Argued
March 12, 2017
Procedural
History
Two
part substitute information charging the defendant, in the
first part, with the crimes of assault of public safety
personnel, threatening in the second degree and criminal
trespass in the first degree, and, in the second part, with
having committed an offense while on release, brought to the
Superior Court in the judicial district of New Britain,
geographical area number fifteen, where the first part of the
information was tried to the jury before Keegan, J.;
verdict of guilty of assault of public safety personnel and
criminal trespass in the first degree; thereafter, the second
part of the information was tried to the jury; verdict and
judgment of guilty, from which the defendant appealed to this
court. Affirmed.
S. Max
Simmons, assigned counsel, for the appellant (defendant).
Linda
F. Currie-Zeffiro, assistant state's attorney, with whom,
on the brief, were Brian W. Preleski, state's attorney,
and David Clifton, assistant state's attorney, for the
appellee (state).
Alvord, Prescott and Eveleigh, Js.
OPINION
ALVORD, J.
The
defendant, Jacek Tarasiuk, appeals from the judgment of
conviction, rendered following a jury trial, of one count of
assault of public safety personnel in violation of General
Statutes § 53a-167c (a) (1) and one count of criminal
trespass in the first degree in violation of General Statutes
§ 53a-107 (a) (1).[1] On appeal, the defendant claims that
the trial court abused its discretion by admitting into
evidence the defendant's May 24, 2006 unnamed felony
conviction for the limited purpose of impeaching the
defendant's credibility. We affirm the judgment of the
trial court.
The
jury reasonably could have found the following facts. On
August 8, 2016, the defendant had been drinking alcohol in
the parking lot of the Pulaski Democratic Club (club), a
social, members only club. Raymond Szajkowski, the president
of the club, confronted the defendant and told him that
‘‘he's trespassing and that he's not
wanted on the property.''
On
September 22, 2016, the day at issue in this case, the
defendant was unemployed and residing at the Friendship
Center, a shelter in the City of New Britain. The defendant
met his friend, Skawinski, [2] and the two began drinking
between 8 and 8:30 a.m.[3] The two had spent the entire day
drinking together, splitting a half gallon of vodka. By 5 or
6 p.m., the two had finished drinking the vodka and had
ventured out to purchase more alcohol. The two walked down
Grove Street and, eventually, arrived in front of the club.
Posted on club property were ‘‘no
trespassing'' signs, written in both English and
Polish.[4]
Once in
front of the club, the defendant made a
‘‘bee-line'' toward Szajkowski as he
exited his vehicle in the club parking lot. The defendant
first asked Szajkowski why he was ‘‘harassing
[him] and not allowing him to be on the property . . .
.'' Szajkowski informed the defendant that he was not
welcome on the club's property and asked him to leave.
The defendant appeared drunk to Szajkowski. The defendant,
however, stated that he had engaged Szajkowski after
‘‘[Szajkowski] tried [to] drive over [him] in the
parking lot.'' The defendant called the police to
report the incident and awaited their arrival. After waiting
some time, Szajkowski also contacted the police to verify
whether the defendant had indeed made a complaint. Szajkowski
was told that the defendant had made a complaint and that
officers were on the way.
Two
members of the New Britain Police Department, Officers Jakub
Lonczak and Coleman, [5] responded to the reported disturbance
fifteen to twenty minutes later. The defendant was in the
club parking lot when the officers arrived. Officer Lonczak
observed the defendant to be intoxicated. The defendant gave
his account to Officer Lonczak but was told to
‘‘let it go, get out of here, go.'' The
defendant left the property.
While
Officer Lonczak was with the defendant, Officer Coleman spoke
with Szajkowski. Szajkowski told Officer Coleman that the
defendant and Skawinski ‘‘approached his car,
began yelling at him, inquiring why they were kicked out of
the establishment earlier that year . . . .''
Szajkowski made a trespassing complaint. After interviewing
the defendant and Szajkowski, Officers Lonczak and Coleman
determined that probable cause existed to arrest the
defendant and Skawinski for trespassing.
By the
time Officers Lonczak and Coleman determined that there was
probable cause to arrest the defendant and Skawinski, they
were across the street. The officers returned to their police
cruiser, proceeded after the defendant and Skawinski in the
cruiser, exited the vehicle and advised both individuals that
they were under arrest for trespassing. The defendant was
handcuffed without resistance by Officer Lonczak.
Simultaneously, Officer Coleman was handcuffing Skawinski,
who was not complying. After the defendant was handcuffed and
seated on the ground, Officer Lonczak assisted Officer
Coleman. At this time, the defendant began screaming
profanities at the officers and claiming ‘‘police
brutality.'' The officers immediately sought to place
the defendant in the police cruiser to avoid ‘‘a
bigger disturbance.''
