State v. Kantorowski

144 Conn.App. 477

72 A.3d 1228

STATE of Connecticut

v.Kyle KANTOROWSKI.

No. 33971.

Appellate Court of Connecticut.

Argued March 14, 2013.

Decided July 30, 2013.

Wayne Jekot, assistant public defender, with whom was James B. Streeto, assistant public defender, for the appellant (defendant).

Susan C. Marks, supervisory assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Karen Diebolt, assistant state's attorney, for the appellee (state).

GRUENDEL, SHELDON and DUPONT, Js.

GRUENDEL, J.

The defendant, Kyle Kantorowski, appeals from the judgments of conviction, rendered after a jury trial, in docket number CR–10–391835, of violating a restraining order in violation of General Statutes § 53a–223b, harassment in the second degree in violation of General Statutes § 53a–183 (a)(3) and threatening in the second degree in violation of General Statutes § 53a–62 (a)(2), and, in docket number CR–11–398041, of violating a restraining order in violation of § 53a–223b and harassment in the second degree in violation of § 53a–183 (a)(3). On appeal, the defendant claims that (1) the trial court improperly permitted the state to introduce evidence of prior uncharged misconduct and (2) he was deprived of a fair trial as a result of prosecutorial impropriety. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. In June, 2010, the victim, Melissa Thompson, began receiving threatening telephone calls and text messages from the defendant, a former boyfriend with whom she had lived years earlier. In those messages, the defendant told the victim that “he was going to cut [her] head from limb to limb and hang it from his mirror. That he was going to run [her] father over and [her] boyfriend over with a lawn mower and ... he said he was going to stake [her] heart out and feed it to [her] boyfriend. He said he was going to kill [her].” As a result, the victim filed an application for relief from abuse on June 30, 2010, that named the defendant as the respondent. In that application, the victim swore that the defendant was a person with whom she previously had a dating relationship and that she had “been subjected to a continuous threat of present physical pain or physical injury” by him. The victim thus requested “that the court order ex parte (immediate) relief becauseI believe there is an immediate and present physical danger to me....” The court granted the application that same day. Its restraining order required, inter alia, that the defendant “not assault, threaten, abuse, harass, follow, interfere with, or stalk” the victim and that he “not contact the [victim] in any manner, including by written, electronic or telephone contact, and do not contact the [victim's] home, workplace or others with whom the contact would be likely to cause annoyance or alarm to the [victim].” A hearing on the matter was scheduled for July 14, 2010.

Hours after the protective order issued, the victim's automobile was vandalized in the parking lot of the PetSmart establishment located at 475 Bank Street in Waterbury, where the victim was employed. Specifically, someone carved the word “cunt” into the door of the vehicle on the driver's side and slashed the tires.¹

Because the defendant's calls in June, 2010, were made to her cell phone and her parents' home, where she resided, the victim and her family “had to change [those telephone] numbers and ... list[ed] [them] as private.” At that point, the defendant began calling the victim at work. As the victim testified, “[i]t was like an everyday thing. We'd get calls, hang-ups, calls, hang-ups, threatening calls saying ... tell [the victim] thanks for changing her phone number. That I was a dead girl. I was going to get a lot worse than what I did. And a whole bunch of other stuff.... He threatened me so many times.... [My coworkers] actually stopped letting me answer the phones because I was just getting really upset about it....” Jacqueline Marie Bowen, a coworker at PetSmart, testified at trial that the defendant's telephone calls to the store began “at the end of June” and occurred “[a]ll the time. I mean, the whole time, the whole day ... while I was there. And there were times when, if [the victim] wasn't there, the calls would continue. And I would just say she's not here. And then ... [i]t would stop.” Another coworker, Valerie Vargas, likewise testified that the defendant's calls to the store started “[t]oward the end of June” and contained “derogatory, threatening messages.”

