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State v. Tarasiuk

Court of Appeals of Connecticut

August 27, 2019

STATE OF CONNECTICUT
v.
JACEK TARASIUK

          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 ...


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