State v. Smith, s. 3842

Decision Date05 May 1987
Docket Number3843,Nos. 3842,s. 3842
Citation525 A.2d 116,10 Conn.App. 624
CourtConnecticut Court of Appeals
PartiesSTATE of Connecticut v. Lester SMITH.

Barbara Goren, Sp. Public Defender, for appellant (defendant).

Christopher Malany, Deputy Asst. State's Atty., with whom, on brief, was Roland Fasano, Asst. State's Atty., for appellee (State).

Before BORDEN, SPALLONE and BIELUCH, JJ.

BORDEN, Judge.

The defendant appeals from his convictions, after a jury trial, on two informations. The first information charged three counts of robbery in the first degree arising out of an incident at an AM-PM Mini Mart in New Haven, and the second information charged a single count of robbery in the first degree arising out of an incident at a Dairy Mart in West Haven, all in violation of General Statutes § 53a-134(a)(4). The defendant claims that the trial court erred (1) in granting the state's motion to consolidate the two informations, (2) in unduly restricting defense counsel's voir dire examination of potential jurors, (3) in unfairly charging on the credibility to be accorded the defendant's testimony, and (4) in erroneously charging on circumstantial evidence. We find no reversible error.

The jury could reasonably have found the following facts. With respect to the first information, on September 3, 1983, at about 11:35 p.m., the defendant and another person entered an AM-PM Mini Mart in New Haven, drew their guns and announced, "This is a holdup. No one move." The defendant walked behind the counter and ordered a store employee, Mitchell Nixon, to empty the contents of the cash register into a paper bag. James Harder, a customer, was in the store at the time of the robbery. The defendant's companion took Harder's wallet, which contained about $60 and various credit cards. While the robbery was in progress, Garrett Johnson entered the store, and the defendant's accomplice took his wallet which also contained cash.

The descriptions given by these three witnesses tended to establish that the person who went behind the counter was a black male, about 6 feet 2 or 3 inches tall, and armed with a revolver. He wore a clear shower cap over his hair and surgical gloves on his hands and, during the course of the robbery, he put on sunglasses. The second robber was also a black male, about six feet tall, with a moustache and goatee, also wearing surgical gloves and sunglasses. Additionally, he wore a wide-brimmed hat and carried a semi-automatic pistol. Both Nixon and Harder identified the defendant at trial as the person who robbed the AM-PM Mini Mart. They did not, however, identify him from any of the photo arrays shown to them.

With respect to the second information, five hours after the AM-PM Mini Mart robbery, a Dairy Mart convenience store in West Haven was robbed. Joseph Nardini, the employee on duty at the time, testified that two men came into his store. The taller of the robbers, armed with a revolver, came behind the counter and ordered Nardini to empty the contents of the register, about $230, into a paper bag. Don Ranslow, a customer, was also in the store at the time of the robbery. He was forced by the defendant's companion to lie spreadeagled on the floor. He did not, however, have any property taken from him. Nardini and Ranslow testified that the defendant and his accomplice were both black and were wearing sunglasses and shower caps. Nardini further testified that the person who came around the counter was wearing a surgical glove on his right hand. Nardini identified the defendant both at trial and from a photograph array.

After the robbery was complete and the two men had fled the Dairy Mart, Nardini called the West Haven police. In response Edward Anderson, a patrolman operating his car in the area, observed a blue Cadillac occupied by two black men speeding from the scene of the crime. He pursued the car, and after a high speed chase it came to a stop in a parking lot. The two occupants left the car and ran off. A check revealed that the blue Cadillac was registered to the defendant. A subsequent search of the car by Officer William Ciccosanti of the West Haven police department revealed a loaded .38 caliber Colt revolver, a shower cap, two pairs of surgical gloves, two pairs of sunglasses, Garrett Johnson's wallet with identification cards, James Harder's empty wallet, and the defendant's wallet containing James Harder's credit cards.

