State v. Carty

• Decision Date: 13 March 2007
• Docket Number: No. 26705.,26705.
• Citation: 100 Conn.App. 40,916 A.2d 852
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Jose CARTY.

916 A.2d 852

100 Conn.App. 40

STATE of Connecticut v. Jose CARTY.

No. 26705.

Appellate Court of Connecticut.

Argued November 29, 2006.

Decided March 13, 2007.

Joseph Visone, special public defender, for the appellant (defendant).

Melissa Streeto Brechlin, assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Steven G. Weiss, supervisory assistant state's attorney, for the appellee (state).

BISHOP, ROGERS and LAVINE, Js.

ROGERS, J.

The defendant, Jose Carty, appeals from the judgment of conviction, rendered after a jury trial, of two counts of robbery in the first degree in violation of General Statutes § 53a-134(a)(3)¹ and of one count of possession of a weapon in a motor vehicle in violation of General Statutes § 29-38.² On appeal, the defendant claims that the trial court improperly (1) joined the two counts of robbery in the first degree, (2) allowed the introduction of a credit card receipt into evidence, (3) permitted the prosecution to cross-examine him about the details of his prior criminal history and (4) instructed the jury in a manner that deprived him of his constitutional rights. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts regarding the robbery of the first victim, Flora Gamble. During the early morning hours of March 27, 2001, at approximately 2 a.m., Gamble left her house in Stamford with the intention of buying drugs and cigarettes. As she walked along the sidewalk, the defendant drove his car next to Gamble and called out to her by her name. The defendant asked Gamble if she knew where he could purchase illegal drugs. Gamble indicated that she did know where he could buy drugs and that she, too, was looking for drugs to buy. She then offered the defendant $10 for a ride to a location where she indicated that they both could buy drugs.

After Gamble got in the car with the defendant, he drove into the parking lot of a car wash, stopped the vehicle and pulled out a silver handled knife. The defendant demanded that Gamble, who was holding $60 in her hand, give him all of her money and held the knife to her neck. Gamble gave him the money and was then let out of the car. She then telephoned the police to report the incident.

The jury reasonably could have found the following facts regarding the robbery of the second victim, Judy Taylor. During the early morning hours of April 1, 2001, at approximately 3 a.m., Taylor walked with a friend to an Exxon gasoline station on Washington Boulevard in Stamford to buy cigarettes. Taylor and her friend saw the defendant in his car at the gasoline station and asked him for a ride home. The defendant initially refused to give them a ride home but later agreed to do so after Taylor offered to pay him $5. After Taylor and her friend got in the car, the defendant dropped Taylor's friend off first, near the intersection of Manhattan and Atlantic Streets. The defendant, with Taylor still in the car, continued to drive along Manhattan Street and into the parking lot of an old bank. The defendant drove the car around the back, near where the teller window used to be, and suddenly stopped. The defendant then jumped over the middle of the seat and put a knife against Taylor's throat. The defendant said, "I've killed before, and it wouldn't be the first time and you wouldn't be the last." Taylor gave the defendant all of her money, which was approximately $85. The defendant then told Taylor to get out of the car, which she did. The defendant drove away from the scene.

When the defendant had left, Taylor ran out to the street and flagged down a police car that happened to be passing by. After reporting the incident, Taylor was given a ride home. Later that night, Taylor identified the defendant, whom she had viewed in person as he was being held by the police. Subsequently, Gamble also identified the defendant from a photographic lineup. Additional facts will be set forth as necessary.

On February 13, 2002, the state filed a motion to consolidate the trials of the defendant, who had been charged with two counts of robbery in the first degree in violation of § 53a-134(a)(3) and one count of possession of a weapon in a motor vehicle in violation of § 29-38.³ The court heard oral arguments on the motion and granted the motion to consolidate. Following trial, the jury returned a guilty verdict on all three counts, and the defendant was sentenced to an effective term of ten years imprisonment.⁴ The defendant now appeals.

I

On appeal, the defendant's first claim is that the court improperly granted the state's motion to consolidate the robbery charges. This claim has no merit. The defendant argues that under State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987), he should have received separate trials because the two robberies did not involve discrete, easily distinguishable factual scenarios. The state, on the other hand, claims that the defendant was not prejudiced by the joinder because the factual bases of both robberies would have been cross admissible, as acts of misconduct used to prove identity, if he had been tried separately on each count. Moreover, the state claims that even if the evidence of the two separate incidents was not cross admissible, the court did not abuse its discretion in granting the motion to consolidate because the underlying facts of each crime easily could be distinguished by the jury. We agree with the state that the evidence of the two robberies would have been cross admissible and that the defendant, therefore, was not prejudiced by the joinder.⁵

We first set forth the standard of review for a court's grant of a motion for joinder in a criminal trial. "It is indisputable that the decision to join or sever offenses is submitted to the discretion of the trial court and may not be disturbed absent a manifest abuse of that discretion." State v. Perry, 14 Conn.App. 526, 531, 541 A.2d 1245, cert. denied, 208 Conn. 814, 546 A.2d 281 (1988).

Our General Statutes provide the basis for the trial court to join or sever criminal charges: "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." General Statutes § 54-57; see also Practice Book § 41-19. In order for a defendant to prevail on a challenge to the court's joinder of multiple charges, "the defendant must demonstrate that the denial of severance resulted in substantial injustice, and also that any resulting prejudice was beyond the curative power of the court's instructions." (Internal quotation marks omitted.) State v. Perry, supra, 14 Conn.App. at 531, 541 A.2d 1245. Our Supreme Court has determined that "[w]here evidence of one incident can be admitted at the trial of the other, separate trials would provide the defendant no significant benefit. It is clear that, under such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial." (Emphasis in original.) State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987).

We agree with the state that the defendant was not substantially prejudiced by the joinder of the two charges because the evidence from each case would have been cross admissible in two separate trials. "As a general rule, evidence of guilt of other crimes is inadmissible to prove that a defendant is guilty of the crime charged against him. . . . The rationale of this rule is to guard against its use merely to show an evil disposition of an accused, and especially the predisposition to commit the crime with which he is now charged. . . . The fact that such evidence tends to prove the commission of other crimes by an accused does not render it inadmissible if it is otherwise relevant and material. . . . Such evidence is admissible for other purposes, such as to show intent, an element in the crime, identity, malice, motive or a system of criminal activity," (Citations omitted; internal quotation marks omitted.) State v. Figueroa, 235 Conn. 145, 161-62, 665 A.2d 63 (1995).

"The analysis on the issue of other crimes evidence is two-pronged. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crimes evidence. . . . Because of the difficulties inherent in this balancing process, the trial court's decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . On review by this court, therefore, every reasonable presumption should be given in favor of the trial court's ruling." (Citations omitted; internal quotation marks omitted.) State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987).

Our law on the use of evidence of other crimes to prove the defendant's identity is well settled. "Case law has established that, on the issue of identity, the probative value of evidence of other crimes or misconduct of an accused outweighs its prejudicial impact where the methods used are sufficiently unique to warrant a reasonable inference that the person who performed one misdeed also did the other. . . . Much more is required than the mere repeated commission of crimes of the same class. The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature." (Citations omitted; internal quotation marks omitted.) State v. Pollitt, supra, 205 Conn. at 69-70, 530 A.2d 155.

We agree with the state's argument that the characteristics of the two robberies were unique enough to have been considered a signature offense. The two robberies occurred within four days of each other, and each involved female victims in their late forties who were walking during the early morning hours in the same area...