STATE OF CONNECTICUT v. ROBERT ELECK
(SC 18876)
Supreme Court of Connecticut
October 21, 2014
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Vertefeuille, Js.
Argued October 29, 2013
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Timothy F. Costello, assistant state‘s attorney, with whom, on the brief, were David I. Cohen, state‘s attorney, and Joseph C. Valdes, senior assistant state‘s attorney, for the appellee (state).
EVELEIGH, J. The defendant, Robert Eleck, appeals from the judgment of the Appellate Court, which affirmed the judgment of conviction of assault in the first degree by means of a dangerous instrument in violation of
The opinion of the Appellate Court sets forth the following relevant facts and procedural history. “The defendant attended a party at 16 Charles Street in Norwalk in the early morning hours of December 9, 2007. All of the approximately twenty teens and young adults who attended were consuming alcoholic beverages, and many were intoxicated. While inside the house, the defendant was involved in at least two verbal confrontations with one guest, Matthew Peacock. The defendant also conversed on several occasions with another guest, Simone Judway. Shortly after 2:30 a.m., outside the house, the defendant and Peacock engaged in a physical altercation that included punching and grappling. Three other guests, including Zachary Finch, joined the fight to help Peacock. When the combatants were separated, both Peacock and Finch discovered that they had suffered stab wounds.
“The defendant subsequently was arrested and charged with assault in the first degree with a dangerous instrument in violation of
The defendant appealed from the trial court‘s judgment of conviction to the Appellate Court, claiming, inter alia, that the trial court improperly ruled that a printed copy of an online conversation between the defendant and a person utilizing Judway‘s Facebook
The opinion of the Appellate Court reveals additional facts and procedural history that are relevant to the defendant‘s claim. “As a witness for the state, Judway offered key testimony that, prior to the physical altercation, the defendant had told her that ‘if anyone messes with me tonight, I am going to stab them.’ Subsequently, during cross-examination, defense counsel sought to impeach Judway‘s credibility by asking her whether she had spoken with the defendant in person since the incident. She responded that she had seen the defendant in public but had not spoken to him in person, by telephone or by computer. Defense counsel then showed Judway a printout purporting to show an exchange of electronic messages between the defendant‘s Facebook account and another account under the user name ‘Simone Danielle.’ Judway identified the user name as her own, but denied sending the messages to the defendant. She also testified that someone had ‘hacked’ into her Facebook account and changed her password ‘two [to] three weeks’ ago such that she had been unable to access it subsequently.
“On the following day, during the defendant‘s testimony, his counsel offered into evidence the defendant‘s Facebook printout containing messages purportedly from Judway. The state objected on the grounds that the authorship of the messages could not be authenticated and [thus] the document was irrelevant. In response, to authenticate the document, the defendant testified that he downloaded and printed the exchange of messages directly from his own computer. He also advanced testimony that he recognized the user name, ‘Simone Danielle,’ as belonging to Judway because she had added him as a Facebook ‘friend’ a short time before he received the message. He testified that the ‘Simone Danielle’ profile contained photographs and other entries identifying Judway as the holder of that account. Finally, he testified that when he logged in to his Facebook account after the previous day‘s testimony, user ‘Simone Danielle’ had removed him from her list of Facebook ‘friends.’ The defendant‘s counsel then argued that based on this testimony and Judway‘s identification of her user name, there was a sufficient foundation to admit the document for the jury‘s consideration.” (Footnotes omitted.) Id., 635-36.
As set forth by the Appellate Court in a footnote, the printout of the online conversation between the defendant and “Simone Danielle” proffered by the defendant consisted of the following:4
“Simone Danielle: Hey I saw you the other day and I just want to say nice bike.
“[The Defendant]: why would you wanna talk to me
“Simone Danielle: I‘m just saying that you have a nice bike that‘s all. The past is the past.
“[The Defendant]: yup thanks
“Simone Danielle: No problems.” (Internal quotation marks omitted.) Id., 635 n.2.
As noted by the Appellate Court, “[t]he [trial] court . . . sustained the state‘s objection on the ground that the defendant had not authenticated that the messages were written by Judway herself.” Id., 636.
The defendant does not claim that the trial court‘s refusal to admit the proffered document infringed on any of his constitutional rights. Instead, the defendant claims that the ruling is evidentiary in nature.5
Regardless of the defendants claims, assuming, without deciding, that it was improper to exclude the proffered evidence, we now examine whether the exclusion was harmful. “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, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, 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. Favoccia, 306 Conn. 770, 808-809, 51 A.3d 1002 (2012). In the present case, we conclude that, assuming, without deciding, that the exclusion of the proffered evidence was improper, the ruling was harmless.
The defendant argues that the evidentiary error was improper because the online conversation impeached Judway. Specifically, the defendant claims that Judway denied having any contact with the defendant between the night of the assault and the day of trial and that this conversation impeached that testimony. The defendant‘s position is that the failure to impeach Judway likely affected the jury‘s verdict because Judway‘s testimony suggested that the defendant was prepared to
The state argues that any impropriety was harmless. The state claims that its case against the defendant was strong, as multiple witnesses identified the defendant as the person who initiated the physical altercation with Peacock, at least two witnesses saw the defendant wrap Peacock in a bear hug, another saw the defendant holding a knife at the end of the fight, and several witnesses observed that Peacock was bleeding soon after the confrontation with the defendant. The state also notes that the defendant admitted to using a knife during the fight. Further, the state claims, the substance of the conversation between Judway and the defendant did not touch on the details of the case or Judway‘s impending testimony and, thus, admission of the conversation would likely have little impact on the jury‘s determination on Judway‘s credibility. Finally, the state notes that the defendant presented testimony to the jury indicating that he had received messages from a Facebook account maintained by Judway and that, during closing arguments, the defendant used this testimony to attack Judway‘s credibility. It is the state‘s position that the introduction of the printout of the Facebook conversation between the defendant and Judway would, thus, have been very unlikely to have had a substantial impact on the jury‘s verdict.
We agree with the state. The defendant has not shown that the exclusion of the proffered evidence had a substantial impact on the jury‘s verdict. In addition, the state‘s case was strong. Numerous witnesses not only identified the defendant as the person who initiated the contact with Peacock, but also noticed after the contact that Peacock was bleeding. Further, the defendant admitted using a knife during the fight. Given that the defendant presented evidence in the form of his own testimony that he was contacted by Judway and argued during closing argument that her denial of authorship should be taken into account when judging Judway‘s credibility, it is doubtful that the admission of the printout would have had any additional impact. We conclude, therefore, that assuming, without deciding, that there was any evidentiary impropriety, the ruling was harmless.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
EVELEIGH, J.