State v. Santaniello, No. 25343.

Page 1

902 A.2d 1

96 Conn.App. 646

STATE of Connecticut v. Anthony J. SANTANIELLO, Jr.

No. 25343.

Appellate Court of Connecticut.

Argued May 2, 2006.

Decided July 25, 2006.

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Deborah G. Stevenson, special public defender, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Michael A. Gailor, executive assistant state's attorney, for the appellee (state).

FLYNN, C.J., and DiPENTIMA and MIHALAKOS, Js.

FLYNN, C.J.

The defendant, Anthony J. Santaniello, Jr., appeals from the judgments of conviction, rendered following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1), kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A), attempt to commit murder in violation of General Statutes §§ 53a-49(a)(2) and 53a-54a, inciting injury to another person in violation of General Statutes § 53a-179a(a) and intimidating a witness in violation of General Statutes § 53a-151a(a)(1).¹ The trial court sentenced the defendant to a total effective term of forty-two years imprisonment. On appeal, the defendant claims that the court improperly (1) abused its discretion in joining and refusing to sever two separate informations, (2) denied the defendant's motion to suppress, (3) failed to conduct an in camera review of documents and (4) refused to consider the defendant's postverdict letter requesting a new trial.

We conclude that (1) there was no substantial injustice in the joinder of the informations in a single trial, (2) the court properly denied the motion to suppress the defendant's statements because there was adequate evidence from which it could have found that the defendant implicitly waived his right to remain silent, (3) the court was not obligated to review documents and prison records in camera because defense counsel agreed on the record that it was unnecessary and (4) defense counsel unequivocally stated that he was withdrawing his petition for a new trial and would be refiling the petition separately as a civil matter. Accordingly, we affirm the judgments of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to our resolution of this appeal. The defendant and the victim² were acquaintances. The victim lived in a single-family dwelling with her daughter and a female friend, S. On January 12, 2002, the defendant and the victim spent part of the day together, and the victim told the defendant that she planned to go to a local pub in the evening. The victim went to the pub at approximately 9 p.m., where she met several friends including the defendant and S. They remained at the pub until it closed at approximately 2 a.m. Thereafter, the victim returned to her apartment alone, where she left the door unlocked in case S returned later, and she went to bed. She spoke with the defendant, via the telephone, during the night.

Some time thereafter, the defendant appeared in the victim's bedroom. He sat on her bed and proceeded to make advances toward her. The victim repeatedly told the defendant to stop, but he became forceful and overcame the victim, removing her sweatpants, tearing her panties and sexually assaulting her. The victim was left bruised and had a rope like burn on her hip where her panties had been torn from her.

When S returned home later that afternoon, she knew that something was wrong with the victim. When S questioned the victim, the victim became emotional and "lost it." She then told S what had happened. S urged the victim to telephone the police, but the victim did not want to report the incident because she was afraid of the defendant. S, however, continued to urge the victim to report the incident, and four days later, the victim filed a complaint with the Enfield police. A forensic examination of the victim's panties revealed a stain that contained the defendant's DNA. The defendant was arrested on February 22, 2002. In an amended long form information, the defendant was charged with two counts of sexual assault in the first degree, burglary in the first degree and kidnapping in the first degree (sexual assault case).

Following the defendant's arrest, he was incarcerated at the Cheshire Correctional Institute, where he shared a cell with Thomas Marra from May 13 until July 30, 2002. In August, 2002, Marra contacted George Nobile, an inspector with the division of criminal justice, informing Nobile that he had a cell mate who wanted to have a witness killed. Nobile and a supervisor, Gregory Dillon, met with Marra on September 4, 2002, and Marra informed them that the defendant wanted to have the victim killed so that she could not testify against him. Marra provided a letter written by the defendant and explained the code words used in the letter. Subsequently Marra also provided Nobile and Dillon with further correspondence from and to the defendant concerning the defendant's desire to have the victim killed.

On October 9, 2002, Marra telephoned the defendant and told him he could put the defendant in contact with an assassin. Nobile then assumed the undercover role of the assassin and contacted the defendant on October 14 and 18, 2002. Nobile set up a meeting with the defendant for the morning of October 21, 2002, but the defendant did not appear for that meeting.

The defendant was arrested on October 25, 2002, and was held at the Bridgeport Correctional Center, where he shared a cell with Andre Holeman. The defendant told Holeman that he was facing sexual assault charges and that he had wanted the victim killed so that she could not testify against him. He also told Holeman about Marra and his arranging a meeting with an assassin. He further explained to Holeman that he was supposed to pay the assassin $7500 to kill the victim but that he did not have the funds and, therefore, was considering killing the victim himself. The defendant also asked Holeman to telephone the defendant's attorney to report that the defendant had been set up by Marra. In an amended long form information, the defendant was charged with attempt to commit murder, inciting injury to another person and intimidating a witness (attempted murder case).

After a consolidated trial, the jury found the defendant guilty of sexual assault in the first degree, kidnapping in the first degree, attempt to commit murder, inciting injury to another person and intimidating a witness. This appeal followed.

I

The defendant first claims that the court abused its discretion in joining, and refusing to sever, two separate informations—the sexual assault case and the attempted murder case. Specifically, the defendant argues that "the trial court erred in assessing the factors under [State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987) and State v. Ellis, 270 Conn. 337, 375, 852 A.2d 676 (2004)]." He contends that "[t]he sexual assault charge could be, and should have been, adjudicated in a separate trial without involving evidence of the attempted murder. Both crimes were of a violent nature or concerned brutal or shocking conduct on the defendant's part. The intertwining of the evidence of the attempted murder with the sexual assault case added to the duration of the trial and unduly complicated that case resulting in substantial prejudice to the defendant. Furthermore, that prejudice was not cured by any of the court's instructions to the jury." We do not agree.

Our Supreme Court, in State v. Boscarino, supra, 204 Conn. at 722-24, 529 A.2d 1260, "set forth the standards that a trial court must employ in deciding a joinder issue. . . . The decision of whether to order severance of cases joined for trial is within the discretion of the trial court, and the exercise of that discretion [should] not be disturbed unless it has been manifestly abused. . . . It is the defendant's burden on appeal to show that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court's instructions. . . . In deciding whether severance is appropriate, a trial court should consider what have come to be known as the Boscarino factors. . . ." (Citations omitted; internal quotation marks omitted.) State v. Rivera, 260 Conn. 486, 490, 798 A.2d 958 (2002). "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. Cassidy, 236 Conn. 112, 133, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S.Ct. 273, 136 L.Ed.2d 196 (1996), overruled in part on other grounds by State v. Alexander, 254 Conn. 290, 296, 755 A.2d 868 (2000); see State v. Chance, 236 Conn. 31, 42-43, 671 A.2d 323 (1996); State v. Boscarino, supra, at 722-24, 529 A.2d 1260.

General Statutes § 54-57 provides: "Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise." See also Practice Book § 41-19 ("[t]he judicial authority may . . . order that two or more informations . . . be tried together"). "In deciding whether to sever informations joined 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 the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court's...