State v. Rivera , 187 Conn. App. 813 ( 2019 )

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STATE OF CONNECTICUT v. ELVIN G. RIVERA
(AC 39816)
DiPentima, C. J., and Keller and Moll, Js.
Syllabus
Convicted of the crimes of breach of the peace in the second degree, criminal
mischief in the third degree and threatening in the second degree, the
defendant appealed to this court. The defendant’s conviction stemmed
from a dispute he had with C, a tow truck operator. C had observed
the defendant’s car at a condominium complex in an area marked as a
fire lane and secured the car for towing. When the defendant exited a
nearby garage, C informed the defendant that he was towing the defen-
dant’s car because it was parked in a fire lane. The defendant became
agitated, moved toward C, who was standing near his tow truck, and
struck the tow truck with a pipe. After C grabbed a can of pepper spray
from his truck and sprayed the defendant in the face, the defendant
dropped the pipe and pulled a knife out from his pocket. Immediately
upon seeing the knife, C entered his tow truck, drove a safe distance
away from the defendant and called the police, who later arrested the
defendant. Thereafter, prior to trial, the state filed a motion in limine
to preclude evidence of C’s prior convictions and any allegations of
criminal conduct against C. The defendant filed an objection, to which
he attached copies of 2013 police reports relating to C’s prior larceny
convictions, which contained statements by C admitting that he had
stolen cell phones to exchange them for drugs. The defendant argued
that he intended to inquire into those specific acts, as well as C’s drug
use, in order to impeach C’s credibility and to support his defense theory
that C, motivated by his desire to fuel a drug habit, was stealing, rather
than towing, the defendant’s car. The trial court granted in part the
state’s motion in limine, concluding, inter alia, that evidence of the
specific acts underlying the larceny convictions would be inadmissible.
Subsequently, the trial court denied the defendant’s motion to permit
inquiry into the specific acts underlying C’s prior breach of the peace
conviction, which concerned an incident in which C, following a motor
vehicle accident, attempted to use pepper spray on the other motorist
in self-defense. The defendant contended that, because C pleaded guilty
to the breach of the peace charge, the specific acts underlying the breach
of the peace conviction could be used to establish that C was engaging
in a pattern of making false self-defense claims and to impeach C’s
credibility in the present case, where C had sprayed pepper spray into
the defendant’s face allegedly in self-defense. Held:
1. The trial court did not abuse its discretion in prohibiting the defendant
from cross-examining C as to the specific acts underlying his larceny
convictions and his breach of the peace conviction: the trial court deter-
mined reasonably that C’s statements from the 2013 police reports relat-
ing to C’s prior larceny convictions were too remote in time to have
probative value as to the incident underlying the present case, which
occurred in March, 2015, that even if they were probative, they would
have confused the jury, and that C’s statements were not probative of
C having a motive to steal the defendant’s car, namely, to support a
drug habit, where there was no indication in the record that C was
under the influence of substances at the time of the incident underlying
the present case; moreover, the trial court determined reasonably that
C’s guilty plea to the breach of the peace charge did not impugn his
statement in the police report regarding his use of pepper spray in self-
defense, such that the specific acts underlying the breach of the peace
conviction were not probative of C engaging in a pattern of making
false self-defense claims, and that the altercation underlying C’s breach
of the peace conviction, which occurred more than two years before
the incident underlying the present case, was too remote and bore
minimal probative value on C’s credibility.
2. The defendant could not prevail on his claim that the trial court errone-
ously denied his motion seeking a disclosure and an in camera review
of medical, mental health, and drug and alcohol treatment records of
C, thereby violating his constitutional rights to confrontation and to
present a defense: the trial court had the discretion to deny the defen-
dant’s request to voir dire C with respect to his confidential records on
the basis of its determination that C’s records from approximately two
years prior to the incident underlying the present case were too remote
in time and not material, and the defendant’s claim that the trial court
erroneously concluded that he failed to make a sufficient threshold
showing to require the disclosure and in camera examination of C’s
confidential records was unavailing, as the police reports relating to C’s
prior larceny conviction established, at most, that approximately two
years before the incident underlying the present case, C had a drug
addiction and intended to receive substance abuse counseling and treat-
ment, and the court also determined reasonably that C’s alleged drug
use and pursuit of treatment and counseling were too remote in time
to the incident underlying the present case and not material.
3. The trial court properly declined to instruct the jury that defense of
property constituted a justification defense to the charge of criminal
mischief in the third degree; although the defendant claimed that, pursu-
ant to statute (§ 53a-16), defense of property applies in any prosecution
for an offense, defense of property is applicable only to crimes against
persons, and, thus, it does not constitute a justification defense to crimi-
nal mischief in the third degree.
4. The defendant could not prevail on his claim that the state failed to meet
its burden to disprove his defense of property justification defense
beyond a reasonable doubt, which was based on his claim that the
evidence adduced at trial demonstrated that he believed reasonably that
C was stealing his car and that physical force was necessary to prevent
the larceny; there was sufficient evidence produced at trial for the jury
to determine reasonably that the defendant’s alleged belief that C was
stealing his car was unreasonable, as the jury reasonably could have
credited C’s testimony and found that C, in the course of his employment,
was attempting to tow the defendant’s car because it was parked illegally
in a fire lane, and that the defendant was aware that his car was being
towed legally for that reason.
5. The defendant’s claim that the state failed to meet its burden to disprove
his self-defense justification defense beyond a reasonable doubt was
unavailing; although the defendant claimed that the evidence adduced
at trial demonstrated that he believed reasonably that C was using or
was about to use deadly or nondeadly force on him and that physical
force was necessary to defend himself, the evidence was sufficient for
the jury to determine reasonably that the defendant’s actions caused C
to believe reasonably that the defendant was about to use physical force
upon him and, thus, that the defendant was the initial aggressor, and,
thus, the state presented sufficient evidence to disprove the defendant’s
self-defense claim beyond a reasonable doubt.
Argued October 18, 2018—officially released February 19, 2019
Procedural History
Information charging the defendant with the crimes
of breach of the peace in the second degree, criminal
mischief in the third degree, and threatening in the
second degree, brought to the Superior Court in the
judicial district of Hartford, geographical area number
twelve, where the court, Lobo, J., granted in part the
state’s motion to preclude certain evidence and denied
the defendant’s motion to disclose certain confidential
records; thereafter, the matter was tried to the jury;
verdict and judgment of guilty, from which the defen-
dant appealed to this court. Affirmed.
Alice Osedach, assistant public defender, for the
appellant (defendant).
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Gail Hardy, state’s attorney,
and Courtney Chaplin, former assistant state’s attor-
ney, for the appellee (state).
Opinion
MOLL, J. The defendant, Elvin G. Rivera, appeals
from the judgment of conviction, rendered after a jury
trial, of breach of the peace in the second degree in
violation of General Statutes § 53a-181 (a) (1), criminal
mischief in the third degree in violation of General
Statutes § 53a-117 (a) (1), and threatening in the second
degree in violation of General Statutes § 53a-62 (a) (1).
