State v. Bree, No. 32646.

136 Conn.App. 1

43 A.3d 793

STATE of Connecticut

v.Jason BREE.

No. 32646.

Appellate Court of Connecticut.

Argued Dec. 1, 2011.

Decided June 5, 2012.

Katherine C. Essington, special public defender, for the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were Kevin Lawlor, state's attorney, and Charles Stango, senior assistant state's attorney, for the appellee (state).

BEACH, ALVORD and BORDEN, Js.

BEACH, J.

The defendant, Jason Bree, appeals from the judgments of conviction, rendered after a jury trial, of three counts of robbery in the first degree in violation of General Statutes § 53a–134, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–48 and 53a–134, larceny in the second degree in violation of General Statutes § 53a–123, conspiracy to commit larceny in the second degree in violation of §§ 53a–48 and 53a–123, larceny in the sixth degree in violation of General Statutes § 53a–125b and unlawful possession of a weapon in a motor vehicle in violation of General Statutes § 29–38. The defendant claims that the court erred in (1) granting the state's motion for joinder, (2) initially denying his motion to suppress certain testimony and later denying his motion for a mistrial after the court struck the previously admitted testimony in question, and (3) failing to give the jury an instruction regarding the special considerations applicable to accomplice testimony. We affirm the judgments of the trial court.

The defendant was accused of having committed crimes under three separate informations. Under docket number CR–08–0138376 (Shelton case), the defendant was charged with robbery in the first degree, conspiracy to commit robbery in the first degree, larceny in the second degree and conspiracy to commit larceny in the second degree. With respect to the Shelton case, the jury reasonably could have found the following facts. On September 27, 2008, at approximately 6:30 a.m., Nalinjumar Patel was working at the Wooster Street Market, a convenience store in Shelton, when Gabriel Santiago entered the store, asked for loose cigarettes and inquired in what town the store was located. When Patel told Santiago that he was in Shelton and informed him that the store did not sell loose cigarettes, Santiago left. Soon thereafter, the defendant and William Torres entered the store. The defendant jumped behind the counter and took approximately ninety cartons of cigarettes while Torres pointed a gun at Patel, demanding his wallet. During the course of the robbery, a regular customer, Anthony Carroll, entered the store, and exclaimed: “What the hell is going on?” Carroll immediately left the store and telephoned the police. The defendant, Torres and Santiago drove away in a sky blue Infiniti.

Under docket number CR–08–0137989 (Ansonia case), the defendant was charged with illegal possession of a weapon in a motor vehicle and larceny in the sixth degree. With respect to the Ansonia case, the jury reasonably could have found the following facts. On October 22, 2008, at approximately 9 a.m., Ahmed Hadi was working at the Aden Mini–Mart, a convenience store in Ansonia, when the defendant entered the store and asked for four packs of Newport cigarettes. After Hadi put them on the counter, the defendant asked for a pack of Marlboro cigarettes. When Hadi bent down to get the Marlboro cigarettes, the defendant took the four packs of Newport cigarettes from the counter, ran out of the store and drove away in a dark colored sports utility vehicle with a New York license plate. Hadi telephoned the police. While in the middle of the telephone call, Hadi stopped a police officer who was driving by and informed him of what had occurred and gave him a description of the defendant and the defendant's vehicle along with a partial license plate number. Shortly thereafter, another officer stopped a vehicle approximately one and one-half miles from the Aden Mini–Mart, which vehicle matched Hadi's description. The defendant was driving the vehicle, which he had rented. Inside the vehicle were four packs of Newport cigarettes and a knife.

