Opinion
AC 44211
10-18-2022
STATE of Connecticut v. MARCELLO E.
John R. Weikart, assigned counsel, with whom was Emily Graner Sexton, assigned counsel, for the appellant (defendant). Kathryn W. Bare, senior assistant state's attorney, with whom, on the brief, were Sharmese L. Walcott, state's attorney, and Anthony Bochicchio, supervisory assistant state's attorney, for the appellee (state).
John R. Weikart, assigned counsel, with whom was Emily Graner Sexton, assigned counsel, for the appellant (defendant).
Kathryn W. Bare, senior assistant state's attorney, with whom, on the brief, were Sharmese L. Walcott, state's attorney, and Anthony Bochicchio, supervisory assistant state's attorney, for the appellee (state).
Alvord, Suarez and Bishop, Js.
ALVORD, J. The defendant, Marcello E., appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). On appeal, the defendant claims that the trial court improperly admitted uncharged misconduct evidence. We affirm the judgment of the trial court. The following facts, which the jury reasonably could have found, and procedural history are relevant to this appeal. The defendant and the victim met and began dating around 1995 when the victim was fifteen years old. The defendant and the victim had two children together, J, who was born in 1998, and S, who was born in 2003. At the time of S's birth, the defendant and the victim lived together in Hartford; they later moved, briefly, to South Windsor. In 2008, the defendant and the victim began to have problems in their relationship. The couple had several arguments that evolved from verbal disagreements to physical incidents. Following one such incident in October, 2009, the defendant stopped living with the victim and their children.
This was the defendant's second trial on the charge of assault in the first degree. This court affirmed the defendant's conviction from his first trial on direct appeal. Subsequently, the defendant brought a petition for a writ of habeas corpus, alleging ineffective assistance of trial counsel, which was denied. On appeal, this court reversed the judgment of the habeas court and remanded the case with direction to grant the petition for a writ of habeas corpus and to vacate the defendant's conviction. This court ordered a new trial, the outcome of which is the subject of the present appeal. Hereinafter, all references to the trial refer to the second trial, which took place in November, 2019.
In November, 2011, the defendant resided at his mother's home with his mother, sister, nephews, and brother on B Street in Hartford. He and the victim had an arrangement wherein the defendant would pick up S from school, after 3 p.m., and bring her to his mother's house until the victim left her workplace. After the victim left work at about 5 p.m., she would pick up S at the home of the defendant's mother and then return to their home on M Street in Hartford. When the victim arrived at the home of the defendant's mother to pick up S, the victim typically would not go inside but instead would call S to come out because the victim "did not want to have any contact with [the defendant] at all."
On November 16, 2011, the defendant picked up S at school at about 3:45 p.m., took her to a fast-food restaurant, and brought her to his mother's home. After they arrived, the defendant went upstairs to his room. Thirty minutes before the victim picked up S, the defendant left the house with a backpack and got into a car. He did not return prior to S's leaving the house.
At about 5:30 p.m., the victim picked up S at the home of the defendant's mother. The victim and S then went to a grocery store to pick up food for dinner, which took, at most, twenty minutes. Then, they returned home to M Street, where the victim parked her car in the driveway. S got out of the car, walked to the back door, and entered the home first. The victim followed after grabbing her bag and the groceries. The victim entered her home and turned to lock the back door when the defendant ran up to her and began stabbing her. Because the defendant was not wearing a face covering, the victim got a good look at him. The defendant repeatedly stabbed the victim in the head, leg, arm, and back, and pulled her outside. The victim yelled for J, who was already inside the home, to come help her. J ran outside, picked up the victim, brought her into their home, and locked the door. The victim originally thought she had been beaten, but upon hearing a gushing sound and feeling her leg, she told J, "your father stabbed me." The defendant ran toward a neighbor's fence on the side of the victim's home. Shortly thereafter, S called the defendant, told him about the attack on the victim, and the phone line promptly went dead.
At 5:58 p.m., two minutes after receiving a call that someone had been stabbed on M Street, a Hartford police officer arrived at the victim's home. As part of their investigation, officers spoke with J on November 16, 2011. J told the officers that the victim had identified the defendant as her assailant.
We note that the record contains conflicting information regarding J's age on the date of the attack on the victim at their home on November 16, 2011. The victim testified that her son, J, was born in April, 1998, which would support a finding that he was thirteen years old on the date of the attack. J testified that, at the time of the trial, in November, 2019, he was twenty-one years old. To the contrary, however, J also testified that, at the time he gave a statement to the police, on December 7, 2011, three weeks after the attack, he was eleven years old.
Later that evening, two police officers went to the home of the defendant's mother to speak with the defendant. Officer Valentine Olabisi first spoke with the defendant regarding his whereabouts at the time the victim was attacked. Officer Olabisi testified that the defendant had told him that "he was with his mother all day and he hadn't left the house" but "refused to speak to [Officer Olabisi] any further." Thereafter, Detective Luis Poma attempted to make contact with the defendant, but the defendant's brother told him that the defendant "was agitated." When Detective Poma then asked him for the defendant's contact information, he told Detective Poma that the defendant's phone was broken.
As a result of the defendant's attack, the victim sustained multiple stab wounds, suffered a collapsed lung, received staples extending from the top of her head down to her ear, underwent three surgeries, and was hospitalized for five days. After she was transported to a hospital, stabilized by medical personnel, and administered a large amount of pain medication, the victim told the police that "she did not see the suspect" and that she had been attacked by an "unknown person." Five days after the attack, the victim identified the defendant as her assailant from a photographic array that the police had prepared.
At the time of the trial in November, 2019, eight years after the attack, the victim testified that she continued to have difficulty walking and was expected to undergo additional surgeries due to the severity of her injuries from the attack.
Officer Chris Hunyadi was the first officer at the crime scene on the night of the attack, and followed the victim to the hospital where he spoke with her after medical personnel administered care to her for her significant injuries. Officer Hunyadi testified that he remained at the hospital until he was relieved by the lead detective later that evening. Detective Poma, the lead detective investigating the assault, testified that he was not able to take the victim's statement on the night of the attack due to her medical condition.
Prior to trial, the defendant filed a motion for the disclosure of any evidence of uncharged misconduct that the state would seek to present at trial. On October 31, 2019, the court held a hearing on the admissibility of evidence of four incidents in which the defendant either had threatened or used violence against the victim. At the hearing, the state presented the testimony of the victim as to the four incidents.
The victim testified that the first incident occurred on January 30, 2007, at her workplace. The defendant showed up there and wanted the victim to "come speak to him about something that was going on" outside. When the victim refused to speak with him, the defendant entered her workplace and attempted to pull her outside. The victim ran from the defendant into a coworker's office. The defendant left the victim's place of work but continued to make threats to her over the phone. The victim did not recall the specific words he used to threaten her but recalled that they were "arguing back and forth." The victim testified as to a second incident that occurred in March, 2008, at the home of the victim and the defendant in South Windsor. The victim was vacuuming, which "irritated [the defendant] because the vacuum was too loud." The victim asked the defendant to leave and "thought [the defendant] was leaving, and ... he proceeded to punch [her] in ... [the] head." The victim attempted to leave the room multiple times, but the defendant would not let her leave. According to the victim, the defendant eventually "had [her] on the ground. He punched [her] in [the] face. [She] got a concussion from that. And he just would not get out of [her] face." The victim attempted to leave the house, but the defendant pulled her back inside. She pleaded with the defendant to let her leave. The victim was eventually able to leave by saying that she needed to get their dog, who had run outside, and then ran to her neighbor's home to call the police.
The victim testified as to a third incident that occurred on October 13, 2009, at the home of the victim and the defendant when they lived in Hartford. Because the victim's car was overheating, she asked the defendant for a ride, but he did not give her one. She took her car to work, and it overheated on the highway. According to the victim, when she arrived home, the defendant acted "like nothing happened" and as though her "safety was not a concern of his ...." The victim and the defendant proceeded to get "into an altercation where ... something happened, and he punched [her] in [the] face, in [her] mouth in front of [their] daughter at the time and, like, blood was like squirting every-where." A friend arrived and brought the victim and S to the police department to file a report.
The victim testified as to a fourth incident that occurred on December 16, 2009, after the defendant no longer lived with her. The defendant called the victim to try to get her to take him back. The defendant made threats to the victim and stated, "if I go down you go down with me ...."
The prosecutor argued that the four prior incidents were relevant to the defendant's motive and intent to commit the charged crime and stated that there was not "enough to offer them under identity." Defense counsel objected, arguing, principally, that the incidents were not relevant to either motive or intent and that they would be unduly prejudicial. Defense counsel argued that the incidents were not similar in nature to the charged crime because, in contrast to the prior incidents, during the charged crime, "there was no words, there was no threats. There was just an attack." Additionally, defense counsel argued, inter alia, that the prejudicial effect of the prior incidents was "[overwhelming, especially] in view of the nature of the actual allegations of the serious assault." The prosecutor argued that the incidents revealed a pattern of "escalating violence towards one particular individual which goes directly to ... motive, which is essential, and intent, which needs to be proved." Additionally, the prosecutor argued that "the fact that [the prior incidents of misconduct] are less egregious than the incident offense, makes [them] more admissible." In responding to the defendant's argument that the misconduct evidence was not similar to the charged offense, the prosecutor argued that "similarity is important if you're looking to admit the evidence [for] identity, which we are not." Additionally, the prosecutor maintained that, were the court to admit the prior misconduct evidence at trial, he would not seek to offer any evidence of convictions or arrests resulting from the incidents or seek to elicit testimony from the victim that she had called the police.
During the pretrial hearing, defense counsel argued that the incidents were too remote in time, given that they had occurred ten or more years before trial, and that the court should consider the passage of time from the dates of the incidents to the date of the second trial, rather than the passage of time from the dates of the incidents to the date of the crime. See footnote 1 of this opinion. The defendant does not renew this argument on appeal. We note, however, that "[t]he relevant time interval for measuring remoteness is the time elapsed between the charged and uncharged misconduct." State v. Acosta , 326 Conn. 405, 407 n.2, 164 A.3d 672 (2017).
After hearing the victim's testimony regarding the uncharged misconduct evidence and during counsel's arguments, the court requested that the prosecutor summarize the nature of the conduct that was charged in the case and the nature of the victim's testimony. The prosecutor responded: "In this case, basically, [the victim] will testify that she had come home from picking up her daughter. Her daughter went to the house first. She was going into the house. ... [A]s she was walking in she was attacked from behind, and ... thought at the time she was being assaulted. She didn't realize she was stabbed until the attack was over. She was stabbed several times causing serious physical injury. And she's going to testify that [the defendant] is the individual who stabbed [her]." The court further inquired whether the victim was stabbed multiple times and the location of her wounds. The prosecutor stated that she was stabbed multiple times on her head and body and that "[t]here was significant injury to her legs and to her head. She will testify, I believe, that there was no warning and no lead up ... to it."
On the first day of trial, the court orally ruled on the admissibility of the uncharged misconduct evidence. The court stated that, "[p]ursuant to § 4-5 of the [Connecticut] Code of Evidence these prior incidents are admissible only if they satisfy the relevancy standard set forth in [§] 4-1 of the [Connecticut Code of Evidence ] and [the] balancing test set forth in [§] 4-3 [of the Connecticut Code of Evidence]. Consistent with those ... code provisions, the court has considered the extent to which these prior incidents are relevant to the issues of intent and motive, and then undertaken to balance the probative value of each incident against that incident's prejudicial effect.
"In considering the prejudicial effect of the other crimes evidence, the court has considered such prejudice that could arise, for example, from the creation of side issues, the possible risk of jury confusion, or a risk that the jury's emotion would be so aroused by learning of these prior incidents so as to create undue prejudice. At the outset the court has recognized that as our Appellate Court has stated most recently in State v. Anthony L ., 179 Conn. App. 512 [179 A.3d 1278, cert. denied, 328 Conn. 918, 181 A.3d 91 (2018) ], and State v. Morales , 164 Conn. App. 143, [136 A.3d 278, cert. denied, 321 Conn. 916, 136 A.3d 1275 (2016) ], and I quote, when instances of a defendant's prior misconduct involved the same victim as the crimes for which the defendant is presently being tried, those acts are especially illuminative of the defendant's motivation and attitude toward that victim and thus of his intent as to the incident in question, closed quote.
"I have also taken into account that our law makes clear that where, as here, a defendant has pleaded not guilty the defendant places in issue all elements of the charges against him including the element relating to intent. Moreover, all elements remain challenged by the defendant in the eyes of the law even if the defendant plans to pursue a defense that centers not on his mental state but on whether or not he was the perpetrator of the crime."
