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State v. Day

Appellate Court of Connecticut

April 26, 2016

STATE OF CONNECTICUT
v.
JASON M. DAY

         Argued 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.

          SYLLABUS

         Convicted 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.

         Held 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.

         Jason M. Day, self-represented, the appellant (defendant).

         Lisa A. 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).

         DiPentima, C. J., and Beach and Sheldon, Js. BEACH, J. In this opinion the other judges concurred.

          OPINION

         BEACH, J.

          [165 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).[1] 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.

         The 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.

         Prior 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 appeal followed.

         Several 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).[2] 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 [3] 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).

         Of the remaining claims, only some are adequately briefed.[4] 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,[5] 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 ...


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