State v. Jordan , 166 Conn. App. 35 ( 2016 )

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STATE OF CONNECTICUT v. BRIAN W. JORDAN
(AC 37654)
Lavine, Beach and Pellegrino, Js.
Argued February 3—officially released June 7, 2016
(Appeal from Superior Court, judicial district of New
Haven, geographical area number seven, Scarpellino,
J. [applications for accelerated rehabilitation,
supervised diversionary program for veterans]; S.
Moore, J. [motion to preclude, judgment].)
Kevin M. Smith, for the appellant (defendant).
Toni M. Smith-Rosario, senior assistant state’s attor-
ney, with whom, on the brief, were Michael Dearington,
state’s attorney, James Turcotte, supervisory assistant
state’s attorney, and James Dinnan and John C. Lion,
senior assistant state’s attorneys, for the appellee
(state).
Opinion
PELLEGRINO, J. The defendant, Brian W. Jordan,
appeals from the trial court’s judgment of conviction,
rendered after a jury trial, of assault in the second
degree with a dangerous instrument in violation of Gen-
eral Statutes § 53a-60 (a) (2). On appeal, the defendant
claims that the trial court erred (1) in denying his appli-
cation for accelerated rehabilitation, (2) in denying his
application for the supervised diversionary program for
veterans, and (3) in granting the state’s motion in limine
to preclude evidence of the victim’s violent character.
We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. On August 20, 2011, the defendant and his friend,
David Gorski, arrived at Jake’s Martini Bar (bar) in
Wallingford. The victim, Erdan Sejdic, and his girlfriend,
Brianna White, were also at the bar celebrating the
victim’s birthday. After drinking at the bar for more
than one hour, both the defendant and Gorski were
intoxicated. The victim and White were sitting at a table
in the front of the bar. The victim left the table to order
drinks at the service bar. While the victim was at the
bar, the defendant sat at the victim’s table, across from
White, and began chatting with her.
After noticing that White seemed to be uncomfortable
with the defendant sitting at the table, the victim
approached the table. He was stopped by Gorski, who
asked him if White was his girlfriend and assured the
victim that he would ‘‘take care of my friend.’’ The
victim returned to the service bar, only to see that the
defendant had not moved and White continued to look
uncomfortable. The victim returned to the table a sec-
ond time and introduced himself to the defendant and
assured the defendant that he did not ‘‘want any trou-
ble.’’ The victim asked Gorski, with regard to the defen-
dant, ‘‘can you just let him know he seems a bit
belligerent?’’ The victim then walked back to the service
bar and believed that Gorski would persuade the defen-
dant to move. When the defendant still had not moved,
the victim walked back to the table a third time. The
victim stood in front of the defendant, told him that
he did not want any trouble, and asked the defendant
to move.
The defendant then struck the victim on the side of
the head with a glass object. The victim was knocked
back by the impact. When he realized that he was bleed-
ing profusely, the victim removed his shirt and wrapped
it around his head. The altercation between the defen-
dant and the victim continued outside of the bar. After
the police arrived and statements were taken, the victim
and White drove to a hospital emergency room. He was
diagnosed with a contusion and lacerations on the left
temporal area of his face. During a pretrial hearing, the
victim elaborated on the lasting effects of the assault,
including a change in personality, facial scars, acute
post-traumatic stress disorder, persistent anxiety, and
nerve pain.
The defendant was arrested and charged with assault
in the third degree in violation of General Statutes § 53a-
61. The state later filed a substitute information charg-
ing the defendant with assault in the second degree
with a dangerous instrument in violation of § 53a-60 (a)
(2). The defendant applied for both the accelerated
rehabilitation program and the supervised diversionary
program for veterans; the trial court, Scarpellino, J.,
denied both applications. During trial, the defendant
alleged an affirmative defense of self-defense and that
the victim was the initial aggressor. On October 6, 2014,
following the presentation of evidence, the jury found
the defendant guilty of assault in the second degree with
a dangerous instrument. The court, Moore, J., sentenced
the defendant to three years incarceration, execution
suspended after ninety days, followed by three years
of probation. This appeal followed. Additional facts will
be set forth as necessary.
