State v. Lavecchia

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STATE OF CONNECTICUT v. MATTHEW
S. LAVECCHIA
(AC 44003)
Elgo, Cradle and DiPentima, Js.

Syllabus

The defendant, who had been convicted after a jury trial of the crime of
assault in the third degree in connection with an altercation at a restau-
rant, appealed to this court from the judgment of the trial court. A police
officer, who spoke to the victim and witnesses, and reviewed security
camera footage, responded affirmatively at trial when asked if his investi-
gation led him to conclude that probable cause existed for the defen-
dant’s arrest. The defendant objected to the testimony on the ground
that the police officer’s answer contained a legal conclusion, and the
trial court overruled the objection. The trial court also declined the
defendant’s request to admit into evidence the psychiatric records of
the only direct witness to the altercation, who, in the months prior to
the altercation, maintained a YouTube channel and uploaded videos of
himself discussing his mental health struggles. Held:
1. The defendant’s unpreserved claim that the trial court permitted the
police officer to testify on an ultimate issue in violation of § 7-3 of the
Connecticut Code of Evidence was unreviewable because it was not
raised before the trial court; at no time did defense counsel raise any
claim that the testimony constituted an opinion on an ultimate issue,
the defendant’s sole objection having been that it contained a legal
conclusion, and, because the defendant’s claim that the testimony vio-
lated his constitutional rights was evidentiary in nature, rather than
constitutional, it did not qualify for review pursuant to State v. Golding
(233 Conn. 213).
2. The trial court did not abuse its discretion in denying the defendant’s
request to admit into evidence the witness’ psychiatric records, the
court having first conducted an in camera inspection of the records and
determined that they contained nothing related to the witness’ ability
or capacity to relate the truth, or to observe, recollect or narrate the
relevant occurrences.
Argued May 12—officially released September 14, 2021

Procedural History

Substitute information charging the defendant with
the crime of assault in the third degree, brought to
the Superior Court in the judicial district of Ansonia-
Milford, geographical area number twenty-two, and
tried to the jury before McShane, J.; verdict and judg-
ment of guilty, from which the defendant appealed to
this court. Affirmed.
John R. Williams, for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Margaret E. Kelley, state’s
attorney, and Matthew R. Kalthoff, assistant state’s
attorney, for the appellee (state).
Opinion

