartment. In 2004, the defendant and the
victim married. Following their marriage, the family
moved out of the apartment and into a home that the
defendant purchased, secured by a mortgage.
In 2005, the couple began and ended marriage coun-
seling. Later that year, the defendant assaulted the vic-
tim while she was pregnant with their son. In October,
2005, shortly after the assault, the victim gave birth to
the couple’s son. Following the birth of their son, the
couple continued to argue.
In the spring of 2006, the victim had an affair. The
defendant learned about the affair by reading the vic-
tim’s emails. Three years later, the victim had a second
affair, this time with the father of her daughter. Again,
the defendant discovered the affair by reading the vic-
tim’s emails.
In June, 2009, the defendant lost his job. As a result,
the defendant wanted to sell the couple’s house and
move into a more affordable apartment. The victim
resisted this and the couple stayed in the home. How-
ever, the next month the defendant stopped making
mortgage payments and the couple’s disagreement on
whether to sell the home became the cause of even
more arguments.
Instead of paying the mortgage, the defendant used
the money from his savings account, a loan, and unem-
ployment income to start three businesses. Initially, the
defendant operated all of the businesses from the home.
Almost immediately, the businesses began to earn the
defendant income. As a result of his improved financial
situation, the defendant moved his business out of his
home, renting commercial property in December, 2009.
Nevertheless, the defendant did not resume making
mortgage payments for his and the victim’s home and
did nothing to prevent foreclosure proceedings, which
Toward the end of 2009, the victim told the defendant
that she wanted a divorce. The defendant did not want
a divorce. He believed that they could work out their
problems. The victim did not want to work things out
and, in early 2010, began sleeping on the couch at night.
The victim also took a second job, found a new place
to live, and began to pack her belongings into boxes.
After this, the arguments, which had become frequent
between the couple, continued. During one of these
arguments, in March 2010, the victim told the defendant
that she was going to take their son and that the defen-
dant would never see his son again. In a later discussion,
however, the couple agreed to allow the court to deter-
mine custody of their son, following their divorce. Dur-
ing an ensuing argument the next month—one month
before the defendant murdered the victim and con-
cealed her body-—the defendant threatened to kill the
victim and put her body in the woods. Scared, the victim
told a friend that if she went missing, the defendant
did it.
Late in the evening of May 6, 2010, the victim was
sitting on the couch texting a friend. The last text mes-
sage that was sent from the victim’s phone was sent at
11:59 p.m.
Seconds later, at approximately 12:00 a.m. on May 7,
2010, the defendant hit the victim in the head at least
six times with a hammer, broke the victim’s jaw with
an object consistent with a fist, and, after the victim
had fallen from the couch and lay on the floor, the
defendant stabbed the victim twice in the chest with a
razor. The victim, alive throughout this ordeal, died as
a result of the injuries to her head and the stab wounds
to her chest.
The defendant then dragged the victim’s body into
the kitchen and placed the body in a sleeping bag. He
then cleaned the victim’s blood off of the carpet and
couch. After cleaning the murder scene, the defendant,
using a rope and a tarp, dragged the victim’s body out-
side and put it in the back of the victim’s car. He then
returned to clean the kitchen.
The defendant then drove the victim’s body to a
nearby town. He removed the victim’s pants and under-
wear and concealed the body at the bottom of an
embankment underneath a tarp. While driving back to
his house, the defendant threw the murder weapons
and the victim’s cell phone out of the car window.
After returning home, the defendant cleaned the last
of the bloody clothes and put them into trash bags.
Later that morning on the way to work, he discarded
the trash bags in a dumpster. That evening, he drove
the victim’s car to a location near where the victim had
been on May 6. Attempting to make it look like the
victim had been robbed, he abandoned the car there
and then walked home. On his way home, he discarded
the victim’s wallet, the sleeping bag he had used to
cover the victim’s body, and the rope he had used to
drag the body.
In addition to attempting to cover up the murder by
disposing of the evidence, the defendant began to lie
about the victim’s whereabouts. He told the victim’s
friends that he did not know where the victim was. In
addition, he voluntarily went to the police station and
gave a voluntary statement to police officers. In that
statement, the defendant denied knowing about the vic-
tim’s whereabouts, described the victim as someone
who would leave home for days at a time, and suggested
that the father of the victim’s daughter was responsible
for her disappearance. During this statement, he
referred to the victim in the past tense and, appearing
to be nervous, stated that ‘‘mistakes happen.’’
