State v. Mark T. , 186 Conn. App. 285 ( 2018 )

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STATE OF CONNECTICUT v. MARK T.*
(AC 40439)
Keller, Bright and Pellegrino, Js.
Syllabus
Convicted of the crime of risk of injury to a child in connection with an
incident in which he dragged the victim, his minor daughter, through
the corridors of her school in an effort to take her to a counseling
appointment at a mental health facility, the defendant appealed to this
court. He claimed, inter alia, that the trial court improperly precluded
testimony about the victim’s violent disposition, which bore on whether
he used a reasonable amount of force when he attempted to remove
her from the school, where she was enrolled in a behavioral support
class for children who are prone to disruptive behavior. When W, the
victim’s special education teacher, accompanied the victim to the
school’s front office to meet the defendant, he approached the victim
in a hallway and unsuccessfully attempted to persuade her to go with
him. The defendant then attempted to pick her up and carry her, but
she resisted, and the defendant then dragged her toward the exit. Held:
1. The defendant could not prevail on his claim that the trial court improperly
precluded him from questioning W about whether the victim had been
violent with others at school, which was based on his assertion that his
questions were not beyond the scope of the state’s redirect examination
of W; that court acted within its discretion to limit the defendant’s
inquiry, as it did not relate to W’s capacity to recall accurately the
incident at issue, which was the only subject of the state’s redirect
examination, W testified generally about the victim’s past disruptive and
oppositional behavior, and, to the extent that her behavioral history
was relevant to the defendant’s subjective belief that the amount of
force he used during the incident at school was reasonable to maintain
discipline, that issue was not raised during the state’s redirect examina-
tion, and the defendant could have called W to testify if he had wanted
to explore that line of inquiry further.
2. The defendant could not prevail on his claim that the trial court improperly
sustained the state’s objections to his testimony about the victim’s misbe-
havior at home and how desperate he was to obtain treatment for her,
which was based on his assertion that without such context, his defense
of parental justification was hamstrung and toothless; the court’s preclu-
sion of the name of the mental health institution where the defendant
was trying to take the victim for treatment did not render his theory of
defense toothless, as certain details about the victim and the name of
the institution, which had been placed under seal, were not material to
the defense of parental justification, and it was clear from the record
that the court allowed the defendant to testify about his difficult relation-
ship with the victim, her misbehavior at home, his belief that she needed
urgent mental health treatment, and the fact that he had obtained a
more significant type of help for her than an after-school program.
Argued September 6—officially released November 27, 2018
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 matter was tried to the jury; verdict of
guilty of risk of injury to a child; subsequently, the court
rendered judgment in accordance with the verdict, from
which the defendant appealed to this court. Affirmed.
Robert L. O’Brien, assigned counsel, with whom, on
the brief, was William A. Adsit, assigned counsel, for
the appellant (defendant).
Rita M. Shair, senior assistant state’s attorney, with
whom were Michael L. Regan, state’s attorney, and,
on the brief, Sarah E. Steere, senior assistant state’s
attorney, for the appellee (state).
Opinion
PELLEGRINO, J. The defendant, Mark T., appeals
from the judgment of conviction, rendered after a jury
trial, of one count of risk of injury to a child in violation
of General Statutes § 53-21 (a) (1). On appeal, the defen-
dant claims that the trial court abused its discretion by
excluding relevant evidence, and thereby violated his
constitutional right (1) to present a defense and (2) to
testify in his own defense. We disagree and, therefore,
affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. The defendant, who was thirty-five years of age,
had maintained custody of his biological daughter, the
victim, for hardly three weeks at the time of the incident.
The victim was thirteen, in the eighth grade, and
enrolled in an intensive behavioral support class for
children who were prone to disruptive behavior. At
home, the defendant had significant difficulty main-
taining control of the victim. He therefore arranged for
the victim to participate in independent after-school
counseling at a local mental health facility.
On the morning of September 9, 2015, the defendant
arrived at the victim’s school to take her to her sched-
uled appointment at the mental health facility. The front
office secretary contacted the victim’s classroom to
inform Monika Wilkos, the victim’s special education
teacher, that the defendant had arrived in the main
office to pick up the victim. As the victim was gathering
her belongings in the classroom, she protested in front
of Wilkos, stating that she did not want to go with the
defendant. Wilkos asked the victim to accompany her
to the front office, and while en route, the defendant
approached the victim and Wilkos in the hallway.
