Michael Ervin v. Paul Narducci et al. (2014)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE

The plaintiff, Michael Ervin, was convicted of the murder of his wife in violation of Connecticut General Statutes § 53a–54a after trial by jury.   State v. Ervin, 105 Conn.App. 34 (2007), cert. denied, 285 Conn. 918 (2008).   The plaintiff has brought the present action under the provisions of Connecticut General Statutes § 52–270 seeking a new trial based upon newly discovered evidence.

The plaintiff has set forth his case for a new trial in an amended twenty-count complaint filed October 3, 2012.   The defendants have moved to strike the complaint pursuant to Connecticut Practice Book § 10–39 et seq. claiming that the amended complaint fails to state a claim upon which relief can be granted.   Specifically, defendants claim that the amended complaint fails to set forth any allegations of newly discovered evidence.

“The purpose of the motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318 (2006).

Evidence adduced at trial indicate that Norwich Police and emergency personnel, who had been dispatched to 33 Trading Cove Road discovered the unresponsive body of the victim, Renea Ervin, wife of the “plaintiff,” on the kitchen floor.   Measures to revive the victim were unsuccessful.   The victim had no visible signs of injury, no cuts or abrasions and no pulse.   The “plaintiff” was kneeling on the floor next to the victim, and had no external injuries on him.   Police found no signs of forced entry or struggle.   A paramedic had difficulty opening the victim's airway because there was a substantial amount of vomit as well as particles of food in her mouth.   Eventually the victim was transported to a hospital where she was pronounced dead at approximately 11:00 p.m.

The medical examiner determined the cause of death to be traumatic asphyxia due to neck compression.   During the trial, the medical examiner viewed a demonstration video tape showing a certain type of wrestling hold once used by the defendant and testified that the cause of death was consistent with such a hold.  State v. Ervin, supra, 105 Conn.App. 36.

The allegations of the complaint consist of an attack on the medical examiner's conclusion that the cause of death was traumatic asphyxia due to neck compression.   Plaintiff alleges in his complaint that death was caused by food taken by his wife and that the medical examiner was in error in not so finding.   This, however, cannot be considered new evidence.   The presence of food in the victim's mouth was known by all at the time of trial.

“The standard that governs the granting of a petition for a new trial based on newly discovered evidence is well-established.   The petitioner must demonstrate by a preponderance of the evidence, that:  (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence;  (2) it would be material on a new trial;  (3) it is not merely cumulative;  and (4) it is likely to produce a different result in a new trial.”  Asherman v. State, 202 Conn. 429, 434 (1987).

Plaintiff's amended complaint fails to state a claim upon which relief can be granted.   Accordingly, the motion to strike is granted.

Joseph J. Purtill, J.T.R.

Purtill, Joseph J., J.T.R.