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State v. Papineau

Court of Appeals of Connecticut

June 19, 2018


          Argued January 29, 2018

         Procedural History

         Substitute information charging the defendant with the crimes of assault in the first degree, conspiracy to commit assault in the first degree and hindering prosecution in the second degree, brought to the Superior Court in the judicial district of Windham, geographical area number eleven, and tried to the jury before Swords, J.; thereafter, the court granted the defendant's motion for a judgment of acquittal as to the charge of hindering prosecution in the second degree; verdict and judgment of guilty of assault in the first degree and conspiracy to commit assault in the first degree, from which the defendant appealed to this court. Affirmed.

          James B. Streeto, senior assistant public defender, with whom was Edward D. Melillo, certified legal intern, for the appellant (defendant).

          Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Anne F. Mahoney, state's attorney, and Mark A. Stabile, supervisory assistant state's attorney, for the appellee (state).

          Keller, Bright and Norcott, Js.


          KELLER, J.

         The defendant, Michael J. Papineau, appeals from the judgment of conviction, rendered following a jury trial, of assault in the first degree with a dangerous instrument in violation of General Statutes § 53a-59 (a) (1), and conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-48.[1] The defendant claims (1) that the trial court erroneously precluded his half brother from testifying about a phone conversation that transpired between the defendant and the defendant's former wife; (2) that the court erroneously precluded him from presenting testimony from the defendant's mother that, prior to the events at issue, he planned to travel to Massachusetts; (3) the court erroneously admitted a printout of text messages that the state failed to authenticate; and (4) the evidence was insufficient to support his conviction of conspiracy to commit assault in the first degree. 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. During the afternoon of December 22, 2014, the defendant and his half brother, Joshua Whittington, [2] were walking along railroad tracks in Danielson, at which time they met up with the victim, Jason Tworzydlo. For a period of time prior to the events at issue, the victim had lived with the defendant. As the three men walked together, they discussed where they would sleep that night. The defendant and Whittington indicated to the victim that they needed a place to spend the night, and the victim suggested that they stay in an abandoned textile mill that was located on Maple Street in Danielson where he recently had been staying. The defendant and Whittington agreed to stay there that night.

         At approximately 3 p.m., the victim left the company of the defendant and Whittington so that he could attend a counseling session. Meanwhile, the defendant and Whittington explored the mill without him.

         At approximately 6 p.m., the three men reunited and, by maneuvering around a fence that surrounded the mill and crawling through a window, they gained access to the inside of the mill. The men carried some of their possessions with them. Whittington was carrying a metal baseball bat. It was very dark inside of the mill; there were no working lights, and only a few light sources illuminated the mill's interior through openings in the walls. The victim used a flashlight. The victim showed the defendant and Whittington a dry location in the mill where he had slept previously. The defendant and Whittington, however, expressed their opinion that the location did not provide ideal sleeping conditions for all of them, so they led the victim to another location inside of the mill, in an area of the mill that used to house a gym. The defendant and Whittington said that this location, which they had discovered earlier that day, was more suitable to their needs, and the men agreed to spend the night there.

         Shortly thereafter, the victim turned away from the defendant and Whittington, at which time Whittington struck him in the head with his baseball bat.[3] He did so with such force that the victim felt the bat ‘‘bounce off [his] skull'' and ‘‘heard the ringing of metal . . . .'' Whittington struck the victim several additional times. When the victim asked what was happening, he was told that he had stolen money ‘‘from them'' on a prior occasion. During someor all of the attack, the defendant used the light on a cell phone to illuminate the victim.

         The victim attempted to flee from the defendant and Whittington, but they pushed him into another part of the mill. The victim was stabbed with a sharp object. Ultimately, the defendant and Whittington pushed the victim into a large hole in the floor. As they stood over the victim, he played dead for a brief time. He saw the light of a flashlight from above and overheard the defendant and Whittington as they discussed the amount of blood he had lost, questioned whether he was still alive and breathing, and expressed their belief that he would be dead by the next morning. Whittington stated that he wanted to throw a brick at the victim's head to ensure that he was dead, but he did not do so. The defendant and Whittington covered the victim's body with debris, including tires and tables, before they abandoned the victim in the mill.