After a number of unsuccessful attempts to persuade
the victim to come with him, the defendant attempted
to pick her up and carry her. When the victim resisted,
a tussle ensued, and the defendant dragged the victim
by one leg through the school corridors toward the exit.
School personnel called the police. By the time police
arrived, the defendant had dragged the victim through
the front office and into the foyer. When he saw the
police, the defendant released the victim. The police
interviewed the defendant and school staff, but took
no further actions.
The following day, both the school psychologist and
the school nurse spoke to the victim regarding the inci-
dent. During the interviews, they both noticed bruising
on the victim’s body and subsequently reported the
incident to the Department of Children and Families
(department). A police officer assigned to the school
district investigated the incident and, thereafter, an
arrest warrant was issued for the defendant. After learn-
ing of the arrest warrant, the defendant turned himself
in to the police without incident.
The operative information charged the defendant
with one count of risk of injury to a child in violation
of § 53-21 (a) (1) and one count of breach of the peace
in the second degree in violation of General Statutes
§ 53a-181 (a) (1). During multiple pretrial hearings, the
defendant insisted on representing himself despite the
court’s many warnings about the dangers of self-repre-
sentation.1 The defendant refused court-appointed
counsel, but the court ultimately assigned the defendant
standby counsel in accordance with Practice Book
§ 44-4.
Before trial, the state filed, among other things, a
motion in limine requesting that the name, address,
and any other identifying information pertaining to the
victim be kept confidential pursuant to General Statutes
§ 54-86e. The victim’s guardian ad litem also argued in
favor of the motion, underscoring the harmful impact
that disclosure of sensitive facts could have on the
victim. The defendant objected, claiming that details
of his relationship with the victim were necessary to
demonstrate his urgent need to get help for the victim.
The court granted the motion in part and ordered that
only the victim’s first initial be used in the record and
at trial. The court also ordered that the defendant’s
pretrial motions containing the name of the victim and
the name of the program that the defendant was plan-
ning to take her to be placed under seal for the purposes
of the record. The court further ordered that it would
rule on the admissibility of other facts as they arose
at trial.
On September 19, 2016, following a three day jury
trial, the jury found the defendant guilty of risk of injury
to a child, but not guilty of breach of the peace in the
second degree. On April 4, 2017, the court imposed a
total effective sentence of four years imprisonment,
execution suspended, with three years of probation.
This appeal followed. Additional facts will be set forth
as necessary.
The defendant’s appeal is predicated on his con-
tention that the trial court deprived him of his constitu-
tional right (1) to present a defense and (2) to testify
in his own defense in violation of the fifth, sixth, and
fourteenth amendments to the federal constitution.2
Specifically, the defendant argues that the court erred
when it excluded evidence relevant to his theory of
defense of parental justification by limiting his inquiry
with respect to the victim’s violent behavior toward
others at school. He further claims that when he testi-
fied in his own defense, the trial court unconstitution-
ally limited his testimony with respect to his struggles
with the victim’s behavior, and her history of extreme
and physical opposition. He argues that because the
jury did not hear this evidence, it was unable to fully
understand the urgent need to get the victim mental
health treatment. The state argues that the trial court
did not abuse its discretion when it limited certain
aspects of the defendant’s testimony. Specifically, the
state argues that the trial court gave the defendant wide
latitude with respect to his presentation of evidence
and did not abuse its discretion when it excluded evi-
dence that was beyond the scope of redirect examina-
tion or of a collateral nature. In other words, the state
argues that the defendant’s claims are not of a constitu-
tional nature but, rather, are evidentiary. As an initial
matter, we agree with the state that the defendant’s
claims are not of a constitutional magnitude and,
instead, are evidentiary in nature.
‘‘Regardless of how the defendant has framed the
issue, he cannot clothe an ordinary evidentiary issue
in constitutional garb to obtain [a more favorable stan-
dard of] review.’’ (Internal quotation marks omitted.)
State v. Warren, 83 Conn. App. 446, 452, 850 A.2d 1086,
cert. denied, 271 Conn. 907, 859 A.2d 567 (2004). ‘‘[R]ob-
ing garden variety claims [of an evidentiary nature] in
the majestic garb of constitutional claims does not make
such claims constitutional in nature. . . . Putting a
constitutional tag on a nonconstitutional claim will no
more change its essential character than calling a bull
a cow will change its gender.’’ (Internal quotation marks
omitted.) State v. Rosario, 99 Conn. App. 92, 99 n.6,
912 A.2d 1064, cert. denied, 281 Conn. 925, 918 A.2d
276 (2007).
