************************************************
The “officially released” date that appears near the
beginning of an opinion is the date the opinion will be
published in the Connecticut Law Journal or the date it
is released as a slip opinion. The operative date for the
beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports. In the event
of discrepancies between the advance release version of
an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports, the latest
version is to be considered authoritative.
The syllabus and procedural history accompanying
an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or
Connecticut Appellate Reports are copyrighted by the
Secretary of the State, State of Connecticut, and may
not be reproduced or distributed without the express
written permission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
************************************************
Page 0 CONNECTICUT LAW JOURNAL 0, 0
2 ,0 0 Conn. App. 1
State v. Emmanuel C.
STATE OF CONNECTICUT v. EMMANUEL C.*
(AC 47220)
Cradle, Clark and Prescott, Js.…
Syllabus
Convicted, following a jury trial, of risk of injury to a child, the defendant
appealed. He claimed, inter alia, that there was insufficient evidence to
support his conviction. Held:
The evidence was sufficient to support the defendant’s conviction because
the jury reasonably could have found, on the basis of the evidence presented
and the inferences reasonably drawn therefrom, that the defendant engaged
in an act of deliberate, blatant abuse that was likely to endanger the victim’s
physical well-being.
This court dismissed as moot the defendant’s claim that the trial court erred
in denying his motions for a bill of particulars, as the defendant’s motions
pertained solely to a count of the operative information on which the defendant had been acquitted.
This court affirmed the trial court’s denial of the defendant’s motion for a
mistrial on the alternative ground that the defendant failed to establish that
certain impeachment evidence was suppressed by the prosecutor in violation
of Brady v. Maryland (373 U.S. 83), as the defendant failed to point to
persuasive evidence that demonstrated that the prosecutor had prior knowledge of how the victim would testify and, even if this court assumed that
the prosecutor knew prior to trial that the victim’s testimony would differ
from his previous statements to the police and to others, that information
was elicited during the direct examination of the victim and, on the basis
of the record, this court could not conclude that the defendant was prejudiced by his lack of knowledge of a portion of the victim’s testimony prior
to trial.
* In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to use the
defendant’s full name or to identify the victim or others through whom the
victim’s identity may be ascertained. See General Statutes § 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2018), as amended by the Violence Against Women Act Reauthorization
Act of 2022, Pub. L. No. 117-103, § 106,
136 Stat. 49, 851; we decline to
identify any person protected or sought to be protected under a protection
order, protective order, or a restraining order that was issued or applied
for, or others through whom that person’s identity may be ascertained.
… The listing of judges reflects their seniority status on this court as of
the date of oral argument.
0, 0 CONNECTICUT LAW JOURNAL Page 1
0 Conn. App. 1 ,0 3
State v. Emmanuel C.
This court could not conclude from the record that the trial court clearly
abused its broad discretion in determining that a proper foundation had
been established to admit into evidence certain photographs depicting the
victim’s injuries that were affected by lighting distortions, as the portions
affected by lighting distortions were identified and the jury was instructed
to disregard them.
The trial judge did not abuse his discretion in denying the defendant’s request
to recuse himself from presiding over the case, the defendant having failed
to meet his burden of establishing a factual basis that created a reasonable
appearance of impropriety.
Argued February 5—officially released June 10, 2025
Procedural History
Substitute information charging the defendant with
two counts of the crime of risk of injury to a child and
one count of the crime of assault in the second degree,
brought to the Superior Court in the judicial district of
New Haven, geographical area number seven, where
the court, Chaplin, J., denied the defendant’s motions
for a bill of particulars; thereafter, the case was tried
to the jury before Chaplin, J.; subsequently, the court,
Chaplin, J., denied the defendant’s motions for a judgment of acquittal, judicial recusal and a mistrial; verdict
and judgment of guilty of one count of risk of injury to
a child, from which the defendant appealed to this court.
Appeal dismissed in part; affirmed.
Matthew D. Popilowski, for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were John P. Doyle, Jr., state’s
attorney, and Nichol Peco, senior assistant state’s attorney, for the appellee (state).
Opinion
CRADLE, J. The defendant, Emmanuel C., appeals
from the judgment of conviction, rendered following a
jury trial, of one count of risk of injury to a child in
violation of General Statutes § 53-21 (a) (1). On appeal,
the defendant claims that (1) there was insufficient
Page 2 CONNECTICUT LAW JOURNAL 0, 0
4 ,0 0 Conn. App. 1
State v. Emmanuel C.
evidence to support his conviction, (2) the trial court
improperly denied his renewed motions for a bill of
particulars, (3) the trial court improperly denied his
motion for a mistrial based on his allegation that the
state failed to disclose certain impeachment evidence
in violation of Brady v. Maryland, 373 U.S. 83, 87,
83
S. Ct. 1194,
10 L. Ed. 2d 215 (1963), (4) the trial court
abused its discretion in admitting certain photographs
into evidence, and (5) the trial court improperly denied
his request for judicial recusal. We dismiss as moot
the defendant’s claim as to the denial of his renewed
motions for a bill of particulars. With respect to the
defendant’s remaining claims, we affirm the judgment
of the trial court.
The jury reasonably could have found the following
facts. On November 13, 2019, the defendant’s twelve
year old son (victim) got into an argument with his nine
year old half sister, resulting in the victim being sent
to his room by his stepmother. Shortly thereafter, the
defendant arrived home and went to the victim’s room.
The defendant, who was angry and yelling at the victim
for ‘‘being disrespectful,’’ grabbed the victim by his shirt
collar and ‘‘pinned’’ him against the wall. The defendant
then ‘‘switched to the back’’ of the victim’s shirt collar,
lifted him off the ground, and ‘‘body slammed’’ the victim onto his bed, causing the victim to hit his head
on the bed. At some point during the encounter, the
defendant had the victim in a ‘‘chokehold.’’ The force
of the ‘‘body slam’’ caused one of the wooden planks
underneath the mattress to break.
When the victim went to school the following day,
his ‘‘head was hurting’’ and his eyes were bothered by
the lights. The victim told a school social worker what
had happened the night before. The disclosure was then
relayed to the school nurse, the school resource officer,
and a social worker from the Department of Children
and Families (department). After being examined by
0, 0 CONNECTICUT LAW JOURNAL Page 3
0 Conn. App. 1 ,0 5
State v. Emmanuel C.
the school nurse and speaking with the school resource
officer and department social worker, the victim was
transported to the pediatric emergency department of
Yale New Haven Hospital. After being examined by two
doctors at the hospital, the victim was diagnosed with
a concussion. The doctors also noted the presence of
petechiae1 on the victim’s neck and torso as well as
bruising on his forehead, cheeks, torso, back, chest,
and legs. The doctors determined that the victim’s injuries were ‘‘consistent with being body slammed and held
in a chokehold . . . .’’ Shortly thereafter, police officers, in the course of their investigation, went to the
defendant’s house, where they observed a ‘‘repaired
broken slat beneath [the victim’s] bed.’’
