State v. Crosby

Page 371

654 A.2d 371

36 Conn.App. 805

STATE of Connecticut v. Rodney CROSBY.

No. 13384.

Appellate Court of Connecticut.

Argued Nov. 8, 1994.

Decided Feb. 14, 1995.

Certification Denied March 23, 1995.

Susan M. Cormier, Hartford, with whom, on the brief, was Michael S. Taylor, certified legal intern, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Jonathan C. Benedict, Asst. State's Atty., for appellee (State).

Before EDWARD Y. O'CONNELL, FOTI and LANDAU, JJ.

FOTI, Judge.

The defendant appeals ¹ from judgments of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a) and carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37(b) under one information, and assault in the second degree in violation of General Statutes § 53a-60 (a) under a separate information. ² The defendant was sentenced to a total effective sentence of seventy years. ³

On appeal, the defendant asserts that the trial court improperly (1) consolidated three informations for trial, (2) instructed the jury as to what evidence to consider in each case and as to the presumption of innocence, (3) excluded impeachment testimony, and (4) admitted identification evidence. The defendant also alleges that the evidence was insufficient to support the guilty verdict of carrying a pistol without a permit. We affirm the judgments of the trial court.

The jury could reasonably have found the following facts. On May 10, 1991, at approximately 3 a.m., the defendant went to the home of the victim, Kyong Flemming, at 1414 Stratford Avenue in Bridgeport. At the time, the victim and her two young daughters were at home. The defendant entered and threatened to "blow the victim's brains out." He fired one shot in the house and then proceeded to follow the victim outside where several more shots were fired. The victim called her ten year old daughter's name, and when the child came outside she found her mother lying on the ground. The victim died of multiple gunshot wounds to the chest, abdomen and upper and lower extremities. The defendant gave a written statement later that evening and confessed to shooting the victim four or five times with his nine millimeter gun. The casings found at the scene and the bullets that killed the victim came from a nine millimeter gun.

At approximately 5 a.m. that same morning, Laurie Thompson observed the defendant outside her house on Sixth Street near Stratford Avenue in Bridgeport, holding a man at gunpoint and asking about the girls inside. Thompson was in the house with her friend Lisa Campfield. They ran out the back door but encountered the defendant about two blocks away near Pettiway's Variety Store. The defendant shot Thompson in the leg with a handgun. A nine millimeter shell casing was found at the scene. The defendant also confessed to this shooting.

The third incident, which resulted in a declaration of mistrial after the jury failed to return a verdict on the charges of sexual assault and unlawful restraint, allegedly took place that same morning, on Union Avenue, after the murder. The alleged victim, D, had heard the gunshots and later had seen the body being moved from the scene of the crime. Thereafter, while she was walking home, she was allegedly restrained at gunpoint and sexually assaulted by the defendant who told her that he knew he was going to jail and that he had "shot two bitches."

I

The defendant first claims that the trial court improperly granted the state's motion to consolidate the three informations thereby raising the "potential for prejudice ... greater than that which existed in Boscarino and Horne." ⁴

General Statutes § 54-57 ⁵ and Practice Book § 829 ⁶ permit a defendant to be tried jointly on charges arising from separate cases. "When a defendant stands accused of two or more similar offenses, they may be joined at trial if they are based on related acts that evince a common scheme, intent or motive. State v. Greene, 209 Conn. 458, 464-65, 551 A.2d 1231 (1988). The question of joinder or severance rests in the sound discretion of the trial court. State v. Boscarino, 204 Conn. 714, 720, 529 A.2d 1260 (1987); State v. Carpenter, 19 Conn.App. 48, 62, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989). The defendant bears the heavy burden of showing that a denial of severance resulted in substantial injustice beyond the curative power of jury instructions. State v. Herring, 210 Conn. 78, 95, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 579 (1989). Whether a joint trial will be substantially prejudicial to the rights of the defendant means something more than that it will be less advantageous to the defendant. State v. Bell, 188 Conn. 406, 411, 450 A.2d 356 (1982)." State v. Rose, 29 Conn.App. 421, 429-30, 615 A.2d 1058, cert. denied, 224 Conn. 923, 618 A.2d 529 (1992).

We recognize that the defendant's claim of possible prejudice from a joint trial results from the fact that when alleged crimes are so similar in time, place and circumstance, there is a danger that the jury may use evidence of one crime to convict the defendant of the other crimes. See State v. Oliver, 161 Conn. 348, 288 A.2d 81 (1971).

"Our Supreme Court has held that a trial court should consider several factors in determining whether [a motion for joinder is proper]. These factors include: (1) whether the charges involved 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.... State v. Jennings, 216 Conn. 647, 658, 583 A.2d 915 (1990)." (Citations omitted; internal quotation marks omitted.) State v. Rose, supra, 29 Conn.App. at 430, 615 A.2d 1058. Our review of the record leads us to conclude that joinder did not result in substantial injustice in this case.

The defendant was charged with crimes based on three discrete, easily distinguishable factual scenarios that were similar in time and locality. Although there were similarities, the charges were easily separable as the victims were different and the chronology clear. The evidence, presented over a four day period through nineteen witnesses, was neither so complex nor so confusing as to be in any manner incomprehensible to the jury. It was organized chronologically and presented logically. The evidence was not commingled. The defendant at no time raised an objection to the manner in which the evidence was presented.

Further, where evidence of one incident can be admitted at the trial of the other incidents, separate trials would provide the defendant no significant benefit, and under such circumstances he would ordinarily not be substantially prejudiced by joinder. State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987); State v. Grant, 33 Conn.App. 133, 138, 634 A.2d 1181 (1993). Evidence of a criminal defendant's unconnected crime may be admissible when probative to show identity. State v. Smith, 10 Conn.App. 624, 629, 525 A.2d 116, cert. denied, 204 Conn. 809, 528 A.2d 1156 (1987). To be relevant on the issue of identity, a reasonable inference that the person who committed one crime also committed the other must be warranted. State v. King, 35 Conn.App. 781, 791, 647 A.2d 25 (1994). Here, evidence elicited as to an incident charged by one information was germane to the issues of identity and opportunity in either or both of the cases based on the other incidents.

The trial court did not abuse its discretion in granting the state's motion to consolidate. The joinder of the three incidents for a single trial did not result in substantial injustice to the defendant.

II

The defendant next claims that the trial court improperly instructed the jury as to what evidence to consider in each case, and also as to the presumption of innocence.

A

The defendant argues that the trial court failed to provide any guidance to the jury regarding what evidence to consider in each case and to caution the jury not to consider the commission of one crime as evidence of the commission of another. The defendant acknowledges that he neither filed a request to charge nor took an exception to the court's final instruction that he claims lacked the admonition. He claims review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), in that the failure "violated the defendant's constitutional due process rights by diluting the state's obligations to prove each element of each crime beyond a reasonable doubt."

Under Golding, a defendant can prevail on an unpreserved claim of constitutional error "only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." Id., at 239-40, 567 A.2d 823. The first two conditions are determinations of whether a defendant's claim will be reviewed, and the third condition involves a review of the claim itself. Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992).

The first two conditions of Golding are met here because there is an adequate record for review and the right not to be convicted except on proof beyond a reasonable doubt is a constitutional right. See Summerville v. Warden, 29 Conn.App. 162, 178 n. 4, 614 A.2d 842 (...