State v. Fauci

• Decision Date: 01 February 2005
• Docket Number: (AC 24446).
• Citation: 87 Conn. App. 150,865 A.2d 1191
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. MICHAEL FAUCI.

87 Conn. App. 150

865 A.2d 1191

STATE OF CONNECTICUT v. MICHAEL FAUCI.

(AC 24446).

Appellate Court of Connecticut.

Argued November 15, 2004.

Officially released February 1, 2005.

Flynn, Bishop and DiPentima, Js.

Robert S. Bello, with whom, on the brief, were Patrick D. McCabe, Lawrence M. Lapine and Thomas M. Cassone, for the appellant (defendant).

Denise B. Smoker, assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Maureen V. Ornousky, senior assistant state's attorney, for the appellee (state).

Opinion

FLYNN, J.

The defendant, Michael Fauci, appeals from the judgments of conviction, rendered after a consolidated trial by jury, of three counts of robbery in the first degree in violation of General Statutes § 53a-134(a) (4) and three counts of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134(a)(4). He was sentenced to a total effective term of fifteen years incarceration with five years of special parole. On appeal, the defendant claims that he was deprived of a fair trial because (1) the court abused its discretion in granting the state's motion for joinder; (2) the court improperly instructed the jury to consider the evidence cumulatively and (3) the prosecutor engaged in misconduct. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On the evening of May 28, 2001, the defendant and his friend, Ricky Saymon, robbed a McDonald's restaurant in Orange. The defendant's former girlfriend, Laurie Lasko, drove the getaway car. Lasko parked her red Buick Skylark in an abandoned parking lot near the McDonald's, and she waited in the car while the defendant and Saymon, wearing black clothing, masks and gloves and carrying a duffle bag, went to rob the restaurant. The defendant carried a gun, and Saymon carried a hammer. At approximately 11:45 p.m., the defendant and Saymon gained access to the closed restaurant by throwing a rock through a glass door. The restaurant manager, Inez Padilla, and one employee, Marlene Flores, were inside the restaurant. The defendant pointed the gun at Padilla and ordered her to give him the money that she was holding in her hand, as she prepared to make the nightly deposit. The defendant took the money and then locked both Padilla and Flores in the stockroom. Soon, he demanded that Padilla give him all of her keys so that he could unlock the drop safe under the front counter. Padilla gave him the keys from underneath the stockroom door but told him that she did not have the key to the drop safe. Padilla and Flores listened as they heard the defendant and Saymon ransack the restaurant for fifteen or twenty minutes. Once things quieted down, they pushed out some ceiling tiles in the stockroom, crawled through the opening and escaped. They found that the restaurant had been ransacked, the register drawers had been pried open and the drop safe had been stolen. They telephoned the police.

On August 10, 2001, the defendant suggested to Samuel Parisi that they rob a Taco Bell restaurant in Norwalk to obtain money to post bail for Saymon.¹ The defendant's younger brother, Adam Fauci, drove the getaway car and took the defendant and Parisi to the back of the Taco Bell parking lot. After dropping them off, Adam Fauci drove across the street to a gasoline station to wait. Both Parisi and the defendant, wearing black clothing, masks, gloves and hats and carrying firearms, waited near a dumpster for the customers to leave the Taco Bell. The defendant carried a loaded firearm, and Parisi carried two unloaded firearms. Parisi picked up a rock and, once the customers were gone, threw it through the glass door, and he and the defendant entered the Taco Bell with their weapons drawn. The defendant pointed his firearm at the manager, William Morales, while Parisi kept his weapons pointed at the four employees. The defendant asked Morales where the money was kept, and Morales said that it was in the office. The defendant then walked Morales to the office to get the deposit bag. The defendant next ordered Morales to open the safe at the front counter. Morales attempted to open the safe but explained that it was deadlocked and could not be opened until morning. The defendant did not accept this and ordered Morales to try again. When the defendant ordered Morales to try a third time, Morales explained that an alarm would sound and the police would come if he tried again. The defendant then ordered the cashier at the drive through window to give him the money from that cash register, which the cashier did, and the defendant and Parisi left the Taco Bell.

