State v. Baptiste

STATE OF CONNECTICUT v. OLES J. BAPTISTE

AC 28718

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Officially released February 21, 2012

Argued November 10, 2011

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(Appeal from Superior Court, judicial district of New London, geographical area number twenty-one, Strackbein, J.)

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'sattorney, and Stephen M. Carney, assistant state's attorney, for the appellee (state).

Opinion

BISHOP, J. The defendant was convicted of assault of a peace officer in violation of General Statutes § 53a-167c and two counts of interfering with an officer in violation of General Statutes § 53a-167a. On remand from our Supreme Court,¹ the defendant claims that the trial court erred in failing to instruct the jury that it had to consider the reasonableness of the force used by the police in determining whether the officer was acting ''in the performance of his duties'' at the time of the assault, thereby violating the defendant's due process rights to present a defense and to have the state prove every element of the crime charged.² Accordingly, the defendant seeks reversal of the judgment and an order remanding the case to the trial court for a new trial.³ We reverse the judgment of the trial court.

The relevant factual and procedural history was set forth in our previous opinion as follows. ''The jury reasonably could have found the following relevant facts. On November 29, 2005, at approximately 3 p.m., Detectives James Tetreault⁴ 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.⁵ 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.⁶ 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 speakingwith 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 [himself] 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.⁷ 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.'' State v. Baptiste, 114 Conn. App. 750, 752-54, 970 A.2d 816 (2009), rev'd, 302 Conn. 46, 23 A.3d 1233 (2011).

As set forth in our previous opinion, 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 thedefendant 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.'' Id., 755-57....