         When he no longer heard voices or footsteps, the victim, fearing for his survival, crawled out of the hole into which he had been pushed, exited the mill, and made his way to a nearby residence. Barely able to stand, the victim knocked on the front door to summon help. The occupant of the residence, Michael Pepe, found the victim in a dire condition; the victim's body and clothing were soaked in blood. Pepe rendered assistance by wrapping the victim in bedsheets and called 911.

         Police and emergency medical personnel responded to the scene. The victim, who was in shock, sustained a variety of significant physical injuries, some of which were life-threatening. The victim's injuries included, but were not limited to, stab wounds, deformities to his face and jaw, a hematoma under his skull, a hematoma on his neck, a collapsed internal jugular vein, multiple bone fractures, and a severe neck laceration. Initially, the defendant was transported to Day Kimball Hospital in Putnam. In light of the severity of the victim's numerous injuries and, in particular, a life-threatening neck wound, Joel Stephen Bogner, anemergency department physician, determined that he should be transported to the trauma center at UMass Memorial Medical Center in Worcester, Massachusetts, for further treatment. With further treatment, the victim survived the ordeal.

         Immediately following the incident, the victim told the police that he was attacked by unknown assailants outside of the mill. The following day, on December 23, 2014, the victim identified the defendant and Whittington as his assailants, and indicated to the police that he was afraid that they would retaliate against him. During their investigation, the police spoke with the defendant, who acknowledged having spent time with the victim on the day of the assault but denied that he or Whittington had played any role in the victim's assault. During the police investigation, Whittington also denied any involvement in the victim's assault. When asked by the police where he kept his clothing, the defendant responded that most of his and Whittington's clothes had been stolen. After meeting with the police on December 23, 2014, the defendant had a telephone conversation with his former wife, Chelsea Papineau. During the conversation, he stated that he and Whittington had assaulted the victim in the mill, but that he and Whittington believed that they had ‘‘cleared their names'' with the police. This telephone conversation took place while the defendant was traveling with Whittington. On December 25, 2014, the defendant sent Chelsea Papineau a text message in which he asked for the telephone number of a friend of his, Corby Julian, who lived in Ohio. During a telephone conversation with Chelsea Papineau later that day, the defendant indicated that he intended to leave the state for a five year period because, to his understanding, that was how long it would take for the statute of limitations for the crime of attempted murder to expire. He stated that he wanted Julian's telephone number because he wanted to find out if Julian would permit him to stay with him. After Chelsea Papineau complied with the defendant's request, he instructed her to delete her text messages.

         Several days later, on January 2, 2015, the police executed arrest warrants on the defendant and Whittington in Falmouth, Massachusetts. At the time of his arrest, the defendant was wearing a pair of jeans that was contaminated with the victim's blood. Additional facts will be set forth as necessary.


         First, the defendant claims that the court erroneously precluded Whittington's testimony about a phone conversation that had transpired between the defendant and Chelsea Papineau. We disagree.

         The following additional facts provide context for the defendant's claim. During the state's case-in-chief, Chelsea Papineau testified that, on December 23, 2014, she had planned for the defendant, who is her former husband and the father of her two children, to visit with his children at his mother's house. At or about 3 p.m., the defendant sent Chelsea Papineau a text mes sage in which he stated that he was unable to visit with his children. Chelsea Papineau testified that, at or about 5:30 p.m., she called the defendant to make other visiting arrangements. The following examination by the prosecutor followed:

