State v. Pollitt

Decision Date25 August 1987
Citation530 A.2d 155,205 Conn. 61
PartiesSTATE of Connecticut v. David M. POLLITT. 12360, 12361.
CourtConnecticut Supreme Court

William F. Dow III, New Haven, for appellant (defendant in each case).

C. Robert Satti, Sr., State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and GLASS, JJ.

SHEA, Justice.

The principal issue in these appeals is whether the trial court properly granted the state's motion that the two informations against the defendant, David M. Pollitt, be tried together. One information charged that the defendant, while in the town of Waterford on or about February 4, 1982, had committed the crimes of attempted sexual assault in the first degree, in violation of General Statutes §§ 53a-49 and 53a-70(a), burglary in the first degree, in violation of General Statutes § 53a-101(a)(2), and unlawful restraint in the first degree, in violation of General Statutes § 53a-95(a). The second information accused the defendant of having committed, on or about April 15, 1982, in the town of Old Lyme, the crimes of sexual assault in the first degree, in violation of § 53a-70(a), burglary in the first degree, and robbery in the third degree, in violation of General Statutes § 53a-136. After a trial to a jury of six, the defendant was found guilty of all counts and sentenced to a total term of twenty-eight years. In these appeals from the judgments of conviction, we find no error.

With respect to the charges arising from the Waterford incident, the jury could reasonably have found the following facts. The victim, an eighteen year old girl, resided with her mother and brother in a single family house in a rural wooded area of Waterford. On Thursday, February 4, 1982, the victim arrived home from work shortly before 3:30 p.m. While checking her mailbox, which was next to the road, the victim observed a blue pickup truck pass by at a slow rate of speed and saw the driver looking out the rear window at her. Soon after she had entered the house, the victim heard her front doorbell ring. When she opened the door, she saw the man who had been driving the truck standing there holding the storm door open. The victim testified that the man appeared to be in his early thirties, "had brown hair, a beard, a mustache ... was a little heavy-set, about five-eight [and] had on jeans and a flannel shirt and workboots."

The assailant asked the victim if anyone was home. When the victim responded, "no, no one's home," the assailant stepped into the house, grabbed the victim's right arm, and twisted it behind her back. The victim began screaming and crying. After pushing her down the hallway and into a bedroom, the assailant put a pillowcase over the victim's head and pulled down her pants. At that point, a noise at the back door made by the victim's brother startled the assailant, who immediately ran down the hallway and out the front door. The victim's brother chased the assailant down the road, saw him get into a "blue truck" "and take off, hit first gear and burnout and hit second gear and chirped the tires."

On April 21, 1982, the victim positively selected the defendant's photograph from a display of eight photographs. At trial the victim made an in-court identification of the defendant as her assailant, having "[no] question about that in [her] mind."

The jury could reasonably have found the following facts regarding the incident in Old Lyme. The victim lived with her husband and four young children in a single family house in a rural wooded area of Old Lyme. On Thursday, April 15, 1982, the victim returned home at about 4:30 p.m. from doing some errands. She allowed her thirteen year old son, who had been babysitting, to go outside to play with the other children, while her two year old baby slept upstairs. A few moments later, as the victim was lifting a plant into a basket in her living room, she "heard a creak in the front hall." She looked up and saw a man standing at the entrance to the living room. The man appeared to be "five-ten, approximately between 180 and 200 pounds, white, with a thick but neatly-trimmed beard, late twenties, early thirties." The man was wearing "a faded blue plaid work shirt, blue jeans, workboots, and ... very dark glasses."

The assailant walked into the living room and asked, "[I]s this the Smith residence?" After responding that she "didn't know anyone named Smith," the victim tried to leave the living room by walking around the assailant. The assailant grabbed the victim's right wrist and twisted her arm behind her back. He then asked the victim if they were alone. When she responded, "yes," he pushed her down a hallway, through the kitchen, and into the family room, where he noticed a purse on the coffee table. After forcing the victim to retrieve her wallet from her purse with her free hand, the assailant took "the $20 bill that was in there and he stuffed it into his pocket."

