State v. Mark T. ( 2021 )

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STATE OF CONNECTICUT v. MARK T.*
(SC 20242)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.**
Argued January 21, 2020—officially released June 7, 2021***
Procedural History
Substitute information charging the defendant with
the crimes of risk of injury to a child and breach of the
peace in the second degree, brought to the Superior
Court in the judicial district of New London, geographi-
cal area number ten, where the court, Jongbloed, J.,
granted in part the state’s motion to preclude certain
evidence and denied the defendant’s motion to dismiss;
thereafter, the case was tried to the jury before Jong-
bloed, J.; verdict and judgment of guilty of risk of injury
to a child, from which the defendant appealed to the
Appellate Court, Keller, Bright and Pellegrino, Js.,
which affirmed the trial court’s judgment, and the defen-
dant, on the granting of certification, appealed to this
court. Reversed; new trial.
Robert L. O’Brien, assigned counsel, with whom, on
the brief, was William A. Adsit, assigned counsel, for
the appellant (defendant).
Brett R. Aiello, deputy assistant state’s attorney, with
whom were Sarah E. Steere, senior assistant state’s
attorney, and, on the brief, Michael L. Regan, former
state’s attorney, for the appellee (state).
Opinion
McDONALD, J. This case requires us to evaluate sev-
eral evidentiary rulings by the trial court, all of which
excluded testimony pertaining to a criminal defendant’s
justification defense. The defendant, Mark T., who was
self-represented at trial, claims that these evidentiary
rulings violated his constitutional right to present a
defense under the fifth, sixth, and fourteenth amend-
ments to the United States constitution.1 The state con-
tends that the trial court properly exercised its discre-
tion to exclude the testimony and disputes the importance
of the testimony to the defendant’s defense. Regarding
the first evidentiary issue, we agree with the state that
the trial court did not abuse its discretion by excluding
certain testimony during the defendant’s cross-exami-
nation of the state’s key eyewitness. However, we con-
clude that the trial court abused its discretion by lim-
iting the defendant’s direct examination of himself,
during which he attempted to testify about information
crucial to his justification defense. We also conclude
that the trial court’s error was harmful.
The Appellate Court’s decision sets forth the facts
and procedural history; State v. Mark T., 186 Conn. App.
285, 287–90, 199 A.3d 35 (2018); which we summarize
in relevant part and supplement with additional facts
that the jury reasonably could have found. In Septem-
ber, 2015, the defendant maintained custody of his bio-
logical daughter, A, who was thirteen years old at the
time, for about three weeks. He scheduled an appoint-
ment for her to receive counseling at a local mental
health facility because he was experiencing significant
difficulty managing her aggressive behavior. On the day
of the appointment, the defendant arrived at the main
office of A’s school to pick her up. A’s special education
teacher, Monika Wilkos, escorted A to her locker to
gather her belongings. While leaving the classroom and
gathering her belongings, A repeatedly protested and
stated that she did not want to go with the defendant.
The defendant then approached A and Wilkos while
they were on their way to the main office, and he calmly
attempted to persuade A to go with him to the appoint-
ment. When those efforts proved unsuccessful, the
defendant attempted to pick her up and carry her. A
resisted, and a ‘‘tussle’’ ensued. Id., 288. After A fell to
the ground, the defendant dragged her by her ankle
down the hallway and through the main office. She
continued to resist and protest. School personnel wit-
nessing the incident called the police, attempted to
assist A, and enacted a protocol to keep other students
in their classrooms. When the police arrived, the defen-
dant released A. The next day, the school psychologist
and nurse spoke to A about the incident. They noticed
bruising on her body and subsequently reported the
incident to the Department of Children and Families.
Thereafter, the defendant was charged with one
count each of breach of the peace in the second degree
and risk of injury to a child. After being thoroughly
canvassed by the trial court, the defendant chose to
represent himself at trial, and the court appointed
standby counsel in accordance with Practice Book § 44-
4. Before trial, the state filed two motions in limine
related to the minor child’s privacy. The first motion
sought to preclude the defendant from calling A as a
witness, which the guardian ad litem supported on the
basis that testifying would not be in A’s best interest.
The court declined to rule on the motion when it was
filed, and the motion became moot when the state
changed its position and called A to testify in its case-
in-chief. The state’s second motion requested that the
court seal all references to information that would iden-
tify the minor child pursuant to General Statutes § 54-
86e. The defendant did not oppose this motion, and the
court granted it. For the remainder of the proceedings,
the court struck from the record any statements identi-
fying A by her full name and any references to the name
of the mental health facility at which A was scheduled
for treatment on the day of the incident.
At trial, the defendant raised the defense of parental
justification under General Statutes (Rev. to 2015)
§ 53a-18 (1) (now § 53a-18 (a) (1)).2 In support of this
defense, the defendant attempted to elicit testimony
from Wilkos about A’s history of aggressive behavior
at school. He also attempted to testify directly about
A’s aggressive behavior at home, his difficulty managing
that behavior, and his efforts to obtain mental health
treatment for her leading up to the incident. The prose-
cutor, however, repeatedly objected to this line of ques-
tioning, and the court sustained many of the objections.
The jury ultimately found the defendant guilty of risk
of injury to a child but not guilty of breach of the peace
in the second degree. The trial court imposed a total
effective sentence of four years imprisonment, execu-
tion suspended, with three years of probation.
The defendant appealed from the judgment of convic-
tion to the Appellate Court, claiming, among other
things, that the trial court violated his constitutional
right to present a defense. Specifically, the defendant
challenged (1) the trial court’s evidentiary ruling lim-
iting his cross-examination of Wilkos, and (2) the series
of evidentiary rulings limiting his direct examination of
himself. He asserted that the precluded testimony was
admissible and crucial to his parental justification
defense. The Appellate Court subsequently affirmed the
judgment of the trial court. Id., 299. Specifically, the
Appellate Court concluded that the trial court acted
within its discretion to limit the defendant’s cross-exam-
ination of Wilkos because his question about A’s history
of aggressive behavior was outside the scope of the
prosecutor’s prior examination. Id., 295. The Appellate
Court also concluded that the trial court acted within
its discretion to limit the defendant’s direct examination
of himself because the precluded testimony was not
relevant and included information that was protected
by the court’s prior ruling on the state’s second motion
in limine related to A’s privacy. Id., 298–99.