Furthermore, ‘‘[t]hese . . . [constitutional] rights,
although substantial, do not suspend the rules of evi-
dence . . . . A court is not required to admit all evi-
dence presented by a defendant; nor is a court required
to allow a defendant to engage in unrestricted cross-
examination. . . . Instead, [a] defendant is . . .
bound by the rules of evidence in presenting a defense
. . . .’’ (Internal quotation marks omitted.) State v. Hol-
ley, 327 Conn. 576, 594, 175 A.3d 514 (2018). Moreover,
‘‘[i]t 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. . . . [T]he trial court’s ruling on eviden-
tiary 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 discre-
tion, every reasonable presumption should be made in
favor of the correctness of the trial court’s ruling, and
we will upset that ruling only for a manifest abuse of
discretion.’’ (Internal quotation marks omitted.) State
v. Ramos, 182 Conn. App. 604, 614–15, 190 A.3d 892,
cert. denied, 330 Conn. 917, A.3d (2018). Accord-
ingly, we review the defendant’s claims under the abuse
of discretion standard.
I
The defendant first claims that the trial court improp-
erly precluded testimony regarding the victim’s violent
disposition, which bore on whether the defendant used
a reasonable amount of force when he attempted to
remove the victim from school. Specifically, he argues
that the court erred when it precluded questions posed
to Wilkos with respect to whether the victim had been
violent with others at school. The defendant argues that
his questions were not beyond the scope of the redirect
examination because Wilkos experienced the victim’s
misbehavior firsthand and, in her response to the state’s
redirect examination, raised the issue of physical alter-
cations between children and school officials. We
disagree.
The following facts are relevant to the disposition of
this claim. At trial, during the state’s presentation of
evidence, the victim’s special education teacher,
Wilkos, testified about the nature of the school’s inten-
sive behavioral education program, which she
described as a ‘‘self-contained educational, therapeutic
program for students with emotional disturbance and
behavior difficulties.’’ She testified that the victim had
been identified through an early intervention program
as a candidate for special education because of her
emotional disturbances. She further testified about the
incident and how the victim’s behavior that day was
consistent with her history of disorderly conduct.
On cross-examination, however, Wilkos admitted
that she was uncertain about certain details sur-
rounding the altercation, but because she had never
seen a parent dragging a child by the foot through
school, her memory of the incident was still quite vivid.
During redirect examination, in response to Wilkos’
admission that she was unsure about the precise
mechanics of the altercation, the prosecutor asked
Wilkos how long she had been a teacher, and, whether
in that time, she had ever seen anything like the Septem-
ber 9, 2015 incident. Wilkos responded that she had
been a teacher for approximately thirteen years, and
that in that time she had never seen anything like the
incident between the victim and the defendant. She also
stated that, as a result, the incident was still quite vivid
in her memory. Wilkos testified: ‘‘[I]t’s a vivid recollec-
tion. Some of the specifics of which arm went where
in what sequence isn’t, like, clear, but it’s a very clear
recollection . . . .’’
During the subsequent recross-examination that fol-
lowed, the defendant addressed Wilkos’ redirect testi-
mony by inquiring whether the victim had ever been
disruptive in Wilkos’ class. Wilkos answered that Sep-
tember 9, 2015, was not the first time the victim had
been disruptive, and that every child in her class had
behavioral issues. The defendant then asked whether
the victim had been violent with anyone else in school.
The state objected to the question, and the court sus-
tained the objection. The defendant then attempted to
ask whose idea it was to enroll the victim in the inten-
sive care program at school. The state again objected,
and the court sustained the objection, stating that it
was outside the scope of the redirect examination.
Here, the question of whether the trial court abused
its discretion hinges on whether the victim’s prior vio-
lent behavior toward others at school was within the
scope of the state’s redirect examination of Wilkos.
With this in mind, the following legal principles are
relevant to the disposition of the defendant’s claim.
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.’’
Additionally, our Supreme Court has stated: ‘‘[I]n . . .
matters pertaining to control over cross-examination,
a considerable latitude of discretion is allowed. . . .
