State v. Stevenson

Page 500

686 A.2d 500

43 Conn.App. 680

STATE of Connecticut v. Richard STEVENSON.

No. 14656.

Appellate Court of Connecticut.

Argued Sept. 27, 1996.

Decided Dec. 3, 1996.

[43 Conn.App. 681] Glenn W. Falk, Special Public Defender, with whom, on the brief, was Donald Dakers, Special Public Defender, for appellant (defendant).

Robert J. Scheinblum, Deputy Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and David P. Gold, Supervisory Assistant State's Attorney, for appellee (state).

Before DUPONT, C.J., and LANDAU and DALY, JJ.

DUPONT, Chief Judge.

The defendant appeals from judgments of conviction rendered after a jury trial. The convictions stemmed from charges arising out of two cases involving different incidents and different victims, which had been consolidated for trial. The defendant was charged in the first case with attempted sexual assault in the first degree, kidnapping in the second degree and threatening, and in the second case with sexual assault in the first degree and kidnapping in the second degree. The jury found the defendant guilty of one count of attempted sexual assault in the first degree in violation of General Statutes §§ 53a-70 (a)(1) and 53a-49 (a), ¹ and guilty of one count of threatening in violation of General Statutes § 53a-62 ² in the first case. The jury also found the defendant guilty of one count of sexual assault in the first degree in the second case in violation of § 53a-70(a). The defendant was found not guilty of kidnapping in the second degree in both cases.

Originally, the defendant was charged with crimes arising out of four incidents of sexual assault, all of which concerned different victims. The crimes relating to each incident were the subject of separate files, each given a different case number. The defendant moved for separate trials of each of the four cases and the state moved to consolidate them. At the consolidation hearing, the trial court ruled that all four cases should not be consolidated because the jury would have difficulty distinguishing them, but he left the decision to the state as to whether two of the cases, designated as "K.R." and "J.C.," would be consolidated. The court determined that, even if the state did not consolidate the two cases, evidence of each would be cross admissible at each trial.

The state chose to prosecute the two cases together. The two cases share certain similarities. The victim K testified that she has worked as a prostitute to support her drug habit, but that she was not working on the night of the incident. The victim testified that at approximately 3 a.m. on September 13, 1992, she was walking alone in the Fair Haven section of New Haven, on her way to a twenty-four hour store on Grand Avenue. A car slowed down near her more than once. The driver nodded his head to her to see if she was working and she indicated that she was not. The victim described the car as a cream colored, older model Chevrolet or Plymouth. After the car had passed her a second time, the driver opened the passenger door and asked if she was working. When she said that she was not working, the driver got out of the car, grabbed her and pulled her into the car.

The victim testified that the driver of the car held her head down toward the seat as he drove. Eventually the car stopped. The victim later learned that the place where they had stopped was Mill River Street in New Haven. The victim pleaded with the driver to let her go and told him that she had AIDS. The driver only laughed at her and called her various profanities. The driver proceeded to force the victim onto her back, pulled up her shirt, and pulled her pants down. The driver held the victim's hands over her head with one hand and pulled at her clothes with the other. The victim tried to hold her legs together in an effort to stop the driver from penetrating her. The driver grabbed K's throat and threatened her with anal intercourse. K testified that, at that point she stopped struggling with her assailant in the hope that he would loosen his grip on her. He did loosen his grip on her hands and she was able to open the car door. Once she had opened the door, K screamed "fire" and was able to get out of the car. The driver chased her around the car and grabbed her but she escaped. K ran up the street and went inside the gate of a house where she hid until she saw the assailant get back in the car and drive away.

K was able to describe her assailant and his car. She remembered seeing a fishing pole in the backseat. She described the driver of the car as a black man of about thirty years of age with a large build. She described him as having a fat stomach and messy hair with a big Afro. K also described his white T-shirt.

Five days after the attempted assault, K encountered the assailant again as she was walking home at approximately 1 a.m. She heard someone call out to her, and recognized the voice as that of her attacker. When she looked, she saw that the car was the same one she had been in before. K told the driver to leave her alone. He swore at her and pointed a long black gun at her. K hid behind a tree until he drove away. She recorded the license plate number and gave it to the police.

