State v. Greene, 13373

• Decision Date: 27 December 1988
• Docket Number: No. 13373,13373
• Citation: 551 A.2d 1231,209 Conn. 458
• Court: Connecticut Supreme Court
• Parties: , 80 A.L.R.4th 315 STATE of Connecticut v. Daniel L. GREENE.

Page 1231

551 A.2d 1231

209 Conn. 458, 80 A.L.R.4th 315

STATE of Connecticut v. Daniel L. GREENE.

No. 13373.

Supreme Court of Connecticut.

Argued Oct. 14, 1988.

Decided Dec. 27, 1988.

John F. Kavanewsky, Jr., Norwalk, for appellant (defendant).

James M. Ralls, Deputy Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Susan Marks, Asst. State's Atty, for appellee (State).

Before HEALEY, SHEA, GLASS, COVELLO and HULL, JJ.

ARTHUR H. HEALEY, Associate Justice.

In this appeal, the defendant makes four claims of error in his trial on robbery charges. The defendant was charged with robbery in the first degree and accessorial liability for robbery in violation of General Statutes § 53a-134(a)(2) ¹ and General Statutes § 53a-8, ² respectively, in two separate informations. The defendant pleaded not guilty and the informations were consolidated for trial by jury. After a three day trial, the defendant was found guilty as charged in each information and the court sentenced him to the custody of the commissioner of correction for two ten year terms, to be served concurrently, suspended after eight years, followed by five years probation.

The jury could reasonably have found the following facts. On January 25, 1987, at approximately 7 p.m., a white male clad in a trench coat, ski mask and gloves entered Peretta's Quick Stop Deli in Milford. Inside the store were a clerk, Laura Gellatly, and Clayton Belmont, a frequent customer. Upon his entrance, the masked man said something to gain the attention of the clerk, who was hanging up the phone. When she turned to face him, he brandished a long-barreled weapon. Gellatly gave approximately $250 to the robber, who then ripped the phone out of the wall and left. Gellatly was able to see most of the perpetrator but not his feet. At trial, she described the ski mask and coat in fair detail. ³

On the morning of January 27, 1987, David Blakesly, who frequently stopped at Perretta's Deli, noticed a strange looking object on the side of the road approximately one mile from Perretta's Deli. On his way home that evening, he stopped and picked up the object and discovered it to be a pair of sneakers balled up in a ski mask. Knowing that Perretta's recently had been robbed and having an idea of what the robber had worn, Blakesly turned over the sneakers and the mask to the owner of Perretta's on the morning of January 28, 1987. These items later were identified by Gellatly and Belmont as similar to the mask and sneakers worn by the robber at Perretta's.

Three days after the first robbery, on January 28, 1987, at approximately 8 p.m., a mustached man wearing a blue ski mask with yellow stitching, a long trench coat and gloves entered the Melba Pharmacy in Milford. The man asked the store clerk, Lisa Rucco, to open the cash register and give him the money. At some point during this incident the robber displayed a gun that Rucco described in her statement to the police as a "rifle." Rucco gave the robber about $400 and one check made out to the pharmacy. The robber then left the store. At the time the robber was leaving the Melba Pharmacy, David Ponelli was driving westbound on Melba Street. He saw a man wearing a trenchcoat and a dark ski mask with light highlighting around the eyes and nose run from the pharmacy. At trial, he identified a mask and coat that looked similar to those worn by the fleeing man. The man appeared to be carrying a weapon. Ponelli believed that it was a shotgun with a pistol grip. Ponelli followed the masked man in his car, losing sight of him once, to a condominium complex under construction where Ponelli noticed a man crouching as if to observe something. Ponelli then recognized the crouching man to be the person who had run from the pharmacy. A "beat up" late model Cadillac pulled up behind Ponelli and the crouching man ran out and got into it. Ponelli returned to the pharmacy and told the police what he had observed.

A short time later, Officer Patrick Dooling of the Milford police department pulled over a late model Cadillac matching a description given over the police radio and presumably based on information from Ponelli. The defendant and David Girard were in the stopped car. ⁴ Dooling found three shotgun shells on Girard during his pat down for weapons. Later that night, Dooling with the help of Ponelli located near the condominium project some of the money and the check stolen from the Melba Pharmacy. ⁵

The defendant's first claim of error is that the trial court erred in consolidating the two informations for trial. The defendant argues that the joinder of these offenses prejudiced him in that the jurors were unable to keep the evidence of these offenses separate in their minds because the charges arose from factually similar but legally unrelated incidents. Thus, he claims that they may have convicted him of one crime by using evidence from the other.

