State v. Dijmarescu ( 2018 )

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STATE OF CONNECTICUT v. GHEORGHE
DIJMARESCU
(AC 39745)
Alvord, Prescott and Bear, Js.
Syllabus
Convicted of the crime of breach of the peace in the second degree in
connection with an incident in which he struck his wife, L, during an
argument, the defendant appealed to this court. He claimed, inter alia,
that the trial court improperly admitted certain evidence of prior
uncharged misconduct, which pertained to an incident in which he
allegedly punched L. The state conceded at oral argument that the trial
court abused its discretion in admitting the challenged evidence but
claimed that any such error was harmless. Held:
1. The trial court did not abuse its discretion in granting the motion filed
by the defendant’s counsel to withdraw from representation, which was
filed the same day as it was argued: the record made clear that the
defendant had actual notice of counsel’s intention to withdraw, as the
defendant indicated in response to a question by the court that he
was aware of his counsel’s intention to withdraw prior to the court’s
consideration of the motion, counsel complied with the purpose of the
notice provision in the applicable rule of practice (§ 3-10 [a]), the trial
court’s conclusion that communication had broken down could properly
constitute good cause for counsel to withdraw, and to the extent that
the court did not sufficiently explain, in detail, why it determined that
counsel had demonstrated good cause to withdraw, the failure to do so
did not result in an abuse of discretion because the court was entitled
to rely on the representations of counsel, who indicated that the defen-
dant had made representation by him unreasonably difficult and that
he tried to prepare the defendant for trial but met some resistance
and had difficulty getting the defendant to cooperate with him, which
supported a conclusion that counsel had good cause to withdraw; more-
over, the defendant did not demonstrate any material adverse effect on
him related to the timing of counsel’s withdrawal, as the motion to
withdraw was filed long before trial commenced and did not implicate
the defendant’s sixth amendment right to counsel.
2. The defendant did not meet his burden to establish that the trial court’s
admission of the uncharged misconduct evidence substantially affected
the verdict, and, therefore, the admission of that evidence was harmless;
there was overwhelming evidence to support the defendant’s conviction
of breach of the peace in the second degree, as L’s testimony that he
slammed her head into a table was corroborated by medical records,
and the testimony of a police officer and a worker at a women’s shelter,
the defendant’s intent to cause L alarm was supported by her testimony
that she feared him and did not want to return to the marital home, the
court’s jury instructions regarding the proper purpose for which the
uncharged misconduct could be considered mitigated the risk that the
jury would assume that the defendant had a propensity to engage in
abusive behavior toward L, defense counsel extensively cross-examined
L, the alleged uncharged misconduct was not so much more severe than
the charged conduct such that there was a substantial risk that the
jury’s passions would be unduly aroused, and the state mentioned the
prior misconduct only once during its closing argument.
3. The defendant’s claim that the trial court’s failure to canvass him regarding
his decision to testify violated his right against self-incrimination was
unavailing; the court was under no obligation to inquire of the defendant
whether his decision to testify was intelligent and voluntary, as he was
represented by counsel throughout trial, and the circumstances here
did not call for the exercise of this court’s supervisory authority over
the administration of justice.
Argued January 8—officially released May 22, 2018
Procedural History
Substitute information charging the defendant with
the crimes of assault in the third degree and breach of
the peace in the second degree, brought to the Superior
Court in the judicial district of Hartford, geographical
area number fourteen, where the court, Johnson, J.,
granted the motion to withdraw from representation
filed by the defendant’s counsel; thereafter, the matter
was tried to the jury before Mullarkey, J.; subsequently,
the court, Mullarkey, J., denied the defendant’s motion
to preclude certain evidence; verdict and judgment of
guilty of breach of the peace in the second degree, from
which the defendant appealed to this court. Affirmed.
John L. Cordani, Jr., assigned counsel, for the appel-
lant (defendant).
Rita M. Shair, senior assistant state’s attorney, with
whom were Gail P. Hardy, state’s attorney, and, on
the brief, Michael J. Weber, Jr., senior assistant state’s
attorney, for the appellee (state).
Opinion
PRESCOTT, J. The defendant, Gheorghe Dijmarescu,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of breach of the peace in the
second degree in violation of General Statutes § 53a-
181 (a) (2). On appeal, the defendant claims that the
trial court (1) violated his sixth amendment right to
counsel by improperly granting his attorney’s motion
to withdraw, (2) improperly admitted evidence of his
uncharged misconduct, and (3) violated his right against
self-incrimination by not canvassing him before he
elected to testify. We disagree and, accordingly, affirm
the judgment of the trial court.
The jury reasonably could have found the following
facts. The defendant and the victim, L,1 both are accom-
plished mountaineers. In 2000, the two met at a party
hosted by the governments of Pakistan and Nepal after
L successfully summited Mount Everest. In May, 2002,
the couple was married in Connecticut. They have
two children.
During their marriage, the defendant and L climbed
Mount Everest together several times. The defendant
also occasionally went on climbing expeditions by him-
self, leaving L and the children behind at their home in
Connecticut. When he was not away, the defendant
managed his own construction company, while L took
care of the couple’s two children and the defendant’s
ailing father.