The defendant was arrested pursuant to a warrant
and subsequently charged in an amended long form
information with one count of assault in the second
degree in violation of General Statutes § 53a-60 (a) (3)
(count one) and two counts of risk of injury to a child
in violation of § 53-21 (a) (1) (counts two and three).
Following a jury trial over several days in August, 2023,
the defendant was found guilty of risk of injury to a
child under count two and not guilty as to the remaining
counts.2 On November 30, 2023, the court, Chaplin, J.,
sentenced the defendant to five years of incarceration,
execution suspended, followed by three years of probation. This appeal followed.
I
The defendant first claims that there was insufficient
evidence to support his conviction.3 We are not persuaded.
1
‘‘Petechiae are . . . small little dots on the skin . . . caused by . . .
blood vessels that pop underneath the skin.’’
2
With respect to count one, the jury also found the defendant not guilty
on the lesser included offense of assault in the third degree in violation of
General Statutes § 53a-61 (a) (2).
3
For jurisprudential reasons, we address the sufficiency of the evidence
claim first, although this differs from the order in which the claims were
presented by the defendant in his brief to this court.
Page 4 CONNECTICUT LAW JOURNAL 0, 0
6 ,0 0 Conn. App. 1
State v. Emmanuel C.
In count two of the amended long form information,
the state charged the defendant with risk of injury to
a child in violation of § 53-21 (a) (1), alleging that ‘‘the
defendant did an act likely to impair the health of a
child under the age of sixteen years . . . to wit: the
defendant slammed [the victim] onto his bed, breaking
the bed.’’ At the close of the state’s case-in-chief, the
defendant filed a written motion for judgment of acquittal asserting, inter alia, that there was insufficient evidence to convict him of that offense. After hearing argument by both parties, the court denied the defendant’s
motion. On appeal, the defendant claims that there was
insufficient evidence to support his conviction because,
he argues, the act of slamming the victim onto the bed,
and ‘‘[t]he breaking of one wooden slat under a mattress
. . . where the defendant restrained the [victim] does
not rise to the level of blatant physical abuse.’’
‘‘In reviewing the sufficiency of the evidence to support a criminal conviction we apply a [two part] test.
First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine
whether upon the facts so construed and the inferences
reasonably drawn therefrom the [jury] reasonably could
have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.
. . . In particular, before this court may overturn a jury
verdict for insufficient evidence, it must conclude that
no reasonable jury could arrive at the conclusion the
jury did. . . . Although the jury must find every element proven beyond a reasonable doubt in order to
find the defendant guilty of the charged offense . . .
each of the basic and inferred facts underlying those
conclusions need not be proved beyond a reasonable
doubt.’’ (Citation omitted; internal quotation marks
omitted.) State v. Charles L., 217 Conn. App. 380, 386,
288 A.3d 664, cert. denied,
346 Conn. 920,
291 A.3d
607 (2023).
0, 0 CONNECTICUT LAW JOURNAL Page 5
0 Conn. App. 1 ,0 7
State v. Emmanuel C.
Section 53-21 provides in relevant part: ‘‘(a) Any person who (1) wilfully or unlawfully . . . does any act
likely to impair the health . . . of any [child under the
age of sixteen years] . . . shall be guilty of . . . a class
C felony . . . .’’ With respect to ‘‘acts likely to impair
the health of children . . . our precedent provide[s]
an authoritative judicial gloss that limits the type of
physical harm prohibited by § 53-21 to instances of
deliberate, blatant abuse. . . . [S]ee, e.g., State v.
McClary, 207 Conn. 233, 234–39,
541 A.2d 96 (1988)
(child suffered brain injury from violent shaking); State
v. Eason, 192 Conn. 37, 38,
470 A.2d 688 (1984) (child
beaten severely with belt), overruled in part on other
grounds by Paulsen v. Manson, 203 Conn. 484,
525 A.2d
1315 (1987); State v. Martin,
189 Conn. 1, 6,
454 A.2d
256 (child pushed into wall and then to floor), cert.
denied, 461 U.S. 933,
103 S. Ct. 2098,
77 L. Ed. 2d 306
(1983); State v. Palozie, 165 Conn. 288, 290–92,
334 A.2d
468 (1973) (child thrown against chair and head hit
against floor).’’ (Citation omitted; footnote omitted;
internal quotation marks omitted.) State v. Ares, 345
Conn. 290, 298,
284 A.3d 967 (2022). It is well established, however, that ‘‘the state need not prove actual
injury . . . under . . . the act prong of § 53-21 (a)
(1).’’ Id., 299. Rather, ‘‘[i]n order to secure a conviction
under the act prong in the present case, the state was
required to prove that the defendant had engaged in
an act of deliberate, blatant abuse that was likely to
[endanger the victim’s] physical well-being.’’4 (Internal
quotation marks omitted.) Id., 302.
Here, the evidence indicated that the defendant lifted
the victim off the ground by his shirt collar and, using
4
Our Supreme Court has defined ‘‘blatant’’ in this context to mean ‘‘obtrusive in an offensive manner . . . completely or crassly obvious’’; (internal
quotation marks omitted) State v. Nathan J., 294 Conn. 243, 256,
982 A.2d
1067 (2009); while the term deliberate ‘‘merely requires that the abuse be
intentional, conscious and wilful.’’ Id., 257 n.10.
Page 6 CONNECTICUT LAW JOURNAL 0, 0
8 ,0 0 Conn. App. 1
State v. Emmanuel C.
both hands, ‘‘body slammed’’ the victim onto his bed
with enough force to break a wooden slat underneath
the mattress. Moreover, the investigating officer, Detective Angelo Delieto, testified that the defendant himself
acknowledged during a voluntary interview shortly
after the incident that ‘‘he may have slammed [the victim] hard enough to give him a concussion . . . .’’
