State v. Irizarry , 190 Conn. App. 40 ( 2019 )

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STATE OF CONNECTICUT v. FELIX A. IRIZARRY
(AC 39394)
Alvord, Sheldon and Pellegrino, Js.
Syllabus
Convicted of the crimes of assault in the second degree and breach of the
peace in the second degree in connection with his conduct in striking
the victim several times with a golf club, causing the victim to suffer
injuries that included a fractured jaw, the defendant appealed to this
court. He claimed, inter alia, that the evidence was insufficient to support
his conviction of assault in the second degree in violation of statute
(§ 53a-60 [a] [1]) because the state did not establish that he caused the
victim serious physical injury, as defined by statute (§ 53a-3 [4]). Held:
1. The defendant’s claim that the evidence was insufficient to support his
conviction of assault in the second degree was unavailing, as the jury
reasonably could have concluded that the victim suffered physical injury
that caused serious impairment of his health such that he suffered
serious physical injury within the meaning of §§ 53a-3 (4) and 53a-60
(a) (1); the defendant struck the victim with a golf club at least three
times, which caused the fracture of the victim’s jaw and affected his
consciousness, the victim testified that his jaw was still fractured almost
two years after the attack, and the testimony at trial and the victim’s
medical records established that his injuries had a lasting effect on the
functioning of his jaw and resulted in a material modification to his diet
after the attack.
2. The defendant could not prevail on his claim that he was deprived of his
constitutional right to a fair trial as a result of an improper statement
made by the prosecutor during closing argument to the jury: although
the prosecutor improperly argued that the victim’s treating physician,
R, had testified that the kind of blunt force trauma that the victim
experienced could cause a serious brain injury, as the court had sus-
tained the defendant’s objection to R’s testimony as to whether the blunt
force trauma experienced by the victim could lead to a concussion or
brain damage, that impropriety was not so egregious that it deprived
the defendant of a fair trial, as the prosecutor’s comment was too remote
to be harmful, it was not germane to whether the victim’s broken jaw
constituted a serious physical injury, and the court’s instructions to the
jury focused on the charge as presented in the information and reoriented
the jury’s focus to whether the broken jaw constituted a serious physical
injury; moreover, the prosecutor’s reference to the physician’s testimony
was an isolated comment that did not conform to a pattern of conduct
that was repeated throughout the trial, and the court’s instruction to
the jury that argument and statements by attorneys during closing argu-
ment are not to be considered as evidence was sufficiently curative,
and eliminated any danger that the prosecutor’s comment might have
misled the jury.
Argued January 17—officially released May 14, 2019
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with two counts each of the
crimes of assault in the second degree and breach of
the peace in the second degree, and, in the second part,
with being a persistent serious felony offender, brought
to the Superior Court in the judicial district of New
Britain, geographical area number fifteen, where the
first part of the information was tried to the jury before
D’Addabbo, J.; verdict of guilty; thereafter, the second
part of the information was tried to the court; judgment
of guilty, from which the defendant appealed to this
court. Affirmed.
Peter G. Billings, assigned counsel, with whom, on
the brief, was Zachary E. Reiland, assigned counsel,
for the appellant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Brian Preleski, state’s attor-
ney, and Evelyn Rojas, assistant state’s attorney, for
the appellee (state).
Opinion
PELLEGRINO, J. The defendant, Felix A. Irizarry,
appeals from the judgment of conviction, rendered
against him following a jury trial on one count each of
assault in the second degree in violation of General
Statutes § 53a-60 (a) (1) and (2), and one count each
of breach of the peace in the second degree in violation
of General Statutes § 53a-181 (a) (1) and (2). On appeal,
the defendant claims that (1) the evidence was insuffi-
cient to support his conviction of second degree assault
in violation of § 53a-60 (a) (1), and (2) prosecutorial
improprieties during closing argument resulted in the
violation of his right to a fair trial. We disagree and,
accordingly, affirm the judgment of the trial court.
