State v. Cutler

• Decision Date: 01 September 2009
• Docket Number: No. 18060.,18060.
• Citation: 293 Conn. 303,977 A.2d 209
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Aaron B. CUTLER.

977 A.2d 209

293 Conn. 303

STATE of Connecticut v. Aaron B. CUTLER.

No. 18060.

Supreme Court of Connecticut.

Argued March 18, 2009.

Decided September 1, 2009.

Richard Emanuel, New Haven, with whom was Eugene J. Riccio, Bridgeport, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Nancy Dolinsky, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js.

VERTEFEUILLE, J.

The defendant, Aaron B. Cutler, appeals¹ from the judgment of conviction, rendered after a jury trial, of unlawful restraint in the first degree in violation of General Statutes § 53a-95.² The defendant claims on appeal that the trial court improperly: (1) admitted certain prior misconduct evidence after concluding that its probative value outweighed its prejudicial effect; (2) declined to instruct the jury to apply a preponderance of the evidence standard to determine whether the prior misconduct occurred; and (3) marshaled the evidence in its jury instruction by referencing only the state's prior misconduct evidence and not the defendant's countervailing evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Prior to March, 2005, the defendant and Jill Kolton were involved in a tumultuous romantic relationship that spanned approximately one year. Despite the rocky nature of their relationship, they moved in together in a house in Stamford in December, 2004. Their relationship continued to deteriorate, however, and by the end of March, 2005, it had ended. On March 21, 2005, the defendant signed a lease for a separate property, which became effective April 1, 2005. On March 22, 2005, the defendant and Kolton became engaged in a heated argument, and after the defendant left their house, Kolton changed the locks on all of the doors.

Around 3 p.m. on March 25, 2005, Kolton was working at home engaged in a telephone conference call when the defendant appeared unexpectedly at the front door, intending to pack his personal belongings. Because Kolton had changed the locks on all of the doors without informing the defendant, he was unable to enter the house. Kolton went to the door and told the defendant that she would not let him into the house because she was on a telephone conference call. After immediately protesting and demanding that he be let into the house, the defendant left the property. When her conference call ended, Kolton telephoned the defendant and left him a voicemail asking him to call her back. Around 4:10 p.m., the defendant telephoned Kolton and told her that he wanted to come over to pack his belongings. While he was on the telephone with her, the defendant pulled his car into the driveway. Kolton, seeing the defendant outside, acquiesced to his request to enter the house and let him in.

When he entered the house, the defendant went straight into the kitchen to begin packing boxes, and Kolton went down the hallway to her home office. Shortly thereafter, Kolton entered the kitchen, and she and the defendant began to argue over when the defendant was going to leave. Kolton asked the defendant to leave by 7 p.m., but the defendant replied that he "could stay until however [late] he wanted" in order to finish packing his belongings. The defendant then started cursing at Kolton and physically moved toward her as if to grab her. Kolton quickly moved out of the kitchen and toward the front door, where she opened the front door and told the defendant that he had to leave.

The defendant then grabbed Kolton, picked her up, and put her down on the floor in the living room.³ The carpeting there was extremely coarse. The defendant held Kolton down on the floor while she was kicking and screaming and acting, in the defendant's words, "hysterical." He admittedly "pinned her down on the [floor] with [his] knees on her shoulders and [he] held her arms with each one of [his] arms." The defendant then told Kolton that he simply wanted to pack and remove his belongings from the house. The defendant released Kolton⁴ and went back into the kitchen in order to continue packing his belongings.⁵

Kolton got up from the floor and went out onto the balcony in order to catch her breath. She then walked back into the house to the home office, where she retrieved a cordless telephone. With the telephone in hand, she walked down the hallway, through the master bedroom, and into the master bathroom, locking both the bedroom and bathroom doors. Kolton then called 911 and told the operator that she had been attacked by the defendant. She stayed on the telephone with the 911 operator until police officers entered the house several minutes later. The officers spoke with both Kolton and the defendant about what had occurred and, thereafter, the defendant was arrested and charged with one count of unlawful restraint in the first degree in violation of § 53a-95⁶ and one count of assault in the third degree in violation of General Statutes § 53a-61(a)(1).⁷

At trial, the state presented the testimony of the police officers who responded to the March 25, 2005 incident, as well as the two written statements that Kolton gave the police. The state also presented the testimony of Kolton herself. In addition to her testimony about the incident for which the defendant was being charged, Kolton also testified, over the defendant's objection, to three prior acts of uncharged misconduct allegedly committed by the defendant against her.

