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STATE OF CONNECTICUT v. BRIAN W. JORDAN

(AC 37654)

Lavine, Beach and Pellegrino, Js.

Argued February 3—officially released June 7, 2016

(Appeal from Superior Court, judicial district of New

Haven, geographical area number seven, Scarpellino,

J. [applications for accelerated rehabilitation,

supervised diversionary program for veterans]; S.

Moore, J. [motion to preclude, judgment].)

Kevin M. Smith, for the appellant (defendant).

Toni M. Smith-Rosario, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington,

state’s attorney, James Turcotte, supervisory assistant

state’s attorney, and James Dinnan and John C. Lion,

senior assistant state’s attorneys, for the appellee

(state).
Opinion

PELLEGRINO, J. The defendant, Brian W. Jordan,

appeals from the trial court’s judgment of conviction,

rendered after a jury trial, of assault in the second

degree with a dangerous instrument in violation of General Statutes § 53a-60 (a) (2). On appeal, the defendant

claims that the trial court erred (1) in denying his application for accelerated rehabilitation, (2) in denying his

application for the supervised diversionary program for

veterans, and (3) in granting the state’s motion in limine

to preclude evidence of the victim’s violent character.

We affirm the judgment of the trial court.

The jury reasonably could have found the following

facts. On August 20, 2011, the defendant and his friend,

David Gorski, arrived at Jake’s Martini Bar (bar) in

Wallingford. The victim, Erdan Sejdic, and his girlfriend,

Brianna White, were also at the bar celebrating the

victim’s birthday. After drinking at the bar for more

than one hour, both the defendant and Gorski were

intoxicated. The victim and White were sitting at a table

in the front of the bar. The victim left the table to order

drinks at the service bar. While the victim was at the

bar, the defendant sat at the victim’s table, across from

White, and began chatting with her.

After noticing that White seemed to be uncomfortable

with the defendant sitting at the table, the victim

approached the table. He was stopped by Gorski, who

asked him if White was his girlfriend and assured the

victim that he would ‘‘take care of my friend.’’ The

victim returned to the service bar, only to see that the

defendant had not moved and White continued to look

uncomfortable. The victim returned to the table a second time and introduced himself to the defendant and

assured the defendant that he did not ‘‘want any trouble.’’ The victim asked Gorski, with regard to the defendant, ‘‘can you just let him know he seems a bit

belligerent?’’ The victim then walked back to the service

bar and believed that Gorski would persuade the defendant to move. When the defendant still had not moved,

the victim walked back to the table a third time. The

victim stood in front of the defendant, told him that

he did not want any trouble, and asked the defendant

to move.

The defendant then struck the victim on the side of

the head with a glass object. The victim was knocked

back by the impact. When he realized that he was bleeding profusely, the victim removed his shirt and wrapped

it around his head. The altercation between the defendant and the victim continued outside of the bar. After

the police arrived and statements were taken, the victim

and White drove to a hospital emergency room. He was

diagnosed with a contusion and lacerations on the left

temporal area of his face. During a pretrial hearing, the

victim elaborated on the lasting effects of the assault,
including a change in personality, facial scars, acute

post-traumatic stress disorder, persistent anxiety, and

nerve pain.

The defendant was arrested and charged with assault

in the third degree in violation of General Statutes § 53a61. The state later filed a substitute information charging the defendant with assault in the second degree

with a dangerous instrument in violation of § 53a-60 (a)

(2). The defendant applied for both the accelerated

rehabilitation program and the supervised diversionary

program for veterans; the trial court, Scarpellino, J.,

denied both applications. During trial, the defendant

alleged an affirmative defense of self-defense and that

the victim was the initial aggressor. On October 6, 2014,

following the presentation of evidence, the jury found

the defendant guilty of assault in the second degree with

a dangerous instrument. The court, Moore, J., sentenced

the defendant to three years incarceration, execution

suspended after ninety days, followed by three years

of probation. This appeal followed. Additional facts will

be set forth as necessary.

I

The defendant first claims that the court, Scarpellino,

J., abused its discretion in denying his application for

accelerated rehabilitation. The defendant argues that

the court failed to give due consideration to the evidence regarding the commission of the offense and

neglected to make the necessary findings. Thus,

according to the defendant, the court abused its discretion. We do not agree.