The jury was presented with the following evidence
on which to base its verdict. On March 22, 2014, the
victim, David Bennett, was standing in front of a neigh-
borhood market in New Britain when he encountered
the defendant exiting the market. After a short verbal
exchange between them, the defendant retrieved a golf
club from a vehicle parked on the opposite side of the
street and began to chase the victim. During the course
of his pursuit, the defendant struck the victim several
times with the golf club, including once in the arm and
once in the face, which resulted in the victim being
knocked to the ground. While the victim was on the
ground, the defendant continued to strike him with the
club, hitting him at least once in the chest. An eyewit-
ness called 911 and reported the incident. The defen-
dant was later arrested when a truck matching the
description of the vehicle that fled the scene of the
assault was stopped by New Britain police. The defen-
dant was found crouching in the rear cargo hold of the
vehicle. A golf club was also found in the vehicle.
In a four count information, the defendant was
charged with assault in the second degree in violation
of § 53a-60 (a) (1),1 assault in the second degree in
violation of § 53a-60 (a) (2),2 breach of the peace in the
second degree in violation of § 53a-181 (a) (1), and
breach of the peace in the second degree in violation
of § 53a-181 (a) (2).3 During the five day trial, the jury
heard testimony with respect to the assault and the
victim’s injuries, which included an admission by the
defendant that he struck the victim with a golf club.
As a result of the assault, the victim experienced a
momentary loss of consciousness and suffered a frac-
tured jaw. Emergency medical responders found that
the victim was bleeding from his left ear when they
arrived at the scene.
The victim’s treating physician, Paul Edward Russo,
Jr., testified at trial that the victim sustained injuries
to his left cheek, left jaw, right forearm and chest wall.
Russo further testified that when the victim presented
at the hospital emergency department, his arm was
tender and swollen, with a visible contusion and skin
avulsion, in addition to a contusion on the left side of the
face. A computerized axial tomography scan revealed
a nondisplaced fracture of the victim’s lower jaw. Three
sutures were necessary to close the wound on the vic-
tim’s face. The victim was discharged from the hospital
after he was treated with antibiotics and analgesics,
with instructions that he restrict his diet to liquid puree.
He was further instructed to follow-up at a maxillofacial
clinic regarding his jaw injury. The victim testified that,
as of the date of trial, his jaw still was not fully healed.
As part of his trial strategy, the defendant chose to
testify in his own defense. Specifically, he testified that,
although he did, in fact, strike the defendant, he did so
in self-defense. Despite the defendant’s testimony, the
jury found the defendant guilty on all charges. On May
26, 2016, the defendant was sentenced to seven years of
incarceration, followed by three years of special parole.4
This appeal followed.
The defendant raises two claims on appeal. The
defendant first claims that there was insufficient evi-
dence to convict him of assault in the second degree
under § 53a-60 (a) (1), in that the state did not establish
that he caused ‘‘serious physical injury’’ to the victim,
as defined by General Statutes § 53a-3 (4).5 Second, the
defendant claims that he was deprived of a fair trial
because of prosecutorial improprieties during closing
argument, in particular, the prosecutor’s reference to
and reliance on facts not in the record. Additional facts
and procedural history will be set forth as necessary.
I
The defendant first claims that the evidence pre-
sented at trial was insufficient to establish, beyond a
reasonable doubt, that he caused ‘‘serious physical
injury’’ to the victim, as defined by § 53a-3 (4). We
disagree.
‘‘A person can be found guilty of assault in the second
degree under . . . § 53a-60 [(a) (1)] only if he causes
serious physical injury to another person.’’ (Emphasis
omitted.) State v. McCulley, 5 Conn. App. 612, 615, 501
A.2d 392 (1985). Section 53a-3 (4) defines ‘‘serious phys-
ical injury’’ as any ‘‘physical injury which creates a
substantial risk of death, or which causes serious disfig-
urement, serious impairment of health or serious loss
or impairment of the function of any bodily organ.’’
‘‘[S]erious physical injury’’ does not require a showing
of permanency; State v. Barretta, 82 Conn. App. 684,
689, 846 A.2d 946, cert. denied, 270 Conn. 905, 853 A.2d
522 (2004); or ‘‘require expert medical testimony,’’ so
long as ‘‘there [is] . . . sufficient direct or circumstan-
tial evidence or a combination of both presented to
the jury from which it may find such injury.’’ State v.
Rumore, 28 Conn. App. 402, 414, 613 A.2d 1328, cert.
denied, 224 Conn. 906, 615 A.2d 1049 (1992). Whether
an injury constitutes a ‘‘serious physical injury,’’ for the
purpose of § 53a-60 (a) (1), is a fact intensive inquiry
and, therefore, is a question for the jury to determine.
