People v. Szadziewicz

• Decision Date: 01 April 2008
• Docket Number: No. B191683.,B191683.
• Citation: 74 Cal.Rptr.3d 416,161 Cal.App.4th 823
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Henry SZADZIEWICZ, Defendant and Appellant.

74 Cal.Rptr.3d 416

161 Cal.App.4th 823

The PEOPLE, Plaintiff and Respondent, v. Henry SZADZIEWICZ, Defendant and Appellant.

No. B191683.

Court of Appeal, Second District, Division 8.

April 1, 2008.

Seymour I. Amster, Van Nuys, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

EGERTON, J.^*

INTRODUCTION

A jury convicted appellant Henry Szadziewicz of attempted murder, aggravated mayhem, and first degree burglary. He raises a number of issues on appeal. First, he contends there was insufficient evidence of specific intent to support his aggravated mayhem conviction. Second, he argues the court had a duty to instruct sua sponte on unreasonable self-defense. That instruction would have amounted to instructions on attempted voluntary manslaughter, assault, and battery as lesser included offenses. Third, he claims his trial attorney was ineffective because he (1) did not ask for instructions on these lesser offenses; (2) referred to Szadziewicz in his closing as "strange" and "paranoid"; and (3) did not call his daughter Fay as a trial witness* Fourth, Szadziewicz contends the prosecutor committed misconduct by arguing matters outside the record. Fifth, he claims the trial court violated his confrontation rights by limiting cross-examination about a witness's prior conviction. Sixth and finally, he asserts that his sentence is unconstitutionally disproportional.

We conclude, first, the victim's testimony that Szadziewicz repeatedly slashed his face while holding him down provided substantial evidence supporting the aggravated mayhem conviction. Second, the trial court had no duty to instruct on unreasonable self-defense. Szadziewicz burglarized the victim's hotel room while the victim was asleep, so he created the circumstances that justified the victim's lawful physical resistance. Moreover, the unreasonable self-defense theory does not apply to aggravated mayhem.

Third, for the same reasons, defense counsel's failure to request instruction on unreasonable self-defense (that is, attempted voluntary manslaughter, assault, and battery) did not constitute ineffective assistance. Read in context, defense counsel's references to Szadziewicz as strange and paranoid were reasonable attempts to counter the prosecutor's arguments and to help jurors accept Szadziewicz's testimony as credible. Defense counsel therefore did not provide ineffective assistance by using these words. The record establishes neither why defense counsel did not produce Fay Szadziewicz to testify nor what her testimony would have been. It thus is insufficient to establish either deficient performance by counsel or resulting prejudice.

Fourth, the prosecutor did not argue matters outside the record by referring to Szadziewicz's "strange world" and "strange life." Her argument compared Szadziewicz's behavior and his own proffered defense with the way most people behave. Fifth, the trial court did not violate the Confrontation Clause by preventing inquiry into the circumstances surrounding a witness's prior conviction. Sixth and finally, Szadziewicz's concurrent life sentences are not unconstitutionally disproportionate to his very serious offenses of aggravated mayhem and willful, deliberate, premeditated attempted murder.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On January 12, 2005, Mark Rossmeisl was asleep in his room on the eighth floor of the Frontier Hotel in downtown Los Angeles. The lock on his door was broken; he had put a gallon of water against the door to keep it closed. Sometime between 8:00 and 8:30 a.m., Rossmeisl began to wake up to see appellant Henry Szadziewicz, crouching, approaching his bed. Rossmeisl did not know who Szadziewicz was. The next moment, Rossmeisl found a knife in his face. Szadziewicz put one hand on Rossmeisl's chest. With the other hand, he began to slice Rossmeisl's face with the knife. Szadziewicz slashed Rossmeisl twice while he was lying on his back on the bed with Szadziewicz right on top of him. He sliced Rossmeisl's face from the temple toward the nose, then back toward the ear. Next, Szadziewicz sliced from above Rossmeisl's eyebrow down through his nostril, splitting his nose wide open.

Rossmeisl struggled with Szadziewicz and tried to push him off, but Szadziewicz overpowered him.¹ Szadziewicz was strong and seemed focused. Szadziewicz cut each side of Rossmeisl's neck. At one point, Szadziewicz had Rossmeisl face down on the bed. Rossmeisl was bleeding profusely. He began to lose consciousness.