At the time of the offense, the defendant was an adult
male who was approximately seven inches taller and
100 to 120 pounds heavier than the twelve year old
victim. During trial, the jury heard the testimony of
the victim, who described the incident and how the
defendant slammed him on the bed. The jury also heard
the testimony of medical professionals who had treated
the victim the following day describe the victim’s injuries and testify that those injuries were consistent with
the version of events described previously. Thus, the
jury reasonably could have concluded that the defendant ‘‘body slammed’’ the victim onto the bed with such
significant force that it caused the victim to sustain a
concussion.
On the basis of the foregoing evidence and the inferences reasonably drawn therefrom, the jury reasonably
could have found that the defendant engaged in an act
of deliberate, blatant abuse that was likely to endanger
the victim’s physical well-being. Accordingly, we conclude that there was sufficient evidence to support his
conviction.
II
The defendant next claims that the court erred in
denying his renewed motions for a bill of particulars.
We dismiss this claim as moot.
The following facts and procedural history are relevant to the defendant’s claim. On February 2, 2021, the
defendant filed a motion for a bill of particulars. The
0, 0 CONNECTICUT LAW JOURNAL Page 7
0 Conn. App. 1 ,0 9
State v. Emmanuel C.
motion was heard the following day, at which time
defense counsel stated that a long form information
from the state ‘‘should be acceptable’’ to satisfy the
defendant’s request for a bill of particulars. On February
9, 2021, the state filed a long form information (original
information). In count two of the original information,
the state charged the defendant with assault in the
second degree in violation of § 53a-60 (a) (3), alleging
that ‘‘the defendant recklessly caused serious physical
injury to another person by means of a dangerous instrument . . . to wit: the defendant slammed [the victim]
on his bed causing a concussion.’’ In count four of the
original information, the state charged the defendant
with risk of injury to a child in violation of § 53-21 (a)
(1), alleging that ‘‘the defendant did an act likely to
impair the health of a child under the age of sixteen
. . . to wit: the defendant slammed [the victim] onto
his bed, breaking the bed.’’5
On February 1, 2023, the defendant filed a renewed
motion for a bill of particulars, wherein he objected to
the original information insofar as the state alleged that
‘‘the defendant slammed [the victim] on his bed causing
a concussion.’’ Because, he asserted, ‘‘a bed consists
of multiple separate parts—including the frame and
mattress, composed of different materials,’’ the defendant requested that ‘‘the court order the state to identify
that part of the bed that the defendant is alleged to
have committed assault in the second degree with’’ in
order to identify ‘‘the specific part . . . allegedly used
as the dangerous instrument.’’ On June 19, 2023, after
the state failed to respond and the court took no action
on the defendant’s renewed motion, the defendant filed
5
The original information charged the defendant with five counts. The
defendant’s claim only relates to count two and count four of the original
information; thus, the remaining counts of the original information are not
relevant to the defendant’s claim on appeal.
Page 8 CONNECTICUT LAW JOURNAL 0, 0
10 ,0 0 Conn. App. 1
State v. Emmanuel C.
a second renewed motion for a bill of particulars in
order to call more attention to the first.6
Thereafter, on July 21, 2023, the state filed an
amended long form information (operative information), removing counts one and three of the original
information7 so that count two, which charged the
defendant with assault in the second degree, was now
identified as count one, and count four, which charged
the defendant with risk of injury to a child, was now
identified as count two.8 The state, however, made no
changes to the allegations as set forth in its original
information, and, accordingly, the operative information did not address the issue raised by the defendant’s
renewed motions.
On August 7, 2023, the court held a hearing to address,
inter alia, the defendant’s two renewed motions.9 After
6
The second renewed motion for a bill of particulars stated in relevant
part: ‘‘The defendant . . . respectfully renews again his renewed motion
for a bill of particulars dated January 31, 2023. The state has neither filed
a renewed bill of particulars nor objected to the defendant’s [January 31,
2023] motion since it was filed . . . .’’
7
See footnote 5 of this opinion.
8
Accordingly, in count one of the operative information, the state charged
the defendant with assault in the second degree in violation of § 53a-60 (a)
(3), alleging that ‘‘the defendant recklessly caused serious physical injury
to another person by means of a dangerous instrument . . . to wit: the
defendant slammed [the victim] on his bed causing a concussion.’’ In count
two of the operative information, the state charged the defendant with risk
of injury to a child in violation of § 53-21 (a) (1), alleging that ‘‘the defendant
did an act likely to impair the health of a child under the age of sixteen
years . . . to wit: the defendant slammed [the victim] onto his bed, breaking
the bed.’’
Count five of the original information, charging the defendant with a
second count of risk of injury to a child, became count three of the operative
information. As stated herein, this charge is not relevant to the defendant’s
claims on appeal.
9
The defendant indicated at the hearing that his original motion for a bill
of particulars, dated February 2, 2021, was no longer pending because it
had been resolved by the state’s filing of the original information. The
defendant further clarified that his second renewed motion was substantively identical to his first renewed motion, and, thus, a single ruling by the
court would resolve both renewed motions.
0, 0 CONNECTICUT LAW JOURNAL Page 9
0 Conn. App. 1 ,0 11
State v. Emmanuel C.
hearing arguments from both parties, the court denied
the defendant’s renewed motions on the ground that
‘‘the evidence will bear out which aspect of the bed’’
was used, and, therefore, it was not necessary for the
state to identify in the operative information the specific
part of the bed that the defendant allegedly used.10
On appeal, the defendant claims that the court erred
in denying his renewed motions for a bill of particulars.
Specifically, the defendant argues that because counts
one and two of the operative information both alleged
that he used a ‘‘bed’’ to commit the respective offense,
but did not specify which part of the bed, the court’s
denial of his renewed motions ‘‘allowed the state to be
purposefully vague’’ and prevented him ‘‘from being
sufficiently apprised of the offenses he was alleged to
have committed [in order] to prepare his defense.’’ Conversely, the state argues that the defendant’s renewed
motions pertained solely to count one of the operative
information, for which the defendant was acquitted,
and, therefore, his claim on appeal is moot.11 We agree
with the state.
‘‘Mootness is a question of justiciability that must be
determined as a threshold matter because it implicates
this court’s subject matter jurisdiction. . . . [A]n
actual controversy must exist not only at the time the
appeal is taken, but also throughout the pendency of
the appeal. . . . When, during the pendency of an
10
The court reasoned: ‘‘[T]he bed is, as counsel noted, an item made up
of several components. The components need not be specifically stated for
the jury to draw the appropriate assumption or the appropriate facts and
apply those facts to the law to make their determination based on the
longform allegations. . . . [I]t will not be inconsistent for the jury to find
that there was a bed utilized and the defendant slammed . . . the victim
onto the bed, depending on which part. If it was on the mattress, still can
be slammed on the bed. If it was on the headboard, still can be slammed
on the bed. The footboard, still can be slammed on the bed.’’