Thereafter, the defendant filed a petition for certifica-
tion to appeal, which we granted, limited to the follow-
ing issue: ‘‘Did the Appellate Court properly reject the
defendant’s claim that he is entitled to a new trial due to
the trial court’s rulings, in violation of his constitutional
right to present the defense of parental justification,
precluding certain testimony by the self-represented
defendant and a key state’s witness pertaining to that
defense?’’ State v. Mark T., 330 Conn. 962, 199 A.3d 561(2019). Additional facts and procedural history will be
set forth as necessary.
On appeal, the defendant contends that the trial
court’s evidentiary rulings prevented him from explor-
ing relevant information about his daughter’s history
of aggressive behavior, the defendant’s difficulty man-
aging that behavior, and the urgency of her mental
health appointment on the day of the incident. This
information, the defendant asserts, was ‘‘critical to his
[parental justification] defense.’’ The state contends
that the Appellate Court correctly concluded that the
trial court acted within its discretion with regard to
both challenged evidentiary rulings. Alternatively, the
state asserts that any evidentiary error was harmless
because, to the extent that A’s history of aggressive
behavior was relevant to the defendant’s parental justi-
fication defense, there was sufficient evidence in the
record to establish such history.
We begin with the legal principles governing the
defendant’s appeal. ‘‘A [criminal] defendant has a con-
stitutional right to present a defense, but he is [nonethe-
less] bound by the rules of evidence in presenting a
defense. . . . Although exclusionary rules of evidence
cannot be applied mechanistically to deprive a defen-
dant of his rights, the constitution does not require that
a defendant be permitted to present every piece of
evidence he wishes. . . . Accordingly, [i]f the prof-
fered evidence is not relevant [or is otherwise inadmissi-
ble], the defendant’s right to [present a defense] is not
affected, and the evidence was properly excluded.’’
(Citation omitted; internal quotation marks omitted.)
State v. Bennett, 324 Conn. 744, 760, 155 A.3d 188 (2017);
see, e.g., State v. Tutson, 278 Conn. 715, 746–51, 899
A.2d 598 (2006) (no violation of constitutional right
to present defense when trial court properly excluded
evidence on hearsay grounds). Thus, ‘‘the question of
the admissibility of the proffered evidence is one of
evidentiary, but not constitutional, dimension.’’ State v.
Shabazz, 246 Conn. 746, 753 n.4, 719 A.2d 440 (1998),
cert. denied, 525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed.
2d 111 (1999).
‘‘It is axiomatic that [t]he trial court’s ruling on the
admissibility of evidence is entitled to great deference.
. . . In this regard, the trial court is vested with wide
discretion in determining the admissibility of evidence,
including issues of relevance and the scope of cross-
examination. . . . Accordingly, [t]he trial court’s rul-
ing on evidentiary matters will be overturned only upon
a showing of a clear abuse of the court’s discretion.
. . . In determining whether there has been an abuse
of discretion, every reasonable presumption should be
made in favor of the correctness of the trial court’s
ruling . . . .’’ (Internal quotation marks omitted.) State
v. Calabrese, 279 Conn. 393, 406–407, 902 A.2d 1044(2006).
In addition, because the defendant was self-repre-
sented at trial, we are mindful that ‘‘[i]t is the established
policy of the Connecticut courts to be solicitous of [self-
represented] litigants and when it does not interfere
with the rights of other parties to construe the rules
of practice liberally in favor of the [self-represented]
party.’’ (Internal quotation marks omitted.) New Haven
v. Bonner, 272 Conn. 489, 497–98, 863 A.2d 680 (2005).
Although ‘‘the right of self-representation provides no
attendant license not to comply with relevant rules of
procedural and substantive law’’; (internal quotation
marks omitted) Oliphant v. Commissioner of Correc-
tion, 274 Conn. 563, 570, 877 A.2d 761 (2005); we, never-
theless, ‘‘give great latitude to [self-represented] liti-
gants in order that justice may both be done and be
seen to be done.’’3 (Internal quotation marks omitted.)
Marlow v. Starkweather, 113 Conn. App. 469, 473, 966
A.2d 770 (2009); see, e.g., Travelers Property & Casu-
alty Co. v. Christie, 99 Conn. App. 747, 757–58 n.10,
916 A.2d 114 (2007) (noting that, if abuse of discretion
standard was applicable, trial court abused discretion
when, among other things, it failed to ‘‘apply the rules
of procedure liberally in favor of the [self-represented]
party, untrained in the law’’).
I
We first address the defendant’s claim that the trial
court improperly limited his cross-examination of
Wilkos, the state’s key eyewitness. Specifically, the
defendant claims that the court improperly precluded
him from asking Wilkos, during cross-examination,
whether she had ever seen A become physical with
another person at school. The state asserts that the
court properly sustained the prosecutor’s objection to
the defendant’s question because it was beyond the
scope of the prosecutor’s prior examination, which was
limited to rehabilitating Wilkos’ credibility.
The following additional procedural history is rele-
vant to resolution of this claim. On direct examination,
the prosecutor questioned Wilkos comprehensively
about the facts surrounding the incident. In addition,
Wilkos testified that A was enrolled in the school’s
intensive behavior support program, which was ‘‘a self-
contained, educational, therapeutic program for stu-
dents with emotional disturbance and behavior difficul-
ties.’’ Thereafter, the defendant conducted his cross-
examination, the prosecutor conducted her redirect
examination, and the defendant conducted his second
cross-examination. In the course of those examinations,
both parties questioned Wilkos about the escalation of
the incident and the accuracy of her recollection. Dur-
ing the prosecutor’s second redirect examination, she
questioned Wilkos about her thirteen years of experi-
ence in a school:
‘‘Q: How many incidents have you seen of parents
dragging children out of a school?
‘‘A: This is the only one.
‘‘Q: So, is it—so, what you testified to today, was that
a pretty vivid recollection of the day in question?
‘‘A: Yes, it’s a vivid recollection. Some of the specifics
of which arm went where, in what sequence, isn’t . . .
clear, but it’s a very clear recollection of the dragging
and the route, the grabbing the door, all that stuff.’’