On July 1, 2012, L went grocery shopping and discov-
ered that the family’s food stamp card was not working.
She called the defendant at work and he became angry.
At about 7 or 8 p.m., the defendant arrived home. L
was in the kitchen cutting an onion. The two then got
into an argument regarding the food stamp card. At one
point during the argument L said something in her native
language, and the defendant struck her.2 The defendant
then left the house and drove away in his truck.
After the defendant left, L called her friend and told
her that the defendant hit her. L’s friend advised her
to call the police. L then spoke with her brother, who
called the police on her behalf.
Shortly thereafter, the police arrived and interviewed
L. An ambulance and medical personnel also responded
to the scene, but L refused to go with them because
they would not allow her daughters to ride in the ambu-
lance with her. L then indicated to one of the police
officers that she did not feel safe at her home, so an
officer took her and her two daughters to a hospital
emergency department and arranged for them to stay at
a shelter. L’s examination at the emergency department
revealed that she had suffered no visible injuries to her
head, but that she did have several scratches on her
left forearm. L did not return to the marital home, and
Shortly after the incident, the defendant was arrested
and charged with assault in the third degree and breach
of the peace in the second degree. He was subsequently
tried before a jury. At trial, the defendant elected to
testify in his own defense.3
The jury found the defendant not guilty of assault in
the third degree but found him guilty of breach of the
peace in the second degree. He was sentenced to six
months of incarceration, execution suspended, fol-
lowed by one year of probation. Additional facts and
procedural history will be set forth as necessary.
I
The defendant first claims that the trial court violated
his sixth amendment right to counsel by granting the
motion to withdraw filed by his private attorney, Ray-
mond M. Hassett. Specifically, the defendant argues that
the court improperly granted the motion to withdraw
because the notice and good cause requirements set
forth in Practice Book § 3-10 (a) were not met. Because
we determine that, under the circumstances presented
here, the defendant had no sixth amendment right to
be represented by Hassett, our review of the defendant’s
claim is limited to whether the court abused its discre-
tion in granting the motion to withdraw. We further
conclude that the court did not abuse its discretion in
granting the motion to withdraw.
The following additional facts are relevant to the
resolution of the defendant’s claim. On July 17, 2012,
the defendant was arraigned. On that day, Hassett filed
an appearance on behalf of the defendant.
On July 10, 2013, the defendant and Hassett appeared
in court. At that time, Hassett requested that the court,
Johnson, J., allow him to withdraw as counsel.4 Hassett
presented the court with a written motion, although he
had not yet filed it. Hassett later filed the written motion
to withdraw with the clerk’s office.
The court then held a hearing on Hassett’s motion
to withdraw. Hassett told the court that he previously
had ‘‘numerous discussions with [the defendant]’’ and
that he ‘‘believed that there ha[d] been somewhat of a
breakdown of communication . . . .’’ Hassett further
stated that the defendant had been adamant ‘‘from day
one that he want[ed] to proceed to trial,’’ and that Has-
sett had ‘‘tried to prepare [the defendant] for trial and
prepare the case for trial’’ and had ‘‘met some
resistance.’’
Hassett also represented that ‘‘the major reason why’’
he was asking to withdraw from the case was that he
had difficulty getting the defendant to cooperate with
him. Hassett told the court that he had advised the
defendant that he needed to make a decision regarding
whether he wanted to proceed with the family violence
education program. See General Statutes § 46b-38c (h)
(1). When the defendant elected not to apply for the
program, Hassett explained to him the possible ramifi-
cations of going to trial. Finally, Hassett stated that,
despite the fact that he liked the defendant, he believed
that his ability to represent the defendant had been
compromised. The court then heard from the state,
which asked it to move the case to the trial list if the
defendant chose not to apply for the family violence
education program.
Next, the court asked the defendant whether he
agreed that he could no longer work with Hassett, to
which the defendant responded that he did not want
Hassett to withdraw because he thought Hassett was
an excellent attorney who could provide him with the
‘‘best representation . . . .’’ The defendant further
stated that, although he and Hassett had encountered
some obstacles, he believed that they could be
overcome.
The court then canvassed the defendant regarding his
opportunity to apply for the family violence education
program and informed the defendant that if he success-
fully participated in the program he would have his
charges dismissed. The defendant responded that Has-
sett had informed him of the same many times, both
verbally and in writing. The court then asked the defen-
dant whether he understood that, if he proceeded to
trial and was convicted, he faced the possibility of being
sentenced to eighteen months incarceration and $3000
in fines. The defendant replied that he understood but
nevertheless wanted to proceed to trial.
After canvassing the defendant, the court concluded
that ‘‘[b]ased on everything that I have heard, I am
[going to] grant the motion to have counsel withdraw
from the case. I agree with you. You have an excellent
attorney. Your attorney probably has given you the best
advice and has spent a considerable amount of time
with you. At this time, he feels, based on his experience,
that communication has broken down.’’ The court then
continued the case for approximately six weeks to allow
the defendant time to hire a new attorney.