During his case, the defendant testified that he had attempted to end his relationship with Kolton permanently but that she would not concede to the fact that it was over. The defendant also claimed that on the day of the incident for which he was on trial, he had acted in self-defense, that is, that he had pinned Kolton on the floor only after she had run at him hysterically and had hit him on the side of his shoulders.

After a four day trial, the jury returned a verdict finding the defendant not guilty of assault in the third degree but guilty of unlawful restraint in the first degree. The trial court thereafter denied the defendant's post-verdict motions for judgment of acquittal and for a new trial and rendered judgment in accordance with the jury's verdict. This appeal followed. See footnote 1 of this opinion.

I

The defendant first claims that the trial court improperly admitted the prior misconduct evidence after concluding that its probative value outweighed its prejudicial effect. Specifically, the defendant asserts that the prior uncharged misconduct evidence had minimal probative value because it consisted of mere uncorroborated allegations by Kolton, the complainant in the present case. In response, the state claims that the trial court's admission of the prior misconduct evidence was properly within its broad discretion. We agree with the state.

The following undisputed additional facts and procedural history are relevant to our resolution of this claim. Before trial, the state filed a notice of uncharged misconduct, informing the defendant of its intention to rely on prior uncharged misconduct evidence. Specifically, the state sought to introduce evidence of four prior acts of uncharged physical violence by the defendant against Kolton to show that the defendant had intended to act as he did against Kolton, and that no mistake or accident had occurred. The four acts occurred in late August, 2004, late January, 2005, March 12, 2005, and March 22, 2005. The state represented to the trial court that on each of these dates, the following occurred: (1) in late August, 2004, the defendant became angry with Kolton, knocked her to the floor and punched holes in the door of the room they were in; (2) in late January, 2005, the defendant and Kolton were arguing when the defendant grabbed Kolton by the hair, dragged her into the bedroom, covered her face with a pillow and threatened her; (3) on March 12, 2005, the defendant and Kolton were arguing when the defendant pinned Kolton down on the couch, restrained her, threatened her and smashed his palm into her face, cutting the bridge of her nose; and (4) on March 22, 2005, the defendant and Kolton were arguing when the defendant struck Kolton with a suitcase, restrained her on the floor with his legs, covered her face with his hands and threatened her. The state asserted that it intended to rely solely on Kolton's own testimony for proof of these acts.

The defendant objected to the admission of this prior misconduct evidence and claimed to be entitled to an evidentiary hearing during which, after the introduction of the state's evidence as well as countervailing evidence from the defendant, the trial court should determine whether the prior acts actually occurred. The defendant also claimed that the trial court would have to make that decision employing the evidentiary standard of clear and convincing evidence.⁸ The trial court allowed the defendant to make a proffer as to the evidence he would introduce at an evidentiary hearing to rebut the state's prior misconduct evidence. The defendant proffered his own testimony and that of his mother, as well as inconsistent statements by Kolton in e-mails and police reports. The defendant also claimed that the prior misconduct evidence was more prejudicial than probative because the prior uncharged acts were not only close in time and dramatically similar to the charged act, but also were not adequately supported by persuasive evidence.

The trial court disagreed with the defendant and denied his request for an evidentiary hearing. The court concluded that the admissibility of evidence is determined not after such a hearing, but instead after the trial court's consideration of the following two part test: (1) the evidence must be relevant and material to at least one of the circumstances encompassed by the...