State v. Bell

• Decision Date: 21 September 1982
• Citation: 188 Conn. 406,450 A.2d 356
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Leon E. BELL.

Page 356

450 A.2d 356

188 Conn. 406

STATE of Connecticut v. Leon E. BELL.

Supreme Court of Connecticut.

Argued June 4, 1982.

Decided Sept. 21, 1982.

Joseph M. Shortall, Chief Public Defender, with whom were Richard F. Kelly, Asst. Public Defender, and, on the brief, A. Arthur Giddon, Public Defender, and John W. Callahan, law student intern, for appellant (defendant).

Carl Schuman, Asst. State's Atty. with whom were Enrico Vaccaro, Asst. State's Atty., and, on the brief, John M. Bailey, State's Atty., for appellee (state).

Before SPEZIALE, C. J., and PETERS, PARSKEY, ARMENTANO and SPONZO, JJ.

SPONZO, Associate Justice.

The defendant was charged in a substitute information with two counts of robbery in the first degree, in violation of § 53a-134(a)(4) of the General Statutes; eight counts of kidnapping in the second degree, in violation of § 53a-94; one count of unlawfully carrying a weapon in a motor vehicle in violation of § 29-38; and one count of escape from custody in violation of § 53a-171. Following a trial to the jury the defendant was convicted on all twelve counts and was sentenced to a total effective prison term of not less than twenty nor more than forty years. After consideration by the sentence review division this sentence was modified to an effective term of not less than thirteen nor more than twenty-six years.

For the sake of clarity it is appropriate to state that the first six counts, namely, one count of robbery in the first degree, four counts of kidnapping in the second degree and one count of unlawfully carrying a weapon in a motor vehicle resulted from an incident which occurred in the town of West Hartford on April 16, 1980; five counts, namely, one count of robbery in the first degree and four counts of kidnapping in the second degree resulted from an incident which occurred in the town of Rocky Hill on April 12, 1980; and the last count, escape from custody, occurred in the city of Hartford on April 23, 1980.

A review of the evidence reveals that at approximately 10 a.m. on April 16, 1980 the accused entered the Burger King restaurant on Park Road in West Hartford through the back door while the manager and two employees were preparing to open for the day. The defendant, who was dressed with a sweatshirt under which he placed his right hand, motioned the manager to approach him and "whispered" to him to place the other two employees in the walk-in freezer and shut the door. The manager followed these instructions and then led the accused to the safe located in the front of the store and opened the safe. Money from the safe as well as from the cash register was placed in a paper bag. The manager then returned to the freezer area, gave the robber his wallet and was directed to enter the freezer. Shortly thereafter, another employee arrived and was ordered by the accused to enter the freezer. While in the freezer the manager attempted to leave but was told to remain. Upon leaving the restaurant the accused was seen by another employee who then entered the restaurant and released the employees from the freezer. These employees, confined for a period of two to fifteen minutes, discovered that two of the women's purses had been stolen.

During the course of the robbery, while no weapon was seen or displayed, some of the employees assumed that the accused had a gun because of a bulge where the accused had his hand under the sweatshirt. The robbery was reported immediately and the defendant was apprehended a short distance from the scene of the crime. The police found a knife and contents from the restaurant as well as the manager's wallet in the car operated by Leon Bell. Shortly after his apprehension, the accused was identified by the manager of Burger King. The accused testified and admitted his involvement in this robbery.

On April 17, 1980, the manager of the Friendly Restaurant in Rocky Hill was taken to the Rocky Hill police station and identified the accused as the person who robbed his store on April 12, 1980. This robbery occurred at approximately 1 a.m. when the robber ordered the manager and his four employees to return into the restaurant and announced his intention to rob. He ordered all, except the manager, into the freezer and directed that they move fast. After the manager opened the safe and placed all of the contents into a bag, he was ordered to enter the freezer. The robber shut the door and left the premises. After being in the freezer approximately five minutes, the employees emerged. Again, because the robber held his hand concealed under his sweatshirt, all the employees assumed that the robber was armed with a gun. During the trial the defendant offered an alibi that he was not present at the time of this crime.

The last count involved an incident where the accused was being transported to court in Hartford on April 23, 1980 while in the custody of employees of the department of correction and escaped. He was recaptured later that day while at his mother's home.

