State v. King

• Decision Date: 01 June 1982
• Citation: 445 A.2d 901,187 Conn. 292
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Christine KING.

Page 901

445 A.2d 901

187 Conn. 292

STATE of Connecticut v.Christine KING.

Supreme Court of Connecticut.

Argued March 3, 1982.

Decided June 1, 1982.

Bruce A. Sturman, Asst. Public Defender, with whom, on the brief, was Jerrold H Barnett, Public Defender, for appellant(defendant).

John F. Cronan, deputyAsst. State's Atty., with whom, on the brief, was John J. Kelly, State's Atty., for appellee(State).

Before SPEZIALE, C. J., and PETERS, HEALEY, PARSKEY and ARMENTANO, JJ.

ARTHUR H. HEALEY, Associate Justice.

The defendant was charged with burglary in the third degree in violation of General Statutes § 53a-103 and larceny in the third degree in violation of General Statutes § 53a-124.In a separate information, the defendant was also charged with possession of heroin and cocaine in violation of General Statutes § 19-481(a).After a trial to a jury, the defendant was found guilty of all crimes charged and sentenced to an effective prison term of not less than two, nor more than four years.

The jury could reasonably have found the following facts: On January 14, 1979, at approximately 12:30 p. m., Roland and Diana Wegher were at their home at 93Village Drive in Shelton.At that time, Mr. Wegher observed a yellow automobile pull into the driveway of a house under construction across the street from the Weghers.The house was being constructed by Fortin Construction Company and was close to completion.A man and a woman got out of the auto and entered the front door of the house.At this point, Mr. Wegher went into his basement.

About ten minutes later, Mrs. Wegher told Mr. Wegher that the woman across the street was having trouble getting out of the icy driveway.Mr. Wegher came back upstairs and noticed that the yellow auto had been turned around so that its trunk was backed up to the garage door.The woman, who was in the auto at this time, got out of the auto, approached the garage window and nodded her head or gestured to the man, who was inside the garage.The woman returned to the auto and the man opened the garage door from the inside.

The man took something from the trunk and put it in the back seat of the auto.He then went back into the garage and began placing cardboard boxes into the trunk of the auto.These boxes contained two toilets valued at $212.Mr. Wegher phoned the police while Mrs. Wegher tried to focus a pair of binoculars in an attempt to read the license plate number.Mrs. Wegher was having difficulty focusing the binoculars, so Mr. Wegher gave her the phone while he took the binoculars.He identified the license plate number as the car was passing his house.The car was registered to the defendant.

On January 29, 1979, Detective Stephen Bodak and fellow officers of the Ansonia detective bureau executed arrest warrants for the defendant and Bruce Marek, her boyfriend, on charges of burglary and larceny.Both were taken to the Shelton police department where they were processed.During the processing, Bodak searched the defendant's purse and found numerous syringes and hypodermic needles, a wad of cotton and a bottle cap with a wire attached (also known as a "cooker").While the search did not reveal packets or envelopes of any drug, a small amount of liquid was found in the stem of one of the syringes.A toxicological examination revealed the presence of heroin, cocaine, and quinine in the hypodermic syringes and heroin, cocaine, quinine and lidocaine in the bottle cap with the wire on it.¹

Prior to trial, the state was granted, over the defendant's objection and exception, a motion for joinder of the two informations, pursuant to Practice Book§ 829, and the matters were tried together.On appeal, the defendant claims that the trial court erred (1) by granting the motion for joinder of the burglary and larceny information with the heroin and cocaine possession information and (2) by allowing into evidence a toxicological report without also requiring testimony of the chemist who actually performed the tests under the unique circumstances of this case where, during analysis, the narcotics evaporated.

