State v. Fana, No. 27642.

• Citation: 109 Conn.App. 797,953 A.2d 898
• Decision Date: 26 August 2008
• Docket Number: No. 27642.
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Yomar FANA.

953 A.2d 898

109 Conn.App. 797

STATE of Connecticut v. Yomar FANA.

No. 27642.

Appellate Court of Connecticut.

Argued March 26, 2008.

Decided August 26, 2008.

Charles F. Willson, special public defender, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Patricia M. Froehlich, state's attorney, and Mark A. Stabile, supervisory assistant state's attorney, for the appellee (state).

DiPENTIMA, ROBINSON and STOUGHTON, Js.

STOUGHTON, J.

The defendant, Yomar Fana, appeals from the judgments of conviction, rendered after a jury trial, of two counts of burglary in the third degree in violation of General Statutes § 53a-103, two counts of conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a-48 and 53a-103, two counts of criminal mischief in the first degree in violation of General Statutes § 53a-115, two counts of conspiracy to commit criminal mischief in the first degree in violation of General Statutes §§ 53a-48 and 53a-115, and one count each of conspiracy to commit larceny in the first degree in violation of General Statutes §§ 53a-48 and 53a-122, and attempt to commit larceny in the first degree in violation of General Statutes §§ 53a-49 and 53a-122. On appeal, the defendant claims that the trial court improperly (1) denied his motion to sever the charges related to the separate burglaries, (2) instructed the jury, (3) denied his motion to suppress evidence and (4) denied his motions for a judgment of acquittal on the charges of conspiracy to commit larceny in the first degree and attempt to commit larceny in the first degree. We agree with the defendant's fourth claim only.

The following facts could reasonably have been found by the jury on the basis of the evidence presented. On the morning of January 26, 2004, an assistant manager of the Cumberland Farms store, located on Day Street in Brooklyn, arrived at 4 a.m. to open the store for business. When she unlocked the door, rather than hearing the familiar sound of the store's alarm, she was confronted with silence. After noticing that some of the store's merchandise was disturbed, she left the building and called the police. The police arrived at the store shortly thereafter.

The police investigation revealed that one or more individuals had cut a hole, measuring roughly two feet square, through the roof of the Cumberland Farms, near the area of the cash register. At least one person had entered the store. The store's safe, containing the cash the store kept on site, had been dragged to the rear of the storeroom. The bottom drawer of the safe, which at the time held $446, had been broken into. The perpetrator or perpetrators had been unsuccessful, however, in breaking into the top drawer of the safe. In addition, an automated teller machine, located in the front of the store, was unbolted and dragged across the store to the back of the room, although it was not successfully broken into. The machine contained $7500 at the time.

The police discovered numerous items left behind by the burglars. Inside the store, the police discovered two bags containing burglar's tools. Additionally, the police discovered a piece of paper with the defendant's shoe print on it. Outside the store, the police discovered knit caps, a bandana and a Cumberland Farms' grocery bag containing money. The hats and bandana were later tested for DNA, and the defendant could not be eliminated as a contributor of DNA to one of the hats.

About one month after the Cumberland Farms burglary, on February 29, 2004, Michael Robinson and Derek Halkett, both of whom are state police officers, responded to an alarm at the A & P Wines and Spirits store (A & P) in Danielson.¹ When they arrived, they noticed a Nissan Altima speeding out of the parking lot. Robinson pursued the speeding car, while Halkett remained to investigate the alarm. Robinson soon approached the speeding vehicle and signaled for it to stop. The car was occupied by Angel Fana, who was driving, and by Jamie Garcia, Wilson Martinez and the defendant. Not having received any information confirming that there had been a burglary at the A & P, the officer permitted the vehicle to leave.