On September 12, 2013, the defendant again appeared
before the court. At that time, the defendant told the
court that he had not yet retained an attorney because
he no longer could afford one and wanted to represent
himself. The court canvassed the defendant regarding
the risks of representing himself and decided to allow
the defendant to proceed as a self-represented litigant,
with an attorney from the public defender’s office acting
as standby counsel. On April 9, 2014, however, the
defendant was appointed a special public defender,
Attorney Robert A. Cushman. Cushman subsequently
entered a full appearance on behalf of the defendant
and represented him throughout his trial, which began
in December, 2015.
A
We first address whether the defendant had a sixth
amendment right to counsel of choice that was impli-
cated by the court’s decision to grant Hassett’s motion
to withdraw over the defendant’s objection. Whether
the defendant’s constitutional right to counsel of choice
was implicated presents a question of law, over which
our review is plenary. See State v. Peeler, 320 Conn.
567, 578, 133 A.3d 864, cert. denied, U.S. , 137
S. Ct. 110, 196 L. Ed. 2d 89 (2016).
The United States Supreme Court has stated that
although ‘‘the right to select and be represented by
one’s preferred attorney is comprehended by the [s]ixth
[a]mendment, the essential aim of the [a]mendment is
to guarantee an effective advocate for each criminal
defendant rather than to ensure that a defendant will
inexorably be represented by the lawyer whom he pre-
fers.’’ Wheat v. United States, 486 U.S. 153, 159, 108 S.
Ct. 1692, 100 L. Ed. 2d 140 (1988).
Indeed, ‘‘[t]he [s]ixth [a]mendment right to choose
one’s own counsel is circumscribed in several important
respects . . . [including that] a defendant may not
insist on representation by an attorney he cannot afford
or who for other reasons declines to represent the defen-
dant.’’ (Emphasis added.) Id. ‘‘[T]he [s]ixth [a]mend-
ment simply does not provide an inexorable right to
representation by a criminal defendant’s preferred law-
yer. . . . [T]here is no constitutional right to represen-
tation by a particular attorney.’’ (Citations omitted;
internal quotation marks omitted.) United States v.
Hughey, 147 F.3d 423, 428 (5th Cir.), cert. denied, 525
U.S. 1030, 119 S. Ct. 569, 142 L. Ed. 2d 474 (1998);
see also State v. Peeler, supra, 320 Conn. 579; State v.
Fernandez, 254 Conn. 637, 651, 758 A.2d 842 (2000)
(‘‘[T]he right to counsel of one’s choice is not without
limitation. . . . We never have held that the right to
counsel necessarily encompasses the right to a specific
attorney.’’ [Citation omitted.]), cert. denied, 532 U.S.
913, 121 S. Ct. 1247, 149 L. Ed. 2d 153 (2001).5 Accord-
ingly, we reject the defendant’s claim that his sixth
amendment right to counsel of choice was implicated
by the motion to withdraw filed by Hassett.
B
Because we conclude that the motion to withdraw
did not implicate the defendant’s sixth amendment right
to counsel, we need only determine whether the court
abused its discretion in granting the motion. The defen-
dant argues that the court improperly granted the
motion because it failed to ensure that the notice and
good cause requirements set forth in Practice Book § 3-
10 (a) had been met. We disagree.
We review the trial court’s granting of a motion to
withdraw pursuant to an abuse of discretion standard.
(2014). Practice Book § 3-10 (a) provides in relevant
part that ‘‘[n]o motion for withdrawal of appearance
shall be granted unless good cause is shown and until
the judicial authority is satisfied that reasonable notice
has been given to other attorneys of record and that
the party represented by the attorney was served with
the motion and the notice required by this section or
that the attorney has made reasonable efforts to serve
such party. . . .’’
The defendant first argues that the court improperly
granted Hassett’s motion to withdraw because the
motion was filed the same day that it was argued and,
therefore, did not comply with the notice requirements
set forth in Practice Book § 3-10 (a). The defendant
further argues that, because of this, he was not allowed
an opportunity to repair his relationship with Hassett.
Although it is true that Hassett did not file his written
motion to withdraw before the court heard argument,
the record makes clear that the defendant had actual
notice of Hassett’s intention to withdraw. In addressing
the defendant, the court asked, ‘‘Mr. Dijmarescu, your
attorney has indicated that it is his wish . . . that he
no longer work with you on the criminal charge that
is pending in this court today,’’ to which the defendant
responded, ‘‘[t]hat’s what I was told, Your Honor. Yes.’’
(Emphasis added.) It is therefore apparent that the
defendant was aware of Hassett’s intention to withdraw
prior to the court’s consideration of the motion. Thus,
although Hassett’s motion was technically filed the
same day it was addressed by the court, he nevertheless
complied with the purpose of the notice provision set
forth in Practice Book § 3-10 (a), which is ‘‘to inform
the court, other attorneys of record, and the party repre-
sented by the attorney that he or she is seeking permis-
sion to withdraw.’’ State v. Gamer, supra, 152 Conn.
App. 34; see State v. Fernandez, supra, 254 Conn. 650
(court did not abuse discretion in granting defense
counsel’s oral motion to withdraw where defendant’s
brother was present in court that day to accept from
counsel unearned portion of retainer, making it unlikely
that defendant was unaware of counsel’s intention); see
also State v. Gamer, supra, 34 (court did not abuse
discretion in granting defense counsel’s motion to with-
draw even though motion did not specify date and time
of hearing).