A police investigation ensued. During the course of
the investigation, the police found the sleeping bag dis-
carded along the side of a road. The police also searched
the crime scene and found the trail of blood left after
the defendant dragged the victim’s body out of the
house. The investigation also revealed that the defen-
dant had used his computer to research carpet cleaning,
storage facilities, and dumpster rental. In the defen-
dant’s vehicle, the investigation found carpet cleaning
supplies, unused nylon rope, several bungee cords,
unused trash bags, and a tarp. In addition, the investiga-
tion discovered that the defendant had set an alarm for
2:15 a.m.
The defendant was arrested on May 10, 2010. The
body, however, was not discovered until May 17, 2010.
On May 10, 2010, the state, in a substitute information,
charged the defendant with murder in violation of § 53a-
54a (a) and tampering with evidence in violation of
§ 53a-155 (a).
On May 23, 2013, the defendant withdrew his demand
for a jury trial and elected to be tried by the panel. The
trial began on September 24, 2013, before the panel,
Cremins, Agati and Crawford, Js. On October 10, 2013,
the state rested and the defendant made an oral motion
for judgment of acquittal. The panel denied that motion.
The defendant then put on evidence that sought to
establish the affirmative defense of extreme emotional
disturbance. To establish this defense, the defendant
testified on his own behalf. He admitted that he had
killed the victim, but claimed that he had done so under
the influence of extreme emotional disturbance caused
by the combination of several stressful conditions that
had occurred during the months preceding the murder1
and his ultimate argument with the victim on the night
of May 6 and early morning of May 7. According to the
defendant, the argument began after he awoke around
midnight on May 6 and went downstairs to get some-
thing to eat or drink. The defendant testified that once
downstairs, the victim initiated a loud and emotional
argument in which the victim questioned the defen-
dant’s feelings for her, criticized his inability to provide
for his family, and accused him of being a ‘‘lousy hus-
band.’’ The defendant further testified that he tried to
leave, but could not due to the victim’s continued
screaming. In response, he testified that he told the
victim how much he loved her and that he wanted to
remain married, but she informed him that she was
going to leave him and that he would never see his son
again. These comments, the defendant testified, caused
him to lose control, and the next thing the defendant
remembered he was kneeling next to the victim’s dead
body. In addition to his own testimony, the defendant
presented the testimony of Doctor Peter Morgan to
support his extreme emotional disturbance defense.
Morgan testified that he had conducted interviews with
the defendant in which he had learned about the defen-
dant’s financial and emotional stressors at and around
the time of the murder. From those interviews, Morgan
developed the opinion that the stressors and the defen-
dant’s ultimate argument with the victim caused the
defendant to suffer sudden and extreme feelings of
distress, fear, and anger. According to Morgan, these
feelings diminished the defendant’s capacity to control
his behavior at the time of the murder.
On October 16, 2013, the defendant rested his
extreme emotional disturbance case. The case was sub-
mitted to the panel on October 17, 2003, and the panel
returned a verdict of guilty as to both counts of the
information on October 18, 2013.
In its verdict, the panel found the defendant guilty
of murder in violation of § 53a-54a (a) and tampering
with evidence in violation of § 53a-155 (a). With respect
to the murder charge, the panel stated: ‘‘The crime
of murder requires two essential elements be proven
beyond a reasonable doubt. Those elements are: [f]irst,
that the defendant had the intent to cause the death of
another person, in this case, [the victim]; and, second,
that, acting with that intent, the defendant caused the
death of [the victim]. The state bears the burden of
proving each of these elements beyond a reasonable
doubt. The court finds that from the totality of the
credible evidence and the reasonable inferences drawn
therefrom that the state has met its burden of proving
the elements of the crime of murder beyond a reason-
able doubt. We find that the evidence has established
beyond a reasonable doubt that the defendant did pos-
sess the intent to cause the death of [the victim]. We
also find beyond a reasonable doubt that the defendant
caused the death of [the victim].’’2
The panel then stated that it had considered the
defendant’s affirmative defense of extreme emotional
disturbance. It set forth the relevant principles of law
concerning the affirmative defense of extreme emo-
tional disturbance, explaining: ‘‘In order to prevail on
th[e] affirmative defense [of extreme emotional distur-
bance], the defendant must prove by a preponderance
of the evidence that he caused the death of [the victim]
under the influence of extreme emotional disturbance
for which there was a reasonable explanation or excuse
measured from the viewpoint of a reasonable person
in the defendant’s situation under the circumstances
as he believed them to be. To determine whether the
defendant has met his burden, the defendant must prove
by a preponderance of the evidence the following: First,
that the emotional disturbance was not a mental disease
or defect that rises to the level of insanity as defined
by our Penal Code. . . . Second, that the defendant
was exposed to an extreme unusual and overwhelming
stress that is more than mere annoyance or unhappi-
ness. . . . Third, that the defendant had an extreme
emotional reaction to this stress as a result of which
there was a loss of self-control and his reason was
overcome by intense feeling such as passion, anger,
distress, grief, excessive agitation or other similar
emotions.’’
