State v. Marsala, 14952

• Decision Date: 12 November 1996
• Docket Number: No. 14952,14952
• Citation: 684 A.2d 1199,43 Conn.App. 527
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Michael MARSALA.

Page 1199

684 A.2d 1199

43 Conn.App. 527

STATE of Connecticut v. Michael MARSALA.

No. 14952.

Appellate Court of Connecticut.

Argued Sept. 19, 1996.

Decided Nov. 12, 1996.

Susan Brown, Supervisory Assistant Public Defender, for appellant (defendant).

Christopher T. Godialis, Deputy Assistant State's Attorney, with whom, on the brief, were Mary M. Galvin, State's Attorney, and Gerard F. Esposito, Assistant State's Attorney, for appellee (state).

Before DUPONT, C.J., and EDWARD Y. O'CONNELL and FREDERICK A. FREEDMAN, JJ.

DUPONT, Chief Judge.

The defendant, Michael Marsala, appeals from the judgment of conviction, rendered after a jury trial, of twenty-five ¹ counts of harassment in the second degree in violation of General Statutes § 53a-183 (a)(3). ² The trial court sentenced the defendant to twelve consecutive three month sentences on the first twelve counts and entered an unconditional discharge as to the remaining thirteen counts for a total effective sentence of thirty-six months consecutive to a sentence the defendant was already serving. On appeal, the defendant claims (1) that his conviction was based on insufficient evidence, (2) that the trial court should not have denied his motion for severance, (3) that General Statutes § 53a-183 is unconstitutionally vague and overbroad, and (4) that the jury was improperly instructed on the need for unanimity as to the specific actus reus. We affirm the judgment of the trial court.

The jury reasonably could have found the facts that follow. Between April 4 and June 26, 1994, the defendant made at least twenty-five telephone calls to the victim. Many of the calls were made during early morning hours. On April 4, there were four calls made in the thirty-five minutes between 6:45 a.m. and 7:20 a.m. On June 17 and June 19, the defendant made four and five calls, respectively, to the victim. Most of the telephone calls concerned the victim's daughter, Tamra. The contents of the calls varied. One of the calls, made at 5 a.m., wished Tamra a happy birthday, while another claimed that "the Bridgeport police ... don't think very much of you and your slut daughter. They know her from the streets. In fact even quite a few of them have had her." During several of the calls, the victim asked the caller to stop calling. The victim additionally threatened to call the police. On the advice of her attorney, the victim allowed her answering machine to pick up and record most of the later calls.

The victim positively identified the defendant as the caller in each of the telephone calls about which she testified. The victim testified that she had met the defendant in May, 1992, while she was visiting her daughter in a hospital. The victim had spoken with the defendant for ten or fifteen minutes on that occasion. The victim stated that she spoke to the defendant between ten and twelve times during the two years between meeting him and when the telephone calls started. She indicated that she was familiar with his voice from these conversations. Additionally, two months before the trial, the victim listened in person to the defendant's live voice for about seven minutes and identified it as the voice she heard on the phone.

I

The defendant's insufficiency of evidence claim has two prongs. The first is that there was insufficient evidence to identify him as the caller, and the second, that there was insufficient evidence to prove that the caller's intent was "to harass, annoy or alarm."

"In reviewing [a] sufficiency [of the evidence] claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... State v. Mejia, 233 Conn. 215, 223-24, 658 A.2d 571 (1995)." (Citation omitted; internal quotation marks omitted.) State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996).

The defendant claims that his identity as the caller has not been established because the victim's testimony was the only evidence produced to show the identity of the caller. The issue of the caller's identity is one of fact properly to be resolved by the jury. State v. Jones, 234 Conn. 324, 333, 662 A.2d 1199 (1995). The victim testified that she positively identified the defendant as the caller on each call; she recognized the caller's voice as that of the defendant from meeting him two years earlier and from prior telephone conversations with him; and she had been able to identify the defendant as the caller in a "voice-up." The victim additionally testified that the content of most of the calls concerned her daughter, who knew the defendant, and that when she went to visit her daughter on one of the days he had telephoned, the defendant was at her daughter's address, as he had said he would be. An attorney, hired by the victim to try to stop the defendant from calling, testified that the defendant had called him in response to the letter the attorney had sent to him. The jury reasonably could have concluded beyond a reasonable doubt, therefore, from the cumulative effect of both the circumstantial and direct evidence, that it was the defendant who repeatedly had made telephone calls to the victim.

