State v. Baptiste, 28718.

• Decision Date: 02 June 2009
• Docket Number: No. 28718.,28718.
• Citation: 970 A.2d 816,114 Conn.App. 750
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Oles J. BAPTISTE.

970 A.2d 816

114 Conn.App. 750

STATE of Connecticut v. Oles J. BAPTISTE.

No. 28718.

Appellate Court of Connecticut.

Argued December 4, 2008.

Decided June 2, 2009.

Annacarina Jacob, senior assistant public defender, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Michael L. Regan, state's attorney, and Stephen M. Carney, assistant state's attorney, for the appellee (state).

BISHOP, McLACHLAN and BERDON, Js.

McLACHLAN, J.

The defendant, Oles J. Baptiste, appeals from the judgment of conviction, rendered after a jury trial, on charges of one count of assault of a peace officer in violation of General Statutes § 53a-167c(a) and two counts of interfering with an officer in violation of General Statutes § 53a-167a(a). On appeal, the defendant claims that (1) the trial court inadequately instructed the jury on the essential elements of §§ 53a-167a and 53a-167c and, consequently, the instruction relieved the state of its burden of proving beyond a reasonable doubt every element set forth in the statutes, and (2) the court improperly permitted the state to question him about his fourteen prior arrests for interfering with a police officer and engaging police officers in pursuit. We affirm the judgment of the trial court.

The jury reasonably could have found the following relevant facts. On November 29, 2005, at approximately 3 p.m., Detectives James Tetreault¹ and Corey Poore, of the Norwich police department, set up surveillance for drug related activities outside the residence of Robert L'Homme, located at 28 8th Street in Norwich. During the surveillance, the officers observed a motor vehicle with three occupants stop at L'Homme's residence. The passenger in the front seat exited the vehicle, entered the residence and in less than one minute returned to the vehicle. The officers followed the vehicle for approximately 200 or 300 yards until it left the road. The officers approached the vehicle and spoke with the occupants, who admitted that they had purchased crack cocaine from a Jamaican male inside of L'Homme's residence. At that time, the officers decided to return to L'Homme's residence with another detective, Robert Blanch, to investigate the drug dealer.

The officers wore plain clothes, but they displayed their badges.² They knocked on the front door, and L'Homme allowed them inside. The officers encountered the defendant in a bedroom located in the back of the apartment. Poore, recognizing the defendant from numerous previous contacts and observing him trying to chew and swallow something, believed that he was trying to swallow crack cocaine. Poore also identified a female in the bedroom with the defendant as a known crack cocaine user and prostitute. Poore did not verbally identify himself as a police officer because he and the defendant knew each other well.³ Poore asked the defendant for consent to search him, and the defendant consented. Poore also informed the defendant that the police had information that he was dealing crack cocaine out of the apartment. The defendant did not respond. After Poore conducted a standard search and did not find contraband, he turned his attention to the female occupant in the room. Poore began speaking with the female, and the defendant tried to push his way out of the bedroom. Blanch and Poore tried to calm the defendant, but the defendant became more excited and aggravated. The defendant continued to push by the officers and encountered Tetreault in the kitchen area.

The officers continued to try to gain control of the situation by calming down the defendant so that they could continue their investigation. The defendant was combative and used his feet to push off of kitchen appliances. All three officers were engaged in a physical struggle to maintain control over the situation. Tetreault tried to prevent the defendant from pushing past him by grabbing the defendant's shoulders and then wrapped his arm around the defendant's shoulder and chest areas. The defendant bit Tetreault on his lower left bicep, causing pain and bruising. Tetreault yelled out and stated that the defendant had bitten him. At that time, the officers decided to arrest the defendant for assaulting Tetreault. The officers had to subdue the defendant physically by bringing him to the floor and handcuffing him.

The officers took the defendant outside the apartment where a uniformed officer, Steven Lamantini, had arrived with a marked patrol car. After the defendant was taken outside, he continued to kick, scream and act aggressively. The defendant was placed in the cruiser, where he tried to kick out the back window of the cruiser and damaged a rear dash light by slamming his head into it. Lamantini removed the defendant from the vehicle, and the defendant attempted to bite Lamantini.⁴ The defendant was not compliant with Lamantini, who ordered the defendant to stop resisting. Another officer arrived with pepper spray and employed it on the defendant. At that point, the defendant calmed down and was transported to the police station.

