State v. Kukucka

181 Conn.App. 329

186 A.3d 1171

STATE of Connecticut

v.Dale Hollister KUKUCKA

AC 39039

Appellate Court of Connecticut.

Argued October 19, 2017

Officially released April 24, 2018

John L. Cordani, Jr., with whom was Damian K. Gunningsmith, for the appellant (defendant).

Denise B. Smoker, senior assistant state's attorney, with whom were Russell Zentner, senior assistant state's attorney, and, on the brief, Peter A. McShane, state's attorney, for the appellee (state).

Lavine, Sheldon and Elgo, Js.

ELGO, J.

The defendant, Dale Kukucka, appeals from the judgment of conviction, rendered after a jury trial, of strangulation in the first degree in violation of General Statutes § 53a–64aa (a) (1) (B), sexual assault in the third degree in violation of General Statutes § 53a–72a (a) (1), and assault in the third degree in violation of General Statutes § 53a–61 (a) (1).¹ On appeal, the defendant claims that the trial court improperly (1) failed to inquire into a potential conflict of interest between him and his defense counsel due to the existence of a grievance filed against defense counsel by the defendant and (2) denied his motion to suppress the in-court and out-of-court identifications of him made by a witness to the assault. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, are relevant to our resolution of the defendant's appeal. On October 19, 2013, the victim² attended a fife and drum corps muster at the Grange Hall in East Haddam with her friend, Jamie Murray (Jamie), and Jamie's family. The event, which was hosted by the Moodus Drum and Fife Corps, featured a parade of approximately twenty fife and drum corps and a beer tent in the afternoon and a bonfire in the evening. Many members of the participating fife and drum corps set up tents and brought recreational vehicles (RVs) to stay overnight on site. At the event, the victim and Erin Murray, Jamie's sister, were serving beer and cider in the beer tent. The defendant, a member of one of the participating fife and drum corps, visited the beer tent multiple times, both alone and with his date, Melody Baker. At approximately 5 p.m., when the defendant attempted to get another beverage from the beer tent after the beverage supply had been exhausted, Patrick Murray (Murray), Jamie's father and an event organizer, told the defendant that they were finished serving drinks. Later, however, the defendant entered the beer tent again. On that occasion, while Murray was cleaning up the beer tent, Murray's daughter, Erin Murray, called for him from the counter of the beer tent and Murray looked in her direction. When Murray looked up and saw the defendant, he firmly told him, once again, that they were out of drinks. Soon thereafter, when Murray saw the defendant approaching the beer tent a third time, he yelled at the defendant: "We're done. It's gone. Go."

Later in the evening, the victim and Jamie walked to the bonfire at the event. While sitting at the bonfire, the victim and Jamie talked with the defendant and Baker. At approximately 11:45 p.m., the victim went to the women's bathroom in the Grange Hall by herself. The victim was washing her hands when someone came up behind her and attacked her, grabbing her neck with his right hand and covering her mouth and part of her nose with his left hand. In the course of resisting her attacker, the victim broke a window with her left elbow and banged on the wall of the bathroom. The victim was not able to remove her assailant's hands from her mouth or throat and ultimately lost consciousness. The victim was not able to identify her assailant following the incident.

At the same time, Erin McNamara, an event host, and Murray agreed that it was a good time to do a walkthrough of the Grange Hall and close it up for the evening. While McNamara and Murray were walking through the building, they heard grunting and thumping sounds along with sounds of "glass crunching or breaking" coming from the women's bathroom at the front of the building. McNamara proceeded to open the door to the bathroom, when she saw the victim lying motionless on the floor and the defendant straddling her. The victim's shirt had been pushed up to just under her breasts and the defendant's hands were under her shirt. McNamara locked eyes with the defendant and ordered him to leave the bathroom. The defendant then moved out of the bathroom. McNamara went directly to the victim, assessed her condition, and recognized that she was Jamie's friend. As the defendant walked out of the bathroom, Murray attempted to take him to the floor, but was unsuccessful. The defendant punched Murray in the face multiple times while they were fighting in the hallway outside the bathroom. During the altercation, the defendant attempted to enter the bathroom once again but McNamara ordered him out. Murray and the defendant resumed fighting after the defendant left the bathroom the second time. During the fight, the defendant hit the crash bar on the main door, pushed it open and ran away.