The
defendant resisted being placed in the cruiser. The officers
each took one of the defendant's legs to lift him into
the cruiser. The defendant, with his rear on the seat, braced
his back against the Plexiglas divider within the
cruiser.[6] The defendant ‘‘began
thrashing and kicking with his feet.'' The defendant
kicked Officer Lonczak in the center of his chest trauma
plate, causing him to take a few steps back. Officer Coleman
struck the defendant's face to effectuate compliance. The
defendant continued to thrash about and kick, eventually
kicking Officer Lonczak's left thumb, jamming it. Officer
Lonczak struck the defendant in his right torso, and the
defendant became compliant. The officers were able to fully
seat the defendant in the police cruiser and close the door.
The officers transported the defendant to the police station.
During the drive to the station, the defendant screamed
profanities at the officers.[7]
On June
28, 2017, the defendant was charged in a substitute long form
information with one count of assault of public safety
personnel in violation of General Statutes § 53a-167c
(a) (1), one count of threatening in the second degree in
violation of General Statutes § 53a-62 (a) (2) and one
count of criminal trespass in the first degree in violation
of General Statutes § 53a-107 (a) (1). In a part B
information, the defendant was charged with committing a
crime while on release in violation of General Statutes
§ 53a-40b. The defendant pleaded not guilty to all
counts in both the substitute long form information and the
part B information, and elected a jury trial.
At the
defendant's trial on June 27, 2017, the defendant elected
to testify in his own defense. Prior to his testimony, the
state indicated its intention to offer evidence of the
defendant's prior felony conviction from May 24, 2006,
for criminal violation of a restraining order, [8] in order to
impeach the defendant's credibility.[9] The sentence
imposed for that conviction was three years of incarceration,
execution suspended after nine months, followed by five years
of probation. The state acknowledged that felony convictions
that are more than ten years old are generally not admissible
but argued that the rule is not hard and fast and that
‘‘we're only a couple of months beyond it at
this point once you consider the nine month jail
sentence.'' The defendant objected to the admission
of the evidence, arguing ‘‘it's not relevant
to this case and it's beyond the ten year
period.''
The
court admitted the prior felony conviction into evidence for
purposes of impeachment. The court stated that
‘‘the ten year rule is not a bright line but
it's a suggestion. So based on all the information that
I've heard on the timing of it, the court feels that it
is relevant, it is a felony conviction, however, it must be
unnamed and in accordance with [State v. Geyer, 194
Conn. 1, 16, 480 A.2d 489 (1984)].''
During
his direct examination, the defendant testified that he had
previously been convicted of a felony. On cross-examination,
when the state asked about the prior felony conviction, the
defendant responded, unsolicited, ‘‘[y]es,
violation of protection of my wife . . . .'' During
closing argument, the state highlighted the defendant's
prior felony conviction as a factor the jury could consider
in assessing his credibility during its deliberations:
‘‘Again, consider the defendant's unique
position in this case. I mean, first of all, he's a
convicted felon. That's something you can assess when
you're determining how credible he is.'' The
defendant did not request, and the court did not provide, a
contemporaneous limiting instruction to the jury regarding
their consideration of the defendant's prior felony
conviction during either direct examination or
cross-examination. The court did provide a limiting
instruction in its charge to the jury.[10]
On June
29, 2017, the jury found the defendant guilty of assault of
public safety personnel and criminal trespass in the first
degree. The jury acquitted the defendant of threatening in
the second degree. After a separate jury trial on the part B
information, the jury found that the defendant committed the
crimes of which he had just been convicted while on release.
The jury's finding that he had committed crimes while on
release subjected him to a sentence enhancement pursuant to
General Statutes § 53a-40b.
On July
10, 2017, the defendant filed a motion for a new trial
pursuant to Practice Book § 42-53 (a), claiming that the
court erred in admitting into evidence the defendant's
prior felony conviction for impeachment purposes. The
defendant argued that the ‘‘prior felony
conviction, which was more than [ten] years old . . . was
more prejudicial than probative.'' The court denied
that motion in a memorandum of decision dated October 2,
2017. The court stated that under § 6-7 of the
Connecticut Code of Evidence, remoteness is ‘‘one
of the factors to be weighed by the trial court in exercising
its discretion whether to admit a particular conviction for
impeachment purposes.'' The court stated that
‘‘[t]he age of a conviction goes to its weight
and not its admissibility, '' citing State v.
Robington, 137 Conn. 140, 144-45, 75 A.2d 394 (1950),
and that ‘‘[o]ur Supreme Court has never ruled
that a felony conviction greater than ten years is an
absolute bar to admissibility, '' citing State v.
Skakel, 276 Conn. 633, 738-42, 888 A.2d 985, cert.
denied, 549 U.S. 1030, 127 S.Ct. 578, 166 L.Ed.2d 428 (2006).
The ...