State v. Sierra

• Decision Date: 09 January 1990
• Docket Number: 13414,Nos. 13413,s. 13413
• Citation: 568 A.2d 448,213 Conn. 422
• Parties: STATE of Connecticut v. Edwin SIERRA. STATE of Connecticut v. David COLLIC.
• Court: Connecticut Supreme Court

Page 448

568 A.2d 448

213 Conn. 422

STATE of Connecticut v. Edwin SIERRA.

STATE of Connecticut v. David COLLIC.

Nos. 13413, 13414.

Supreme Court of Connecticut.

Argued October 12, 1989.

Decided Jan. 9, 1990.

[213 Conn. 423] William M. Bloss, Special Public Defender, for appellant in the first case (defendant Edwin Sierra).

Paul F. Thomas, Bridgeport, for appellant in the second case (defendant David Collic).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Richard F. Jacobson and Jonathan C. Benedict, Asst. State's Attys., for the appellee (state).

Before ARTHUR H. HEALEY, SHEA, CALLAHAN, GLASS and HULL, JJ.

HULL, Associate Justice.

These appeals raise two principal issues: (1) the admissibility at trial of evidence concerning a prior robbery allegedly committed by the defendants; and (2) the constitutionality of allowing, in a joint trial, one defendant to call a codefendant as a witness. After a joint jury trial, the defendants, David Collic and Edwin Sierra, were found guilty of robbery in the first degree in violation of General Statutes § 53a-134(a)(3), ¹ larceny in the second degree in violation of General Statutes §§ 53a-119 and 53a-123(a)(1), ² kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(B), ³ and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 ⁴ and 53a-134(a)(3). The trial court thereupon sentenced the defendants Collic and Sierra to total effective sentences of twenty years incarceration and twelve years incarceration, respectively. From these judgments the defendants appeal. We find error and remand each case for a new trial on all counts.

From the conflicting evidence presented at trial, the jury could reasonably have found the following. At approximately 9:15 p.m., on February 2, 1987, Fairfield police officers responded to a call for assistance at the Pequot Motor Inn in Fairfield where they discovered a naked woman handcuffed to the pipes of a bathroom sink. The woman, G, was employed by Andre's Massage Service as a professional masseuse. She had gone to room 28 at the Pequot Motor Inn to give a massage to a man registered under the name of Milton Ramboe, who had called her employer to arrange the appointment.

G had arrived at the motor inn at 7:58 p.m., had knocked on the door of room 28, but then had attempted to leave when "Ramboe" failed to produce a Connecticut driver's license or to allow G to view his face prior to her entering the room. As she had turned to leave, however, she was grabbed by the hood of her coat and was pulled into the room by "Ramboe," whom she later identified as the defendant Collic. After she was dragged into the room and thrown onto the bed, a second person, whom she later identified as the defendant Sierra, emerged from the bathroom, displayed a knife and threatened to cut her throat if she screamed. Sierra was wearing a belt with two sheaths, one empty and one containing a knife. Also on the belt were two sets of handcuffs. While a knife was held to her, G was blindfolded, gagged, undressed, punched in the stomach, and handcuffed to the bathroom sink. The defendants then left the room, taking with them her wallet, clothes and jewelry. After the police arrived in response to reports of G's screams for help, G discovered that her automobile was also missing. It was later recovered in the Bronx, New York.

On February 4, 1987, Darien police arrested the defendants on burglary charges unrelated to the Pequot Motor Inn incident. The defendants were searched and the officers seized two large knives, G's driver's license and a Milton Ramboe identification card from Collic, and handcuff keys from Sierra. The defendants were thereafter charged in connection with the Pequot Motor Inn incident.

On appeal, the defendants claim that the trial court erred in admitting into evidence testimony concerning a robbery allegedly committed by them two days prior to the incident for which they were on trial. Sierra further claims that the trial court erred in allowing Collic to call him as a witness in violation of his fifth amendment right not to testify at his own trial. Collic makes the additional claims that the trial court erred: (1) in admitting evidence of his flight when he was apprehended in an investigation concerning a Darien burglary, a crime unrelated to that for which he was being tried; and (2) in overruling objections to the state's closing argument. We find error in the trial court's admission of the prior crime evidence and in Sierra's having been compelled to testify at his own trial. We shall not consider the additional claims raised by Collic because the problems presented are unlikely to arise upon the retrial that we order.