On appeal, the defendant claims that (1) the trial court
erroneously prohibited him from cross-examining the
state’s key witness, Stephen Chase, as to the specific
acts underlying several misdemeanor convictions ren-
dered against Chase, (2) the court erroneously denied
his motion seeking a disclosure and an in camera review
of Chase’s medical, mental health, and drug and alcohol
treatment records, (3) the court committed instruc-
tional error, and (4) the state failed to meet its burden
to disprove his defense of property and self-defense
justification defenses beyond a reasonable doubt.1 We
disagree and, accordingly, affirm the judgment of the
trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
disposition of the defendant’s claims. In March, 2015,
Chase was employed as a tow truck operator. Chase’s
employer contracted with various property owners to
tow vehicles that were parked illegally or otherwise
without authorization on their properties. Pursuant to a
contract executed by Chase’s employer and Coachlight
Condominiums, a condominium complex located in
East Hartford, Chase was authorized to tow vehicles
on the Coachlight Condominiums property that were,
inter alia, parked in fire lanes and/or blocking ten-
ants’ garages.
On March 24, 2015, while patrolling the Coachlight
Condominiums property in the course of his employ-
ment, Chase observed a silver car parked in an area
marked as a fire lane.2 To secure the car for towing,
Chase attached the rear of the car to the boom of his
tow truck and lifted the rear of the car off the ground.
Soon thereafter, the defendant exited a nearby garage
and angrily asked Chase why the car, which belonged
to the defendant, was being towed. Chase replied that
the defendant’s car was parked in a fire lane. The defen-
dant became agitated, telling Chase that ‘‘[y]ou’re not
f’ing towing my car . . . .’’ The defendant then
approached his car, which was hitched to Chase’s tow
truck, and opened the driver’s side door. Believing that
the defendant would attempt to drive the car away,
Chase operated his tow truck to lift the rear of the car
higher off the ground. Chase then notified the defendant
that he could pay $93.59 for the release of his car. The
defendant returned to the garage wherefrom he had
appeared and obtained a pipe approximately three or
four feet in length. The defendant moved toward Chase,
who was standing next to the driver’s side door of his
tow truck, and struck the tow truck with the pipe.
Thereafter, Chase, believing that the defendant
intended to strike him with the pipe, stepped backward
toward the tow truck, reached into the tow truck
through the driver’s side door, grabbed a can of pepper
spray located in the center console, and sprayed the
pepper spray into the defendant’s face. The defendant
became disoriented, dropped the pipe, and pulled a
knife out from his pocket. Immediately upon seeing the
knife, Chase entered his tow truck, drove a safe distance
away from the defendant, and called the police to report
the altercation.
The defendant was arrested on-site and charged with
breach of the peace in the second degree in violation
of § 53a-181 (a) (1),3 criminal mischief in the third
degree in violation of § 53a-117 (a) (1),4 and threatening
in the second degree in violation of § 53a-62 (a) (1).5
In September, 2016, the defendant’s case was tried to
a jury. The state called Chase as its key witness during
its case-in-chief. The jury found the defendant guilty on
all three counts. The trial court, Lobo, J., accepted the
jury’s verdict and sentenced the defendant to a total
effective sentence of two years incarceration, execution
suspended after fifteen months of incarceration, fol-
lowed by two years of probation with special condi-
tions. This appeal followed. Additional facts and
procedural history will be set forth as necessary.
I
We first consider the defendant’s claim that the trial
court erroneously precluded him from cross-examining
Chase as to the specific acts underlying several misde-
meanor convictions rendered against Chase, thereby
violating his constitutional rights to confrontation and
to present a defense under the sixth amendment to the
United States constitution.6 Specifically, the defendant
asserts that the court improperly prohibited him from
inquiring into the specific acts underlying (1) convic-
tions rendered against Chase on February 20, 2014, on
three separate counts of larceny in the sixth degree in
violation of General Statutes § 53a-125b7 (2014 larceny
convictions), and (2) a conviction rendered against
Chase on January 17, 2013, on one count of breach of
the peace in the second degree in violation of § 53a-
181 (2013 breach of the peace conviction). We disagree.
We begin by setting forth the relevant standard of
review and legal principles that govern our review of
the defendant’s claim. ‘‘The sixth amendment to the
[United States] constitution guarantees the right of an
accused in a criminal prosecution to confront the wit-
nesses against him. . . . The primary interest secured
by confrontation is the right to cross-examination . . .
and an important function of cross-examination is the
exposure of a witness’ motivation in testifying. . . .
Cross-examination to elicit facts tending to show
motive, interest, bias and prejudice is a matter of right
and may not be unduly restricted. . . .
‘‘Although it is within the trial court’s discretion to
determine the extent of cross-examination and the
admissibility of evidence, the preclusion of sufficient
inquiry into a particular matter tending to show motive,
bias and interest may result in a violation of the constitu-
tional requirements [of the confrontation clause] of the
sixth amendment. . . . Further, the exclusion of
defense evidence may deprive the defendant of his con-
stitutional right to present a defense. . . .
‘‘[T]he confrontation clause does not [however] sus-
pend the rules of evidence to give the defendant the
right to engage in unrestricted cross-examination. . . .
Rather, [a] defendant is . . . bound by the rules of
evidence in presenting a defense. . . . Although exclu-
sionary rules of evidence cannot be applied mechanisti-
cally to deprive a defendant of his rights, the [federal]
constitution does not require that a defendant be per-
mitted to present every piece of evidence he wishes.
. . . To the contrary, [t]he [c]onfrontation [c]lause
guarantees only an opportunity for effective cross-
examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense
might wish. . . .
‘‘In analyzing the defendant’s claims, we first review
the trial court’s evidentiary rulings. Our standard of
review for evidentiary claims is well settled. . . . We
review the trial court’s decision to admit [or exclude]
evidence, if premised on a correct view of the law . . .
for an abuse of discretion. . . . The trial court has wide
discretion to determine the relevancy of evidence and
the scope of cross-examination. . . . In determining
whether there has been an abuse of discretion, the
ultimate issue is whether the court . . . reasonably
[could have] conclude[d] as it did. . . . If, after
reviewing the trial court’s evidentiary rulings, we con-
clude that the trial court properly excluded the prof-
fered evidence, then the defendant’s constitutional
claims necessarily fail.’’ (Citations omitted; internal
quotation marks omitted.) State v. Davis, 298 Conn. 1,
8–11, 1 A.3d 76 (2010). Additionally, ‘‘[i]t bears emphasis
that any limitation on the impeachment of a key govern-
ment witness is subject to the most rigorous appellate
review.’’ (Internal quotation marks omitted.) State v.
Grant, 89 Conn. App. 635, 645, 874 A.2d 330, cert.
denied, 275 Conn. 903, 882 A.2d 678 (2005).
Pursuant to § 4-5 (a) of the Connecticut Code of Evi-
dence, evidence of other crimes, wrongs, or acts of a
person may not be admitted to prove the bad character,
propensity, or criminal tendencies of that person, sub-
ject to certain exceptions set forth in § 4-5 (b) that are
not applicable here. Pursuant to § 4-5 (c), however,
evidence of other crimes, wrongs, or acts is admissible
for other purposes, ‘‘such as to prove intent, identity,
malice, motive, common plan or scheme, absence of
mistake or accident, knowledge, a system of criminal
activity, or an element of the crime, or to corroborate
crucial prosecution testimony.’’ ‘‘Admissibility of other
crimes, wrongs or acts evidence is contingent on satis-
fying the relevancy standards and balancing test set
forth in [Connecticut Code of Evidence §§] 4-1 and 4-
3, respectively. For other crimes, wrongs or acts evi-
dence to be admissible, the court must determine that
the evidence is probative of one or more of the enumer-
ated purposes for which it is offered and that its proba-
tive value outweighs its prejudicial effect.’’ Conn. Code
Evid. § 4-5 (c), commentary. ‘‘To determine whether
evidence of prior misconduct falls within an exception
to the general rule prohibiting its admission, we have
adopted a two-pronged analysis. . . . First, the evi-
dence must be relevant and material to at least one
of the circumstances encompassed by the exceptions.