Under docket number CR–08–0087395 (Woodbridge case), the defendant was charged with two counts of robbery in the first degree. With respect to the Woodbridge case, the jury reasonably could have found the following facts. On November 14, 2008, at approximately 7:30 p.m., while Vamsi Makdhal was working at the counter of a Lukoil convenience store in Woodbridge and his cousin, Imran Sarfani, was completing paperwork in a back office, the defendant entered the store. The defendant placed a knife next to Makdhal's stomach and said “give me the cash.” The defendant briefly held the knife at Makdhal's neck as well. Makdhal went over to the cash register and opened it, but was too frightened to give the defendant the cash, so the defendant took the cash himself. When the defendant asked for cartons of cigarettes, Makdhal informed him that the cartons were kept in the back office. The defendant took Makdhal to the back office. The defendant took a garbage bag from the office, emptied it and told Sarfani to put cartons of cigarettes in the bag. At some point, the defendant waved the knife at Sarfani. After Sarfani complied, the defendant ran out of the store. Makdhal ran out of the store and was able to see the model of the car that the defendant drove away in and a partial license plate number.

Following a jury trial, the defendant was convicted of all charges. The court sentenced him to fifteen years imprisonment with five years special parole. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court erred in granting the state's motion for joinder. We are not persuaded.

The following additional facts are relevant. Prior to trial, the state filed a revised motion for joinder, dated April 14, 2010, seeking to join the three cases for trial. The defendant filed an objection. On April 30, 2010, argument was held on the motion. The state argued that joinder was appropriate under the Boscarino¹ factors because the factual scenarios were easily distinguishable, the crimes were not brutal or shocking, the trial would last two to four days if the three cases were joined and some evidence was cross admissible. The defendant argued against joinder, reasoning that the three cases concerned factually similar but legally unconnected offenses, the evidence in the three cases was not cross admissible and joinder would result in prejudice to the defendant. In a memorandum of decision filed April 30, 2010, the court granted the state's motion for joinder. The court noted that, although it could not be certain prior to trial whether the evidence in the three cases would be cross admissible, the charges involved discrete and distinguishable factual scenarios that could be presented in an orderly fashion and appropriate jury instructions would be given throughout trial. The court did not expressly mention any presumption of joinder, nor did it specifically allocate a burden of proof as to the issue of joinder.

During the presentation of its case, the state withdrew its motion regarding a jury instruction on cross admissibility and stated that it would argue the elements of each case separately during summation. Also, at that time, the defendant reasserted his motion for severance. The court denied the motion. The court noted that it would repeatedly instruct the jury to consider the three cases independently.

“[W]hether a joint trial will be substantially prejudicial to the rights of the defendant ... means something more than that a joint trial will be less advantageous to the defendant.... [W]e have identified several factors that a trial court should consider.... These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant's part; and (3) the duration and complexity of the trial.... If any or all of these factors are present, a reviewing court must decide whether the trial court's jury instructions cured any prejudice that might have occurred.” (Internal quotation marks omitted.) State v. Ouellette, 110 Conn.App. 401, 406–407, 955 A.2d 582 (2008), aff'd, 295 Conn. 173, 989 A.2d 1048 (2010); see also State v. Boscarino, 204 Conn. 714, 722–24, 529 A.2d 1260 (1987); General Statutes § 54–57; Practice Book § 41–19.

In State v. Payne, 303 Conn. 538, 543–44, 34 A.3d 370 (2012), the Supreme Court abolished the previous blanket presumption in favor of joinder. See, e.g., State v. Davis, 286 Conn. 17, 942 A.2d 373 (2008). In Payne, our Supreme Court allocated the burden of persuasion differently in the trial context than in the appellate context. It stated that “[w]hen charges are set forth in separate informations, presumably because they are not of the same character, and the state has moved in the trial court to join the multiple informations for trial, the state bears the burden of proving that the defendant will not be substantially prejudiced by joinder pursuant to Practice Book § 41–19. The state may satisfy this burden by proving, by a preponderance of the evidence, either that the evidence in the case is cross admissible or that the defendant will not be unfairly prejudiced pursuant to the Boscarino factors.” ²State v. Payne, supra, at 549–50, 34 A.3d 370. Accordingly, the state bears the burden of persuasion in the trial court.

The court specifically retained, however, the traditional allocation of the burden of persuasion for the purpose of appeal: “Despite our reallocation of the burden when the trial court is faced with the question of joinder of cases for trial, the defendant's burden of proving error on appeal when we review the trial court's order of joinder remains the same. See State v. Ellis, 270 Conn. 337, 376, 852 A.2d...