Argued, April 9, 2015
Substitute information charging the defendant with two counts of the crime of assault in the first degree, brought to the Superior Court in the judicial district of Litchfield, where the court, Ginocchio, J., denied the defendant's motion to introduce certain evidence; thereafter, the matter was tried to the jury; verdict and judgment of guilty, and sentence enhanced for the commission of a class A, B or C felony with a firearm, from which the defendant appealed.
Convicted of the crime of assault in the first degree in connection with an incident in which the defendant shot his wife after she admitted to having an extramarital affair, the defendant appealed. The defendant claimed, inter alia, that the trial court improperly denied his motion to introduce the testimony of his expert witness, L, a physician who specialized in pain management, and improperly failed to conduct an evidentiary hearing regarding L's proffered testimony. The defendant sought to have L testify about certain painkillers that the defendant had ingested, which he claimed would have been relevant as to whether he was intoxicated at the time of the shooting, and to rebut certain testimony from a nurse that he was experiencing no pain when he arrived at a hospital after the shooting.
1. The trial court did not abuse its discretion by denying the defendant's motion to introduce L's testimony or by failing to conduct an evidentiary hearing sua sponte on the admissibility of L's proffered testimony; the court properly determined that L's testimony was not relevant to whether and to what extent the defendant was experiencing pain on the day of the shooting, as L had not spoken to or examined the defendant on the day of the shooting, and an evidentiary hearing was unnecessary because the defendant did not request an evidentiary hearing and did not make the prerequisite preliminary showing that the proffered evidence was relevant.
2. The trial court did not err in denying the defendant's request to instruct the jury on intoxication, as the defendant failed to present sufficient evidence to show that he was impaired by intoxicating substances he claimed to have ingested before the shooting; the defendant's testimony did not suggest that he was impaired at the time of the shooting, as he provided a clear, coherent and detailed account of the shooting, the evidence presented at trial did not indicate when the substances were introduced into the defendant's system in relation to the time of the shooting, and the defendant failed to introduce expert testimony about the effects of the substances such that the jury had no basis upon which to find that he was intoxicated at the time of the shooting.
3. The defendant's claim that he was deprived of a fair trial as a result of certain prosecutorial improprieties during closing argument was unavailing: a. The prosecutor's statement that a shell casing the police found matched ammunition that the defendant had purchased before the shooting was fairly based on the testimony of a police officer and thus did not mischaracterize the evidence.
b. Although the prosecutor improperly commented that the defendant had told doctors at the hospital that he intended to shoot the victim, there having been no testimony that he had made such a statement to any medical provider, that comment did not deprive the defendant of a fair trial, as the impropriety occurred only once and was not severe, he did not object to the comment, and the state's case was strong.
c. This court declined the defendant's request to exercise its supervisory authority and reverse his conviction, as the improper comment was made only once, the comment was not in direct conflict with any specific court ruling, the evidence did not suggest that the prosecutor deliberately attempted to mislead the jury, and there was no evidence of a pattern of similar misconduct in other cases.
Richard Emanuel, for the appellant (defendant).
Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were David Shepack, state's attorney, and Dawn Gallo, senior assistant state's attorney, for the appellee (state).
Beach, Keller and
[158 Conn.App. 258] The defendant, John Joseph LaVoie, appeals from the judgment of conviction, rendered after a jury trial, on two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (5). The defendant claims that (1) the trial court erred by (a) denying his motion to introduce the testimony of an expert witness and (b) failing to conduct an evidentiary hearing sua sponte on his offer of proof regarding the expert witness' proffered testimony, (2) the trial court erred by declining his request to provide the jury with an instruction on intoxication, and (3) prosecutorial improprieties occurred when the prosecutor made improper comments during her closing argument and, as a result, he was deprived of his right to a fair trial [158 Conn.App. 259] or, alternatively, that this court should invoke its supervisory authority to reverse his conviction. We affirm the judgment of the court.
The following facts, which a reasonable jury could have found, and procedural history are relevant here. The defendant, who has been a paraplegic and confined to a wheelchair since 1975, was married to the victim, Shelly LaVoie, for twenty-three years until they divorced in April, 2010. Sometime toward the end of September or early October, 2009, the defendant began to suspect that the victim was having an affair. He confronted her about his suspicions in early October, 2009, but she denied his accusations.
The defendant continued to question the victim's fidelity. He hired a private investigator sometime in October or November, 2009, to identify the source of a telephone number that he had discovered on the victim's primary cell phone account and to follow her on one occasion when she told the defendant that she was going shopping. On the day that the private investigator followed the victim, he observed her meeting with Lenny Morey, who was employed at the time as the defendant's landscaper and handyman, at a K-Mart shopping center in Torrington. The defendant, assuming that the victim was having an affair with Morey, confronted Morey at his Torrington home sometime in November, 2009. Morey denied the defendant's accusation that he was having an affair with the victim and stated that they merely shared a platonic friendship. Morey also informed the defendant that the victim owned a second cell phone of which the defendant was unaware, and provided the defendant with the telephone number for her second cell phone. The defendant fired Morey from his employment after their conversation.
