02/10/2011 THU 16:12 FAX 203 867 6240 NH CRIMINAL DIV oo2 NEW HAVEN J.D. SUPERIOR COURT CHIEF CLERK'S OFFICE 20 FEB 10 P 348 CR7-241860 : SUPERIOR COURT, PART A STATE OF CONNECTICUT : JUDICIAL DISTRICT OF NEW HAVEN ve 4 AT NEW HAVEN JOSHUA KOMISARJEVSKY : FEBRUARY 10, 2011 STATE'S MEMORANDUM OF LAW IN OPPOSITION DE T'S M (OR CHANGE OF VENUE STATEMENT OF FACTS In the early morning hours of July 23, 2007 the Petit residence in Cheshire, Connecticut was invaded by two perpetrators who committed numerous crimes against the Petit family including capital felony, murder, kidnapping, arson, assault, sexual assault, larceny, robbery and burglary. Steven Hayes was arrested, tried and convicted for his role in the crimes and was sentenced to death on December 2, 2010. Legal proceedings in State v. Steven Hayes took place in New Haven Superior Court (Blue,J.) in the New Haven Judicial District. The Hayes trial began on or about September 13, 2010 and concluded with sentencing on December 2, 2010 and it was followed closely by various local and national media outlets. Co-defendant Joshua Komisarjevsky was arrested on the date of the crime and his case has been pending in New Haven Superior Court in the Judicial District of New Haven awaiting trial which is now imminent. On February 4, 2011, shortly before jury02/10/2011 THU 18:12 FAX 203 867 6240 NH CRIMINAL DIV Boos selection was to commence, defendant Komisarjevsky filed a motion for a change of venue requesting the Court to move the trial to the Judicial District of Stamford-Norwalk or alternatively, to the Fairfield Judicial District. Defendant Komisarjevsky's motion for change of venue is predicated on the claim that due to the pervasive media coverage of co-defendant Steven Hayes trial he cannot receive a fair trial in the New Haven Judicial District, LEGAL ARGUMENT Connecticut General Statutes Section 51-353 and Connecticut Practice Book \ Section 41-23 recognize that the Court has the inherent discretionary authority to grant a motion for change of venue to move the situs of trial. However, both of these provisions are silent as to the circumstances when such a motion should be granted or | denied. Connecticut case precedent is instructive as to the factors the Court should consider in exercising judicial discretion. The defendant, having filed a motion for | change a venue, bears the burden of establishing that he cannot receive a fair and impattial trial. State v. Rogers, 143 Conn.167, 172 (1956); State v. Chapman, 103 Conn, 453, 470 (1925); State v. Townsend, 211 Conn. 215, 224 (1989); State v. Piskorski, 177 Conn. 677, 685 (1979). As is customary following crimes of this description, there were prominent news stories about the crimes, the police investigation, the arrests, the backgrounds of the suspects, and subsequent court proceedings. The news coverage, from the state's02/10/2011 THU 16:12 FAX 203 887 6240 NH CRIMINAL DIV foos a ~ viewpoint, was straightforward, accurate, and factual and was not unduly inflammatory or sensationalized considering the facts and circumstances of the case. Moreover, the mere fact of extensive pretrial news coverage does not establish the existence of inherently prejudicial publicity. Prominence, in and of itself, does not prove prejudice. State v. Pelletier, 209 Conn, 564, 570 (1989); State v. Crafts, 226 Conn. 237, 257-58 (1993). As has been noted, “one who is reasonably suspected of murdering a police officer in the line of duty cannot expect to remain anonymous.” Dobbert v. Florida, 432 U.S, 282, 303 (1977); State v. Reynolds, 264 Conn. 1, 223 (2003). While prospective jurors may exhibit some prior knowledge of the case, itis clear that qualified jurors need not be totally ignorant of the facts and the issues involved. State v, Marra, 195 Conn, 421 (1985); State v. Miller, 202 Conn. 463, 480 (1987); State v. Townsend, 211 Conn. 215, 225 (1989); State v, Reynolds, 264 Conn. 1, 224 (2008). Itis sufficient for a fair and impartial trial if jurors can set aside their own impressions and opinions and render a verdict based