ELGO, J. The defendant, Matthew S. Lavecchia,
appeals from the judgment of conviction, rendered after
a jury trial, of assault in the third degree in violation
of General Statutes § 53a-61 (a) (1). On appeal, the
defendant claims the trial court abused its discretion
by (1) admitting into evidence the testimony of a police
officer as to whether probable cause existed for the
defendant’s arrest and (2) excluding from evidence the
psychiatric records of a witness for the state. We affirm
the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
On February 2, 2018, the defendant and Haroon Ramzan
got into an altercation at the Citrus Restaurant in Mil-
ford. The defendant struck Ramzan in the face multiple
times, breaking his nose. The defendant subsequently
was arrested and, following a jury trial, convicted of
assault in the third degree. The court sentenced the
defendant to a term of nine months of incarceration,
execution suspended, and three years of probation. This
appeal followed.
I
The defendant first claims that the court abused its
discretion in admitting testimony from a police officer
as to whether probable cause existed for the defen-
dant’s arrest. On appeal, the defendant contends that
the officer improperly was permitted to testify on an
‘‘ultimate issue’’ in violation of § 7-3 of the Connecticut
Code of Evidence. In response, the state argues that (1)
the defendant failed to preserve this claim for appellate
review, and (2) the claim is evidentiary in nature and,
thus, not entitled to review pursuant to State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified
by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188
(2015). We agree with the state.
The following additional facts and procedural history
are relevant to this claim. At all relevant times, Christo-
pher J. Deida was an officer with the Milford Police
Department. On February 3, 2018, Deida was dispatched
to the restaurant shortly after midnight. Upon arrival,
he observed Ramzan bleeding and arranged for a para-
medic to attend to him. Deida then spoke with Ramzan
and other witnesses at the scene and reviewed security
camera footage of the interactions between the defen-
dant and Ramzan prior to the altercation.
On direct examination, Deida responded affirma-
tively when the prosecutor asked him whether his inves-
tigation led him to conclude that probable cause existed
to arrest the defendant. The defendant objected to that
testimony on the ground that Deida’s answer contained
a legal conclusion. The court overruled that objection.
At the close of Deida’s testimony, the court provided
a curative instruction to the jury, stating in relevant
part: ‘‘Ladies and gentlemen, we’re going to break for
the day. But . . . before I read you these instructions,
I just want to tell you this. There was some testimony
with regard to probable cause. And whether or not this
officer believes there was probable cause. Whether or
not this officer believes there’s probable cause is not
for you to take into consideration. In other words, you
are the trier of fact, you will decide whether or not the
defendant is guilty of the crime of assault in the third
degree, not what this officer thinks. And there was [a]
reference in regard to a judge. Whether or not a judge
signed on probable cause. It wasn’t answered whether
a judge did or didn’t. However, what is important to
you, ladies and gentlemen, is this: you are the trier of
fact, you are the ones who decide the facts in this case,
and whether a judge or police officer believes there
was probable cause, which is significantly less than
. . . beyond a reasonable doubt, that you have to
decide that, ladies and gentlemen.
‘‘So, I ask that you just put aside . . . any concerns
with regard to probable cause and who may have
thought there was probable cause. You are the trier of
fact, and you will decide whether or not the defendant
is, in fact, guilty of the charge of assault in the third
degree.’’
On appeal, the defendant contends that the court
abused its discretion in permitting Deida’s testimony
regarding the existence of probable cause. As our
Supreme Court has explained, ‘‘[t]he standard for the
preservation of a claim alleging an improper evidentiary
ruling at trial is well settled. This court is not bound
to consider claims of law not made at the trial. . . . In
order to preserve an evidentiary ruling for review, trial
counsel must object properly. . . . In objecting to evi-
dence, counsel must properly articulate the basis of the
objection so as to apprise the trial court of the precise
nature of the objection and its real purpose, in order
to form an adequate basis for a reviewable ruling. . . .
[A] party cannot present a case to the trial court on
one theory and then seek appellate relief on a different
one . . . . For this court to . . . consider [a] claim on
the basis of a specific legal ground not raised during
trial would amount to trial by ambuscade, unfair both
to the [court] and to the opposing party.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Edwards, 334 Conn. 688, 703, 224 A.3d 504 (2020).
At trial, the defendant’s sole objection to the testi-
mony at issue was that it contained a legal conclusion.
At no time did defense counsel raise any claim that
Deida’s testimony constituted an opinion on an ultimate
issue. Because the defendant’s objection was not prop-
erly raised before the court, his claim is unpreserved
and, hence, unreviewable.
The defendant alternatively seeks review of his claim
pursuant to State v. Golding, supra, 213 Conn. 239–40,