Robinson then returned to the A & P to meet a key-holder to the store so that he could enter the store and complete the investigation. Inside, he noticed that the alarm box had been tampered with, and a hole, approximately four feet by four feet, had been cut through the roof. Outside the store, Robinson discovered a duffle bag containing burglar's tools and a red knit hat. Robinson immediately reported a suspected burglary, and Halkett, joined by another police officer, commenced pursuit of the Altima. The Massachusetts state police were also notified because the Altima was heading toward that state. Soon after the Altima crossed the state line, a Massachusetts police officer stopped the car, and the four occupants were arrested, apparently for having burglar's tools, and were taken to a Massachusetts police barracks. While held in the barracks, the defendant and the other occupants of the car met with Trooper Norman Nault of the Connecticut state police. Nault seized, among other things, the clothing that all four men were wearing, including the defendant's sneakers.

The defendant was subsequently arrested in connection with both the Cumberland Farms and A & P incidents. The court granted the state's motion to consolidate the charges relating to the two incidents into a single trial. Later, the defendant moved to sever the two cases, asserting likely jury confusion due to the similar nature of the facts underlying the two incidents. The court denied the defendant's motion. The defendant was convicted, after a trial to the jury, of the several counts related to the two burglaries, and the court rendered judgments. From these judgments the defendant appeals.

I

The defendant first claims that the court improperly denied his motion to sever the charges related to the Cumberland Farms and A & P incidents. The defendant asserts that the factual circumstances underlying the two incidents are so similar that juror confusion likely resulted from trying the cases together. The defendant further asserts that he was prejudiced because the jurors may have improperly relied on evidence from one incident to find guilt on the charges related to the other.

The following facts are relevant to the resolution of the defendant's claim. The court entertained argument on the defendant's motion to sever on January 24, 2006. The defendant's counsel stated: "We're asking for the case to be severed." Counsel further explained: "I think it's especially appropriate in this case, Your Honor ... it's going to be quite a bit easier for the state if [the jurors] hear evidence of both of these cases to prove any one of them because the evidence they're going to use in one is going to obviously taint the way the jury feels in the other."

The state then argued: "There are similarities to the offenses, which in some instances would argue against joinder. However, the evidence, I believe, in this case is going to show that this was a common scheme. And evidence of one of the crimes would have been—would be admissible in the trial of [the other]. ... So, the cases are legally connected. It was essentially an ongoing conspiracy. Evidence from one trial would be admissible in the other trial." (Emphasis added.) The court then denied the motion to sever.

Practice Book § 41-18 provides: "If it appears that a defendant is prejudiced by a joinder of offenses, the judicial authority may, upon its own motion or the motion of the defendant, order separate trials of the counts or provide whatever other relief justice may require." Our Supreme Court has instructed that in "deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb." (Internal quotation marks omitted.) State v. Davis, 286 Conn. 17, 28, 942 A.2d 373 (2008). "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." (Internal quotation marks omitted.) State v. Ellis, 270 Conn. 337, 375, 852 A.2d 676 (2004). In State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987), our Supreme Court determined that courts should carefully evaluate three factors when considering whether a motion to sever should be granted. The Boscarino factors are "(1) whether the charges involve discrete easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant's part; and (3) the duration and complexity of the trial." (Internal quotation marks omitted.) State v. Ellis, supra, at 375, 852 A.2d 676. "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." (Internal quotation marks omitted.) Id. At least with regard to the first Boscarino factor, a defendant will not be able to demonstrate prejudice by a consolidation of charges if the evidence presented would have been cross admissible at the two trials, were the charges tried separately. See State v. Greene, 209 Conn. 458, 464-65, 551 A.2d 1231 (1988).

The defendant, on appeal, relies solely on the first Boscarino factor to argue that the court abused its discretion by denying his motion to sever. He asserts that the factual circumstances of the two burglaries were so similar as to lead to jury confusion. He further argues that the manner in which the burglaries were committed was not so similar as to constitute signature crimes, and, therefore, the evidence would not have been cross admissible to prove identity had the cases been tried separately.² The state, on...