The defendant’s third cross-examination included the
following exchange:
‘‘Q: Ms. Wilkos, was that the first time that [A] has
gotten loud in your classroom?
‘‘A: No.
‘‘Q: Has [A] ever been physical with anybody else in
the school?
‘‘[The Prosecutor]: Objection, Your Honor; relevancy.
‘‘The Court: All right, well, it’s well outside the scope.
So, I am going to sustain the objection to that.’’
The defendant contends that his question—‘‘[h]as [A]
ever been physical with anybody else in the school’’—
was not outside the scope of the prosecutor’s second
redirect examination4 because ‘‘it was a direct response
to the [prosecutor’s] insinuation, through [her second]
redirect examination, that no parent would reasonably
handle their child in such a way.’’ The state asserts that
the Appellate Court correctly concluded that nothing
elicited in the prosecutor’s preceding examination per-
tained to A’s past conduct at school. The state further
contends that the prosecutor’s motive during the pre-
ceding examination was to rehabilitate Wilkos after the
defendant’s cross-examinations elicited testimony that
cast doubt on the credibility of her recollection.5
Section 6-8 (a) of the Connecticut Code of Evidence
provides: ‘‘Cross-examination and subsequent examina-
tions shall be limited to the subject matter of the preced-
ing examination and matters affecting the credibility of
the witness, except in the discretion of the court.’’
Accord State v. Ireland, 218 Conn. 447, 452, 590 A.2d
106 (1991) (‘‘[i]t is well settled that our rule restricts
cross-examination to matters covered in the direct
examination, except as they involve credibility alone’’
(internal quotation marks omitted)). ‘‘Generally, a party
who delves into a particular subject during the examina-
tion of a witness cannot object if the opposing party
later questions the witness on the same subject. . . .
The party who initiates discussion on the issue is said
to have ‘opened the door’ to rebuttal by the opposing
party.’’ (Citations omitted.) State v. Graham, 200 Conn.
9, 13, 509 A.2d 493 (1986). ‘‘Although cross-examination
is limited to the subject matter of the direct examination
. . . the cross-examiner may elicit not only any fact
that would tend to contradict or to qualify any particular
fact stated on direct examination, but also anything
that would tend to modify any conclusion or inference
resulting from the facts so stated.’’ (Internal quotation
marks omitted.) State v. Alvarez, 95 Conn. App. 539,
552, 897 A.2d 669, cert. denied, 279 Conn. 910, 902 A.2d
1069 (2006). This rule of evidence ‘‘recognizes the dis-
cretion afforded the trial judge in determining the scope
of cross-examination,’’ including the discretion to per-
mit ‘‘a broader scope of inquiry in certain circum-
stances, such as when a witness could be substantially
inconvenienced by having to testify on two different
occasions.’’ Conn. Code Evid. § 6-8 (a), commentary.
‘‘The [trial] court has wide discretion to determine the
scope of cross-examination. . . . Every reasonable
presumption should be given in favor of the correctness
of the court’s ruling in determining whether there has
been an abuse of discretion.’’ (Citations omitted; inter-
nal quotation marks omitted.) State v. Hernandez, 224
Conn. 196, 208, 618 A.2d 494 (1992).
The defendant’s claim turns on the scope of the ‘‘sub-
ject matter of the preceding examination’’; Conn. Code
Evid. § 6-8 (a); which was the prosecutor’s second redi-
rect examination of Wilkos. Specifically, the prosecutor
asked Wilkos two pertinent questions. First, the prose-
cutor asked, in Wilkos’ thirteen years of experience,
‘‘[h]ow many incidents have you seen of parents drag-
ging children out of a school?’’ After Wilkos replied that
this was the only such incident, the prosecutor asked:
‘‘So, is it—so, what you testified to today, was that a
pretty vivid recollection of the day in question?’’ Wilkos
then replied: ‘‘Yes . . . .’’
The point of disagreement between the state and the
defendant is how they characterize the prosecutor’s
preceding examination. The state characterizes the
scope of the examination according to the combined
effect of both questions, whereas the defendant charac-
terizes the scope of the examination according to the
first question, standing alone. Specifically, the state
asserts that the prosecutor’s examination was limited
to rehabilitating Wilkos after the defendant’s cross-
examination elicited testimony that cast doubt on the
accuracy of her recollection. According to the state’s
characterization of the record, the two relevant ques-
tions, read together, serve only to rehabilitate Wilkos
by reasonably raising an inference in the minds of the
jurors that the incident was unique and, therefore, mem-
orable. By contrast, the defendant asserts that the pros-
ecutor’s first question about similar conduct by other
parents—standing alone, without any assumption
regarding its purpose—insinuates that, because no par-
ent has handled their child that way, no reasonable
parent would handle their child that way. According
to the defendant’s characterization of the record, his
question about A’s history of physical aggression at
school would rebut the inference that his conduct was
unreasonable by establishing that ‘‘no parent has had
to deal with a child like his, who necessitates the use
of physical force,’’ and that ‘‘school officials . . . them-
selves had to [use reasonable force to restrain A] on
prior occasions.’’ In other words, the defendant main-
tains that the prosecutor’s first question carried an
adverse inference about the reasonableness of his con-
duct, which ‘‘opened the door’’ to the defendant’s rebut-
tal on subsequent cross-examination.
We find the state’s argument equally as plausible as
the defendant’s argument. The trial court could reason-
ably have defined the scope of the prosecutor’s preced-
ing examination in light of the prosecutor’s second ques-
tion about the strength of Wilkos’ recollection, which
establishes that the scope of the examination was lim-
ited to rehabilitation. The defendant’s question about
A’s history of physical aggression would not have cast
further doubt on the strength of Wilkos’ recollection or
otherwise rebutted the inference that the incident was
memorable. Consequently, the trial court’s ruling that
the defendant’s question was outside the scope of
Wilkos’ credibility did not constitute an abuse of discre-
tion. See State v. Moore, 293 Conn. 781, 790, 981 A.2d
1030 (2009), cert. denied, 560 U.S. 954, 130 S. Ct. 3386,
177 L. Ed. 2d 306 (2010); State v. Calabrese, supra, 279
Conn. 407. Based on the record in this case, it was
reasonable for the court to conclude that the prosecu-
tor’s examination was limited to Wilkos’ credibility and
did not ‘‘open the door’’ to the defendant’s question
about the reasonableness of his conduct. Therefore, we
cannot conclude that the court’s ruling constituted a
manifest abuse of discretion. Accordingly, we conclude
that the Appellate Court correctly determined that it
was not an abuse of discretion for the trial court to
exclude the defendant’s question.