‘‘Q. And what was his response?
‘‘A. He said that he wouldn't be able to see them; he didn't know when he'd be able to see them again. He and his brother were on their way to his brother's father's house in Glastonbury, Connecticut.
‘‘Q. What else did you talk about?
‘‘A. He asked me if the police had spoken to me yet, and I told him no.
‘‘Q. What did he say to you then?
‘‘A. After I responded with no, he told me he needed to tell me something. He didn't know when he'd be able to see us again.
‘‘Q. Exactly what did he say?
‘‘A. He told me that the previous night him and his brother had met [the victim] . . . and that they went to the mill and just lost it. He told me that they had beat him over the head and that they had left him in the mill.
‘‘Q. What was your response?
‘‘A. I really didn't know how to respond at first. I asked [about the identity of the victim]. And he told me Jason Tworzydlo.
‘‘Q. Did you know [the victim]?
‘‘A. I did.
‘‘Q. How did you know him?
‘‘A. He lived with us for a short time.
‘‘Q. And did he indicate that he was part of this assault?
‘‘A. Yes.
‘‘Q. How did he indicate that?
‘‘A. He just kept saying we.
‘‘Q. At any point did he say Josh and I?
‘‘A. Yes.
‘‘Q. Was there any discussion about the defendant . . . having spoken to the police that day?
‘‘A. Yes. He said that he and, I believe, him and his brother had spoken with the police and that they believed that they had cleared their names.
‘‘Q. Did . . . he express any other concerns . . . ?
‘‘A. He said that they were leaving anyway.''

         Thereafter, Chelsea Papineau testified that, on the following day, she received text messages from the defendant in which he asked her for the telephone number of a friend, Julian, who lived in Ohio, because he needed to talk with him. She testified that this led to another telephone conversation with the defendant. Chelsea Papineau testified that ‘‘[h]e told me that in the past few months [Julian] had offered him a place to stay if he ever needed a place to stay. And he wanted to get a hold of [Julian] to see if that was still available for him.'' Chelsea Papineau testified that the defendant expressed his belief that he would be charged with attempted murder and that he could evade the charge if he stayed away from Connecticut for five years. Chelsea Papineau testified that after she provided the defendant with Julian's telephone number, he instructed her to delete her text messages. Instead, she provided them to the police.

         During the defendant's case-in-chief, Whittington testified in relevant part that on the afternoon of December 23, 2014, he and the defendant were traveling by car to New London. Whittington testified that he overheard a telephone conversation between the defendant and Chelsea Papineau. The present claim is based on two rulings made by the court during Whittington's testimony concerning that telephone conversation.

         First, defense counsel asked Whittington, ‘‘do you recall what they said-what he said?'' The prosecutor objected to the inquiry on the ground that it called for hearsay. Defense counsel stated that the inquiry ‘‘goes to impeach [Chelsea] Papineau'' and that it ‘‘goes to [the defendant's] state of mind, as well.'' The court sustained the objection.

         Second, defense counsel asked Whittington if the defendant said anything to Chelsea Papineau that ‘‘implicated him . . . in attacking [the victim]?'' The prosecutor objected on the basis of the hearsay ground previously set forth, and the court sustained the objection.

         The following examination of Whittington by defense counsel then occurred:

‘‘Q. Okay. How were . . . around that time period . . . [Chelsea] Papineau and [the defendant] getting along?
‘‘A. They were not getting along at all. She was actually trying to get him to sign over his rights to his kids to her.
‘‘Q. And were they communicating very well? . . .
‘‘A. No. They were fighting a lot. They had just gotten divorced and . . . she gets mad a lot. They don't get along even when they were together very much.
‘‘Q. All right. She . . . didn't like [the defendant] at all, did she?
‘‘A. No.
‘‘Q. Was there ever any discussion on . . . the drive down between you and anybody about you and [the defendant] going to Ohio?
‘‘A. No, there was not.
‘‘Q. And . . . in the phone conversation that [the defendant] had, did any of it bother you or concern you?
‘‘A. No, it did not.
‘‘Q. Did it seem just like a normal conversation about what to do with children?
‘‘A. For the most part, yes.''

         Additionally, Whittington testified that, on December 23, 2014, he and the defendant were traveling to New London to meet with Whittington's father. He testified that, in accordance with plans made prior to the events at issue, he and the defendant traveled ...

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