State v. Edwards

• Decision Date: 21 April 1987
• Docket Number: No. 4265,4265
• Citation: 10 Conn.App. 503,524 A.2d 648
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Gerard EDWARDS.

Page 648

524 A.2d 648

10 Conn.App. 503

STATE of Connecticut v. Gerard EDWARDS.

No. 4265.

Appellate Court of Connecticut.

Argued Feb. 9, 1987.

Decided April 21, 1987.

Ben A. Solnit, Bridgeport, for appellant (defendant).

James G. Clark, Asst. State's Atty., with whom, on the brief, were Linda L. Yoder, Sp. Atty. and John Waddock, Asst. State's Atty., for appellee (state).

Before HULL, DALY and STOUGHTON, JJ.

DALY, Judge.

After a jury trial in which two unrelated criminal matters were joined, the defendant was convicted of the second matter, burglary in the third degree in violation of General Statutes § 53a-103 and criminal attempt to commit larceny in the sixth degree in violation of General Statutes §§ 53a-49 and 53a-125b. On appeal from the judgments of conviction, he claims that the trial court erred (1) in failing to sever the two cases, (2) in improperly instructing the jury as to the burglary charge in the second matter, and (3) in denying the defendant's motion for a new trial based on newly discovered evidence relevant to the second matter. We find no reversible error.

The jury could reasonably have found the following facts. In the first criminal matter (hereinafter referred to as matter I), wherein the defendant was acquitted, the defendant was charged with burglary in the third degree and larceny in the third degree. The defendant's fingerprints were found on a pane of glass which had been removed from the rear door of a residence from which two candelabra and a tea set had been purloined. The defendant's defense was that he and his brother had painted that residence some months previously and, in the course of painting near the door, his ladder had fallen, breaking glass in the door. The defendant maintained that he had replaced the pane of glass on which his fingerprints were later found.

In the second case (hereinafter referred to as matter II), the complainant and his wife, upon arising to say their morning prayers, discovered a man hiding under their bed. As the intruder fled through the cellar, he was observed by the complainant's son, who identified the intruder as his friend, the defendant. The son and the defendant had socialized together the previous evening in the defendant's home, just up the street. Although the pockets of the complainant's trousers, which had been left on a chair, were turned inside out, it did not appear that anything had been taken. The defendant maintained that he had walked the son home twice the previous evening because the son was inebriated. The defendant presented two alibi witnesses, his sister and his niece, who testified that the defendant was at home sleeping during the time of the incident.

Prior to the trial, the state moved for a joinder of the two matters. The defendant objected, but the motion was granted. After his acquittal on the first matter and his conviction on the second, the defendant filed a motion for a new trial on the basis of newly discovered evidence that the son had retracted his identification of the defendant as the culprit. At a hearing on the motion, the defendant's sister so testified. The motion was denied.

I

The defendant first claims that the trial court erred in granting the state's motion for joinder and in denying the defendant's motion for severance. The defendant claims that this decision, in effect, precluded him from exercising both his right not to testify in matter I and his right to testify in matter II.

A judicial authority may order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together. Practice Book § 829; General Statutes § 54-57. A judicial authority may also order separate trials if it appears that a defendant is prejudiced by joinder. Practice Book § 828. This does not mean that severance is to be had for the asking. State v. King, 187 Conn. 292, 302, 445 A.2d 901 (1982); see also State v. Bell, 188 Conn. 406, 410-11, 450 A.2d 356 (1982).

The question of severance lies within the discretion of the trial court. We will not disturb the trial court's conclusion on the issue absent a clear abuse of discretion. The discretion to sever a trial should be exercised only if a joint trial will substantially prejudice the defendant. Substantial prejudice is more than disadvantage and the formidible task of demonstrating an abuse of discretion and that a joint trial resulted in substantial prejudice falls to the defendant. State v. Smith, 201 Conn. 659, 669, 519 A.2d 26 (1986); State v. Schroff, 198 Conn. 405, 408, 503 A.2d 167 (1986); State v. Rodgers, 198 Conn. 53, 63, 502 A.2d 360 (1985); State v. Wiggins, 7 Conn.App. 95, 101, 507 A.2d 518 (1986). Simply put, the test to be applied is whether substantial injustice will result if the charges are tried together. State v. King, supra, 187 Conn. at 299, 445 A.2d 901; State v. Oliver, 161 Conn. 348, 360-61, 288 A.2d 81 (1971).

