State v. David P.

• Decision Date: 18 June 2002
• Docket Number: (AC 20907)
• Citation: 70 Conn. App. 462,800 A.2d 541
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. DAVID P.

70 Conn. App. 462

800 A.2d 541

STATE OF CONNECTICUT v. DAVID P.¹

(AC 20907)

Appellate Court of Connecticut.

Argued February 14, 2002.

Officially Released June 18, 2002.

Spear, Mihalakos and Hennessy, Js. Dawne Westbrook, with whom, on the brief, was William S. Palmieri, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and John M. Waddock, supervisory assistant state's attorney, for the appellee (state).

Opinion

MIHALAKOS, J.

The defendant, David P., appeals from the judgments of conviction, rendered after a jury trial, of five counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2),² one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1)³ and five counts of risk of injury to a child in violation of General Statutes § 53-21.⁴ On appeal, the defendant claims that the court improperly (1) consolidated three separate cases against him, (2) prevented him from presenting a defense, (3) restricted his right to cross-examine witnesses and (4) allowed the prosecutor to engage in prosecutorial misconduct. We affirm the judgments of the trial court.

The defendant was charged in three separate informations in connection with incidents involving three separate victims. In the first information, the defendant was charged with two counts of sexual assault in the first degree and two counts of risk of injury to a child involving A.⁵ In the second information, the defendant was charged with three counts of sexual assault in the first degree and two counts of risk of injury to a child involving B. In the third information, the defendant was charged with one count of sexual assault in the third degree and one count of risk of injury to a child involving C. The court granted the state's motion to consolidate the charges against the defendant.⁶ On March 30, 2000, the jury returned verdicts of guilty on all counts. Thereafter, the court sentenced the defendant to a total effective term of ninety years incarceration.

The jury reasonably could have found the following facts. The defendant lived with all three victims at the time of the assaults. The defendant assaulted the first victim, A, on two occasions while she was in the fourth grade. Both times, the defendant called the victim at her grandparents' residence and asked that she come home alone. The first time, he called the victim to his bedroom and told her to get on the bed. After instructing the victim to remove her clothing, the defendant began touching her. He then put his finger into her vagina and made her touch his penis. The second time, the defendant once again called the victim at her grandparents' home. Once she arrived, the defendant called her to his bedroom, but this time there was a pornographic video displayed on the television. He told the victim to get undressed and get on the bed. The defendant again told the victim to touch his penis, and he placed his finger into her vagina.

The defendant began assaulting the second victim, B, while she was also in the fourth grade. In the beginning, the defendant touched the victim's breasts and kissed her on the lips while she was still dressed. After the victim started the fifth grade, the defendant began having sexual intercourse with her in his bedroom, sometimes placing Vaseline on his penis beforehand. The assaults continued while the victim attended the sixth grade. On one occasion, the defendant forced the victim to perform oral sex.

The defendant assaulted his third victim, C, while she attended the second and third grades. During the assaults, the defendant touched her when he placed his hand under the victim's shirt and down her pants. That also occurred in the defendant's bedroom. Additional facts will be set forth where they are relevant to the issues on appeal.

I

The defendant first claims that the court improperly granted the state's motion to consolidate the three informations. Specifically, he argues that because the cases against him were similar factually but unrelated legally, joinder was inappropriate. We disagree.

A trial court is authorized by statute and rule to order a joint trial of charges against the same defendant. See General Statutes § 54-57;⁷ Practice Book § 41-19.⁸ Furthermore, our courts generally favor joinder of cases because it "expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve upon juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once." (Internal quotation marks omitted.) State v. Walsh, 52 Conn. App. 708, 712, 728 A.2d 15, cert. denied, 249 Conn. 911, 733 A.2d 233 (1999). In Connecticut, there is a presumption in favor of consolidation of appropriate cases. See State v. Chance, 236 Conn. 31, 38, 671 A.2d 323 (1996).

