January 29, 2018
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
B. Streeto, senior assistant public defender, with whom was
Edward D. Melillo, certified legal intern, for the appellant
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.
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. 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.
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,  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.
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.
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.
thereafter, the victim turned away from the defendant and
Whittington, at which time Whittington struck him in the head
with his baseball bat. 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 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.
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
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.
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.
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
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
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
‘‘Q. How did he indicate that?
‘‘A. He just kept saying we.
‘‘Q. At any point did he say Josh and I?
‘‘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
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.
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
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
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.
following examination of Whittington by defense counsel then
‘‘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?
‘‘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.''
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 ...