K identified the defendant as the person who had attempted to assault her sexually and as the person who threatened her, both from a photographic array and in court.

The victim in the second case, J, testified that her assault occurred early on July 30, 1992. She attended a party in Fair Haven and, after trying unsuccessfully to get a ride home, she began walking. The victim was walking beneath an underpass on Humphrey Street when a two door beige Duster slowed up near her. The car passed her and made a U-turn, and subsequently blocked her so that she could not get by. J testified that the driver got out of the car, hit her over the head, and dragged her on her knees into the car by her shirt. He told her that he planned to rape her. He drove to Mill River Road where he stopped the car. He forced J into the backseat and ordered her to take off her clothes. When she refused, he threatened to kill her. Throughout the entire assault, J pleaded with him to let her go. During the assault, which lasted for two and one-half hours, the assailant insulted J with profanities. He forced her to have vaginal and oral intercourse, and threatened her with anal intercourse. When J screamed because of his threats, the assailant turned her onto her stomach and threatened her, showing her a paper bag that he said contained a gun. He told her that if she did not stop screaming, he would kill her. J saw something black and shiny protruding from the bag, but she did not actually see if it was a gun. At this point some motorcycles approached, startling the assailant, who then jumped out of the car. J ran away from the car.

J also testified that she saw a fishing pole in the back of the car. She described her assailant as a black man, age thirty to thirty-five. She described him as fat with a goatee and a blue tattoo on his arm. She also remarked that he had puffy eyes and bumps on his skin. She described his clothing as a T-shirt, sweatpants, and white Fila sneakers. J identified the defendant as the person who had attacked her, both from a photographic array and in court.

The defendant claims that the trial court improperly (1) consolidated the two cases, (2) admitted into evidence a replica of a gun, (3) refused to permit the defendant to question the victim J about previous sexual assault claims, (4) refused to give a Secondino instruction, and (5) denied the defendant's motion for a mistrial following the prosecutor's closing argument.

I CONSOLIDATION

The test for whether cases should be consolidated for trial is multifaceted. The factors to be considered are (1) whether the charges involve discrete, easily distinguished factual scenarios, (2) how long and complex the trial was, and (3) whether one or more of the counts alleges brutal or shocking conduct by the accused. State v. Chance, 236 Conn. 31, 42, 671 A.2d 323 (1996); see also State v. Jennings, 216 Conn. 647, 583 A.2d 915 (1990); State v. Herring, 210 Conn. 78, 554 A.2d 686 (1989), cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 579 (1989); State v. Boscarino, 204 Conn. 714, 529 A.2d 1260 (1987); State v. King, 187 Conn. 292, 445 A.2d 901 (1982); State v. Silver, 139 Conn. 234, 93 A.2d 154 (1952).

Before discussing these factors, and the leading cases in which the factors are discussed, we first note that joinder of cases is favored; State v. Greene, 209 Conn. 458, 463, 551 A.2d 1231 (1988); and that a trial court is authorized by statute and rule to order a defendant to be tried in one trial on charges arising from separate cases. General Statutes § 54-57 ³; Practice Book § 829. ⁴ The court may also order separate trials if it appears that a defendant is prejudiced by joinder. Practice Book § 828. ⁵ The decision of whether to sever cases is within the discretion of the trial court; State v. Bell, 188 Conn. 406, 410-11, 450 A.2d 356 (1982); State v. King, supra, 187 Conn. at 299, 445 A.2d 901; and will be overturned only if its discretion has been manifestly abused. State v. Herring, supra, 210 Conn. at 94, 554 A.2d 686. It is the defendant's burden to show that joinder was improper, and to do so he must show substantial prejudice. State v. Boscarino, supra, 204 Conn. 714, 529 A.2d 1260; State v. Rodgers, 198 Conn. 53, 65, 502 A.2d 360 (1985); State v. Bell, supra, at 410, 450 A.2d 356; State v. Jonas, 169 Conn. 566, 570, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S.Ct. 1132, 47 L.Ed.2d 331 (1976). "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 instructions." (Internal quotation marks omitted.) State v. Herring, supra, at 94-95, ...