State v. Randolph, 17352.

• Citation: 933 A.2d 1158,284 Conn. 328
• Decision Date: 13 November 2007
• Docket Number: No. 17352.,17352.
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Gordon C. RANDOLPH.

933 A.2d 1158

284 Conn. 328

STATE of Connecticut v. Gordon C. RANDOLPH.

No. 17352.

Supreme Court of Connecticut.

Argued January 10, 2007.

Decided November 13, 2007.

Jeremiah Donovan, Old Saybrook, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Sandra Tullius, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and BORDEN, NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.^*

BORDEN, J.

The defendant, Gordon C. Randolph, directly appeals¹ from the judgments of conviction, rendered after a jury trial, of one count of felony murder, two counts of robbery in the first degree, one count of conspiracy to commit robbery in the first degree and one count of criminal possession of a firearm. The defendant claims that the trial court improperly: (1) consolidated two separate cases against him for trial and instructed the jury that the evidence in each case was cross admissible to establish "`a characteristic method in the commission of criminal acts'"; (2) denied the defendant's request to waive his presence at the probable cause hearing; (3) admitted a postmortem report at the defendant's probable cause hearing in violation of the confrontation clauses of the federal and state constitutions; (4) denied the defendant's motion to suppress certain eyewitness identifications; and (5) denied the defendant's motion for a mistrial and motion for a new trial because the state, without prior notice to the defendant, elicited in-court identifications from two eyewitnesses who previously had not identified the defendant as the perpetrator of the crimes. Additionally, the defendant claims that the prosecutor improperly introduced facts not in evidence during his closing argument, thereby depriving the defendant of his due process right to a fair trial. We agree with the defendant's first claim and, therefore, reverse the judgments of the trial court.²

In connection with two separate incidents, the defendant was charged in two informations. In the first information, the defendant was charged with robbery in the first degree in violation of General Statutes § 53a-134 (a)(4) and conspiracy to commit robbery in the first degree in violation of General Statutes § § 53a-48 (a) and 53a-134 (a)(4). In the second information, the defendant was charged with felony murder in violation of General Statutes § 53a-54c, robbery in the first degree in violation of § 53a-134 (a)(2) and criminal possession of a firearm in violation of General Statutes § 53a-217 (a)(1). The first information pertained to an armed robbery that had occurred on December 17, 2001, at a Burger King restaurant located at 914 New Britain Avenue in the city of Hartford (Burger King case). The second information pertained to an armed robbery that had occurred on March 23, 2002, at Empire Pizza, a restaurant located at 861 New Britain Avenue in the city of Hartford (Empire Pizza case). The trial court consolidated the two cases against the defendant for trial, and the jury found the defendant guilty of all charges. Thereafter, the defendant moved for a new trial, claiming, in part, that the trial court improperly had consolidated the two cases against him for trial. The trial court denied the motion and rendered judgments of conviction in accordance with the jury's verdict. This appeal followed.

The jury reasonably could have found the following facts regarding the first information. On December 17, 2001, at approximately 6:30 p.m., two masked and armed men dressed in dark clothing entered a Burger King restaurant located at 914 New Britain Avenue in Hartford. The first gunman, whom witnesses described as short, heavyset and Hispanic, guarded the door to the restaurant while the second gunman, whom witnesses described as short, slender and African-American, jumped behind the counter and instructed the employees to empty the contents of the cash registers into a black backpack. After the cash registers had been emptied, the African-American gunman ordered the assistant manager of the restaurant, Julissa Chaparro, to "take [him] to the safe." Chaparro led the gunman to the manager's office where the safe was located and emptied the contents of the safe as instructed. As she did so, the gunman repeatedly apologized and said, "I wish I didn't have to do this to you." Once the safe was empty, both gunmen fled the restaurant and Chaparro contacted the police.

