State v. Payne

STATE OF CONNECTICUT

v.LEOTIS PAYNE

SC 17965

THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

officially released January 24, 2012

Argued September 21, 2011

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G. Douglas Nash, special public defender, for the appellant (defendant).

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, Kevin C. Doyle, senior assistant state's attorney, and Stacey M. Haupt, assistant state's attorney, for the appellee (state).

Opinion

ROGERS, C. J. The defendant, Leotis Payne, appeals¹ from the judgments of conviction, rendered after a jury trial, of felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), larceny in the second degree in violation of General Statutes § 53a-123 (a) (3), carrying a pistol without a permit in violation of General Statutes § 29-35, criminal possession of a firearm in violation of General Statutes (Rev. to 1993) § 53a-217, attempt to tamper with a juror in violation of General Statutes §§ 53a-49 (a) (2) and 53a-154, and conspiracy to tamper with a juror in violation of General Statutes §§ 53a-48 (a) and 53a-154. On appeal, the defendant claims that the trial court improperly: (1) joined the two cases against the defendant for trial; (2) admitted the testimony of one of the state's witnesses regarding an alleged threat made by the defendant; and (3) denied the defendant's motion for a new trial on the basis of prosecutorial impropriety. In affirming the judgments of the trial court, we also take this opportunity to overrule State v. King, 187 Conn. 292, 445 A.2d 901 (1982), and its progeny, which recognized a presumption in favor of joinder in criminal cases.

The following factual and procedural history is relevant to this appeal. In connection with a deadly shooting in New Haven in 1994, the defendant was charged by information with felony murder, robbery in the first degree, larceny in the second degree, carrying a pistol without a permit, and criminal possession of a firearm. Following a jury trial, the defendant was convicted of all charges. On appeal, the Appellate Court affirmed the judgment of conviction; State v. Payne, 63 Conn. App. 583, 596, 777 A.2d 731 (2001); and this court thereafter reversed the judgment of the Appellate Court and remanded the case for a new trial after finding that certain prosecutorial improprieties had deprived the defendant of a fair trial. State v. Payne, 260 Conn. 446, 466, 797 A.2d 1088 (2002).

During jury selection on remand in 2006, the trial court declared a mistrial after the defendant was charged in a separate information with attempt to tamper with a juror, and conspiracy to tamper with a juror. Following the mistrial, the state sought to retry the defendant on the charges in the felony murder case, and filed a motion to join that case with the jury tampering case for trial. The motion was granted and the cases were consolidated for trial. The defendant was convicted of all of the charged offenses, and the court imposed a total effective sentence of sixty-seven years incarceration. Additional facts will be set forth as necessary.

I

We first address the defendant's claim that the trialcourt improperly joined the felony murder and jury tampering cases for trial. The defendant claims that joinder was improper under the test articulated by this court in State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987).² The state responds that the trial court properly examined the factors set forth in that opinion.³ After reviewing the evidence presented at the joint trial, we conclude that the cases were improperly joined, but the impropriety was harmless.

''The principles that govern our review of a trial court's ruling on a motion for joinder or a motion for severance are well established. Practice Book § 41-19 provides that, [t]he judicial authority may, upon its own motion or the motion of any party, order that two or more informations, whether against the same defendant or different defendants, be tried together. ... In deciding whether to [join informations] for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. . . . The defendant bears a heavy burden of showing that [joinder] resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court's instructions. . . .

''Substantial prejudice does not necessarily result from [joinder] even [if the] evidence of one offense would not have been admissible at a separate trial involving the second offense. . . . Consolidation under such circumstances, however, may expose the defendant to potential prejudice for three reasons: First, when several charges have been made against the defendant, the jury may consider that a person charged with doing so many things is a bad [person] who must have done something, and may cumulate evidence against him . . . . Second, the jury may have used the evidence of one case to convict the defendant in another case even though that evidence would have been inadmissible at a separate trial. . . . [Third] joinder of cases that are factually similar but legally unconnected . . . present[s] the . . . danger that a defendant will be subjected to the omnipresent risk . . . that although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused's guilt, the sum of it will convince them as to all. . . .

''Despite the existence of these risks, this court consistently has recognized a clear presumption in favor of joinder and against severance . . . and, therefore, absent an abuse of discretion . . . will not second guess the considered judgment of the trial court as to the joinder or severance of two or more charges. . . .

''The court's discretion regarding joinder, however, is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant's right to a fair trial. Consequently, we have identified several factors that a trial court should consider in decidingwhether a severance may be necessary to avoid undue prejudice resulting from consolidation of multiple charges for trial. 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.'' (Citations omitted; internal quotation marks omitted.) State v. Davis, 286 Conn. 17, 27-29, 942 A.2d 373 (2008).

In the present case, the defendant contends that the trial court improperly concluded that joinder was proper under Boscarino. The defendant also urges us to overrule this court's decision in State v. King, supra, 187 Conn. 299, which established the foundation for the presumption in favor of joinder. Because the presumption presents a threshold issue in our discussion of joinder, we first address the defendant's claim regarding King.

In King, the defendant claimed that pursuant to General Statutes § 54-57,⁴ only offenses of the ''same character'' may be joined for trial. State v. King, supra, 187 Conn. 298. In resolving this claim, this court noted that the rule of practice on joinder, now codified at Practice Book § 41-19,⁵ had been amended to omit ''reference to the requirement that the offenses joined be of the 'same character.''' Id., 296. This court therefore concluded that Practice Book § 41-19 ''intentionally broadened the circumstances under which two or more indictments or informations could be joined [for trial],''⁶ and that ''whether the offenses are of the 'same character' [was] no longer essential.'' Id. This court then concluded that § 54-57 and Practice Book § 41-19 conflicted, stating: ''We must therefore determine whether joinder is controlled by the statute or the rule.'' Id., 297. We ultimately concluded that, because Practice Book § 41-19 was ''a rule which regulate[d] court procedure and facilitate[d] the administration of justice and [did] not infringe on any substantive right,'' the rule of practice, rather than § 54-57, governed the trial court's decision on a motion for joinder. Id., 298.

The defendant contends that this court's conclusion in King that Practice Book §...