State v. Ovechka, 292 Conn. 533, 545–47, 975 A.2d 1
(2009).6
‘‘In reviewing a sufficiency of the evidence claim, we
apply a two part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [jury] reasonably could have concluded that the
cumulative force of the evidence established guilt
beyond a reasonable doubt . . . . This court cannot
substitute its own judgment for that of the jury if there
is sufficient evidence to support the jury’s verdict. . . .
On appeal, we do not ask whether there is a reasonable
view of the evidence that would support a reasonable
hypothesis of innocence. We ask, instead, whether there
is a reasonable view of the evidence that supports the
jury’s verdict of guilty.’’ (Internal quotation marks omit-
ted.) State v. Stephen J. R., 309 Conn. 586, 593–94, 72
A.3d 379 (2013).
At trial, the emergency medical services responder,
the victim’s emergency department treating physician,
and the victim all testified as to the injuries sustained
by the victim.7 During the state’s direct examination of
the victim, the victim testified: ‘‘[The defendant] hit me
in the jaw and it fractured my jaw. My whole jaw [was]
dislocated.’’ The victim further testified: ‘‘I stepped back
in defense . . . trying to avoid being hit. He swung
several times . . . [and] hit me several times. . . .
[O]nce in the jaw, once in the rib cage, took a divot
out of my wrist. I still have the mark there and I still
have the fractured jaw . . . .’’ (Emphasis added.) The
following exchange between the state and the victim
took place:
‘‘[The Prosecutor]: After he hit you in the jaw . . .
[w]as that the point where you fell down?
‘‘[The Witness]: That’s when I fell to the ground.
***
‘‘[The Prosecutor]: When you fell down on the ground,
did you lose consciousness . . . .
‘‘[The Witness]: For a quick second . . . . When I
got struck I fell to my knees . . . . I can say that I was
. . . dazed, really dazed. . . .
‘‘[The Prosecutor]: So, you weren’t fully conscious
but you were dazed.
‘‘[The Witness]: I was dizzy . . . .’’
On the last day of evidence, during the state’s direct
examination of Dr. Russo, the following exchange
also occurred:
‘‘[The Prosecutor]: [The victim] suffered a head con-
tusion, correct?
‘‘[The Witness]: Correct.
‘‘[The Prosecutor]: Where in the head did he receive
a head contusion?
‘‘[The Witness]: The left face.
‘‘[The Prosecutor]: The left face, and based on your
training and your experience in your examination of
[the victim], what, if anything, is a head contusion indic-
ative of?
‘‘[The Witness]: Blunt force injury to the head.’’
Russo further testified that, as a result of the blunt
force injury, the victim suffered a nondisplaced fracture
to the lower jaw and a facial laceration requiring three
sutures. Medical records admitted into evidence indi-
cated that the victim was directed to maintain a liquid
puree diet after his discharge due to the injury to his
lower jaw. See State v. Lewis, 146 Conn. App. 589,
608–609, 79 A.3d 102 (2013), cert. denied, 311 Conn.
904, 83 A.3d 605 (2014).
As discussed in Ovechka, ‘‘serious physical injury’’
may include a range of injuries and is a fact based
inquiry for the jury to decide. In reaching its conclusion
that ‘‘temporary blindness, chemical conjunctivitis and
chemical burns suffered by [the victim] constituted suf-
ficient evidence of [s]erious physical injury under § 53a-
3 (4)’’; (internal quotation marks omitted) State v.
Ovechka, supra, 292 Conn. 547; our Supreme Court con-
sidered a number of its prior decisions in which it had
upheld jury findings that ‘‘serious physical injury’’ had
been inflicted. Compare State v. Barretta, supra, 82
Conn. App. 690 (upholding judgment of conviction
where victim suffered extensive bruises and abrasions),
with State v. Sawicki, 173 Conn. 389, 395, 377 A.2d 1103
(1977) (upholding judgment of conviction where victim
suffered significant facial fractures). We believe that
these cases are instructive with respect to the pre-
sent case.