Thereafter, Daniel Goicochea, a patrol officer with the Hartford police department, received a dispatch informing him of the robbery. He recalled that a vehicle suspected to have been involved in multiple robberies in the surrounding area had been missing from its typical location on Grafton Street earlier in the evening. Goicochea drove in the direction of Grafton Street to determine whether the vehicle had returned. On his way to Grafton Street, Goicochea spotted the vehicle driving in front of him and began to follow it. The driver of the vehicle parked in front of a residence located at 66 Grafton Street and two men matching the descriptions of the perpetrators of the Burger King robbery exited the vehicle. Goicochea instructed the two men to stop and, in response, they immediately fled north on Grafton Street. Goicochea pursued the two men and successfully apprehended Eliseo Bennett, who matched the description of the short, heavyset, Hispanic gunman. Bennett, who had an air pistol in his possession, was arrested and charged with robbery in the second degree in connection with the Burger King robbery. Bennett subsequently confessed to his participation in the robbery and informed the police that the defendant, also known as "P.O.," was the other gunman.

The jury reasonably could have found the following facts regarding the second information. On March 23 2002, at approximately 9:30 p.m., alone masked gunman dressed in dark clothing entered the Empire Pizza restaurant located at 861 New Britain Avenue in Hartford. The gunman went behind the counter and repeatedly ordered the co-owner of the restaurant, Antonios Antonaras, to "give [him] the money." Antonios Antonaras opened the cash register, and told the gunman to "[t]ake the money and go." As the gunman was emptying the cash register, Victor Arce, an employee of Empire Pizza, attempted to subdue him physically. A struggle ensued, and the gunman shot Arce in the chest and abdomen, wounding him fatally. The gunman then fled on foot while Tammy Antonaras (Antonaras), the co-owner of the restaurant, and Wanda Carrasquillo, an eyewitness who was situated outside of the restaurant, each contacted the police. Antonaras, who had made eye contact with the gunman briefly during the robbery, described him as African-American, between five feet, two inches tall and five feet, five inches tall, and weighing about 150 or 160 pounds. Carrasquillo, who had seen the gunman flee the restaurant, described him as African-American, approximately five feet, three inches tall and weighing about 130 pounds. Both Antonaras and Carrasquillo later identified the defendant as the gunman. Additional facts will be set forth as necessary.

I WHETHER THE TRIAL COURT IMPROPERLY CONSOLIDATED THE BURGER KING AND EMPIRE PIZZA CASES FOR TRIAL

The defendant first claims that he was substantially prejudiced by the trial court's consolidation of the Burger King and Empire Pizza cases for trial because the jury improperly was permitted to consider the evidence adduced in each case while deliberating on the defendant's guilt in the other if it found that the evidence established "`a characteristic method in the commission of criminal acts.'" The state responds that the trial court properly permitted the jury to consider the evidence in both the Burger King and Empire Pizza cases cumulatively if it found that the evidence established a common scheme or plan, but, even if it did not, the evidentiary impropriety was harmless. We agree with the defendant and, therefore, reverse the judgments of the trial court.

The following additional facts and procedural history are necessary for our resolution of this claim. Prior to trial, the defendant moved to sever, and the state moved to consolidate, the Burger King and Empire Pizza cases for trial. At the hearing on the parties' motions, the state claimed that, if the cases were to be tried separately, evidence in one case would be admissible in the trial of the other to establish that the defendant had a common scheme or plan to rob fast food restaurants located on New Britain Avenue. The state therefore claimed that separate trials would afford the defendant no significant benefit, and that consolidation was appropriate. Alternatively, the state claimed that consolidation was appropriate under State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987), because the two cases involved discrete and easily distinguishable factual scenarios. The defendant responded that the evidence in the two cases lacked sufficient similarity to be cross admissible under the common scheme or plan exception, and that it would be prejudicial to consolidate the two cases for trial in light of the violent manner in which the Empire Pizza robbery had been committed. At the conclusion of the hearing, the trial court granted the state's motion for consolidation and denied the defendant's motion for severance.

In its final charge to the jury, the trial court issued the following relevant instruction: "Now, while you must separately consider each charge, you may, as you deliberate on the two separate charges, consider the evidence of the one charge in the case of the other for the sole purpose, if you find that it is credible to do so, as to whether or not it establishes a characteristic method in the commission of criminal acts. You may not consider such evidence as establishing a predisposition on the part of the defendant to commit any of the...