STATE v. DONALD GALLO, SC 18992

Judicial District of Stamford-Norwalk

Criminal; Whether Admission of Protective Order Issued Against Defendant as Impeachment Evidence was Harmless Error.  The defendant was convicted of assault of public safety personnel and interfering with an officer stemming from an October 2008 altercation with police officers following a domestic dispute at the home where the defendant lived with his girlfriend and her son.  At trial, the state questioned the defendant about the terms of a protective order that issued against him following the incident leading to his arrest.  The protective order prohibited the defendant from all contact with his girlfriend and her son and prohibited him from entering the home.  The defendant was legally permitted to return to the home after the order was modified in April 2009.  The trial court ruled that the protective order was admissible to impeach the defendant’s testimony on direct examination that he had lived in the home where the incident occurred for approximately fifteen to sixteen years.  The defendant explained on cross-examination that his earlier testimony concerning the amount of time that he lived in the home referred to the time period prior to the October 2008 incident.  On appeal, the Appellate Court (135 Conn. App. 438) agreed with the defendant that the trial court improperly permitted the state to impeach his testimony by means of the protective order but found that the error was harmless.  The Appellate Court noted that the evidence did not relate to any essential element of the crimes of which the defendant was convicted, that the state did not base its case on the improperly admitted evidence, and that the trial court did not restrict the defendant's ability to present additional evidence to rebut the improperly admitted evidence.  The Appellate Court further noted that the record did not reflect that the evidence of the protective order had any detrimental impact on the jury's deliberations, especially given the fact that the jury found the defendant not guilty of charges of assault and risk of injury to a child involving allegations that he engaged in violent conduct in the home toward his girlfriend's son.  The Appellate Court additionally noted that the state presented strong evidence against the defendant, including the testimony of multiple eyewitnesses, and concluded that it was not likely that the improperly admitted evidence was damaging to the defense.  Upon the grant of certification to appeal from the decision, the Supreme Court will decide whether the Appellate Court properly determined that the admission of the protective order issued against the defendant, as impeachment evidence, constituted harmless error.