State v. Robert B.

• Decision Date: 06 October 2020
• Docket Number: AC 42423
• Citation: 200 Conn.App. 637,240 A.3d 1077
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. ROBERT B.

200 Conn.App. 637

240 A.3d 1077

STATE of Connecticut

v.ROBERT B.^*

AC 42423

Appellate Court of Connecticut.

Argued June 29, 2020

Officially released October 6, 2020

Michael J. Tortora, for the appellant (defendant).

James M. Ralls, senior assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., former state's attorney, and Michael Nemec, deputy assistant state's attorney, for the appellee (state).

Lavine, Prescott and Moll, Js.

LAVINE, J.

The defendant, Robert B.,¹ appeals from the judgment of conviction, rendered after a jury trial, of unlawful restraint in the first degree in violation of General Statutes § 53a-95 and breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1). On appeal, the defendant claims that (1) he was denied his constitutional right to a fair trial when a witness repeatedly testified about the defendant's prior bad acts and arrests, (2) the court erred by not instructing the jury on the lesser included offense of unlawful restraint in the second degree, and (3) he was denied a fair trial due to prosecutorial impropriety because one of the two prosecutors who represented the state objected during the defendant's cross-examination of a witness despite not having conducted the direct examination of that witness. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant's appeal. The defendant and his former wife, T, were divorced in 2003. They have two sons, P and D, who were nineteen and sixteen, respectively, at the time of the underlying incident. On the morning of August 12, 2017, T and the sons (collectively, victims) were leaving the office of a Stamford dentist by the rear stairs. They saw a man wearing a hat and sunglasses, facing away from them, standing at the bottom of the stairs, blocking their way. When the victims reached the bottom of the stairs, the man grabbed D's arm and stated: "Happy Birthday ... we got to go to court."² The victims then recognized the defendant. T instructed the sons to get into her car. Before they could do so, the defendant grabbed D from behind, held him around the neck and stomach, and dragged him toward his vehicle, which was parked in front of the building. T and P yelled for the defendant to stop and tried to pull D from the defendant's grasp. D struggled to free himself. His shoes came off and his feet were dragged on the ground as he was pulled by the defendant. A dental patient who noticed the incident went into the dentist's office and asked someone to called 911. The defendant put his cell phone in T's face and stated that he was recording her.

T pulled the defendant's sunglasses from his face and threw them into the street. P blocked the defendant from putting D into his car. A third party came from a nearby business and pushed the defendant away from D, who was able to run across the street away from the defendant. The defendant got into his vehicle and drove away. After the police arrived, the victims went to the police department and gave written statements.

Members of the Stamford Police Department investigated the incident and arrested the defendant pursuant to a warrant on August 18, 2017.³ He was charged in a long form information with unlawful restraint in the first degree and breach of the peace in the second degree.⁴ The defendant, who represented himself, pleaded not guilty and elected to be tried by a jury. The presentation of evidence commenced on September 20, 2018. On September 24, 2018, the jury found the defendant guilty of both charges. The court sentenced the defendant to eighteen months of incarceration on the unlawful restraint conviction and six months of incarceration on the breach of the peace conviction, to be served concurrently, for a total effective sentence of eighteen months in prison and a $5000 fine. The defendant appealed.

I

The defendant first claims that his rights to due process and a fair trial were violated when a witness, T, testified on cross-examination as to the defendant's prior bad acts and arrests. The defendant's claim fails because it is unpreserved and is not of constitutional magnitude.

The following facts are relevant to the defendant's claim. The state called T to testify about the August 12, 2017 incident.

