State v. Jonas

• Decision Date: 16 September 1975
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Levan P. JONAS.

Page 1378

363 A.2d 1378

169 Conn. 566

STATE of Connecticut v. Levan P. JONAS.

Supreme Court of Connecticut.

Sept. 16, 1975.

Edward F. Hennessey, Special Public Defender, for appellant (defendant).

Richard F. Banbury, Asst. State's Atty., with whom, on the brief, was John D. LaBelle, State's Atty., for appellee (state).

Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and BARBER, JJ.

MacDONALD, Associate Justice.

The defendant was charged in a substituted information with one count of deviate sexual intercourse in the first degree, ¹ in violation of § 53a-75(a)(1) of the General Statutes; two counts, on separate occasions, of burglary in the second degree, in violation of § 53a-102; and one count of threatening, in violation of § 53a-62(a)(1). Following a trial to the jury the defendant was convicted on all four counts and has appealed, assigning error in the denial, in part, of his motion to separate the offenses which occurred on different dates, in the denial of his motion to set aside the verdict, and in portions of the court's charge.

A survey of the preliminary statement of facts contained in the briefs under the new rules governing appeals in jury cases; see State v. Crane, 169 Conn. 242, 243, 362 A.2d 843; provides the following factual background for our discussion: On October 20, 1973, shortly before 5 a.m., Miss B was awakened by a noise and a light in the hallway of her apartment. She was the sole resident of an apartment in a large complex in a suburb of Hartford and the door to her apartment had been locked when she retired. A man wearing gloves, a dark overcoat and a ski mask over his face with a single opening for the eyes, and carrying a knife, entered the room, pulled down the covers on her bed and touched her. He stated that he already had killed one person and that he needed a place to hide from the police. He then asked that she perform an act of deviate sexual intercourse, in which request Miss B acquiesced, performing the act while the intruder held the knife in the vicinity of her neck. She later stated to the police that she had agreed so to act because of the knife and from fear for her safety. The intruder also took $10 from Miss B before he left her apartment. She attempted to remain calm during the incident and to act in a manner designated to gain his trust so as to enable her to observe him closely. As a result, she was able later to identify the defendant as the intruder by his voice and height in a pretrial lineup to which no objection has been addressed, selecting him from a panel of six men dressed in the manner indicated above. She again identified him at trial. The defendant had been a resident of the same apartment complex until October 19, 1973, the day preceding this incident, at which time he was evicted. Shortly after the incident, on November 2, 1973, the defendant was observed in the vicinity of the apartment complex and, upon being alerted, police officials proceeded to that location where the defendant was observed coming from the building in which Miss B resided. He was observed by the police to walk to a car which was parked facing Miss B's apartment, and which, as confirmed by a check of the marker number, was the defendant's vehicle. The defendant was charged, as noted, with deviate sexual intercourse in the first degree and burglary in the second begree as a result of the incident of October 20, 1973.

On October 26, 1973, at the same apartment complex, Miss C, also a resident received a call on her intercom, shortly after 1:15 a.m. A male voice stated that she had left her car's lights on in the garage. As she dressed to go to the car, the man called once again asking if she had heard the earlier message. She went to her car and discovered that the lights were off. She returned to the building and as she entered the elevator she was approached by a man wearing a ski mask. He stood blocking the door to the elevator and instructed her not to push any of the buttons, stating that he had placed a bomb beneath the elevator. Miss C was frightened when he pulled out what appeared to be a steak knife and told her that if she screamed, it would be her last scream. The masked intruder then asked her to turn around and she refused. He asked her name and, when she told him, he replied that he had the wrong person and left without further incident. Miss C viewed the same lineup as did Miss B but without having had any indication as to Miss B's prior identification. She also selected the defendant from the lineup and later, at trial, again identified the defendant as the intruder, primarily on the basis of the appearance of his eyes.

