State v. Boscarino

• Decision Date: 11 August 1987
• Docket Number: Nos. 12667,12684,s. 12667
• Citation: 529 A.2d 1260,204 Conn. 714
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. James BOSCARINO.

Page 1260

529 A.2d 1260

204 Conn. 714

STATE of Connecticut v. James BOSCARINO.

Nos. 12667, 12684.

Supreme Court of Connecticut.

Argued June 9, 1987.

Decided Aug. 11, 1987.

G. Douglas Nash, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellant (defendant in each case).

Harry Weller, Deputy Asst. State's Atty., with whom, on the brief, were Dennis O'Connor, Asst. State's Atty., and Mark Buebendorf, Legal Intern, for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, CALLAHAN, GLASS and FRANCIS X. HENNESSY, JJ.

PETERS, Chief Justice.

The principal issue in these appeals is whether the trial court abused its discretion in permitting the defendant to be tried jointly on charges arising from four factually similar, but legally unrelated cases. The defendant, James Boscarino, was charged by information with one count of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(B); ¹ three counts of assault in the second degree in violation of General Statutes § 53a-60(a)(2); ² and one count of sexual assault in the first degree in violation of General Statutes § 53a-70(a) ³ (the South Windsor case). In a separate information in another case, he was charged with one count of burglary in the first degree in violation of General Statutes § 53a-101(a)(1), ⁴ and three counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a) (the Bloomfield case). These two cases, along with two other cases that also involved alleged sexual assaults (the Windsor cases), were consolidated for trial before a single jury. On July 12, 1984, the jury rendered verdicts of guilty in the South Windsor and Bloomfield cases, and of acquittal in the Windsor cases. The defendant was sentenced to a total effective term of twenty years imprisonment. He appeals from the judgments of these convictions. We find error.

The jury could reasonably have found the following facts. The charges against the defendant in the South Windsor case arose from an incident that occurred on March 3, 1982. The victim was at work at her place of employment in South Windsor when a man approached her, unnoticed, from behind. The assailant reached around the victim's neck and cut her face with a small knife that he held in his right hand. He then pushed the victim into an adjoining room, where he asked her to remove her clothes. The victim initially refused to do so, but complied after the assailant cut her with the knife several times on her chest and stomach. The assailant then sexually assaulted her. Later that day, the victim described him to police as a white male in his early twenties, with a medium build, dark hair and a beard and mustache.

The charges against the defendant in the Bloomfield case arose from a June 14, 1983 sexual assault. In that case, the victim was awakened early in the morning in the bedroom of her Bloomfield condominium by a man, naked except for socks and sneakers, with a towel draped over his head. The assailant, brandishing a knife in his right hand, sexually assaulted the victim several times. He then tied the victim's hands, and, after instructing her to count to 700, left through a window. The victim managed to free herself and called the police. The next day, she described the assailant to police as a white male, about five feet eight inches tall, with a medium build, dark hair, and stubbly facial hair.

While the Windsor cases are not before us on appeal, a brief summary of the evidence in those cases will be useful in assessing the defendant's claims of error. In the first Windsor case, the victim testified that she had been sexually assaulted in her home on the evening of April 18, 1983, by a knife-wielding man whose face had been partially covered by a scarf. After the assault, the victim testified that the man had forced her inside a closet and told her to count to 300 before coming out. She described her assailant to police as a white male, about five feet eight inches tall, with dark brown eyes, thin lips and mouth and a long, thin nose. In the second Windsor case, the victim testified that on June 24, 1984, shortly after midnight, a naked white male carrying a knife had entered her bedroom and sexually assaulted her. She described her assailant to police as about five feet seven or five feet eight inches tall, of medium build, with dark hair, dark eyes and thick eyebrows.

