State v. Banta

• Decision Date: 12 July 1988
• Docket Number: 4831,Nos. 4814,s. 4814
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Charles BANTA, Jr. STATE of Connecticut v. Ronald HABICH.

Page 1226

544 A.2d 1226

15 Conn.App. 161

STATE of Connecticut v. Charles BANTA, Jr.

STATE of Connecticut v. Ronald HABICH.

Nos. 4814, 4831.

Appellate Court of Connecticut.

Argued Feb. 9, 1988.

Decided July 12, 1988.

G. Douglas Nash, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellants (defendants).

Guy W. Wolf III, Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., for appellee (State).

Before DUPONT, C.J., and BORDEN and STOUGHTON, JJ.

BORDEN, Judge.

Both defendants appeal from the judgments of conviction, after their joint trial before a jury, on charges of robbery in the first degree in violation of General Statutes § 53a-134(a)(4) and criminal possession of a pistol in violation of General Statutes § 53a-217(a). Both defendants were found guilty of robbery in the first degree. The defendant Charles Banta, Jr., was found guilty of criminal possession of a pistol, while the defendant Ronald Habich was acquitted of that charge. On appeal, the defendants jointly claim that the trial court erred (1) in denying their motions to sever and to order separate trials on the robbery and criminal possession of a pistol offenses, (2) in denying the motion for a bifurcated trial on the criminal possession of a pistol charge, (3) in not suppressing evidence obtained during a search of the defendants' motel room and the car used by them, and (4) in instructing the jury on drawing inferences from circumstantial evidence. The defendants also claim that General Statutes § 53a-217(a), which criminalizes the possession of a pistol by persons previously convicted of certain felonies, is unconstitutional. We find no error.

The jury could reasonably have found the following facts. On March 8, 1985, the victim, Joseph DeMartino, was in the process of readying his antique store for business. That evening, he arrived at his home at 345 Lighthouse Road in New Haven. He got out of his car carrying a large double shopping bag containing numerous items of his personal property, merchandise for his store, and items of jewelry for repair. He was also carrying about $2000 in cash and a wallet, and was wearing an assortment of jewelry. As he stepped away from his car, he was confronted by three men wearing black masks. The tallest of the three men was armed with a handgun and demanded that DeMartino surrender his belongings. DeMartino resisted and was struck on the side of the face with the gun. The three assailants then took DeMartino's possessions, including the jewelry he was wearing and the cash from his pocket. DeMartino was left tied to a nearby chainlink fence. The three men then fled in the direction of 325 Lighthouse Road, the house next door.

After DeMartino freed himself, he reported the robbery to the police. The police arrived at DeMartino's house and viewed the scene of the crime. The police found a number of DeMartino's personal items scattered about the driveway near DeMartino's car. They also observed DeMartino's injuries, bloodstained clothing and torn shirt. DeMartino could not identify any of his assailants.

A neighbor told the officers about three men and a car she had seen earlier that evening. The men parked their car on Morris Avenue, just around the corner from the crime scene, and walked up Morris Avenue toward Lighthouse Road, entering the rear yard of 325 Lighthouse Road. Because the car was parked in a no parking zone, the neighbor observed and recorded the automobile's license number. Soon thereafter, she saw the car driving away quickly without its headlights on. She gave the license information to the police, and was able to determine that it was a New Jersey license.

The police learned that the automobile belonged to the defendant Habich and that he had been visiting the defendant Banta. Early the next morning, the car was located in a motel parking lot in West Haven. The motel night manager confirmed that an individual, calling himself "Frank Seals" but matching the description of Banta, had registered for room 122 about an hour earlier. At trial, the manager identified Banta as the person who rented the room and identified Habich as one of the two persons who later joined Banta in the room. Banta admitted registering under a false name and using a false address and license number when registering.

Later that morning, the police searched room 122 pursuant to a search warrant, and found DeMartino's jewelry and personal effects. The defendants and another individual were in the room. The police found $1238 in Banta's front pockets and $336.70 on the person of the third individual. The police also found a .45 caliber automatic handgun in a desk drawer and a clip containing three rounds of .45 caliber ammunition on Banta's person. A subsequent search of Habich's automobile turned up more of DeMartino's personal effects. In addition, three black stocking masks were found in the car.