11
The defendant did not file a reply brief in this appeal, and his principal
appellate brief did not address the issue of whether this claim is moot.
Page 10 CONNECTICUT LAW JOURNAL 0, 0
12 ,0 0 Conn. App. 1
State v. Emmanuel C.
appeal, events have occurred that preclude an appellate
court from granting any practical relief through its disposition of the merits, a case has become moot.’’ (Citation omitted; internal quotation marks omitted.) Wendy
V. v. Santiago, 319 Conn. 540, 544–45,
125 A.3d 983
(2015).
The defendant’s contention that his renewed motions
pertained to both counts one and two of the operative
information is belied by the record. He specifically
requested in his first renewed motion a court order
requiring ‘‘the state to identify [the] part of the bed that
the defendant is alleged to have committed assault in
the second degree with’’ on the ground that ‘‘the state
should be required to identify the specific part of the bed
that was allegedly used as the dangerous instrument.’’12
(Emphasis added.) In arguing his renewed motions
before the trial court, the defendant further reiterated
that he sought specification solely with respect to which
part of the bed he allegedly used as a dangerous instrument.13 With respect to count two of the operative information, charging the defendant with risk of injury to a
child, the state was not required to prove, nor did it
allege, that the defendant used the bed as a dangerous
instrument in his commission of that offense. See General Statutes § 53-21 (a) (1). Conversely, with respect
to count one, the state alleged, and was required to
12
At the August 7, 2023 hearing on the defendant’s renewed motions,
defense counsel clarified that the second renewed motion raised the ‘‘[s]ame
claim’’ as the first and affirmed that ‘‘the court’s ruling on one would
address both.’’
13
Defense counsel argued: ‘‘The [victim] indicated that he was slammed
on the bed, he hit his head on the mattress, and again, that is composed of
multiple parts. So, the jury is going to be tasked with deciding whether or
not the instrument used here is a dangerous instrument. . . . [I]t’s not that
the state hasn’t provided any information in the long form, it’s that it doesn’t
conform to what the evidence is going to be. . . . [I]t’s a very specific
incident here. The case law is clear, you know, anything can be a dangerous
instrument. If the state is going to . . . identify the dangerous instrument
in a long form, then it should be identified as to what it was.’’
0, 0 CONNECTICUT LAW JOURNAL Page 11
0 Conn. App. 1 ,0 13
State v. Emmanuel C.
prove, that the defendant ‘‘recklessly caused serious
physical injury to [the victim] by means of a dangerous
instrument . . . .’’ (Emphasis added.) See General
Statutes § 53a-60 (a) (3). Accordingly, it is clear from the
record before us that the defendant’s renewed motions
pertained solely to count one of the operative information. Because the defendant was acquitted on count
one, we conclude that this claim is moot.
III
The defendant next claims that the court improperly
denied his motion for a mistrial predicated on the state’s
alleged failure to disclose certain impeachment evidence in contravention of Brady v. Maryland, supra,373 U.S. 87. We are not persuaded.
We begin with the standards of review governing the
defendant’s claim. ‘‘While the remedy of a mistrial is
permitted under the rules of practice, it is not favored.
. . . The general rule in Connecticut is that a mistrial
is granted only where it is apparent to the court that
as a result of some occurrence during trial a party has
been denied the opportunity for a fair trial. . . . The
trial court enjoys wide discretion in deciding whether
a mistrial is warranted . . . . It is only when 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.’’ (Internal quotation
marks omitted.) State v. Rivera, 152 Conn. App. 248,
254–55, 96 A.3d 1285, cert. denied,
314 Conn. 934,
102
A.3d 85 (2014).
‘‘The applicable standard of review with respect to
an alleged Brady violation is as follows. In Brady v.
Maryland, supra,373 U.S. 87, the United States
Supreme Court held that the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith
Page 12 CONNECTICUT LAW JOURNAL 0, 0
14 ,0 0 Conn. App. 1
State v. Emmanuel C.
or bad faith of the prosecution. . . . [T]he Brady rule
applies not just to exculpatory evidence, but also to
impeachment evidence . . . which, broadly defined, is
evidence having the potential to alter the jury’s assessment of the credibility of a significant prosecution witness. . . . In order to prove a Brady violation, the
defendant must show: (1) that the prosecution suppressed evidence after a request by the defense; (2)
that the suppressed evidence was favorable to the
defense; and (3) that the evidence was material.’’ (Citations omitted; internal quotation marks omitted.) State
v. Rivera, supra, 152 Conn. App. 255–56. Thus, ‘‘[i]n
order to obtain relief under Brady, a defendant bears
the heavy burden of satisfying all three prongs of the
aforementioned test . . . .’’ (Emphasis in original,
internal quotation marks omitted.) Stevenson v. Commissioner of Correction, 165 Conn. App. 355, 368 n.3,
139 A.3d 718, cert. denied,
322 Conn. 903,
138 A.3d 933
(2016). ‘‘Whether the [defendant] was deprived of his
due process rights due to a Brady violation is a question
of law, to which we grant plenary review.’’ (Internal
quotation marks omitted.) Id., 363.
The following facts and procedural history are necessary for our review of the defendant’s claim. During
the prosecutor’s direct examination of the victim, the
victim testified that when the defendant slammed him
onto his bed, his head hit part of the bed frame.14 The
prosecutor then presented the victim with a pen and a
photograph of his bed and asked him to circle where
on the bed his head hit, upon which the victim circled
the footboard of the bed.
14
The victim was asked on cross-examination whether he had told the
police that his head hit the mattress, and he indicated that he did not recall
telling the police that. The victim was then asked what he had told the
doctors at the hospital, and the victim indicated that he did not recall telling
the doctors that his entire head hit the mattress but, rather, that he recalled
telling them that part of his head hit the bed frame.
0, 0 CONNECTICUT LAW JOURNAL Page 13
0 Conn. App. 1 ,0 15
State v. Emmanuel C.
At the close of the state’s case-in-chief, defense counsel orally moved for a mistrial on the basis that all ‘‘the
information provided to [the defendant] leading up to
trial’’ indicated that the victim’s head hit the mattress,
and the state failed to disclose that the victim would
testify differently at trial. Defense counsel argued that
the state’s failure to disclose that information violated
Brady because the information is ‘‘exculpatory . . .
it’s impeachment material. It’s relevant to [the victim’s]
credibility; it’s relevant to the testimony provided by
the medical providers as to the mechanism of injury.’’
