State v. Davis, (AC 26039) (Conn. App. 12/12/2006)

• Decision Date: 12 December 2006
• Docket Number: (AC 26039)
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT <I>v.</I> LARRY DAVIS

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STATE OF CONNECTICUT

v. LARRY DAVIS

(AC 26039)

Appellate Court of Connecticut.

Argued September 18, 2006.

Officially released December 12, 2006.

Appeal from Superior Court, judicial district of New Haven, Fasano, J.; Licari, J.

Ira B. Grudberg, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and James G. Clark, senior assistant state's attorney, for the appellee (state).

Schaller, Harper and Hennessy, Js.

Opinion

SCHALLER, J.

The defendant, Larry Davis, appeals from the judgments of conviction, rendered after a jury trial, of numerous criminal offenses stemming from separate informations.¹ On appeal, the defendant claims that the trial court improperly (1) consolidated and failed to sever three separate informations, (2) admitted evidence of his parole status, (3) permitted his former criminal defense attorney to testify and (4) found that the defendant had violated the conditions of his probation. We disagree and affirm the judgments of the trial court.

The jury reasonably could have found the following facts. In September, 1998, the first victim, Victoria Standberry, had been introduced to the defendant by her best friend, Taraneisha Brown. Brown and the defendant were involved in a personal relationship. On September 27, 1998, Standberry asked Brown for payment toward a substantial debt owed by Brown. Brown replied that she would return Standberry's telephone call but never did.

The next day, the defendant received a telephone call in the afternoon and left work early. On the evening of September 28, 1998, Standberry parked her vehicle in the Pro Park parking lot located near Yale-New Haven Hospital (hospital), where she was employed in the food and nutrition department. Brown knew that Standberry parked in that particular lot when working at the hospital. Standberry left the hospital carrying a plate of food at approximately 9:25 p.m. and went to her vehicle. As she was placing the food in her vehicle, she observed an individual approach. She attempted to close her door, but it was forced open. The defendant came up to Standberry, said "revenge," and shot her several times before slowly walking away.²

The next day, Standberry identified the defendant as the shooter to the investigating police detective. The police commenced a search for the defendant but were unsuccessful in locating him. The defendant missed his October 20, 1998 meeting with his parole officer. Law enforcement agents eventually apprehended the defendant in Atlanta, Georgia, on September 4, 1999. After returning to Connecticut on April 19, 2000, the defendant was released on bond.

Attorney Thomas Farver represented the defendant and attended a pretrial conference on October 1, 2001. The court, Fracasse, J., scheduled the defendant's trial for October 9, 2001, and Farver informed the defendant of this date. The defendant failed to appear at the courthouse on October 9 and 10, 2001, and the court issued a warrant for his arrest. Members of the Connecticut violent crime fugitive task force searched for the defendant and learned that he was residing in Florida. The defendant was arrested in Palm Beach County on October 6, 2003, and was returned to Connecticut on December 3, 2003.

These events resulted in the state's charging the defendant with assault in the first degree, carrying a pistol without a permit, criminal possession of a firearm, failure to appear in the first degree and, in a part B information, being a persistent dangerous felony offender. These charges were filed under docket number CR00-490576.

The second victim, Lenwood E. Smith, Jr., was at a club in New Haven on January 25, 2002. After speaking with the defendant for approximately twenty minutes, he left at 2 a.m. The defendant stopped Smith in the parking lot and asked for a ride to Sheffield Street. Smith agreed, and the defendant and his friend entered Smith's vehicle. After arriving, the defendant asked Smith to drive them to Carmel Street, where an individual known as "Mizzy" owed him money. After Smith drove to the bottom of a hill, the defendant took out a gun and threatened him. Smith continued on to Carmel Street and parked. The defendant placed his gun against Smith's head and demanded money. Smith gave the defendant his wallet and told him that he could get more from an automated teller machine. Smith drove to a nearby bank and, after parking, fled to a nearby gas station. Smith telephoned the police and showed them the bank parking lot where he had left his vehicle. The police recovered Smith's vehicle approximately one week later.

