State v. Lavecchia

• Decision Date: 14 September 2021
• Docket Number: AC 44003
• Parties: STATE of Connecticut v. Matthew S. LAVECCHIA
• Court: Connecticut Court of Appeals

207 Conn.App. 537

261 A.3d 1166

STATE of Connecticut

v.Matthew S. LAVECCHIA

AC 44003

Appellate Court of Connecticut.

Argued May 12, 2021

Officially released September 14, 2021

John R. Williams, New Haven, CT, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, Rocky Hill, CT, with whom, on the brief, were Margaret E. Kelley, state's attorney, and Matthew R. Kalthoff, assistant state's attorney, for the appellee (state).

Elgo, Cradle and DiPentima, Js.

ELGO, J.

The defendant, Matthew S. Lavecchia, appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree in violation of General Statutes § 53a-61 (a) (1). On appeal, the defendant claims the trial court abused its discretion by (1) admitting into evidence the testimony of a police officer as to whether probable cause existed for the defendant's arrest and (2) excluding from evidence the psychiatric records of a witness for the state. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On February 2, 2018, the defendant and Haroon Ramzan got into an altercation at the Citrus Restaurant in Milford. The defendant struck Ramzan in the face multiple times, breaking his nose. The defendant subsequently was arrested and, following a jury trial, convicted of assault in the third degree. The court sentenced the defendant to a term of nine months of incarceration, execution suspended, and three years of probation. This appeal followed.

I

The defendant first claims that the court abused its discretion in admitting testimony from a police officer as to whether probable cause existed for the defendant's arrest. On appeal, the defendant contends that the officer improperly was permitted to testify on an "ultimate issue" in violation of § 7-3 of the Connecticut Code of Evidence. In response, the state argues that (1) the defendant failed to preserve this claim for appellate review, and (2) the claim is evidentiary in nature and, thus, not entitled to review pursuant to State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R ., 317 Conn. 773, 781, 120 A.3d 1188 (2015). We agree with the state.

The following additional facts and procedural history are relevant to this claim. At all relevant times, Christopher J. Deida was an officer with the Milford Police Department.

On February 3, 2018, Deida was dispatched to the restaurant shortly after midnight. Upon arrival, he observed Ramzan bleeding and arranged for a paramedic to attend to him. Deida then spoke with Ramzan and other witnesses at the scene and reviewed security camera footage of the interactions between the defendant and Ramzan prior to the altercation.

On direct examination, Deida responded affirmatively when the prosecutor asked him whether his investigation led him to conclude that probable cause existed to arrest the defendant. The defendant objected to that testimony on the ground that Deida's answer contained a legal conclusion. The court overruled that objection.

At the close of Deida's testimony, the court provided a curative instruction to the jury, stating in relevant part: "Ladies and gentlemen, we're going to break for the day. But ... before I read you these instructions, I just want to tell you this. There was some testimony with regard to probable cause. And whether or not this officer believes there was probable cause. Whether or not this officer believes there's probable cause is not for you to take into consideration. In other words, you are the trier of fact, you will decide whether or not the defendant is guilty of the crime of assault in the third degree, not what this officer thinks. And there was [a] reference in regard to a judge. Whether or not a judge signed on probable cause. It wasn't answered whether a judge did or didn't. However, what is important to you, ladies and gentlemen, is this: you are the trier of fact, you are the ones who decide the facts in this case, and whether a judge or police officer believes there was probable cause, which is significantly less than ... beyond a reasonable doubt, that you have to decide that, ladies and gentlemen.

"So, I ask that you just put aside ... any concerns with regard to probable cause and who may have thought there was probable cause. You are the trier of fact, and you will decide whether or not the defendant is, in fact, guilty of the charge of assault in the third degree."

On appeal, the defendant contends that the court abused its discretion in permitting Deida's testimony regarding the existence of probable cause. As our Supreme Court has explained, "[t]he standard for the preservation of a claim alleging an improper evidentiary ruling at trial is well settled. This court is not bound to consider claims of law not made at the trial. ... In order to preserve an evidentiary ruling for review, trial counsel must object properly. ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. ... [A] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one .... For this court to ... consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party." (Citations omitted; internal quotation marks omitted.) State v. Edwards , 334 Conn. 688, 703, 224 A.3d 504 (2020).

At trial, the defendant's sole objection to the testimony at issue was that it contained a legal conclusion. At no time did defense counsel raise any claim that Deida's testimony constituted an opinion on an ultimate issue. Because the defendant's objection was not properly raised before the court, his claim is unpreserved and, hence, unreviewable.

The defendant alternatively seeks review of his claim pursuant to State v. Golding , supra, 213 Conn. at 239–40, 567 A.2d 823, claiming that the court's ruling on his objection to Deida's testimony amounted to a constitutional violation.

That request is without merit. Although the defendant portrays the court's ruling on his objection to Deida's testimony as constitutional in nature, it remains settled law that "unpreserved evidentiary claims masquerading as constitutional claims" are not entitled to Golding review. (Internal quotation marks omitted.) State v. Warren , 83 Conn. App. 446, 451, 850 A.2d 1086, cert. denied, 271 Conn. 907, 859 A.2d 567 (2004) ; see also State v. Taveras , 49 Conn. App. 639, 645, 716 A.2d 120 ("[t]he improper admission of opinion testimony that answers a question...