II
We now consider the defendant’s claim that the trial
court improperly limited his direct examination of him-
self. Specifically, the defendant contends that, ‘‘[b]efore
[he] could begin to testify about why he felt it was
reasonable and necessary to restrain his daughter,’’ A,
the court sustained the prosecutor’s relevance objec-
tions, which ‘‘forced [the defendant] to stop any ques-
tioning related to his daughter’s severe behavioral
issues and history of physical combativeness.’’ The fol-
lowing testimony from the defendant’s direct examina-
tion of himself6 and the subsequent exchange between
the prosecutor, the court, and the defendant, are rele-
vant to the resolution of this claim:
‘‘Q: Mr. [T.], how long have you had custody of your
daughter before the incident occurred?
‘‘A: Well, I had custody of my daughter for less than
[one] month.
‘‘Q: Okay, Mr. [T.] What happened in that amount of
time? How was you and your daughter’s relationship?
‘‘A: Well, when I got custody of my daughter, she had
ran away every night—
‘‘[The Prosecutor]: Objection, Your Honor.
‘‘The Court: Well, sustained.
‘‘[The Defendant]: Okay, on what basis is the objec-
tion?
‘‘The Court: [Prosecutor?]
‘‘[The Prosecutor]: Relevance, Your Honor.
‘‘The Court: Without getting into too much detail.
‘‘[The Defendant]: Okay.
‘‘The Court: We’ll permit a certain amount, but I am
going to ask you to stay away from certain things.
‘‘[The Defendant]: I just want to, like—I want to show
the urgency in my getting [A] the help that she needed.
‘‘The Court: That’s fine. You can state that without
getting into a lot of underlying detail.
‘‘[The Defendant]: Okay.’’
The defendant then testified, over the prosecutor’s
continued objections, that he ‘‘was in desperate search
for help’’ for A ‘‘because every day the police were
coming to [his] house,’’ that he did not want A to ‘‘go
into the foster care system,’’ and that he did not receive
help from the department, as promised. The defendant
then continued his direct examination of himself:
‘‘Q: So, Mr. [T.], what did you [do] to get your daugh-
ter help?
‘‘[The Prosecutor]: Objection, Your Honor; relevancy
to the case at hand.
‘‘The Court: Well, I’ll allow a limited amount of this.
‘‘[The Defendant]: Okay, so, this isn’t really allowed.
‘‘Q: So, Mr. [T.], at almost the end of that month that
you had your daughter, what happened that she was
taken away from you again?
‘‘A: Well, I needed help with her, and I made an
appointment to get her the help that she needed,
which was—
‘‘[The Prosecutor]: Objection, Your Honor.
‘‘The Court: Sustained.
‘‘[The Defendant]: Okay. The help that she needed,
which was not just some after-school program; it was
much more significant.
‘‘[The Prosecutor]: Objection, Your Honor.
‘‘[The Defendant]: Okay.
‘‘The Court: I’ll allow that answer to stand.’’
On appeal, the defendant argues that the trial court
prevented him from testifying further about ‘‘his daugh-
ter’s severe behavioral issues and history of physical
combativeness.’’ He contends that this excluded testi-
mony was relevant to his parental justification defense,
which contains both objective and subjective elements
of reasonableness. The state disagrees for two reasons.
First, it contends that the court ‘‘did not completely
preclude this line of inquiry’’ but merely limited it. Sec-
ond, the state asserts that the court reasonably could
have concluded that the defendant intended to testify
about protected information, such as the name of the
mental health facility, which the court had sealed prior
to trial.
Section 4-1 of the Connecticut Code of Evidence pro-
vides: ‘‘Relevant evidence means evidence having any
tendency to make the existence of any fact that is mate-
rial to the determination of the proceeding more proba-
ble or less probable than it would be without the evi-
dence.’’ (Internal quotation marks omitted.) This
concept embodies two components: (1) probative
value, and (2) materiality. Conn. Code Evid. § 4-1, com-
mentary; see also State v. Jeffrey, 220 Conn. 698, 709,
601 A.2d 993 (1991), cert. denied, 505 U.S. 1224, 112 S.
Ct. 3041, 120 L. Ed. 2d 909 (1992). Regarding probative
value, ‘‘[o]ne fact is relevant to another if in the common
course of events the existence of one, alone or with
other facts, renders the existence of the other either
more certain or more probable. . . . Evidence is not
rendered inadmissible because it is not conclusive. All
that is required is that the evidence tend to support a
relevant fact even to a slight degree, so long as it is not
prejudicial or merely cumulative.’’ (Internal quotation
marks omitted.) State v. Kalil, 314 Conn. 529, 540, 107
A.3d 343 (2014). Regarding the second component,
‘‘[t]he materiality of evidence turns [on] what is at issue
in the case, which generally will be determined by the
pleadings and the applicable substantive law.’’ Conn.
Code Evid. § 4-1, commentary; see also State v. Wynne,
182 Conn. App. 706, 721, 190 A.3d 955, cert. denied, 330
Conn. 911, 193 A.3d 50 (2018). ‘‘The degree to which
any evidence is material and relevant must be assessed
in light of the fact or issue that it was intended to prove.’’
State v. Geyer, 194 Conn. 1, 7, 480 A.2d 489 (1984).