Next, the defendant argues that the court abused
its discretion in granting Hassett’s motion to withdraw
because it failed to make a finding of good cause as
required by Practice Book § 3-10 (a). The defendant
asserts that the court’s conclusion that ‘‘communication
ha[d] broken down’’ between Hassett and the defendant
was insufficient.
Rule 1.16 (b) of the Rules of Professional Conduct
dictates when a lawyer may properly terminate repre-
sentation, and provides, in relevant part, that ‘‘[e]xcept
as stated in subsection (c), a lawyer may withdraw
from representing a client if: (1) withdrawal can be
accomplished without material adverse effect on the
interests of the client . . . (6) the representation will
result in an unreasonable financial burden on the lawyer
or has been rendered unreasonably difficult by the
client; or (7) other good cause for withdrawal exists.’’
(Emphasis added.)
Thus, in accordance with rule 1.16 (b) (1), withdrawal
is appropriate for any reason provided that it will not
have a materially adverse effect on the client.6 Addition-
ally, withdrawal is also appropriate if the representation
has been rendered unreasonably difficult by the client.
Thus, a breakdown in communication between attorney
and client may properly constitute good cause to with-
draw as counsel. See State v. Gamer, supra, 152 Conn.
App. 34–35.
Furthermore, to the extent that the court did not
sufficiently explain, in detail, why it determined that
Hassett had demonstrated good cause to withdraw, we
conclude that any failure to do so did not result in an
abuse of discretion because the court was entitled to
rely on the representations of Hassett, who indicated
that the defendant had made representation by him
unreasonably difficult. ‘‘A trial court is entitled to rely
on the representations of counsel, who is an officer of
the court. . . . [I]t has long been the practice that a
trial court may rely upon certain representations made
to it by attorneys, who are officers of the court and
bound to make truthful statements of fact or law to
the court.’’ (Citation omitted; internal quotation marks
omitted.) Id., 35. Thus, we can assume that, in making
its ruling, the court properly considered representations
made to it by Hassett that he (1) tried to prepare the
defendant for trial and met some resistance, and (2)
had difficulty getting the defendant to cooperate with
him—both of which support the court’s conclusion that
Hassett had good cause to withdraw as counsel.7 More-
over, the motion was filed long before trial actually
commenced, and the defendant has not demonstrated
any material adverse effect on him related to the timing
of Hassett’s withdrawal. We conclude, therefore, that
the court did not abuse its discretion in granting Has-
sett’s motion to withdraw.
II
The defendant next claims that the court improperly
admitted evidence of his uncharged misconduct at trial.
Specifically, the defendant argues that the evidence
should have been excluded because (1) the state’s fail-
ure to timely disclose it was prejudicial to the defen-
dant, and (2) the evidence was not relevant or material
to the defendant’s intent, motive, or malice to engage
in the charged conduct. For reasons we address fully
below, we need not determine whether the court’s
admission of the uncharged misconduct evidence con-
stituted an abuse of discretion because we conclude
that any error was harmless.
The following additional facts and procedural history
are relevant to the resolution of this claim. On Decem-
ber 26, 2013, the defense filed a motion for notice of
uncharged misconduct. On August 14, 2014, the defense
made a request for disclosure regarding any uncharged
misconduct that the state intended to offer at trial.
The state did not provide notice of its intent to offer
uncharged misconduct evidence at that time.
On December 7, 2015, jury selection began. On that
same day, the state notified the defendant, for the first
time, of its intent to offer evidence of the defendant’s
uncharged misconduct. In its notice of intent, the state
revealed that the uncharged misconduct evidence
would be offered through the testimony of L,8 although
it did not specify the particular acts of uncharged mis-
conduct. The state also argued in its notice of intent
that the uncharged misconduct of the defendant was
relevant to show the defendant’s intent, motive, and
malice to engage in the charged conduct, as well as to
corroborate crucial prosecution testimony.
On December 10, 2015, the defendant filed a motion
in limine, in which he sought to preclude the admission
of any uncharged misconduct evidence. The defendant
argued that such evidence should be precluded at trial
because (1) the state’s untimely notice of its intent
to offer uncharged misconduct evidence violated the
defendant’s right to due process, and (2) the prejudicial
effect of the evidence outweighed its probative value.
On December 10 and 11, 2015, the court addressed
the defendant’s motion in limine. On the latter date,
the state specified that it intended to offer evidence,
through the testimony of L, of an incident that occurred
on Mount Everest in 2004 during which the defendant
allegedly struck L and knocked her unconscious. The
court then issued a ‘‘preliminary’’ ruling denying the
defendant’s motion but stated that it would reserve
the right to make a final judgment until it heard L’s
prospective testimony.
On December 14, 2015, the state made an offer of
proof outside the presence of the jury, through the
testimony of L, regarding the defendant’s uncharged
misconduct. L testified that she and the defendant suc-
cessfully summited Mount Everest in 2004 with a num-
ber of other individuals, and that the group stopped at
base camp for a period of time during their descent
from the mountain. L further testified that, while at
base camp, she went into the dining tent to speak with
the defendant about his poor treatment of their fellow
climbers. L alleged that the defendant then became
angry and punched her in her head, causing her to lose
consciousness. When she woke up, she temporarily was
unable to see through one of her eyes because blood
had accumulated in it.