In response to the court’s inquiry as to what information
supported the defendant’s belief that the prosecutor
knew prior to trial that the victim would testify that his
head hit the footboard, defense counsel argued that
‘‘the [prosecutor] had [the victim] circle where he hit
his head’’ on the photograph of the bed, and ‘‘we’re
taught in law school not to ask questions that we don’t
know the answer to.’’15
After a brief recess, the court issued a ruling from
the bench denying the defendant’s motion for a mistrial
on the ground that the state’s case was not ‘‘entirely
dependent’’ on the victim’s testimony that his head hit
the footboard. The court also found that defense counsel had effectively impeached the credibility of the victim through his ‘‘comprehensive’’ and ‘‘skillful’’ crossexaminations of the victim and the state’s witnesses.16
15
In response, the prosecutor argued that the information about the victim’s head hitting the footboard had been disclosed to the defendant because
such information was necessarily included in the allegation that ‘‘his head
. . . hit . . . the bed’’ because ‘‘the bed encompasses all parts of the bed.’’
16
Specifically, the court stated: ‘‘[W]here impeachment evidence is at issue
. . . typically, [a mistrial] arises [when] the [state’s] case is entirely dependent upon the credibility of key witnesses. In this case we heard from
the [victim]; however, we also heard from medical professionals. And the
question of the elements of the crime of assault in the second degree do
not rest entirely upon the testimony provided by the [victim] . . . . [H]is
credibility is key to the case, but . . . the state’s case is not entirely dependent upon [his] testimony [concerning the manner in which he was injured]
in the sense that the testimony refers more so to the amount of force used
Page 14 CONNECTICUT LAW JOURNAL 0, 0
16 ,0 0 Conn. App. 1
State v. Emmanuel C.
The court thus concluded that ‘‘the issue raised regarding the footboard versus the mattress . . . [was not]
sufficient to rise to the level of [necessitating a mistrial].’’
On appeal, the defendant argues that the fact ‘‘that
the [victim] changed his story as to the mechanism of
. . . injury’’ was material because, contrary to the trial
court’s conclusion, ‘‘the state’s case hinged almost
entirely on the credibility’’ of the victim. Accordingly,
he asserts that the state’s failure to disclose that information constituted a Brady violation, and, therefore,
the court erred in denying his motion for a mistrial.
Conversely, the state argues that the defendant’s Brady
claim fails because he has not demonstrated the first
prong of Brady, that the alleged impeachment evidence
was suppressed by the prosecutor. Although the trial
court did not address this particular prong of Brady in
its ruling on the defendant’s motion for a mistrial, the
state urges us to affirm the court’s denial on this ground.
We agree with the state. See State v. Kinch, 168 Conn.
App. 62, 68 n.4,
144 A.3d 509 (‘‘[i]t is well established
that we may affirm the court’s judgment on a dispositive
[alternative] ground for which there is support in the
trial court record’’ (internal quotation marks omitted)),
cert. denied, 323 Conn. 930,
151 A.3d 383 (2016); see
also State v. John, 210 Conn. 652, 679–80,
557 A.2d 93
(appellate court ‘‘is free to sustain a ruling on a different
basis from that relied upon by the trial court’’), cert.
in the act, rather than which specific portion of the bed was the basis for
the injury itself. There was testimony here as well from medical professionals
that [defense] counsel elicited . . . on the very issue at hand regarding the
nature of [the victim’s] injury; what would have been . . . the portion of
. . . the bed that would have been likely or probable . . . to cause [the
injury] . . . . So, in that respect, [defense] counsel . . . has effectively
carried out . . . a comprehensive cross-examination on the issues including
the specific manner in which the injury occurred; skillful cross-examination,
if you will, to that very issue for impeaching . . . the credibility of the
[victim] . . . .’’
0, 0 CONNECTICUT LAW JOURNAL Page 15
0 Conn. App. 1 ,0 17
State v. Emmanuel C.
denied, 493 U.S. 824,
110 S. Ct. 84,
107 L. Ed. 2d 50
(1989), and cert. denied, 493 U.S. 824,
110 S. Ct. 84,
107
L. Ed. 2d 50 (1989).
‘‘In order to establish a violation of Brady . . . the
defendant must demonstrate the prosecution had possession of [Brady material] that was not disclosed upon
request.’’ (Emphasis added; footnote omitted.) State v.
Falcone, 191 Conn. 12, 17,
463 A.2d 558 (1983). ‘‘Materials not possessed by the [prosecution] cannot be suppressed within the meaning of Brady.’’ (Internal quotation marks omitted.) State v. Conn,
234 Conn. 97, 118,
662 A.2d 68 (1995). On appeal, the defendant fails to
identify any evidence, and our thorough examination
of the record has not disclosed any, demonstrating that
the prosecutor knew prior to trial that the victim would
testify that his head hit the footboard rather than the
mattress.17 In arguing the defendant’s motion for a mistrial before the trial court, defense counsel suggested
that such knowledge was evidenced by the fact that
the prosecutor had met with the victim prior to trial
and, therefore, must have known how he would respond
to her direct examination questions. Because the record
does not support his assertion that the prosecution
possessed prior knowledge of this testimony, his argument is speculative and, therefore, unavailing. This
court has observed that, ‘‘[n]otwithstanding any pretrial
indication or preview of testimony by a witness, there
17
The defendant did not address this issue in his brief to this court. When
asked during oral argument before this court whether there was any evidence
in the record demonstrating that the alleged impeachment evidence was
suppressed by the prosecutor, the defendant’s counsel directed this court’s
attention to the prosecutor’s statement before the trial court during argument
on the defendant’s motion for a mistrial that ‘‘[she] believe[d] that the
evidence was disclosed’’ because ‘‘[the victim] indicated that his head . . .
hit . . . the bed [which] encompasses all parts of the bed.’’ See footnote
15 of this opinion. We disagree with the defendant that the prosecutor’s
statement demonstrates that she was aware prior to trial that the victim
would testify specifically that his head hit the bed frame rather than the mattress.