on the evidence presented at trial and the law as instructed by the court, Irwin v. Dowd, 366 U.S. 717, 723 (1961); State v. Sostre, 48 Conn, Supp. 82 (2002). Further, the defendant's reliance on a statistical survey offered in support of the motion is misplaced. The issue before this court is not whether it is statistically more advantageous for the defendant to be tried outside the Judicial District of New Haven. Rather, the primary consideration is whether there is a sufficient pool of residents within the Judicial District of New Haven who can sit as jurors and give the defendant a fair and impartial trial. In State v. Reynolds, 264 Conn. 1 (2003), the Connecticut Supreme02/10/2011 THU 16:13 FAX 203 867 6240 NH CRIMINAL DIV Boos | Court considered this type of survey evidence offered by the defense in support of a motion for change of venue in a highly publicized case wherein the defendant was accused of the murder of a Waterbury police officer. The trial court had denied the defendant's motion. While the survey evidence was accepted as a legitimate indicator of the public's awareness of the case, the survey fell short as to the question of whether a fair and impartial jury could be selected from within the judicial district, As the trial court and the Connecticut Supreme Court in Reynolds observed, ‘the survey does not lend itself to thought provoking analysis and response. It is as superficial a method of dealing with complicated issues as can be imagined, and the necessarily vague categories of responses provide [ittle helpful information relative to the more difficult issue.” State v. Reynolds, 264 Conn, 1, 219-20 footnote 188 (2003). The survey evidence offered here cannot and does not reflect the reality of Connecticut's voire dire process, In the offered survey, people who volunteered for the questioning were no substitute for actual venire persons. They were asked brief, sometimes suggestive questions and were allowed to respond or not as they wished, I Venire persons, on the other hand, are in court having received a jury summons for jury | duty which is non-voluntary. They are placed under oath and questioned extensively during a compulsory voire dire process. The court and counsel have the ability to hear as well as observe the reactions of prospective jurors during the questioning process. | As any experienced attorney knows, often how something is said is more important, than what is said, While this survey is of some use and value concerning initial opinions of randomly selected people, it cannot duplicate or supplant the vast wealth of02/10/2011 THU Information available to the court and counsel after a complete, thorough, and extensive voire di unique individualized voire dire process should be sufficient to assure the defendant a fair and impartial trial. The trial court in Reynolds denied the defendant's motion without prejudice leaving the issue open for reconsideration should the court determine that a fair and impartial jury could not be impaneled from the residents within the district. For 16:13 FAX 203 867 6240 NH CRIMINAL DIV ire, Moreover, the court in Reynolds emphasized that proper use of Connecticut's the foregoing reasoning, this court should accept and follow Reynolds and deny the motion. STATE OF CONNECTICUT Lara Qo e MICHAEL DEARINGTON STATE'S ATTORNEY GARYOM NIGHOLSON SENIOR ASSISTANT STATE'S ATTORNEY, ove02/10/2011 THU 16:13 FAX 203 867 6240 NH CRIMINAL DIV oor Y ~~ ORDER ‘The foregoing Motion having been heard this day of February, 2011, itis hereby Ordered: CERTIFICATION Certified in accordance with Practice Book, Section 10-12, this 10" day of February, 2011, to: Jeremiah Donovan, Esq, 123 Elm Street, Unit 400 P.O, Box 554 Old Saybrook, CT 06475-4108 Walter C. Bansley, III, Esq. Bansley Law Offices, LLC 20 Academy Street New Haven, CT 06510 Todd A. Bussert, Esq. 101 Whitney Avenue, Suite 4 New Haven, CT 06510-1229 Mudasd Oomnenldy MICHAEL DEARINGTON STATE’S ATTORNEY 235 CHURCHSTREET SENIOR ASSISTANT STATE’S ATTORNEY 234 CHURCH STREET, 4™ FLOOR NEW HAVEN, CT 06510