State v. Torwich
| Decision Date | 13 September 1995 |
| Docket Number | No. 13522,13522 |
| Citation | 38 Conn.App. 306,661 A.2d 113 |
| Parties | STATE of Connecticut v. Mark TORWICH. |
| Court | Connecticut Court of Appeals |
Mary Miller Haselkamp, Asst. Public Defender, with whom, on the brief, was Chris Lacadie, Legal Intern, for appellant (defendant).
Leon F. Dalbec, Jr., Asst. State's Atty., with whom, on the brief, were Mary M. Galvin, State's Atty., and Francis J. McQuade, Supervisory Asst. State's Atty., for appellee (State).
Before FOTI, LANDAU and SCHALLER, JJ.
The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault of a peace officer in violation of General Statutes § 53a-167c(a)(1), 1 breach of the peace in violation of General Statutes § 53a-181(a)(1), 2 and threatening in violation of General Statutes § 53a-62(a)(1)(2). 3 The defendant claims that (1) the trial court improperly instructed the jury that it could consider constitutionally protected speech in determining whether he was guilty of the charge of breach of the peace, (2) the state presented insufficient evidence of "intent to terrorize another" to support the defendant's conviction for threatening, and (3) the state presented insufficient evidence that the officer was "acting in the performance of his duties" to support the defendant's conviction for assault on a peace officer. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. At about midnight on August 8, 1993, Officer Gerald Narowski of the Derby police department saw the defendant drive a van through a red light at a high rate of speed at an intersection on Route 34. Narowski turned on the siren and overhead lights of his police car and pursued the van. The defendant turned into a gas station and parked in front of the pumps. Narowski parked his police car behind the van. While the officer was calling police headquarters, the defendant got out of the van and ran toward the police car yelling, demanding to be told why he had been stopped.
While in his police car, Narowski asked the defendant for his driver's license, the van's registration, and the van's insurance card. The defendant gave the officer his driver's license and informed the officer that the van did not belong to him and that the van's registration had expired. The officer told the defendant to return to the van. The defendant returned to the van. The defendant, however, approached the police car several times asking the officer not to give him a ticket. Every time the defendant returned to the police car, the officer told him to go back to the van and to stay there. During one of these occasions, as the defendant was returning to the van, the officer heard him say "motherfucker," and "what a prick."
Officer Paul Satkowski of the Derby police department arrived to give Narowski assistance. The defendant asked Satkowski if he could do anything for him. Satkowski answered, "No." Satkowski then asked Narowski if he needed any assistance. Narowski told Satkowski that he did not anticipate any problems and that he did not require any assistance and Satkowski left the area to respond to another call.
Narowski issued the defendant a ticket for driving through a red light and for operating an unregistered motor vehicle. Narowski called for a tow truck for the unregistered van and, when the tow truck arrived, the officer instructed the defendant that he had to get out of the van before it could be towed. The defendant became upset and started to swear at the officer. The defendant's voice attracted the attention of the customers at the gas station. When Narowski asked the defendant to sign the ticket, he refused and continued yelling. At that point, the officer arrested the defendant for breach of the peace, handcuffed him and placed him in the backseat of the police car.
While Narowski was questioning the passenger in the van, he heard a thumping noise coming from the police car and saw the defendant kicking the window of the rear door causing the window to bend out. Narowski removed the defendant from the car to search him for weapons. As Narowski was searching him, the defendant told the officer, "I'm going to get you for this" and "I'm going to kick your ass." At this point, Narowski informed the defendant that he was being charged with criminal mischief for damaging the police car. On hearing that the defendant responded: The defendant lunged at Narowski, hitting the officer in the left eye with his head, causing the eye to swell. As the two men were struggling, the defendant fell on top of the officer, injuring his arm. While he was struggling with the defendant, Narowski used the radio in his back pocket to call for assistance. Narowski and the defendant got on their feet. Narowski, thinking that the defendant was about to charge, sprayed him with pepper mace. After the defendant was sprayed, he continued to threaten Narowski, telling him that he was going to kill him and that he was going to kick his ass. Narowski put the defendant back in the police car. Shortly afterward, three police officers arrived to assist Narowski. They saw that Narowski's clothes were disordered, his face red, and he was breathing heavily. During this time, the defendant continued to yell and kick the window of the police car.
