State v. Frazier

• Decision Date: 15 April 1986
• Docket Number: 3304,Nos. 3303,s. 3303
• Parties: STATE of Connecticut v. Raymond D. FRAZIER.
• Court: Connecticut Court of Appeals

Page 509

507 A.2d 509

7 Conn.App. 27

STATE of Connecticut v. Raymond D. FRAZIER.

Nos. 3303, 3304.

Appellate Court of Connecticut.

Argued Jan. 9, 1986.

Decided April 15, 1986.

John J. Buckley, Special Public Defender, for appellant (defendant in both cases).

Robert J. Devlin, Jr., Asst. State's Atty., with whom was Arnold Markle, State's Atty., for appellee (State).

Before DUPONT, C.J., and BORDEN, and BIELUCH, JJ.

DUPONT, Chief Justice.

After a trial to a jury, the defendant was convicted of robbery in the first degree, a violation of General Statutes § 53a-134(a)(3), assault in the second degree, a violation of General Statutes § 53a-60(a)(2), and robbery in the third degree, a violation of General Statutes § 53a-136. The defendant was charged by two separate informations with these crimes which were committed on two different dates and which involved two separate unrelated incidents. The charges against the defendant arising from one incident were robbery in the third degree and assault in the third degree and, from the second incident, robbery in the first degree and assault in the second degree. The defendant was found guilty of all the charges except assault in the third degree.

The defendant appeals from the judgments rendered following the verdicts, ¹ claiming (1) that the trial court, by its comments on the evidence, usurped the function of the jury, thus denying the defendant his right to trial by jury under the sixth amendment to the federal constitution and article first, § 8 of the state constitution, (2) that the identification procedures were so suggestive as to constitute error, (3) that the defendant was prejudiced by the trial of the two cases together, (4) that the trial court should have held, as a matter of law, that a key used by the defendant was not a dangerous instrument, and (5) that the pre-trial investigation, when combined with the conduct of the trial and the court's charge to the jury, denied the defendant due process.

The charges contained in the first information occurred on the morning of July 28, 1983. Phillip Scarfo, the proprietor of a store in Meriden, was robbed and assaulted while opening his store for business. Scarfo observed his assailant at close range for approximately two minutes before being struck on the head by him. He was rendered unconscious and suffered a concussion as a result of the assault. Scarfo later gave a statement regarding the incident to the police and assisted in the preparation of a composite sketch of the assailant. He also selected a picture of his assailant from a police photobook, and from a photoboard prepared by the police. The pictures selected were of the defendant. Finally, Scarfo made a positive in-court identification of the defendant during the trial.

The charges contained in the second information occurred during the afternoon of August 1, 1983. Jane Traceski was returning to her car which was parked in the lot of a Meriden grocery store. While walking to her car, Traceski observed a man, approximately twenty feet away, approaching her on the sidewalk. After she had entered her car, the man walked around the front of her car to the driver's side, came to the open window and grabbed Traceski by the throat. When Traceski tried to get out of the car through the door on the passenger side, the assailant jumped through the open window and threatened to kill Traceski if she did not give him money. While making these threats, the assailant slashed at Traceski with a key, which she described as similar to a house key, injuring her face, ears and neck. After repeated screams by Traceski, the assailant grabbed her purse, climbed out of the car and fled the scene with the purse.

Traceski reported the incident to the Meriden police and gave them a description of her assailant. Approximately seven hours later, Traceski was contacted by the police and taken to a location where she made a positive identification of the defendant as her assailant. Traceski initially made the identification while the defendant was in the back seat of one of several police cars at the scene and reaffirmed her identification when the defendant was taken out of the car. She also made a positive in-court identification of the defendant at trial.

At trial, two witnesses to the incident made positive identifications of the defendant as the assailant and corroborated the testimony of the victim regarding the assault. One of these witnesses was contacted by the police very late that same evening and identified the defendant while he was at the police station by observing him through a window. The other witness made no pre-trial identification of the defendant.

