State v. Day

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. JASON M. DAY
(AC 36383)
DiPentima, C. J., and Beach and Sheldon, Js.
Argued December 14, 2015—officially released April 26, 2016
(Appeal from Superior Court, judicial district of
Tolland, Mullarkey, J.)
Jason M. Day, self-represented, the appellant
(defendant).
Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, were Matthew C. Gedansky,
state’s attorney, and Charles W. Johnson, assistant
state’s attorney, for the appellee (state).
Opinion
BEACH, J. The self-represented defendant, Jason M.
Day, appeals from the judgment of conviction, rendered
after a jury trial, of assault of a correctional officer in
violation of General Statutes § 53a-167c (a) (5).1 The
defendant claims on appeal that (1) his right to effective
assistance of standby counsel was violated; (2) his right
to due process was violated when the trial court dis-
cussed on the record a prior acquittal of the defendant
in another unrelated matter; (3) the court erred in failing
sua sponte to strike a question posed to him by the
prosecutor on cross-examination; (4) his right to due
process was violated because the jury panel did not
represent a fair cross section of the community; (5) his
right to due process was violated when the court denied
his request to use during closing argument an exhibit
marked for identification only; (6) there was insufficient
evidence to support his conviction; (7) the court erred
in failing to include in its jury instructions any reference
to a Department of Correction directive concerning
employee conduct; (8) the sentence imposed was vin-
dictive; (9) he was denied his right to due process when
he was not provided copies of the state’s evidence until
the first day of trial; and (10) he was denied due process
and his right to confrontation when the court ordered
his standby counsel to subpoena from the Department
of Correction an unedited version of a videotape only
after the state had introduced as a full exhibit an edited
portion of the tape. We affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts. On May 27, 2011, the defendant was incarcerated
at Northern Correctional Institution in Somers (North-
ern) in cell number 221. On that day, a nursing supervi-
sor at Northern noticed an odor coming from the
defendant’s cell. She noted that the defendant had a
history of severe lower leg infections and had continued
to refuse medication, dressing changes and medical
appointments. At approximately 7:30 p.m., Captain
Bryan Rae, a shift commander who had authority to
transfer inmates, ordered that the defendant be moved
to the infirmary. Correction Officer Michael Torkington,
who was in uniform, was assigned to assist in the move;
he was to provide the defendant with plastic bags so
that the defendant could take his personal belongings
with him to the infirmary. As Torkington opened the
trap on the defendant’s cell door to pass him the plastic
bags, the defendant put his hand through the door and,
from a Styrofoam cup, flung liquid and fecal matter at
Torkington, hitting him in the chest.
Prior to trial, the court, Solomon, J., granted the
defendant’s motion to represent himself and appointed
Attorney Douglas Ovian as standby counsel. Following
trial, the defendant was found guilty of assault of a
correction officer and sentenced to eight years incarcer-
ation consecutive to his current term of life without
parole. This appeal followed.
Several of the defendant’s claims lack an adequate
record for review. His claim of ineffective assistance
of counsel cannot be reviewed on direct appeal on the
basis of the record before us. See State v. Crespo, 246
Conn. 665, 687–88, 718 A.2d 925 (1998) (ineffective
assistance of counsel claims generally must be raised
by way of habeas corpus, not on direct appeal, because
of need for full evidentiary record), cert. denied, 525
U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999).2 His
claim that the jury panel did not represent a fair cross
section of the community lacks a record regarding the
demographic composition of the Tolland Judicial Dis-
trict and the existence of any systematic exclusion of
a distinctive group. See State v. Tillman, 220 Conn. 487,
496, 600 A.2d 738 (1991) (defendant’s burden to make
adequate record to support challenge to jury array and
offer sufficient evidence to satisfy Duren3 test; chal-
lenge to jury array will fail if no evidence presented to
trial court), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000,
120 L. Ed. 2d 876 (1992).
Of the remaining claims, only some are adequately
briefed.4 The defendant claims that his right to due
process was violated when the court denied his request
to use during closing argument a DVD of his cell area,
recorded during the hours preceding the incident,
although the court had allowed the state to introduce
as a full exhibit an edited version of the video,5 which
showed the specific incident in issue. The longer video
was never admitted as a full exhibit. The court, how-
ever, extended the defendant some latitude during clos-
ing argument to discuss the contents of the video. It
was not improper for the court not to permit the defen-
dant to use exhibit N for identification during closing
argument. Because the DVD in question was never
admitted into evidence as a full exhibit, the jury could
not properly consider it in reaching its verdict. See State
v. Stuart, 113 Conn. App. 541, 549–54, 967 A.2d 532(error to submit to jury exhibits marked for identifica-
tion only), cert. denied, 293 Conn. 922, 980 A.2d 914(2009). Accordingly, the court did not violate the defen-
dant’s constitutional rights by not permitting him to
show the DVD during his closing argument. See State
v. Gamble, 119 Conn. App. 287, 303, 987 A.2d 1049 (con-
dition of defendant’s hand not part of evidence; thus,
not proper subject of defendant’s closing argument),
cert. denied, 295 Conn. 915, 990 A.2d 867 (2010); see
also State v. Sweeney, 104 Conn. App. 582, 598, 935
A.2d 178 (2007) (‘‘[C]ounsel may comment [in closing
argument] upon facts properly in evidence and upon
reasonable inferences to be drawn from them. . . .