With regard to the appeals in both the Bloomfield and South Windsor cases, the defendant claims that the trial court erred in: (1) permitting him to be tried jointly for offenses arising out of four different cases; (2) refusing to suppress the South Windsor and Bloomfield victims' pretrial and in-court identifications of him; (3) excluding from evidence the testimony of a defense expert on eyewitness identification; (4) permitting the state to impeach his alibi testimony with an inconsistent statement that he had made during the course of a court-ordered psychiatric examination; and (5) denying his posttrial motion for a new trial. In the South Windsor case, the defendant also claims that the trial court erred in refusing to suppress inculpatory statements that he made to law enforcement officers.

We agree with the defendant that the trial court erred in allowing the four cases against him to be tried jointly. We conclude, therefore, that the defendant must be afforded new, separate trials in both of the cases on appeal. This disposition makes it unnecessary for us to consider the merits of the defendant's claim that the trial court erred in denying his motion for a new trial. We will consider the defendant's remaining claims of error to the extent that they may recur at his new trials.

I

The defendant first claims that the trial court erred in granting, over his objection, the state's pretrial motion to consolidate the four cases against him in a single trial. The trial court also denied the defendant's pretrial motion to sever the cases. At trial, the evidence in each case was heard according to the chronology in which the incidents were alleged to have occurred; the South Windsor case was tried first, and the Bloomfield case third. The state presented its case-in-chief in each case seriatim. ⁵ After the state had concluded its four cases-in-chief, the defendant presented his evidence in the same chronology, after which the state presented rebuttal evidence. The presentation of evidence lasted approximately ten weeks, with the first five and one-half weeks devoted entirely to the state's cases-in-chief. Before the the state commenced its case-in-chief in each of the cases, and in its final instructions to the jury, the trial court admonished the jurors that the cases against the defendant were separate and that they should not allow the evidence in one case to influence their consideration of any other. ⁶

The defendant claims on appeal that the joinder of the four cases was harmful to him because it permitted the jury impermissibly to aggregate the evidence in all four cases in order to convict him of the charges in the South Windsor and Bloomfield cases. The defendant also argues that the "brutal" nature of the crimes charged in the four cases "tended to arouse the passions of the jury" and interfered with its ability to consider fairly and independently the evidence in each case. The defendant claims further that the complexity of the evidence and the manner of its presentation confused the jury, enhancing the probability that it would be unable to separate the evidence in each case. We agree with the defendant that, in these circumstances, the trial court erred in permitting a joint trial.

Our General Statutes and rules of practice expressly authorize a trial court to order a defendant to be tried jointly on charges arising from separate cases. General Statutes § 54-57; Practice Book § 829. ⁷ 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 [may] not be disturbed unless it has been manifestly abused." State v. King, 187 Conn. 292, 299, 445 A.2d 901 (1982); State v. Bell, 188 Conn. 406, 410-11, 450 A.2d 356 (1982); 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); see Practice Book § 828. ⁸ 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." State v. King, supra, 187 Conn. at 302, 445 A.2d 901; State v. Silver, 139 Conn. 234, 240, 93 A.2d 154 (1952). We are convinced that this defendant has satisfied these burdens.

The gravamen of the defendant's claim is that the joinder of his cases permitted the jury to consider highly prejudicial evidence of his complicity in four different crimes in deliberating his culpability in the South Windsor and Bloomfield cases. Evidence of the defendant's guilt of one crime generally is not admissible to prove his culpability for another. See State v. Jonas, supra, 169 Conn. at 571, 363 A.2d 1378; State v. Holliday, 159 Conn. 169, 172, 268 A.2d 368 (1970). In a joint trial, however, an omnipresent risk is that "although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused's guilt, the sum of it will convince them as to all." United States v. Lotsch, 102 F.2d 35, 36 (2d Cir.), cert. denied, 307 U.S. 622, 59 S.Ct. 793, 83 L.Ed. 1500 (1939). This risk is greatly enhanced when the offenses joined are factually similar, but legally unrelated. State v. King, supra, 187 Conn. at 300, 445 A.2d 901; State v. Jonas, supra; State v. Oliver, 161 Conn. 348, 361, 288 A.2d 81 (1971); see Drew v. United States, 331 F.2d 85, 89 (D.C.Cir.1964).

An exception to the rule prohibiting the substantive admission of a defendant...