I

During the trial, over defense objections, the state presented evidence that the defendants had committed an armed robbery of a Greenwich taxi driver two days prior to the incident for which they were being tried. ⁵ On appeal, the defendants claim that the trial court erred in admitting the evidence of this alleged prior crime. We agree.

For the purpose of discussing this issue, we must first explain the context in which it arose. The state presented no evidence of the Greenwich robbery in its case-in-chief. Rather, the prior crime evidence was introduced during cross-examination of Collic and during the state's rebuttal case. The evidence was presented in response to the testimony of Collic, who took the witness stand in his own defense. Collic admitted that on February 2, 1987, he had registered at the Pequot Motor Inn under the name of Milton Ramboe. He also admitted that he had taken G's clothes and purse. Collic denied, however, that he had committed any other criminal acts that night, and also denied that Sierra had been present in room 28 of the Pequot Motor Inn on February 2, 1987.

In contrast to G's version, Collic testified that February 2 was his birthday and that he had consequently called Andre's Massage Service to arrange for sexual services. According to Collic, when G arrived for the scheduled appointment, she voluntarily entered the motel room and discussed prices for various sexual activities. Upon their reaching an agreement, G undressed herself and placed, on one hand, handcuffs that she had brought with her. She then allowed Collic to handcuff her to the bathroom sink as a prelude to anticipated sexual activity. Collic testified that after he handcuffed her to the sink, he decided not to complete the transaction and left, taking with him G's clothes and purse.

On direct examination, Collic admitted that he and Sierra were arrested in Darien on February 4, 1987, on other charges, and further testified that he and Sierra were together in New York City on February 3, 1987, at which time Sierra had taken from him the handcuff keys that were seized from Sierra during his arrest in Darien. On cross-examination, Collic reiterated that Sierra had not been with him at the Pequot Motor Inn. Over objection, the state was then allowed to ask whether the defendants had taken a taxi ride together on January 31, 1987. Collic responded in the negative, but admitted that he had known Sierra on January 31, 1987. Also over objection, the state was allowed to ask Collic whether he and Sierra had taken the taxi at knife point and had then driven the taxi into the Bronx. The trial court admitted these questions as probative of the identity of the persons, specifically Sierra, who allegedly had been present at the Pequot Motor Inn on February 2, 1987.

On the next trial day, Collic filed, and Sierra joined, a written motion to preclude the state from introducing in its rebuttal case evidence regarding the alleged January 31 robbery in Greenwich. The trial court explained that Collic's denial of Sierra's presence at the motor inn on the night of the crimes involving G "projected this entire issue," and that the state had a "right to produce evidence to show that the converse [of Collic's testimony was] true." Thus, after the state had made an offer of proof as to the details of the Greenwich robbery, the court denied the defendants' motion and admitted detailed testimony about the Greenwich incident on the issues of Sierra's identity and Collic's credibility.

The rules governing the admissibility of evidence of a criminal defendant's prior misconduct are well established. " ' "As a general rule, evidence of guilt of other crimes is inadmissible to prove that a defendant is guilty of the crime charged against him. State v. Harris, 147 Conn. 589, 599, 164 A.2d 399 [1960]." State v. Fredericks, 149 Conn. 121, 124, 176 A.2d 581 (1961); McCormick, Evidence (2d Ed.1972) § 190; 1 Wharton, Criminal Evidence (13th Ed.) § 170. The rationale of this rule is to guard against its use merely to show an evil disposition of an accused, and especially the predisposition to commit the crime with which he is now charged. See State v. Williams, 190 Conn. 104, 108, 459 A.2d 510 (1983); State v. Howard, 187 Conn. 681, 684, 447 A.2d 1167 (1982); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982); State v. Barlow, 177 Conn. 391, 393, 418 A.2d 46 (1979); 1 Wigmore, Evidence (3d Ed.) §§ 215-18. Evidence of other misconduct, however, "may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity"; State v. Ibraimov, supra; or an element of the crime. State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982).' State v. Braman, 191 Conn. 670, 675-76, 469 A.2d 760 (1983); State v. Ryan, 182 Conn. 335, 337, 438 A.2d 107 (1980)." State v. O'Neill, 200 Conn. 268, 273, 511 A.2d 321 (1986). Such evidence may also be admissible when a defendant testifies and his credibility is in issue. State v. Brown, 169 Conn. 692, 701, 364 A.2d 186 (1975).

To be admitted under one of these exceptions, the evidence must satisfy a two-pronged...