Counsel may not, however, comment on or suggest
[in closing argument] an inference from facts not in
evidence.’’ [Emphasis omitted; internal quotation
marks omitted.]).
The defendant also claims that he did not receive the
case file, specifically the security footage, until the first
day of trial. He argues that the video was edited and
was not the original unedited video. We have viewed
the security footage, of more than twenty hours, in its
entirety. It depicted: from approximately 3 p.m. to 10
p.m. on May 27, 2011, the west south side of Northern,
which contained the defendant’s cell; from approxi-
mately 3 p.m. to 11 p.m. on May 27, 2011, the medical
cell in which the defendant was placed; and from
approximately 3 p.m. to 11 p.m. the same medical cell
on May 29, 2011. We cannot discern how seeing this
footage of the hours before and after the incident could
have materially assisted in preparing the defense, and
thus conclude that the defendant suffered no prejudice
by being provided the footage of the hours surrounding
the incident at the time of trial rather than prior to trial.6
The defendant’s claim that his due process rights
were violated when the court mentioned a prior acquit-
tal of him that occurred in a previous, unrelated matter
is unpreserved, and the defendant has not demonstrated
a violation of a constitutional right. See State v. Elson,
311 Conn. 726, 91 A.3d 862 (2014) (affirmative request
in main brief for Golding7 review of unpreserved claim
not required as long as record is adequate for review
and defendant demonstrates violation of fundamental
constitutional right). The record nevertheless reveals
that the prior acquittal was mentioned only outside the
presence of the jury and for the purpose of assessing
his ability to represent himself in light of his past experi-
ence with self-representation, which resulted, in that
instance, in acquittal. The defendant has not established
a cognizable due process violation. See State v. Tatum,
219 Conn. 721, 742, 595 A.2d 322 (1991) (due process
right to fair trial not violated where court’s comments
at issue occurred outside presence of jury because ‘‘any
misconduct that occurred outside the presence of the
jury could not possibly have had an impact on its
verdict’’).
The defendant further argues that during cross-exam-
ination, the prosecutor asked him an improper question
regarding his prior acquittal and that the court erred
in failing sua sponte to strike the question. During direct
examination, the defendant opened the door by testi-
fying that in his twenty-three years in jail this was ‘‘the
first time I’ve ever come to court on this type of charge.’’
The court permitted the prosecutor to conduct a limited
inquiry as to the defendant’s history regarding prior
threats and assaults and, on cross-examination, the
prosecutor did so. The prosecutor asked the defendant
if he had been punished for assaults or threats on certain
dates. On redirect, the defendant explained the inci-
dents in some detail. The question8 that the defendant
claims to have been improper, was never asked.
The defendant next argues that the evidence was
insufficient to support his conviction because Torking-
ton was not acting in the performance of his duties,
and Torkington had been without authority to order
the defendant to be moved to the infirmary.9 The jury
reasonably could have found that Torkington was acting
in the performance of his duties on the basis of testi-
mony that Torkington was on duty and in uniform and
that Captain Rae, who had authority to transfer inmates,
made the decision to have the defendant moved to the
infirmary and gave Torkington the task of providing the
defendant with plastic bags so that the defendant could
take his personal belongings with him to the infirmary.
We have reviewed the defendant’s claim that the sen-
tence imposed was vindictive and we find it to be with-
out merit.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-167c (a) (5) provides in relevant part: ‘‘A person
is guilty of assault of public safety . . . personnel when, with intent to
prevent a reasonably identifiable . . . employee of the Department of Cor-
rection . . . from performing his or her duties, and while such . . .
employee . . . is acting in the performance of his or her duties . . . (5)
such person throws or hurls, or causes to be thrown or hurled, any bodily
fluid including, but not limited to . . . feces . . . at such . . . employee
. . . .’’
2
Additionally, having waived his right to counsel, the defendant no longer
had a constitutional right to effective counsel. See, e.g., State v. Oliphant,
47 Conn. App. 271, 280–81, 702 A.2d 1206, cert. denied, 244 Conn. 904, 714
A.2d 3 (1998).
3
See Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d
579 (1979).
4
We do not review claims that are inadequately briefed. ‘‘[W]e are not
required to review issues that have been improperly presented to this court
through an inadequate brief. . . . Analysis, rather than mere abstract asser-
tion, is required in order to avoid abandoning an issue by failure to brief
the issue properly.’’ (Internal quotation marks omitted.) State v. Scott, 83
Conn. App. 724, 731, 851 A.2d 353 (2004).
5
State’s exhibit 1 is a recording from the NiceVision camera system at
Northern depicting the time period of the incident at issue.
6
The record shows that the defendant had viewed, prior to trial, footage
of the actual event forming the basis of the charge and which was introduced
as a full exhibit by the state.
7
See State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989); see
also In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2013) (modifying
third condition of Golding).
8
The defendant contends that the prosecutor asked: ‘‘Isn’t it true, Mr.
Day, that you brutally beat your cellmate so bad that he’s left paralyzed in
a convalescent home in Bridgeport?’’ This question was never asked of
the defendant.
9
When reviewing sufficiency of the evidence claims, ‘‘First, we construe
the evidence in the light most favorable to sustaining the verdict. Second,
we determine whether upon the facts so construed 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.’’ (Internal quotation marks omitted.) State v. Grant, 219 Conn. 596,
599–600, 594 A.2d 459 (1991).