The panel then rejected the defendant’s affirmative
defense of extreme emotional disturbance. In doing so,
the panel made the following pertinent findings: ‘‘[1]
The court finds that the credible evidence establishe[d]
the defendant did not suffer from any disease or defect
that rose to the level of insanity as defined by our Penal
Code. . . . [2] The court finds by the credible evidence
that the defendant’s loss of self-control was not caused
by extreme or overwhelming stress that was more than
mere annoyance or unhappiness. The credible evidence
establishe[d] that there were ongoing issues between
the defendant and [the victim] related to divorce and
custody matters, financial and foreclosure matters and
the state of the relationship between the parties. The
court heard no credible evidence that made the date
of the incident or the period immediately preceding
that date any different in intensity from any other period
during their relationship. . . . [3] The court finds that
the incident of the evening of May 6, 2010 through the
morning of May 7, 2010 between the victim . . . and
the defendant, when considered from the viewpoint of
a reasonable person in the defendant’s situation under
the circumstances as the defendant believed them to
be, did not provide a reasonable explanation for the
defendant’s act of killing [the victim]. [Additionally]
[t]he court . . . finds that the defendant’s conduct can-
not be reasonably explained. The events of May 6 and
7, 2010, were not significantly different from those sur-
rounding any of the couple’s prior interactions as
reflected by the credible evidence presented about the
couple’s relationship. Accordingly, the court finds that
the defendant has not sustained his burden to prove
the defense of extreme emotional disturbance.’’
On January 17, 2014, the court sentenced the defen-
dant to a total effective sentence of sixty-five years
incarceration. This appeal followed.
On appeal, the defendant claims that the panel
improperly found that he had failed to prove his affirma-
tive defense of extreme emotional disturbance by a fair
preponderance of the evidence.3 The state argues that
the panel’s rejection of the factual basis of the defen-
dant’s extreme emotional disturbance claim was a deci-
sion that was well within its province to make. We agree
with the state.
General Statutes § 53a-54a (a) provides in relevant
part: ‘‘[I]n any prosecution [for murder], it shall be an
affirmative defense that the defendant committed the
proscribed act or acts under the influence of extreme
emotional disturbance for which there was a reasonable
explanation or excuse, the reasonableness of which is
to be determined from the viewpoint of a person in the
defendant’s situation under the circumstances as the
defendant believed them to be . . . .’’
‘‘[E]xtreme emotional disturbance is a mitigating cir-
cumstance which will reduce the crime of murder to
manslaughter. . . . Pursuant to General Statutes § 53a-
12 (b), [w]hen a defense declared to be an affirmative
defense is raised at a trial, the defendant shall have the
burden of establishing such defense by a preponderance
of the evidence. . . .
‘‘A homicide influenced by an extreme emotional dis-
turbance . . . is not one which is necessarily commit-
ted in the hot blood stage, but rather one that was
brought about by a significant mental trauma that
caused the defendant to brood for a long period of time
and then react violently, seemingly without provoca-
tion. . . . For the defendant to have prevailed on this
defense, he would have had to establish, by a preponder-
ance of the evidence, that he had caused the death of
the victim under the influence of extreme emotional
disturbance for which there was a reasonable explana-
tion or excuse measured from the viewpoint of a reason-
able person in the defendant’s situation under the
circumstances as the defendant believed them to be.