Page 16 CONNECTICUT LAW JOURNAL 0, 0
18 ,0 0 Conn. App. 1
State v. Emmanuel C.
is no guarantee or certainty of the testimony under oath
on the witness stand. . . . [T]he unpredictable testimony of a witness . . . is one of the inherent risks of
trial.’’ (Internal quotation marks omitted.) Chairamonte
v. Manson, 6 Conn. App. 476, 480–81,
506 A.2d 154, cert.
denied, 200 Conn. 806,
512 A.2d 230 (1986). This is
especially true where, as here, the witness was only
sixteen years old at the time of trial and testifying about
events that happened to him when he was twelve years
old. Because the defendant has failed to point to persuasive evidence that demonstrates that the prosecutor
had prior knowledge of how the victim would testify,
we conclude that he has failed to establish that such
information was suppressed by the prosecutor.
Moreover, even if we assume that the prosecutor
knew prior to trial that the victim’s testimony would
differ from his previous statements, that information
was elicited during the direct examination of the victim.
‘‘Evidence . . . that is disclosed, even if during trial,
is not considered suppressed as that term is used in
Brady. . . . Under these circumstances, the defendant
bears the burden of proving that he was prejudiced by
the state’s failure to make the information available to
him at an earlier time. . . . The appropriate standard
to be applied in a case such as this is whether the
disclosure came so late as to prevent the defendant
from receiving a fair trial.’’ (Citations omitted; internal
quotation marks omitted.) State v. Reddick, 197 Conn.
115, 121–22,
496 A.2d 466 (1985), cert. denied,
474 U.S.
1067,
106 S. Ct. 822,
88 L. Ed. 2d 795 (1986).
On the basis of the record before us, we cannot conclude that the defendant was prejudiced by his lack of
knowledge, prior to trial, that the victim would testify
that his head hit the bed frame. To begin, the victim
was the first witness to testify at trial, and the defendant
was not prevented from utilizing the information elicited on direct examination in his cross-examination of
0, 0 CONNECTICUT LAW JOURNAL Page 17
0 Conn. App. 1 ,0 19
State v. Emmanuel C.
any witnesses, including the victim, or in the presentation of his defense. Indeed, the record demonstrates
that defense counsel availed himself of the opportunity
to cross-examine witnesses and, as noted by the trial
court, did so ‘‘effectively’’ and ‘‘skillful[ly].’’18 The defendant claims that he was prejudiced because, had the
victim’s testimony regarding the mechanism of injury
been disclosed earlier, it would have allowed his counsel ‘‘to utilize that information in more effectively crossexamining [the victim] and the [state’s] other witnesses
. . . [which] could have included retaining a medical
expert to comment on the lack of [more severe injuries]
. . . .’’ The defendant, however, fails to identify with
any specificity how earlier disclosure of that information would have made his counsel’s cross-examination
of those witnesses more effective. The defendant likewise fails to explain why expert medical testimony was
necessary to establish that the resulting injuries from
being slammed into a wooden bed frame would have
been more severe than an injury resulting from being
slammed into a mattress. Defense counsel appeared to
recognize in his closing argument, and we would agree,
that the jurors were capable of making this inference
themselves on the basis of their common sense and life
experiences.19 In addition, if the defendant, following
the victim’s disclosure on direct examination that his
18
See footnote 16 of this opinion. Specifically, during defense counsel’s
cross-examination of the victim, counsel elicited testimony from the victim
affirming that the victim had recalled telling the police and hospital personnel
that his head hit the bed frame and denying that he had ever reported
that his head hit only the mattress. In defense counsel’s subsequent cross-examination of Delieto, the two doctors who examined the victim, and a
hospital social worker, counsel elicited testimony that, when the incident
occurred in 2019, the victim had told each witness that his head hit the
mattress, not the footboard or any part of the bed frame.
19
Specifically, defense counsel argued to the jury: ‘‘There’s no cut to [the
victim’s] head; there’s no fracture; there’s no bruising on the brain . . . .
[L]ook at [the picture of] the footboard, you tell me if that wooden footboard
would not cause more damage . . . to a twelve year old’s head.’’
Page 18 CONNECTICUT LAW JOURNAL 0, 0
20 ,0 0 Conn. App. 1
State v. Emmanuel C.
head hit the footboard, believed that additional time
was necessary to prepare for cross-examination of the
state’s witnesses or to consult a medical expert, he
could have requested a continuance or, at the very least,
asked for a recess following the direct examination of
the victim. See, e.g., State v. Reddick, supra,197 Conn.
122; State v. Small,
180 Conn. App. 674, 696–97,
184
A.3d 816, cert. denied,
328 Conn. 938,
184 A.3d 268
(2018). The defendant made no such request. Resultantly, the defendant’s claims of prejudice are purely
speculative and thus insufficient to satisfy his burden
of proving that the timing of the disclosure prevented
him from receiving a fair trial. See State v. Walker, 214
Conn. 122, 128,
571 A.2d 686 (1990).
Accordingly, we conclude that the defendant has
failed to prove that the alleged impeachment evidence
was suppressed by the prosecutor, as required to establish a Brady violation.20 We therefore affirm the court’s
denial of his motion for a mistrial on this alternative
ground.
IV
The defendant next claims that the court abused its
discretion in admitting three photographs that made
the victim look ‘‘more injured than he actually alleged’’
due to lighting issues. Specifically, he claims that ‘‘the
court ignored [the] complete lack of foundation for
[their] admissi[on].’’ We disagree.
The state introduced into evidence three photographs
of the victim’s injuries through Seth Woolf, one of the
20
In light of this conclusion, we need not address the defendant’s claim
on appeal that he met his burden with respect to the materiality prong of
Brady. See State v. Orr, 199 Conn. App. 427, 453,
237 A.3d 15 (2020) (‘‘[i]f
. . . the [defendant] has failed to meet his burden as to one of the three
prongs of the Brady test, then we must conclude that a Brady violation
has not occurred’’ (internal quotation marks omitted)).
0, 0 CONNECTICUT LAW JOURNAL Page 19
0 Conn. App. 1 ,0 21
State v. Emmanuel C.
emergency department physicians who treated the victim on November 14, 2019. With respect to the first
photograph, Woolf testified that it was ‘‘a fair and accurate representation of [the victim’s] anterior neck on
November 14, 2019.’’ Before the photograph was admitted into evidence, defense counsel sought and was
granted permission to voir dire the witness, and the
following colloquy occurred between defense counsel
and Woolf:
‘‘[Defense Counsel]: Looking at the top half of that
picture, is that how [the victim’s] face looked at that
time or is that the . . . lighting in the photo?
‘‘[The Witness]: I’m not sure I understand the question.
‘‘[Defense Counsel]: Is there a claim based upon your
examination that his whole face was bruised?