Here, the defendant struck the victim with the head
of a golf club at least three times: once in the arm; once
in the face, causing the fracture of the lower jaw and
thereby affecting his consciousness; and once in the
chest, after he had fallen to the ground. These blows
caused the victim to suffer contusions, abrasions, and
bleeding from his ear. Furthermore, almost two years
after the attack, the victim testified that his jaw was still
fractured. Although permanency is not a requirement
of ‘‘serious physical injury,’’ under the present circum-
stances, the lasting effects of the injuries on the victim
are certainly relevant when considering the defendant’s
claim. Moreover, testimony and medical records admit-
ted into evidence also established that the victim’s injur-
ies had a lasting effect on the functioning of his jaw
and resulted in a material modification to his diet for
a period after the attack. On the basis of the evidence
in the record and the inferences that reasonably could
be drawn therefrom, construed in the light most favor-
able to sustaining the verdict, the jury reasonably could
have concluded that victim suffered physical injury that
caused ‘‘serious impairment of health,’’ such that he
suffered ‘‘serious physical injury’’ under §§ 53a-3 (4)
and 53a-60 (a) (1). See State v. Lewis, supra, 146 Conn.
App. 609. Accordingly, the defendant’s claim must fail.
II
Next, the defendant claims that he was deprived of his
constitutional right to a fair trial because the prosecutor
committed certain acts of impropriety during closing
argument by arguing facts not in evidence. Specifically,
the defendant claims that the prosecutor’s argument
regarding Russo’s testimony, which addressed whether
the kind of blunt force trauma experienced by the victim
could cause a serious brain injury, was improper.8 We
agree with the defendant that the prosecutor’s argument
with respect to Russo’s testimony was improper. We
agree with the state, however, that it did not deprive
the defendant of his constitutional right to a fair trial.
The following standard of review informs our resolu-
tion of the defendant’s claim. ‘‘In analyzing claims of
prosecutorial impropriety, we engage in a two step ana-
lytical process. . . . The two steps are separate and
distinct. . . . We first examine whether prosecutorial
impropriety occurred. . . . Second, if an impropriety
exists, we then examine whether it deprived the defen-
dant of his due process right to a fair trial. . . . In other
words, an impropriety is an impropriety, regardless of
its ultimate effect on the fairness of the trial. Whether
that impropriety was harmful and thus caused or con-
tributed to a due process violation involves a separate
and distinct inquiry.’’9 (Citations omitted.) State v.
Fauci, 282 Conn. 23, 32, 917 A.2d 978 (2007). ‘‘[If] a
defendant raises on appeal a claim that improper
remarks by the prosecutor deprived the defendant of
his constitutional right to a fair trial, the burden is on
the defendant to show . . . that the remarks were
improper . . . .’’ (Internal quotation marks omitted.)
State v. Taft, 306 Conn. 749, 762, 51 A.3d 988 (2012).
Moreover, because the claimed prosecutorial impro-
prieties occurred during closing arguments, we look to
the following legal principles. ‘‘In determining whether
such [an impropriety] has occurred, the reviewing court
must give due deference to the fact that [c]ounsel must
be allowed a generous latitude in argument, as the limits
of legitimate argument and fair comment cannot be
determined precisely by rule and line, and something
must be allowed for the zeal of counsel in the heat of
argument. . . . Thus, as the state’s advocate, a prose-
cutor may argue the state’s case forcefully, [provided
the argument is] fair and based upon the facts in evi-
dence and the reasonable inferences to be drawn there-
from.’’ (Internal quotation marks omitted.) State v.
Miller, 128 Conn. App. 528, 535, 16 A.3d 1272, cert.
denied, 301 Conn. 924, 22 A.3d 1279 (2011). ‘‘Neverthe-
less, the prosecutor has a heightened duty to avoid
argument that strays from the evidence or diverts the
jury’s attention from the facts of the case.’’ (Internal
quotation marks omitted.) State v. Maguire, 310 Conn.
535, 553–54, 78 A.3d 828 (2013). ‘‘In fulfilling his duties,
a prosecutor must confine the arguments to the evi-
dence in the record. . . . Statements as to facts that
have not been proven amount to unsworn testimony
that is not the subject of proper closing argument.’’
(Citation omitted.) State v. Copas, 252 Conn. 318, 349,
746 A.2d 761 (2000).
At trial, during Russo’s direct testimony, the state
asked whether the type of injury sustained by the victim
‘‘could . . . lead to a concussion’’ or ‘‘could lead to a
brain injury?’’ (Emphasis added.) Russo answered in
the affirmative. Thereafter, defense counsel objected:
‘‘[Y]our Honor, this is based on speculation. The ques-
tion was, could it—the previous question was could it.