Second, the probative value of such evidence must out-
weigh the prejudicial effect of the other crime evi-
dence.’’ (Internal quotation marks omitted.) State v.
Boscarino, 86 Conn. App. 447, 458, 861 A.2d 579 (2004).
Pursuant to Connecticut Code of Evidence § 6-6 (b)
(1), ‘‘[a] witness may be asked, in good faith, about
specific instances of conduct of the witness, if probative
of the witness’ character for untruthfulness.’’ ‘‘The right
to cross-examine a witness concerning specific acts of
misconduct is limited in three distinct ways. First, cross-
examination may only extend to specific acts of miscon-
duct other than a felony conviction if those acts bear
a special significance upon the [issue] of veracity . . . .
Second, [w]hether to permit cross-examination as to
particular acts of misconduct . . . lies largely within
the discretion of the trial court. . . . Third, extrinsic
evidence of such acts is inadmissible.’’ (Internal quota-
tion marks omitted.) State v. Martinez, 171 Conn. App.
702, 735, 158 A.3d 373, cert. denied, 325 Conn. 925, 160
A.3d 1067 (2017).
A
The defendant first claims that the trial court errone-
ously precluded him from cross-examining Chase as to
the specific acts underlying the 2014 larceny convic-
tions. We are not persuaded.
The following additional facts and procedural history
are relevant to our disposition of the defendant’s claim.
On September 14, 2016, prior to the start of the second
day of jury selection, the defendant orally moved the
court for an order requiring the state to disclose any
police reports relating to the 2014 larceny convictions
and the 2013 breach of the peace conviction. The court
denied the defendant’s motion as to the 2013 breach of
the peace conviction but granted the motion as to the
2014 larceny convictions.
On September 16, 2016, the state filed a motion in
limine to preclude evidence of Chase’s convictions and
any allegations of criminal conduct against Chase. On
September 19, 2016, the defendant filed an objection
to the motion in limine, to which he attached copies
of, inter alia, three police reports relating to the 2014
larceny convictions, one dated May 29, 2013, and two
dated May 30, 2013 (2013 police reports). On September
20, 2016, the court heard argument on the motion in
limine. In support of the motion, the state argued, inter
alia, that evidence of the specific acts underlying the
2014 larceny convictions was not probative of Chase’s
veracity and would mislead the jury. The state also
requested that, if the court were to deem evidence relat-
ing to the 2014 larceny convictions admissible, the court
limit the admission of such evidence to the names and
dates of the convictions, as well as the identity of the
courts in which the convictions were rendered. In
opposing the motion, the defendant stated that he
sought to inquire into the specific acts underlying the
2014 larceny convictions rather than offer evidence of
the convictions themselves. The defendant noted that
the 2013 police reports contained statements by Chase
admitting that he had stolen cell phones to exchange
them for drugs. The defendant argued that he intended
to inquire into those specific acts, as well as Chase’s
drug use, in order to impeach Chase’s credibility and
to support his defense theory that Chase, motivated by
his desire to fuel a drug habit, was stealing, rather than
towing, the defendant’s car on March 24, 2015.
Following argument, the court granted in part and
denied in part the state’s motion in limine, ruling that
evidence of the 2014 larceny convictions, the dates of
the convictions, the identity of the courts in which the
convictions were rendered, and the sentences imposed
would be admissible, but that evidence of the specific
acts underlying those convictions would be inadmissi-
ble. In prohibiting evidence of the specific acts underly-
ing the 2014 larceny convictions, the court determined
that Chase’s statements in the 2013 police reports were
too remote, not relevant, would only serve to confuse
the jury, and would inject collateral issues into the trial.
The court also rejected the defendant’s argument that
the 2013 police reports demonstrated that Chase had
a drug habit providing him with a motive to steal the
defendant’s car on March 24, 2015, stating that there
were no allegations that Chase was under the influence
of any substances at that time.
At trial, Chase testified that he had been convicted
of three counts of larceny in the sixth degree in 2014.
Chase did not testify as to the specific acts underlying
those convictions. In addition, on cross-examination,
Chase testified that he had not been under the influence
of alcohol or illegal drugs on March 24, 2015, and that
he had not been under the influence of illegal drugs
during the seven days preceding March 24, 2015.
The defendant asserts that the 2013 police reports
included statements by Chase admitting that he pre-
viously had stolen cell phones to exchange them for
drugs. The defendant contends that, if elicited on cross-
examination, that information would have undermined
Chase’s credibility and supported his defense theory
that Chase, motivated by a drug habit, was stealing the
defendant’s car rather than towing it. In response, the
state argues, inter alia, that the specific acts underlying
the 2014 larceny convictions were too remote and did
not demonstrate that Chase had a motive to steal the
defendant’s car. We agree with the state.
‘‘It is generally held that larcenous acts tend to show
a lack of veracity. . . . [L]arcenous crimes by their
very nature indicate dishonesty or tendency to make
false statement. . . . Moreover, [i]n common human
experience acts of deceit, fraud, cheating, or stealing,
for example, are universally regarded as conduct which
reflects on a man’s honesty and integrity. . . . It does
not follow, however, that if the acts inquired about are
indicative of a lack of veracity, the court must permit
the cross-examination. Whether to permit it lies largely
within the court’s discretion.’’ (Citations omitted; inter-
nal quotation marks omitted.) State v. Martin, 201
Conn. 74, 87, 513 A.2d 116 (1986).
Here, the court determined reasonably that Chase’s
statements in the 2013 police reports were too remote
in time to have probative value as to the underlying
March 24, 2015 incident and, even if they were proba-
tive, they would have confused the jury. See, e.g., State
v. Morgan, 70 Conn. App. 255, 274, 797 A.2d 616 (trial
court free to determine that remoteness of specific acts
of misconduct tended to outweigh probative value),
cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002). The
court also determined reasonably that Chase’s state-
ments were not probative of Chase having a motive to
steal the defendant’s car, namely, to support a drug
habit, where there was no indication in the record that
Chase was under the influence of substances at the
time of the underlying incident on March 24, 2015.
Accordingly, we conclude that the court did not abuse
its discretion in precluding the defendant from cross-
examining Chase as to the specific acts underlying the
2014 larceny convictions.
B
The defendant next claims that the trial court errone-
ously precluded him from cross-examining Chase as to
the specific acts underlying the 2013 breach of the peace
conviction. We disagree.
The following additional facts and procedural history
are relevant to our disposition of the defendant’s claim.
On September 20, 2016, after the court, in adjudicating
the state’s motion in limine, had precluded evidence as
to the specific acts underlying the 2014 larceny convic-
tions, the defendant requested permission to be heard
on an oral motion to permit inquiry into the specific
acts underlying the 2013 breach of the peace conviction.
The following day, the court heard argument on such
motion. The defendant noted that a police report relat-
ing to the 2013 breach of the peace conviction that
he had acquired, dated October 14, 2012 (2012 police
report),8 contained a statement by Chase indicating that,
following a motor vehicle accident on October 14, 2012,
involving Chase and another motorist, Chase attempted
to use pepper spray on the motorist in self-defense. As
a result of that incident, both Chase and the motorist
were charged with breach of the peace in the second
degree in violation of § 53a-181. Chase pleaded guilty
to the breach of the peace charge, which, according to
the defendant, demonstrated that Chase’s statement in
the 2012 police report, representing that he had used the
pepper spray in self-defense, was false. The defendant
contended that the specific acts underlying the 2013
breach of the peace conviction could be used to estab-
lish that Chase was engaging in a pattern of making
false self-defense claims and to impeach Chase’s credi-
bility in the present case, where Chase had sprayed
pepper spray into the defendant’s face allegedly in self-
defense. The state objected, arguing, inter alia, that the
specific acts underlying the 2013 breach of the peace
conviction were too remote, lacked probative value,
and did not support the defendant’s argument that
Chase was engaging in a pattern of making false self-
defense claims.