The events surrounding the Smith incident resulted in charges against the defendant of robbery in the first degree, larceny in the second degree and, in a part B information, being a persistent dangerous felony offender. These charges were filed under docket number CR03-24537.

A summary of the evidence presented against the defendant with respect to a third victim, Leonard Hughes, is necessary for our discussion. There was evidence presented that Hughes was the superintendent of a building at 260 Dwight Street in New Haven. During the early morning of March 13, 2002, the defendant rang Hughes' doorbell and said he was there to pick up items that an individual known as "Magnetic"³ had left for him. These items included a motor vehicle,⁴ a safe, a bulletproof vest and 2.5 kilograms of cocaine. The defendant entered the apartment, pointed a gun at Hughes and ordered him to turn over the requested items. The defendant took the keys to the motor vehicle and specifically asked for the cocaine. Hughes responded that there was no cocaine in the apartment. After being told to get on his knees, Hughes indicated that he would give the defendant the cocaine.⁵ The two men walked into a storage area, and Hughes managed to duck behind a steel door, escape through a window and flee to a nearby hotel. Hughes reported the incident to the police, who searched for the defendant, but were unable to locate him. Later that day, police officers recovered Hughes' motor vehicle.

The events surrounding the Hughes' incident led to the defendant's being charged with burglary in the second degree, robbery in the first degree and larceny in the second degree. The jury found the defendant not guilty of all the charges pertaining to the Hughes incident and guilty of all the charges pertaining to the Standberry and Smith incidents, as well as two counts of being a persistent dangerous felony offender. The court also found that the defendant had violated the terms of his probation and imposed a total effective sentence of eighty years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly consolidated and failed to sever three separate informations. Specifically, he argues that consolidation of the assault and robbery cases, as well as the refusal to sever the matters, resulted in undue prejudice to his right to a fair trial. We disagree.

The following additional facts are necessary for our resolution of this case. The state filed a motion, dated March 9, 2004, to consolidate multiple files against the defendant for a single trial. The defendant objected to the state's motion. The court denied the state's motion with respect to an information charging the defendant with entering a house, demanding money at gunpoint and threatening children, and granted the motion with respect to the remaining informations.

During the course of the proceedings, the defendant, on several occasions, renewed his objection to consolidation and moved to sever the charges against him. The defendant also filed a postverdict motion for a new trial alleging that the improper joinder deprived him of a fair trial. The court denied all of the these motions.

We begin our analysis of the defendant's claim by setting forth the relevant legal principles and standard of review. "In Connecticut, joinder of cases is favored.. . . Joinder 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. Banks, 59 Conn. App. 112, 123, 755 A.2d 951, cert. denied, 254 Conn. 950, 762 A.2d 904 (2000); see also State v. David P., 70 Conn. App. 462, 466-67, 800 A.2d 541, cert. denied, 262 Conn. 907, 810 A.2d 275 (2002); State v. Snead, 41 Conn. App. 584, 587, 677 A.2d 446 (1996).

Despite this deferential standard, the court's "discretion regarding joinder, however, is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant's right to a fair trial." State v. Delgado, 243 Conn. 523, 532, 707 A.2d 1 (1998). "[Our Supreme Court has recognized] that an improper joinder may expose a defendant to potential prejudice for three reasons. First, when several charges have been made against the defendant, the jury may consider that a person charged with doing so many things is a bad [person] who must have done something, and may cumulate evidence against him . . . . Second, the jury may have used the evidence of one case to convict the defendant in another case even though that evidence would have been inadmissible at a separate trial. . . . [Third] joinder of cases that are factually similar but legally unconnected . . . present[s] the . . . danger that a defendant will be subjected to the omnipresent risk . . . 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." (Internal quotation marks omitted.) Id.

"General Statutes § 54-57 and Practice Book §...