Over the objection of the defendant made prior to trial the court permitted the three separate informations to be joined for trial. The defendant has assigned error in the court's ruling on this issue.

The defendant, in his brief, has relied heavily on reasoning in cases such as State v. Jonas, 169 Conn. 566, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S.Ct. 1132, 47 L.Ed.2d 331 (1976), and State v. Oliver, 161 Conn. 348, 288 A.2d 81 (1971). In fairness to both counsel, neither was aware of the most recent decision on the issue of joinder, which was released on June 1, 1982. In State v. King, 187 Conn. 292, 445 A.2d 901 (1982), this court thoroughly and extensively reviewed the matter of joinder of trials. It specifically stated it "in no way invalidates our previous case law on the subject of joinder. The trial court still must exercise its discretion in determining whether to join indictments or informations and prior cases on this point remain unaffected." State v. King, supra, 298n, 445 A.2d 901. "[A]n accused bears a heavy burden to show that the denial of severance resulted in substantial injustice because of a manifest abuse of discretion in denying severance." State v. King, supra, 302, 445 A.2d 901. The grant or denial of a motion for severance rests in the sound discretion of the trial judge. "The discretion of a court to order separate trials should be exercised only when a joint trial will be substantially prejudicial to the rights of the defendant, and this means something more than that a joint trial will be less advantageous to the defendant." State v. Silver, 139 Conn. 234, 240, 93 A.2d 154 (1952); State v. McCarthy, 130 Conn. 101, 103, 31 A.2d 921 (1943).

In the present case the evidence was not complicated. It was presented by the state in an orderly manner. Practically all the evidence was elicited from eyewitnesses. The evidence pertaining to the West Hartford robbery was presented before the offer of Rocky Hill robbery testimony or the testimony pertaining to the escape charge. The trial court on several occasions insisted that the evidence be kept separate and so instructed the jury. There is no indication that the jury was confused in considering the evidence being offered as to the specific robbery. Since the defendant testified only to the West Hartford robbery, the state was careful to limit its cross-examination to that event.

Since the state was able to present the evidence in an orderly manner and since it appears that the jury was not confused and was able to consider the evidence as to each charge separately and distinctly, it is clear that the trial court did not abuse its discretion in permitting a single trial. The judicial economy resulting from the court's action is justified and obvious.

The defendant also assigns as error the failure of the court properly to instruct the jury in considering the evidence that the accused had given a false name and address to the West Hartford police and also had escaped from custody on April 23, 1980. In considering this assignment of error we note that the accused admitted that he gave a false name and address.

The purpose of introduction of this evidence is to show consciousness of guilt. State v. Moynahan, 164 Conn. 560, 595-96, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973). The assumption of a false name and address obviously constitutes consciousness of guilt evidence. 2 Wigmore, Evidence (3d Ed.) § 276(4). It is well established that flight of a person accused of a crime is an element which, when considered with other facts of the case, is relevant to the accused's guilt. State v. Rosa, 170 Conn. 417, 433, 365 A.2d 1135, cert. denied, 429 U.S. 845, 97 S.Ct. 126, 50 L.Ed.2d 116 (1976).

There is no abuse of discretion or manifest injustice evident in the record. The trial court emphasized in colloquy with both parties that the false statement evidence was not being offered to prove another crime, but rather for the specific purpose of showing a consciousness of guilt. It decided to admit it for that purpose in order to deemphasize the criminal charge then pending against the defendant arising from the false statements. The admission of that evidence is, therefore, without error. Finally, the court did charge that guilt of one offense did not necessarily prove guilt of other offenses.

In determining the admissibility of this evidence the court must consider whether its prejudicial tendency outweighs its probative value. State v. Moynahan, supra, 164 Conn. at 597, 325 A.2d 199; see State v. Tedesco, 175 Conn. 279, 290, 397 A.2d 1352 (1978). The admissibility of such evidence must be entrusted to the sound discretion of the trial judge. State v. Tucker, 181 Conn. 406, 416, 435 A.2d 986 (1980).

There is no basis for considering the defendant's claim that the trial court erred in its charge by failing to caution the jury only to consider the false statement...