The assailant next pushed the victim into the dining room and, insisting that he needed "security" that the victim would not follow him, ordered her to take off her clothes. Not deterred by her screams, the assailant himself removed the victim's clothes and then forced her to have sexual relations with him. The assailant eventually fled from the house through a sliding glass door that opened from the family room onto a patio. Intent upon seeing where the assailant was going, the victim "watched him run down through the wooded part and across the road, and ... saw him get into a dark pickup truck...."

At trial the victim made an "absolutely positive" in-court identification of the defendant as her assailant. She also testified that, at Westbrook police headquarters on July 1, 1982, she had "positively" selected the defendant from a lineup of six white males, each wearing dark glasses and having neatly-trimmed beards and mustaches.

The defendant's alibi defense in the Waterford case was that, as an employee of Amtrak, he had been at work near the railroad station in New London until at least 3:40 p.m. on February 4, 1982. The assault upon the victim had occurred at about 3:30 p.m., approximately seven miles away. In the Old Lyme case, the victim had been assaulted on April 15, 1982, between 4:35 and 4:50 p.m. The defendant testified that, on that date, he had worked overtime at the railroad station in New London until 4 p.m., at which time he had driven straight to his home in Clinton. He had arrived home, he stated, at 4:50 p.m. and had discovered a note from his wife that she was visiting friends, a jeweler and his wife. According to the defendant, he next called his wife, spoke also to the jeweler, who "wanted [him] to come up," and then drove to the jeweler's house. When asked on direct examination at what time the defendant arrived at his home, the jeweler responded, "I'm really not one hundred percent sure ... but I think it was around ten minutes after 5 p.m." 1

In these appeals the defendant claims that the trial court erred in (1) ordering that the two informations against the defendant be jointly tried, (2) restricting the defendant's voir dire examination of prospective jurors, and (3) allowing testimony by third parties that repeated the victims' versions of the incidents. With respect to his conviction of the crimes occurring in Waterford, the defendant claims additionally that the court erred in (4) denying his motions and requests relating to the pretrial hypnotizing of the victim by the police, (5) allowing testimony about the victim's "911 call" to the police, although the tape recording of that call had been destroyed, and (6) admitting into evidence a tire taken from the defendant's vehicle. In his appeal from his convictions arising from the assault in Old Lyme, the defendant further claims that the court erred in (7) permitting the state to offer opinion evidence of the defendant's bad character, and (8) admitting into evidence the defendant's dark safety glasses.

I

The defendant first claims that the trial court erred in joining the Waterford and Old Lyme cases for trial. In granting the state's motion for consolidation pursuant to Practice Book § 829 2 and General Statutes § 54-57, 3 the court found that, because there was "a substantial probability that certain evidence in each case may be admissible in the other on the issues of identification and intent ... a joint trial would [not] substantially prejudice the rights of the defendant." The court further asserted that "the cases can be kept separate." The court accordingly denied the defendant's subsequent motions for severance.

Pursuant to § 829 and § 54-57 a trial court may order a joint trial of charges involving offenses of the same character. Section 829, however, should be read in the light of Practice Book § 828, which permits severance "[i]f it appears that a defendant is prejudiced by a joinder of offenses...." See State v. King, 187 Conn. 292, 296, 445 A.2d 901 (1982); L. Orland, Connecticut Criminal Procedure (1976) pp. 177-78. Similarly, in construing § 54-57, we have stated that the question of severance lies within the discretion of the trial court, which should not be interfered with unless it has been manifestly abused. 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). "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 than advantageous to the defendant." State v. Silver, 139 Conn. 234, 240, 93 A.2d 154 (1952). "[A]n accused bears a heavy burden to show that the denial of severance resulted in substantial injustice...." State v. King, supra, 187 Conn. at 302, 445 A.2d 901; see also United States v. Morrow, 537 F.2d 120, 134 (5th Cir.1976), cert. denied sub nom. Martin v....

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