The court then addressed each of the four incidents of uncharged misconduct separately. The court excluded evidence of the first incident, which allegedly occurred at the victim's workplace, because "neither the nature of the physical contact [the victim] described nor the threat bears sufficiently on the defendant's intent in the present case." The court also excluded evidence of the fourth incident, the phone call on December 16, 2009, when the defendant allegedly threatened the victim by saying, "if I go down you go down ...." The court concluded that admitting evidence of the phone call would require the victim to contextualize and explain events that occurred two years prior to the crime at issue and would "create a risk that the jury would become confused and would certainly create side issues."
The court ruled that it would permit the state to introduce evidence of two of the four incidents, specifically, the second and third incidents. As to the second incident, in which the defendant allegedly punched the victim in the head during an argument and restrained her from leaving their home, the court found those facts "to be probative of the defendant's intent in the present case and sufficiently probative so as to outweigh any prejudicial effect." Balancing the probative value of the evidence against its prejudicial effect, the court concluded that the incident was "not so remote in time to the charged offense to eliminate its probative value and when compared to the facts claimed in the charged case, is not such as is likely to arouse the jury's emotions." Additionally, the court concluded that, because the second incident did not involve a weapon, the jurors’ emotions would not be so aroused by the behavior during that incident and that they would be able to "separate that incident from the present one." Finally, the court addressed the "dissimilarity" between the charged stabbing incident and the prior assault, and noted that courts have held "that prejudice is lessened by virtue of that dissimilarity."
The court found that the third incident, in which the defendant allegedly punched the victim in the mouth after her car overheated, was "relevant to the issue of intent in the present case." Balancing the probative value of the evidence against its prejudicial effect and relying on precedential case law, the court determined that the third incident was "not too remote, nor is it too similar to the present case, nor is it so serious as to be such as to arouse the jury's emotion." Therefore, the court concluded that evidence of the third incident was "probative of [the defendant's] intent in the present case and sufficiently probative so as to outweigh its prejudicial effects."
The court stated that it was "permitting those incidents to be considered by the jury only as to intent, not as to motive." The court further instructed the prosecutor to ensure that he did not question the victim in a manner so as to elicit information "regarding police involvement or court proceedings that may have followed the incident[s] ...." Additionally, the court directed that "[t]he state also shall elicit testimony regarding these two prior incidents in a non-inflammatory manner." Finally, the court stated that it was "prepared to give an instruction regarding the use to which these prior incidents may be put" and that it would do so in its final charge to the jury and immediately before or after the victim testified to these incidents, whichever defense counsel preferred. Defense counsel responded that he would prefer that the court give the limiting instruction after the victim testified.
Prior to the start of evidence, the court instructed the jury that "[s]ome evidence in this case may be admitted for a limited purpose only. If I instruct you that particular evidence has been admitted for a limited purpose, then you may consider that evidence only for the limited purpose that I explain to you and not for any other purpose." At trial, the victim testified, in less detail than during the hearing, as to the second and third incidents discussed previously. With respect to the March, 2008 incident, the victim testified that she had "asked [the defendant] to leave and it became verbal and then it became physical," and he hit her. With respect to the incident on October 13, 2009, the victim testified that she and the defendant got into an argument and that he punched her in the face.
The entire colloquy between the prosecutor and the victim regarding the uncharged misconduct evidence before the jury was as follows:
"Q. Now I'm going to fast-forward a bit to 2008.... [W]ere you now living in South Windsor?
"A. Yes.
"Q. And it was still you and the defendant and your two children that we mentioned.
"A. Right.
"Q. Now, at this point did you begin to start to begin to have some problems in the relationship?
"A. Yes.
"Q. I draw your attention to March of 2008. Do you recall getting in an argument with the defendant on that date?
"A. Yes.
"Q. And do you recall what started the argument?
"A. Yes.
"Q. Okay. What gave rise to the argument?
"A. I asked him to leave and it became verbal and then it became physical.
"Q. And that was an argument where he eventually hit you in that incident. Correct?
"A. Yes.
"Q. Now, I'm going to move up to October 13th of ‘09, you're now living in Hartford at that point?
"A. Yes.
"Q. And where were you in Hartford at that point?
"A. What, my address?
"Q. Yeah.
"A. [M] Street.
"Q. And still with the same two children?
"A. Yes.
"Q. And the defendant is living with you also. Correct?
"A. Right.
"Q. And did you get—I'm going to draw your attention to October 13, I believe, of 2009, did you get in an argument again on that date?
"A. Yes.
"Q. And what caused the argument on that date?
"A. My car had overheated and he went and helped me get to work that day, so that's how it all transpired.
"Q. And then there was an argument?
"A. Yes.
"Q. And at that point he eventually—he punched you in the face on that day. Correct?
"A. Yes.
"Q. Now, about that time did the defendant stop living with you and the children?
"A. Yes."
After the victim testified, and, as requested by defense counsel, the court instructed the jury regarding the limited purpose of the uncharged misconduct evidence. The court instructed the jury that it could consider the victim's testimony regarding the prior acts "solely to show or to establish what the defendant's intent may have been at the time he's alleged to have committed the specific crime charged here." Further, the court warned the jury that it "may not consider the evidence of these prior acts as establishing a predisposition on the part of the defendant to commit the crime charged or to demonstrate that he has a criminal propensity to engage in criminal conduct. You may consider this evidence of these prior incidents only if you believe it occurred, and further, only if you find that it logically, rationally and conclusively bears on the issue of whether or not the defendant had the intent to commit the crime that is charged in this case." Defense counsel did not object to the substance or timing of these instructions.
The court instructed the jury: "Ladies and gentlemen, I just want to give you an instruction at this point. You recall in the preliminary instructions I gave you a short time ago, I mentioned evidence that may be admitted for a limited purpose. Just now you've heard [the victim] describe incidents that she stated occurred in 2008, and another incident that occurred in 2009, during the course of a relationship with the defendant, and that in each of those incidents that she described there was a physical assault by the defendant against her person.
"This evidence of alleged conduct of the defendant prior to the date of the charged offense, which as you know occurred in 2011, these prior acts are not being admitted to prove the bad character propensity or criminal tendencies of the defendant, but solely to show or to establish what the defendant's intent may have been at the time he's alleged to have committed the specific crime charged here. You may not consider the evidence of these prior acts as establishing a predisposition on the part of the defendant to commit the crime charged or to demonstrate that he has a criminal propensity to engage in criminal conduct. You may consider this evidence of these prior incidents only if you believe it occurred, and further, only if you find that it logically, rationally and conclusively bears on the issue of whether or not the defendant had the intent to commit the crime that is charged in this case.
"On the other hand, if you do not believe the evidence of these prior incidents or even if you do, if you do not find that it logically, rationally, and conclusively bears on the issue of the defendant's intent at the time of the crime charged in this case, then you may not consider this testimony relating to the incidents in the past for any purpose whatsoever. In other words, you may not allow your mind uncritically to believe that the defendant must be or is more likely to be the person who committed the crime charged in this case merely because of the misconduct he may have directed toward [the victim] previously, nor may you believe that the defendant is or is more likely to be guilty of the offense here charged merely because of the alleged prior misconduct.
"Rather, as I have explained, you are permitted to consider this evidence of prior incidents between the defendant and [the victim] as she has just described only if you believe that they occurred, and then only to the extent that you find their occurrence may bear on the issue of whether the defendant possessed the requisite intent to commit the crime alleged in this case. These alleged prior incidents may not be considered by you for any other purpose."
The defendant presented an alibi defense at trial. The defendant's mother and sister both testified that, on the evening the victim was attacked, the defendant was at his mother's home. They both testified that the defendant's mother called out to the defendant from the living room at about 6 p.m. but that he did not come downstairs from his room. The defendant's mother then walked upstairs and shook the defendant to wake him. The defendant's mother and sister testified that at least one police officer came to their home on November 16, 2011, to speak with the defendant regarding the attack on the victim. Although the defendant's mother and sister both testified that they would have provided information to the officers on the night of the attack or at any time thereafter, had they been contacted, Officer Olabisi testified, to the contrary, that "[the defendant's mother and sister] were not cooperative, and they wouldn't provide any information."
The defendant's sister testified that she recalled two officers coming to her mother's home. The defendant's mother testified that she recalled one officer coming to her home.
The defendant testified in his own defense and maintained that he was not responsible for the attack on the victim. He testified that, after he brought S from school to his mother's house, he helped her with her homework, and then went upstairs to bed. He stated that the next thing he remembered was his mother waking him up. According to the defendant, S called him shortly after that, at 6:01 p.m. but the phone disconnected on her end. He testified that he was cooperative with Officer Olabisi, the first officer to arrive at the home of the defendant's mother, and that Detective Poma called him twice that night and hung up on him.
During direct examination by his counsel, the defendant acknowledged that he and the victim had troubles in the past "like any other couples ...." On cross-examination, the defendant stated that he had physical altercations with the victim in the past and that, after the last incident in 2009, they stopped living together.
The following colloquy between defense counsel and the defendant took place during redirect examination:
"Q. [The prosecutor] indicated that you had a physical altercation with her in the past? "A. In the past.
"Q. With [the victim] in the past. Correct?
"A. Yes, sir.
"Q. And you accepted responsibility for it?
"A. Yes, sir.
"Q. You pled guilty to it?
"A. Yes, sir."
During closing argument, the prosecutor reminded the jury that it could consider evidence of the defendant's prior conduct: "Now, you also heard about some prior conduct by the defendant towards [the victim]. When I asked the defendant the relationship went bad, yeah, like everybody's. But you got physical. Simple response was yes. That can be considered by you." Additionally, in setting forth the elements of the charge of assault in the first degree, the prosecutor argued that, "if you have a serious physical injury and intent to cause a serious physical [injury] ... the question then becomes who committed the act. I'd argue that there is only evidence of one particular party that would be the defendant." During rebuttal argument, the prosecutor stated: "I can agree with [defense] counsel that the issue in this case is identification."
During closing argument, defense counsel argued: "[The defendant] said that he had a physical altercation with his wife three years before the incident. But certainly nothing even close to the level of violence we see in this case and certainly with no weapon of any type. And to his credit he took responsibility for his actions and pled guilty. If he's guilty, he pleads guilty."
After the close of evidence and closing arguments, the court, again, instructed the jury that it could consider the victim's testimony regarding the uncharged misconduct evidence only for the limited purpose of proving that the defendant had the intent to commit the crime with which he was charged. The jury found the defendant guilty of assault in the first degree. The court imposed a sentence of twenty years of incarceration.
The language used by the court paralleled the limiting instruction it gave the jury after the victim testified regarding the uncharged misconduct evidence. See footnote 7 of this opinion.
Following his conviction of assault in the first degree, the defendant admitted that, as a result of his criminal conduct, he had violated the terms of his probation as set forth under a separate docket number. The court, Gold , J ., imposed an additional sentence of three years of incarceration on the violation of probation charge to be served concurrently with the sentence on the assault conviction.
By way of a motion for a new trial, the defendant renewed his challenge to the admission of the two incidents of prior uncharged misconduct evidence. He argued that "[a]llowing the jury to hear about them even for a limited purpose was much more prejudicial than probative." Additionally, he emphasized the difference between the misconduct and the crime at issue, arguing that the prior incidents were "domestic matters" that "happened about two or three years prior to the incident" at issue and "came nowhere [near] the level of violence in this case." The court orally denied the motion. Thereafter, this appeal from the judgment of conviction followed.
The defendant's sole claim on appeal is that the trial court abused its discretion in admitting evidence of his prior misconduct. He argues that the evidence was not relevant or material, and, even if deemed to have probative value, its prejudicial effect outweighed any such probative value and was harmful. In response, the state maintains that the trial court acted well within its discretion in admitting the prior misconduct evidence after finding it relevant and not unduly prejudicial. The state additionally maintains that, even if the admission of the prior misconduct was improper, the defendant has not satisfied his burden of demonstrating harm resulting from its admission. We agree with the state.
"Although [e]vidence of a defendant's uncharged misconduct is inadmissible to prove that the defendant committed the charged crime or to show the predisposition of the defendant to commit the charged crime, such evidence is admissible if it is offered to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. ... To determine whether evidence of prior uncharged misconduct is admissible for a proper purpose, we have adopted a two-pronged test: First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence." (Citation omitted; internal quotation marks omitted.) State v. Patrick M ., 344 Conn. 565, 597, 280 A.3d 461 (2022) ; see Conn. Code Evid. § 4-5 ("(a) [e]vidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character, propensity, or criminal tendencies of that person" but is admissible for other purposes, "(c) ... such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony").
