State v. Petersen
| Citation | 196 Conn.App. 646,230 A.3d 696 |
| Decision Date | 31 March 2020 |
| Docket Number | AC 41907 |
| Parties | STATE of Connecticut v. Charles Nicholas PETERSEN |
| Court | Appellate Court of Connecticut |
Andrew S. Marcucci, assigned counsel, for the appellant (defendant).
Nancy L. Walker, assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Dave Clifton, assistant state's attorney, for the appellee (state).
Lavine, Prescott and Moll, Js.
The defendant, Charles Nicholas Petersen, appeals from the judgment of conviction, rendered after a jury trial, of failure to appear in the first degree in violation of General Statutes § 53a-172 (a) (1). The defendant claims that (1) there was insufficient evidence to prove beyond a reasonable doubt that he had wilfully failed to appear in court when the court forfeited his appearance bond, (2) the court improperly admitted evidence of the conduct in which he engaged after the court had forfeited his bond, (3) the court improperly permitted the state to call his former attorney as a witness because there was no compelling need for his testimony, and (4) the court improperly instructed the jury on the elements of failure to appear in the first degree. We affirm the judgment of the trial court.
The following procedural history and facts, as reasonably could have been found by the jury, are relevant to this appeal. The defendant was arrested on May 7, 2015, and charged with a felony offense.1 He was released from custody that same day in accordance with the terms of a nonsurety appearance bond, pursuant to which he promised to appear in court on the date and time specified on the bond, and ‘‘at any other place and time to which the charge(s) against me may be continued ....’’ Consistent with the language of the bond, the defendant also acknowledged that ‘‘if I fail to appear, in accordance with the foregoing promises ... I will be committing the crime of Failure to Appear’’ and be subject to arrest. Attorney William Watson filed an appearance on behalf of the defendant on March 29, 2017.
A jury trial with respect to the unclassified felony and the other charges was scheduled to commence at 10 a.m. on October 3, 2017, in the Superior Court in New Britain. The defendant knew that his presence in court was required at that time and place.
At 10 a.m. on October 3, 2017, the court, Hon. Edward J. Mullarkey , judge trial referee, the prosecutor, the clerk, and Watson were present in courtroom 4A, where jury selection was to be held. The defendant, however, was not. The court passed the matter to give Watson time to find the defendant. During that time, judicial marshals also searched the courthouse for the defendant. He still was not present at 10:25 a.m. Accordingly, the court ordered that the defendant's bond be forfeited and that he be rearrested. The court also ordered counsel and the clerk to remain available in case the defendant appeared later that day. Watson returned to his office across the street from the courthouse.
The defendant entered the courthouse at 10:34 a.m. After being unable to locate his attorney, the defendant briefly went outside the courthouse and contacted Watson by telephone. Watson told the defendant that they needed to be in the courthouse because the judge had stated that he would ‘‘deal with the outstanding rearrest orders ... and we would continue with jury selection’’ if the defendant appeared. Watson informed the defendant that they needed to address the defendant's outstanding failure to appear, and he also told the defendant what steps the court might take with respect to his failure to appear in court at 10 a.m. Watson testified that he intended to ask the court to vacate the rearrest order.
The defendant and Watson met and reentered the courthouse at approximately 10:45 a.m. They proceeded to courtroom 4A together, but it was locked. The clerk received word that Watson had found the defendant and that the defendant was in the courthouse.
She conveyed this information to the court. Upon learning this, the court ordered that the defendant be taken into custody. The court also ordered that jury selection proceed in a courtroom on the third floor that had direct access to the courthouse lockup facilities, which would be necessary if the defendant were taken into custody. The court ordered the clerk to inform counsel of this change. Watson, in turn, informed the defendant that he was required to appear in the courtroom on the third floor.