I

This case presents us with our first opportunity to construe our rules of joinder of indictments and informations since their amendment in 1976.Section 492 of the 1963 Practice Book and General Statutes § 54-57 provided: "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."(Emphasis added.)In 1976, the rule, but not the statute, was amended to read as follows: "The judicial authority may, upon his own motion or the motion of any party, order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together."Practice Book, 1963, § 2240(now Practice Book, 1978, § 829).The new rule omits reference to the requirement that the offenses joined be of the "same character."The drafters of the amendment stated that "[t]his extremely broad provision permits the court sua sponte or on motion to order joint trial of different charges, whether or not related, and whether or not against the same defendants.It thus goes beyond Federal Rules of Criminal Procedure, Rule 13 as well as existing statutory law [General Statutes § 54-57], and should be read in light of Sec. 2239[now Sec. 828] permitting severance if prejudice may result."(Footnotes omitted.)Orland, Connecticut Criminal Procedure(1976), pp. 177-78.It is apparent that § 829 intentionally broadened the circumstances under which two or more indictments or informations could be joined and that whether the offenses are of the "same character" is no longer essential.We must therefore determine whether joinder is controlled by the statute or the rule.

"The Superior Court is empowered to adopt and promulgate rules 'regulating pleading, practice and procedure in judicial proceedings in courts in which they have the constitutional authority to make rules, for the purpose of simplifying proceedings in the courts and of promoting the speedy and efficient determination of litigation upon its merits.Such rules shall not abridge, enlarge or modify any substantive right ....'General Statutes § 51-14(a) ....Just as the general assembly lacks the power to enact rules governing procedure that is exclusively within the power of the courts;Conn.Const., art. V § 1;State v. Clemente, [166 Conn. 501, 510-11, 516, 353 A.2d 723(1974)]; so do the courts lack the power to promulgate rules governing substantive rights and remedies.General Statutes § 51-14(a);State v. Clemente, supra, , 509-10;seeState v. Rodriguez, 180 Conn. 382, 385-86, 429 A.2d 919(1980).Additionally the court rules themselves are expressly limited in scope to practice and procedure in the Superior Court;Practice Book§ 1; and do not purport to reach beyond such limits."Steadwell v. Warden, 186 Conn. 153, 162-63, 439 A.2d 1078(1982).With reference to the rule relating to disclosure of presentence investigation reports, two members of this court have stated: " '[C]ourts have an inherent power, independent of statutory authorization, to prescribe rules to regulate their proceedings and facilitate the administration of justice as they deem necessary.'State v. Clemente, supra, [166 Conn.] 514[353 A.2d 723].It was in the exercise of this power that the judges of the Superior Court adopted § 917 in 1976 as part of a major revision of the rules of criminal procedure."(Footnote omitted.)Steadwell v. Warden, supra, 186 Conn. 165, 439 A.2d 1078(Shea, J., dissenting).We likewise believe that § 829, also part of the revision of the rules of criminal procedure, is a rule which regulates court procedure and facilitates the administration of justice and does not infringe on any substantive right.Therefore, we will measure the trial court's decision on the motion for joinder against the standards of § 829.

The defendant claims that the trial court's granting of the state's motion for joinder resulted in a substantial injustice to her.She claims that (1) only offenses of the "same character" can be joined pursuant to General Statutes § 54-57 and (2) even if offenses of different characters can be joined, the court abused its discretion in joining these offenses.Since our holding that offenses of different characters can be joined under Practice Book§ 829 disposes of the defendant's first basis, we will now address her alternative argument.²

The defendant claims substantial prejudice in three respects.First, she claims that because of joinder, "the jury may consider that a person charged with doing so many things is a bad [person] who must have done something, and may cumulate the evidence against him ...";seeDrew v. United States, 331 F.2d 85, 88(D.C.Cir.1964); second, she claims that evidence of one offense could have been used to convict her of a second offense even though that evidence would have been inadmissible at a separate trial; and third, she claims that her decision to testify was impermissibly influenced because she wished to testify as to one charge but not as to the other.

"The most obvious example of possible prejudice is that, when the crimes, near in time, place and circumstance, are so similar although legally unconnected, as in the present case, there is danger that the jury will use the evidence of one crime to convict the defendant of the other crimes.SeeDrew v. United States, 331 F.2d 85, 89(D.C.Cir.[1964]);1 Wigmore, Evidence (3d Ed.) § 194."State v. Oliver, 161 Conn. 348, 361, 288 A.2d 81(1971).In State v. Jonas, 169 Conn. 566, 570, 363 A.2d 1378(1975), cert. denied, 424 U.S. 923, 96 S.Ct. 1132, 47 L.Ed.2d 331(1976), we stated that the question of severance rested within the sound discretion of the trial court and that the exercise of that discretion could not be disturbed...