On September 5, 2001, the defendant borrowed Lasko's car, and he, Parisi and Saymon, who was then out of jail, planned to rob a McDonald's restaurant in Norwalk. The men gathered their gloves, masks, hats and hooded sweatshirts for the robbery. They also took their firearms. Although they had planned to gain access to the McDonald's by throwing a rock through a glass door, the door was unlocked, giving them easy access. Saymon grabbed the manager, Daisy Ashman, and ordered her to open the safe. The defendant stood over another employee, Blanca Vasquez, ensuring that she did not move. After Ashman opened the safe, Parisi emptied it. Saymon then asked Ashman where additional money was located, and Ashman stated that she did not know. The men then grabbed Vasquez's purse, which contained $500, and they ran out of the McDonald's.

The defendant was charged with and convicted of three counts of robbery in the first degree and three counts of conspiracy to commit robbery in the first degree. This appeal followed.

I

The defendant first claims that the court abused its discretion in granting the state's motion for joinder. Specifically, the defendant argues that the evidence of each crime would not have been cross admissible had the cases been tried separately, that the jury was confused by the manner in which the state presented the evidence, and that the robbery at the McDonald's in Orange was particularly brutal. All of this, the defendant argues, resulted in clear prejudice against him and deprived him of a fair trial. The state argues that the evidence was not only cross admissible but that joinder was also proper under the factors stated in State v. Boscarino, 204 Conn. 714, 722-23, 529 A.2d 1260 (1987). We agree with the state.

In its motion for joinder before trial, the state argued that the robbery and conspiracy charges, although technically not signature crimes, were so similar that they clearly demonstrated a common scheme, plan or design such that the evidence of each crime would be cross admissible if the cases were tried separately. The defendant objected claiming that the robberies and conspiracies were so similar that allowing the cases to be joined would pose a risk of confusing the jury. He also argued, however, that the crimes were not so similar that evidence pertaining to each crime would be cross admissible under a signature crime theory. The court, in granting the motion for joinder reasoned that although the crimes did not amount to signature crimes, they did contain a sufficient degree of similarity. The court also weighed the Boscarino factors and concluded that consolidation was proper in this case.

General Statutes § 54-57 provides: "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." See also Practice Book § 41-19. "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. . . . The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court's instructions." (Citations omitted; internal quotation marks omitted.) State v. Herring, 210 Conn. 78, 94-95, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989).

"Because of its prejudicial impact, evidence of prior acts of misconduct is inadmissible merely to show a defendant's bad character or tendency to commit criminal acts. . . . An exception to the rule prohibiting the substantive admission of a defendant's prior criminal offenses in the trial of another case is when the collateral crime tends directly to prove the commission of the principal crime, or the existence of any element of the principal crime . . . . Consistent with this rule, the state may introduce evidence of other crimes to establish a defendant's intent, identity, malice, motive or system of criminal activity. . . .

"Where evidence of one incident can be admitted at the trial of [another incident], 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." (Citations omitted; internal quotation marks omitted.) State v. Marsala, 43 Conn. App. 527, 532-33, 684 A.2d 1199 (1996), cert. denied, 239 Conn. 957, 688 A.2d 329 (1997).

We agree with the trial court that joinder in this case was proper because evidence relating to each crime would have been admissible in each separate trial to prove a common plan or scheme. See State v. Greene, 209 Conn. 458, 464-65, 551 A.2d 1231 (1988). "To be relevant on the issue of identity or common scheme, the other crime charged must be sufficiently unique to warrant a reasonable inference that the person who performed one misdeed also did the other. . . . The similarities connecting the crimes need not be so unique as to constitute signature crimes. . . . Rather, the features may be of substantial but lesser distinctiveness...