‘‘[The Witness]: No, I think that is the lighting.
‘‘[Defense Counsel]: Okay. So, then that is not a fair
and accurate depiction of his face and neck?
‘‘[The Witness]: The upper part.’’
Following that exchange, defense counsel objected
on the basis that the state did not lay a proper foundation for the photograph’s admission, arguing that the
‘‘entire picture . . . is not a fair and [accurate] depiction’’ of the victim’s injuries. The court overruled
defense counsel’s objection, and the photograph was
admitted as a full exhibit. In doing so, the court sua
sponte ‘‘advise[d] the jury as to this photograph, that
there is a portion of the photograph that has some
lighting discrepancy but apart from that one portion,
the rest of the photograph is a fair and accurate depiction [on] the date in question [of] the condition of the
neck.’’21
21
Although the defendant does not challenge on appeal the propriety of
the court’s sua sponte limiting instruction, we note that the court’s instruction was incorrect insofar as it stated that ‘‘the rest of the photograph is a
Page 20 CONNECTICUT LAW JOURNAL 0, 0
22 ,0 0 Conn. App. 1
State v. Emmanuel C.
Shortly thereafter, the state simultaneously introduced two additional photographs that depicted bruising on the victim’s back, which Woolf testified to be
‘‘fair and accurate representation[s] of [the victim’s]
injuries on November 14, 2019.’’ During voir dire by
defense counsel, Woolf identified the areas of bruising
on each photograph but acknowledged that lighting
issues on both photographs appeared to create shadows
on other areas of the victim’s back, which potentially
could be misinterpreted as additional bruising. Defense
counsel objected to the admission of these photographs
on the same ground as his objection to the first photograph, and the court again overruled counsel’s objections and admitted the photographs. In doing so, however, the court instructed the prosecutor ‘‘to further
clarify in the testimony as to what . . . injuries are
depicted.’’ The prosecutor subsequently had Woolf hold
up each photograph and identify specifically which
areas depicted bruising and which areas depicted shadows due to lighting issues.
‘‘Photographic evidence is admissible if it has a reasonable tendency to prove or disprove a material fact
in issue or shed some light upon some material inquiry.
. . . Verification of a photograph is a preliminary question of fact to be determined by the trial court. . . .
Whether a photograph shows a situation with sufficient
accuracy to render it admissible, is a preliminary question for the court . . . . Further, the trial court has
fair and accurate depiction [on] the date in question [of] the condition of
the neck.’’ Section 1-3 (a) of the Connecticut Code of Evidence provides
that ‘‘[p]reliminary questions concerning . . . the admissibility of evidence
shall be determined by the court.’’ However, ‘‘[i]f the court determines
that a prima facie showing of authenticity has been made, the evidence, if
otherwise admissible, goes to the [jury] [and] [i]t is for the [jury] ultimately
to decide whether evidence submitted for its consideration is what the
proponent claims it to be.’’ (Emphasis added.) Conn. Code Evid. § 1-3 (b),
commentary. In other words, it was ultimately a question for the jury in
this case as to whether the photograph accurately and fairly depicted the
condition of the victim’s neck.
0, 0 CONNECTICUT LAW JOURNAL Page 21
0 Conn. App. 1 ,0 23
State v. Emmanuel C.
wide discretion in admitting photographic evidence and
its determination will stand unless there has been a
clear abuse of that discretion.’’ (Citations omitted; internal quotation marks omitted.) State v. Walker, 215 Conn.
1, 6,
574 A.2d 188 (1990).
At the outset of Woolf’s direct examination, he testified that when he examined the victim in the emergency
department on November 14, 2019, the victim’s injuries
included bruising on his back and petechiae on his
anterior neck. When Woolf subsequently was shown
the three photographs at issue, Woolf testified that each
photograph was a fair and accurate depiction of how
the victim’s injuries appeared on that date. Woolf’s testimony thus provided a proper foundation for the admission of the photographs. See State v. Swinton, 268 Conn.
781, 802,
847 A.2d 921 (2004) (‘‘[u]nder [the foundational] standard [for photographs], all that is required
is that a photograph be introduced through a witness
competent to verify it as a fair and accurate representation of what it depicts’’). Although other portions of
each photograph were affected by lighting distortions,
those portions were identified and the jury was
instructed to disregard them.22 Although we recognize
that the court could have directed the state to better
sanitize the photographs so as to omit the areas affected
by lighting distortions entirely, we cannot conclude
from the record before us that the court clearly abused
its broad discretion in determining that there was a
proper foundation to admit the photographs into evidence.
22
The court again advised the jury in its final instructions that it must
disregard the distorted portions of each photograph: ‘‘Some . . . exhibits
have been admitted for a limited purpose. When [the court] . . . ha[s] given
a limiting instruction, you must follow it. For example, there are photographs
admitted and [the court] told you to disregard the dark areas due to lighting issues.’’
Page 22 CONNECTICUT LAW JOURNAL 0, 0
24 ,0 0 Conn. App. 1
State v. Emmanuel C.
V
Finally, the defendant claims that the court abused
its discretion in denying his request for judicial recusal.
Specifically, the defendant claims that recusal was warranted because, he argues, Judge Chaplin created an
appearance of impropriety by allegedly engaging in an
ex parte communication with the prosecutor. We disagree.
The following facts and procedural history are relevant to the defendant’s claim. Prior to trial, the prosecutor had learned from a third party that the defendant
previously worked as a judicial marshal but his employment had been terminated due to allegations of larceny.
On August 10, 2023, the state presented the court with
a subpoena, which was signed by Judge Chaplin on
the same day, directing the Judicial Marshal Service to
appear in court on August 14, 2023, and to bring with
it ‘‘[a]ll employment records of [the defendant].’’23
Thereafter, the defendant’s employment records
were filed with the clerk of the court, and, on August
21, 2023, the prosecutor orally moved to unseal them.
In response, defense counsel acknowledged that ‘‘the
state [had sent defense counsel] an email indicating
[that it was] going to subpoena the records’’ and that
he had obtained a copy of the subpoena after the
records were delivered. Defense counsel, however,
‘‘object[ed] to the issuance of [the] subpoena.’’ Specifically, he argued that the court’s signing of the state’s
subpoena was improper because the subpoena had not
been ‘‘contemporaneously [sent] to [him] . . . .’’
Defense counsel thus claimed that, because ‘‘[the subpoena] went to the court without coming to [him],’’ the
court’s signing of the subpoena was ‘‘essentially an ex
23
The subpoena was served upon the Judicial Marshal Service on the
same date that it was signed by the court.