On cross-examination, the defendant questioned T in such a way that he elicited the testimony about which he now complains, claiming that the testimony violated his constitutional right not to have evidence of his prior bad acts placed before the jury.⁵ The defendant argues that "[a]t no time during the trial did the trial court ever instruct [T] to stop making such improper statements nor did [the court strike] the evidence from the record or give a curative instruction."⁶ To support his claim, the defendant relies on State v. Ferrone , 97 Conn. 258, 116 A. 336 (1922). See id., at 266, 116 A. 336 ("[e]vidence tending to show the commission of other crime on the part of the accused, or facts disclosing his bad character or repute, are not material or relevant to the charge against the accused, and should never be permitted to be introduced; for its purpose can be none other than to prejudice the jury against the accused, and hence to deny him the fair trial which the law guarantees him of being proven guilty of the crime with which he stands charged by evidence which our law accepts"). The defendant also relies on cases in which our appellate courts have addressed the propriety of the state's having introduced a defendant's prior misconduct. See, e.g., State v. Nash , 278 Conn. 620, 655–60, 899 A.2d 1 (2006) (rationale of rule is to guard against use of prior misconduct merely to show evil disposition of accused); State v. Boykin , 74 Conn. App. 679, 682–89, 813 A.2d 143 (remark's lack of specificity did not unfairly prejudice defendant), cert. denied, 263 Conn. 901, 819 A.2d 837 (2003).

In response, the state argues that there was no error because the defendant, not the state, elicited T's testimony at issue during his cross-examination of her.⁷ See footnote 5 of this opinion. More significantly, however, the state contends that the claim is evidentiary in nature, not constitutional, and therefore, is not reviewable because the defendant failed to move to strike T's testimony and thus preserve the claim for appellate review. We agree that the claim is not reviewable because the defendant failed to preserve it at trial by either moving to strike the testimony or seeking a curative instruction.⁸

"[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." (Internal quotation marks omitted.) State v. Jorge P. , 308 Conn. 740, 753, 66 A.3d 869 (2013).

The defendant requests, if we determine that the claim is not preserved, that we review it 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). A defendant can prevail on an unpreserved claim under Golding if four conditions are met: (1) the record is adequate for review, (2) the claim is of constitutional magnitude alleging the violation of a fundamental right, (3) the "violation ... exists and ... deprived" the defendant of a fair trial, and (4) if subject to harmless error analysis, the state failed to demonstrate the harmlessness of the error beyond a reasonable doubt. See State v. Golding , supra, at 239–40, 567 A.2d 823. "[T]he first two [prongs of Golding ] involve a determination [as to] whether the claim is reviewable; the second two ... involve a determination [as to] whether the defendant may prevail." (Internal quotation marks omitted.) State v. Whitford , 260 Conn. 610, 621, 799 A.2d 1034 (2002). The defendant's claim is not reviewable because it is not of constitutional magnitude.

Generally, "evidence of the commission of other crimes or specific acts of misconduct is inadmissible to prove that a defendant is guilty of the crime charged against him." State v. Talton , 197 Conn. 280, 289, 497 A.2d 35 (1985). The admission of evidence of a defendant's other crimes is controlled by the law of evidence, not principles of constitutional law. See State v. Gardner , 297 Conn. 58, 65, 1 A.3d 1 (2010) (erroneous introduction of prior misconduct evidence involves claim arising under state law and does not involve constitutional right). Because the defendant's unpreserved claim is an evidentiary one, it is not of constitutional magnitude. He, therefore, is not entitled to review pursuant to Golding .

II

The defendant's second claim is that the court erred by failing to instruct the jury on the lesser included offense of unlawful restraint in the second degree.⁹ The defendant cannot prevail on the claim because it is unpreserved.

The following facts are relevant to the defendant's claim. On September 20, 2018, immediately prior to the swearing in of the jurors, the court, the defendant and the prosecutors discussed a variety of matters related to the trial. The court asked the defendant whether there was anything that he wished to say. The defendant represented that the last time he was in court with the prosecutors, Steven Weiss and Michael Nemac, Weiss mentioned that he wanted "to drop the unlawful restraint in the first down to unlawful restraint in the second." The defendant was concerned that the state was adding an additional charge against him. The court understood the defendant's concern and explained that the state could not add an additional...