Following argument, the court concluded that it was
‘‘maintaining’’ its ruling that the 2013 breach of the
peace conviction and the specific acts underlying that
conviction were not probative of Chase’s credibility and
were not relevant.9 The court determined that Chase’s
guilty plea to the breach of the peace charge did not
amount to a concession that Chase’s statement in the
2012 police report was false, and it noted that the Octo-
ber 14, 2012 altercation between Chase and the motorist
occurred over two years prior to the underlying March
24, 2015 incident. Thus, the court determined that the
2013 breach of the peace conviction and the acts under-
lying it did not demonstrate that Chase was engaging
in a pattern of making false self-defense claims, were
too remote, had no probative value, and would inject
collateral issues into the trial.
At trial, Chase testified that he had been convicted
of one count of breach of the peace sometime around
2013. Chase did not testify as to the specific acts under-
lying that conviction.
The defendant claims that the 2012 police report
reflected that Chase previously had admitted to pepper
spraying another individual. He further contends that,
if elicited on cross-examination, that information would
have undermined Chase’s credibility and supported the
defendant’s theory that Chase had sprayed pepper spray
in the defendant’s face while attempting to steal his
car, rather than in self-defense.
We conclude that the court did not abuse its discre-
tion in prohibiting the defendant from cross-examining
Chase as to the specific acts underlying the 2013 breach
of the peace conviction. The court determined reason-
ably that Chase’s guilty plea to the breach of the peace
charge did not impugn his statement in the 2012 police
report regarding his use of pepper spray in self-defense,
such that the specific acts underlying the 2013 breach
of the peace conviction were not probative of Chase
engaging in a pattern of making false self-defense
claims. The court also determined reasonably that the
October 14, 2012 altercation underlying Chase’s breach
of the peace conviction, which occurred more than two
years before the underlying incident on March 24, 2015,
was too remote and bore minimal probative value on
Chase’s credibility. See State v. Morgan, supra, 70 Conn.
App. 274.
In sum, we conclude that the court did not abuse
its discretion in prohibiting the defendant from cross-
examining Chase as to the specific acts underlying the
2014 larceny convictions and the 2013 breach of the
peace conviction. Consequently, the defendant’s consti-
tutional claims fail as well.
II
We next address the defendant’s claim that the trial
court erroneously denied his motion seeking a disclo-
sure and an in camera review of medical, mental health,
and drug and alcohol treatment records of Chase
(Chase’s records), thereby violating his constitutional
rights to confrontation and to present a defense under
the sixth amendment to the United States constitution.10
Specifically, the defendant asserts (1) that the court
improperly rejected his request to voir dire Chase as
to Chase’s records, which restricted his ability to make
the requisite threshold showing to require the disclo-
sure and in camera inspection of Chase’s records, or, in
the alternative, (2) that the court improperly concluded
that he failed to satisfy the requisite threshold showing.
We disagree.
The following additional facts and procedural history
are relevant to our disposition of the defendant’s claims.
On September 19, 2016, before the evidentiary portion
of the trial had commenced, the defendant filed a
motion requesting that the state disclose, or that the
court subpoena, Chase’s records, and that the court
conduct an in camera inspection of such records, if
they existed, to determine whether they were probative
of Chase’s credibility (motion for disclosure). In sup-
port of the motion, the defendant stated that one of the
police reports relating to the 2014 larceny convictions,
dated May 29, 2013 (May 29, 2013 police report),
reflected that Chase had confessed to committing sev-
eral larcenies in May, 2013, ‘‘in an effort to fuel a drug
habit.’’ Chase also informed the police that he was
‘‘starting a drug addiction program on Monday, June 3,
2013’’ as a ‘‘result’’ of one of his arrests. The defendant
contended that, to the extent that they existed, Chase’s
records likely contained evidence that the defendant
could use to impeach Chase’s credibility.
On September 20, 2016, the court heard argument on
the motion for disclosure. During argument, defense
counsel requested an opportunity to voir dire Chase to
determine whether Chase’s records existed and
whether they were material to Chase’s credibility such
that obtaining them for an in camera inspection by the
court was warranted. Defense counsel argued that he
was in a ‘‘vacuum,’’ as he did not have access to any
of Chase’s records, but that the May 29, 2013 police
report indicated that Chase apparently had undergone
substance abuse treatment. Defense counsel further
argued that substance abuse affects an individual’s abil-
ity to comprehend, know, and correctly relate the truth,
such that Chase’s records could contain evidence that
was probative of Chase’s credibility. The state objected,
arguing that it did not possess confidential records of
Chase or have knowledge of any substance abuse treat-
ment that Chase had undergone. It further argued that
because the defendant had not proffered any evidence
suggesting that Chase was impaired at the time of the
altercation with the defendant on March 24, 2015, the
information sought by the defendant by way of his
motion for disclosure was immaterial, prejudicial, and
had no probative value. The state also argued that
obtaining and reviewing any such confidential records
would cause undue delay in the case.
Following argument, the court denied the motion for
disclosure. After setting forth the relevant law govern-
ing access to confidential records, the court stated: ‘‘In
listening to argument, [the] court is not persuaded that
the defendant has met the initial threshold for the dis-
closure of the records at this point in time. There is,
again—it has been represented, an allegation, that back
in 2013, two years prior, that [Chase] had a drug prob-
lem, and that [Chase] was seeking treatment. Again,
two years prior to the allegations as contained in the
case that’s presently before the court. Defense counsel
also argued that we don’t know that—we don’t know
what’s in the records. It’s true, none of us know what’s
in the records. But not knowing what’s in the records
doesn’t allow for a fishing expedition [to] discover what
could or potentially be in the records. The initial thresh-
old has to be met. What’s being offered as to . . . that
initial threshold is the 2013 statement alleged to be
made by [Chase]. That there was an issue back then,
two years ago. Again, as to how that reflects or is associ-
ated with the present matter before the court, there is
nothing that this court has heard regarding [Chase’s]
ability to perceive or to recollect or narrate relevant
events that occurred. There’s no indication as to the
allegations and, again, as it . . . pertained in the police
report as to substance abuse. Based on the remoteness
. . . and what the court has already put forth on the
record, [the] court does not find that the threshold is
met at this point in time, and the request is denied.’’
With regard to the defendant’s request to voir dire
Chase as to Chase’s records, after initially reserving its
decision, the court ruled as follows: ‘‘[T]he court had
further reflection on [defense] counsel’s request as to
being able to voir dire [Chase] regarding his substance
abuse and mental health records. Again, those are confi-
dential records. Again, [the] court is denying that
request to voir dire [Chase] as to the mental health and
medical records, again, based on the court’s earlier
ruling that the initial proffer this court found did not
meet the original threshold to bring it to a potential in
camera review or consider putting it before witnesses
to explore that matter further. Again . . . the state-
ment made by [Chase] was back from in—from 2012
and 2013, two years prior to the matter that’s before
the court today, and would not be material to this case.
And again, just opening up potential collateral issues,
which this court is not going to get into.’’
