State v. Horne

• Decision Date: 11 July 1989
• Docket Number: No. 6339,6339
• Citation: 562 A.2d 43,19 Conn.App. 111
• Parties: STATE of Connecticut v. Reginald HORNE.
• Court: Connecticut Court of Appeals

Page 43

562 A.2d 43

19 Conn.App. 111

STATE of Connecticut v. Reginald HORNE.

No. 6339.

Appellate Court of Connecticut.

Argued Jan. 31, 1989.

Decided July 11, 1989.

G. Douglas Nash, Asst. Public Defender, for appellant (defendant)

Richard F. Jacobson, Fairfield, with whom, on the brief, were John Smriga, Asst. State's Atty., and Donald A. Browne, State's Atty., for appellee (State).

Before BORDEN, DALY and FOTI, JJ.

BORDEN, Judge.

The defendant appeals from four separate judgments, involving four convictions of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), and one conviction of sexual assault in the first degree with a deadly weapon in violation of General Statutes (Rev. to 1987) § 53a-70a. The judgments arose out of four separate informations that the court consolidated for trial. The defendant claims that the convictions should be reversed for the following reasons: (1) the court erred in consolidating the four cases; (2) the court erred in admitting into evidence, in violation of the court's pretrial disclosure order, a written statement given by one of the defendant's witnesses; (3) the state committed prosecutorial misconduct in introducing certain evidence and in making certain final arguments; (4) the court erred in precluding the defendant's alibi witness from testifying in one of the cases; (5) the court erred in its instructions to the jury on the offense of robbery in the first degree; (6) the court erred in its instructions to the jury on the offense of larceny as part of the offense of robbery in the first degree; (7) the conviction of sexual assault in the first degree with a deadly weapon was based on legally insufficient evidence; and (8) the court erred in its instructions to the jury on the offense of sexual assault in the first degree with a deadly weapon. We find error in part.

The four informations arose out of four separate criminal incidents in Bridgeport. Each involved a small retail shop where the victim was the sole employee present at the time of the incident. Each victim positively identified the defendant from a photo array, in a lineup and at trial. The jury could reasonably have found the following facts.

THE JEANS SHOP CASE

On February 25, 1986, at approximately 4 p.m., the defendant entered a clothing store known as the Together Jeans Shop, located at 3098 Main Street. On the previous day, the defendant had been in the store and selected two pairs of jeans, telling the owner, Michael Kelly, that he would be back for them. He returned the next day, and Kelly gave him the jeans to take to a dressing room. As Kelly turned to the cash register, the defendant placed a gun to Kelly's head and instructed him to go to the cellar. Kelly picked up the hatchway door and entered the cellar. The defendant took approximately $90 from the store's cash box.

THE ICE CREAM PARLOR CASE] THE ICE CREAM PARLOR CASE] THE ICE

CREAM PARLOR CASE

On March 25, 1986, at approximately 9 p.m., the defendant entered the Gina Ice Cream Parlor, located on Main Street across the street from the Together Jean Shop. Joelle Doris, the store's employee, was standing behind the counter. The defendant ordered a banana split. As Doris turned around to make the banana split, the defendant told her not to turn around because he had a gun. She looked directly at him and saw the gun. The defendant told her to continue to make the banana split and to point to the store's money. When Doris picked up a knife to use in making the banana split, the defendant threatened to "blow [her] head off." The defendant then ordered Doris to unplug the phone and lie on the floor. He then took a cigar box containing approximately $30 and left.

THE YARN SHOP CASE

On May 8, 1986, at approximately 10 a.m., the defendant entered the Needle Niche Yarn Shop, located at 3073 Main Street. Marjorie Van Tassel, the owner, was in the store. The defendant purported to select a ball of yarn to purchase. As Van Tassel wrote a sales slip, the defendant stepped around the counter and displayed a gun. He told Van Tassel to lie on the floor and remove money from the cash register. He then threatened to "blow [her] head off," and ordered her to crawl into the back room and show him her pocketbook. She did so, and he took her pocketbook which contained $175, her driver's license and credit cards. He then removed the dial from the phone and left.