Rossmeisl gathered his strength and managed to get out from under Szadziewicz. He stood up and the two men faced each other. Szadziewicz stabbed Rossmeisl on the hand. Rossmeisl tried to get out of the room, but Szadziewicz held the door closed with his foot. Rossmeisl was yelling for his life. The two men struggled throughout the room and into the bathroom. Szadziewicz slashed at Rossmeisl and cut his left hip. Rossmeisl bit Szadziewicz. Rossmeisl—who was barefoot— stomped on Szadziewicz's foot. Rossmeisl finally managed to get out the door. He ran down the hall in his underwear and took the elevator to the lobby to get help.

Clifford Davis lived in the room next to Rossmeisl. He did not know Rossmeisl. Davis heard moaning, then scuffling and banging sounds. Then he heard a man yell, "Help! He's killing me!" and "Help! I'm being killed!" more than 12 times. Davis called 9-1-1. He saw the door to Rossmeisl's room open, then slam shut. Soon after, Davis saw a man come out of the room; his entire face and head were covered in blood. The man, yelling, ran toward the elevators.

A security guard downstairs saw Rossmeisl come out of the elevator drenched in blood with lacerations all over his face. Rossmeisl's face was unrecognizable; he was slit everywhere and mumbling. Rossmeisl collapsed in the lobby. When police arrived, Rossmeisl was sitting in a chair; paramedics were attending to him. Blood had formed a pool about a foot in diameter below his chair.

The mattress in Rossmeisl's room was soaked with blood. There was blood all over the walls. A bloody trail led from the room to the elevator. The elevator also was covered with blood.

About three minutes after Rossmeisl fled from his room to the elevator, Davis saw Szadziewicz come out of Rossmeisl's room and walk calmly down the hall to the stairwell. Szadziewicz appeared not to have any cuts. Davis gave the security guard a description of Szadziewicz. When Szadziewicz emerged from the stairwell downstairs, the security guard stopped him. Szadziewicz had a black plastic garbage bag with him. In the bag were latex gloves drenched in blood, a bloody jacket, lighter fluid, matches, a screwdriver, a rag, and a box cutter or knife with human flesh still on it. The guard also found a small knife in Szadziewicz's pocket.

Rossmeisl sustained many cuts on his face and neck. He had cuts of three to four centimeters each on his left cheek, on his left jaw, behind one ear, on his nose, and from his eyebrow down toward his nose. A flap of his nose was coming off. Two six-centimeter cuts from his temple toward his nose and from his nose toward his ear intersected, forming a flap of skin on his cheek. An officer who arrived at the scene could see exposed muscle on Rossmeisl's face. Rossmeisl also had six-centimeter cuts on the left and right side of his neck, near the carotid artery and jugular vein. In addition, Rossmeisl had a two-inch cut on his left hip, cuts on both sides of his chest, and a one-inch-deep stab wound to his right hand. Emergency room personnel rushed Rossmeisl to surgery. He received 110-120 stitches. He was in the hospital for four days before he left against medical advice. Because of damage to a cranial nerve, Rossmeisl suffered some paralysis to the left side of his face. At the time of trial, more than seven months later, Rossmeisl still had numbness in his neck.

Rossmeisl had been dating Szadziewicz's 24-year-old daughter Fay. Rossmeisl was 22 years older than Fay. He was an unemployed actor who occasionally was homeless. Fay had told her father that Rossmeisl had told her he was "into some light street drugs." Szadziewicz claimed that he went to Rossmeisl's room hoping to find drugs that he could show to his daughter to prove that Rossmeisl used drugs. Szadziewicz testified that Fay said she would break up with Rossmeisl if she had proof he used drugs. Szadziewicz did not explain why Fay needed "proof given that Rossmeisl had admitted drug use to her. After Rossmeisl fled from the room, Szadziewicz did not look for or recover any drugs. Instead, he "aborted his mission" because of "the altercation."

The jury convicted Szadziewicz of attempted murder, aggravated mayhem, and first degree burglary. It found that the attempted murder was willful, deliberate, and premeditated. The jury also found that Szadziewicz personally used a deadly weapon and inflicted great bodily injury.

Szadziewicz moved for a new trial and to reduce his sentence, arguing that life imprisonment would be constitutionally disproportionate. The trial court denied both motions. It sentenced Szadziewicz to two concurrent terms of life in prison, plus four years.

DISCUSSION

1. Substantial evidence supports the aggravated mayhem conviction.

Szadziewicz argues the evidence did not show that he had the specific intent required for aggravated mayhem. We review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138, 17 Cal.Rptr.2d 375, 847 P.2d 55.)

Aggravated mayhem requires proof the defendant specifically intended to maim—to cause a permanent disability or disfigurement. (...