[158 Conn.App. 260] In early or mid-November, 2009, without the victim's knowledge, the defendant placed a global positioning system (GPS) device and a tape recorder in a car that he shared with the victim. Shortly thereafter, the tape recorder recorded a romantic encounter between the victim and Morey together in the car. On November 20, 2009, the defendant informed the victim that he knew of her second cell phone, that he had hired a private investigator to follow her, and that he had tape-recorded a romantic encounter between her and Morey. After hearing the recording, the victim admitted to having an affair with Morey and agreed to end her relationship with Morey. The following day, on November 21, 2009, the victim met with Morey to end their relationship. While the victim met with Morey, the defendant remained at their marital home in Litchfield and tracked the victim's whereabouts via the GPS. According to the GPS data, the victim spent approximately one and one-half hours with Morey, which troubled the defendant. The defendant subsequently asked the victim why she had spent an extended period of time with Morey, to which she responded that she had a sore throat and did not want to discuss the matter. The next day on November 22, 2009, the victim told the defendant that she was taking her brother's children to a movie theater. The defendant used the GPS device to track her movements and observed the victim driving in the vicinity of Morey's home. Upon returning home, the defendant questioned the victim about her whereabouts that day, but she refused to respond due to her sore throat.
On November 23, 2009, the defendant traveled to the Litchfield town clerk's office to obtain a hunting license application. Afterward, he went to a store called Tactical Arms and registered for a gun training class. He subsequently traveled to a store called Dick's Sporting Goods, located in Canton, to purchase a box of .22 caliber bullets and two .22 caliber bullet magazines. [158 Conn.App. 261] Later in the day, he manually loaded each magazine with ten bullets, the maximum capacity that each magazine could hold, and attached one of the magazines to a .22 rifle he owned. Finally, he visited an attorney to discuss filing for divorce from the victim.
On the morning of November 24, 2009, the defendant and the victim were at their marital home preparing to go shopping. The victim went outside to retrieve a newspaper from their mailbox, which was located at the end of their driveway. The defendant believed that the victim had been outside retrieving the newspaper for an extended period of time and grew suspicious that she was talking to someone on her second cell phone. When she returned with the newspaper, the defendant asked her whether she had been speaking with someone on the phone while outside. The victim responded that she did not bring either of her cell phones with her, and that her second cell phone was charging upstairs. The defendant ordered the victim to go upstairs to retrieve her second cell phone.
After the victim ventured upstairs, the defendant went to the garage and retrieved the .22 rifle. The defendant returned from the garage, with the rifle resting on the side of his wheelchair out of plain sight, and waited near the staircase for the victim to return. Shortly thereafter, the victim came down the staircase with her second cell phone. The defendant, without revealing the rifle, ordered the victim to give him the cell phone. She refused and began walking away from him. At that point, the defendant placed the rifle onto his lap and again ordered the victim to give him the cell phone. Upon seeing the rifle, the victim began running away from the defendant toward their bedroom. The defendant followed her. The victim attempted to shut the door to the bedroom, but the defendant managed to use his wheelchair to prevent the door from closing and entered [158 Conn.App. 262] the room. The victim then ran into the bathroom adjacent to their bedroom and attempted to close the door behind her, but the defendant managed to use his wheelchair to keep the door to the bathroom ajar. The victim went toward the window in the bathroom with the intent to open its locks, but before she could get to the window, the defendant entered the bathroom and again demanded that she give him the cell phone. When the victim turned to face the defendant, he had the rifle pointed at her with his finger on the trigger and the safety lock on the rifle turned off. The victim attempted to escape the bathroom by running around and past the defendant, but she tripped over either a laundry basket or the defendant in his wheelchair and fell to the floor. The defendant then shot the victim in her right leg and threatened to shoot her again in her back.
The victim managed to stand up, and a struggle ensued, during which she shoved the defendant into the bedroom, pushed him out of his wheelchair, grabbed the rifle, and threw the rifle onto their bed. As the victim attempted to escape the bedroom, the defendant grabbed her around her legs and bit down on one of her pant legs with his teeth. With his hands, he also latched onto the sweater she was wearing. The victim dragged the defendant, who did not release his bite on her pant leg, out of the bedroom, down a hallway, through the dining room, through the kitchen, and finally outside through a doorway that had an attached screen door. She hit the defendant with the screen door multiple times, which caused him to release his bite on her pant leg. She then entered her car and drove herself to Charlotte Hungerford Hospital in Torrington, where she was treated for her injuries.
[158 Conn.App. 263] After the victim had driven away, the defendant crawled back into his wheelchair, which had been left in the bedroom. He then retrieved another weapon, a shotgun, he had stored in a closet, went to the kitchen and contemplated committing suicide. Throughout the remainder of the day, the defendant had telephone conversations with a number of other individuals, including police officers. During one of the conversations with a police officer, the defendant admitted to shooting the victim.
At 10:30 a.m. on November 24, 2009, the state police received a 911 call from the victim's mother, alerting them that the defendant had shot the victim. The police arrived outside the marital home shortly after 10:30 a.m. After a lengthy standoff, the defendant exited the home and surrendered to the police at approximately 8:10 p.m. that evening. The police escorted the defendant to Charlotte Hungerford Hospital to be evaluated. The defendant informed the staff at the hospital that he had loaded his rifle and had shot the victim, and also made the following statements: " I could have killed [the victim]. I am military trained, but I didn't, I don't want her dead. . . . I am so sorry she got shot, I don't want to hurt her anymore . . . ."
The defendant was charged with two counts of assault in the first degree in violation of § 53a-59 (a) (1) and (5). The jury found him guilty on both counts and subject to a sentence enhancement under General Statutes § 53-202k. The court merged the counts and sentenced the defendant to a total effective term of ten [158 Conn.App. 264] years incarceration followed by five years of probation. This appeal followed. Additional facts will be set forth as necessary.
The defendant first claims that the court abused its discretion by denying his motion to introduce the expert testimony of David Levi, a physician specializing in pain management who had treated the defendant before the shooting. In addition, he claims that the court erred by failing to conduct an evidentiary hearing sua sponte on the defendant's offer of proof regarding Levi's proffered testimony. We conclude that because Levi's proffered testimony was not relevant, the court did not abuse its discretion by denying the motion, and it ...