The defendant was originally charged with robbery in the first degree and assault in the second degree in the Scarfo case and robbery in the first degree and assault in the second degree in the Traceski case. The cases were tried together before a jury pursuant to a pre-trial order of consolidation by the court, to which the defendant objected. At the conclusion of the state's case, the trial court granted permission for the state to file a substituted information in the Scarfo case, changing the charges from robbery in the first degree to robbery in the third degree, a violation of General Statutes § 53a-136, and from assault in the second degree to assault in the third degree, a violation of General Statutes § 53a-61(a)(1). The jury returned verdicts of guilty on both counts in the Traceski case. In the Scarfo case, the jury returned a verdict of guilty on the charge of robbery in the third degree and not guilty on the charge of assault in the third degree.

The defendant's first claim of error is that he was denied his right to a jury trial as a result of the trial court's comments on the evidence during its charge. The defendant argues that because of these allegedly prejudicial remarks, the trial court usurped the role of the jury as the trier of fact and presented the jury with what amounted to a directed verdict on the issue of the defendant's guilt.

A trial court is allowed to comment on the evidence as long as the court does not direct or advise the jury on how to decide the particular issue presented to it. State v. Taylor, 196 Conn. 225, 232, 492 A.2d 155 (1985); State v. Storlazzi, 191 Conn. 453, 465-66, 464 A.2d 829 (1983). The nature and extent of a trial court's permissible comments on the evidence depend on the facts involved in a particular case and the manner in which the case has been tried. State v. Reid, 193 Conn. 646, 663, 480 A.2d 463 (1984); Bruneau v. Quick, 187 Conn. 617, 627-28, 447 A.2d 742 (1982).

In this case, witnesses testified regarding two separate incidents and evidence was introduced regarding each incident, making it especially necessary for the court to comment on the evidence in order to provide the jury with a practical guide on how to apply the law to the evidence in each. State v. Reid, supra; State v. Storlazzi, supra, 191 Conn. at 467, 464 A.2d 829; Shea v. Tousignant, 172 Conn. 54, 60, 372 A.2d 151 (1976).

The defendant complains that the court used the phrase "of course" three times in connection with its comments on the evidence, thereby prejudicing the defendant. The words were not used in succession but were interspersed over thirteen pages of a forty-six page transcript of the charge. The first time the phrase was used, the court stated: "Now, of course the defense here says it never happened." The "it" refers to the use of a dangerous instrument during the assault on Traceski since the sentence immediately followed the court's charge on the use of a dangerous instrument. In this context, the use of the phrase did not prejudice the defendant. He claimed that he was not the perpetrator of the crime and the words "of course" are meant to mean that it naturally follows that the defendant says that he did not use a dangerous instrument. The court again used the phrase, in connection with the other incident, stating, "[o]f course, once again, the defense says it never happened. He wasn't there. He doesn't know whether a robbery took place or not, but it wasn't by him." These remarks immediately followed a discussion of the lack of evidence that the assault upon Scarfo had been committed by using an instrumentality other than the assailant's fist. The court's remarks highlighted the fact that the defendant denied committing the assault, and, by inference, when read in the context of the entire charge, that the state had to prove beyond a reasonable doubt that the defendant had committed the crime.

The last time the phrase was used immediately followed a discussion of the identification of the defendant by Scarfo from the police photobook. The court said: "Now, this defendant, of course, says, I wasn't there. And identification is the thing that you've got to consider." For the same reasons, as stated previously, there was nothing prejudicial about these remarks.

The other claimed prejudicial remarks relate to the evidence surrounding the identification of the defendant as the assailant in both incidents, and to the use by the court of the words "the defendant" to refer to the perpetrator of the crimes. The defendant specifically complains that the court misstated the distance between Scarfo and his assailant at the time of the crime, and commented that Scarfo was an artist who did not wear glasses, and that he immediately, "right off the bat" identified the defendant from among the pictures in the police photobook. The defendant further claims it was error for the court to tell the jury that the witnesses in both cases had identified the defendant positively and without hesitation. These comments on the evidence were permissible because the court had made it clear to the jury that they were the sole finders of the facts and it was not the court's recollection of the evidence which governed. The court also instructed the jury that they should...