The determination of whether a matter is relevant or
collateral, and the scope and extent of cross-examina-
tion of a witness, generally rests within the sound dis-
cretion of the trial court. . . . Every reasonable
presumption should be made in favor of the correctness
of the court’s ruling in determining whether there has
been an abuse of discretion.’’ (Internal quotation marks
omitted.) 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).
In the present case, the prosecutor’s questions on
redirect examination specifically related to Wilkos’
experience as a teacher and her ability to remember
the incident accurately. The state was rehabilitating
Wilkos’ testimony after she had admitted on cross-
examination that she did not remember the precise
physical sequence of the altercation—whereas the
defendant’s questions related to whether the victim had
ever been violent with other students at school. It is
important to underscore that, contrary to the defen-
dant’s argument, the trial court did allow Wilkos to
testify generally about the victim’s past disruptive
behavior. The trial court’s limiting of the defendant’s
line of inquiry with respect to the victim’s violent behav-
ior toward others in school, therefore, was well within
its discretion to preclude examination that was beyond
the scope of the redirect examination of Wilkos.
Furthermore, to the extent that the victim’s behav-
ioral history may have been relevant to the defendant’s
subjective belief that the amount of force he used during
the incident was reasonable to maintain discipline, the
issue simply was not raised during the state’s redirect
examination. Moreover, the jury heard testimony from
Wilkos during her recross-examination regarding the
victim’s oppositional behavior. Had the defendant
wanted to explore this line of inquiry further, he could
have called Wilkos as his own witness and controlled
the scope of the examination.
In sum, because the defendant’s inquiry as to whether
the victim was violent toward others did not relate to
Wilkos’ capacity to recall the incident at issue accu-
rately, which was the only subject of the state’s redirect
examination, the trial court acted within its discretion
to sustain the state’s objection to the inquiry on the
ground that it was outside the scope of the state’s redi-
rect examination. See State v. Holley, supra, 327 Conn.
594 (‘‘These sixth amendment rights, although substan-
tial, do not suspend the rules of evidence . . . . A court
is not required to admit all evidence presented by a
defendant; nor is a court required to allow a defendant
to engage in unrestricted cross-examination.’’ [Internal
quotation marks omitted.]); see also State v. Moore,
supra, 293 Conn. 803 (‘‘[o]nce [a] defendant has been
permitted cross-examination sufficient to satisfy the
sixth amendment, restrictions on the scope of cross-
examination are within the sound discretion of the trial
judge’’ [internal quotation marks omitted]). The defen-
dant’s claim, therefore, fails.
II
The defendant next claims that he was prevented
from testifying about the victim’s extreme misbehavior
at home, which he argues was relevant because it dem-
onstrated how desperate he was to obtain mental health
treatment for her. Without this context, he claims, his
defense of parental justification was ‘‘effectively [ham-
strung] and toothless.’’ He also argues that the testi-
mony directly bore on the reasonableness of his actions
because it demonstrated the severity and urgency of
the situation at home, and that without it, the jury had
no evidence to suggest that the defendant was justified
in his actions. We disagree.
Whether a particular piece of evidence or testimony is
admissible hinges on whether it is relevant to a material
issue before the court. ‘‘As it is used in our code [of
evidence], relevance encompasses two distinct con-
cepts, namely, probative value and materiality. . . .
Conceptually, relevance addresses whether the evi-
dence makes the existence of a fact material to the
determination of the proceeding more probable or less
probable than it would be without the evidence. . . .
In contrast, materiality turns upon what is at issue in
the case, which generally will be determined by the
pleadings and the applicable substantive law.’’ (Empha-
sis in original; internal quotation marks omitted.) State
v. Maner, 147 Conn. App. 761, 768, 83 A.3d 1182, cert.
denied, 311 Conn. 935, 88 A.3d 550 (2014).
Moreover, General Statutes § 53a-18 provides in rele-
vant part: ‘‘The use of physical force upon another per-
son 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 or
an incompetent person . . . may use reasonable physi-
cal force upon such minor or incompetent person when
and to the extent that he reasonably believes such to
be necessary to maintain discipline or to promote the
welfare of such minor or incompetent person . . . .’’
The issue of ‘‘[w]hether the force used by a parent
under § 53a-18 (1) is justifiable and not criminal
depends on whether it is reasonable physical force that
the parent believes to be necessary to maintain disci-
pline or to promote the welfare of [the] minor . . . .
