State v. Erhardt

• Decision Date: 23 August 2005
• Docket Number: (AC 25015).
• Citation: 90 Conn. App. 853,879 A.2d 561
• Parties: STATE OF CONNECTICUT v. GREGORY ERHARDT.
• Court: Connecticut Court of Appeals

90 Conn. App. 853

879 A.2d 561

STATE OF CONNECTICUT v. GREGORY ERHARDT.

(AC 25015).

Appellate Court of Connecticut.

Argued May 26, 2005.

Officially released August 23, 2005.

Lavery, C. J., and Dranginis and Harper, Js.

G. Douglas Nash, special public defender, for the appellant (defendant).

Denise B. Smoker, assistant state's attorney, with whom, on the brief, were Walter D. Flanagan, state's attorney, and Warren C. Murray, supervisory assistant state's attorney, for the appellee (state).

Opinion

LAVERY, C. J.

The defendant, Gregory Erhardt, appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (2) and threatening in the second degree in violation of General Statutes § 53a-62 (a) (1).¹ On appeal, the defendant claims that the trial court improperly (1) admitted evidence of prior misconduct, (2) denied his request to redact a prejudicial statement from a prosecution exhibit, (3) permitted the state to cross-examine him with respect to prior convictions and (4) instructed the jury on the element of intent as to the assault and threatening charges. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, Susan Meehan, and the defendant rented a house together at 51B Ironworks Hill Road in Brookfield. On the evening of May 27, 2003, the defendant became angry with the victim when she heated soup for him using the microwave instead of the stove. He got a knife from the kitchen and put it at the victim's throat, telling her, "I can take you out in a heartbeat."

The victim was frightened, and she tried to calm the defendant by using a code word, which had worked a few times in the past when the defendant went "crazy like this." This did not work, and the defendant took the knife and cut the victim on the left side of the face. He then entered the bathroom. The victim almost called 911, but she was too scared, fearing that he would kill her if he knew she was calling.

The defendant emerged from the bathroom and retrieved the knife again. He kept putting it to the victim's throat and telling her that he could kill her. Eventually, he put down the knife, and the victim was able to get a towel to hold against her bleeding face. There was "blood everywhere," and the victim asked the defendant if she could go to a hospital. He agreed after forcing her to remove her bloody denim jacket.

The victim left the house and went to her workplace, a nearby bowling alley. There, she told her coworkers that the defendant was responsible for her injury. One of the employees called the police, and the victim was taken to the hospital, where she received five stitches to close the wound to her face.

After her release from the hospital, the victim returned to her house, which was surrounded by police officers who were trying to convince the defendant to come out of the house. One of the officers approached the victim and asked if she was willing to go to the police station and give a statement. She agreed and was able to give a signed, sworn statement describing the stabbing and the events leading to it.

At trial, the victim recanted the version of events in her statement. Instead, she testified that she injured herself while attempting to scrape painted flowers off a hutch with a pocketknife. The defendant also testified in his defense, corroborating the victim's new story. Additional facts will be provided as necessary.

I

The defendant first claims that the court improperly admitted evidence of his prior misconduct. Specifically, he takes issue with incidents mentioned in the victim's statement to the police, including general statements regarding his violence toward the victim and his threatening behavior, a head-butting incident and an incident in which he hit the victim in the head with the blunt end of a butcher knife. We conclude that this evidence was admitted properly.

The following additional facts are necessary to the resolution of the defendant's claim. Before trial, the defendant filed a motion in limine, asking the court to exclude evidence of his prior misconduct. The state responded that it intended to introduce evidence of two prior assaults against the victim that she had related to the police in her written statement the night of the incident in question. The first incident, in which the defendant gave the victim a black eye by head-butting her, occurred approximately five weeks before the stabbing. The victim also described a second incident in which the defendant hit her over the head with the blunt end of a butcher knife. The victim could not recall the date of that event, but stated that it occurred close in time to the head-butting incident.

The state argued to the court that this evidence was admissible under the intent exception to the uncharged misconduct exclusionary rule. The defendant contended that this misconduct did not fit within the exception and was too remote in time, extraneous and too prejudicial to be admissible. The court declined to rule immediately on the defendant's motion and continued the matter until the next day.

The next day at trial, the victim was the prosecution's second witness. She testified that she had caused her injury and that the defendant had not stabbed her. To contradict the victim's testimony, the state offered, as substantive evidence under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 579, 93 L. Ed. 2d 598 (1986), her written statement to the police, in which she claimed that the defendant had caused her injury. The defendant objected to this exhibit on the ground that the victim was intoxicated at the time she gave the statement and, thus, did not have personal knowledge of its contents. The objection was overruled by the court, and the statement was admitted into evidence as a full exhibit.

In her Whelan statement, the victim stated: "This is not the first time [the defendant] has hurt me. About two months or so, around Easter, [he] took a butcher knife and hit me on the head with the blunt end. I did not report this, but it was about two or three weeks ago. I'm not sure when [he] head-butted me giving me a black eye. I didn't report it, but the police found out. When the Brookfield police officers came to the house, I did not tell them what happened. They knew I was lying. I was afraid to tell them what happened.

"He is and has been good to me, but in the last three months, he has become violent. He just goes off, and then will calm down. I cannot control him or make him stop when he's like that. I'm afraid for my life when he is like this." In her statement, the victim also stated that the defendant had threatened her in the past.

The state later questioned the victim about the head-butting incident. The defendant objected to this line of questioning because the misconduct did not meet any of the exceptions to the prior uncharged misconduct exclusionary rule. The state again argued that the evidence fit within the intent exception. The state also stated its intention to introduce testimony of one of the police officers who responded to a call regarding the head-butting incident. The court overruled the defendant's objection and held that both of the prior uncharged misconduct incidents were admissible on the issue of intent. The court also stated that it would give a limiting instruction regarding the use of prior uncharged misconduct evidence.

Officer Jameson Zaloski later testified that in April, 2003, he responded to a domestic violence complaint at the victim's and the defendant's house. The victim had a black eye and possibly a bump on the forehead. She told the officer that she injured herself the previous day by walking into her attic stairs. The officer testified that he did not believe the victim's statement because her injuries did not appear consistent with her explanation.

"As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused. . . . Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior. . . . We have, however, recognized exceptions to the general rule if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. . . .

"To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, we have adopted a two-pronged analysis.. . . 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. . . .

"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 where abuse of discretion is manifest or where an injustice appears to have been done. . . . The problem is . . . one of balancing the actual relevancy of the other crimes evidence in light of the issues and the other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence." (Citations omitted; internal quotation marks omitted.) State v. Sawyer, 74 Conn. App. 743, 747-48, 813 A.2d 1073, cert. granted on other grounds, 263 Conn. 908, 819 A.2d 842 (2003).

In this case, we agree with the court that the evidence was relevant to the intent exception. To convict the defendant of assault in the second degree, the state was required to prove that he intended to cause physical injury to the victim.² General...