Tetreault was treated at William W. Backus Hospital, receiving inoculations, a precautionary baseline test for the human immunodeficiency virus and treatment and bandaging of his wound. The bite wound was approximately two inches in diameter and caused a scar. The defendant was charged with assaulting Tetreault and interfering with Poore and Lamantini.

I

The defendant first claims that by providing an "inadequate, misleading and incomplete" instruction regarding §§ 53a-167a and 53a-167c and failing to instruct the jury on General Statutes §§ 53a-22⁵ and 53a-23,⁶ the court deprived him of his due process rights to have the state prove every element of the offenses charged and to present a defense.⁷ Specifically, the defendant claims that (1) the court's failure to instruct on §§ 53a-22 and 53a-23 shifted, diluted or alleviated the state's burden of proving intent on the charges of assault on a peace officer and interfering, (2) the court's instructions, without including any instruction on § 53a-22 and the limits of force that may be used by police, did not fully and adequately instruct the jury on how to determine whether the police properly were acting within the performance of their duties, (3) the court's instructions were inadequate on whether the police were reasonably identifiable and (4) the court improperly held that the use of force to protect oneself from excessive force by police or from any force when the police were not reasonably identifiable is not a valid justification defense. We disagree.

The defendant testified as to the following facts.⁸ At approximately 3 p.m. on November 29, 2005, the defendant was in Norwich on business and saw L'Homme on the street.⁹ L'Homme waved to the defendant, and the defendant pulled his vehicle over to speak with him. The defendant asked L'Homme about the injuries to L'Homme's face, which looked like the result of a beating. L'Homme stated that he could not stay outside but invited the defendant into his apartment to talk. L'Homme and the defendant entered the apartment and proceeded to the bedroom where a woman was sitting. L'Homme introduced her as his girlfriend, gave the defendant beer and sat down next to the woman. The defendant sat down in a chair in front of L'Homme and the woman.

The defendant also testified that less than five minutes later there was a knock at the door that L'Homme got up to answer. A man the defendant did not know¹⁰ entered the room, looked at the defendant and asked, "what you got?" The man did not identify himself as a police officer. The man touched the defendant's pocket, did not find anything and continued to search the bedroom, including a jacket on the bed. The man started talking to the woman, and they began arguing. The defendant believed that the man was either a robber, the woman's boyfriend or the person who had assaulted L'Homme. The defendant did not consider that the man who patted him down might be a police officer.

Additionally, the defendant testified that he did not want to get involved and got up to find L'Homme in the living room. When the defendant tried to leave, someone started choking him from behind. The defendant testified that the man "must [have been] sneaking in the house somewhere" to get behind the defendant when he was walking toward the front door of the apartment. The defendant testified that he was scared for his life, so he pulled the man's arm off of his neck and bit the man's arm.¹¹ The first man came running into the living room, catching the defendant's legs, and the defendant slipped and slammed into the ground. A third man joined in the struggle, and the three men held the defendant's feet and arms and kicked him in the face and beat him.

The defendant testified that he first thought the men might be police officers when they handcuffed him. At that point, he kept calling out, "brother, brother, why do this to me, why doing this to me?" After they handcuffed him, the three officers continued to assault him, even after they had placed him in the back of a patrol car.

Finally, the defendant testified that at no point had the men identified themselves as police officers and that none of the men had police badges showing. As soon as he found out that they were police officers, he apologized and began begging.

The defendant submitted a request to charge¹² on the issue of self-defense. The request included instructions that (1) the evidence raised the issue of self-defense, (2) the state must disprove self-defense beyond a reasonable doubt, (3) reasonable physical force used when a person reasonably believes that such force is necessary is a legal defense to the use of force that would otherwise be criminal, and (4) set forth selected provisions of General Statutes § 53a-19.¹³ Before the court, the defendant stated that he had submitted one request to charge on self-defense...