"Our standard of review on such matters is well established. The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. ... [E]very reasonable presumption should be given in favor of the trial court's ruling. ... [T]he trial court's decision will be reversed only [when] abuse of discretion is manifest or [when] an injustice appears to have been done." (Internal quotation marks omitted.) State v. Patrick M ., supra, 344 Conn. at 598, 280 A.3d 461. "In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did." (Internal quotation marks omitted.) State v. Franko , 142 Conn. App. 451, 460, 64 A.3d 807, cert. denied, 310 Conn. 901, 75 A.3d 30 (2013).
The defendant argues on appeal that "this court should conclude that in the present case, where the defendant was charged with using a deadly weapon to carry out an out-of-the-blue ambush style stabbing attack on his ex, more than two years after the end of their relationship, the trial court abused its discretion by admitting evidence that he twice, during their relationship, inflicted a lesser degree of violence on her without a weapon in the context of escalating domestic arguments that resulted in much less severe injuries. ... Moreover, where the nature of the attack, as shown by the state's uncontested evidence, left little doubt that the perpetrator of the attack on [the victim] acted with the specific intent to cause serious physical injury, and where identity of the perpetrator was the central issue for the jury, the prejudicial effect of the uncharged misconduct evidence far outweighed any marginal probative value, because the jury, in attempting to resolve the identity issue, was likely to employ an impermissible inference that the defendant had a propensity to violence against [the victim]."
We first consider the probative value of the prior misconduct evidence. The trial court found that the prior misconduct evidence from (1) the vacuuming incident in March, 2008, and (2) the car overheating incident on October 13, 2009, was "probative of the defendant's intent in the present case ...." We agree with the court that the evidence of uncharged misconduct was relevant to the issue of intent. The defendant was charged with assault in the first degree in violation of § 53a-59 (a) (1), which is a specific intent crime. State v. Sivak , 84 Conn. App. 105, 110, 852 A.2d 812, cert. denied, 271 Conn. 916, 859 A.2d 573 (2004). Therefore, "the state bore the burden of proving the following elements beyond a reasonable doubt: (1) the defendant possessed the intent to cause serious physical injury to another person; (2) the defendant caused serious physical injury to such person ... and (3) the defendant caused such injury by means of a deadly weapon or a dangerous instrument."
General Statutes § 53a-59 (a) provides in relevant part: "A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument ...."
In his brief, the defendant argues that this court must examine both general intent and specific intent to cause serious physical injury. As part of his argument, the defendant cites State v. Gilligan , 92 Conn. 526, 536–37, 103 A. 649 (1918), and urges this court to limit the use of prior misconduct to instances in which the state's case is "reasonably consistent with a theory that the charged offense was committed innocently, i.e., by accident or mistake." The defendant contends that, because "[t]here is no imaginable interpretation of [the state's] evidence that would be consistent with accident or mistake," the uncharged misconduct evidence was not relevant to prove general intent, i.e., voluntariness of action.
The state contends, inter alia, that the defendant's argument, premised on Gilligan , presents a new legal ground that was not raised before the trial court and refers this court to our recent decision in State v. McKinney , 209 Conn. App. 363, 385–88, 268 A.3d 134 (2021), cert. denied, 341 Conn. 903, 268 A.3d 77 (2022). We address the defendant's argument because it relates to his claim before the trial court that the uncharged misconduct evidence was not relevant to intent.
We find the defendant's reliance on Gilligan to be misplaced. In so deciding, we are persuaded by our Supreme Court's rationale in State v. Beavers , 290 Conn. 386, 963 A.2d 956 (2009), in which the court stated: "We disagree ... with the defendant's reliance on State v. Gilligan , [supra, 92 Conn. 526, 103 A. 649], wherein a convalescent home owner was convicted of murdering one of her patients by arsenic poisoning. On appeal, this court concluded that the trial court had abused its discretion when, for purposes of proving malice and intent, as well as absence of accident or mistake, it admitted into evidence the fact that three of the home's other patients also had recently died of arsenic poisoning. ... We view the venerable Gilligan decision as confined to its facts, because it focuses largely on the unduly prejudicial impact of that uncharged misconduct evidence in light of the fact that the state already had introduced ample evidence of absence of mistake or accident, including that the victim had received multiple large doses of arsenic, the defendant's delay in seeking medical attention and ‘unseemly haste’ in getting rid of the body, the defendant's failure to notify the victim's relatives of his death, a loan of money from the victim to the defendant, and the defendant's impending need for the victim's room for another paying patient." (Citation omitted.) State v. Beavers , supra, at 405–406 n.20, 963 A.2d 956 ; see also State v. Gilligan , supra, at 533, 103 A. 649 ("[t]he authorities on the subject are so numerous, and the relation between the commission of one offense and of another similar offense depends so much upon the nature of the offense and on the circumstances of each case, that we confine our discussion to the crime of murder by poisoning").
State v. Holmes , 75 Conn. App. 721, 740, 817 A.2d 689, cert. denied, 264 Conn. 903, 823 A.2d 1222 (2003).
At the outset, we address the defendant's contention that, because intent was not at issue during the trial and he pursued an alibi defense, the court abused its discretion in admitting the uncharged misconduct evidence under the intent exception to the hearsay rule as set forth in § 4-5 (c) of the Connecticut Code of Evidence. We disagree.
"[I]ntent, or any other essential element of a crime, is always at issue unless directly and explicitly admitted before the trier of fact." (Emphasis in original; internal quotation marks omitted.) State v. Irizarry , 95 Conn. App. 224, 233–34, 896 A.2d 828, cert. denied, 279 Conn. 902, 901 A.2d 1224 (2006) ; see also Estelle v. McGuire , 502 U.S. 62, 69–70, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) (noting that "prosecution's burden to prove every element of [a] crime is not relieved by a defendant's tactical decision not to contest an essential element of the offense" and holding that extrinsic act evidence is not constitutionally inadmissible merely because it relates to issue that defendant does not actively contest). "Because intent is almost always proved, if at all, by circumstantial evidence, prior misconduct evidence, where available, is often relied upon." (Internal quotation marks omitted.) State v. Chyung , 325 Conn. 236, 263, 157 A.3d 628 (2017).
In its oral ruling on the admissibility of the uncharged misconduct evidence, the court stated that the defendant had pleaded not guilty to the charge of assault in the first degree and that "all elements remain challenged by the defendant in the eyes of the law even if the defendant plans to pursue a defense that centers not on his mental state but on whether or not he was the perpetrator of the crime." The defendant did not directly and explicitly admit before the trier of fact that he had the intent to cause serious physical injury. Therefore, the state bore the burden of proving that the defendant had the intent to cause serious physical injury to the victim. See State v. Erhardt , 90 Conn. App. 853, 860 n.2, 879 A.2d 561 ("The defendant argues that intent was not an issue in this case because he testified that the victim injured herself and that intent was not a focus of the state's case. That argument is meritless. The defendant did not admit that he had an intent to cause physical injury; therefore, this was a contested issue that the state had to prove, and evidence regarding that issue was relevant and material."), cert. denied, 276 Conn. 906, 884 A.2d 1028 (2005). The trial court reasonably could have determined that the uncharged misconduct evidence was relevant to prove intent.
The defendant further argues that the uncharged misconduct evidence was irrelevant to whether he intended to cause serious physical injury to the victim on the night of the charged conduct because "there must be some particular, articulable connection between the uncharged misconduct and the specific intent element the state is required to prove." Specifically, the defendant claims that "[t]he absence of similarity between the charged and uncharged misconduct severely limited its probative value ...." Additionally, he contends that, "even if the defendant acted intentionally in 2008 and 2009 [the years in which the uncharged misconduct incidents occurred], it is not at all clear that he acted with an intent to cause serious physical injury." The state responds that the uncharged misconduct evidence "placed their relationship in context and demonstrated [the defendant's] attitude and motivation against [the victim], and, thus, his intent to engage in an assault that caused [the victim] serious physical injury." We agree with the state.
In admitting the prior misconduct evidence for the purpose of showing the defendant's intent to commit assault in the first degree, the court relied on State v. Anthony L ., supra, 179 Conn. App. at 525, 179 A.3d 1278, and State v. Morales , supra, 164 Conn. App. at 180, 136 A.3d 278, for the principle that, "when instances of a defendant's prior misconduct involved the same victim as the crimes for which the defendant is presently being tried, those acts are especially illuminative of the defendant's motivation and attitude toward that victim and thus of his intent as to the incident in question ...."
In Anthony L ., the defendant appealed from his conviction of sexual assault in the first degree, risk of injury to a child, and sexual assault in the third degree, claiming in relevant part "that the trial court abused its discretion by admitting evidence of uncharged misconduct because the evidence was more prejudicial than probative." State v. Anthony L ., supra, 179 Conn. App. at 523, 179 A.3d 1278. On appeal, this court determined that prior misconduct evidence of the defendant's "sexual interest in the complainant, upon which the defendant acted by sexually abusing the complainant before and during the charged period," was relevant to the defendant's motive and intent. Id., at 525, 179 A.3d 1278. Specifically, this court determined that, "[w]hen instances of a criminal defendant's prior misconduct involve the same [complainant] as the crimes for which the defendant is presently being tried, those acts are especially illuminative of the defendant's motivation and attitude toward the [complainant], and, thus, of his intent as to the incident in question. ... [Therefore] because the [prior] misconduct ... involved the same complainant and was of the same nature as the misconduct charged, it was material to prove the defendant's lustful inclinations toward the complainant." (Citations omitted; internal quotation marks omitted.) Id., at 525–26, 179 A.3d 1278. Similarly, the court in the present case reasonably could have found that the prior misconduct evidence, specifically, the defendant's punching and hitting the victim in the head and mouth, was sufficiently probative of the defendant's intent in the present case because it involved the same victim and was of a similar nature as the charged conduct—repeated stabs to the victim's head and body. See id., at 526, 179 A.3d 1278 ; see also State v. Erhardt , supra, 90 Conn. App. at 860, 879 A.2d 561 ("prior incidents of physical violence by the defendant toward the same victim are relevant and material to indicate that he intended to cause the victim physical injury in the stabbing incident").
Our law does not require that the uncharged misconduct evidence be identical to the charged crime to be probative of the defendant's intent. See State v. Erhardt , supra, 90 Conn. App. at 860, 879 A.2d 561 ("[t]he high degree of similarity required for admissibility on the issue of identity is not required for misconduct evidence to be admissible on the issue of intent" (internal quotation marks omitted)). In the present case, the two incidents, involving the defendant's assault of the victim by hitting and punching her, were sufficiently similar to the charged assault on the victim, which involved the defendant stabbing her. See State v. Epps , 105 Conn. App. 84, 94, 936 A.2d 701 (2007) (upholding admission of evidence of prior misconduct, as relevant to intent, involving defendant's punching and hitting victim where charged incident involved defendant's pouring gasoline on victim and igniting it, resulting in extensive burns), cert. denied, 286 Conn. 903, 943 A.2d 1102 (2008) ; State v. Erhardt , supra, at 858–60, 879 A.2d 561 (upholding admission of evidence of prior misconduct, as relevant to intent, involving defendant's head-butting victim where charged incident involved defendant's cutting of victim's face with knife and holding knife to her throat).
"Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. ... One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable." (Internal quotation marks omitted.) State v. Kantorowski , 144 Conn. App. 477, 487, 72 A.3d 1228, cert. denied, 310 Conn. 924, 77 A.3d 141 (2013). Evidence that the defendant previously had struck the victim made it more likely that he intended to cause her serious physical injury by stabbing her because it was probative of "the defendant's attitude toward the well-being of the victim in the present case." State v. Urbanowski , 163 Conn. App. 377, 405–406, 136 A.3d 236 (2016), aff'd, 327 Conn. 169, 172 A.3d 201 (2017). We therefore conclude that the prior misconduct evidence was relevant and probative and, thus, admissible for the purpose of establishing the defendant's intent to commit assault in the first degree.
Our determination that the evidence was relevant to intent does not contravene the guidance of our Supreme Court's recent decision in State v. Juan J ., 344 Conn. 1, 276 A.3d 935 (2022). In that case, the defendant was convicted of the following general intent crimes: one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (1), and two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), arising out of two charged incidents of sexual abuse involving inappropriate touching. Id., at 5, 276 A.3d 935. At trial, the court admitted uncharged misconduct evidence of prior incidents of sexual abuse by the defendant against the complainant for the purpose of showing the defendant's intent. Id., at 8–9, 276 A.3d 935. Specifically, in addition to testifying regarding the two charged incidents of inappropriate touching, the complainant testified that "the defendant touched her inappropriately ‘[o]ver ten times,’ that the inappropriate touching took place ‘[f]requently’; she agreed with the prosecutor that the touching took place ‘about ten times and [that] it was essentially the same conduct each of those times,’ and she testified that the touching continued after December 24, 2015, until she began living with [her older cousin] in June, 2016." Id., at 9, 276 A.3d 935. The court also admitted into evidence as full exhibits video recordings of two forensic interviews of the complainant, in which she stated, among other things, that the touching occurred "all the time" and "every other day." (Internal quotation marks omitted.) Id., at 10, 276 A.3d 935. She also stated in one of the forensic interviews that "the defendant had performed oral sex on her, put his mouth on her breasts, and digitally penetrated her anus." Id.