I
The defendant first claims that the court, Scarpellino,
J., abused its discretion in denying his application for
accelerated rehabilitation. The defendant argues that
the court failed to give due consideration to the evi-
dence regarding the commission of the offense and
neglected to make the necessary findings. Thus,
according to the defendant, the court abused its discre-
tion. We do not agree.
The record reveals the following relevant facts. On
October 3, 2012, the defendant applied for accelerated
rehabilitation. See General Statutes (Supp. 2012) § 54-
56e, as amended by Public Acts 2012, No. 12-42, § 2.1
On October 31, 2012, the court held a hearing on the
application. While acknowledging that the defendant
was eligible for accelerated rehabilitation, the state
opposed granting it under the totality of the circum-
stances. The state cited the defendant’s unprovoked
attack and the fact that the victim needed twenty
stitches to close the wound and suffered ongoing medi-
cal issues as a result of the attack. The victim also
opposed granting the defendant accelerated rehabilita-
tion due to the seriousness of the unprovoked attack,
the ongoing physical, psychological, and emotional
repercussions he suffered, and the defendant’s failure
to accept responsibility for his action or demonstrate
remorse. Defense counsel argued that the offense was
not too serious for accelerated rehabilitation, and that
the defendant was not going to reoffend. Further, coun-
sel noted that several of the defendant’s treatment pro-
viders indicated that a subarachnoid hemorrhage that
he suffered during his military service and his post-
traumatic stress disorder likely contributed to the inci-
dent. Both the defendant and a defense witness, Clifton
Roberts, addressed the court. The defendant expressed
remorse and called the incident a ‘‘horrible mistake.’’
Roberts, a mitigation specialist, testified that the defen-
dant suffered from post-traumatic stress disorder and
had been treated by a counselor, Phyllis Pavlik, for
years for his condition. Roberts also noted letters that
were submitted on the defendant’s behalf in support of
his application, which indicated that his behavior on
the night in question was ‘‘in aberration of his true
character.’’ The court denied the accelerated rehabilita-
tion application, noting the unprovoked situation and
the injuries the victim sustained as the basis for denying
the application.
‘‘The granting or denial of an application for acceler-
ated rehabilitation implicates the exercise of discretion
by the trial court. . . . The exercise of legal discretion
imparts something more than the granting to the trial
court of the right to have leeway in decision making.
. . . Rather, the exercise of legal discretion requires
that it be exercised in conformity with the spirit of the
law and in a manner to subserve and not impede or
defeat the ends of substantial justice. . . . Our review
of the trial court’s exercise of its discretion is limited
to the questions of whether the court correctly applied
the law and whether it could reasonably conclude as
it did. . . . It is only where an abuse of discretion is
manifest or where an injustice appears to have been
done that a reversal will result from the trial court’s
exercise of discretion. . . . Every reasonable pre-
sumption will be given in favor of the trial court’s rul-
ing.’’ (Internal quotation marks omitted.) State v. Rios,
110 Conn. App. 442, 447–48, 954 A.2d 901 (2008).
We disagree with the defendant’s assertion that the
court failed to give due consideration to all of the evi-
dence presented. Both the state and the victim objected
to the defendant’s application, and the victim alleged
that he suffered serious injuries as a result of the alterca-
tion. The court specifically stated that it had read the
defendant’s submissions and expressed its willingness
to consider any witness testimony that the defendant
believed would be helpful. The court expressly noted
that it was to ‘‘look at the incident itself’’ in making
a determination about accelerated rehabilitation. The
court also noted that the assault was an ‘‘unprovoked
situation’’ and that injury resulted from the altercation.