An examination of the parental justification defense,
asserted by the defendant in this case, informs our
consideration of whether the excluded evidence was
relevant. General Statutes (Rev. to 2015) § 53a-18 pro-
vides in relevant part: ‘‘The use of physical force upon
another person which would otherwise constitute an
offense is justifiable and not criminal under any of the
following circumstances:
‘‘(1) A parent, guardian or other person entrusted
with the care and supervision of a minor . . . may use
reasonable physical force upon such minor . . . when
and to the extent that he reasonably believes such to
be necessary to maintain discipline or to promote the
welfare of such minor . . . .’’ (Emphasis added.) This
defense ‘‘provides that such force is not criminal, as
long as it is reasonable . . . .’’ State v. Nathan J., 294
Conn. 243, 260, 982 A.2d 1067 (2009). If, however, ‘‘the
force is unreasonable . . . the parental justification
[defense] does not apply . . . .’’ Id. The defense there-
fore ‘‘requires juries to distinguish . . . between rea-
sonable and unreasonable force.’’ Id. Moreover, ‘‘the
defense of parental justification requires both subjec-
tive and objective reasonableness on behalf of the par-
ent or guardian with respect to the use of physical
force.’’7 State v. Mark T., supra, 186 Conn. App. 296–97.
We have held that ‘‘the parental justification defense
may apply to a charge of risk of injury to a child . . . .’’
State v. Nathan J., supra, 294 Conn. 260. The defendant,
in the present case, was convicted of such a charge.
Once a defendant meets the initial burden of producing
sufficient evidence to warrant submitting the parental
justification defense to the jury, the state bears the
burden of disproving the defense beyond a reasonable
doubt. Id., 261–62. ‘‘Significantly, the ultimate determi-
nation of whether the particular conduct of a parent is
reasonable, and thus entitled to the protection of § 53a-
18 (1), is a factual determination to be made by the
trier of fact.’’ (Emphasis added; internal quotation
marks omitted.) Dubinsky v. Black, 185 Conn. App. 53,
68, 196 A.3d 870 (2018); see also State v. Brocuglio, 56
Conn. App. 514, 518, 744 A.2d 448 (‘‘whether the limit
of ‘reasonable’ physical force [under § 53a-18 (1)] has
been reached in any particular case is a factual determi-
nation to be made by the trier of fact’’), cert. denied,
252 Conn. 950, 748 A.2d 874 (2000).
Throughout the pertinent exchange during the defen-
dant’s direct examination of himself, he was specifically
precluded from fully testifying that his daughter ran
away from home every night; testifying in any detail
about the urgency with which he sought help for her
or the reasons for such urgency; answering the question,
‘‘[s]o, Mr. [T.], what did you [do] to get your daughter
help’’; and testifying in any detail about the type of
professional help he sought for her, particularly the
appointment to which he was taking A on the day of
the incident. All of this precluded testimony directly
concerned A’s behavioral problems outside of school.
This testimony was highly relevant to the defendant’s
parental justification defense. First, the excluded testi-
mony would have supplied probative facts. Specifically,
the facts concerning A’s history of aggressive behavior
would have rendered the urgency of the defendant’s
need to get help for her either more or less probable,
depending on the jury’s assessment of the defendant’s
credibility. The intensity of that urgency would have,
in turn, supported the time sensitive nature of A’s depar-
ture from school on the day of the incident. ‘‘Evidence
is not rendered inadmissible because it is not conclu-
sive. All that is required is that the evidence tend to
support a relevant fact even to a slight degree, so long
as it is not prejudicial or merely cumulative.’’ (Internal
quotation marks omitted.) State v. Kalil, supra, 314
Conn. 540.
Second, those probative facts supported by the pre-
cluded testimony were material to the subjective and
objective reasonableness of the defendant’s use of phys-
ical force. The nature and severity of the defendant’s
difficulty parenting his daughter were material to the
strength of his subjective belief that his use of force was
reasonable to get A to her mental health appointment.
Similarly, the nature and severity of A’s behavioral prob-
lems were material to the degree to which a reasonable
parent in the defendant’s position would agree that his
use of force was reasonable under the circumstances.
The parental justification defense turns on reasonable-
ness; therefore, the defendant’s inability to testify about
facts that were material to the reasonableness of his
actions significantly hampered his ability to demon-
strate his defense.
Additionally, as we have recognized across a myriad
of legal contexts, reasonableness is an inherently fact
driven inquiry into the specific circumstances of the
case. Therefore, evidence concerning reasonableness
tends toward admissibility to better aid the trier of fact.
See, e.g., Hall v. Burns, 213 Conn. 446, 474, 569 A.2d
10 (1990) (‘‘in order for the jury to determine whether
[the defendant exercised the duty of reasonable care],
it is only fair that the jury be made aware of all of the
circumstances surrounding [the applicable statutory
standard]’’). In the context of the parental justification
defense, § 53a-18 (1) and the common-law doctrine pre-
ceding it ‘‘recognize that any analysis of reasonableness
must consider a variety of factors and that such an
inquiry is case specific.’’ (Emphasis added.) State v.
Nathan J., supra, 294 Conn. 256.
In sum, the precluded testimony would have tended
to make certain important facts either more or less
probable, including A’s behavioral problems and history
of violence, the urgency of the defendant’s need to
get help for her, and the time sensitive nature of A’s
departure from school. Those facts were material to
the reasonableness of the defendant’s use of physical
force, which was the core of his defense. Finally, the
jury’s evaluation of reasonableness inherently required
a comprehensive assessment of the surrounding facts
and circumstances.
The state, however, contends that the trial court did
not abuse its discretion when it precluded the testimony
for two reasons. First, the state argues that the court’s
evidentiary rulings were proper because the court did
not completely preclude the defendant from establish-
ing A’s history of aggression and behavioral problems
to the jury. Rather, the state contends, the court ‘‘per-
mitted the defendant ample leeway to testify about
these issues and establish other facts [about A’s aggres-
sive behavior],’’ which the defendant did.8 In other
words, according to the state, other testimony ‘‘made
it abundantly clear that the defendant struggled’’ to
control A’s aggressive behavior.
We are not persuaded. The state’s argument does not
address whether the precluded testimony was irrele-
vant—i.e., whether the precluded testimony was imma-
terial or had low probative value. Rather, the state’s
argument is that the trial court permitted the defendant
to otherwise establish A’s behavioral problems, which
suggests that the precluded testimony would have been
cumulative. Section 4-3 of the Connecticut Code of Evi-
dence permits a trial court to exclude evidence that is
relevant ‘‘if its probative value is outweighed by the
danger of . . . needless presentation of cumulative
evidence.’’ See, e.g., State v. Little, 138 Conn. App. 106,
123, 50 A.3d 360 (‘‘[r]elevant cumulative evidence is
properly excluded when, in the court’s exercise of dis-
cretion, it is unfairly cumulative and, thus, is more preju-
dicial than probative’’), cert. denied, 307 Conn. 935,
56 A.3d 713 (2012). Although related to relevance, the
exclusion of cumulative evidence targets prejudicial
overemphasis and inefficient judicial proceedings.