On July 6, 2010, Vargas received one such telephone call at PetSmart. The caller asked for the victim by name and then identified himself as “Kyle.” As Vargas testified: “He said, can you put [the victim], that C–U–N–T, on the phone? ... I didn't give [her] the phone, obviously. Then, he said, can you tell her that I'm following Chris, her little boyfriend? He's by exit 17 and he's about to get into a really bad car accident.... I just didn't say anything. I said, have a good day, it's PetSmart, and I hung up the phone.” The victim contacted the Waterbury Police Department and Officer Adrian Sanchez responded. The victim informed Sanchez that the defendant, a former boyfriend, had been constantly calling her workplace. Although Sanchez confirmed that the victim had “a full no-contact order against” the defendant, Sanchez could not locate an address or contact information for him. As a result, Sanchez left his report open and forwarded it to the detective bureau.

On July 11, 2010, the victim answered the telephone at PetSmart and recognized the defendant's voice. As the victim recounted at trial, the defendant “told me he was going to kill me.” The victim hung up the telephone and contacted the police. Officer Kimberly Binette responded to the call at the PetSmart store and spoke to the victim, whom she described as “crying, shaking, very upset, nervous.” Binette verified that the protective order was in place and thereafter arrested the defendant.

The defendant subsequently was charged with the aforementioned offenses under separate docket numbers pertaining to the July 6 and July 11, 2010 incidents. The cases were consolidated and a jury trial followed, at the conclusion of which the jury found the defendant guilty on all counts. The court rendered judgments accordingly and sentenced the defendant to a total effective term of five years incarceration, execution suspended after one year, and three years of probation subject to various special conditions. The court further imposed a standing criminal protective order to protect the victim from the defendant.² This appeal followed.

I

The defendant first claims that the court abused its discretion in admitting two instances of prior uncharged misconduct. We disagree.

The following additional facts are relevant to this claim. Prior to trial, the state filed a general notice of uncharged misconduct, informing the defendant of its intention to rely on prior uncharged misconduct evidence. In response, the defendant filed motions in limine to preclude introduction of, inter alia, evidence of uncharged misconduct on the part of the defendant. The defendant also filed a motion to require more specific notice of the uncharged misconduct evidence. The state then filed a notice of intent to use four specific instances of uncharged misconduct, only two of which are at issue in this appeal. The state's notice stated in relevant part that it sought to introduce evidence that (1) “[o]n or about April 2006 ... the defendant choked the [victim] and caused her hand to be broken in the struggle, in Greenville, North Carolina,” and (2) “[o]n or about September 2006 ... the defendant broke the [victim's] nose by slamming her face against the floor numerous times, in Greenville, North Carolina.”

Following a lengthy hearing on the matter that involved argument from both parties and an offer of proof as to the anticipated testimony of the victim, the court ruled that the uncharged evidence was admissible for trial. Specifically, it noted that “with respect to the harassment and the threatening charge ... [the uncharged misconduct] could be seen by the jury as ... bearing on [the defendant's] intent to harass her. That ... he knows and she knows what their prior relationship has been, that this is not a friendly phone call ... it's not a phone call made to make her happy but it's a phone call made to harass her, to threaten her. In light of their ... previous interactions and that ... [the] conversations need to be understood in that context of their entire relationship.” As a result, the court found that “the probative value of that evidence is fairly high because it bears directly upon the defendant's intent in making the alleged phone calls ... and his motive for doing so.” The court further found that any potential prejudice could be alleviated by proper cautionary instructions to the jury. Finally, the court emphasized that it would permit the state very little latitude with respect to the uncharged misconduct, stating: “I think this is important for you ... to understand ... I am not going to allow very much detail at all regarding these incidents. I will allow [the state] to ask a couple [of] questions about them. Certainly, the [victim] can testify that there was an altercation between the two of them, that she sustained physical injuries. The injuries can be briefly described, but we're not going into police involvement, we're not going into any of the other facts relating to those incidents. We're going to sanitize them as much as possible.”

At trial, the victim testified that she met the defendant in 2005, while she was in high school and began dating him during her senior year. She was sixteen or seventeen years old at that time. The victim testified that she moved in with the defendant in Greenville, North Carolina, in February, 2006, where the defendant's parents and ten month old...