The defendant presented an alibi defense. He called as witnesses his half brother and his nephew. Their testimony tended to show that the defendant had been in their company at various locations in and around New Haven until approximately 11 p.m. The defendant then drove his half brother home and returned to a club in New Haven at which he had been earlier in the evening. He stayed there until it closed around 3:30 a.m. The defendant testified that he thereafter drove to West Haven to visit a female friend. As he was leaving the friend's apartment, he was accosted by two men in the lot where he had parked his car. They forced him at gunpoint into the back seat of his car and threatened him in connection with a woman with whom he had spoken the previous day. They also told him "you already committed one robbery and you're going with us to commit another." The defendant testified that the two men were wearing shower caps and sunglasses. They drove off with the defendant in his car, and when it slowed down at a corner the defendant jumped out. During his escape, the defendant testified, one of the armed men grabbed his jacket which came off. In the jacket was the defendant's wallet and identification.

I

The defendant claims first that the trial court erred in granting the state's motion to consolidate the information charging the three robberies at the AM-PM Mini Mart with the information charging the single robbery at the Dairy Mart. We disagree.

Over the defendant's objection, the trial court granted the state's motion to consolidate. The defendant claims that as a result, he suffered substantial prejudice in two ways. First, he claims that the evidence of one robbery would not have been admissible during the separate trial on the other robbery. He acknowledges that the two robberies were similar but claims that they were not sufficiently unique to have been mutually admissible in separate trials as "signature" crimes. Therefore, he argues, trying the cases together when they otherwise would not have been mutually admissible created the possibility that the jury cumulated evidence and cured any weakness in either case in order to convict the defendant on both. The defendant claims this was particularly likely to occur in these cases because the identification evidence in the Dairy Mart robbery was stronger than in the AM-PM Mini Mart robbery, creating the likelihood that the jury cumulated the evidence to reach their guilty verdicts. Second, the defendant claims he suffered substantial prejudice by the consolidation of the charges because his decision to testify was impermissibly interfered with. He claims that he might not have taken the witness stand with respect to the AM-PM Mini Mart robbery because the identifications were weak, if not nonexistent, and because his alibi witnesses accounted for his whereabouts during the time the robbery was allegedly committed. Because the cases were tried together, however, he claims he was pressured to take the witness stand to explain the second crime, especially since his alibi defense did not cover that time period.

The trial court is empowered to consolidate or sever trials. See General Statutes § 54-57; Practice Book §§ 828, 829. Whether a trial court orders a severance is a question within the sound discretion of the trial court, and that discretion must not be disturbed unless it has been manifestly abused. State v. Schroff, 198 Conn. 405 408-409, 503 A.2d 167 (1986). Such discretion 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.' " (Emphasis added.) Id. In demonstrating substantial prejudice from the denial of a severance, an accused bears a heavy burden. State v. King, 187 Conn. 292, 302, 445 A.2d 901 (1982).

With respect to the defendant's first claim, we recognize that "[t]he most obvious example of possible prejudice [from a joint trial] is that, when the crimes near in time, place and circumstance, are so similar ... there is danger that the jury will use the evidence of one crime to convict the defendant of the other crime. See Drew v. United States, 331 F.2d 85, 89 (D.C.Cir. [1964]; 1 Wigmore, Evidence (3d Ed.) § 194." State v. Oliver, 161 Conn. 348, 288 A.2d 81 (1971). The same rationale lies behind the rule that evidence of other crimes is inadmissible except in certain situations. This case, however, is one of those situations where, had the cases been tried separately, evidence of each robbery would have been mutually admissible.

Evidence of a criminal defendant's prior unconnected crime " ' "[may be] admissible ... when it is particularly probative in showing such things as ... identity...." ' State v. Gilnite, 4 Conn.App. 676, 680, 496 A.2d 525 (1984)." State v. Murrell, 7 Conn.App. 75, 80, 507 A.2d 1033 (1986). The principal issue in dispute at the defendant's trial was the identity of the person or persons who robbed the two convenience stores. In order to introduce evidence of other crimes or misconduct on the issue of identity, the methods used to perpetrate the crime must be " ' "sufficiently unique to warrant a reasonable inference that the person who performed one misdeed also did the other." ' " Id., 81, 507 A.2d 1033, quoting State v. Ibraimov, 187 Conn. 348, 354, 446 A.2d 382 (1982).

The two crimes in this case pass the test of sufficient uniqueness. They shared...

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