December 14, 2015
Substitute information charging the defendant with the crime
of assault of public safety personnel, brought to the
Superior Court in the judicial district of Tolland and tried
to the jury before Mullarkey, J.; verdict and judgment of
guilty, from which the defendant appealed to this court.
of assault of a correction officer, the defendant inmate, who
had represented himself at trial, appealed to this court from
the judgment of the trial court, claiming, inter alia, that
the trial court violated his right to due process by denying
his request to use during closing argument to the jury a
video that showed his cell area in the hours preceding the
incident at issue.
that the trial court did not violate the defendant's
constitutional rights by not permitting him to use the video
during his closing argument to the jury, as the video was
never admitted into evidence and, thus, could not have been
considered by the jury, the court extended the defendant
latitude during closing argument to discuss the contents of
the video, and the defendant suffered no prejudice as a
result of the state's having provided the video to him at
the time of trial: moreover, contrary to the defendant's
claims, his due process rights were not violated when the
court mentioned outside of the jury's presence a prior
acquittal of the defendant in light of his past experience
with self-representation, the court did not err in failing to
strike sua sponte a question that the prosecutor had not
asked of him during cross-examination, and the evidence was
sufficient to support his conviction; furthermore, the
defendant's claim that the sentence imposed against him
was vindictive was meritless, and the record was inadequate
for review of several of his other claims.
M. Day, self-represented, the appellant (defendant).
Riggione, senior assistant state's attorney, with whom,
on the brief, were Matthew C. Gedansky, state's attorney,
and Charles W. Johnson, assistant state's attorney, for
the appellee (state).
C. J., and Beach and Sheldon, Js. BEACH, J. In this opinion
the other judges concurred.
Conn.App. 138] The self-represented defendant, Jason M. Day,
appeals from the judgment of conviction, rendered after a
jury trial, of assault of a correctional officer in violation
of General Statutes § 53a-167c (a) (5). The defendant
claims on appeal that (1) his right to effective assistance
of standby counsel was violated; (2) his right to due process
was violated when the trial court discussed on the record a
prior acquittal of the defendant in another unrelated matter;
(3) the court erred in failing sua sponte to strike a
question posed to him by the prosecutor on cross-examination;
(4) his right to due [165 Conn.App. 139] process was violated
because the jury panel did not represent a fair cross section
of the community; (5) his right to due process was violated
when the court denied his request to use during closing
argument an exhibit marked for identification only; (6) there
was insufficient evidence to support his conviction; (7) the
court erred in failing to include in its jury instructions
any reference to a Department of Correction directive
concerning employee conduct; (8) the sentence imposed was
vindictive; (9) he was denied his right to due process when
he was not provided copies of the state's evidence until
the first day of trial; and (10) he was denied due process
and his right to confrontation when the court ordered his
standby counsel to subpoena from the Department of Correction
an unedited version of a videotape only after the state had
introduced as a full exhibit an edited portion of the tape.
We affirm the judgment of the trial court.
jury reasonably could have found the following facts. On May
27, 2011, the defendant was incarcerated at Northern
Correctional Institution in Somers (Northern) in cell number
221. On that day, a nursing supervisor at Northern noticed an
odor coming from the defendant's cell. She noted that the
defendant had a history of severe lower leg infections and
had continued to refuse medication, dressing changes and
medical appointments. At approximately 7:30 p.m., Captain
Bryan Rae, a shift commander who had authority to transfer
inmates, ordered that the defendant be moved to the
infirmary. Correction Officer Michael Torkington, who was in
uniform, was assigned to assist in the move; he was to
provide the defendant with plastic bags so that the defendant
could take his personal belongings with him to the infirmary.
As Torkington opened the trap on the defendant's cell
door to pass him the plastic bags, the defendant put his hand
through the door and, from a [165 Conn.App. 140] Styrofoam
cup, flung liquid and fecal matter at Torkington, hitting him
in the chest.
to trial, the court, Solomon, J., granted the
defendant's motion to represent himself and appointed
Attorney Douglas Ovian as standby counsel. Following trial,
the defendant was found guilty of assault of a correction
officer and sentenced to eight years incarceration
consecutive to his current term of life without parole. This
of the defendant's claims lack an adequate record for
review. His claim of ineffective assistance of counsel cannot
be reviewed on direct appeal on the basis of the record
before us. See State v. Crespo, 246 Conn. 665,
687-88, 718 A.2d 925 (1998) (ineffective assistance of
counsel claims generally must be raised by way of habeas
corpus, not on direct appeal, because of need for full
evidentiary record), cert. denied, 525 U.S. 1125, 119 S.Ct.
911, 142 L.Ed.2d 909 (1999). His claim that the jury
panel did not represent a fair cross section of the community
lacks a record regarding the demographic composition of the
Tolland Judicial District and the existence of any systematic
exclusion of a distinctive group. See State v.
Tillman, 220 Conn. 487, 496, 600 A.2d 738 (1991)
(defendant's burden to make adequate record to support
challenge to jury array and offer sufficient evidence to
satisfy Duren  test; challenge to jury array will
fail if no evidence presented to trial court), cert. denied,
505 U.S. 1207, 112 S.Ct. 3000, 120 L.Ed.2d 876 (1992).
remaining claims, only some are adequately
briefed. The defendant claims that his right to
due [165 Conn.App. 141] process was violated when the court
denied his request to use during closing argument a DVD of
his cell area, recorded during the hours preceding the
incident, although the court had allowed the state to
introduce as a full exhibit an edited version of the
video, which showed the specific incident in
issue. The longer video was never admitted as a full exhibit.
The court, however, extended the defendant some latitude
during closing argument to discuss the contents of the video.
It was not improper for the court not to permit the defendant
to use exhibit N for identification during closing argument.
Because the DVD in question was never admitted into evidence
as a full exhibit, the jury could not properly consider it in
reaching its verdict. See State v. Stuart, 113
Conn.App. 541, 549-54, 967 A.2d 532 (error to submit to jury
exhibits marked for identification only), cert. denied, 293
Conn. 922, 980 A.2d 914 (2009). Accordingly, the court did
not violate the defendant's constitutional rights by not
permitting him to show the DVD during his closing argument.
See State v. Gamble, 119 Conn.App. 287, 303, 987
A.2d 1049 (condition of defendant's hand not part of
evidence; thus, not proper subject of defendant's closing
argument), cert. denied, 295 Conn. 915, 990 A.2d 867 (2010);
see also Sta ...