After the state made its offer of proof, the court
denied the defendant’s motion in limine. With respect
to the state’s untimely disclosure of its intent to offer
such evidence, the court determined that the defendant
had not been prejudiced because ‘‘while the state was
a little tardy in announcing the testimony about this
incident, the defense has had it for approximately one
year.’’ The court appeared to be referencing the fact
that, during the parties’ divorce proceedings, L testified
about the same alleged incident. The court further con-
cluded that the evidence was more probative than preju-
dicial, provided that a proper limiting instruction was
given to the jury.
At trial, L testified consistent with the state’s proffer.
Her testimony was followed by a limiting instruction
concerning the proper purpose for which the evidence
could be considered by the jury.9 The court gave a
similar instruction during its final charge.
We now turn to the relevant law. Section 4-5 of the
Connecticut Code of Evidence governs the admission
of uncharged misconduct evidence, and provides that
‘‘[e]vidence of other crimes, wrongs or acts of a person
is inadmissible to prove the bad character, propensity,
or criminal tendencies of that person except as provided
in subsection (b).’’ Conn. Code Evid. § 4-5 (a). Under
§ 4-5 (c), however, ‘‘[e]vidence of other crimes, wrongs
or acts of a person is admissible for purposes other
than those specified in subsection (a), such as to prove
intent, identity, malice, motive, common plan or
scheme, absence of mistake or accident, knowledge, a
system of criminal activity, or an element of the crime,
or to corroborate crucial prosecution testimony.’’
(Emphasis added.) Conn. Code Evid. § 4-5 (c).
‘‘To determine whether evidence of . . .
[uncharged] misconduct falls within an exception to
the general rule prohibiting its admission, we have
adopted a two-pronged analysis. . . . First, the evi-
dence must be relevant and material to at least one
of the circumstances encompassed by the exceptions.
Second, the probative value of such evidence must out-
weigh the prejudicial effect of the . . . [uncharged mis-
conduct] evidence. . . . Since the admission of
uncharged misconduct evidence is a decision within
the discretion of the trial court, we will draw every
reasonable presumption in favor of the trial court’s
ruling. . . . We will reverse a trial court’s decision only
when it has abused its discretion or an injustice has
occurred.’’ (Internal quotation marks omitted.) State v.
Urbanowski, 163 Conn. App. 377, 402–403, 136 A.3d 236
(2016), aff’d, 327 Conn. 169, 172 A.3d 201 (2017).
The defendant argues that the court abused its discre-
tion in admitting the uncharged misconduct testimony
because (1) the state’s failure to timely disclose it was
prejudicial to him, and (2) the evidence was not relevant
or material to the defendant’s intent, motive, or malice
in engaging in the charged conduct.
Ordinarily, we would begin with an analysis of
whether the court abused its discretion in admitting
the uncharged misconduct evidence. See id. At oral
argument before this court, however, the state con-
ceded, despite arguing otherwise in its brief, that the
trial court abused its discretion in admitting the
uncharged misconduct evidence. Instead, the state
argued that such error was harmless.10 Thus, for the
purposes of our analysis, we will assume, without decid-
ing, that the court abused its discretion in admitting
the uncharged misconduct evidence and, therefore,
need only determine whether the admission of the evi-
dence was harmless.
‘‘The defendant bears the burden of showing that a
nonconstitutional evidentiary error, such as the
improper admission of prior uncharged misconduct
. . . was harmful.’’ State v. Martin V., 102 Conn. App.
381, 388, 926 A.2d 49, cert. denied, 284 Conn. 911, 931
A.2d 933 (2007). ‘‘[W]hether [an improper evidentiary
ruling that is not constitutional in nature] is harmless
in a particular case depends on a number of factors,
such as the importance of the witness’ testimony in the
prosecution’s case, whether the testimony was cumula-
tive, the presence or absence of evidence corroborating
or contradicting the testimony of the witness on mate-
rial points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the
prosecution’s case. . . . Most importantly, we must
examine the impact of the [improperly admitted] 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. Urbanow-
ski, supra, 163 Conn. App. 407.
We begin with the ‘‘most relevant factors to be consid-
ered,’’ which are ‘‘the strength of the state’s case and
the impact of the improperly admitted evidence on the
trier of fact.’’ (Internal quotation marks omitted.) State
v. Michael A., 99 Conn. App. 251, 270–71, 913 A.2d 1081
(2007). With respect to the strength of the state’s case,
we conclude that there was overwhelming evidence to
support the defendant’s conviction of breach of the
peace in the second degree.