THE UNIFORM BOUTIQUE CASE

On June 12, 1986, at approximately 9:40 a.m., the defendant entered the Uniform Boutique, located at 2738 Main Street, approximately two and one-half blocks from the Needle Niche Yarn Shop. The defendant pulled a gun and pointed it at the victim, the sole employee present. The defendant told the victim to take him to the safe. He put the gun to her head, and with his hand over her mouth walked her around the store. The defendant then made the victim lie face down on the floor. The victim told the defendant that there was no safe, but indicated to him where the cash box was. The defendant took $25 from the cash box and a bank card from the victim's pocketbook. The defendant then pulled the victim's slacks and underpants off, and sexually assaulted her while he held her around the neck. After he finished, he put the gun to her head again. He then removed the telephone receiver and left through the back door.

The defendant was charged in four separate informations. With respect to the jeans shop case, the ice cream parlor case and the yarn shop case, he was charged with robbery in the first degree in violation of General Statutes § 53a-134(a)(4). ¹ With respect to the Uniform Boutique case, he was charged with robbery in the first degree in violation of General Statutes § 53a-134(a)(4), sexual assault in the first degree in violation of General Statutes § 53a-70, ² and sexual assault in the first degree with a deadly weapon in violation of General Statutes (Rev. to 1987) § 53a-70a. ³

The trial court, Reilly, J., granted the state's pretrial motions to consolidate the four cases for trial, and denied the defendant's motions for four separate trials. The trial court, Stodolink, J., also denied the defendant's pretrial motion to sever the Uniform Boutique case from the other three cases, and denied the defendant's additional motions for severance made during the trial. The jury found the defendant guilty of the four robbery charges and of sexual assault in the first degree with a deadly weapon. Judgments of conviction were rendered accordingly, and this consolidated appeal followed.

I

The defendant first claims that the trial court erred in joining the four cases for trial. We disagree.

We first note that the state in its brief in this court claimed that, because the four cases involved signature crimes, the evidence of each would have been admissible on the issue of identity in the separate trials of the others. The state specifically abandoned that claim, however, at oral argument. It no longer argues that the four separate incidents constituted signature crimes, nor does the state claim that the evidence of any of the separate crimes would have been admissible in the trials of the others on the basis that it showed a common scheme, intent, malice, motive or opportunity. See State v. Greene, 209 Conn. 458, 464-65, 551 A.2d 1231 (1988). The state's ultimate appellate position is consistent with its position at trial, where it made no claim that evidence of any one crime charged was admissible to prove any other crime.

Thus, this appeal must be viewed as involving "factually similar but legally unrelated incidents." Id., at 464, 551 A.2d 1231. In such a case, " 'there is danger that the jury will use the evidence of one crime to convict the defendant of the other crimes.' " State v. King, 187 Conn. 292, 299, 445 A.2d 901 (1982); but see State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987) (where evidence of one offense admissible at trial for another, defendant not ordinarily prejudiced by joinder for single trial); State v. Greene, supra, 209 Conn. at 465, 551 A.2d 1231 (joinder of two separate cases permitted because evidence cross-admissible as showing common scheme). The absence of cross-admissibility does not, however, mandate severance. In such a case, "[a] trial court will not have manifestly abused its discretion in denying severance if the state's orderly presentation of evidence has prevented confusion of the jury and has enabled the jury to consider the evidence relevant to each charge separately and distinctly." State v. Pollitt, supra.

Recently, our Supreme Court, in State v. Herring, 210 Conn. 78, 95, 554 A.2d 686 (1989), further synthesized the proper analysis to be employed in a case involving factually similar but legally unrelated crimes. The court reexamined "the undeniable tension between the need to conserve judicial resources by consolidating cases and the defendant's right to a fair trial. In State v. Boscarino, [204 Conn. 714, 721, 529 A.2d 1260 (1987) ], we held that the trial court had erred in joining four separate counts of sexual assault in the first degree against the defendant because the joinder worked a ' "substantial injustice" ... "beyond the curative power of the court's instructions." ' We there discussed several factors that a trial court should consider in making its determination whether severance is required in order to avoid the 'omnipresent risk ... that "although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused's guilt, the sum of it will convince them as to all." United States v. Lotsch, 102 F.2d 35, 36 (2d Cir.), cert. denied, 307 U.S. 622, 59 S.Ct. 793, 83 L.Ed. 1500 (1939).' State v. Boscarino, supra, [204 Conn. at] 721-22 . These factors include: (1) whether the charges involved 'discrete, easily distinguishable factual scenarios'; (2) whether the crimes were of a 'violent nature' or concerned 'brutal or shocking...