In this case, the defendant asserts that the joinder of the two matters impermissibly interfered with his desire both to remain silent on one of the matters and to testify in the other. Clearly, the defendant had the right to establish and to present a defense. State v. Delgado, 8 Conn.App. 273, 282, 513 A.2d 701 (1986).

An accused's decision to testify on some but not all of the charges does not automatically entitle him to a severance. If it did, the defendant, and not the court, would control whether he would be granted a severance. The judge has the discretion to weigh the varying circumstances in each case, remaining always mindful of the tension between concern for judicial economy and the defendant's interest in choosing to testify or to remain silent, and to grant or deny the severance accordingly. State v. Bell, supra, 188 Conn. at 410-11, 450 A.2d 356; State v. King, supra, 187 Conn. at 304, 445 A.2d 901.

There is no need for severance unless the defendant demonstrates with convincing clarity that he had (1) important testimony to present on one count and (2) a strong need to refrain from testifying on the other. In order to show this, the defendant must provide enough information about the testimony he intends to give on the one count as well as his reasons for wishing to remain silent on the other. This information must satisfy the court that the claim of prejudice is genuine, and provide sufficient information for a proper exercise of the court's discretion. State v. Schroff, supra, 198 Conn. at 409, 503 A.2d 167; State v. Rodgers, supra, 198 Conn. at 65, 502 A.2d 360; State v. King, supra, 187 Conn. at 302, 445 A.2d 901. In addition, if the multiple counts are such that the state's evidence can be presented in such a way that the jury will be able to treat the evidence on each charge separately, so that the defendant's case is not confounded, the trial judge need not order a severance. State v. King, supra, 301, 445 A.2d 901; State v. Oliver, supra, 161 Conn. at 361, 288 A.2d 81; State v. Frazier, 7 Conn.App. 27, 38, 507 A.2d 509 (1986).

The defendant claims he did not wish to testify in the first matter so as to protect himself from damaging impeachment. He further claims that his testimony was not required in that matter since the state's only evidence was circumstantial and he could refute it through the use of fingerprints. In the second matter, the defendant intended to present an alibi defense through his own testimony and that of other members of his family. Thus, the testimony the defendant intended to present himself on the second matter was similar to the evidence he intended to offer through his alibi witnesses. The defendant did not present the trial court with information which demonstrated a strong reason to refrain from testifying in matter I or the "importance" of his testimony in matter II.

In this case, the state presented its evidence to the jury in two distinct segments, first introducing evidence on matter I, and then introducing evidence on matter II. The jury was specifically instructed several times to consider each incident and its evidence separately. ¹ Thus, the possibility that the jury would be confused or would consider the evidence in a cumulative manner was minimized. See State v. Wiggins, supra, 7 Conn.App. at 101, 507 A.2d 518. In addition, the fact that the jury returned a verdict of not guilty on matter I and guilty on matter II suggests a lack of confusion on the part of the jury.

The defendant has failed to sustain his heavy burden of showing that the denial of his motion to sever resulted in substantial injustice or prejudice. In another context, our Supreme Court has stated that in order to demonstrate an abuse of the trial court's discretion, the defendant must show that the court " 'acted arbitrarily and substantially impaired the defendant's ability to defend himself, before an appellate court will conclude that the trial judge abused his discretion.' " iState v. Marra, 195 Conn. 421, 437-38, 489 A.2d 350 (1985) (discussing the denial of a motion for a continuance). After weighing the important interest of the judicial economy of a single trial against this defendant's interest and reasons for desiring a severance, we conclude that the joinder was not erroneous and we cannot find an abuse of discretion in the denial of the defendant's motion to sever.

II

The defendant's next claim concerns the requirement under the sixth amendment to the United States constitution, applicable to the states through the fourteenth amendment, that the verdicts of six member juries must be unanimous. See Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979). The defendant was charged with burglary in the third degree. ² An essential prerequisite to a conviction of burglary in any degree is proof beyond a reasonable doubt that the accused entered or remained unlawfully in a building or dwelling. To enter unlawfully means to accomplish an entry by unlawful means, while to remain unlawfully...