McNamara called 911 and was asked by the dispatcher to provide a description of the assailant. McNamara stated that she distinctly saw that he was Caucasian, approximately six feet tall and weighing approximately 220 pounds, who had dark hair and was wearing dark pants and a Kelly green fleece jacket. The police and an ambulance arrived at the scene shortly thereafter. Once the victim regained consciousness, she left the scene in the ambulance for medical treatment.

Murray gave a statement to the police about what had happened and provided a description of the assailant to Philip Soucy, a trooper with the state police. Approximately ten minutes after Soucy had taken Murray's statement, Baker approached Soucy after she had spoken with people in the area. Baker told Soucy that she knew a man named Dale who people were saying had sexually assaulted a woman. Using her cell phone, Baker showed Soucy a photograph of the defendant from the defendant's Facebook³ page. With Baker's permission, Soucy took her cell phone and showed the Facebook photograph to Murray.⁴ Soucy asked Murray if he recognized anybody in the photograph. Murray responded that he recognized the individual, saying "that's the guy I took off [the victim]."

The defendant subsequently was arrested and charged with strangulation in the first degree, sexual assault in the third degree, unlawful restraint in the first degree, assault in the second degree and assault in the third degree. The defendant was tried to a jury, which found him guilty on all counts. The court rendered judgment on the jury's verdict; see footnote 1 of this opinion; sentencing him to a total effective sentence of fifteen years imprisonment, execution suspended after ten years. This appeal followed.

I

The defendant first claims that the trial court failed to inquire about a potential conflict of interest between him and his appointed legal counsel, James McKay. Specifically, the defendant argues that the court erred in failing to inquire into the nature of a grievance complaint that he had filed against McKay. We disagree.

The following additional facts are relevant to our resolution of the defendant's claim. Approximately six months prior to trial, although he was represented by McKay, the defendant filed a self-represented motion for a speedy trial. The motion was heard in court on April 7, 2015. At that time, the defendant claimed that he was disappointed with McKay's representation and asked that a special public defender be appointed for him by the court in lieu of McKay. The court inquired briefly as to the basis of the defendant's dissatisfaction and ultimately continued the case for two days "so that [the defendant] could have an opportunity to prepare a statement in which he would specifically identify the nature of his dissatisfaction, and point specifically to shortcomings, as he sees it anyway, in ... McKay's representation."

On April 9, 2015, the defendant appeared before the court and provided the court with "concrete examples of why [he was] dissatisfied." First, the defendant expressed his belief that McKay and the prosecution had "teamed up" against him, as certain items of evidence had not been disclosed to counsel by the prosecution. Second, the defendant stated that McKay had "misinformed and manipulated" him into submitting to a "psychological evaluation that [McKay] knew, well and good ... could be used by the prosecution as discovery and outright [lied] to me about the process of this motion he filed." Third, the defendant claimed that the delay in trial had resulted in actual and substantial prejudice against him. Lastly, the defendant listed fifteen "improprieties" by McKay, including his alleged failures to file motions, to seek pretrial discovery, to raise issues of insufficient evidence, to obtain evidence by discovery, to obtain critical documents, to obtain medical records, to properly advise him, to suppress photographs, to pursue his speedy trial claim, to conduct basic legal research, to visit the crime scene, and to interview the victim. The court addressed each of the defendant's claims, explaining McKay's role in the case to the defendant in great detail. McKay also addressed the court at length, explaining that he was ready to continue representing the defendant zealously.

Describing the court's response as a "wonderful representation of conflict resolution," the defendant withdrew his motion for the appointment of new counsel. At the same time, the defendant stated to the court that he had filed a grievance against McKay.⁵ In response to that statement, McKay stated that the grievance had not been brought to his attention before and that he would be required to respond to it. The court then asked the defendant if he presently intended to pursue the claims in the grievance. The defendant responded, "that's something I'm gonna have to go home and pray and think about, but the way it's...