These considerations are distinct from relevance, which
operates to exclude evidence that will not meaningfully
aid the trier of fact and evidence that is otherwise
peripheral to the case. The state’s argument that the
precluded testimony was not relevant because it was
cumulative conflates these considerations.
In addition, the precluded testimony was highly pro-
bative because it concerned the factual context that
might have justified, both subjectively and objectively,
the defendant’s actions. The state does not explain how
any prejudicial effect would have outweighed this high
probative value such as to render the testimony cumula-
tive. Moreover, and most noteworthy, the state never
asserted to the trial court that the prosecutor’s objec-
tion was based on cumulative evidence, and the court
did not sustain it on that basis. See, e.g., State v.
Edwards, 334 Conn. 688, 703, 224 A.3d 504 (2020) (‘‘[a]
party cannot present a case to the trial court on one
theory and then seek appellate relief on a different one’’
(internal quotation marks omitted)).
Second, the state argues that the trial court’s eviden-
tiary rulings were proper because the court reasonably
could have concluded that the defendant’s testimony
would have revealed protected information. As dis-
cussed previously in this opinion, before trial, the state
filed a motion to seal all references to information that
would identify A. The defendant did not oppose the
motion, and the court granted it and proceeded to strike
any identifying statements from the record. The state
contends that the court reasonably could have con-
cluded that the defendant, in his direct examination of
himself at trial, intended to testify about the mental
health facility and other details of A’s treatment.
Because the court had sealed that information before
trial, the state argues, the court acted within its discre-
tion to preclude the defendant from testifying about it.
Again, we are not persuaded. As an initial matter, the
prosecutor did not base her objections on the prior
motion in limine or the minor’s privacy. At trial, the
prosecutor expressly articulated that the basis of her
objections was relevance. The record does not demon-
strate that the prosecutor’s objections were based on
an apprehension that the defendant’s testimony would
implicate protected information, rather than relevance,
as asserted at trial. Likewise, the record does not dem-
onstrate that the court sustained the prosecutor’s objec-
tions on the basis of protecting the minor’s privacy,
rather than the prosecutor’s articulated basis of rele-
vance. Because the prosecutor’s articulated basis for
her objections was relevance, not protecting A’s pri-
vacy, and because the court did not articulate any differ-
ent basis for sustaining those objections, we are not
persuaded that the trial court’s ruling on the motion in
limine supported its subsequent evidentiary rulings.
Moreover, the state’s assertion on appeal—that the
precluded testimony was otherwise inadmissible
because it was protected by the trial court’s ruling on
the second motion in limine regarding A’s privacy—
does not address whether the testimony was relevant.
As explained, a relevance objection concerns the proba-
tive value of the disputed testimony and its centrality
to the material issues in the case. This limitation on
the admissibility of evidence is distinct from the consid-
erations that underlie a person’s privacy interest and
the mechanism to seal the record in protection of that
privacy interest. The state’s argument that the testi-
mony was not relevant because it was rendered other-
wise inadmissible by the court’s prior ruling regarding
A’s privacy conflates these considerations. In other
words, the state’s argument on appeal does not squarely
address the basis on which the prosecutor objected,
namely, that the precluded testimony was irrelevant.
Even if the trial court had sustained the prosecutor’s
objections based on its prior ruling on the state’s second
motion in limine regarding A’s privacy, we are not per-
suaded that the motion in limine would have supported
the full scope of the court’s subsequent evidentiary
rulings. With the exception of A’s full name and the
name of the facility where she was to receive treatment,
the motion did not specifically challenge the admission
of any substantive evidence related to A’s history of
aggression or behavioral problems. Testimony concern-
ing the defendant’s observations of his daughter’s
behavior at home, the nature of their relationship, his
unsuccessful attempts at parental discipline, and the
fact that the appointment concerned A’s mental health
would not have implicated the state’s pretrial motion
in limine. The motion was limited in scope to protect
information through which A could be identified, specif-
ically, her full name and the name of the treatment
facility.9 Stated differently, even if the trial court had
concluded that the defendant’s testimony would have
revealed the name of the mental health facility, the
scope of its evidentiary rulings would have been too
broad because the court excluded otherwise relevant
and admissible testimony that was not encompassed by
its order granting the state’s pretrial motion in limine.10
Accordingly, we conclude that the trial court abused
its discretion by precluding the defendant’s testimony
about A’s ongoing aggression, the defendant’s struggle
with managing her behavior, and the measures the
defendant had taken to care for her urgent mental health
difficulties.
Having concluded that it was an abuse of discretion
for the trial court to preclude this testimony, we must
now determine whether that error was harmful. The
defendant contends that the court’s evidentiary rulings
were harmful because the jury effectively ‘‘heard one
side of this story because the defendant could not intro-
duce crucial evidence of why his actions were justified.’’
Without this evidence, he argues, the jury was left with
no basis to believe that the defendant’s conduct could
be subjectively or objectively reasonable. The state con-
tends that the evidentiary rulings were harmless
because the defendant’s general testimony about his
parenting difficulties, ‘‘in combination with [Wilkos’]
undisputed [testimony] that [A] was in a special educa-
tion program for children with behavioral issues, ren-
dered cumulative any further detail about’’ A’s behavior.
‘‘The law governing harmless error for nonconstitu-
tional evidentiary claims is well settled. When an
improper evidentiary ruling is not constitutional in
nature, the defendant bears the burden of demonstra-
ting that the error was harmful. . . . [W]hether [an
improper ruling] is harmless in a particular case
depends [on] a number of factors, such as the impor-
tance of the witness’ testimony in the [defendant’s] case,
whether the testimony was cumulative, the presence
or absence of evidence corroborating or contradicting
the testimony of the witness on material 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 . . . evidence 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 nonconstitu-
tional 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. Fernando V., 331 Conn. 201, 215, 202 A.3d 350 (2019).