The court did not simply look only at the offense with
which the defendant was charged in making its determi-
nation about accelerated rehabilitation. Rather, the
court also reviewed the allegations in the court file,
read the defendant’s submissions, and heard testimony
from the defendant’s witness. The court fully consid-
ered all aspects of the incident, and there is nothing to
indicate the court abused its discretion in denying the
defendant’s application for accelerated rehabilitation.
The defendant further argues that the court did not
make express necessary findings regarding the seri-
ousness of the offense and the likelihood of the defen-
dant reoffending when it denied his application for
accelerated rehabilitation. In denying accelerated reha-
bilitation, the court discussed the particular offense in
depth and made note of the unprovoked attack and the
serious injuries sustained by the victim when deciding
that this case ‘‘falls outside accelerated rehabilitation.’’
Thus, ‘‘the fact that the trial court did not utter the
talismanic words . . . does not indicate that the court
did not make such a determination.’’ State v. Robinson,
227 Conn. 711, 731, 631 A.2d 288 (1993). We conclude
that the court did not abuse its discretion in denying the
defendant’s application for accelerated rehabilitation.
II
The defendant next claims that the court, Scarpel-
lino, J., erred in denying his application for the super-
vised diversionary program for veterans. The defendant
argues that the court did not consider the treatment
plan presented by the Court Support Services Division
of the Judicial Branch and other relevant evidence that
he submitted. We disagree.
The record reveals the following facts. On March
19, 2013, the court held a hearing on the defendant’s
application for the supervised diversionary program for
veterans. See General Statutes § 54-56l.2 At the outset,
the court noted that the supervised diversionary pro-
gram mirrors the accelerated rehabilitation program
with respect to eligibility. Thus, the court was most
interested in hearing the parties address the issue of
the seriousness of the offense. Defense counsel referred
to some of the materials he submitted, including letters
of support from various professionals and the degree
to which the defendant regularly attended 12-step meet-
ings. In addressing the seriousness of the offense,
defense counsel argued that the case ‘‘may be right on
the line’’ but was ‘‘not such an outlier that it should not
be granted . . . .’’ The defendant also addressed the
court and noted his efforts to maintain sobriety. He
also noted that his treatment counselor had advised
him that, due to his post-traumatic stress disorder, he
would have perceived the situation to be threatening.
The state objected to the granting of the application due
to the seriousness of the offense and the defendant’s
likelihood of reoffending. The state pointed to the
defendant’s one-sided aggression, the unprovoked
attack, and his failure to accept responsibility for his
actions. The victim and his mother also addressed the
court to object to the granting of the defendant’s appli-
cation. The court then noted that it had read everything
submitted to it on behalf of the defendant, but denied
the application because the offense was too serious
in nature.
Although this court has never addressed the standard
of review for the decision to grant or deny an application
to the supervised diversionary program, the program
mirrors the accelerated rehabilitation program, and,
thus, we review it under the same abuse of discretion
standard discussed in part I of this opinion.
The defendant argues that the court neglected to
consider the treatment plan because it never mentioned
the treatment plan or any other medical documents
provided by the defendant. However, the court
expressly stated that it had reviewed at length the defen-
dant’s submissions, which included the treatment plan.
Further, § 54-56l (a) clearly states that in order for the
supervised diversionary program to be granted, the
crime of which the defendant is accused must not be
of a serious nature. The court found the defendant’s
crime to be of a serious nature, both at this hearing
and at the hearing on the defendant’s application for
accelerated rehabilitation, which made the defendant
ineligible for the program. Thus, the court denied the
application. Accordingly, we conclude that the court
did not abuse its discretion in denying the defendant’s
application for the supervised diversionary program
for veterans.
III
The defendant’s final claim is that the court abused
its discretion by granting the state’s motion in limine
to preclude evidence of the victim’s history of violent
behavior. The defendant argues that evidence of the
victim’s violent character and status as the initial
aggressor in light of his claim of self-defense should
not have been precluded. We agree with the defendant
that the exclusion of the evidence was improper, but
conclude that the error was harmless.