As the defendant was being taken to the police station, he threatened Narowski several times, stating that he would find out where the officer lived and kill him. At the station, the defendant told Narowski that he would find out where he lived, burn down his house and kill him.
After leaving the station, Narowski went to the hospital to get treatment for the injuries to his arm and eye. He was still receiving treatment for his arm at the time of the trial.
The defendant claims that the trial court's jury instruction on the breach of the peace charge was improper because the jury was instructed that it could consider constitutionally protected speech as a basis for the conviction. We do not agree. 4 The defendant concedes that this claim was not preserved at trial. Therefore, the defendant may prevail on this claim only if it satisfies the requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).
Under Golding, a defendant can prevail on an unpreserved claim of constitutional error "only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of a constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id., at 239-40, 567 A.2d 823. State v. Walker, 33 Conn.App. 763, 769, 638 A.2d 1084, cert. denied, 229 Conn. 913, 642 A.2d 1209 (1994).
We will review the defendant's claim as the record is adequate and the alleged violation is of constitutional magnitude because it involves the right to free speech. U.S. Const., amend. I; Conn. Const., art. I, §§ 4, 5, 14. We conclude, however, that the defendant has failed to show that the alleged violation clearly exists and clearly deprived him of a fair trial.
The defendant claims that although he was granted his requested "fighting words" instruction as part of the charge, the jury was permitted to consider protected speech in finding him guilty on the breach of the peace charge. The defendant bases his claim on the portion of the trial court's charge that instructed,
In considering the defendant's claim, we first note that State v. Hester, 28 Conn.App. 469, 472, 612 A.2d 120 (1992); State v. Jenkins, 29 Conn.App. 262, 272-73, 614 A.2d 1249, cert. denied, 224 Conn. 916, 617 A.2d 171 (1992).
We find that the trial court carefully instructed the jury as to the significance of "fighting words" in its consideration of the breach of the peace charge. The court stressed that "[i]f the words that Mr. Torwich which you find to be proven allegedly [spoke] in this case did not cross that point, then his words would be protected from criminal prosecution and you couldn't find him guilty based on those words of the breach of peace statute." The court presented a proper definition of "fighting words" to the jury, and then stressed again, ...
To continue reading
Request your trial
-
State v. Crudup
...See State v. Borrelli, 227 Conn. 153, 629 A.2d 1105 (1993); State v. Wayne, 60 Conn. App. 761, 760 A.2d 1265 (2000); State v. Torwich, 38 Conn. App. 306, 661 A.2d 113, cert. denied, 235 Conn. 905, 665 A.2d 906 8. The defendant was sentenced to three years imprisonment on the conviction of t......
-
State v. Thompson, 35134.
...be drawn is properly a question for the jury to decide.” (Citations omitted; internal quotation marks omitted.) State v. Torwich, 38 Conn.App. 306, 314, 661 A.2d 113, cert. denied, 235 Conn. 905, 665 A.2d 906 (1995). “[I]ntent may be inferred from the events leading up to, and immediately f......
-
State v. Casanova, (AC 17372)
...is acting within that compass or is engaging in a personal frolic of his own." (Internal quotation marks omitted.) State v. Torwich, 38 Conn. App. 306, 315-16, 661 A.2d 113, cert. denied, 235 Conn. 905, 665 A.2d 906 (1995). Palmieri had been dispatched to the Casanova home to assist with th......
-
State v. Hopkins
...The defendant's argument as to the intent of his words was a question of fact uniquely for the jury to resolve. State v. Torwich, 38 Conn. App. 306, 314, 661 A.2d 113, cert. denied, 235 Conn. 905, 665 A.2d 906 (1995). "Intent may be, and usually is, inferred from conduct.... and whether suc......