"The grant or denial of a motion for severance rests in the sound discretion of the trial judge." (Internal quotation marks omitted.) Id. "The trial court has discretion to determine whether separate cases involving the same defendant should be consolidated ... and the exercise of that discretion may not be disturbed on appeal unless it has been manifestly abused.... To demonstrate that the trial court abused its discretion, the defendant bears the heavy burden of convincing this court that the joinder resulted in substantial injustice." (Citations omitted.) State v. Walsh, supra, 52 Conn. App. 711-12. "Whether a joint trial will be substantially prejudicial to the defendant's rights means something more than that it will be less advantageous to [him]." (Internal quotation marks omitted.) Id.

Our Supreme Court has set forth a multifaceted approach for our courts to apply when considering whether to consolidate multiple cases against the same defendant. "[S]everance may be necessary to prevent undue prejudice resulting from the consolidation of two or more charges for trial when: (1) the cases do not involve discrete, easily distinguishable factual scenarios; (2) one or more of the counts alleges brutal or shocking conduct by the accused; or (3) the trial is one of long duration or very complex." State v. Chance, supra, 236 Conn. 42; see also State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987); State v. Stevenson, 43 Conn. App. 680, 686, 686 A.2d 500 (1996), cert. denied, 240 Conn. 920, 692 A.2d 817 (1997). "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 from improper joinder." State v. Walsh, supra, 52 Conn. App. 712. Because none of those factors is present here, the court did not abuse its discretion by consolidating the three cases against the defendant.

First, the factual predicate to each case is distinct. Although the assaults on each victim occurred in the defendant's bedroom, they each contained easily distinguishable factual scenarios. The first victim was assaulted only twice and was subjected to a pornographic video. The second victim was assaulted over the course of two years. She usually was clothed during the early assaults, but at some point the defendant ordered her to undress and assaulted her vaginally and orally. The third victim was clothed during the assaults at all times. Furthermore, the state presented its casein-chief in an orderly manner that enabled the jury to consider the evidence related to each charge separately. See State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987) (no abuse of discretion in denying severance if state's orderly presentation of evidence has prevented confusion of jury and has enabled jury to consider evidence relevant to each charge separately and distinctly); State v. Walsh, supra, 52 Conn. App. 712-13 (same); State v. Stevenson, supra, 43 Conn. App. 688 (same).

Next, the defendant was not prejudiced by the joinder of a shocking and brutal case. In his brief, the defendant contends that the "sexual assaults alleged in each case unarguably confronted the jury with `brutal and shocking conduct.'" Although we may agree that sexual assault against young women and girls is appalling, the assaults against all three victims involved a similar degree of physical force and similar threats. "Sexual assault cases should be severed only where one of the sexual assault crimes with which the defendant is charged is so brutal and shocking when compared with the other[s], that a jury, even with proper instructions, could not treat them separately." (Internal quotation marks omitted.) State v. Walsh, supra, 52 Conn. App. 714; see also State v. Stevenson, supra, 43 Conn. App. 691 (when all cases sought to be consolidated are brutal and shocking, they may be joined properly if consolidation does not cause high risk of one case being tainted by the unusually shocking or brutal nature of others, especially if evidence as to each would have been cross admissible had cases been tried separately).

Finally, the trial was not overly complex or exceptionally long. It lasted only six days, including argument and jury instructions, and involved only thirteen witnesses. See State v. Walsh, supra, 52 Conn. App. 713 (six day trial involving two victims not exceptionally long or complex); State v. Stevenson, supra, 43 Conn. App. 689 (six day trial involving two incidents not unnecessarily long or complex); compare State v. Boscarino, supra, 204 Conn. 723-24 (ten week trial involving fifty-five witnesses, four victims unduly long, complex).

We are mindful that when incidents are factually similar, there is an inherent danger that a jury might use evidence of one crime to find a defendant guilty of the others. See State v. Boscarino, supra, 204 Conn. 722; State v. Stevenson, supra, 43 Conn. App. 688. There was no such...