State v. Juan J ., supra, 344 Conn. 1, 276 A.3d 935, was decided after oral argument in this appeal. This court ordered both parties to file supplemental briefs addressing the impact, if any, of that decision on the present appeal, and the defendant and the state filed their briefs on July 21 and 22, 2022, respectively. In his supplemental brief, the defendant argues that Juan J . is controlling authority "establishing the inadmissibility of uncharged misconduct evidence to prove general intent in this case." He further argues that Juan J . also supports a conclusion that the uncharged misconduct evidence in the present case was inadmissible to prove specific intent because its prejudicial impact outweighed its probative value. The state argues that "[t]he rule created in Juan J . precluding the admission of prior misconduct evidence on the issue of intent in the prosecution of a general intent crime, where the theory of defense is that the conduct did not occur at all, does not apply factually or legally to the present case. Indeed, to conclude that admission of the prior misconduct evidence in the present case was improper under Juan J . would require this court to extend Juan J . ’s holding, a result that finds no support in our law and runs contrary to the very rationale undergirding the Supreme Court's analysis and outcome in Juan J. ."
The video recordings were admitted into evidence under the hearsay exception for medical diagnosis and treatment set forth in § 8-3 (5) of the Connecticut Code of Evidence. See State v. Juan J ., supra, 344 Conn. at 10, 276 A.3d 935.
On appeal, the defendant in Juan J . argued that the trial court had abused its discretion in admitting the uncharged misconduct evidence, as "intent was not presumptively at issue because he was charged only with general intent crimes, not specific intent crimes," and "intent was not affirmatively at issue because his theory of defense was that the conduct never happened at all, not that the conduct occurred as a result of unintentional actions." Id., at 17, 276 A.3d 935.
Our Supreme Court in Juan J . first recognized "the fine line between using uncharged misconduct to prove intent and using it to show the defendant's bad character or propensity to commit the crime charged." Id., at 20, 276 A.3d 935. After discussing the risk that the evidence will be used improperly, the court stated: "In light of these concerns, the state's introduction of uncharged misconduct is properly limited to cases in which the evidence is needed to prove a fact that the defendant has placed, or conceivably will place, in issue, or a fact that the statutory elements obligate the government to prove." (Internal quotation marks omitted.) Id. The court then set forth the elements the state was required to prove and noted that all the crimes charged were crimes of general intent. See id. The court turned to a discussion of how the burden of proof differs when prosecuting general intent crimes as opposed to specific intent crimes, "in which intent is a legislatively prescribed element that the state must prove beyond a reasonable doubt unless explicitly admitted by the defendant." Id., at 22, 276 A.3d 935. Ultimately, our Supreme Court held that, "in a general intent crime case, in which the theory of defense is that the conduct did not occur at all, rather than a theory of defense in which the conduct occurred unintentionally, uncharged misconduct is irrelevant and inadmissible to prove intent." Id., at 4–5, 276 A.3d 935. Thus, the court's holding is not controlling of the present case, in which, as we already have explicated, the defendant was charged with a specific intent offense, and the state, at trial, bore the burden of proving beyond a reasonable doubt that he acted with the specific intent required for the commission of the charged offense. Rather, the purpose for admitting the uncharged misconduct evidence in the present case—to prove that the defendant had the specific intent to cause serious physical harm—falls squarely within the limited parameters of Juan J ., which permit the introduction of uncharged misconduct in cases "in which the evidence is needed to prove a fact that the defendant has placed, or conceivably will place, in issue, or a fact that the statutory elements obligate the government to prove ." (Emphasis added; internal quotation marks omitted.) Id., at 20, 276 A.3d 935.
The court in Juan J . rejected the state's reliance on cases involving specific intent crimes "to support the proposition that the defendant's intent in a general intent case is always in issue unless directly and explicitly admitted before the trier of fact." (Internal quotation marks omitted.) State v. Juan J ., supra, 344 Conn. at 22 n.9, 276 A.3d 935. The court reiterated that "the state's burden of proving intent in a specific intent crime case differs significantly from its burden in a general intent crime case and unfairly borders on propensity evidence when used in such a way. The state cannot use the logic of specific intent cases to overwhelm a general intent case with uncharged misconduct." Id.
Next, we address whether the evidence was unduly prejudicial. "To determine whether the prejudicial effect of evidence outweighs its probative value, a trial court is required to consider whether the evidence may (1) unduly arouse the jury's emotions, hostility or sympathy, (2) create a side issue that will unduly distract the jury from the main issues, (3) consume an undue amount of time, or (4) unfairly surprise the defendant, who, having no reasonable ground to anticipate the evidence, is ... unprepared to meet it. ... We defer to the ruling of the trial court because of its unique position to [observe] the context in which particular evidentiary issues arise and its preeminent position to weigh the potential benefits and harms accompanying the admission of particular evidence." (Citation omitted; internal quotation marks omitted.) State v. Patrick M ., supra, 344 Conn. at 600, 280 A.3d 461.
"We are mindful that [w]hen the trial court has heard a lengthy offer of proof and arguments of counsel before performing the required balancing test, has specifically found that the evidence was highly probative and material, and that its probative value significantly outweighed the prejudicial effect, and has instructed the jury on the limited use of the evidence in order to safeguard against misuse and to minimize the prejudicial impact ... we have found no abuse of discretion. ... Proper limiting instructions often mitigate the prejudicial impact of evidence of prior misconduct. ... Furthermore, a jury is presumed to have followed a court's limiting instructions, which serves to lessen any prejudice resulting from the admission of such evidence." (Internal quotation marks omitted.) State v. Wilson , 209 Conn. App. 779, 821, 267 A.3d 958 (2022).
The defendant argues that "admissibility for the purpose of proving intent in the present case could only have been based on reasoning that the past incidents of violence by the defendant against [the victim] made it more likely that the defendant wanted to hurt [the victim] on November 16, 2011, and that he therefore committed the charged offense." He argues that, in this context, the evidence was equivalent to prohibited propensity evidence. The state responds that "the trial court properly analyzed the prejudicial effect of admitting the prior misconduct vis-à-vis its probative value and concluded that the prior misconduct did not create undue prejudice." We agree with the state.
In support of his argument, the defendant relies on precedent from various federal circuit courts of appeals that "employ an analysis to assist in determining whether uncharged misconduct evidence ostensibly admitted to prove one of the permissible purposes, such as intent, actually runs afoul of the impermissible purpose of showing propensity." Given the availability of appellate authority in our state, we do not find the federal cases persuasive.
After a hearing on the admissibility of the uncharged misconduct evidence, the trial court carefully considered the state's offer of four incidents of misconduct and the defendant's arguments in opposition and determined that evidence of only two of the incidents was admissible. In explicating its determination as to each incident, the court expressly considered the "creation of side issues, the possible risk of jury confusion, or a risk that the jury's emotions would be so aroused by learning of these prior incidents so as to create undue prejudice." Finally, the court limited the purpose for and manner by which the state could introduce the evidence. Specifically, the court limited the state to introduction of the evidence for the purpose of intent, prohibited the state from questioning the victim "regarding police involvement or court proceedings that may have followed the incident[s]" and required the state to "elicit testimony regarding these two prior incidents in a non-inflammatory manner." See State v. Patterson , 344 Conn. 281, 296, 278 A.3d 1044 (2022) (finding significant "the degree to which the trial court exercised its discretion to limit the extent of the evidence of the prior shootings it admitted").
Moreover, in ruling on the admissibility of the two incidents of uncharged misconduct, the trial court stated that, "when compared to the facts claimed in the charged case, [the uncharged misconduct evidence was] not such as is likely to arouse the jury's emotions." Specifically, the court noted that the misconduct evidence "does not involve the use of a knife" and that it is not "so serious ...." In his principal brief, the defendant acknowledges that the uncharged misconduct evidence did not involve a weapon and was not as serious as the charged crime. The trial court carefully reasoned that the conduct and injuries underlying the uncharged misconduct were substantially less severe than that involved in the charged crime. See State v. Patrick M ., supra, 344 Conn. at 601, 280 A.3d 461 ("[t]his court has repeatedly held that [t]he prejudicial impact of uncharged misconduct evidence is assessed in light of its relative viciousness in comparison with the charged conduct" (internal quotation marks omitted)); State v. Patterson , supra, 344 Conn. at 298, 278 A.3d 1044 (same). As a result of the charged conduct, the victim suffered multiple stab wounds to her head, back, arm, and leg, which required three surgeries and continues to cause her discomfort. Evidence that the defendant previously hit and punched the victim was far less severe than the conduct and injuries involved in the charged offense and, therefore, was unlikely to unduly arouse the emotions of the jurors. See State v. Patrick M ., supra, at 601, 280 A.3d 461 ; State v. Patterson , supra, at 298, 278 A.3d 1044.
Additionally, the introduction of the uncharged misconduct evidence did not consume an undue amount of trial time or create side issues, given that only two of twenty-six pages of the victim's testimony referenced the misconduct, and the prosecutor did not belabor his examination of her. See State v. James G ., 268 Conn. 382, 401, 844 A.2d 810 (2004) (admission of prior misconduct evidence did not result in "trial within a trial" when it consisted of only twenty-five of approximately 500 pages of trial transcript and "state's attorney did not belabor his examination of [the witness]" (internal quotation marks omitted)). Consistent with the court's ruling, the prosecutor's questioning of the victim was limited and not inflammatory. See footnote 6 of this opinion. The victim testified that she and the defendant got into an argument in March, 2008, "[she] asked him to leave and it became verbal and then it became physical," and the defendant hit her. Additionally, the victim testified that, on October 13, 2009, she and the defendant got into an argument concerning her car overheating, and he punched her in the face.
Moreover, the admissibility of the prior misconduct evidence was litigated outside the presence of the jury, and the defendant does not claim that he was unfairly surprised by the evidence. The court carefully considered the state's proffer, of both the misconduct evidence and the conduct underlying the charged offense, and the defendant's objections, and ultimately permitted the state to introduce into evidence only two of four incidents in a "non-inflammatory manner." See State v. Beavers , 290 Conn. 386, 406, 963 A.2d 956 (2009) ("the care with which the [trial] court weighed the evidence and devised measures for reducing its prejudicial effect mitigates against a finding of abuse of discretion" (internal quotation marks omitted)).
Last, it is significant that the court gave a limiting instruction to the jury on three separate occasions: during its preliminary instructions, after the victim testified to the uncharged misconduct evidence, and in its final charge to the jury. By instructing the jury to consider the evidence solely on the issue of intent, the court restricted the parameters of the state's use of the prior misconduct evidence, thereby limiting its prejudicial effect. See footnote 7 of this opinion; see also State v. Kantorowski , supra, 144 Conn. App. at 492, 72 A.3d 1228 (court did not abuse its discretion in admitting uncharged misconduct evidence where "the court heard a detailed offer of proof and arguments of counsel before it performed the required balancing test" and confined state's use of uncharged misconduct evidence to limit prejudice). "Absent evidence to the contrary, we presume that the jury followed the court's limiting instruction." (Internal quotation marks omitted.) State v. Wilson , supra, 209 Conn. App. at 827, 267 A.3d 958.
Considering the record as a whole, we cannot conclude that the trial court abused its discretion in determining that the probative value of the prior misconduct evidence outweighed its prejudicial effect.
"The trial court has some degree of choice in balancing the probative value of uncharged misconduct evidence against its prejudicial effect ... and ... a different trial court might arrive at a different conclusion. We hold only that, on the present record, the trial court's decision to admit the challenged evidence was not arbitrary or unreasonable. See, e.g., State v. Smith , [313 Conn. 325, 336, 96 A.3d 1238 (2014)] ([T]he question is not whether any one of us, had we been sitting as the trial judge, would have exercised our discretion differently. ... Rather, our inquiry is limited to whether the trial court's ruling was arbitrary or unreasonable.)." (Internal quotation marks omitted.) State v. Patrick M ., supra, 344 Conn. at 602 n.13, 280 A.3d 461.
Having determined that the prior uncharged misconduct evidence was properly admitted, we need not address the defendant's argument that the admission of that evidence was harmful. Nevertheless, even if we were to assume, arguendo, that the court improperly admitted the evidence, we agree with the state that the defendant has not satisfied his burden of proving that the admission was harmful.