The record reveals the following relevant facts. On

October 3, 2012, the defendant applied for accelerated

rehabilitation. See General Statutes (Supp. 2012) § 54-

56e, as amended by Public Acts 2012, No. 12-42, § 2.1

On October 31, 2012, the court held a hearing on the

application. While acknowledging that the defendant

was eligible for accelerated rehabilitation, the state

opposed granting it under the totality of the circumstances. The state cited the defendant’s unprovoked

attack and the fact that the victim needed twenty

stitches to close the wound and suffered ongoing medical issues as a result of the attack. The victim also

opposed granting the defendant accelerated rehabilitation due to the seriousness of the unprovoked attack,

the ongoing physical, psychological, and emotional

repercussions he suffered, and the defendant’s failure

to accept responsibility for his action or demonstrate

remorse. Defense counsel argued that the offense was

not too serious for accelerated rehabilitation, and that

the defendant was not going to reoffend. Further, counsel noted that several of the defendant’s treatment providers indicated that a subarachnoid hemorrhage that

he suffered during his military service and his posttraumatic stress disorder likely contributed to the incident. Both the defendant and a defense witness, Clifton
Roberts, addressed the court. The defendant expressed

remorse and called the incident a ‘‘horrible mistake.’’

Roberts, a mitigation specialist, testified that the defendant suffered from post-traumatic stress disorder and

had been treated by a counselor, Phyllis Pavlik, for

years for his condition. Roberts also noted letters that

were submitted on the defendant’s behalf in support of

his application, which indicated that his behavior on

the night in question was ‘‘in aberration of his true

character.’’ The court denied the accelerated rehabilitation application, noting the unprovoked situation and

the injuries the victim sustained as the basis for denying

the application.

‘‘The granting or denial of an application for accelerated rehabilitation implicates the exercise of discretion

by the trial court. . . . The exercise of legal discretion

imparts something more than the granting to the trial

court of the right to have leeway in decision making.

. . . Rather, the exercise of legal discretion requires

that it be exercised in conformity with the spirit of the

law and in a manner to subserve and not impede or

defeat the ends of substantial justice. . . . Our review

of the trial court’s exercise of its discretion is limited

to the questions of whether the court correctly applied

the law and whether it could reasonably conclude as

it did. . . . It is only where an abuse of discretion is

manifest or where an injustice appears to have been

done that a reversal will result from the trial court’s

exercise of discretion. . . . Every reasonable presumption will be given in favor of the trial court’s ruling.’’ (Internal quotation marks omitted.) State v. Rios,

110 Conn. App. 442, 447–48, 954 A.2d 901 (2008).

We disagree with the defendant’s assertion that the

court failed to give due consideration to all of the evidence presented. Both the state and the victim objected

to the defendant’s application, and the victim alleged

that he suffered serious injuries as a result of the altercation. The court specifically stated that it had read the

defendant’s submissions and expressed its willingness

to consider any witness testimony that the defendant

believed would be helpful. The court expressly noted

that it was to ‘‘look at the incident itself’’ in making

a determination about accelerated rehabilitation. The

court also noted that the assault was an ‘‘unprovoked

situation’’ and that injury resulted from the altercation.

The court did not simply look only at the offense with

which the defendant was charged in making its determination about accelerated rehabilitation. Rather, the

court also reviewed the allegations in the court file,

read the defendant’s submissions, and heard testimony

from the defendant’s witness. The court fully considered all aspects of the incident, and there is nothing to

indicate the court abused its discretion in denying the

defendant’s application for accelerated rehabilitation.

The defendant further argues that the court did not
make express necessary findings regarding the seriousness of the offense and the likelihood of the defendant reoffending when it denied his application for

accelerated rehabilitation. In denying accelerated rehabilitation, the court discussed the particular offense in

depth and made note of the unprovoked attack and the

serious injuries sustained by the victim when deciding

that this case ‘‘falls outside accelerated rehabilitation.’’

Thus, ‘‘the fact that the trial court did not utter the

talismanic words . . . does not indicate that the court

did not make such a determination.’’ State v. Robinson,

227 Conn. 711, 731, 631 A.2d 288 (1993). We conclude

that the court did not abuse its discretion in denying the

defendant’s application for accelerated rehabilitation.

II

The defendant next claims that the court, Scarpellino, J., erred in denying his application for the supervised diversionary program for veterans. The defendant

argues that the court did not consider the treatment

plan presented by the Court Support Services Division

of the Judicial Branch and other relevant evidence that

he submitted. We disagree.

The record reveals the following facts. On March

19, 2013, the court held a hearing on the defendant’s

application for the supervised diversionary program for

veterans. See General Statutes § 54-56l.