0, 0 CONNECTICUT LAW JOURNAL Page 23
0 Conn. App. 1 ,0 25
State v. Emmanuel C.
parte communication’’ between the court and the prosecutor.
After noting defense counsel’s concerns with the
manner in which the subpoena was issued, the court
‘‘grant[ed] the request to unseal the [records] so that
both sides can . . . review [them]’’ but reserved ruling
on the issue of whether the records were admissible.24
Defense counsel took exception to the court’s ruling
and further stated: ‘‘I would request that the court consider disqualifying itself given the process that was used
to obtain these records. I do think it could raise the
appearance of impropriety. There is . . . no way for
me to say that the court acted inappropriately or could
not ensure a fair trial for [the defendant], but I think
the appearance is there.’’ The court ‘‘appreciate[d] [him]
raising that issue’’ but denied his request for recusal.
‘‘A trial court’s ruling on a motion for disqualification
is reviewed for abuse of discretion. . . . In determining
whether there has been an abuse of discretion, every
reasonable presumption should be given in favor of the
correctness of the court’s ruling. . . . Reversal is
required only where an abuse of discretion is manifest
or where injustice appears to have been done. . . .
‘‘Pursuant to our rules of practice; see Practice Book
§ 1-22; a judge should disqualify himself from acting in
a matter if it is required by rule 2.11 of the Code of
Judicial Conduct, which provides in relevant part that
[a] judge shall disqualify himself . . . in any proceeding in which the judge’s impartiality might reasonably
be questioned . . . . In applying this rule, [t]he reasonableness standard is an objective one. Thus, the question is not only whether the particular judge is, in fact,
24
The following day, on August 22, 2023, the state filed a written motion
to introduce the defendant’s employment records as prior misconduct for
impeachment purposes. The motion was heard before the court on the same
date, and, after hearing arguments from counsel for both parties, the court
denied the state’s motion.
Page 24 CONNECTICUT LAW JOURNAL 0, 0
26 ,0 0 Conn. App. 1
State v. Emmanuel C.
impartial but whether a reasonable person would question the judge’s impartiality on the basis of all the circumstances. . . . Moreover, it is well established that
[e]ven in the absence of actual bias, a judge must disqualify himself in any proceeding in which his impartiality might reasonably be questioned, because the appearance and the existence of impartiality are both essential
elements of a fair exercise of judicial authority. . . .
Nevertheless, because the law presumes that duly
elected or appointed judges, consistent with their oaths
of office, will perform their duties impartially . . . the
burden rests with the party urging disqualification to
show that it is warranted.’’ (Internal quotation marks
omitted.) Doe v. West Hartford, 168 Conn. App. 354,
382,
147 A.3d 1083 (2016), aff’d,
328 Conn. 172,
177 A.3d
1128 (2018).
On appeal, the defendant argues that the court was
‘‘[w]orking ex parte with the state . . . to obtain potentially harmful evidence against the defendant,’’ which,
he asserts, ‘‘can only be viewed by a reasonable person
as implicating the judge’s impartiality.’’ Although rule
2.9 of the Code of Judicial Conduct provides in relevant
part that ‘‘[a] judge shall not initiate, permit, or consider
ex parte communications or consider other communications made to the judge outside the presence of the
parties or their lawyers, concerning a pending or
impending matter,’’ the defendant’s argument is unavailing because there is no evidence in the record that any
improper ex parte communication occurred. Defense
counsel acknowledged that the state notified him in
advance that it ‘‘[was] going to subpoena’’ the defendant’s employment records and that he subsequently
received a copy of the subpoena. Defense counsel further acknowledged that he was aware that General Statutes § 31-128f required the state to obtain a court order
0, 0 CONNECTICUT LAW JOURNAL Page 25
0 Conn. App. 1 ,0 27
State v. Emmanuel C.
in order to subpoena those records.25 Because our statutes and rules of practice expressly authorized the court
to issue such an order in the underlying case, the state’s
presentation to the court of a subpoena and the court’s
signing of the state’s subpoena was proper. See General
Statutes § 54-2a (a) (in all criminal cases, Superior Court
may issue ‘‘subpoenas for witnesses’’ and ‘‘all other
criminal process’’); see also Practice Book § 40-2 (‘‘the
judicial authority may, upon written request or upon
its own motion, issue a subpoena . . . directing that
. . . documents or objects [that are the subject of discovery orders] be delivered to the clerk of the court
within a specified time’’). Finally, the defendant concedes that the subpoena itself communicated no substantive information about the pending case,26 and the
record indicates that the court subsequently notified
the defendant that the subpoena had been issued and
did not unseal the subpoenaed records until both parties
were afforded an opportunity to be heard on the matter.
Thus, from the record before us, the defendant clearly
has not met his burden of establishing a factual basis
25
General Statutes § 31-128f provides in relevant part: ‘‘No individually
identifiable information contained in the personnel file . . . of any
employee shall be disclosed by an employer to any person or entity not
employed by or affiliated with the employer without the written authorization of such employee except . . . where the disclosure is made . . . (2)
pursuant to a lawfully issued administrative summons or judicial order,
including a . . . subpoena . . . .’’
26
In conceding this fact, defense counsel argued before the trial court
and the defendant repeats in his brief to this court that the state’s subpoena
was merely ‘‘an unsupported request to obtain negative records for use at
trial against the defendant,’’ and, therefore, it was improper for the court
to sign the subpoena where the state failed to provide ‘‘a proper foundation’’
for requesting the defendant’s employment records. We are not persuaded.
As stated herein, employment records are disclosable upon a lawfully issued
judicial order, and the court, by signing the state’s subpoena, properly issued
such an order. Nothing in the controlling statutes or our rules of practice
conditions the issuance of a subpoena for employment records upon any
particular showing by the party requesting the records, and the defendant
fails to provide any legal authority, nor could we locate any, that supports
his contention otherwise.
Page 26 CONNECTICUT LAW JOURNAL 0, 0
28 ,0 0 Conn. App. 1
State v. Emmanuel C.
that created a reasonable appearance of impropriety.
Accordingly, we conclude the court did not abuse its
discretion in denying the defendant’s request for the
trial judge to recuse himself from presiding over the
case.
The portion of the appeal challenging the trial court’s
denial of the defendant’s renewed motions for a bill of
particulars is dismissed; the judgment is affirmed in all
other respects.
In this opinion the other judges concurred.
