STATE v. KOLAKOWSKI

Annotate this Case

Download PDF

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) ALLAN C. KOLAKOWSKI, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 11/29/2012 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0077 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-135142-001 The Honorable Jeanne M. Garcia, Judge AFFIRMED _________________________________________________________________ Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Division Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender Phoenix By Paul J. Prato, Deputy Public Defender Attorneys for Appellant __________________________________________________________________ O R O Z C O, Judge ¶1 Allan convictions for C. Kolakowski resisting arrest, (Defendant) a class appeals six threatening or intimidating, a class one misdemeanor. 1 felony, his and ¶2 Defendant s counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after a search arguable of question the of entire law appellate that was record, not he frivolous. found no However, counsel advises this Court that Defendant wishes us to address three specific issues, and we do so below. Defendant was also afforded leave to file an in propria persona supplemental brief; however, he did not. ¶3 Our obligation in this appeal is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona (2003), Revised 13-4031 Statutes (2010), (A.R.S.) -4033.A.1 and sections (2010). 12-120.21.A.1 Finding no reversible error, we affirm. FACTS AND PROCEDURAL HISTORY ¶4 On July 10, 2011, Defendant and his temporarily staying at his adult daughter s home. ex-wife were Defendant s ex-wife had encountered car trouble, and she and Defendant were discussing options to repair the car. Defendant argument became began to increasingly bother his loud During the discussion, and daughter. agitated, and After daughter the the interjected into the argument, Defendant began yelling at the 2 two women. if she Defendant approached his ex-wife and told her that said one word he would punch her in the jaw. The daughter called the police, who arrived within minutes. Upon their arrival, Phoenix Police Officers T. and K. spoke to the daughter about the argument and entered the house to speak with Defendant. ¶5 When the officers entered the living room, Defendant was sitting with his back to them. crying and talking on the phone. Defendant about his name, officers before complying. Defendant appeared to be When the officers questioned Defendant initially ignored the When asked to provide his Social Security number and date of birth, however, Defendant refused, insisting that the officers did not require that information and did not need Defendant tense. to be clenching at his the house. fists and The noticed officers observed that appeared he Based on these cues, the officers determined that they needed to detain Defendant. ¶6 Officer T. advised Defendant that he was under arrest and asked him to stand up. Defendant stood up, pulled his arms away from the officers, spun around to face Officer K., and raised his clenched fist. to the ground. the officers. Officers K. and T. pulled Defendant Defendant struggled to keep his arms away from Officer T. punched Defendant in the head and then struck him twice in the torso, at which point the officers were 3 able to handcuff Defendant. Phoenix Fire Department personnel treated Defendant for minor injuries at the scene and released him into the officers custody. ¶7 Defendant arrest, a class was six charged felony, with one one count count of of resisting threatening or intimidating his ex-wife, a class one misdemeanor and a domestic violence offense, and one count of threatening or intimidating Officer T. After a jury trial, Defendant was convicted of resisting arrest and threatening or intimidating his ex-wife. Defendant was sentenced to one year of supervised probation for each count, classified to the be served resisting concurrently. arrest conviction The as trial a court class six undesignated felony, giving Defendant the opportunity to have the felony reduced to a misdemeanor upon successful completion of probation. DISCUSSION ¶8 When reviewing the record, we view the evidence in the light most favorable to supporting the verdict. State v. Torres-Soto, 187 Ariz. 144, 145, 927 P.2d 804, 805 (App. 1996). ¶9 On appeal, Defendant contends that the trial court erred in refusing to allow: (1) Defendant to present evidence of his recent heart attack and heart surgery; (2) Defendant to testify regarding mental health issues; and (3) Defendant to testify that he was on blood thinners. 4 ¶10 At trial, Defendant requested and was granted a self- defense jury instruction on the count of resisting arrest. Defendant sought to admit evidence concerning his recent heart attack, heart condition, medication and mental health issues to demonstrate his state of mind in relation to his self-defense justification. The State argued that such evidence was unnecessary, unrelated to self-defense, and would inflame the passions of the additionally jury in attempted to a prejudicial introduce fashion. evidence of Defendant his blood thinner medication to explain the lack of bruising on his body in photographs incident. ¶11 taken by the police immediately after the The State also objected to this use of the evidence. The trial court agreed with the State s arguments, finding that the possible prejudice from the evidence greatly outweighed introducing its the probative evidence. value, In and barred reviewing Defendant a trial from court's decision to admit or exclude evidence, . . . we will not disturb the lower court's ruling absent an abuse of discretion. State v. Stotts, 144 Ariz. 72, 82, 695 P.2d 1110, 1120 (1985). Abuse of discretion occurs when the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice. State v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18 (1983). 5 ¶12 In the instant case, we cannot say that the trial court abused its discretion Defendant s medical evidence. in its decision to exclude It was reasonable for the trial court to conclude that the medical evidence was not sufficiently probative to justify its potentially prejudicial effect as it did not prove any element of the self-defense justification or disprove any element of the charged offenses. Additionally, the theoretical probative value of the blood thinner evidence in relation to the lack of bruising did not outweigh its prejudicial nature, and thus did not justify its admittance. The court properly weighed the evidence and came to a correct conclusion. As the trial court did not abuse its discretion, we affirm. CONCLUSION ¶13 We have read and considered counsel s brief and the entire record on appeal. We have carefully searched the entire appellate record for reversible error and have found none. Clark, 196 Ariz. at 541, ¶ 49, 2 P.3d at 100. See All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure and jury s findings of guilt. by counsel at all substantial evidence supported the Defendant was present and represented critical stages of the proceedings. At sentencing, Defendant and his counsel were given an opportunity to speak and the court imposed a legal sentence. 6 ¶14 Counsel s representation in obligations this appeal pertaining have ended. to Defendant s Counsel need do nothing more than inform Defendant of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission petition for review. to the Arizona Supreme Court by State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant shall have thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review. ¶15 For the foregoing reasons, Defendant s convictions and sentences are affirmed. /S/ ____________________________________ PATRICIA A. OROZCO, Judge CONCURRING: /S/ ___________________________________ MAURICE PORTLEY, Presiding Judge /S/ ___________________________________ RANDALL M. HOWE, Judge 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.