The following exchange then occurred on the record
between defense counsel and the court:
‘‘[Defense Counsel]: Judge, I just want a clarification
on the ruling on the motion for an in camera review.
‘‘The Court: Mm-mmm.
‘‘[Defense Counsel]: I believe Your Honor said I could
not voir dire preliminarily on the medical records or
the mental health, but you didn’t mention drug.
‘‘The Court: And substance abuse, as far as the
records.
‘‘[Defense Counsel]: Okay.
‘‘The Court: And, again, as far as what attorneys wish
to get into, not restricting cross-examination or ques-
tions asked of witnesses, but as of this point in time,
[the] court hasn’t heard anything that would—that
would cause this court to order an unsealing of those
records.
‘‘[Defense Counsel]: Your Honor, at this point—at
this point in that motion for the in camera review of
the records—
‘‘The Court: Mm-mmm.
‘‘[Defense Counsel]: —we don’t have the records.
So the procedure—what I requested was to question
[Chase] out of the presence of the jury about where
he’s treated for drugs and alcohol.
‘‘The Court: Mm-mmm.
‘‘[Defense Counsel]: And then if—and at that point
if he states, you know, that he [was] treated at X, Y
and Z, and at that point that’s when the—Your Honor
would determine whether the threshold has been met.
‘‘The Court: And, again, from what’s been presented
to the court is that there was a statement made back
in 2013 that [Chase] was seeking treatment. The court’s
not finding that relevant as to this case that’s before
the court today. That that information would not be
material. That individual has a right to confidentiality
regarding substance abuse and mental health records.
That includes potentially if and when and where and
whether he’s ever treated that. That confidentiality cov-
ers all of that. So, at this point in time, the court is not
finding, based on the proffer, a reason to have him
testify as to anything as to what his treatment is or was
at any point in time, if it occurred.
‘‘[Defense Counsel]: And Your Honor has balanced
that against [the defendant’s] constitutional rights to
cross-examine and impeach the witnesses. And we
know that—
‘‘The Court: Absolutely.
‘‘[Defense Counsel]: —in the proffer that I made prior
is, we know, in 2013 that [Chase] had a cocaine, severe
cocaine habit. That he was fueled by a drug addiction
to commit larcenies. And that we claim that that’s com-
pletely material and relevant to the defense in this case.
‘‘The Court: Yes. So noted.’’
A
The defendant first claims that the trial court errone-
ously rejected his request to voir dire Chase as to
Chase’s records, thereby restricting his ability to make
the threshold showing warranting the procurement and
in camera review of Chase’s records. In response, the
state argues, inter alia, that the court acted within its
discretion to reject the defendant’s request to voir dire
Chase. We agree with the state.
‘‘[O]ur Supreme Court has established that to compel
an in camera review of confidential records, a defendant
must make a preliminary showing that there is a reason-
able ground to believe that failure to review the records
likely would impair the defendant’s right to confronta-
tion. . . . To meet this burden, the defendant must do
more than assert that the privileged records may con-
tain information that would be useful for the purposes
of impeaching a witness’ credibility. . . . As explained
by our Supreme Court: [T]he defendant’s offer of proof
should be specific and should set forth the issue in the
case to which the [confidential] information sought will
relate.’’ (Internal quotation marks omitted.) State v.
Campanaro, 146 Conn. App. 722, 733, 78 A.3d 267
(2013), cert. denied, 311 Conn. 902, 83 A.3d 604 (2014).
Our Supreme Court has ‘‘urged trial courts to permit
the defendant a certain latitude in his attempt to make
[the preliminary showing required to obtain an in cam-
era inspection of confidential records] . . . [however],
in the context of [the defendant’s] offer of proof to make
that showing, our rules of evidence remain operative.’’
(Citation omitted; internal quotation marks omitted.)
State v. Bruno, 236 Conn. 514, 531, 673 A.2d 1117 (1996).
A trial court retains the discretion to curtail inquiry that
is not probative. Id., 531, 533. ‘‘While we are mindful
that the defendant’s task to lay a foundation as to the
likely relevance of records to which he is not privy is
not an easy one, we are also mindful of the witness’
legitimate interest in maintaining, to the extent possible,
the privacy of [his] confidential records.’’ Id., 531–32.
Generally, a defendant is ‘‘afforded an opportunity
to voir dire persons with knowledge of the contents of
the [confidential] records sought’’ in creating a factual
basis upon which the trial court might conclude that
there is a reasonable ground to believe that the records
would contain impeachment evidence such that a fur-
ther inquiry is warranted. Id., 523. The court, however,
had the discretion to deny the defendant’s request to
voir dire Chase with respect to Chase’s records on the
basis of its determinations that Chase’s records were
too remote in time to the underlying March 24, 2015
incident and not material. We conclude that the court
did not abuse its discretion under these circumstances.
B
In the alternative, the defendant claims that the trial
court erroneously concluded that he failed to make a
sufficient threshold showing to require the disclosure
and in camera examination of Chase’s records. Specifi-
cally, the defendant contends that, notwithstanding the
court’s declining his request to voir dire Chase as to
Chase’s records, the May 29, 2013 police report satisfied
the requisite threshold showing. In response, the state
argues that the evidence submitted by the defendant
was insufficient to meet the necessary threshold show-
ing. We agree with the state.
‘‘This court will review a trial court’s denial of a
defendant’s request to conduct an in camera review of
confidential records pursuant to our standard of review
for evidentiary rulings. . . . Therefore, [w]e review a
court’s conclusion that a defendant has failed to make
a threshold showing of entitlement to an in camera
review of [confidential] records . . . under the abuse
of discretion standard. . . . We must make every rea-
sonable presumption in favor of the trial court’s action.
. . . The trial court’s exercise of its discretion will be
reversed only where the abuse of discretion is manifest
or where injustice appears to have been done.’’ (Internal
quotation marks omitted.) State v. Campanaro, supra,
146 Conn. App. 732.
In the present case, the May 29, 2013 police report
that the defendant submitted in support of his motion
for disclosure established, at most, that Chase had a
drug addiction in May, 2013, and intended to receive
substance abuse counseling and treatment in June,
2013, nearly two years before the underlying March 24,
2015 incident. ‘‘However, we have never held that a
history of alcohol or drug abuse or treatment automati-
cally makes a witness fair game for disclosure of [confi-
dential] records to a criminal defendant . . . .’’
(Citation omitted; internal quotation marks omitted.)
State v. Bruno, supra, 236 Conn. 529. Further, the court
determined reasonably that Chase’s alleged drug use
and pursuit of treatment and counseling were too
remote in time to the underlying March 24, 2015 incident
and not material. Accordingly, we conclude that the
court did not abuse its discretion in denying the defen-
dant’s motion for disclosure.11
III
We now turn to the defendant’s claim that the trial
court committed instructional error by failing to
instruct the jury that defense of property constituted a
justification defense to the charge of criminal mischief
in the third degree. Specifically, relying on General Stat-
utes § 53a-16, he contends that defense of property
applies ‘‘in any prosecution for an offense,’’ including
criminal mischief in the third degree. (Internal quota-
tion marks omitted.) In response, the state argues, inter
alia, that defense of property is applicable only to
crimes against persons and, thus, it does not constitute
a justification defense to criminal mischief in the third
degree. We agree with the state.
We begin by setting forth the relevant standard of
review. Whether a justification defense applies to a
particular crime is a question of law and, therefore,
subject to plenary review. See State v. Amado, 254
Conn. 184, 197, 756 A.2d 274 (2000).