. . . To sustain his burden of establishing extreme emo-
tional disturbance by a preponderance of the evidence,
the defendant must persuade the trier of fact that: (1)
the emotional disturbance is not a mental disease or
defect that rises to the level of insanity as defined by
the penal code; (2) the defendant was exposed to an
extremely unusual and overwhelming state, that is, not
mere annoyance or unhappiness; and (3) the defendant
had an extreme emotional reaction to it, as a result of
which there was a loss of self-control, and reason was
overborne by extreme intense feeling, such as passion,
anger, distress, grief, excessive agitation or other simi-
lar emotions. . . . Consideration is given to whether
the intensity of these feelings was such that his usual
intellectual controls failed and the normal rational
thinking for that individual no longer prevailed at the
time of the act. . . . [T]he term extreme refers to the
greatest degree of intensity away from the norm for
that individual.’’ (Citations omitted; internal quotation
marks omitted.) State v. Ruben T., 104 Conn. App. 780,
785–86, 936 A.2d 270 (2007), cert. denied, 285 Conn.
917, 943 A.2d 476 (2008).
‘‘[T]he ultimate determination of the presence or
absence of extreme emotional disturbance [is] one of
fact for the trier, aided by the expert testimony of both
sides, but left to its own factual determinations. . . .
The trier may accept or reject the evidence presented by
the defendant and may choose to believe or disbelieve
expert testimony, even when uncontroverted. . . .
‘‘Appellate review of such factual determinations is
limited, therefore, to whether, viewing the evidence in
the light most favorable to sustaining the verdict, the
trial court abused its discretion. . . . Just as we do not
sit as a seventh juror, neither do we sit as a fourth judge
who may cast a vote against a finding by the three judge
court that the defendant has failed to sustain his burden
on the issue of extreme emotional disturbance based
upon a vague feeling that the result could be different.
. . . [E]xcept where an abuse of discretion is clearly
shown, the conclusion of a trial court should be
affirmed so long as it is a reasonable one on the basis
of the evidence adduced and the inferences drawn
therefrom.’’ (Citations omitted; internal quotation
marks omitted.) State v. Ricketts, 37 Conn. App. 749,
755–56, 659 A.2d 188, cert. denied, 234 Conn. 913, 660
A.2d 355, cert. denied, 516 U.S. 977, 116 S. Ct. 481, 113
L. Ed. 2d 409 (1995).
In the present case, the panel concluded that the
defendant had not proved his affirmative defense of
extreme emotional disturbance by a preponderance of
the evidence. The panel supported this conclusion with
specific findings regarding each of the factual bases
that the defendant had the burden to establish. In partic-
ular, the panel found that the defendant’s loss of self-
control was not caused by an ‘‘extreme[ly] unusual and
overwhelming’’ state. Instead, the panel found that the
evidence disclosed ‘‘ongoing issues’’ between the defen-
dant and the victim relating to their marriage, pending
divorce, and financial issues that dated back to 2005.
As a result, the panel found that the events of May 6
and 7, 2010, were ‘‘not significantly different’’ from other
arguments between the couple and, accordingly, those
circumstances did not provide a reasonable explanation
for the defendant’s murder of the victim.
This conclusion is amply supported by the record,
which discloses that the defendant’s relationship with
the victim had deteriorated since 2005. The record
reveals that the defendant’s relationship with the victim
suffered from incidents of physical abuse, arguments,
a death threat, a failed attempt at counseling, threats
of divorce, child custody discussions, and the victim’s
two affairs, which the defendant tolerated, dating back
to 2005. As such, the record supports the panel’s finding
that the events of May 6 and 7, 2010, were not
‘‘extreme[ly] unusual [or] overwhelming’’ nor signifi-
cantly different from those surrounding the couple’s
prior arguments during their relationship and did not
provide a reasonable explanation for the defendant’s
murder of the victim. See State v. Blades, 225 Conn. 609,
629–30, 626 A.2d 273 (1993); see also State v. Crespo, 246
Conn. 665, 681, 718 A.2d 925 (1998), cert. denied, 525
U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999); State
v. Ruben T., supra, 104 Conn. App. 786–87.
Further, the panel was entitled to reject some or all of
the defendant’s testimony, and some or all of Morgan’s
expert testimony, in support of the defendant’s extreme
emotional disturbance affirmative defense. State v.
Gonzalez-Rivera, 48 Conn. App. 784, 792, 713 A.2d 847,
cert. denied, 245 Conn. 923, 717 A.2d 238 (1998).