Section 53a-181 (a) provides in relevant part that ‘‘[a]
person is guilty of breach of the peace in the second
degree when, with intent to cause inconvenience,
annoyance or alarm, or recklessly creating a risk
thereof, such person . . . (2) assaults or strikes
another . . . .’’ With respect to the evidence that the
defendant struck L, L testified that the defendant
grabbed her by her hair and slammed the right hand
side of her head into the kitchen table. Her testimony
was strongly corroborated by both Officer Steven
Chesworth of the Hartford Police Department, who tes-
tified that he found L holding her head when he
responded to the scene, as well as Sheila Coleman, who
worked at the women’s shelter that L and her daughters
were subsequently transported to, and similarly testi-
fied that L repeatedly touched the side of her head
during her intake interview. Moreover, L was consistent
in her claim that the defendant had struck her, as evi-
denced by the medical record of L’s trip to the emer-
gency room that night. The report, which was admitted
as a full exhibit at trial and read to the jury, revealed that
she told her treating physician that she was assaulted
by her husband, who grabbed her by her hair and
pushed her against a wood table, and that L complained
of pain on the right side of her head. Finally, L testified
that the defendant ‘‘tried to grab [her] and tried to twist
[her] like a crocodile,’’ and the medical record noted
that she had sustained ‘‘scratch marks on her left fore-
arm . . . .’’
With respect to the evidence that the defendant
intended to cause alarm to L, L testified that, as a result
of the defendant’s abuse, she feared him and did not
want to return to the marital home. This testimony was
also strongly corroborated by Chesworth, who testified
that, when he arrived on the scene, L was ‘‘visibly
upset,’’ her hands were shaking, and he could ‘‘tell some-
thing happened . . . .’’ He further testified that L made
it very clear that she did not feel safe staying at the
marital home, and in fact refused to return. Coleman
similarly testified that L was visibly shaken when she
arrived at the shelter.
Perhaps most notably, L’s testimony that she feared
the defendant was corroborated by her own actions.
Critically, despite the fact that she grew up in a different
country, barely spoke English, and did not have a job,
L never returned to the marital home after July 1, 2012.
Instead, she and her two daughters lived in a women’s
shelter for eight months before moving to an apartment
in West Hartford. Thus, because the defendant struck
L, and because she suffered fear and emotional turmoil
as a result of his actions, the jury was free to infer
that the defendant intended the natural result of those
actions. See State v. Ortiz, 312 Conn. 551, 565, 93 A.3d
1128 (2014) (‘‘it is a permissible . . . inference that a
defendant intended the natural consequences of his
voluntary conduct’’ [emphasis omitted; internal quota-
tion marks omitted]); see also State v. VanDeusen, 160
Conn. App. 815, 826, 126 A.3d 604 (jury may properly
infer that defendant intended natural consequences of
his actions), cert. denied, 320 Conn. 903, 127 A.3d
187 (2015).
In sum, considering the testimony of L, Chesworth,
and Coleman, there was overwhelming evidence that
the defendant intended to cause alarm to L by striking
her. See State v. Franko, 142 Conn. App. 451, 470, 64
A.3d 807 (state’s case strong in part because ‘‘[n]umer-
ous law enforcement officers corroborated the fact that
the victim was . . . visibly upset’’; physical evidence of
victim’s scratches consistent with victim being struck),
cert. denied, 310 Conn. 901, 75 A.3d 30 (2013).
We next consider the impact of the uncharged mis-
conduct evidence on the trier of fact. The principal
issue in this case was whether the defendant did, in fact,
strike L. The danger in a court improperly admitting
evidence of the defendant’s uncharged misconduct is
that the jury will hear that evidence and assume that,
because the defendant committed similar acts in the
past, he or she is guilty of the charged offense. See
State v. Bell, 152 Conn. App. 570, 582, 99 A.3d 1188
(2014). Thus, in the present case, the evidence admitted
relating to the 2004 Mount Everest incident carried with
it the risk that the jury would simply assume that the
defendant struck L on July 1, 2012, because he had
done so in the past.
The risk that the jury would simply assume that the
defendant has a general propensity to engage in the
abusive behaviors toward L, however, was mitigated in
part by the fact that the court issued a limiting instruc-
tion immediately following L’s testimony and then again
during its final charge to the jury regarding the proper
purpose for which the uncharged misconduct could be
considered. Absent evidence suggesting otherwise, we
assume that the jury followed the court’s instructions
and did not consider the uncharged misconduct evi-
dence for that improper purpose. Id., 583 (‘‘[t]he jury
is presumed to follow the instructions in full’’). Thus,
‘‘any harm caused by the uncharged misconduct testi-
mony was minimized by the court’s limiting instruc-
tion.’’ Id.
Another factor to consider in determining whether
the uncharged misconduct evidence prejudicially
impacted the jury is the extent to which cross-examina-
tion of L, the state’s key witness, was permitted. See
State v. Urbanowski, supra, 163 Conn. App. 407. In this
case, defense counsel engaged in an extensive cross-
examination of L intended to undermine her credibility
and to present her as an instigator of any violence
between her and the defendant. For example, with
respect to the 2004 Mount Everest incident, defense
counsel asked L whether it was true that she had (1)
attacked a fellow climber on the trip because she was
jealous that the climber had spent time with the defen-
dant, (2) barged into the dining tent screaming at the
defendant and asking for a divorce, and (3) told an
attorney that an article written about the 2004 Mount
Everest incident between her and her husband was fab-
ricated.