The following additional facts and procedural history
are relevant to the defendant’s claim. On September 22,
2016, the defendant filed a written request to charge in
which he requested, inter alia, that the court instruct
the jury that defense of property applied to all three of
the crimes of which he was charged, including criminal
mischief in the third degree. Following a charge confer-
ence, the court declined to give the charge requested
by the defendant regarding defense of property. Instead,
the court instructed the jury that defense of property
applied only to the charges of breach of the peace in
the second degree and threatening in the second degree.
‘‘Due process requires that a defendant charged with
a crime must be afforded the opportunity to establish
a defense. . . . This fundamental constitutional right
includes proper jury instructions on the elements of
[the defense] so that the jury may ascertain whether the
state has met its burden of proving beyond a reasonable
doubt that the [crime charged] was not justified.’’ (Inter-
nal quotation marks omitted.) State v. Nathan J., 99
Conn. App. 713, 716, 915 A.2d 907 (2007), aff’d, 294
Conn. 243, 982 A.2d 1067 (2009). ‘‘A defendant must,
however, assert a recognized legal defense before such
a charge will become obligatory. . . . State v. Rosado,
178 Conn. 704, 707, 425 A.2d 108 (1979). Our Supreme
Court has held that only when the evidence presented
indicates the availability of one of the numerous statu-
tory defenses, codified in the General Statutes, is the
defendant entitled, as a matter of law, to a theory of
defense charge.’’ (Emphasis in original; internal quota-
tion marks omitted.) State v. Fiocchi, 17 Conn. App.
326, 329, 553 A.2d 181, cert. denied, 210 Conn. 812, 556
A.2d 611 (1989).
Section 53a-16 provides: ‘‘In any prosecution for an
offense, justification, as defined in sections 53a-17 to
53a-23, inclusive, shall be a defense.’’ General Statutes
§ 53a-21 provides: ‘‘A person is justified in using reason-
able physical force upon another person when and to
the extent that he reasonably believes such to be neces-
sary to prevent an attempt by such other person to
commit larceny or criminal mischief involving property,
or when and to the extent he reasonably believes such
to be necessary to regain property which he reasonably
believes to have been acquired by larceny within a rea-
sonable time prior to the use of such force; but he may
use deadly physical force under such circumstances
only in defense of person as prescribed in section 53a-
19.’’ (Emphasis added.)
This court’s decision in State v. Fiocchi, supra, 17
Conn. App. 326, is instructive to our resolution of the
defendant’s claim. In Fiocchi, following a jury trial, the
defendant was convicted of unlawful discharge of a
firearm in violation of General Statutes (Rev. to 1985)
§ 53-20312 for shooting and killing a neighbor’s dog that
had entered the defendant’s property and had pre-
viously attacked his chickens. Id., 327–28. The trial
court instructed the jury on the defense codified in
General Statutes § 22-358; id., 329; which protects own-
ers of any domestic animal or poultry from criminal
and civil liability for killing any dog observed ‘‘pursuing
or worrying any such domestic animal or poultry.’’ Gen-
eral Statutes (Rev. to 1985) § 22-358 (a). On appeal from
the judgment of conviction, the defendant claimed, inter
alia, that the court erroneously failed to give the jury
a ‘‘general justification’’ instruction. (Internal quotation
marks omitted.) State v. Fiocchi, supra, 329. This court
rejected that claim, determining that there was no gen-
eral, noncodified justification defense recognized under
Connecticut law. Id. This court further stated: ‘‘With
respect to the defense of justification provided in our
penal code pursuant to General Statutes §§ 53a-16 and
53a-19, which the defendant referred to in his request
to charge, we conclude that those statutes do not apply
to the use of force against animals. These statutes repre-
sent a codification of the common law; see Commission
to Revise the Criminal Statutes, Penal Code Comments,
Connecticut General Statutes, p. 219; and specifically
refer to the use of force against ‘persons.’ ‘Person’ is
defined under General Statutes [Rev. to 1985] § 53a-3
(1) as ‘a human being, and, where appropriate, a public
or private corporation, an unincorporated association,
a partnership, a government or a governmental instru-
mentality.’ . . . Based on a plain language reading of
these statutes, it is evident that . . . §§ 53a-16 and 53a-
19 apply only to the use of force against another person
and not animals. Therefore, the trial court properly
limited its instruction of the defense of justification to
the specific statutory defense for killing a dog set forth
in . . . § 22-358.’’ (Emphasis in original; footnotes
omitted.) State v. Fiocchi, supra, 329–30.
Although Fiocchi discussed the applicability of self-
defense to a crime involving the use of force against a
domestic animal, the rationale in Fiocchi is germane
to the issue before us. The plain language of § 53a-
21 mandates that a defendant must use ‘‘reasonable
physical force upon another person’’ to invoke defense
of property. (Emphasis added.) Accordingly, defense
of property is inapplicable to crimes that involve the
use of force against property, such as criminal mischief
in the third degree; see General Statutes § 53a-117; and,
thus, we conclude that the court correctly declined to
instruct the jury that defense of property applied to the
charge of criminal mischief in the third degree.13
IV
Finally, we address the defendant’s claims that the
state failed to meet its burden to disprove his defense
of property and self-defense justification defenses
beyond a reasonable doubt. We disagree.
‘‘On appeal, the standard for reviewing sufficiency
claims in conjunction with a justification offered by the
defense is the same standard used when examining
claims of insufficiency of the evidence. . . . In
reviewing a sufficiency of the evidence claim, we apply
a two part test. First, we construe the evidence in the
light most favorable to sustaining the verdict. Second,
we determine whether upon the facts so construed and
the inferences reasonably drawn therefrom the [jury]
reasonably could have concluded that the cumulative
force of the evidence established guilt beyond a reason-
able doubt. . . . This court cannot substitute its own
judgment for that of the jury if there is sufficient evi-
dence to support the jury’s verdict. . . . Moreover, we
do not ask whether there is a reasonable view of the
evidence that would support a reasonable hypothesis
of innocence. We ask, instead, whether there is a rea-
sonable view of the evidence that supports the jury’s
verdict of guilty. . . .
‘‘The rules governing the respective burdens borne
by the defendant and the state on the justification[s]
of self-defense [and defense of property] are grounded
in the fact that [u]nder our Penal Code, self-defense,
as defined in . . . § 53a-19 (a) [and defense of property
as defined in § 53a-21 are] . . . defense[s], rather than
. . . affirmative defense[s]. See General Statutes § 53a-
16. Whereas an affirmative defense requires the defen-
dant to establish his claim by a preponderance of the
evidence, a properly raised defense places the burden
on the state to disprove the defendant’s claim beyond
a reasonable doubt. See General Statutes § 53a-12. Con-
sequently, a defendant has no burden of persuasion for
a claim of self-defense [or defense of property]; he has
only a burden of production. That is, he merely is
required to introduce sufficient evidence to warrant
presenting his claim . . . to the jury. . . . Once the
defendant has done so, it becomes the state’s burden to
disprove the defense beyond a reasonable doubt. . . .