claiming that the court’s ruling on his objection to Dei-
da’s testimony amounted to a constitutional violation.
That request is without merit. Although the defendant
portrays the court’s ruling on his objection to Deida’s
testimony as constitutional in nature, it remains settled
law that ‘‘unpreserved evidentiary claims masquerading
as constitutional claims’’ are not entitled to Golding
review. (Internal quotation marks omitted.) State v.
Warren, 83 Conn. App. 446, 451, 850 A.2d 1086, cert.
denied, 271 Conn. 907, 859 A.2d 567 (2004); see also
State v. Taveras, 49 Conn. App. 639, 645, 716 A.2d 120
(‘‘[t]he improper admission of opinion testimony that
answers a question that a jury should have resolved for
itself is not of constitutional significance and is a type of
evidentiary error’’ (internal quotation marks omitted)),
cert. denied, 247 Conn. 917, 722 A.2d 809 (1998).
Because the defendant’s claim is evidentiary in nature,
we decline to consider the merits of that unpre-
served claim.
II
The defendant also claims that the court abused its
discretion in declining to admit into evidence the psy-
chiatric records of a witness for the state. We disagree.
The following additional facts are relevant to the
defendant’s claim. Tony Ly, a friend of Ramzan and an
acquaintance of the defendant, was the only direct wit-
ness to the February 2, 2018 altercation. In the months
prior to the altercation, Ly maintained a YouTube chan-
nel and uploaded videos of himself discussing his vari-
ous mental health struggles. Disks containing several
of those videos were marked for identification as exhib-
its for trial.
Prior to the commencement of trial, the state filed a
motion in limine to ‘‘preclude inquiry or mention of
. . . Ly’s mental health.’’ The defendant, in turn,
requested an in camera review of Ly’s psychiatric
records. The court granted the defendant’s motion, and
Ly signed a waiver allowing his psychiatric records to
be examined by the court.
After conducting an in camera review of those
records, the court informed the parties that ‘‘nothing
in [those records] relates to the witness’ ability to or
capacity to relate the truth, observe, recollect, or nar-
rate relevant occurrences.’’ The court then ordered Ly’s
psychiatric records to be sealed for possible appellate
review. With respect to the state’s motion in limine, the
court informed the parties that the defendant would be
afforded ‘‘broad discretion’’ to question Ly about his
mental health. The court also informed the state that
any objections to such a line of questioning would be
handled on an individual basis.
On appeal, the defendant nevertheless claims that the
court abused its discretion in excluding Ly’s psychiatric
records from evidence. Our review of his claim is gov-
erned by the following principles. ‘‘Upon inspecting the
records in camera, the trial court must determine
whether the records are especially probative of the
witness’ capacity to relate the truth or to observe, recol-
lect and narrate relevant occurrences. . . . If the court
determines that the records are probative, the state
must obtain the witness’ further waiver of his privilege
concerning the relevant portions of the records for
release to the defendant, or have the witness’ testimony
stricken. If the court discovers no probative and
impeaching material, the entire record of the proceed-
ing must be sealed and preserved for possible appellate
review. . . . Once the trial court has made its inspec-
tion, the court’s determination of a defendant’s access
to the witness’ records lies in the court’s sound discre-
tion, which we will not disturb unless abused. . . .
‘‘Access to confidential records should be left to the
discretion of the trial court which is better able to assess
the probative value of such evidence as it relates to the
particular case before it . . . and to weigh that value
against the interest in confidentiality of the records.
. . . [T]he linchpin of the determination of the defen-
dant’s access to the records is whether they sufficiently
disclose material especially probative of the ability to
comprehend, know and correctly relate the truth . . .
so as to justify breach of their confidentiality and dis-
closing them to the defendant in order to protect his
right of confrontation.’’ (Citations omitted; footnote
omitted; internal quotation marks omitted.) State v.
Slimskey, 257 Conn. 842, 855–57, 779 A.2d 723 (2001).
‘‘On appeal, the appellate tribunal reviews the confiden-
tial records to determine whether the trial court abused
its discretion in concluding that no information con-
tained therein is especially probative of the victim’s
ability to know and correctly relate the truth so as to
justify breaching their confidentiality in disclosing them
to the defendant.’’ (Internal quotation marks omitted.)
State v. Francis, 267 Conn. 162, 172, 836 A.2d 1191
(2003).
We have conducted our own in camera review of the
psychiatric records at issue and are convinced that the
trial court did not abuse its discretion in denying the
defendant’s request to admit them into evidence. No
information therein reflects any inhibition of Ly’s ability
to perceive the February 2, 2018 altercation between
the defendant and Ramzan or his ability to testify at
trial as to what he observed. See State v. Santiago,
224 Conn. 325, 337, 618 A.2d 32 (1992). We therefore
conclude that the court did not abuse its discretion in
excluding those psychiatric records from evidence.
The judgment is affirmed.
In this opinion the other judges concurred.