"When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful." (Internal quotation marks omitted.) State v. Urbanowski , supra, 163 Conn. App. at 407, 136 A.3d 236. "[W]hether [an improper evidentiary ruling that is not constitutional in nature] is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case. ... Most importantly, we must examine the impact of the [improperly admitted] evidence on the trier of fact and the result of the trial. ... [T]he proper standard for determining whether an erroneous evidentiary ruling is harmless should be whether the jury's verdict was substantially swayed by the error. ... Accordingly, a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict." (Internal quotation marks omitted.) Id.
The defendant argues that the admission of the prior misconduct evidence was harmful because "the state's case was not a particularly strong one." Specifically, the defendant points to the "substantial alibi evidence" that he presented at trial in comparison to the victim's "inconsistent" testimony and J's testimony that "his memory of the events ... was poor." Additionally, the defendant contends that "it is highly likely that the evidence that the defendant had a history of violence toward [the victim] influenced the verdict" because it was "precisely the type of evidence that has the tendency to excite jurors’ passions and influence their judgment." The state responds that its evidence was strong in comparison to the defendant's alibi defense and that the trial court's "careful limitations on the introduction of the evidence reduced any harm." We agree with the state.
The state's case was strong. The victim provided a detailed account of the incident and a description of her injuries, which were corroborated by photographs and additional testimony presented by the state. Additionally, the victim responded affirmatively when the prosecutor asked her whether, on the night of the attack, she "got a good look" at her assailant. She further testified that, within minutes after the attack, she told J, "your father stabbed me." J corroborated the victim's identification and testified that he told the police, on the night of the attack, that the victim's assailant was his father. Moreover, S's testimony established that the defendant had left his mother's home thirty minutes prior to the victim's arrival and that he knew that the victim and S were heading home. Finally, when S called the defendant and told him about the attack on the victim, the defendant's phone line immediately went dead.
In contrast, the defendant's alibi defense was not corroborated by the testimony of uninterested third parties but rested on his testimony and that of his mother and sister. The alibi defense also was not based on uncontroverted evidence, for it was explicitly contradicted by the testimony of the investigating police officers. Although the defendant's mother and sister testified that the defendant was asleep in his bed at 6 p.m., a few minutes after the attack, they never mentioned that to the officers who came to their home, despite knowing that the defendant was being questioned about his whereabouts that evening. Moreover, despite the contention of the defendant's mother and sister that they would have provided information to the officers had they been contacted, Officer Olabisi testified that "they were not cooperative, and they wouldn't provide any information." Additionally, the defendant testified that he was cooperative with Officer Olabisi's requests on the night of the attack and that Detective Poma had been "harassing" him over the phone that night. In comparison, the officers testified that the defendant would not provide any form of identification upon request, that he refused to speak with them a second time because he was "agitated," and "that his phone was broken."
Moreover, the court took significant precautions to ensure that the circumstances surrounding admission of the prior misconduct evidence were fair. As previously discussed, the trial court ordered the prosecutor not to elicit evidence of what, if any, law enforcement involvement there was or criminal charges that arose out of the incidents. Defense counsel, however, elicited additional testimony concerning past physical altercations and incorporated that testimony into his closing argument. As noted previously in this opinion, on direct examination, the defendant acknowledged in his testimony that he and the victim had troubles in the past "like any other couples ...." On cross-examination, he stated that he had physical altercations with the victim in the past and that, after the last incident in 2009, they stopped living together. On redirect examination, defense counsel elicited testimony from the defendant that he had pleaded guilty following a past physical altercation with the victim. During closing argument, defense counsel argued: "[The defendant] said that he had a physical altercation with his wife three years before the incident. But certainly nothing even close to the level of violence we see in this case and certainly with no weapon of any type. And to his credit he took responsibility for his actions and pled guilty. If he's guilty, he pleads guilty." Thus, defense counsel himself emphasized the challenged evidence in his closing argument.
The trial court also restricted the victim's testimony about the prior misconduct to exclude potentially inflammatory details and instructed the jury, on multiple occasions, not to consider the prior misconduct as evidence of the defendant's propensity to commit the charged crime. See footnote 7 of this opinion; see also State v. Raynor , supra, 337 Conn. 565 n.23 (noting that "limiting instructions may feature more prominently in a harmless error analysis"). The prosecutor followed the trial court's orders when eliciting testimony from the victim regarding the uncharged misconduct evidence, which was not a prominent part of the state's case. These careful limitations on the introduction of the prior misconduct evidence reduced any harm to the defendant. See State v. Urbanowski , supra, 163 Conn. App. at 408–10, 136 A.3d 236 (lack of prominence of uncharged misconduct evidence in addition to detailed limiting instructions are factors that mitigate against finding of harm). Last, we note that the uncharged misconduct was less severe than the charged conduct and that the prosecutor's reference to the uncharged misconduct in his closing argument was brief. Cf. State v. Juan J ., supra, 344 Conn. at 33, 276 A.3d 935 (admission of uncharged misconduct evidence was harmful, and trial court's limiting instructions could not "cure the potential prejudice to defendant" where uncharged misconduct was "far more severe and frequent" than charged conduct and prosecutor relied on it in closing argument (internal quotation marks omitted)).
In light of the strength of the state's case in comparison to the defendant's alibi defense, and the tailored introduction of the uncharged misconduct evidence, we are left with a fair assurance that the evidence did not substantially affect the verdict. Therefore, even if the court's evidentiary ruling was improper, the defendant has failed to demonstrate that the admission of the uncharged misconduct evidence was harmful.
The judgment is affirmed.
In this opinion SUAREZ, J., concurred.
BISHOP, J., dissenting.
In 1990, noted scholar Professor Edward J. Imwinkelried wrote that the admissibility of uncharged misconduct evidence is the single most important issue in contemporary law. While I am not gifted with such an encyclopedic understanding of the history of the law, it is evident that the issue of whether evidence of prior misconduct should be admitted against a defendant in a criminal trial continues to vex our courts. This difficult case fits Imwinkelried's profile of cases involving this most important issue.
Edward J. Imwinkelried is the Edward L. Barrett, Jr., Professor of Law Emeritus at the University of California, Davis School of Law. Professor Imwinkelried is the author of several treatises and law review articles dealing with evidentiary issues, including, most notably, the topic of the admission of prior misconduct evidence in a criminal trial.
See E. Imwinkelried, "The Use of Evidence of an Accused's Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf the Character Evidence Prohibition," 51 Ohio St. L.J. 575, 576 (1990). In making this assertion, Professor Imwinkelried was referring specifically to rule 404 (b) of the Federal Rules of Evidence concerning the admissibility of prior bad acts, a federal rule with relevant parallels to § 4-5 of the Connecticut Code of Evidence. See id., 575–76. Indeed, a review of Westlaw indicates that, since 2002, the admissibility of evidence of prior misconduct was an issue in 355 cases in the United States Court of Appeals for the Second Circuit and, in the same time period, the parallel issue of the admissibility of prior misconduct under the Connecticut Code of Evidence was a salient issue in 245 cases in this court. Whether those numbers support the accuracy of Imwinkelried's claim, the issue of the admission of prior misconduct evidence in a criminal trial remains a dynamic issue for trial and reviewing courts because the improper admission of prior misconduct evidence puts at risk a defendant's right to the presumption of innocence. As Judge Clark of the United States Court of Appeals for the Fifth Circuit aptly put it: "A concomitant of the presumption of innocence is that a defendant must be tried for what he did, not for who he is. The reason for this rule is that it is likely that the defendant will be seriously prejudiced by the admission of evidence indicating that he has committed other crimes." United States v. Myers , 550 F.2d 1036, 1044 (5th Cir. 1977).
While I take no issue with the majority's recitation of facts from the underlying trial, I note only that many facts relating to the identification of the defendant, Marcello E., as the assailant and facts relating to his behavior on the day of the assault were contested at trial. The jury could, and apparently did, accept the facts as presented by the state.
Prior to trial, the defendant filed a motion for disclosure of uncharged misconduct. On October 31, 2019, the court held a hearing on the admissibility of the prior uncharged misconduct evidence. The defendant asked the court to exclude, at trial, any evidence of the defendant's prior violence toward the victim. Before the trial evidence started, the court indicated that the state would be permitted to introduce the testimony of the victim that, two and three years before the assault at issue, the defendant had punched her in the face. At trial, the victim testified that, in 2008, three years before the assault in question, while she and the defendant were living together, they had an argument during which she "asked [the defendant] to leave and it became verbal and then it became physical." The prosecutor then asked: "And that was an argument where he eventually hit you in that incident. Correct?" The victim responded, "[y]es." The victim also testified to an incident in 2009 when she and the defendant were living together in Hartford. The victim testified that she and the defendant again got into an argument. In her answer to the prosecutor's question of whether he had punched her in the face on that day, the victim said, "[y]es."
Unlike the situation in the present case, in which the court determined the admissibility of the prior misconduct evidence before the start of evidence, other jurisdictions resolve this issue after the close of the state's case-in-chief. To minimize the risk of undue prejudice in the introduction of prior misconduct evidence, the United States Court of Appeals for the Second Circuit has adopted an approach that appears fair to both the government and the defendant. In United States v. Bok , 156 F.3d 157, 166 (2d Cir. 1998) ; the court opined: "Although it is generally the favored practice for the trial court to require the government to wait before putting on its similar act evidence until the defendant has shown that he will contest the issue of intent ... such evidence is admissible during the [g]overnment's case-in-chief if it is apparent that the defendant will dispute that issue." (Citation omitted; internal quotation marks omitted.) Id. ; see also United States v. Inserra , 34 F.3d 83, 90 (2d Cir. 1994) ; United States v. Muhammad , Docket No. 3:12CR00206 (AVC), 2013 WL 6091860, *1 (D. Conn. November 19, 2013).
Most recently, in State v. Juan J ., 344 Conn. 1, 24 n.12, 276 A.3d 935 (2022), our Supreme Court expressed its own concern about the procedures utilized in Connecticut for the introduction of prior misconduct evidence in criminal trials. The court acknowledged that it previously had expressed a willingness to "leave it to the sound discretion of our trial courts to determine the precise procedure to employ in a particular case, consistent with their duty to safeguard against undue prejudice in cases involving uncharged misconduct evidence." (Internal quotation marks omitted.) Id. The court continued: "We note with approval, however, procedures employed by several other state and federal courts when defendants have sought to remove the issue of intent through a particular defense theory, thereby implicating how trial courts should handle the admission of uncharged misconduct evidence. By detailing the procedures undertaken in these jurisdictions, we merely intend to emphasize the caution that courts must take in admitting this evidence and that, often, a court's appropriate exercise of its discretion becomes more informed as the trial plays out." Id. The court then continued by citing examples in both state courts and in the federal courts within the Second Circuit. Id., at 24–25 n.12, 276 A.3d 935. Our Supreme Court's gentle reminder to the trial courts is noteworthy. A trial procedure such as that recommended by the Second Circuit, which does not permit the government to introduce prior misconduct evidence in its case-in-chief unless it knows that the issue for which such evidence is offered is actually at issue, would alleviate the risk of undue prejudice that lingers in our present practice of permitting the state to introduce such evidence in its case-in-chief whether or not the defendant actually contests the particular issue.
The majority has concluded that this evidence of the defendant's prior misconduct involving the victim was admissible because it was relevant to prove intent, more probative than prejudicial, and that the defendant was not harmed by its admission. Respectfully, I disagree. I believe, instead, that the evidence of the defendant's prior misconduct was not relevant to prove the intent of the assailant to attack and stab the victim multiple times with a knife or the assailant's intent to thereby cause her serious physical injury. Rather, I believe, the only purpose and likely effect of this evidence was to improperly demonstrate to the jury that the defendant had the propensity to commit acts of domestic violence against the victim. Additionally, and contrary to the
Although I believe that the evidence of the defendant's prior assaults on the victim should not have been admitted as proof of intent because the only purpose of this evidence was to prove the defendant's propensity toward violence against the victim, there may, in fact, be merit in allowing such evidence to prove propensity in a domestic violence case, as some writers have urged. See, e.g., A. Kovach, note, "Prosecutorial Use of Other Acts of Domestic Violence for Propensity Purposes: A Brief Look at its Past, Present, and Future," 2003 Ill. L. Rev. 1115 (2003); D. Ogden, comment, "Prosecuting Domestic Violence Crimes: Effectively Using Rule 404 (b) to Hold Batterers Accountable for Repeated Abuse," 34 Gonz. L. Rev. 361 (1998) ; P. Vartabedian, comment, "The Need to Hold Batterers Accountable: Admitting Prior Acts of Abuse in Cases of Domestic Violence," 47 Santa Clara L. Rev. 157 (2007). But see E. Collins, "The Evidentiary Rules of Engagement in the War against Domestic Violence," 90 N.Y.U. L. Rev. 397, 415–22 (2015).
