State v. Ouellette

• Decision Date: 23 September 2008
• Docket Number: No. 27531.,27531.
• Citation: 955 A.2d 582,110 Conn.App. 401
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Daniel J. OUELLETTE.

955 A.2d 582

110 Conn.App. 401

STATE of Connecticut v. Daniel J. OUELLETTE.

No. 27531.

Appellate Court of Connecticut.

Argued April 28, 2008.

Decided September 23, 2008.

Richard A. Reeve, special public defender, with whom, on the brief, were Michael O. Sheehan, Cyd O. Oppenheimer and George G. Kouros, special public defenders, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief,

was Scott J. Murphy, state's attorney, for the appellee (state).

GRUENDEL, LAVINE and MIHALAKOS, Js.

MIHALAKOS, J.

The defendant, Daniel J. Ouellette, appeals from the judgments of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134(a)(3), conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134(a)(3), larceny in the second degree in violation of General Statutes § 53a-123(a)(3), conspiracy to commit larceny in the second degree in violation of General Statutes §§ 53a-48 and 53a-123(a)(3), assault in the second degree in violation of General Statutes § 53a-60(a)(2), larceny in the fifth degree in violation of General Statutes § 53a-125a, and conspiracy to commit larceny in the fifth degree in violation of General Statutes §§ 53a-48 and 53a-125a. On appeal, the defendant claims that the court improperly (1) consolidated two cases pending against him, (2) charged the jury, (3) denied his motion for a new trial and (4) deprived him of his constitutional rights to due process and to a fair trial. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On August 14, 2004, Carmella Interlgi was loading groceries into her car when she was approached by Pamela Levesque. Levesque produced a knife and demanded the victim's purse. Although the victim resisted and suffered two cuts to her fingers, Levesque was able to reach inside the purse and remove the victim's wallet. Levesque then fled to a nearby 1986 Chevrolet Monte Carlo, which was being operated by the defendant. She and the defendant then left the scene by car.

Shortly after the robbery, the defendant drove to the Wal-Mart store on Farmington Avenue in Bristol. Casey Keil, a loss prevention associate at Wal-Mart, observed the defendant stop in front of the store and Levesque exit the car and place a single credit card into her rear pocket. This conduct aroused Keil's suspicions, and he followed her into the store, where she proceeded directly to the photography department and quickly chose a Sony camcorder. As Keil was observing Levesque, another Wal-Mart employee alerted him that the defendant had entered the store. Keil observed the defendant covertly watching Levesque purchase the camcorder, and, as Levesque completed the transaction, Keil observed the defendant heading toward the store's exit.

Keil went to the cash register and compared the signature on the credit card slip with the name of the cardholder and, finding that they did not match, stopped Levesque to inquire further. Levesque stated that the credit card belonged to a relative. Keil escorted her to a back office, and another associate determined that the credit card was stolen.

Keil then went outside and located the defendant in a parked car, with the engine running. Upon Keil's request, the defendant accompanied Keil back into the store, where the Bristol police department was summoned. The victim thereafter identified Levesque as the person responsible for stealing her wallet and assaulting her. The police discovered the victim's wallet in the car that the defendant was operating.

The defendant thereafter was arrested and charged in two separate long form informations. One charged the defendant with crimes relating to the robbery of Interlgi. The other charged the defendant with crimes relating to the use of her stolen credit card. On the state's motion, the court consolidated the defendant's cases. Subsequently, the matter was tried to the jury, and the defendant was found guilty on all charges. Additional facts will be set forth as necessary.

I

The defendant's first claim is that the court improperly consolidated the two cases pending against him. Specifically, he argues that the cases should not have been consolidated because (1) the brutal and shocking nature of one of the charges pending against him unfairly prejudiced him and (2) evidence admitted in the consolidated trial would have been inadmissible in separate trials. Our review of the record, however, reveals that the defendant failed to raise these issues at trial.

The following additional facts are relevant to the defendant's claim. At trial, the state moved to consolidate the cases pending against the defendant, arguing that the facts of the defendant's cases favored joinder. The defendant objected to the consolidation, arguing that "it would be inherently prejudicial to consolidate these two cases for the very reason that if a jury were teetering on the edge of reasonable doubt on . . . the robbery, the fact that he may merely have been present in the [larceny] may militate or convince [the jury] to convict for the first case."

The defendant continued, "I know the state [is] alleging that [it is] a continuing course of conduct, but they are two separate and distinct crimes and if they're tried together the jury may confuse the case of the Wal-Mart and believe that that—the evidence or, if there's guilt beyond a reasonable doubt in that case, that that would simply be enough to convict him of the first case without maybe carefully examining the case or if reasonable doubt does exist. I realize that . . . judicial economy is important, but in this instance I think that because they're so— they are distinct, and because an inference may be drawn simply from the second case to the first case I think [that] will inherently and unduly prejudice [the defendant]." The defendant thereafter offered no further grounds for his objection to consolidating the cases pending against him.

Our law regarding joinder is well established. "General Statutes § 54-57 and Practice Book § 829 [now § 41-19] expressly 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. . . . [W]hether a joint trial will be substantially prejudicial to the rights of the defendant . . . means something more than that a joint trial will be less advantageous to the defendant. . . .

"Furthermore, we have identified several factors that a trial court should consider. . . . These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant's part; and (3) the duration and complexity of the trial. . . . If any or all of these factors are present, a reviewing court must decide whether the trial court's jury instructions cured any prejudice that might have occurred." (Emphasis in original; internal quotation marks omitted.) State v. Davis, 98 Conn.App. 608, 615-17, 911 A.2d 753 (2006), aff'd, 286 Conn. 17, 942 A.2d 373 (2008).

Here, the defendant objected at trial to consolidation on the ground that the charges did not involve discrete, easily distinguishable factual scenarios.¹ On appeal, however, he sets forth a different theory as to why consolidation was improper, namely, that the brutal and shocking nature of one of the charges pending against him was unfairly prejudicial and that evidence admitted in the consolidated trial would not have been admissible in separate trials.² "This court reviews rulings solely on the ground on which the party's objection is based." (Internal quotation marks omitted.) State v. Wegman, 70 Conn.App. 171, 189 n. 9, 798 A.2d 454, cert. denied, 261 Conn. 918, 806 A.2d 1058 (2002). "[W]e have consistently declined to review claims based on a ground different from that raised in the trial court. . . ." (Internal quotation marks omitted.) State v. Gebhardt, 83 Conn.App. 772, 778, 851 A.2d 391 (2004). Because he did not raise his current claim at trial, we are not bound to review it on appeal.

II

The defendant's second claim is that he was deprived of his federal constitutional right to due process and to a fair trial because the state improperly withheld exculpatory evidence regarding the credibility of Levesque. Specifically, he asserts that the prosecutor represented to the court and to the jury that its plea agreement with Levesque called for the state to recommend the maximum sentence allowable, which the defendant claims the state subsequently failed to do. He argues, consequently, that the jury was unable to judge properly Levesque's credibility because it did not understand the true nature of the state's relationship with her. We are not persuaded.

The following additional facts are relevant to the defendant's claim. At the defendant's trial on November 7, 2005, Levesque testified as a witness for the state. She testified that she had reached a plea agreement with the state, and, as part of her agreement, the state would recommend that she receive a sentence of twenty years incarceration, suspended after ten years, followed by five years probation.³ Moreover, the sentencing judge would be informed of her cooperation with the state if she testified truthfully in the defendant's case. In its closing argument, the state commented on this testimony and reiterated that "the state is going to recommend that [Levesque] receive a sentence of ten years to serve followed by five years...