Argued September 24, 2015.
Two part substitute information charging the defendant, in the first part, with two counts of the crime of assault of public safety or emergency medical personnel, and with the crimes of assault in the third degree, interfering with an officer, threatening in the second degree, reckless endangerment in the first degree and strangulation in the second degree, and, in the second part, with having committed an offense while on release, brought to the Superior Court in the judicial district of Tolland, geographical area number nineteen, where the first part of the information was tried to the jury before Kwak, J.; verdict of guilty of interfering with an officer and one count of assault of public safety or emergency medical personnel; thereafter, the second part of the information was tried to the jury; verdict and judgment of guilty, from which the defendant appealed.
Convicted, after a jury trial, of interfering with a police officer, assault of a police officer, and of having committed the offenses while released on bond, the defendant appealed to this court. In the course of the defendant's arrest arising out of a domestic dispute, the defendant struggled with the police, striking one officer and kicking another, until the officers used pepper spray to subdue him and duct tape to bind his feet. The defendant claimed that the police officers had exaggerated or lied and that they had resorted to violence first. Although the defendant filed a motion seeking an order preserving all audiotapes, video recordings, and all other electronic or digital evidence showing his arrest, processing, and lockup, the evidence was not preserved. The trial court denied the defendant's motion to dismiss certain counts of the information in which he claimed that the police's failure to preserve the evidence deprived him of his defense. The court also declined the defendant's request to instruct the jury that it may draw adverse inferences against the state as a result of the police's failure to preserve the evidence. Thereafter, the case was tried to the jury, and the court read to the jury a stipulation concerning the unpreserved evidence. On appeal, the defendant claimed that the trial court improperly failed to instruct the jury that it could draw adverse inferences against the state because of the police's failure to preserve the evidence. Held that the defendant failed to preserve his claim of instructional error for appeal because he did not file a written request to charge the jury that it could draw an adverse inference from the failure of the police to preserve the evidence, and he did not take an exception to the jury charge given by the trial court; furthermore, the defendant was not entitled to review of his unpreserved claim of instructional error because he waived his claim that the trial court improperly failed to give an adverse inference instruction to the jury, as he was provided with a copy of the court's proposed instructions and had a meaningful opportunity to review them, he did not object to or take an exception to the instructions on that ground, and he affirmatively accepted the instructions both before and after they were read to the jury.
Michael A. Young, self-represented, the appellant (defendant).
Glenn W. Falk, assigned counsel, filed a brief for the appellant (defendant).
Denise B. Smoker, senior assistant state's attorney, with whom, on the brief, were Lisa Herskowitz, senior assistant state's attorney, Matthew C. Gedansky, state's attorney, and Andrew Reed Durham, assistant state's attorney, for the appellee (state).
Alvord, Prescott and Bear, Js. PRESCOTT, J. In this opinion the other judges concurred.
[161 Conn.App. 553] The defendant, Michael A. Young, appeals from the judgment of conviction, rendered after a jury trial, of one count of interfering with a police officer in violation of General Statutes § 53a-167a, and one count of assaulting a police officer in violation of General Statutes § 53a-167c (a) (1). On appeal, the [161 Conn.App. 554] defendant's sole claim is that the trial court improperly declined to provide the jury with an adverse inference instruction concerning the state police's failure to preserve evidence, thereby depriving the defendant of his right to due process under the state constitution. See State v. Morales, 232 Conn. 707, 722-23, 657 A.2d 585 (1995). We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On May 10, 2011, the state police were dispatched to the defendant's home on a complaint by Jessica Reed that the defendant had assaulted and strangled her. After speaking with Reed, Trooper William Utermarck discovered the defendant sitting in his truck, which was parked in the backyard. Two more police officers arrived at the scene. The officers asked the defendant to exit his vehicle but he refused, revving the engine and uttering profanities. Utermarck requested additional backup and went inside the defendant's residence to speak with Reed again.
After speaking with Reed, Utermarck concluded that the defendant should be arrested. By this time, the defendant had exited his vehicle and sat on the steps of the garage stairwell. When three additional police officers arrived at the scene to provide backup, all six officers approached the defendant. Trooper Timothy ...