Defense counsel also asked L a series of questions
relating to the July 1, 2012 incident, which gave rise
to the charges against the defendant, in an effort to
challenge her allegations that the defendant had
attacked her and to suggest that it was L, in fact, who
had attacked him. Specifically, defense counsel asked
L whether it was true that, on July 1, 2012, she (1) yelled
at the defendant, (2) threw an onion at the defendant,
(3) lunged at the defendant, (4) did not call 911, (5)
refused medical treatment, and (6) did not sustain any
head injuries. In addition, defense counsel cross-exam-
ined L regarding a 2009 incident during which she alleg-
edly called 911 because the defendant was about to
leave on a climbing expedition and she was worried
that he was going to have an extramarital affair. It is
clear, therefore, that the defendant had the opportunity
to cross-examine L extensively with respect to both the
uncharged and charged conduct.
The defendant argues that L’s allegations regarding
the 2004 Mount Everest incident were far more serious
than the charged conduct, therefore strengthening the
likelihood that the uncharged misconduct evidence was
harmful. The two acts of abuse, however, are fairly
similar. With respect to both the uncharged and charged
conduct, L alleged that the defendant hit her in the
head. We cannot conclude that punching her in the
side of the head is more or less severe than repeatedly
slamming her head into a wooden table. Certainly, the
defendant’s alleged conduct in the 2004 incident was
not so much more severe than the charged conduct
such that there was a substantial risk that the passions
of the jury would be unduly aroused or swayed by
emotion in assessing the other evidence against the
defendant.
The defendant also argues that the uncharged mis-
conduct was harmful because the state mentioned it at
the very end of its rebuttal closing argument, making
it the last point the jury heard before beginning its
deliberation. That instance, however, was the only men-
tion by the state of the uncharged misconduct during
the entirety of its closing and rebuttal arguments. In
fact, rather than relying on the uncharged misconduct
evidence, the state focused on the evidence relating to
the charged offenses. Moreover, the one time the state
did mention the uncharged misconduct evidence during
its closing argument, it followed the reference with a
reminder to the jury that ‘‘[t]he 2004 events are both
in for a limited purpose. They’re in for one purpose,
and that is basically to show the defendant’s malice,
animus toward [L], and his intent to harm her; that’s
what they’re in for.’’ Thus, it is unlikely that the state’s
reference to the Mount Everest incident during closing
argument improperly influenced the jury.
In light of the overwhelming evidence supporting the
defendant’s conviction of breach of the peace in the
second degree, the court’s limiting instructions regard-
ing the proper purpose for which the uncharged miscon-
duct evidence could be considered, and the extent to
which cross-examination of L was permitted, we are
not persuaded that the defendant has met his burden
to establish that the court’s admission of the uncharged
misconduct evidence substantially affected the verdict.
We conclude, therefore, that the admission of such evi-
dence was harmless and reject the defendant’s claim.
III
Finally, the defendant claims that the court’s failure
to canvass him regarding his decision to testify violated
his right against self-incrimination, as guaranteed by
the fifth and fourteenth amendments to the federal con-
stitution. The defendant argues that, in the absence of
a canvass, his waiver of that right was not intelligent
and voluntary. We disagree.
To begin, we note that ‘‘[w]hether the defendant
waived . . . fifth amendment privileges is a mixed
question of law and fact over which our review is de
novo.’’ State v. Ross, 269 Conn. 213, 291, 849 A.2d 648
(2004). It is well established that there is no constitu-
tional obligation on the court to canvass the defendant
before he or she takes the witness stand and testifies.
See State v. Woods, 297 Conn. 569, 573–77, 4 A.3d 236
(2010). Rather, because ‘‘a criminal defendant’s deci-
sion to testify is often strategic or tactical, and is made
only after serious consultation with counsel about the
advantages and disadvantages thereof, it is one we are
disinclined to second guess . . . . We can only
assume, without more than a bare assertion to the con-
trary, that counsel provided the defendant with the
information necessary to make an informed decision
whether to testify.’’ (Internal quotation marks omitted.)
Id., 576, quoting State v. Castonguay, 218 Conn. 486, 492
n.2, 590 A.2d 901 (1991). Thus, because the defendant
in the present case was represented by counsel through-
out his trial, the court was under no obligation to inquire
of the defendant whether his decision to testify was
intelligent and voluntary.
The defendant argues that even if no such constitu-
tional requirement exists, this court should exercise its
supervisory authority over the administration of justice
and impose one. Specifically, the defendant argues that
requiring a court to canvass a defendant regarding his
right against self-incrimination before he testifies would
be more impactful than consultation with an attorney.
We decline the defendant’s request to exercise our
supervisory authority. ‘‘The exercise of our supervisory
powers is an extraordinary remedy to be invoked only
when circumstances are such that the issue at hand,
while not rising to the level of a constitutional violation,
is nonetheless of utmost seriousness, not only for the
integrity of a particular trial but also for the perceived
fairness of the judicial system as a whole.’’ (Internal
quotation marks omitted.) State v. Elson, 311 Conn.
726, 765, 91 A.3d 862 (2014). We remain unpersuaded
that the circumstances of the present case call for such
an extraordinary remedy. See In re Daniel N., 323 Conn.