The defendant originally was charged in nine counts, involving additional sexual offenses alleged to have taken place on November 3, 1973. Prior to trial he moved for severance of the offenses into three separate informations, each relating to the crimes charged on the three separate dates mentioned in the original information, and requested separate trials on each. The court severed the November 3, 1973 charges and left the remaining two charges, involving the Miss B and Miss C incidents of October, 1973, joined. The defendant has assigned error in the court's refusal to sever the counts relating to these two incidents.

Section 54-57 of the General Statutes and § 492 of the Practice Book provide: '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.' In construing the predecessor to § 54-57, we determined that the question of severance lay within the discretion of the trial court and that the exercise of that discretion cannot be interfered with unless it has been manifestly abused. State v. Silver, 139 Conn. 234, 93 A.2d 154. In that case, we defined the test to be applied as follows (p. 240, 93 A.2d p. 157): 'The discretion of a court to order separate trials should be exercised only when a joint trial will be substantially prejudicial to the rights of the defendant, and this means something more than that a joint trial will be less advantageous to the defendant. State v. McCarthy, 130 Conn. 101, 103, 31 A.2d 921; State v. Castelli, 92 Conn. 58, 63, 101 A. 476. The test is whether substantial injustice will result to the defendant if the charges are tried together. State v. Klein, 97 Conn. 321, 324, 116 A. 596.' The only example of substantial injustice given in Silver concerned evidence of such brutality by the defendant that would tend to arouse the passion of the jury to the extent of interference with a fair consideration of the evidence relating to other charges; we further observed (139 Conn. p. 241, 93 A.2d p. 158): 'Such a situation, however, is rare . . ..' It was not found to exist in Silver, where indecent assaults on two young girls were tried in one information, and it does not exist in this case.

In State v. Oliver, 161 Conn. 348, 361, 288 A.2d 81, an additional prejudicial situation was discussed, that is, when crimes, near in time, place and circumstance, as so similar, although legally unconnected, that there is a danger that the jury will use evidence of one crime to convict the defendant of the other crime. Accordingly, our analysis must focus on the nature of the evidence produced at the trial. At the inception, it should be noted that the legislature previously had appended, as a necessary element of proof in sexual offenses, corroboration of the testimony of the alleged victim. General Statutes § 56a-68. Such evidence, the statute specifically stated, could be circumstantial. ² It also should be noted that we have adhered to the general rule that evidence of guilt of other crimes is inadmissible to prove that a defendant is guilty of the crime charged against him. State v. Holliday, 159 Conn. 169, 172, 268 A.2d 368; State v. Harris, 147 Conn. 589, 599, 164 A.2d 399. However, in view of the corroboration requirement in such cases as this, there may be drawn an additional exception to the general rule cited in Holliday. If evidence, otherwise inadmissible upon trial of an offense of the type described in Oliver, tends to corroborate the testimony of the victim of a sexual offense to which § 53a-68 applies, such evidence, although inadmissible under the rationale of Oliver, may be admissible for the limited purpose of satisfying the corroboration requirement of § 53a-68.

Essentially, the defendant contends that the identificatioin testimiony of Miss C and Miss B, each standing alone, would not have resulted in his conviction and that, thus, the joint trial prejudiced him in this respect. If, under the analysis set forth above, it can be found that the testimony of each woman would have been admissible in separate trials of the different offenses it follows that no prejudice can come to the defendant from the joinder. Thus, we must view the counts relating to each woman independently and decide, first, whether, in an independent prosecution for the assault on Miss B, the testimony of Miss C would have been admissible. We find that such evidence would be independently admissible under the requirement of § 53a-68 as corroborative of the principal victim's account. As we recently stated in State v. Marshall, 166 Conn. 593, 600, 353 A.2d 756: "Evidence of the commission by the accused of crimes unconnected with that for which he is being tried when offered by the State in chief violates the rule of policy which forbids the State initially to attack the character of the accused, and also the rule that had character may not be proved by particular acts and is therefore inadmissible for that purpose. State v. Gilligan, 92 Conn. 526, 530, 103 A. 649. But the inadmissibility of an evidential fact for one purpose does not render it inadmissible for some other purpose otherwise proper. 1 Wigmore, Evidence (2d Ed.) § 215. That...