. . . [M]edical testimony has to be more certain than
that.’’ (Emphasis added.) The court sustained the objec-
tion, stating: ‘‘The area of examination is appropriate.
The form of the question is not.’’ After additional unsuc-
cessful attempts at properly framing the question, the
state ceased the line of inquiry.
Despite the foregoing, during the state’s closing argu-
ment as to count two, the prosecutor argued: ‘‘Now,
ask yourself, is a golf club a dangerous instrument?
. . . [Is it] capable of causing death or serious physical
injury? . . . The state submits to you that when you
look at all the evidence, the injuries that the defendant
caused [the victim] when he struck him with the golf
club; [t]he fact that [the victim] had to get stitches to
his jaw, and the testimony of Dr. Russo that a force
blunt blow to the head like the one that [the victim]
received with the golf club could cause a concussion
or brain damage . . . you could find beyond a reason-
able doubt that . . . the defendant used . . . a dan-
gerous instrument . . . .’’10 (Emphasis added.)
In response to the prosecutor’s argument, defense
counsel emphasized in his closing argument that ‘‘[t]he
evidence that the state referred to is not in this case.
The evidence that this injury could have led to a concus-
sion or brain damage, I suggest to you . . . [is] not in
this case. I suggest to you that Dr. Russo gave you no
evidence from which you could find serious physical
injury in this case.’’11 (Emphasis added.)
After the conclusion of closing argument and after
the jury had been excused for a short recess, defense
counsel raised the following objection with the court:
‘‘[T]he state’s argument that . . . the jaw fracture
could have led to a concussion and then brain damage,
[which] was the subject of my objections during the
case . . . I do not believe . . . is evidence in [the
record].’’ The court explained that it would address
defense counsel’s objection in the following way: ‘‘In
my instructions, I stress in the first part that the . . .
arguments of the attorneys are not evidence. If the
evidence is different from what they believe the evi-
dence is, they are to follow their own [recollection].
. . . So, your comments are noted, but you will see
that I’ve addressed that situation.’’ Thereafter, during
the jury charge, the court provided a general charge
explaining that argument is not evidence.12
The state contends that the prosecutor’s argument
simply urged the jury, on the basis of Russo’s testimony,
to draw a reasonable inference that a golf club, when
swung at a person’s head, could be considered a danger-
ous instrument that could cause serious injury. We find
this claim unpersuasive under the present circum-
stances. It is true that, ordinarily or absent some com-
pelling reason to the contrary, this may be a reasonable
inference to draw. It is also true that, ‘‘[w]hile the privi-
lege of counsel in addressing the jury should not be
too closely narrowed or unduly hampered, it must never
be used as a license to state, or to comment [on], or
to suggest an inference from, facts not in evidence, or
to present matters which the jury ha[s] no right to
consider.’’ (Internal quotation marks omitted.) State v.
Maguire, supra, 310 Conn. 553–54.
Here, the state’s argument went beyond merely
encouraging the jury to draw an inference—it argued
the very evidence that the court had excluded from
the record. Although a prosecutor is free to advance
conclusions reasonably supported by the evidence, he
or she may not use closing argument to argue evidence
that has been excluded by the court. See id., 554.
Because the court sustained defense counsel’s objec-
tion to Russo’s testimony as to whether the blunt force
trauma experienced by the victim could lead to a con-
cussion or brain damage, we agree with the defendant
that the argument was improper. See State v. Ross, 151
Conn. App. 687, 698–99, 95 A.3d 1208, cert. denied,
314 Conn. 926, 101 A.3d 271, 272 (2014). We conclude,
however, that the improper argument was harmless.
In considering the defendant’s claim that the prosecu-
tor’s improper argument deprived him of the constitu-
tional right to a fair trial, we begin by noting that, during
the court’s charge to the jury, the court made the follow-
ing statement: ‘‘[T]he defendant has been charged in
an information. The information has been read to you
at the beginning of the trial and will be with you during
your deliberations. . . . Each count alleges a separate
crime. It will be your duty to consider each count sepa-
rately in deciding the guilt or not guilty of the defen-
dant.’’ The court continued by providing the jury with a
description of each charge, as provided in the amended
long form information. The court stated in relevant part:
‘‘Count one, assault in the [second] degree . . . [the
defendant], with intent to cause serious physical injury
to another person, caused such injury to such person,
to wit, fractured the mandible of [the victim], in viola-
tion of § 53a-60 (a) (1) of the Connecticut General Stat-
utes.’’ (Emphasis added.)