The defendant’s parental justification defense, on
which he entirely relied, turned on the reasonableness
of his actions, both subjectively and objectively. There
can be no doubt that testimony concerning his difficulty
with his daughter’s behavioral problems and the nature
of the treatment he sought for her on the day of the
incident would have been crucial to that defense. The
reasonableness of a parent’s conduct to restrain their
child is defined, at least in part, by the child’s actions
necessitating such restraint. Specifically, it was the
responsibility of the jury, as the finder of fact, to deter-
mine the defendant’s subjective intent—for example,
whether the defendant’s conduct was the result of his
assessment of A’s recalcitrance or her history of violent
behavior. But the jury’s full and fair evaluation of the
defendant’s subjective belief that his actions were nec-
essary to promote A’s welfare was likely substantially
impaired by the defendant’s inability to testify regarding
the specific circumstances that led to A’s mental health
appointment. It was also the responsibility of the jury
to examine the objective reasonableness of the defen-
dant’s conduct in response to both A’s recalcitrance
and her history of aggression. But the jury’s ability to
ascertain the objective reasonableness of the defen-
dant’s actions was similarly hampered because it could
not extrapolate what a reasonable parent would have
done in the defendant’s position without fully compre-
hending the defendant’s position.
The state contends that any error was harmless
because the precluded testimony would have been ren-
dered cumulative by other, admitted testimony. Specifi-
cally, the state notes that there was sufficient, admitted
testimony to establish A’s behavioral problems to the
jury, including the defendant’s general testimony about
his parenting difficulties; his request for assistance from
the department; his fear that his daughter would be
placed in foster care; and Wilkos’ testimony that A was
in a school program for students with behavioral prob-
lems.
We disagree. The precluded testimony would not
have been cumulative because virtually no specific
details about the nature of A’s behavior in her interac-
tions with the defendant were admitted as evidence.
The jury’s determination of whether the defendant’s
actions were justifiable under the circumstances neces-
sarily needed to be informed by the specific details of
A’s situation, not just generalized and oblique refer-
ences to her behavioral issues. See, e.g., State v. Nathan
J., supra, 294 Conn. 256 (‘‘any analysis of reasonable-
ness [under the parental justification defense] must
consider a variety of factors and . . . [the] inquiry is
case specific’’ (emphasis added)).
For example, the admitted evidence about A’s place-
ment in the school program and the defendant’s interac-
tions with the department would not have rendered
further evidence about A’s behavior cumulative because
this evidence contained no details establishing the
nature and degree of both her participation in the
school program and the defendant’s interactions with
the department. Moreover, that evidence was limited
to the context of state institutions, which would not
have rendered cumulative the precluded evidence about
the defendant’s difficulty managing A’s behavior at
home. Likewise, testimony by the defendant about the
nature of the appointment would not have been cumula-
tive because the only admitted testimony was that it
was, in A’s words, ‘‘outpatient’’; in Wilkos’ words, ‘‘an
appointment for something [A] want[ed] to do; it was
for an after-school program’’; and, in the defendant’s
words, ‘‘much more significant’’ than an after-school
program. These characterizations were too general to
render further testimony about the specific nature of
the appointment cumulative.
The concurring and dissenting opinion asserts that
‘‘[n]othing in the record . . . supports a conclusion
that [A] was in imminent danger of serious harm such
that it would have been detrimental to her welfare to
postpone treatment until such time as [she] could be
. . . persuaded to go to treatment . . . .’’ That is pre-
cisely the problem: the defendant was precluded from
testifying about the nature and extent of any ongoing
harm to his daughter’s welfare associated with her
behavioral problems. In the absence of such testimony,
the defendant could not demonstrate why—why his
need for help was so urgent; why he reached out to the
department for aid; why the police were coming to his
house every night; or why his fear that A would be
placed in foster care was so acute. Consequently, the
jury could not fully and fairly determine the subjective
and objective reasonableness of the defendant’s
actions. This deficiency is particularly harmful given
that the subjective and objective reasonableness of the
defendant’s actions was not collateral or peripheral to
the case but, rather, the core of his parental justification
defense. Accordingly, we cannot conclude, with a fair
assurance, that the error did not substantially affect
the verdict.11 We therefore conclude that the evidentiary
error was harmful, and the defendant is entitled to a
new trial.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court and to remand
the case to that court for a new trial.
In this opinion PALMER, D’AURIA and ECKER, Js.,
concurred.
* In accordance with our policy of protecting the privacy interests of the
alleged victim of the crime of risk of injury to a child, we decline to identify
the minor child or others through whom her identity may be ascertained.
See General Statutes § 54-86e.
** The listing of justices reflects their seniority status on this court as of
the date of oral argument.
*** June 7, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Although the defendant also claims that the trial court’s evidentiary
rulings violated his right to present a defense under article first, § 8, of the
Connecticut constitution, he has provided no separate analysis of that issue.
Accordingly, we limit our review to his federal constitutional claims. See,
e.g., Ramos v. Vernon, 254 Conn. 799, 815, 761 A.2d 705 (2000) (‘‘[w]ithout
a separately briefed and analyzed state constitutional claim, we deem aban-
doned the [party’s] claim’’ (internal quotation marks omitted)).
2
Hereinafter, all references to § 53a-18 in this opinion are to the 2015
revision of the statute.
3
The concurring and dissenting opinion observes many instances in which
the trial court was appropriately solicitous of the defendant; see footnote
8 of the concurring and dissenting opinion; and notes that the defendant
‘‘was warned repeatedly about the dangers of self-representation . . . .’’
Text accompanying footnote 7 of the concurring and dissenting opinion.
However, those instances when the trial court was appropriately solicitous
do not excuse the few occasions when the court abused its discretion
by excluding relevant and otherwise admissible evidence. Moreover, the
propriety of a criminal defendant’s decision to represent himself at trial does
not alter an appellate court’s analysis of that defendant’s evidentiary claims.
4
We evaluate the propriety of the trial court’s evidentiary ruling according
to the basis on which it was sustained—namely, that the question was
outside the scope of the prior examination. We briefly note, however, that
the prosecutor actually objected to the defendant’s question on relevance
grounds. Because the defendant does not challenge this procedural irregular-
ity—specifically, that the court sustained the prosecutor’s objection on a
different basis from the one asserted by the prosecutor—we have no occa-
sion to address the propriety of this aspect of the ruling. See, e.g., State v.
