State v. Marcello E.

Decision Date18 October 2022
Docket NumberAC 44211
Citation216 Conn.App. 1,283 A.3d 1007
Parties STATE of Connecticut v. MARCELLO E.
CourtConnecticut Court of Appeals

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.


The defendant, Marcello E., appeals from the judgment of conviction, rendered after a jury trial,1 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.

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, 2011.2 J told the officers that the victim had identified the defendant as her assailant.

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.3 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."4 Five days after the attack, the victim identified the defendant as her assailant from a photographic array that the police had prepared.

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."5

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,...

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1 cases
  • State v. Marcello E.
    • United States
    • Connecticut Supreme Court
    • January 17, 2023
    ...W. Bare, senior assistant state's attorney, in opposition.The defendant's petition for certification to appeal from the Appellate Court, 216 Conn. App. 1, 283 A.3d 1007 (2022), is granted, limited to the following issues:"1. Did the Appellate Court correctly conclude that the trial court ha......

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