‘‘Whether the defense of the justified use of force,
properly raised at trial, has been disproved by the state
is a question of fact for the jury, to be determined
from all the evidence in the case and the reasonable
inferences drawn from that evidence. . . . As long as
the evidence presented at trial was sufficient to allow
the jury reasonably to conclude that the state had met
its burden of persuasion, the verdict will be sustained.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) State v. Nicholson, 155 Conn. App. 499,
505–506, 109 A.3d 1010, cert. denied, 316 Conn. 913,
111 A.3d 884 (2015).
We also note that ‘‘[i]t is the jury’s right to accept
some, none or all of the evidence presented. . . . More-
over, [e]vidence is not insufficient . . . because it is
conflicting or inconsistent. [The jury] is free to juxta-
pose conflicting versions of events and determine which
is more credible. . . . It is the [jury’s] exclusive prov-
ince to weigh the conflicting evidence and to determine
the credibility of witnesses. . . . The [jury] can . . .
decide what—all, none, or some—of a witness’ testi-
mony to accept or reject. . . . We do not sit as a [sev-
enth] juror who may cast a vote against the verdict
based upon our feeling that some doubt of guilt is shown
by the cold printed record.’’ (Internal quotation marks
omitted.) State v. Wortham, 80 Conn. App. 635, 642,
836 A.2d 1231 (2003), cert. denied, 268 Conn. 901, 845
A.2d 406 (2004).
The following additional facts and procedural history
are relevant to our disposition of the defendant’s claims.
During the state’s case-in-chief, Chase testified that, on
March 24, 2015, he had been employed by ‘‘A & M and
Central’’ and that, pursuant to a contract executed by
his employer and Coachlight Condominiums, he was
authorized to tow vehicles parked illegally in restricted
zones, such as fire lanes, on the Coachlight Condomini-
ums property. Chase further testified that on March 24,
2015, he was attempting to tow the defendant’s car from
the Coachlight Condominiums property because he had
observed it parked in a fire lane, which he identified
on the basis of signs on the property designating the
area in question as a fire lane. In addition, Chase testi-
fied that he informed the defendant that he was towing
the defendant’s car because it was parked in a fire lane,
the defendant approached him and struck his tow truck
with a pipe while he was standing nearby, he sprayed
the defendant with the pepper spray because he
believed that the defendant intended to strike him with
the pipe and he ‘‘feared for [his] life,’’ and the defendant
pulled out a knife from his pocket after being sprayed
with the pepper spray.
During his case-in-chief, the defendant elicited testi-
mony from John Freitas, the vice president and director
of a company named A & M Towing & Recovery, Inc.
(A & M Towing). Freitas testified that A & M Towing
did not have a towing services contract with Coachlight
Condominiums on March 24, 2015, and that Chase had
not been employed by A & M Towing on that date.
Freitas also testified that a company named Central
Automotive Transport (Central) had started managing
A & M Towing’s business operations beginning in May,
2014, and that he would not have known the identities
of Central’s employees who would have been driving
A & M Towing’s tow trucks. The defendant also elicited
testimony from Gloria Stokes, the fire marshal for East
Hartford. Stokes testified that she had the authority to
designate fire lanes in apartment complexes in East
Hartford and that she had not designated the area on
the Coachlight Condominiums property where the
defendant’s car had been parked on March 24, 2015, as
a fire lane. Stokes further testified, however, that there
were signs on the Coachlight Condominiums property
indicating that the area in question was a fire lane. In
addition, the court granted the defendant’s request to
admit into evidence an undated map indicating that the
area where the defendant’s car had been parked was
not a fire lane.
At trial, the defendant asserted defense of property
and self-defense as justification defenses.14 With respect
to his defense of property defense, the defendant’s the-
ory was that he believed that Chase was stealing his
car and that force was necessary to prevent the larceny.
With respect to his self-defense claim, the defendant’s
theory was that he was entitled to use force to defend
himself after Chase had sprayed and incapacitated him
with the pepper spray.
A
The defendant first claims that the state failed to
meet its burden to disprove his defense of property
justification defense beyond a reasonable doubt. Specif-
ically, he asserts that the evidence adduced at trial
demonstrates that he believed reasonably that Chase
was stealing his car and that physical force was neces-
sary to prevent the larceny. In response, the state
argues, inter alia, that there was sufficient evidence
produced at trial for the jury to determine reasonably
that the defendant’s alleged belief that Chase was steal-
ing his car was unreasonable. We agree with the state.
Section 53a-21 provides in pertinent part that ‘‘[a]
person is justified in using reasonable physical force
upon another person when and to the extent that he
reasonably believes such to be necessary to prevent an
attempt by such other person to commit larceny . . . .’’
In the present case, if the jury credited Chase’s testi-
mony, which it was free to do, it reasonably could have
found that Chase, in the course of his employment,
was attempting to tow the defendant’s car from the
Coachlight Condominiums property because it was
parked illegally in a fire lane and, further, that the defen-
dant was aware that his car was being towed legally
for that reason.15 In turn, the jury reasonably could have
determined that the defendant’s alleged beliefs that
Chase was committing a larceny and that physical force
was necessary to prevent the larceny were unreason-
able. Accordingly, construing the evidence in the light
most favorable to sustaining the verdict, we conclude
that the state met its burden to disprove the defendant’s
defense of property justification defense beyond a rea-
sonable doubt.
B
The defendant next claims that the state failed to
meet its burden to disprove his self-defense justification
defense beyond a reasonable doubt. Specifically, he
asserts that the evidence adduced at trial demonstrates
that he believed reasonably that Chase was using or
about to use deadly or nondeadly force on him and that
physical force was necessary to defend himself. He
further contends that the evidence does not establish
that he was the initial aggressor in the altercation with
Chase. In response, the state argues, inter alia, that
there was sufficient evidence produced at trial for the
jury to determine reasonably that the defendant was
the initial aggressor. We agree with the state.
Section 53a-19 (a) provides in relevant part that ‘‘a
person is justified in using reasonable physical force
upon another person to defend himself or a third person
from what he reasonably believes to be the use or immi-
nent use of physical force, and he may use such degree
of force which he reasonably believes to be necessary
for such purpose; except that deadly physical force may
not be used unless the actor reasonably believes that
such other person is (1) using or about to use deadly
physical force, or (2) inflicting or about to inflict great
bodily harm.’’ Section 53a-19 (c) provides in relevant
part that ‘‘[n]otwithstanding the provisions of subsec-
tion (a) of this section, a person is not justified in using
physical force when . . . (2) he is the initial aggressor,
except that his use of physical force upon another per-
son under such circumstances is justifiable if he with-
draws from the encounter and effectively
communicates to such other person his intent to do so,
but such other person notwithstanding continues or
threatens the use of physical force . . . .’’
‘‘A defendant who acts as an initial aggressor is not
entitled to the protection of the defense of self-defense.
. . . The initial aggressor, however, is not necessarily
the first person who uses physical force. . . . Section
53a-19 contemplates that a person who reasonably per-
ceives a threat of physical force may respond with phys-
ical force without becoming the initial aggressor and
forfeiting the defense of self-defense. . . . The initial
aggressor is the person who first acts in such a manner
that creates a reasonable belief in another person’s
mind that physical force is about to be used upon that
other person.’’ (Citations omitted.) State v. Skelly, 124
Conn. App. 161, 167–68, 3 A.3d 1064, cert. denied, 299
Conn. 909, 10 A.3d 526 (2010).
In crediting Chase’s testimony, the jury reasonably
could have found that Chase had sprayed the defendant
with pepper spray, which led the defendant to pull out
the knife from his pocket, only after the defendant had
approached Chase with a pipe and, with Chase standing
nearby, struck Chase’s tow truck with the pipe. The
evidence was sufficient for the jury to determine reason-
ably that the defendant’s actions caused Chase to
believe reasonably that the defendant was about to use
physical force upon him and, thus, that the defendant
was the initial aggressor. Accordingly, construing the
evidence in the light most favorable to sustaining the
verdict, we conclude that the state presented sufficient
evidence to disprove the defendant’s self-defense claim
beyond a reasonable doubt.16
The judgment is affirmed.