2 At the outset,

the court noted that the supervised diversionary program mirrors the accelerated rehabilitation program

with respect to eligibility. Thus, the court was most

interested in hearing the parties address the issue of

the seriousness of the offense. Defense counselreferred

to some of the materials he submitted, including letters

of support from various professionals and the degree

to which the defendantregularly attended 12-step meetings. In addressing the seriousness of the offense,

defense counsel argued that the case ‘‘may be right on

the line’’ but was ‘‘not such an outlier that it should not

be granted . . . .’’ The defendant also addressed the

court and noted his efforts to maintain sobriety. He

also noted that his treatment counselor had advised

him that, due to his post-traumatic stress disorder, he

would have perceived the situation to be threatening.

The state objected to the granting of the application due

to the seriousness of the offense and the defendant’s

likelihood of reoffending. The state pointed to the

defendant’s one-sided aggression, the unprovoked

attack, and his failure to accept responsibility for his

actions. The victim and his mother also addressed the

court to object to the granting of the defendant’s application. The court then noted that it had read everything

submitted to it on behalf of the defendant, but denied

the application because the offense was too serious

in nature.

Although this court has never addressed the standard

ofreview forthe decision to grant or deny an application
to the supervised diversionary program, the program

mirrors the accelerated rehabilitation program, and,

thus, we review it under the same abuse of discretion

standard discussed in part I of this opinion.

The defendant argues that the court neglected to

consider the treatment plan because it never mentioned

the treatment plan or any other medical documents

provided by the defendant. However, the court

expressly stated that it had reviewed at length the defendant’s submissions, which included the treatment plan.

Further, § 54-56l (a) clearly states that in order for the

supervised diversionary program to be granted, the

crime of which the defendant is accused must not be

of a serious nature. The court found the defendant’s

crime to be of a serious nature, both at this hearing

and at the hearing on the defendant’s application for

accelerated rehabilitation, which made the defendant

ineligible for the program. Thus, the court denied the

application. Accordingly, we conclude that the court

did not abuse its discretion in denying the defendant’s

application for the supervised diversionary program

for veterans.

III

The defendant’s final claim is that the court abused

its discretion by granting the state’s motion in limine

to preclude evidence of the victim’s history of violent

behavior. The defendant argues that evidence of the

victim’s violent character and status as the initial

aggressor in light of his claim of self-defense should

not have been precluded. We agree with the defendant

that the exclusion of the evidence was improper, but

conclude that the error was harmless.

The record reveals the following facts. On September

29, 2014, the state filed a motion in limine to preclude

the defendant from presenting evidence of the victim’s

two misdemeanor convictions. The state argued that

the convictions were dissimilar in nature to the alleged

aggression in this case, and the incidents giving rise to

the convictions occurred subsequent to the incident in

this case. In 2012, the victim was convicted of assault

in the third degree, unlawful restraint in the second

degree, and criminal trespass in the first degree. The

underlying facts were that the victim broke into White’s

home and attacked her when he suspected her of keeping company with another man. The victim also was

convicted in 2013 for breach of peace in the second

degree and violation of probation. He had become

enraged because White went to a bar for a period of

time without him. On September 30, 2014, Judge Moore

heard argument on the state’s motion in limine. The

state argued that although the incidents that led to the

victim’s convictions involved violence, they were not

admissible because they were dissimilar to the charged

offense in that they involved domestic disputes between

the victim and White, and the events occurred subse-
quent to the 2011 incident in this case. Defense counsel

argued that the two incidents were similar to the

charged offence in that the victim became ‘‘aggressive,

confrontational and violent with regard to Brianna

White.’’ The court granted the state’s motion and concluded that the evidence would be more prejudicial

than probative because the victim’s conduct occurred

after the incident in this case and because his conduct

was dissimilar in nature in that both bad acts involved

aggression between him and White, a domestic partner,

and occurred in a private setting.

‘‘The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial

court has broad discretion in ruling on the admissibility

. . . of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We

will make every reasonable presumption in favor of

upholding the trial court’s ruling, and only upset it for

a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where

there was an abuse of discretion and a showing by the

defendant of substantial prejudice or injustice.’’ (Internal quotation marks omitted.) State v. Dehaney, 261

Conn. 336, 354–55, 803 A.2d 267 (2002), cert. denied,

537 U.S. 1217, 123 S. Ct. 1318, 154 L. Ed. 2d 1070 (2003).

‘‘Ordinarily, upon a showing of a proper foundation

for a claim of self-defense, the defendant may introduce

evidence of the violent character of the victim. . . . A

victim’s violent character may be proven by reputation

or opinion evidence or by showing convictions for

crimes of violence.’’ (Citations omitted; internal quotation marks omitted.) State v. Webley, 17 Conn. App.

200, 206, 551 A.2d 428 (1988); see also Conn. Code Evid.

