State v. Bell

Decision Date14 February 2006
Docket NumberNo. 26501.,26501.
Citation93 Conn.App. 650,891 A.2d 9
CourtConnecticut Court of Appeals
PartiesSTATE of Connecticut v. Leon E. BELL.

Kirstin B. Coffin, special public defender, for the appellant (defendant).

Rita M. Shair, senior assistant state's attorney, with whom were James E. Thomas, state's attorney, and, on the brief, Thomas R. Garcia, assistant state's attorney, for the appellee (state).

GRUENDEL, HARPER and MIHALAKOS, Js.

MIHALAKOS, J.

The defendant, Leon E. Bell, appeals from the judgments of conviction, rendered after a jury trial, of two counts each of robbery in the first degree in violation of General Statutes § 53a-134 (a), burglary in the third degree in violation of General Statutes § 53a-103 (a), kidnapping in the first degree in violation of General Statutes § 53a-92 (a)(2)(b) and larceny in the third degree in violation of General Statutes § 53a-124 (a)(2). The charges arose out of two incidents occurring at Friendly's restaurants, the first in Manchester on April 12, 2001, and the second in Glastonbury on April 14, 2001. The defendant claims that the trial court improperly (1) granted the state's motion to consolidate the two informations, (2) denied his motion to suppress identification evidence, (3) denied his motion to suppress his statement to the police and (4) denied his motion for a judgment of acquittal on the basis of insufficient evidence. We affirm judgments of the trial court.

The jury reasonably could have found the following facts. During the early hours of April 12, 2001, at a Friendly's restaurant in Manchester, manager Cheryl Royer, alone in the restaurant, was locking up for the night. While exiting the front doors to go home, Royer was confronted by the defendant. Royer recognized the defendant, but could not at that time recall the circumstances as to how she had met him. The defendant told her that he had a gun and ordered her to take him to the safe. After she unlocked the safe, Royer started screaming and pleading for the defendant not to hurt her. The defendant told Royer to go into the walk-in refrigerator for fifteen minutes. Royer stayed in the refrigerator for only a few minutes, ran out and called 911. When the police arrived at the restaurant, Royer told the police that she recognized the perpetrator and described him as a tall, slender black male wearing a tan jacket and a black knit hat.

That evening, Royer remembered that she had met the defendant a few years prior when they worked the same shift at another Friendly's restaurant. Royer called the Manchester police department and reported the defendant's name. The next day, Detective Michael Morrissey of the Manchester police department met with Royer at the restaurant and showed her a photographic array. Royer immediately identified the defendant as the perpetrator of the Manchester robbery.

On April 14, 2001, Tricia Smith, the assistant manager of a Friendly's restaurant in Glastonbury, arrived at the store alone at about 6 a.m. to open the restaurant. As she unlocked the front door, the defendant, unmasked, came up behind her and forced his way into the restaurant. He told her that he would not hurt her if she did what he told her to do. Smith was fixated on something the defendant was holding in his hand under his jacket that "looked like a gun." The defendant ordered her to take him to the safe. By the time Smith had reached the safe, the defendant had put a bandana over the lower portion of his face. After Smith opened the safe, the defendant told her to get into the walk-in refrigerator. Smith waited a few minutes in the refrigerator until she thought the defendant had left the restaurant. She then ran to a nearby gasoline station for help. Smith, in speaking to the police, described the defendant as a tall, skinny black male and stated that she would recognize him if she saw him again. Detective William Sanderson from the Glastonbury police department met with Smith a few hours after the robbery and presented her with the same photographic array that was shown to Royer. Smith identified the defendant as the perpetrator of the Glastonbury robbery.