The second prong of the defendant's insufficiency of evidence claim is closely related to the defendant's severance claim. Because our reasoning as to severance also controls the insufficiency of evidence claim, we will consider them together in the following section.

II

The defendant claims that the trial court should have granted his motion to sever the twenty-five counts of harassment. The defendant asserts that the joinder of the claims is unduly prejudicial because the jury is likely to aggregate the evidence from each count of harassment, thereby consolidating all the evidence and convicting the defendant on the totality of the evidence instead of keeping the evidence separate and distinct. In addition, the defendant argues that severance should have been granted because he wanted to testify as to counts one through eleven but not as to the rest of the counts. Finally, the defendant argues that the counts should have been severed because a jury considering multiple charges against the defendant may consider him a "bad person" who must have done something wrong and not deliberate over the different counts against him. The defendant further asserts that the jury had insufficient evidence to convict him on each individual count of harassment.

"General Statutes 54-57 ³ and Practice Book § 829 ⁴ authorize a trial court to order a defendant to be tried jointly on charges arising separately. In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb.... The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court's instructions." (Citations omitted; internal quotation marks omitted.) State v. Herring, 210 Conn. 78, 94-95, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 579 (1989).

"Because of its prejudicial impact, evidence of prior acts of misconduct is inadmissible merely to show a defendant's bad character or tendency to commit criminal acts...." (Citations omitted.) State v. Pollitt, 205 Conn. 61, 69, 530 A.2d 155 (1987). "An exception to the rule prohibiting the substantive admission of a defendant's prior criminal offenses in the trial of another case is when the collateral crime tends directly to prove the commission of the principal crime, or the existence of any element of the principal crime.... Consistent with this rule, the state may introduce evidence of other crimes to establish a defendant's intent, identity, malice, motive or system of criminal activity." (Citations omitted; internal quotation marks omitted.) State v. Boscarino, 204 Conn. 714, 722, 529 A.2d 1260 (1987).

"Where evidence of one incident can be admitted at the trial of [another incident], separate trials would provide the defendant no significant benefit. It is clear that, under such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial." State v. Pollitt, supra, 205 Conn. at 68, 530 A.2d 155; State v. King, 35 Conn.App. 781, 791, 647 A.2d 25 (1994), aff'd, 235 Conn. 402, 665 A.2d 897 (1995).

We agree with the trial court that joinder of the twenty-five claims was proper because evidence relating to each count could have been used in a trial of each of the other counts to prove the identity of the defendant, the intent of the defendant, and to demonstrate a common scheme. See State v. King, supra, 35 Conn.App. at 791, 647 A.2d 25. "To be relevant on the issue of identity or common scheme, the other crime charged must be 'sufficiently unique to warrant a reasonable inference that the person who performed one misdeed also did the other.' State v. Ibraimov, 187 Conn. 348, 354, 446 A.2d 382 (1982). The similarities connecting the crimes need not be so unique as to constitute 'signature crimes.' See State v. Pollitt, supra, 205 Conn. [at] 69-70 . Rather, the features may be of substantial but lesser distinctiveness which, if considered separately, would be insufficient to raise an inference, but when taken together yield a distinctive combination. State v. Jones, 205 Conn. 638, 661, 534 A.2d 1199 (1987)." State v. King, supra, at 791, 647 A.2d 25.

In this case, a single victim received more than twenty telephone calls she identified as having been made by the same man. Although the contents of the calls were not identical, the victim was able to identify the defendant as the caller each time. The...