In this opinion the other judges concurred.
1
In his principal appellant’s brief and his reply brief, the defendant’s
claims that the state failed to disprove his defense of property and self-
defense justification defenses beyond a reasonable doubt were presented
in separate sections. For ease of discussion, we will address these claims
together.
2
More specifically, the car was parked in front of a garage door, above
which was a sign indicating that the area in which the car was parked was
a fire lane.
3
General Statutes § 53a-181 (a) provides in relevant part: ‘‘A person is
guilty of breach of the peace in the second degree when, with intent to
cause inconvenience, annoyance or alarm, or recklessly creating a risk
thereof, such person: (1) Engages in fighting or in violent, tumultuous or
threatening behavior in a public place . . . .’’
4
General Statutes § 53a-117 (a) provides in relevant part: ‘‘A person is
guilty of criminal mischief in the third degree when, having no reasonable
ground to believe that such person has a right to do so, such person: (1)
Intentionally or recklessly (A) damages tangible property of another . . . .’’
5
General Statutes § 53a-62 (a) provides in relevant part: ‘‘A person is
guilty of threatening in the second degree when: (1) By physical threat, such
person intentionally places or attempts to place another person in fear of
imminent serious physical injury . . . .’’
6
The defendant also claims a violation of his state constitutional rights
pursuant to article first, § 8, of the Connecticut constitution. We deem the
defendant’s state constitutional claims abandoned because he has failed to
provide an independent analysis under our state constitution. See State v.
Maye, 70 Conn. App. 828, 831 n.1, 799 A.2d 1136 (2002).
7
General Statutes § 53a-125b provides in pertinent part: ‘‘(a) A person is
guilty of larceny in the sixth degree when he commits larceny as defined
in section 53a-119 and the value of the property or service is five hundred
dollars or less. . . .’’
8
On September 14, 2016, the court denied the defendant’s oral motion
seeking a disclosure of any police reports relating to the 2013 breach of the
peace conviction. Nevertheless, sometime thereafter, the defendant obtained
a copy of the 2012 police report, which he attached to his objection to the
state’s motion in limine.
9
On the basis of the record before us, prior to its September 21, 2016
ruling, it does not appear that the court determined that the 2013 breach
of the peace conviction and the specific acts underlying that conviction
were not probative or relevant. On September 14, 2016, in denying the
defendant’s oral motion seeking a disclosure of any police reports relating
to the 2013 breach of the peace conviction, the court rejected an argument
raised by the defendant that any police reports relating to the 2013 breach
of the peace conviction might contain admissible evidence supporting his
defense theory that Chase was the initial aggressor in the underlying alterca-
tion, determining that § 4-4 (a) (2) of the Connecticut Code of Evidence
allowed such evidence only in homicide or criminal assault cases. The court
did not make any findings that the 2013 breach of the peace conviction and
the specific acts underlying that conviction were not probative or relevant
at that time.
10
The defendant also claims a violation of his state constitutional rights
pursuant to article first, § 8, of the Connecticut constitution. We deem the
defendant’s state constitutional claims abandoned because he has failed to
provide an independent analysis of them under our state constitution. See
State v. Maye, 70 Conn. App. 828, 831 n.1, 799 A.2d 1136 (2002).
11
Although the court denied the defendant’s motion for disclosure, defense
counsel asked Chase on cross-examination whether he was under the influ-
ence of alcohol or illegal drugs on March 24, 2015, and whether he was
under the influence of illegal drugs in the seven days preceding March 24,
2015. Chase replied ‘‘[n]o’’ to those inquiries. Defense counsel did not ask
Chase any other questions concerning his purported substance abuse.
‘‘Where the trial court allows significant cross-examination concerning a
witness’ veracity, it cannot be said that the constitutional right to confronta-
tion is implicated. . . . Although a lack of knowledge about the credibility
of a witness implicates the constitutional right of confrontation, [t]hat lack
of knowledge can be ameliorated by an extensive and effective [cross-
examination].’’ (Internal quotation marks omitted.) State v. Blake, 106 Conn.
App. 345, 355 n.7, 942 A.2d 496, cert. denied, 287 Conn. 922, 951 A.2d
573 (2008).
12
General Statutes (Rev. to 1985) § 53-203 provides: ‘‘Any person who
intentionally, negligently or carelessly discharges any firearm in such a
manner as to be likely to cause bodily injury or death to persons or domestic
animals, or the wanton destruction of property shall be fined not more than
two hundred fifty dollars or imprisoned not more than three months or both.’’
13
The defendant cites to State v. Morgan, 86 Conn. App. 196, 860 A.2d
1239 (2004), cert. denied, 273 Conn. 902, 868 A.2d 746 (2005), for the proposi-
tion that, pursuant to § 53a-16, a justification defense is a defense to all crimes
charged. The defendant’s reliance on Morgan is misplaced. In Morgan, this
court held that the trial court improperly charged the jury on self-defense
by failing to instruct the jury that it was obligated to find the defendant not
guilty of two counts of attempt to commit assault in the first degree in
violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1) and (2) if
the jury determined that the defendant was justified in his use of force. Id.,
205–206. Contrary to the assertion of the defendant in the present case,
Morgan does not state that justification defenses apply to all crimes. See,
e.g., State v. Davis, 261 Conn. 553, 573, 804 A.2d 781 (2002) (defendant not
entitled to self-defense instruction when charged only with interfering with
peace officer in violation of General Statutes § 53a-167a and assaulting peace
officer in violation of General Statutes [Rev. to 1997] § 53a-167c); State v.
Amado, supra, 254 Conn. 197–202 (defendant not entitled to self-defense
instruction when charged with felony murder in violation of General Statutes
§ 53a-54c). Further, unlike the present case, the defendant in Morgan was
not charged with a crime involving the use of force against property. State
v. Morgan, supra, 198.
14
The court instructed the jury that both of the justification defenses
applied only to the charges of breach of the peace in the second degree
and threatening in the second degree.
15
We note that the jury could have harmonized the testimonies of Freitas
and Stokes with Chase’s testimony. Chase testified that he was employed
by ‘‘A & M and Central.’’ Freitas testified that Chase was not employed by
A & M Towing, but that Central had taken over A & M Towing’s business
operations in May, 2014, and that its employees, whose identities Freitas
would not have known, were driving A & M Towing’s tow trucks. The jury
could have credited the testimonies of Chase and Freitas to determine
reasonably that Chase was employed and authorized by a towing services
company to tow illegally parked vehicles from the Coachlight Condominiums
property on March 24, 2015. In addition, Chase testified that he observed
signs on the Coachlight Condominiums property indicating that the location
where the defendant’s car had been parked on March 24, 2015, was a fire
lane. Stokes’ testimony confirmed that there were signs on the property
marking the location in question as a fire lane, although she had not desig-
nated that area as a fire lane in her capacity as East Hartford’s fire marshal.
The jury could have credited the testimonies of Chase and Stokes to deter-
mine reasonably that the defendant’s car was parked illegally in a fire lane
on March 24, 2015.
16
In his principal appellant’s brief, the defendant also claims that, if the
jury determined that the defendant had used deadly physical force, the state
failed to prove that any of the statutory exceptions precluding the use of
deadly physical force applied. See General Statutes § 53a-19 (b). Regardless
of whether the jury found that the defendant used deadly or nondeadly
physical force, the jury could have determined reasonably that the defendant
was the initial aggressor and, therefore, concluded that the state had dis-
proved the defendant’s self-defense claim beyond a reasonable doubt.