We further note that the court, by focusing its instruc-
tion as to count one on the specific conduct alleged in
the long form information, namely, that the defendant
had violated § 53a-60 (a) (1) because he ‘‘fractured the
mandible of [the victim],’’ in effect, isolated and, ren-
dered irrelevant, the prosecutor’s improper argument.13
Although an alternative theory of ‘‘serious physical
injury’’ relating to the victim’s consciousness was
advanced by the prosecutor, the subsequent instruction
focusing on the charge as presented in the long form
information was material with respect to the defen-
dant’s claim. As discussed previously in this opinion,
our review of the record indicates that there was suffi-
cient evidence presented at trial to support the conclu-
sion that, as a result of the fractured mandible, the
victim suffered a ‘‘serious physical injury.’’ Here,
because the court’s instruction re-oriented the jury’s
focus to the issue of whether the victim’s broken jaw
constituted a ‘‘serious physical injury,’’ and because the
prosecutor’s reference to the excluded testimony did
not relate to whether the victim’s broken jaw consti-
tuted a ‘‘serious physical injury,’’ the state’s improper
argument was too remote, in the context of the present
appeal, to be considered harmful.
Furthermore, the prosecutor’s reference to Russo’s
testimony was an isolated instance that did not conform
to a pattern of conduct repeated throughout the trial.
Although the court declined to provide the jury with a
specific instruction addressing the improper argument,
the court did provide a general instruction emphasizing
that argument is not evidence and that statements made
during closing argument by the attorneys are not to be
considered as evidence. Given the underlying facts of
this case, the isolated nature of the prosecutor’s argu-
ment, and the fact that the improper argument was not
germane to the issue of whether the victim’s broken
jaw constituted a ‘‘serious physical injury,’’ we conclude
that the court’s general instruction was sufficiently
curative and eliminated any danger that the prosecu-
tor’s improper comment might mislead the jury.14
Accordingly, we conclude that, despite the prosecutor’s
improper statement during closing argument, the
impropriety was not so egregious that it deprived the
defendant of his constitutional right to a fair trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-60 (a) (1) provides that a person is guilty of assault
in the second degree when, ‘‘[w]ith intent to cause serious physical injury
to another person, the actor causes such injury to such person or to a third
person . . . .’’
Count one of the substitute long form information provides: ‘‘[The defen-
dant], with intent to cause serious physical injury to another person, caused
such injury to such person (to wit: fractured the mandible of [the victim])
in violation of [§] 53a-60 (a) (1) . . . .’’
2
General Statutes § 53a-60 (a) (2) provides that a person is guilty of assault
in the second degree when, ‘‘with intent to cause physical injury to another
person, the actor causes such injury to such person or to a third person by
means of a deadly weapon or a dangerous instrument other than by means
of the discharge of a firearm . . . .’’
Count two of the substitute long form information provides: ‘‘[The defen-
dant], with intent to cause physical injury to another person, caused such
injury to such person by means of a dangerous instrument (to wit: [the
defendant] struck [the victim] with a golf club) in violation of [§] 53a-60 (a)
(2) . . . .’’
3
On appeal, the defendant does not challenge his conviction under § 53a-
60 (a) (2) or under § 53a-181 (a) (1) or (2).
4
As to count one, the defendant was sentenced to seven years of incarcera-
tion, followed by three years of special parole. As to count two, the defendant
was sentenced to seven years of incarceration, followed by three years of
special parole, to run concurrent with the sentence imposed on count one.
5
General Statutes § 53a-3 (4) provides: ‘‘ ‘Serious physical injury’ means
physical injury which creates a substantial risk of death, or which causes
serious disfigurement, serious impairment of health or serious loss or impair-
ment of the function of any bodily organ . . . .’’