The record reveals the following facts. On September
29, 2014, the state filed a motion in limine to preclude
the defendant from presenting evidence of the victim’s
two misdemeanor convictions. The state argued that
the convictions were dissimilar in nature to the alleged
aggression in this case, and the incidents giving rise to
the convictions occurred subsequent to the incident in
this case. In 2012, the victim was convicted of assault
in the third degree, unlawful restraint in the second
degree, and criminal trespass in the first degree. The
underlying facts were that the victim broke into White’s
home and attacked her when he suspected her of keep-
ing company with another man. The victim also was
convicted in 2013 for breach of peace in the second
degree and violation of probation. He had become
enraged because White went to a bar for a period of
time without him. On September 30, 2014, Judge Moore
heard argument on the state’s motion in limine. The
state argued that although the incidents that led to the
victim’s convictions involved violence, they were not
admissible because they were dissimilar to the charged
offense in that they involved domestic disputes between
the victim and White, and the events occurred subse-
quent to the 2011 incident in this case. Defense counsel
argued that the two incidents were similar to the
charged offence in that the victim became ‘‘aggressive,
confrontational and violent with regard to Brianna
White.’’ The court granted the state’s motion and con-
cluded that the evidence would be more prejudicial
than probative because the victim’s conduct occurred
after the incident in this case and because his conduct
was dissimilar in nature in that both bad acts involved
aggression between him and White, a domestic partner,
and occurred in a private setting.
‘‘The trial court’s ruling on the admissibility of evi-
dence is entitled to great deference. . . . [T]he trial
court has broad discretion in ruling on the admissibility
. . . of evidence. . . . The trial court’s ruling on evi-
dentiary matters will be overturned only upon a show-
ing of a clear abuse of the court’s discretion. . . . We
will make every reasonable presumption in favor of
upholding the trial court’s ruling, and only upset it for
a manifest abuse of discretion. . . . Moreover, eviden-
tiary rulings will be overturned on appeal only where
there was an abuse of discretion and a showing by the
defendant of substantial prejudice or injustice.’’ (Inter-
nal quotation marks omitted.) State v. Dehaney, 261
Conn. 336, 354–55, 803 A.2d 267 (2002), cert. denied,
537 U.S. 1217, 123 S. Ct. 1318, 154 L. Ed. 2d 1070 (2003).
‘‘Ordinarily, upon a showing of a proper foundation
for a claim of self-defense, the defendant may introduce
evidence of the violent character of the victim. . . . A
victim’s violent character may be proven by reputation
or opinion evidence or by showing convictions for
crimes of violence.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Webley, 17 Conn. App.
200, 206, 551 A.2d 428 (1988); see also Conn. Code Evid.
§ 4-4 (b) (‘‘[i]n cases in which the accused in a homicide
or criminal assault case may introduce evidence of the
violent character of the victim, the victim’s character
may also be proved by evidence of the victim’s convic-
tion of a crime of violence’’). ‘‘In assessing the probative
value of the evidence of certain convictions the court
looks at the underlying facts and circumstances of the
crime in order to determine whether the victim’s convic-
tions are too remote in time or lacking elements of
violence. [E]videntiary rulings will be overturned on
appeal only where there was an abuse of discretion and
a showing by the defendant of substantial prejudice or
injustice.’’ (Citation omitted; internal quotation marks
omitted.) State v. Byrd, 136 Conn. App. 391, 397, 44
A.3d 897, cert. denied, 306 Conn. 906, 52 A.3d 732 (2012).