In Connecticut, our Supreme Court already has recognized what has been termed battered women's syndrome. In State v. Vega , 259 Conn. 374, 788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002), our Supreme Court concluded "that evidence of the defendant's prior incidences of violence toward the victim was relevant to the prosecution's case in that it demonstrated the manifestation of the battered women's syndrome as it affected the victim" and, "therefore, that the evidence of the defendant's prior misconduct substantiates the theory that there existed a system of criminal activity on the part of the defendant." Id., at 398, 788 A.2d 1221 ; see also State v. Borrelli , 227 Conn. 153, 172–73, 629 A.2d 1105 (1993).
Thus, it appears that we already have come part of the way toward allowing prior misconduct in domestic violence cases as propensity evidence without explicitly acknowledging we are doing so. For example, in State v. Kantorowski , 144 Conn. App. 477, 72 A.3d 1228, cert. denied, 310 Conn. 924, 77 A.3d 141 (2013), this court opined: "When instances of a criminal defendant's prior misconduct involve the same victim as the crimes for which the defendant presently is being tried, those acts are especially illuminative of the defendant's motivation and attitude toward that victim, and, thus, of his intent as to the incident in question." (Internal quotation marks omitted.) Id., at 488, 72 A.3d 1228 ; accord State v. Morlo M ., 206 Conn. App. 660, 690–91, 261 A.3d 68, cert. denied, 339 Conn. 910, 261 A.3d 745 (2021). These cases reflect an understanding that, in matters of domestic violence, past violent behavior by a defendant against the victim is a reasonable predictor of future similar bad acts. Perhaps it may be time for us to explicitly acknowledge this fact in order not only to recognize that domestic violence is often a repeated offense characterized by escalating levels of coercive control, often starting out as verbal and emotional control and resulting, over time, in incidents of serious physical violence, as already acknowledged by our Supreme Court in State v. Vega , supra, 259 Conn. at 396–98, 788 A.2d 1221. Finally, it should be noted that the phrase "battered women's syndrome" has been criticized for its focus on the victim and not on the behavior of the assailant; the suggestion has been made that, in discussing this phenomenon of escalating bad behavior in a domestic relationship, the term "coercive control" is more apt. See E. Stark, "Re-Presenting Woman Battering: From Battered Woman Syndrome to Coercive Control," 58 Alb. L. Rev. 973, 975–76 (1995).
In addition to scholarly writings, the issue of whether in cases of domestic violence, past acts of violence by a defendant against the same victim should be admitted for propensity purposes has been the subject of recent rule making and legislation in other states. In Alaska, the legislature amended its Code of Evidence to provide, inter alia: "In a prosecution for a crime involving domestic violence or of interfering with a report of a crime involving domestic violence, evidence of other crimes involving domestic violence by the defendant against the same or another person or of interfering with a report of a crime involving domestic violence is admissible. ..." Alaska R. Evid. 404 (b) (4).
California took a similar tack when its legislature enacted a provision within the state's Evidence Code in 1996 to permit the admission of prior acts of domestic violence in certain situations as propensity evidence. See generally People v. Merchant , 40 Cal. App. 5th 1179, 1192, 253 Cal. Rptr. 3d 766 (2019) (discussing § 1109 of Evidence Code, which "reflects the [l]egislature's determination that in domestic violence cases, similar prior offenses are uniquely probative of a defendant's guilt on a later occasion"), review denied, California Supreme Court, Docket No. S259179 (January 22, 2020).
Akin to California's approach, Illinois amended its relevant statute, although not as broadly, to permit evidence of a defendant's prior conviction for domestic battery against the same victim. In part, the Illinois statute provides: "Evidence of a prior conviction of a defendant for domestic battery, aggravated battery committed against a family or household member ... stalking, aggravated stalking, or violation of an order of protection is admissible in a later criminal prosecution for any of these types of offenses when the victim is the same person who was the victim of the previous offense that resulted in conviction of the defendant." 725 Ill. Comp. Stat. Ann. 5/ 115-20 (a) (West 2008). Interpreting that statute, the Illinois Supreme Court in People v. Chapman , 358 Ill.Dec. 640, 965 N.E.2d 1119, 1124 (2012), held that the statute had partially abrogated the common-law rule against the admission of propensity evidence. See also People v. Dabbs , 239 Ill. 2d 277, 284–85, 346 Ill.Dec. 484, 940 N.E.2d 1088 (2010), cert. denied, 563 U.S. 964, 131 S. Ct. 2158, 179 L. Ed. 2d 942 (2011).
In Michigan, its legislative body amended that state's Code of Evidence in 2019 to permit the admission of evidence of past acts of domestic violence for any purpose for which the offer is relevant, thus removing its ban against propensity evidence in the domestic violence context. See Mich. Comp. Laws Serv. § 768.27b (1) (LexisNexis Cum. Supp. 2021). Subsequent to the passage of this amendment, the Michigan Appeals Court interpreted the statute as permitting evidence of past acts of domestic violence as a demonstration of the defendant's propensity to commit acts of violence against women who were or had been romantically involved with him. See People v. Farmer , Docket No. 345496, 2020 WL 3120259, *10 (Mich. App. June 11, 2020).
Although Iowa has not adopted a rule expressly permitting propensity evidence in cases involving domestic violence, the Iowa Court of Appeals tacitly acknowledged that such evidence may be admitted to prove propensity in domestic violence cases because, in domestic violence, "each incident is ‘connected to the others.’ " State v. Syperda , Docket No. 18-1471, 2019 WL 6893791, *11 (Iowa App. December 18, 2019) (decision without published opinion, 941 N.W.2d 596 ). In reaching this conclusion, the court in Syperda appears to have carved out a common-law exception to the ban against propensity evidence to accommodate the reality that domestic violence cases are often repeated, interconnected offenses. See id.
Finally, Colorado amended its criminal code in 2021 to permit evidence of prior misconduct in certain domestic violence criminal trials. In its introduction to this amendment to its code, the Colorado General Assembly opined: "The general assembly hereby finds that domestic violence is frequently cyclical in nature, involves patterns of abuse and can consist of harm with escalating levels of seriousness. The general assembly therefore declares that evidence of similar transactions can be helpful and is necessary in some situations in prosecuting crimes involving domestic violence." Colo. Rev. Stat. § 18-6-801.5 (1) (LexisNexis 2021).
Although these developments in other jurisdictions do not represent an avalanche of change, they are an acknowledgment that the admission of prior misconduct evidence in domestic violence cases is different because these cases often involve repeated coercive behavior that often results in physical injury. I believe, respectfully, that these developments may be worthy of study in Connecticut.
conclusion reached by the majority, I believe this evidence was harmful to the defense. For these reasons, I respectfully dissent.
As the majority has accurately reported, § 4-5 of the Connecticut Code of Evidence generally prohibits the admission of evidence of prior misconduct to prove the bad character, propensity, or criminal tendency of the defendant, with certain exceptions. One of those exceptions, the one relied on in the case at hand, is that such evidence may be admissible to prove the defendant's intent to commit the crime with which he is charged. But such evidence must be both relevant and material to an issue in the case. In the case at hand, I believe it was neither.
Section 4-1 of the Connecticut Code of Evidence defines relevant evidence as "evidence having any tendency 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 the evidence." It is significant that proof of relevancy requires, as well, that the proffered evidence be material and, "[t]he materiality of evidence turns upon what is at issue in the case, which generally will be determined by the pleadings and the applicable substantive law." Conn. Code Evid. § 4-1, commentary.
At trial in this matter, the prior misconduct of the defendant was purportedly admitted for the sole purpose of proving his specific intent to commit the crime of assault in the first degree in violation of General Statutes § 53a-59 (a), which provides in relevant part that a person is guilty of assault in the first degree when, "(1) [w]ith intent to cause serious physical injury to another person, he causes such injury to such person ... by means of a deadly weapon or dangerous instrument ...." Thus, the state was required to prove that the assailant assaulted the victim with the specific intent to cause serious physical injuries.
At the outset, I note that our Supreme Court in the venerable decision of State v. Gilligan , 92 Conn. 526, 103 A. 649 (1918), held that evidence of similar but unconnected crimes must be excluded because it violates the rules of policy that forbids the state initially to attack the character of the accused and that bad character may not be proved by particular acts. I believe, respectfully, that the overarching language of Gilligan sets the table for the discussion of the admission of prior misconduct evidence in a criminal trial.
At oral argument before this court, the state contended that State v. Gilligan , supra, 92 Conn. 526, 103 A. 649, is inapplicable to the case at hand because, in State v. Beavers , 290 Conn. 386, 405 n.20, 406, 963 A.2d 956 (2009), Justice Norcott, in dicta, suggested that Gilligan should be confined to its facts. Respectfully, given Gilligan ’s history as a recitation of foundational law regarding the use of prior misconduct evidence in a criminal trial, I believe the dicta of Beavers should be closely scrutinized before discarding Gilligan ’s principal tenet that evidence of a defendant's guilt of a prior crime is inadmissible to prove that a defendant is guilty of the crime charged against him. Citing Gilligan , our Supreme Court has stated: "The reason for the rule is that in the setting of a jury trial the danger of prejudice from evidence that the accused is a person of bad character and thus more likely to have committed the crime charged is deemed to outweigh the probative value of such evidence and may have no direct tendency to prove the crime charged." State v. Holliday , 159 Conn. 169, 172, 268 A.2d 368 (1970) ; see also State v. Conroy , 194 Conn. 623, 626, 484 A.2d 448 (1984) ; State v. Esposito , 192 Conn. 166, 169, 471 A.2d 949 (1984) ; State v. Onofrio , 179 Conn. 23, 28, 425 A.2d 560 (1979) ; State v. Jonas , 169 Conn. 566, 572–73, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S. Ct. 1132, 47 L. Ed. 2d 331 (1976) ; State v. Simborski , 120 Conn. 624, 630–31, 182 A. 221 (1936).
In the matter at hand, the prior misconduct evidence should have been excluded as irrelevant and immaterial to the issue of intent for separate but related reasons.
First, the evidence of the defendant's prior misconduct was irrelevant and immaterial to prove the assailant's intent to cause the victim serious physical harm because such an intent was evident from the nature of the attack itself and was not contested at trial. Additionally, this evidence was irrelevant and immaterial because of the important dissimilarity between the prior incidents and the assault for which the defendant was on trial.
There was no dispute during the trial of this matter as to the issue of intent. The defense made no suggestion that the assailant struck the victim accidently or by mistake or that the assailant did not intend to cause the victim serious physical injury. In short, the state's evidence that the assailant attacked the victim with a knife and stabbed her multiple times was more than adequate evidence of the intent the state was required to prove to secure a conviction for the crime of assault in the first degree. Previously, this court has stated: "Intent is generally proven by circumstantial evidence because direct evidence of the accused's state of mind is rarely available. ... Therefore, intent is often inferred from conduct ... and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. ... It is axiomatic that a factfinder may infer an intent to cause serious physical injury from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident." (Internal quotation marks omitted.) State v. Vasquez , 68 Conn. App. 194, 207, 792 A.2d 856 (2002) ; accord State v. Madagoski , 59 Conn. App. 394, 399–400, 757 A.2d 47 (2000), cert. denied, 255 Conn. 924, 767 A.2d 100 (2001). Additionally, it is axiomatic that, in assessing the intent of an assailant, a jury may infer that a defendant intends the natural consequences of his voluntary act. See, e.g., State v. Pagan , 158 Conn. App. 620, 628, 119 A.3d 1259, cert. denied, 319 Conn. 909, 123 A.3d 438 (2015). The court's charge to the jury in this matter was in accord with these basic tenets.
Also, the prosecutor argued to the jury in closing argument that the significant injuries to the victim were sufficient to establish the defendant's specific intent to cause serious physical injury to the victim.
In sum, on this point, I believe that the admission of the prior assaults against the victim by the defendant were not relevant to prove that the defendant had the specific intent to stab her and cause her serious physical injury, as required by the applicable statute, because the act itself was ample proof of the assailant's intent in this regard.