6
In Ovechka, our Supreme Court considered what constituted a ‘‘serious
physical injury’’ and concluded that, in the case before it, ‘‘temporary blind-
ness, chemical conjunctivitis and chemical burns suffered by [the victim]
constituted sufficient evidence of [s]erious physical injury under § 53a-3 (4)
. . . .’’ (Internal quotation marks omitted.) State v. Ovechka, supra, 292
Conn. 547. In its discussion of the issue, the court noted that ‘‘[despite] the
difficulty of drawing a precise line as to where physical injury leaves off
and serious physical injury begins . . . we remain mindful that [w]e do not
sit as a [seventh] juror who may cast a vote against the verdict based upon
our feeling that some doubt of guilt is shown by the cold printed record
. . . and that we must construe the evidence in the light most favorable to
sustaining the verdict.’’ (Citations omitted; internal quotation marks omit-
ted.) Id., 546–47.
7
The emergency medical services responder who attended to the victim
at the scene of the incident testified that ‘‘[the victim] sustained injury to
his right forearm and injuries to the left side of his face,’’ and that the victim
‘‘had a laceration to his right arm . . . and he had some blood coming from
his left ear.’’
8
The defendant also claims that the prosecutor was guilty of certain
improprieties during her rebuttal argument. Specifically, the defendant
claims that the prosecutor argued that the victim had a permanent scar on
his arm, as a result of being struck with the golf club, a fact that he claims
was not in evidence. The record indicates that the victim testified at trial
to the following: ‘‘[The defendant] hit me several times. . . . [O]nce in the
jaw, once in the rib cage, took a divot out of my wrist. I still have the mark
there and I still have the fractured jaw . . . .’’ (Emphasis added.) Given the
nature of the foregoing testimony, namely, that the victim had a lasting
mark on his arm almost two years after the altercation, we conclude that
this statement during rebuttal argument was within the bounds of reasonable
conduct. See State v. Miller, 128 Conn. App. 528, 535, 16 A.3d 1272, cert.
denied, 301 Conn. 924, 22 A.3d 1279 (2011).
9
‘‘The question of whether the defendant has been prejudiced by prosecu-
torial [impropriety] . . . depends on whether there is a reasonable likeli-
hood that the jury’s verdict would have been different absent the sum total
of the improprieties. . . . This assessment is made through application of
the factors set forth in State v. Williams, [204 Conn. 523, 540, 529 A.2d 653
(1987)] . . . . These factors include: the extent to which the [impropriety]
was invited by defense conduct or argument . . . the severity of the [impro-
priety] . . . the frequency of the [impropriety] . . . the centrality of the
[impropriety] to the critical issues in the case . . . the strength of the
curative measures adopted . . . and the strength of the state’s case.’’ (Inter-
nal quotation marks omitted.) State v. Daniel W., 180 Conn. App. 76, 111–12,
182 A.3d 665, cert. denied, 328 Conn. 929, 182 A.3d 638 (2018).
10
When addressing the issue of whether the victim suffered a ‘‘serious
physical injury,’’ as to count one, the prosecutor did not argue the excluded
testimony. Rather, the prosecutor made the following statement to the jury:
‘‘Now, what evidence do you have that the defendant caused [the victim]
a serious impairment to his health? You have the testimony of Dr. Russo,
who testified that [the victim’s] jaw was fractured and that it required
stitches. You also heard [the victim’s] testimony that when he was struck
in the face, he was in a lot of pain, and he was dazed, and he almost
lost consciousness.’’
11
Defense counsel further advanced his theory of the case as to ‘‘serious
physical injury’’ by arguing: ‘‘Remember what the [emergency medical techni-
cian] said . . . . He said these injuries were minor, and Dr. Russo never
said anything to contrary. . . . [I]f you’ve ever had a broken bone, you sort
of know what the difference is between a nondisplaced and a displaced
fracture.’’
12
The court instructed the jury: ‘‘In reaching your verdict, you should
consider all the testimony and exhibits received into evidence. Certain things
are not evidence, and you may not consider them in deciding what the facts
are. These include (1) the arguments and statements by the lawyers. The
lawyers are not witnesses. What they have said in their closing arguments
is intended to help you interpret the evidence, but it is not evidence.’’
13
See footnote 1 of this opinion.
14
We further note that, instead of objecting at the time the argument was
made, defense counsel delayed his objection and waited until his closing
argument to address the impropriety, and did so in such a way that was
tactically beneficial to the defendant. Said differently, by reframing the
prosecutor’s statement so that it cast doubt on count one, rather than on
count two—the context in which the statement originally was made—
defense counsel was able to use the prosecutor’s remark to bolster the
defendant’s claim that there was insufficient evidence of ‘‘serious physi-
cal injury.’’