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Pelowski v. State

The victim's statements regarding the defendant's previous convictions for aggravated assault were not authorized and were inherently prejudicial.

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In the first phase of a bifurcated trial, a jury found John Daniel Pelowski guilty of aggravated assault and possession of a firearm during the commission of a felony; and it found him not guilty of influencing a witness. Immediately thereafter, Pelowski was tried for possession of a firearm by a convicted felon, and the jury also found him guilty of that charge. Pelowski appeals from the conviction entered on the verdicts and the denial of his motion for new trial, claiming that the trial court erred in i allowing the jury to hear evidence, during the first phase of his bifurcated trial, that he had been previously convicted of aggravated assault, ii permitting the state’s expert witness to testify regarding matters outside of his purview, and iii improperly instructing the jury. For the reasons set forth below, we reverse. Construed most strongly in support of the verdicts,1 the evidence shows that Pelowski met the victim, John Zucker, at a rehabilitation center for alcoholics and that Zucker invited Pelowski to stay at his home and work at his cabinetry business after leaving the center. Pelowski suffered a relapse on the day he moved in with Zucker, and Zucker relapsed approximately two weeks later. The men began drinking and arguing on a regular basis, and the arguments escalated to the point that Zucker started carrying a revolver in the pocket of his pants.

On September 7, 2005, Zucker called 911 to report that Pelowski was threatening to kill him. The police officers who responded to the scene found that both Zucker and Pelowski were “very intoxicated,” and they arrested Zucker for disorderly conduct.

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