Recently, our Supreme Court revisited the question of whether an element must be genuinely at issue in order for evidence of prior misconduct to be admissible at trial. See State v. Juan J ., 344 Conn. 1, 4–5, 276 A.3d 935 (2022). In Juan J ., the court concluded that, "in a general intent crime case, in which the theory of defense is that the conduct did not occur at all, rather than a theory of defense in which the conduct occurred unintentionally, uncharged misconduct is irrelevant and inadmissible to prove intent." Id. The court in Juan J . "noted the fine line between using uncharged misconduct to prove intent and using it to show the defendant's bad character or propensity to commit the crime charged. ... The risk that the evidence will be used improperly is particularly high when the uncharged misconduct is ‘extrinsic,’ meaning, separate and distinct from the crime charged, because the uncharged misconduct ‘is practically indistinguishable from prohibited propensity evidence. Uncharged misconduct may logically be used to rebut a claim of mistake or no knowledge ... but to use misconduct at one time to prove an intent to do the same thing at another time borders on the forbidden theme of "once a thief always a thief." ... E. Prescott, Tait's Handbook of Connecticut Evidence (6th Ed. 2019) § 4.15.6, p. 176; see also State v. Conroy , 194 Conn. 623, 626, 484 A.2d 448 (1984) (‘[E]vidence of similar but unconnected crimes is generally not admissible to prove a criminal defendant's guilt. Such evidence can show no more than the defendant's bad character or an abstract disposition to commit a crime; it provides no proof of guilt of the specific offense in question.’)." (Citation omitted.) State v. Juan J ., supra, at 20, 276 A.3d 935. In light of these concerns, the state's introduction of uncharged misconduct is properly limited to cases in which the evidence is needed to "prove a fact that the defendant has placed, or conceivably will place, in issue, or a fact that the statutory elements obligate the government to prove." (Internal quotation marks omitted.) Id.
While this appeal was pending, our Supreme Court issued its decision in State v. Juan J ., supra, 344 Conn. 1, 276 A.3d 935, and, consequently, this court ordered counsel in the present case to submit supplemental briefs on the impact of Juan J . on the issues in this appeal. In response, the state takes the position, and the majority concludes, that Juan J . is inapposite because Juan J . involved a general intent crime and not one involving specific intent.
While I acknowledge that Juan J . involved a crime of general intent, I believe the court's reasoning in Juan J . is equally applicable to the case at hand because the defendant, in this instance, did not dispute any aspects of the crime itself, including the assailant's specific intent; instead, he presented an alibi defense that he was not present while the attack took place. In my view, respectfully, the nature of the defense in the case at hand makes irrelevant not only the issue of the attacker's intent to stab the victim but his intent to cause her serious physical harm. Accordingly, and contrary to the majority's assertion, I believe the reasoning of Juan J . is directly applicable to the underlying facts at hand and buttresses the defendant's claim that evidence of his prior misconduct incorrectly was admitted into evidence. I am aware, of course, of earlier decisional law in Connecticut that prior instances of misconduct may be admitted to prove intent even though intent may not be a contested issue, if specific intent must be proven by the state and if the prior acts are sufficiently similar to the crime at issue.
In issuing its ruling permitting the state to offer the uncharged misconduct evidence, the trial court specifically relied on State v. Anthony L ., 179 Conn. App. 512, 525, 179 A.3d 1278, cert. denied, 328 Conn. 918, 181 A.3d 91 (2018), and State v. Morales , 164 Conn. App. 143, 180, 136 A.3d 278, cert. denied, 321 Conn. 916, 136 A.3d 1275 (2016), in support of its decision to permit the state to adduce evidence of the defendant's past acts of violence against the victim. Although I agree that the cases cited by the trial court appear facially to support the court's reasoning, there are also significant legal and factual differences between those cases and the facts at hand in this case. In Anthony L ., the defendant was convicted of sexual assault in the first degree, risk of injury to a child, and sexual assault in the third degree. There, the state was permitted to introduce evidence that the defendant had sexually assaulted the same victim on dates earlier than the time frame charged in order to prove his intent. State v. Anthony L ., supra, at 523, 179 A.3d 1278. This court determined on appeal that the admission of the prior misconduct evidence was not an abuse of discretion. Id., at 527, 179 A.3d 1278. In part, this court's reasoning on review was that the defendant's prior uncharged sexual misconduct "was of the same nature as the misconduct charged"; id., at 526, 179 A.3d 1278 ; and thereby demonstrated the defendant's sexual interest in the minor victim and, accordingly, was sufficiently material and relevant on the issue of the defendant's intent. Id., at 525–26, 179 A.3d 1278. But there is no such similarity in the present case between the prior acts of misconduct and the facts of the case at hand.
I acknowledge that I am troubled by our jurisprudence that permits the state to offer evidence on an issue about which there is no dispute, but our Supreme Court's decision in State v. Juan J ., supra, 344 Conn. at 25 n.12, 276 A.3d 935, regarding the proper procedure for determining whether prior misconduct evidence should be admitted may be a signal that we are moving away from that point of view. Learned treatises and other jurisdictions have taken a different tack than our past cases have on this question. In his treatise on evidence, Imwinkelried advanced the premise that, for prior misconduct evidence to be admissible to prove intent, the question of intent must be in genuine dispute. See E. Imwinkelried, Uncharged Misconduct Evidence (Rev. Ed. 1998). In making this assertion, Imwinkelried acknowledged that jurisdictions in the United States are not in agreement on this point. Id. ; see also E. Imwinkelried, "The Use of Evidence of an Accused's Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf the Character Evidence Prohibition," 51 Ohio St. L.J. 575, 593–96 (1990).
In Morales , also cited by the trial court, the defendant was convicted of strangulation in the second degree, unlawful restraint in the first degree, threatening in the second degree, and assault in the third degree. The trial court in Morales permitted the state to elicit evidence of a prior threat by the defendant to the victim as evidence of his specific intent as to the charge of threatening in the second degree even though the defendant, on appeal, asserted that there was no genuine issue of intent at trial. State v. Morales , supra, 164 Conn. App. at 177, 136 A.3d 278. But, unlike the incidents of prior misconduct at issue in the present case, the incidents in Morales were strikingly similar. The victim testified that in the prior incident the defendant had held a knife to her while threatening her—behavior nearly identical to the conduct for which the defendant was charged. Id., at 173, 136 A.3d 278. On appeal, the defendant claimed that the prior misconduct evidence should not have been admitted because there was no genuine issue regarding intent. He argued that evidence of the prior threat was immaterial because he had implicitly conceded the issue of intent by denying that he had engaged in the behavior. Id., at 177–78, 136 A.3d 278. In rejecting the defendant's argument, the court opined: "[I]ntent, or any other essential element of a crime, is always at issue unless directly and explicitly admitted before the trier of fact. ... [The] prosecution's burden to prove every element of [a] crime is not relieved by a defendant's tactical decision not to contest an essential element of the offense ...." (Citations omitted; internal quotation marks omitted.) Id.
I believe that, unlike the prior misconduct evidence in Anthony L . and Morales , the evidence of the defendant's prior attacks on the victim was not material because of the dissimilarity between these prior incidents and the assault for which the defendant was on trial. Neither prior incident demonstrated the defendant's intent to assault the victim with a knife or the intent to cause her serious physical injury. It is also noteworthy that, in both prior acts involving the defendant and the victim, the violence ensued from a heated argument between them and did not involve the use of any extrinsic instrumentality, but, in the case at hand, the trial evidence indicates that the attack on the victim was sudden and did not follow any heated dispute between the parties. Indeed, the victim testified that, since their separation approximately two years before the incident in question, she and the defendant had nothing to do with each other and that, when she went to the home of the defendant's mother to pick up their daughter, S, after school, she avoided contact with the defendant, who also lived there. Accordingly, there was no evidence of any interactions, let alone arguments or heated exchanges between the victim and the defendant for a period of two years leading up to the assault for which the defendant was tried. But similarity between the prior misconduct and the crime charged at trial must be sufficient to make evidence of the prior misconduct probative of the defendant's intent. In State v. Chyung , 325 Conn. 236, 263–64, 157 A.3d 628 (2017), our Supreme Court approved of the admission of evidence of prior misconduct because there were "substantial similarities" between the prior misconduct and the charged crimes, including the use of a firearm in both instances.
In sum, the similarity between the prior incidents and the assault at issue must bear sufficient commonalities to be probative of the defendant's intent to commit the crime in question, a requirement absent from the state's proof in the matter at hand, as the prior acts of misconduct bore an insufficient nexus to the assault under review to make them material at trial. Although the prior acts involved the defendant's striking the victim, the differences in manner and severity and the circumstances surrounding each act are sufficiently dissimilar to negate the probative value of the evidence of the past acts.
Additionally, as to the issue of similarity, and in regard to the element of specific intent required to prove the crime of assault in the first degree, there is no evidence that, in the prior incidents, the defendant utilized a weapon or that he intended or did, in fact, cause serious physical injury to the victim. Although the prior misconduct by the defendant, as testified to by the victim, was the result of the heat of the moment and spontaneous, there can be no question that the assault on the victim in the present case was deliberate and vicious. Those important dissimilarities belie a sufficient connection to make them probative of a specific intent on the part of the defendant to cause the victim serious physical injury by the use of a dangerous instrument.
Additionally, the prior misconduct was, in the language of one legal writer, extrinsic rather than intrinsic to the brutal attack on the victim with a knife. In his treatise on evidence, Judge Prescott discusses the distinction between intrinsic and extrinsic conduct as it relates to the admissibility of prior misconduct to prove intent—the latter defined as separate and distinct from the crime charged. See E. Prescott, supra, § 4.15.6, p. 176. Judge Prescott comments: "If ... the prior uncharged misconduct is ‘extrinsic,’ namely, separate and distinct from the crime charged, the use of uncharged misconduct to prove intent is problematic because it is practically indistinguishable from prohibited propensity evidence." Id.
In my view, the evidence of the defendant's prior assaults on the victim, both spontaneous and occurring while the defendant was inflamed by some argument with the victim, are significantly different from the facts of the present assault to make evidence of the prior acts immaterial on the issue of intent.
Having determined that the evidence of the defendant's past assaults on the victim were not relevant to prove his intent to brutally attack her with a knife, causing multiple stab wounds, I, nevertheless, briefly discuss whether the admission of the prior misconduct evidence was more prejudicial than probative. I believe it was. "In determining whether the prejudicial effect of otherwise relevant evidence outweighs its probative value, we consider whether: (1) ... the facts offered may unduly arouse the [jurors’] emotions, hostility or sympathy, (2) ... the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) ... the evidence offered and the counterproof will consume an undue amount of time, and (4) ... the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it." (Internal quotation marks omitted.) State v. Patterson , 344 Conn. 281, 296, 278 A.3d 1044 (2022). In reaching my conclusion that the evidence of the defendant's prior misconduct should not have been admitted into evidence, I am aware of the great deference that must be given to the trial court when it engages in this balancing analysis. Nevertheless, the trial court's discretion in this regard is not boundless. As noted, I do not believe that the prior misconduct evidence was probative of the defendant's intent to assault the victim with the intent to cause her serious physical injury. My reasons have already been stated. Assuming, arguendo, that this evidence was minimally probative, I believe that it was substantially more prejudicial than probative.
As already noted herein, the court made the decision to admit this evidence before the evidence portion of the trial had commenced. It is difficult to understand how a judge, even the most diligent, can effectively balance the probative value of this evidence against its prejudicial effect without first hearing the state's case-in-chief. For this reason, our Supreme Court's admonition in State v. Juan J ., supra, 344 Conn. at 25 n.12, 276 A.3d 935, and the practice of the United States Court of Appeals for the Second Circuit, as outlined in footnote 3 of this dissenting opinion, appear particularly appropriate because deferring a ruling until the finish of the state's case in order to determine which issues are actually in play enhances the likelihood that any judicial ruling on this matter will be fair both to the state and to the defendant.
As to the prejudicial impact of the prior misconduct evidence, I note that, at the outset of the victim's testimony, the prosecutor brought to the jury's attention that the defendant had twice before assaulted the victim. It is difficult not to believe that this very damaging evidence influenced the jury's view of the ensuing evidence, including the veracity of the defendant's alibi witnesses. In short, I believe that the likelihood that this damaging evidence skewed the jury's view of the defendant is substantial. Although it cannot be said that the prior misconduct was gruesome as compared with the assault in question, I believe it may be particularly difficult for a jury to hear that a defendant has twice before assaulted a victim but now is innocent of yet another assault. In short, by any reckoning, I believe that the prejudicial impact of this evidence substantially outweighed any remote relevance it may have had.
Also, the court's provision of limiting instructions regarding the defendant's prior acts of misconduct may not entirely cure any prejudice emanating from the admission of those facts. See, e.g., State v. Juan J ., supra, 344 Conn. at 33, 276 A.3d 935 (holding that limiting "instructions to the jury on the proper use of this evidence [only for purposes of intent] could not cure the potential prejudice to the defendant" because "[t]he uncharged misconduct was admitted not to prove propensity but to prove the irrelevant issue of intent" (internal quotation marks omitted)).