At trial, Banta testified. He did not deny that the trio was at DeMartino's that evening; rather, he denied that what happened was a robbery. He claimed that the three of them went to DeMartino's home to finalize a business deal with DeMartino for the sale of some jewelry. Banta testified that he had given DeMartino a number of gold chains a couple of days before so that DeMartino could appraise their value before agreeing to purchase them, but DeMartino had put him off until agreeing to meet Banta at DeMartino's home on the evening of March 8. According to Banta, at that meeting DeMartino said he thought the chains were stolen and offered only a fraction of the value he had originally estimated the chains were worth. Banta testified that he became upset and demanded his property back or adequate payment. When DeMartino said he did not have Banta's jewelry with him, Banta testified, he insisted that DeMartino get the property and that he would not leave until DeMartino did so. According to Banta, DeMartino angrily said he could do nothing until morning, but that he would give Banta his personal items as collateral until then and handed them to Banta along with the neck chains he was wearing. Then, Banta testified, he observed DeMartino reach into his bag. Banta grabbed DeMartino's hand and found DeMartino had reached for a handgun. Banta took the gun away and, according to his testimony, struck DeMartino in the face with the gun several times. DeMartino pleaded and explained that he needed $22,000 or he was going to jail. He then offered Banta all of the property he had with him as collateral because he did not want any more trouble. Banta testified that he said that he did not want any trouble either, and that all he wanted was what was rightfully his. According to his testimony, Banta then accepted DeMartino's property as collateral, and made arrangements to call DeMartino the next day to get the money or his jewelry back.

I

The defendants claim that the trial court erred in denying their motions for severance which requested separate trials on the two offenses with which each was charged. The defendants assert that they were substantially prejudiced in their trial on the robbery charges by the court's refusal to sever, because proof of a prior felony conviction was an essential element of the second count of the information charging criminal possession of a pistol in violation of General Statutes § 53a-217, ¹ and such evidence would have been inadmissible and highly prejudicial; see, e.g., State v. Artieri, 206 Conn. 81, 88, 536 A.2d 567 (1988); in the case against the defendants with regard to the robbery charges. We disagree.

"A judicial authority may order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together. Practice Book § 829; General Statutes § 54-57. A judicial authority may also order separate trials if it appears that a defendant is prejudiced by joinder. Practice Book § 828. This does not mean that severance is to be had for the asking. State v. King, 187 Conn. 292, 302, 445 A.2d 901 (1982); see also State v. Bell, 188 Conn. 406, 410-11, 450 A.2d 356 (1982).

"The question of severance lies within the discretion of the trial court. We will not disturb the trial court's conclusion on the issue absent a clear abuse of discretion. The discretion to sever a trial should be exercised only if a joint trial will substantially prejudice the defendant. Substantial prejudice is more than disadvantage and the formidable task of demonstrating an abuse of discretion and that a joint trial resulted in substantial prejudice falls to the defendant. State v. Smith, 201 Conn. 659, 669, 519 A.2d 26 (1986); State v. Schroff, 198 Conn. 405, 408, 503 A.2d 167 (1986); State v. Rodgers, 198 Conn. 53, 63, 502 A.2d 360 (1985); State v. Wiggins, 7 Conn.App. 95, 101, 507 A.2d 518 (1986). Simply put, the test to be applied is whether substantial injustice will result if the charges are tried together. State v. King, supra [187 Conn. at], 299 ; State v. Oliver, 161 Conn. 348, 360-61, 288 A.2d 81 (1971)." State v. Edwards, 10 Conn.App. 503, 506-507, 524 A.2d 648, cert. denied, 204 Conn. 808, 528 A.2d 1155 (1987).

Our Supreme Court has recently noted that "[s]ubstantial prejudice does not necessarily result from a denial of severance even where evidence of one offense would not have been admissible at a separate trial involving the second offense. A trial court will not have manifestly abused its discretion in denying severance if the state's orderly presentation of evidence has prevented confusion of the jury and has enabled the jury to consider the evidence relevant to each charge separately and distinctly. See Drew v. United States, 331 F.2d 85, 89 (D.C.Cir.1964); State v. Bell, [supra] 188 Conn. at 411, 450 A.2d 356; State v. King, supra [187 Conn. at], 301 . State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987).

Although the defendants have briefed this claim...