640, 647–48, 150 A.3d 657 (2016) (‘‘In almost all cases,
[c]onstitutional, statutory and procedural limitations
are generally adequate to protect the rights of the
[appellant] and the integrity of the judicial system. . . .
[O]nly in the rare circumstance [in which] these tradi-
tional protections are inadequate to ensure the fair and
just administration of the courts will we exercise our
supervisory authority . . . .’’ [Citation omitted; inter-
nal quotation marks omitted.]). Moreover, in light of
State v. Woods, supra, 297 Conn. 569, and State v. Cas-
tonguay, supra, 218 Conn. 486, we conclude that any
determination of whether a court should be required
to canvass a defendant regarding his right against self-
incrimination before he testifies is better left to our
Supreme Court.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of family violence, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
2
L testified at trial that the defendant grabbed her by her hair and then
twice slammed her head into the kitchen table. The jury ultimately found
the defendant not guilty of assault in the third degree, which requires that
the state prove physical injury. Although L suffered ‘‘several scratches to
her left forearm,’’ her medical records did not include any medical findings
as to any visible injuries to her head, and only noted that she self-reported
a headache and right ear pain. Thus, the jury may have declined to find the
defendant guilty of the assault charge in the absence of evidence in L’s
medical records that she sustained physical injury to her head. Regardless,
the jury must have found that the defendant struck L because it found him
guilty of breach of the peace in the second degree in accordance with the
state’s allegation in count two of the information that the defendant struck
L with the intent to cause alarm. The defendant has not raised a sufficiency
of the evidence claim on appeal.
3
The defendant testified that on July 1, 2012, he and L got into an argument
because he asked her to make his father dinner and she became angry and
attacked him. He further testified that he did not strike her at any point but
had to put his hands up to defend himself.
4
Hassett, who also represented the defendant in his dissolution of mar-
riage case, did not seek to withdraw in that matter.
5
Typically, a defendant’s right to counsel of choice is implicated in circum-
stances in which both the defendant and the attorney want the representation
to continue, but a third party moves to disqualify the attorney for one or
more reasons. See, e.g., State v. Peeler, 265 Conn. 460, 465–68, 828 A.2d
1216 (2003), cert. denied, 541 U.S. 1029, 124 S. Ct. 2094, 158 L. Ed. 2d
710 (2004).
In circumstances in which a defendant’s private attorney seeks to with-
draw from representing the defendant, however, all the sixth amendment
demands is ‘‘a reasonable opportunity to retain new counsel . . . .’’ State
v. Fernandez, supra, 254 Conn. 650. Here, the defendant was permitted six
weeks to obtain new private counsel, which was a sufficient period of
time for sixth amendment purposes. See id. (two weeks was reasonable
opportunity to seek new counsel).
6
In a related context, our Supreme Court has been mindful of the dangers
in forcing an attorney to represent a client in circumstances ‘‘devoid of the
mutual trust and confidence that is critical to the attorney-client relationship.
Such a strained and coerced relationship is inconsistent with the notion of
the attorney-client relationship. The court should not perform such a shotgun
wedding.’’ Matza v. Matza, 226 Conn. 166, 184, 627 A.2d 414 (1993).
7
The defendant further argues that even if the court did comply with the
provisions set forth in Practice Book § 3-10 (a) in granting Hassett’s motion
to withdraw as counsel, any such finding of good cause was improper
because the sole reason why Hassett wanted to withdraw was that he
disagreed with the defendant’s decision to go to trial. Hassett, however,
represented to the court several valid reasons why he believed that with-
drawal was appropriate apart from the defendant’s insistence on going to
trial. We therefore reject the factual premise of the defendant’s argument.
8
The state also notified the defendant that it intended to introduce
uncharged misconduct evidence through the testimony of one other individ-
ual, but no such evidence was presented at trial.
9
The court instructed the jury that ‘‘[t]here has been some testimony of
acts of prior misconduct on the part of the defendant. Now, this is not being
offered to prove bad character, propensity or criminal tendencies. Such
evidence is admitted solely to show [that] if it, in your mind, does show
the defendant’s intent, malice upon the part of the defendant against the
complainant, and a motive for the commission of the crimes that are alleged
in today’s information. You’re not to consider such evidence as establishing
a predisposition on the part of [the] defendant to commit any of the crimes
charged or to demonstrate a criminal propensity. You may only [consider]
such evidence for the three objects I have stated. If it is further found by
you that it logically, rationally, and conclusively supports the issues for
which it’s being offered. If you don’t believe it or if you find it does not
logically and rationally and conclusively support the issues for which it is
offered, that is, intent, malice, and motive, you may not consider it for any
other purpose. You may not consider evidence of other misconduct of the
defendant for any purposes other than the ones I just told you because it
may predispose your mind to believe the defendant may be guilty of the
offense here charge[d] or offenses merely because of other misconduct.’’
10
At oral argument, the court remarked to the assistant state’s attorney
that ‘‘you’ve essentially acknowledged that it was an abuse of discretion
that [the uncharged misconduct evidence] was admitted and you’re saying
that, despite that, it’s harmless,’’ to which the state responded, ‘‘[t]hat’s
right.’’ The court further inquired, ‘‘[i]s that correct?’’ to which the state
again responded, ‘‘right.’’