Having determined that the court incorrectly admitted evidence of the two prior occasions of the defendant's misconduct, I turn next to the question of whether the admission of this evidence was harmful. Under the particular circumstances of this case, I am persuaded that it was.
At the outset, it is undisputed that it is the defendant's burden to prove that an evidentiary error was harmful, but, unlike the state's burden of proving that an error of constitutional magnitude is harmless beyond a reasonable doubt, the defendant's burden is less strict. In State v. Fernando V ., 331 Conn. 201, 215, 202 A.3d 350 (2019), our Supreme Court recently articulated the well established law governing harmless error review of nonconstitutional evidentiary claims. As enunciated in Fernando V ., "a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict," and "cases that present the jury with a credibility contest characterized by equivocal evidence ... [are] far more prone to harmful error." (Internal quotation marks omitted.) Id. Additionally, when the evidentiary error involves the improper admission of uncharged misconduct evidence, "the most relevant factors to be considered are the strength of the state's case and the impact of the improperly admitted evidence on the trier of fact." (Internal quotation marks omitted.) State v. Martin V ., 102 Conn. App. 381, 388, 926 A.2d 49, cert. denied, 284 Conn. 911, 931 A.2d 933 (2007).
On the basis of my careful review of the record, I believe the scales heavily tip in favor of the defendant's argument on the question of harm because, without the evidence of the defendant's prior misconduct, the evidence of the defendant's guilt was in equipoise—that is, the state's case, shorn of the evidence of prior misconduct, likely would not have led to a determination by the jury that the defendant was guilty beyond a reasonable doubt. In short, I do not believe a reasonable review of the evidence provides a basis for a fair assurance that the evidence of prior misconduct did not affect the verdict.
Unlike my colleagues in the majority and the argument of the state, I do not believe that the state's case, without the prior misconduct evidence, was strong. The evidence at trial was a credibility contest in which the only real issue was the identity of the assailant. Indeed, as the prosecutor acknowledged in his closing rebuttal argument, the issue in this case was the identification of the assailant. This was, in fact, the only issue in the case. Identification of the assailant was the only issue argued by the prosecutor after he had indicated that the jury could reasonably infer specific intent by reference to the circumstances of the crime itself and after he had reminded the jury of the defendant's prior misconduct against the victim.
Additionally, although I understand that circumstantial evidence may be a sufficient basis for the conviction of a defendant, it is noteworthy that, other than the victim's identification of the defendant, there was no direct evidence of the defendant's involvement in this assault. There was no forensic evidence, no inculpatory statements, no weapon found that could be tied to the defendant, no shoe prints, or any other similar evidence. Additionally, as to circumstantial evidence, there was no evidence that the defendant and the victim had any contact for two years prior to the incident in question and, accordingly, no argument between the victim and the defendant, which, arguably, might have shed some light on the defendant's identity as the assailant. In sum, the issue of identity, the only issue at trial, was clouded because there was no evidence of any dispute between the victim and the defendant or other participants that might have given rise to this vicious attack—unlike the defendant's earlier assaults on the victim, both of which arose following heated arguments between the defendant and the victim.
Although there was identification evidence pointing to the defendant, this evidence was conflicting and also was rebutted by the defendant's alibi defense. The state's first witness at trial was Sergeant Chris Hunyadi of the Hartford Police Department. He stated that, when this attack occurred, he had been a patrol officer and, in that capacity, arrived at the scene at M Street in Hartford where he saw the victim lying in a pool of blood in "the back stairwell or the back entryway of the home." He indicated that he also went to the hospital where he had the opportunity to speak with the victim. Hunyadi testified that, during this conversation, the victim told him that she had not seen her attacker and that the person who attacked her was unknown to her. On redirect examination by the prosecutor, Hunyadi testified that he had spoken with the victim after she had been administered a large amount of pain medication and after medical personal had stabilized her.
Evidence from the trial reveals that, at the time of the attack, just before 6 p.m. on November 16, 2011, it was dark and the rain was heavy. Additionally, a police photograph of the backdoor of the victim's home in the area in which she was attacked shows that the door was not illuminated by any light on the door on the outside of the house. See state's exhibit 3.
In its attempt to diminish the importance of this colloquy, the state, and the majority, in turn, point to the medication administered to the victim when she was hospitalized after the attack as a reason for her inability to identify the defendant as her attacker at that time. The jury, however, was provided no information concerning the particular medications administered to the victim or the potential impact they might have had on her ability to recollect and to articulate the events as she experienced them. Thus, it is not reasonable to infer the likely affect any medications may have had on the victim's ability to recall and, specifically, to identify the person who had assaulted her. From this record, we are left only with the evidence that the victim told Hunyadi at the hospital shortly after the assault that she did not see her attacker and did not know who had attacked her.
Hunyadi's testimony that the victim was unable to identify her attacker and that the victim said she had not seen him presented a contrast to the jury when the victim herself later testified that she did recognize the defendant as her attacker at the scene and told her son, J, shortly after the attack that it had been the defendant who attacked her. The jury, then, was left with conflicting stories regarding the victim's identification or non-identification of the defendant as her assailant.
Furthermore, as noted previously in this dissenting opinion, before the victim was asked any questions at trial about the assault at issue, the prosecutor asked her about being assaulted by the defendant on two previous occasions. She testified that, in 2008, she and the defendant had gotten into an argument that turned physical, during which he hit her. The prosecutor then moved to the second incident, which occurred in 2009. The victim testified that she and the defendant had gotten into another argument, during which the defendant punched her in the face. Another pillar of the state's evidence was the victim's positive identification of the defendant from the photographic array prepared by the Hartford Police Department. But the array process was significantly flawed because it included a photograph of the defendant, a man with whom the victim had lived for several years and with whom she had borne children. Such an array can hardly be seen as a random selection of potential suspects.
The court immediately thereafter gave an appropriate limiting instruction to the jury. Although there was no objection to the propriety of the court's limiting instruction, I note that, in reviewing it, the court's statement to the jury that it could consider the defendant's past acts of misconduct as evidence of his intent to assault the victim in this matter could easily have been taken by the jury as a suggestion of identification, a result surely not intended by the court but emblematic of the difficulty in admitting prior misconduct evidence on the issue of intent when the only issue in the matter is, in fact, the identity of the assailant.
Also, although we are instructed that we must presume that a jury will abide by the proscriptions recited in a limiting instruction, our naivety cannot be boundless. See, e.g., Jackson v. Denno , 378 U.S. 368, 388 n.15, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964) (reciting authorities debunking notion that juries can overlook evidence they should not have heard); see also Bruton v. United States , 391 U.S. 123, 129 n.4, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) (reciting authorities that have "refused to consider an instruction as inevitably sufficient to avoid the setting aside of convictions"); A. Diaz, comment, "Restoring the Presumption of Innocence: Protecting a Defendant's Right to a Fair Trial by Closing the Door on 404 (b) Evidence," 51 St. Mary's L.J. 1001, 1015–16 (2020) ("psychological research indicates that juries are unable to ignore inadmissible evidence").
To be sure, the defendant makes no claim on appeal that evidence of the photographic array was improperly admitted. Nevertheless, in assessing the strength of the state's case, it is reasonable to closely consider the persuasiveness of the array because it included a photograph of the man with whom the victim had lived for several years. The value of this array to a jury not already swayed by the evidence of the defendant's prior assaults on the victim is dubious.
The victim and the defendant's son, J, testified, as well. He was eleven years old at the time of the incident. At trial, he was a difficult witness. At one point, he testified that the victim probably had said that the defendant had attacked her, but, he stated, he did not remember. Further in his testimony, he acknowledged that he had given the police a statement in which he had said that the victim had told him that the defendant had attacked her. He stated, as well, that, when he came upon the scene by the entryway, he saw a man moving away fast whose features were like the defendant's features.
At one point, under questioning by the prosecutor, J blurted out, "I don't want to answer no more questions. I'm done. I don't want to be involved in this." When the court admonished him that he was to answer the questions that were being posed to him, he responded: "Crazy." It is unlikely that this exchange would have enhanced the witness’ credibility before a jury untainted by the prior misconduct evidence.
Another witness called by the state, Louis Poma, a detective with the Hartford Police Department at the time of the charged crime, testified that he had assembled a photographic array that included a photograph of the defendant, and, when shown to the victim, she had identified the defendant as her assailant.
Against this identification testimony, the defendant presented an alibi that he was in bed at the home of his mother, O, at B Street in Hartford while the attack on the victim took place. Supporting him in this alibi defense were O and his sister, D.
O testified that the defendant lived in a bedroom on the second floor of her home. She stated that, on the day in question, the defendant had arrived at her home at approximately 4:45 p.m. with S and that, shortly after their arrival, the defendant went upstairs to his bedroom. She explained that there had been an arrangement between the victim and the defendant, both S's parents, that the defendant would pick up S from school in the afternoon, bring her to B Street, often after stopping for some fast food, and that, once there, S would wait for the victim to pick her up after she had left her workplace. That was the course, O indicated, on November 16, 2011. She continued in her testimony that, at approximately 6 p.m., she received a phone call from an old friend, after which she called upstairs to the defendant. Not receiving any response, she went to the defendant's room where she discovered him sound asleep in his bed. She indicated that she had to shake the defendant to awaken him. In response to questioning from defense counsel, she noted that there was no sign of rainwater in the room, rain having fallen that evening, and that the defendant was then wearing a Tshirt and sweatpants. Notably, she testified that the defendant could not have left the residence after his return home with S because she would have heard the squeaking of the door to the home when anyone left.
Based on my review of the trial transcript, it does not appear that either the state or the defense introduced any evidence regarding the distance between the victim's home and the home where the defendant was then living.
D testified that she also lived with her mother and the defendant at the B Street residence. On the day in question, she indicated that she had arrived home at approximately 5:40 p.m., and recalled that O had received a phone call at approximately 6 p.m., after which O retrieved the defendant from his room and both of them came downstairs. D testified that the defendant "looked [like] he just woke up, bed head. It looked like she woke him up from a sleep."
Finally, as to the alibi defense, Sergeant Valentine Olabisi of the Hartford Police Department, who was a patrol officer at the time of the attack on the victim, testified that he went to the B Street residence on the night of the incident where he spoke with the defendant, who asserted that he had been home during the day. Olabisi acknowledged on cross-examination that, when he was with the defendant, he did not appear to be wet and that there was no water in the area of the first floor.
Because there was incomplete and conflicting identification evidence and alibi evidence, even from family members, that the defendant was elsewhere at the time of the attack, and an absence of any direct proof of the defendant's guilt, this circumstantial evidence case was not strong. Without the evidence of the defendant's prior assaults on the victim, it is not reasonable to conclude, with any assurance, that the jury would have found the defendant guilty.
In conclusion, I believe that the reasoning of United States v. Miller , 673 F.3d 688 (7th Cir. 2012), poignantly illustrates the problem of permitting the admission of prior misconduct evidence when the issue for which it is purportedly offered is undisputed and the evidence of prior misconduct tends to prove only the defendant's propensity to commit the charged offense. In Miller , the United States Court of Appeals for the Seventh Circuit was confronted with the admission at trial of a defendant's prior acts of misconduct involving the possession of drugs with the intent to distribute them. Id., at 692. On review, the court in Miller observed that, although the defendant's prior acts did, in fact, demonstrate an intent to distribute and the current charge also included, as an element of the offense, the intent to distribute, the trial court should not have admitted the prior acts on the issue of intent because that issue was "not meaningfully disputed by the defense." Id., at 697. Rather, the defendant claimed that the drugs were not in fact his and that he had not even been staying in the room where the drugs were found. Id., at 696. In reversing the judgment of the trial court, the Seventh Circuit opined: "And this is where the district court erred .... The court focused on whether intent was at issue based on [the defendant's] defense and on the government's obligations of proof. Having concluded that intent was at issue, the court turned to analyze prejudice and ... simply stated that the evidence was highly probative of intent. Had the court asked more specifically how the prior conviction tended to show intent eight years later, it would have recognized that it was dealing with propensity evidence all the way down. Unless there is a persuasive and specific answer to the question, ‘How does this evidence prove intent?’ then the real answer is almost certainly that the evidence is probative only of propensity." Id., at 699. Miller ’s operative facts are strikingly similar to those we confront in the case at hand. The defendant's intent to strike the victim two and three years before the incident in question was not probative of any intent by the defendant to assault the victim with a knife with the intent to cause her serious bodily harm. Simply put, this evidence proved nothing more than that the defendant had the propensity to be violent against the victim, which is expressly excluded by § 4-5 (a) of the Connecticut Code of Evidence.
For the foregoing reasons, I respectfully dissent.