While there exists a parental right to punish children
for their own welfare, to control and restrain them and
to adopt disciplinary measures in the exercise of that
right, whether the limit of reasonable physical force
has been reached in any particular case is a factual
determination to be made by the trier of fact.’’ (Internal
quotation marks omitted.) State v. Brocuglio, 56 Conn.
App. 514, 517–18, 744 A.2d 448, cert. denied, 252 Conn.
950, 748 A.2d 874 (2000). In other words, the defense
of parental justification requires both subjective and
objective reasonableness on behalf of the parent or
guardian with respect to the use of physical force.
With this legal framework in mind, we now set forth
the following facts that are relevant to the disposition
of the defendant’s claim. During the defendant’s case-
in-chief, he presented evidence with respect to the inci-
dent at school, the nature of his relationship with the
victim, and whether he intended to harm the victim
during the incident. Specifically, the defendant testified
about the victim’s misbehavior at home. The court per-
mitted the defendant’s testimony that the victim ran
away from home on a nightly basis and that, as a result,
the police visited the defendant’s home daily. The court
also allowed the defendant to testify that he sought
help from a number of sources, including the depart-
ment, but that no one was willing to help him, and, as
a result, he was concerned that the victim would end up
in foster care. The defendant testified that he ‘‘urgently
needed help dealing with [the victim’s] behaviors . . .
[and that he] reached out to [the department] on many
occasions . . . .’’ The state objected on relevancy
grounds, but the court overruled the objection. The
defendant then continued to testify about the nature of
the appointment he scheduled for the victim, and the
state again objected. The court again overruled the
objection and allowed the testimony to stand.
The defendant claims, however, that during his direct
examination, which he conducted himself, the court
abused its discretion by precluding his testimony with
respect to the following exchange:
‘‘[The Defendant]: So, Mr. [T.], [where] did you go to
get your daughter 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. . . .
‘‘[The Defendant]: 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?
‘‘[The Defendant]: 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.’’
The defendant claims that without this testimony
identifying the name of the institution, his defense of
parental justification was ‘‘toothless.’’ We disagree with
the defendant that the court’s preclusion of the name
of the institution rendered his theory of defense ‘‘tooth-
less.’’ We also disagree with the defendant that the
court prevented him from testifying about the victim’s
misbehavior at home and the urgency of the situation.
It is clear from the record that the court allowed the
defendant to testify about his difficult relationship with
the victim, including factors that supported his subjec-
tive belief that the victim needed urgent mental health
treatment. Furthermore, it is clear from the record that
the defendant was permitted to testify that ultimately
he obtained a more significant type of help for the victim
than just an after-school program. Rather, it was only
when the defendant attempted to provide details about
the help he sought for her—information that had been
placed under seal during the hearing on the state’s
motion in limine to protect the victim—that the trial
court sustained the state’s objections. The trial court’s
preclusion of the defendant’s testimony with respect
to certain details about the victim and the name of the
mental health institution, which were not material facts,
was well within its discretionary authority.
Given that the trial court had a legitimate interest in
excluding sensitive details about the victim—especially
those that were not material to the defendant’s defense
of parental justification—the court did not abuse its
discretion when it sustained the state’s objections.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to identify the
victim or others through whom the victim’s identity may be ascertained.
See General Statutes § 54-86e.
1
On more than one occasion, the court canvassed the defendant in accord
with Practice Book § 44-3 (4), ensuring that he was aware of the dangers
and disadvantages of self-representation. The record also indicates that the
state offered a series of plea agreements to the defendant. On May 4, 2016,
the state offered an alternative disposition if the defendant would accept
the lesser charge of breach of the peace, a misdemeanor. On July 29, 2016,
the state offered an alternative disposition if the defendant would accept a
charge of creating a public disturbance, a simple infraction. And finally, on
August 4, 2016, the state presented the defendant with a nolle prosequi offer
that provided that the state would not pursue any charges, so long as the
defendant completed a court-approved parenting course. The defendant
rejected the offers.
2
Although the defendant also asserts a violation of our state constitution,
he has provided no independent state constitutional analysis. We thus limit
our review to the defendant’s federal constitutional claim. See State v.
Jarrett, 82 Conn. App. 489, 498 n.5, 845 A.2d 476, cert. denied, 269 Conn.
911, 852 A.2d 741 (2004).