Court was opened in a third floor courtroom to continue the proceedings. The prosecutor, the clerk, and Watson appeared in that courtroom, but the defendant did not. Surveillance footage later showed that the defendant had left the courthouse. The court indicated that its prior rearrest order would remain in effect. Per the court's instructions, counsel and the clerk remained on standby until approximately noon, in case the defendant appeared again. Although the defendant had entered the courthouse at 10:34 a.m. on October 3, 2017, at no time did he appear in a courtroom before a judge as required. Jury selection did not proceed, and an arrest warrant charging the defendant for failure to appear in the first degree in violation of § 53a-172 was later issued. The defendant waited approximately one month before he surrendered to law enforcement, during which time he claimed he needed to ‘‘put [his] affairs in order ....’’
The defendant subsequently was arraigned on the charge of failure to appear in the first degree for ‘‘wilfully fail[ing] to appear in court when legally called according to the terms of his bail bond ....’’ The state also charged the defendant in a part B information with being a subsequent offender in possession of a controlled substance and with committing an offense while on release.
Following the grant of a motion to suppress filed by the defendant, the court dismissed all of the charges pending against the defendant except for the charge of failure to appear in the first degree and the charge of committing an offense while on release. The defendant pleaded not guilty to the remaining charges and elected to be tried by a jury with respect to the charge of failure to appear in the first degree and by the court with respect to the charge in the part B information.
Trial commenced on March 8, 2018. After the state rested, the court, Graham , J. , denied the defendant's motion for a judgment of acquittal. The defendant testified that on October 3, 2017, he awoke at 7 a.m. and was ready for court at approximately 8 a.m. He admitted that he had to be in court for jury selection that day, so he planned to arrive at court at 9:30 a.m. The defendant testified that, the night before, he had arranged for his friend, Jason Nadeau, to drive him to court because the defendant did not own a vehicle and his license had been suspended. The defendant lived 1.6 miles from the courthouse, and he testified that the drive was approximately fifteen minutes long. He also testified that he briskly could have walked that distance in thirty minutes.
The defendant testified that he tried to confirm his ride with Nadeau at approximately 9:20 a.m. on October 3, 2017, but did not receive a response from him. He began looking for another ride to court. According to the defendant, he contacted his sister at approximately 9:25 or 9:30 a.m., then contacted his friend Shawn, and then Amanda Russo. The defendant called Todd Russo (Russo) at approximately 9:30 a.m.; Russo returned that call at approximately 9:45 a.m. Russo agreed to drive the defendant to court and arrived at the defendant's house at approximately 10 a.m.
The defendant testified that when he arrived at the courthouse and contacted Watson by telephone, Watson told him that ’ He also testified that Watson did not tell him to go to a different courtroom. Instead, he claimed that Watson told him that there was nothing more he could do.
Russo also testified on behalf of the defendant. He had known the defendant for the defendant's entire life. At approximately 9:45 a.m. on the morning of October 3, 2017, he received a call from the defendant, who asked for a ride to court. Following that call, Russo got dressed and went to the defendant's house. It took approximately fifteen to twenty minutes to get there. After picking the defendant up, Russo drove straight to the courthouse. Russo testified that they arrived at the courthouse ‘‘later than [10 a.m.] but not by much’’ and that he watched the defendant enter the courthouse. During closing arguments to the jury, the state argued that, as demonstrated by the defendant's continuing course of conduct throughout the day of October 3, 2017, the defendant wilfully had failed to appear in court on that date for trial on his pending felony charge. The state contended that the defendant's intent was to prevent the commencement of his trial, and that even though he had gone to the courthouse that morning, he never intended to appear in the courtroom for the commencement of trial. The state argued that the jury should consider his flight from the courthouse as consciousness of guilt evidence from which it could infer that his failure to appear in court for jury selection that day was wilful.
In response, the defendant argued to the jury, through counsel, that his conduct in failing to appear in the courtroom at 10 a.m. on October 3, 2017, was not wilful. The defendant asserted that if he truly had not intended to appear in court that day, he never would have bothered coming to the courthouse at all. With respect to his decision to leave the courthouse after he had met with Watson, the defendant argued that he knew that he likely was to be taken into custody and that he became ‘‘understandably upset and frustrated about the fact that no one seemed to care that he had done his best to get to court on time that day ....’’ Finally, the...
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