The defendant was arrested at approximately 4 p.m. on April 14, 2001, pursuant to a warrant in connection with the Manchester robbery. He was taken to the Manchester police department where he was also arrested and charged with the Glastonbury robbery. That evening, the defendant confessed to both the Manchester and Glastonbury robberies. The defendant was charged in separate informations that were consolidated for trial. Following a jury trial, the defendant was convicted of two counts each of robbery in the first degree, burglary in the third degree, kidnapping in the first degree and larceny in the third degree. This appeal followed.

I

The defendant's first claim is that the court abused its discretion in granting the state's motion to consolidate the two cases for trial. The defendant contends that he suffered substantial prejudice because the consolidation of the two cases made the jury more likely to convict him on each case. We disagree.

The trial court is empowered to consolidate or to sever cases. 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 § 41-19.1 "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 instructions." (Citations omitted; internal quotation marks omitted.) State v. Herring, 210 Conn. 78, 94-95, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 579 (1989). "[B]ecause joinder foster[s] economy and expedition of judicial administration ... we consistently have recognized a clear presumption in favor of joinder and against severance... and, therefore, absent an abuse of discretion, we will not second guess the considered judgment of the trial court as to joinder or severance of two or more charges." (Internal quotation marks omitted.) State v. Cook, 70 Conn.App. 114, 120, 796 A.2d 1269 (2002), cert. denied, 263 Conn. 922, 822 A.2d 243 (2003).

A court's discretion regarding joinder, however, is not unfettered. "The determination to try a defendant jointly on charges arising from separate cases may only be reached if consistent with the defendant's right to a fair trial." State v Rivera, 260 Conn. 486, 490, 798 A.2d 958 (2002). In State v. Boscarino, 204 Conn. 714, 722-23, 529 A.2d 1260 (1987), our Supreme Court identified certain factors a trial court should consider in determining whether a severance is 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. Jennings, 216 Conn. 647, 658, 583 A.2d 915 (1990); State v. Boscarino, supra, at 722-23, 529 A.2d 1260.

Applying the Boscarino factors to the present case, we conclude that the defendant has not proved substantial prejudice resulting from the consolidation of the two informations.2 First, the two cases involved discrete, factually distinguishable scenarios. Although both crimes were perpetrated at Friendly's restaurants where a lone employee was ordered into a walk-in refrigerator, the crimes were not so similar that there was danger that the jury would use the evidence of one crime to find the defendant guilty of the other. See State v. Horne, 215 Conn. 538, 546, 577 A.2d 694 (1990). The crimes took place on different days, at different times of day, in different towns and with different victims, both of whom testified at trial; there was thus little danger that the jury would be unable to consider each information separately. We find this case analogous to State v. Fauci, 87 Conn.App. 150, 160, 865 A.2d 1191, cert. granted on other grounds, 273 Conn. 921, 871 A.2d 1029 (2005), in which this court found no abuse of discretion in the joinder of three informations arising out of the robberies of three different fast food restaurants, including two McDonald's, where, in each incident, two men attempted to break into the restaurants by throwing a rock through the glass doors.

Regarding the second Boscarino factor, we disagree with the defendant that the crimes were so shocking as to have inflamed the passions of the jury.3 The defendant frightened each victim by implying that he was armed and by ordering them into a walk-in refrigerator. This court has held that a robbery in which the defendant threatened the use of force by implying that he had a firearm "was not particularly brutal or shocking." State v. Smith, 88 Conn.App. 275, 279, 869 A.2d 258, cert. denied, 273 Conn. 940, 875 A.2d 45 (2005). We note that even a robbery carried out with the use of firearms is not necessarily brutal or shocking if no victim has been injured physically. See State v. Fauci, supra, 87 Conn.App. at 159, 865 A.2d 1191. Whether a crime is shocking is determined not by the reaction of the victim, but by the conduct of the...

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    ...consenting to the search of the home and his vehicle, and a written statement, all within twenty-five minutes. See State v. Bell, 93 Conn. App. 650, 667, 891 A.2d 9 (2006) (detention for six hours before interview lasting one and one-half hours not sufficient to render statement involuntary......
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