The purpose of joinder, as authorized by General Statutes § 54-57 ⁶ and Practice Book § 829, ⁷ is to foster economy and expedition of judicial administration. State v. Schroff, 198 Conn. 405, 409, 503 A.2d 167 (1986); see State v. King, 187 Conn. 292, 296-98, 301, 445 A.2d 901 (1982). ⁸ Joinder of offenses is, however, not permissible if it will result in " 'substantial injustice' " to the defendant. State v. Boscarino, 204 Conn. 714, 721, 529 A.2d 1260 (1987), quoting State v. King, supra, 187 Conn. at 302, 445 A.2d 901; see State v. Schroff, supra; State v. Rodgers, 198 Conn. 53, 65, 502 A.2d 360 (1985); A. Spinella, Connecticut Criminal Procedure (1985) p. 415, citing State v. Silver, 139 Conn. 234, 240, 93 A.2d 154 (1952).

The trial court has broad discretion in ordering the joinder of offenses and such an order will not be disturbed unless the court's discretion has been "manifestly abused." State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987); State v. Boscarino, supra, 204 Conn. at 720-21, 529 A.2d 1260; State v. Rodgers, supra, 198 Conn. at 63, 502 A.2d 360; State v. Bell, 188 Conn. 406, 411, 450 A.2d 356 (1982); State v. Jonas, 169 Conn. 566, 570, 363 A.2d 1378, 363 A.2d 1378 (1975); see Project, District of Columbia Court of Appeals Project on Criminal Procedure, Joinder and Severance, 26 Howard L.J. 1104, 1105 (1983) ("joinder is the norm"). In establishing a manifest abuse of discretion, the defendant has a difficult burden of proof in showing substantial prejudice. State v. Boscarino, supra, 204 Conn. at 721, 529 A.2d 1260, State v. Rodgers, supra; State v. Bell, supra, 188 Conn. at 410-11, 450 A.2d 356; State v. King, supra; see Project, Criminal Procedure, Joinder and Severance, 76 Geo. L.J. 784, 785-86 (1988) ("To prevail on appeal under [federal] rule 14, a defendant must demonstrate that the trial court's refusal to sever was an abuse of discretion resulting in specific and compelling prejudice. A defendant's allegation that he would have had a better chance of acquittal is insufficient to find error in denying severance."). The defendant must also show that any prejudice is "beyond the curative power of the court's instructions." State v. King, supra.

There are a number of ways by which defendants traditionally have challenged the joinder of offenses. In State v. Boscarino, supra, this court stated that the nature of the charges against the defendant may be important in determining prejudice by joinder. If there is "brutal or shocking" evidence in one of the cases, it could affect the jury's decision in the other. Id., 204 Conn. at 723, 529 A.2d 1260 (evidence of rapes). In this case, however, the evidence offered for both offenses was similar, and although the charges are serious, the evidence offered was not shocking and would not incite the passions of the jurors so as to prejudice the defendant as he claims. Additionally, because the trial only lasted three days, the duration of the factfinding process was not sufficient to create complexity that might have confused the jury. See State v. King, supra.

The defendant also contends that the charges against him arose from factually similar but legally unrelated incidents, and, thus, under the reasoning of this court in Boscarino, there was an enhanced risk of prejudice and the trial court erred in joining the informations. The defendant readily concedes that the robberies at issue here are factually similar. Both stores that were robbed were small, retail establishments; both victims were female; both robberies occurred in Milford, in the early evening, in the same vicinity; and each robber wielded a shotgun and wore a knit ski mask, a trench coat and gloves. We disagree, however, with the defendant's contention that the two robberies were coincidentally factually similar events.

The trial court properly joined the two cases for trial because, in the event of separate trials, evidence relating to each of the cases would have been admissible in the other. Although evidence of other crimes or uncharged conduct is not admissible to show bad character or a disposition to commit a crime, such evidence is admissible to show such issues as a common scheme, intent, malice, identity, motive or opportunity. State v. Boscarino, supra, 722, 529 A.2d 1260; State v. Brown, 199 Conn. 47, 56, 505 A.2d 1225 (1986); State v. Shindell, 195 Conn. 128, 133, 486 A.2d 637 (1985); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982); A Spinella, supra, pp. 417-18; C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed.1988) § 8.3.2. Of course, this evidence must be relevant and material to an element of the crime and its probative value must outweigh its prejudicial effect. State v. Howard, 187 Conn. 681, 685, 447 A.2d 1167 (1982); State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982); C. Tait & J. LaPlante, supra, § 8.3.2(c). It is "[b]ecause of the difficulties inherent in this balancing process" that the trial court will be reversed only when there is a manifest abuse of...