In the present case, the defendant argued at trial that
the victim was the initial aggressor because he was
unhappy about the defendant sitting at the table with
White. The facts underlying the victim’s convictions
demonstrate the victim’s possessiveness of White and
his willingness to act on his possessiveness. Both con-
victions occurred after the victim became suspicious
of White and another man, and the victim acted violently
as a result. These convictions were probative of the
defendant’s argument that the victim was the initial
aggressor because he approached the defendant while
the defendant was sitting with White. We agree with
the defendant’s argument that even though these con-
victions occurred subsequent to the incident here, they
were admissible because they were similar to the
charged offense. We agree that the trial court abused
its discretion in granting the motion in limine and pre-
cluding this evidence.
We conclude, however, that the error was harmless.
‘‘When an improper evidentiary ruling is not constitu-
tional in nature, the defendant bears the burden of dem-
onstrating that the error was harmful. . . . [W]hether
[an improper ruling] is harmless in a particular case
depends upon a number of factors, such as the impor-
tance of the witness’ testimony in the prosecution’s
case . . . the presence or absence of evidence corrob-
orating or contradicting the testimony of the witness
on material points . . . and, of course, the overall
strength of the prosecution’s case. . . . Most import-
antly, we must examine the impact of the . . . evi-
dence on the trier of fact and the result of the trial.
. . . [T]he proper standard for determining whether
an erroneous evidentiary ruling is harmless should be
whether the jury’s verdict was substantially swayed by
the error. . . . Accordingly, a nonconstitutional error
is harmless when an appellate court has a fair assurance
that the error did not substantially affect the verdict.’’
(Internal quotation marks omitted.) State v. Eleck, 314
Conn. 123, 129, 100 A.3d 817 (2014).
Here, the defendant has failed to persuade us that
the exclusion of the evidence substantially affected the
verdict. Our review of the record demonstrates that
there was ample evidence before the jury that the defen-
dant was the initial aggressor when he struck the victim.
Every eyewitness who testified stated that the assault
was unprovoked. Introducing evidence that the victim
was involved in two subsequent acts of aggression
toward a domestic partner would not have substantially
affected the verdict and prejudiced the defendant. We
conclude that there was no harm.
The judgment is affirmed.
In this opinion the other judges concurred.
1
At the time the defendant applied for accelerated rehabilitation, General
Statutes (Supp. 2012) § 54-56e, as amended by Public Acts 2012, No. 12-42,
§ 2, provided in relevant part: ‘‘(a) There shall be a pretrial program for
accelerated rehabilitation of persons accused of a crime or crimes or a
motor vehicle violation or violations for which a sentence to a term of
imprisonment may be imposed, in which crimes or violations are not of a
serious nature. (b) The court may, in its discretion, invoke such program
on motion of the defendant or on motion of a state’s attorney or prosecuting
attorney with respect to a defendant (1) who, the court believes, will proba-
bly not offend in the future, (2) who has no previous record of conviction
of a crime or of a violation of section 14-196, subsection (c) of section 14-
215, section 14-222a, subsection (a) of section 14-224 or section 14-227a,
and (3) who states under oath, in open court or before any person designated
by the clerk and duly authorized to administer oaths, under the penalties
of perjury, that the defendant has never had such program invoked in the
defendant’s behalf or, with respect to a defendant who is a veteran, that
the defendant has not had such program invoked in the defendant’s behalf
more than once previously, provided the defendant shall agree thereto and
provided notice has been given by the defendant, on a form approved by
rule of court, to the victim or victims of such crime or motor vehicle violation,
if any, by registered or certified mail and such victim or victims have an
opportunity to be heard thereon. . . .’’
2
General Statutes § 54-56l provides in relevant part: ‘‘(a) There shall be
a supervised diversionary program for persons with psychiatric disabilities,
or persons who are veterans, who are accused of a crime or crimes or a
motor vehicle violation or violations for which a sentence to a term of
imprisonment may be imposed, which crimes or violations are not of a
serious nature. For the purposes of this section . . . (2) ‘veteran’ means a
person who is found, pursuant to subsection (d) of this section, to have a
mental health condition that is amenable to treatment, and who was dis-
charged or released under conditions other than dishonorable from active
service in the armed forces as defined in section 27-103. . . .’’