In particular, the defendant’s version of the events
immediately preceding the murder was inconsistent
with other evidence produced at trial. For example, the
defendant testified that the argument was ‘‘so loud,’’
but the sleeping children, in upstairs bedrooms, one
with her bedroom door open, never stirred. Addition-
ally, the defendant testified that he hit the victim while
she was standing up; however, the forensic evidence
indicated that the victim was struck while she was
sitting down. Furthermore, the defendant’s testimony
regarding how his precarious financial situation added
to his emotional disturbance was called into question
by testimony that he was doing fairly well in his new
business. Finally, the panel also had evidence before it
that the defendant lied to the victim’s friends and the
police. These inconsistencies afforded the panel a more
than adequate basis; see State v. Steiger, 218 Conn. 349,
381, 590 A.2d 408 (1991) (trier of fact does not need
inconsistencies to disbelieve witness’s testimony
because ‘‘the trier of fact can disbelieve any or all of
the evidence . . . and can construe that evidence in
manner different from parties’ assertions’’); to reject
the defendant’s testimony in part or completely. See
State v. Ricketts, supra, 37 Conn. App. 756.
In addition, the panel was equally permitted to reject
the testimony of the defendant’s expert witness. State
v. Gonzalez-Rivera, supra, 48 Conn. App. 792. Even
though the panel could have chosen independently to
reject Morgan’s expert testimony separately from the
defendant’s testimony; State v. Steiger, supra, 218 Conn.
381; the inconsistencies in the defendant’s testimony
further weakened Morgan’s expert assessment of the
defendant’s state of mind because Morgan’s opinion,
developed by interviewing the defendant, relied on the
assumption that the defendant’s version of events was
accurate. It is the role of the fact finder to determine
what evidence to believe, whether it be all, part, or
none of a witness’s testimony, and appellate courts
honor the trier’s assessment and resolve conflicting
evidence in favor of sustaining the verdict. See State v.
Allen, 289 Conn. 550, 559, 958 A.2d 1214 (2008); State
v. Lawrence, 282 Conn. 141, 154–55, 920 A.2d 236 (2007);
State v. Owens, 63 Conn. App. 245, 251, 775 A.2d 325,
cert. denied, 256 Conn. 933, 776 A.2d 1151 (2001).
Finally, the record reveals that there was ample evi-
dence that the murder was not the product of extreme
emotional disturbance, but was planned and deliber-
ately executed by the defendant. The police investiga-
tion revealed that, prior to murdering the victim, the
defendant had researched carpet cleaning, storage facil-
ities, and dumpster rentals. Additionally, although the
murder occurred at approximately 12:00 a.m. on May
7, 2010, the defendant had set an alarm for 2:15 a.m.
From this, the panel could have inferred that the defen-
dant intended to murder the victim at 2:15 a.m., but
woke up and executed his plan earlier. Furthermore,
it is not irrelevant that the defendant methodically cov-
ered up the murder by cleaning the crime scene, dispos-
ing of the victim’s car and personal effects in such a
way as to suggest she was abducted, telling friends and
relatives that she was missing, and hiding the body.4
Such evidence of intent and planning directly refutes
a claim of extreme emotional disturbance; see State v.
Steiger, supra, 218 Conn. 381–84; and ‘‘the three judge
[panel] could reasonably have determined that the
defendant had planned his attack on the victim and that
he had calmly and deliberately executed that plan.’’
State v. Patterson, 229 Conn. 328, 341, 641 A.2d 123
(1994). Therefore, we conclude that the panel’s rejec-
tion of the defendant’s extreme emotional disturbance
affirmative defense is supported by the evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In particular, the defendant testified that prior to the night of the murder,
he suffered from the stress resulting from his job loss, the foreclosure of
his home, his deteriorating relationship with his wife, his pending divorce
and child custody concerns, and his struggling business and long work hours.
2
With respect to the tampering charge, the panel stated: ‘‘[Tampering with
evidence] requires the state to prove that: One, the defendant believed that
an official proceeding was pending or about to be instituted; two, that the
defendant tampered with physical evidence; and, three, that the defendant
altered, destroyed, concealed or removed an item with the purpose of
impairing its veracity or availability in such proceedings. The court finds
that the state has proven these three elements beyond a reasonable doubt.’’
3
In his brief before this court, the defendant styles this claim as two
separate claims: (1) that the panel reasonably could not have rejected his
extreme emotional disturbance defense; and (2) that the panel improperly
denied his motion for judgment of acquittal as to the murder count because
he established his extreme emotional disturbance defense. These claims
present the same issue, and therefore we address them as one.
4
A passing motorist found the body on May 17, 2010.