Edwards, 334 Conn. 688, 704, 224 A.3d 504 (2020) (‘‘[i]t is incumbent on
the parties, not the [trial] court, to properly articulate the present basis for
an objection’’); id. (trial court need not question whether party’s failure to
raise certain objection was ‘‘an inadvertent omission as opposed to an
evolving strategy’’).
5
In addition, the state asserts that the defendant’s question was ‘‘aimed
at smearing [A’s] character.’’ To the extent that this suggests that Wilkos’
testimony in response to the defendant’s question would have constituted
inadmissible character evidence under § 4-4 (a) of the Connecticut Code of
Evidence, we are not persuaded. The prosecutor did not object on that
basis; nor did the trial court rule on that basis.
6
For convenience and clarity, in part II of this opinion, we use the Q and
A (question and answer) format only when the defendant questions himself
during his direct examination.
7
We evaluate the trial court’s evidentiary rulings pertaining to the defen-
dant’s parental justification defense as that defense was articulated in § 53a-
18 (1) and State v. Nathan J., supra, 294 Conn. 260. Specifically, in this
case, the parental justification defense required, first, that the defendant
subjectively believed that his actions were necessary to promote A’s welfare
and, second, that his belief was objectively reasonable. Contrary to the
concurring and dissenting opinion’s suggestion, nothing about this analysis
injects a reasonableness requirement into the subjective component of the
defense. See footnote 5 of the concurring and dissenting opinion.
8
The state further contends that the trial court’s limitations on the defen-
dant’s testimony about A’s behavioral problems prevented the trial from
‘‘devolv[ing] into a minitrial about [A’s] general character.’’ To the extent
that this repeats the state’s earlier suggestion that the disputed testimony
would have constituted inadmissible character evidence under § 4-4 (a) of
the Connecticut Code of Evidence, we are not persuaded. Again, the prosecu-
tor did not object on that basis, nor did the trial court rule on that basis.
See footnote 5 of this opinion.
9
In addition, the state argues that ‘‘the trial court did not actually preclude
anything’’ concerning the defendant’s testimony about A’s mental health
appointment because the sustained objection ‘‘did not deter the defendant
from describing the type of appointment he set up.’’ (Emphasis in original.)
Specifically, the defendant testified: ‘‘Well, I needed help with her, and I
made an appointment to get her the help that she needed, which was—’’
At that point, the prosecutor objected, and the court sustained the objec-
tion. The defendant then continued: ‘‘Okay. The help that she needed, which
was not just some after-school program; it was much more significant.’’ The
prosecutor renewed her objection, but the court overruled it. The state
now argues that the defendant essentially disregarded the court’s ruling
sustaining the prosecutor’s first objection, and, therefore, no testimony was
actually excluded. We disagree. The defendant’s rhetorical choice to resume
his testimony in the same clause where it had been cut off does not establish
that his substantive description of the appointment was unaffected by the
trial court’s ruling.
10
The concurring and dissenting opinion raises two privacy related bases
for the state’s motion in limine which, it contends, reasonably could have
supported the trial court’s subsequent evidentiary rulings. First, the concur-
ring and dissenting opinion posits that the court reasonably could have
concluded that A had a generalized, freestanding privacy interest in ‘‘not
having additional details of her behavioral problems and proposed treatment
published in court . . . .’’ However, as with the state’s argument, we dis-
agree with the concurring and dissenting opinion’s characterization of the
scope of the state’s second motion in limine, which sought to exclude only
information through which A could be identified. The court’s order granting
this motion was too narrow in scope to support such a broad privacy interest.
Moreover, the defendant’s testimony would not have implicated any such
privacy interest because all statements identifying A or the treatment facility
were kept under seal or struck from the record.
Second, the concurring and dissenting opinion asserts that the trial court
reasonably could have concluded that the defendant’s testimony would
have ‘‘reveal[ed] the content of confidential medical records,’’ such as A’s
diagnosis and the identity of her treatment provider. Footnote 4 of the
concurring and dissenting opinion. However, the record does not indicate
that the guardian ad litem ever asserted A’s privacy interest to specifically
exclude testimony about her medical records, which is particularly signifi-
cant given that the state’s motions in limine were too limited in scope to
support such a privacy interest. Moreover, in State v. White, 139 Conn. App.
430, 55 A.3d 818 (2012), cert. denied, 307 Conn. 953, 58 A.3d 975 (2013), on
which the concurring and dissenting opinion relies; see footnote 4 of the
concurring and dissenting opinion; the Appellate Court upheld the trial
court’s exclusion of medical records only after weighing the interest in the
confidentiality of the records against their probative value. See State v. White,
supra, 440. Contrary to the concurring and dissenting opinion’s assertion,
the precluded testimony in this case had very high probative value. Most
important, even if we assume that the defendant’s testimony would have
included some medical information, the record does not indicate that it
would have been so limited. For example, testimony concerning the defen-
dant’s observations of A’s behavior, the nature of their relationship, his
unsuccessful parental discipline, and the detail that the appointment con-
cerned A’s mental health and combative behavior—none of this testimony
would have disclosed the content of any confidential medical record.
11
The concurring and dissenting opinion notes that the defendant did not
make an offer of proof regarding his direct examination of himself. It is
true that ‘‘the right of self-representation provides no attendant license not
to comply with relevant rules of procedural and substantive law.’’ (Internal
quotation marks omitted.) Oliphant v. Commissioner of Correction, supra,
274 Conn. 570. However, this is a quintessential example of a situation in
which our courts ought to be solicitous of self-represented defendants. It
would not have interfered with any right of the state for the court to allow
the defendant a moment outside the presence of the jury to fully develop his
direct examination of himself and to create a record adequate for appellate
review. In addition, the totality of the record in this case fairly apprised the
trial court and the state about the type of testimony the defendant sought
to offer—including, at the very least, A’s aggressive behavior and the defen-
dant’s difficulty managing that behavior. Even without the specific words
the defendant would have spoken at trial, we cannot conclude that we have
a fair assurance that the jury’s verdict was not substantially swayed given
that the testimony would have been central to his defense.