§ 4-4 (b) (‘‘[i]n cases in which the accused in a homicide

or criminal assault case may introduce evidence of the

violent character of the victim, the victim’s character

may also be proved by evidence of the victim’s conviction of a crime of violence’’). ‘‘In assessing the probative

value of the evidence of certain convictions the court

looks at the underlying facts and circumstances of the

crime in orderto determine whetherthe victim’s convictions are too remote in time or lacking elements of

violence. [E]videntiary rulings will be overturned on

appeal only where there was an abuse of discretion and

a showing by the defendant of substantial prejudice or

injustice.’’ (Citation omitted; internal quotation marks

omitted.) State v. Byrd, 136 Conn. App. 391, 397, 44

A.3d 897, cert. denied, 306 Conn. 906, 52 A.3d 732 (2012).

In the present case, the defendant argued at trial that

the victim was the initial aggressor because he was

unhappy about the defendant sitting at the table with

White. The facts underlying the victim’s convictions

demonstrate the victim’s possessiveness of White and

his willingness to act on his possessiveness. Both con-
victions occurred after the victim became suspicious

of White and another man, and the victim acted violently

as a result. These convictions were probative of the

defendant’s argument that the victim was the initial

aggressor because he approached the defendant while

the defendant was sitting with White. We agree with

the defendant’s argument that even though these convictions occurred subsequent to the incident here, they

were admissible because they were similar to the

charged offense. We agree that the trial court abused

its discretion in granting the motion in limine and precluding this evidence.

We conclude, however, that the error was harmless.

‘‘When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. . . . [W]hether

[an improper ruling] is harmless in a particular case

depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s

case . . . the presence or absence of evidence corroborating or contradicting the testimony of the witness

on material points . . . and, of course, the overall

strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the . . . evidence on the trier of fact and the result of the trial.

. . . [T]he proper standard for determining whether

an erroneous evidentiary ruling is harmless should be

whether the jury’s verdict was substantially swayed by

the error. . . . Accordingly, a nonconstitutional error

is harmless when an appellate court has a fair assurance

that the error did not substantially affect the verdict.’’

(Internal quotation marks omitted.) State v. Eleck, 314

Conn. 123, 129, 100 A.3d 817 (2014).

Here, the defendant has failed to persuade us that

the exclusion of the evidence substantially affected the

verdict. Our review of the record demonstrates that

there was ample evidence before the jury that the defendant was the initial aggressor when he struck the victim.

Every eyewitness who testified stated that the assault

was unprovoked. Introducing evidence that the victim

was involved in two subsequent acts of aggression

toward a domestic partner would not have substantially

affected the verdict and prejudiced the defendant. We

conclude that there was no harm.

The judgment is affirmed.

In this opinion the other judges concurred.

1 At the time the defendant applied for accelerated rehabilitation, General

Statutes (Supp. 2012) § 54-56e, as amended by Public Acts 2012, No. 12-42,

§ 2, provided in relevant part: ‘‘(a) There shall be a pretrial program for

accelerated rehabilitation of persons accused of a crime or crimes or a

motor vehicle violation or violations for which a sentence to a term of

imprisonment may be imposed, in which crimes or violations are not of a

serious nature. (b) The court may, in its discretion, invoke such program

on motion of the defendant or on motion of a state’s attorney or prosecuting

attorney with respect to a defendant (1) who, the court believes, will probably not offend in the future, (2) who has no previous record of conviction

of a crime or of a violation of section 14-196, subsection (c) of section 14-
215, section 14-222a, subsection (a) of section 14-224 or section 14-227a,

and (3) who states under oath, in open court or before any person designated

by the clerk and duly authorized to administer oaths, under the penalties

of perjury, that the defendant has never had such program invoked in the

defendant’s behalf or, with respect to a defendant who is a veteran, that

the defendant has not had such program invoked in the defendant’s behalf

more than once previously, provided the defendant shall agree thereto and

provided notice has been given by the defendant, on a form approved by

rule of court, to the victim or victims of such crime or motor vehicle violation,

if any, by registered or certified mail and such victim or victims have an

opportunity to be heard thereon. . . .’’

2 General Statutes § 54-56l provides in relevant part: ‘‘(a) There shall be

a supervised diversionary program for persons with psychiatric disabilities,

or persons who are veterans, who are accused of a crime or crimes or a

motor vehicle violation or violations for which a sentence to a term of

imprisonment may be imposed, which crimes or violations are not of a

serious nature. For the purposes of this section . . . (2) ‘veteran’ means a

person who is found, pursuant to subsection (d) of this section, to have a

mental health condition that is amenable to treatment, and who was discharged or released under conditions other than dishonorable from active

service in the armed forces as defined in section 27-103. . . .’’