State v. Snead

Decision Date04 June 1996
Docket NumberNo. 13976,13976
CourtConnecticut Court of Appeals
PartiesSTATE of Connecticut v. Rudolph SNEAD.

Glen W. Falk, Special Public Defender, with whom, on the brief, was David B. Bachman, Special Public Defender, for appellant defendant.

James M. Ralls, Assistant State's Attorney, with whom, on the brief, were Donald A. Browne, State's Attorney, and Nicholas J. Bove, Assistant State's Attorney, for appellee State.

Before FOTI, SCHALLER and CRETELLA, JJ.

CRETELLA, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the third degree in violation of General Statutes §§ 53a-136(a) and 53a-133, larceny in the second degree in violation of §§ 53a-123(a)(3) and 53a-119, tampering with a witness in violation of § 53a-151(a), threatening in violation of § 53a-62(a)(1), and interfering with an officer in violation of § 53a-167a(a). The defendant was acquitted of a charge of assault of a victim over sixty years old.

On appeal, the defendant claims that the trial court (1) improperly consolidated the interfering charge with the other offenses for trial, (2) abused its discretion in allowing the state to amend the information before jury selection, (3) improperly allowed the state to introduce evidence of and instructed the jury regarding consciousness of guilt, and (4) improperly denied the defendant's motion for acquittal on the charge of threatening. We affirm the judgment of the trial court.

The defendant was initially charged in two separate informations containing a total of four counts. In the first information, the defendant was charged with robbery in the first degree, larceny in the second degree, and assault of a victim sixty years or older, based on an incident that occurred on November 1, 1992. The second information was based on an incident that occurred on October 8, 1993, when two Bridgeport police officers attempted to arrest the defendant. At that time, the defendant yelled, kicked and resisted the officers, giving rise to the additional charge of interfering with an officer.

Just prior to the start of jury selection, the trial court granted the state's motion to consolidate the two informations for trial. The trial court also allowed the state to file an amended long form information that reduced the original charge of robbery in the first degree to that of robbery in the third degree and, together with the charges of larceny in the second degree and assault of a victim over sixty, added the charges of tampering with a witness and threatening.

The jury reasonably could have found the following facts. On November 1, 1992, the victim went to Jackson Brothers' Lounge in Bridgeport to speak to a man named "Pumpkin" about having some wood delivered. On her way out, the victim was grabbed from behind by the defendant, who placed an object against her throat and demanded her money. The victim released her pocketbook to the defendant, and then the defendant shoved her, causing her to fall. The victim saw the defendant remove her wallet from her pocketbook and run away.

The victim called the police and the police drove her around the neighborhood in search of the defendant, but she did not see him. Later that day, the victim received a telephone call at home, threatening that if she went to the police, she would be "as good as dead."

I

The defendant first argues that the trial court improperly consolidated the charges against him and failed to instruct the jury adequately regarding the necessity of considering the charges separately. Specifically, the defendant claims that the trial court improperly denied his motion for severance and granted the state's motion to consolidate the information relating to the November 1, 1992 robbery charge with the information relating to the October 8, 1993 interfering charge. We disagree.

Consolidation of charges in a joint trial is authorized both by statute and judicial rule. General Statutes § 54-57; Practice Book § 829. We further note that there is a clear presumption in favor of joinder and against severance. State v. Chance, 236 Conn. 31, 38, 671 A.2d 323 (1996). "[S]everance may be necessary to prevent undue prejudice resulting from the consolidation of two or more charges for trial when: (1) the cases do not involve discrete, easily distinguishable factual scenarios; (2) one or more of the counts alleges brutal or shocking conduct by the accused; or (3) the trial is one of long duration or very complex." Id., at 42, 671 A.2d 323, citing State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987); State v. Jennings, 216 Conn. 647, 657-58, 583 A.2d 915 (1990). Whether to grant or deny a motion for severance rests in the discretion of the trial judge. State v. Chance, supra, 236 Conn. at 38, 671 A.2d 323. "Consistent with this discretion, which is broad, an accused bears a heavy burden to show that the denial of severance resulted in substantial injustice because of a manifest abuse of discretion in denying severance.... The burden includes a showing that any prejudice from joinder was beyond the curative power of the court's instructions." (Citations omitted; internal quotation marks omitted.) Id.; see also State v. Cassidy, 236 Conn. 112, 132-33, 672 A.2d 899 (1996); State v. Hermann, 38 Conn.App. 56, 61-62, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995).

Applying these three factors, we conclude that the defendant was not prejudiced by the denial of his motion to sever and the granting of the state's motion to consolidate. First, the charges consolidated for trial involved discrete, easily distinguishable factual scenarios. The robbery, larceny and assault charges were based on the robbery of the victim at approximately 1 p.m. on November 1, 1992; the tampering and threatening charges arose from the defendant's telephone call to the victim later that day; and the interfering charge involved the defendant's conduct when the police attempted to arrest him on October 8, 1993. Second, although an element of violence was involved in this case, "the conduct was not so brutal or shocking as to create a substantial risk that the jury, with explicit instructions to treat each offense separately, would nevertheless treat the evidence cumulatively." State v. Yopp, 35 Conn.App. 740, 753, 646 A.2d 298 (1994). The facts in the present case compare favorably to more violent or disturbing crimes for which joinder has been approved. Third, the trial, which consisted of only two days of evidence, ten witnesses and six exhibits, was not so long or complex as to require severance.

"We also note that where evidence of one incident can be admitted at the trial of the other incidents, separate trials would provide the defendant no significant benefit, and under such circumstances he would ordinarily not be substantially prejudiced by joinder." (Internal quotation marks omitted.) State v. Hermann, supra, 38 Conn.App. at 63, 658 A.2d 148. The trial court, in ruling on the motion to consolidate, correctly noted that evidence that the defendant resisted arrest, as well as the evidence regarding tampering with a witness and threatening, would probably be admissible in the robbery case as evidence of consciousness of guilt.

"Finally, although a curative instruction is not inevitably sufficient to overcome the prejudicial impact of [inadmissible other crimes] evidence ... where the likelihood of prejudice is not overwhelming, such curative instructions may tip the balance in favor of a finding that the defendant's right to a fair trial has been preserved." (Citations omitted; internal quotation marks omitted.) State v. Jennings, supra, 216 Conn. at 660, 583 A.2d 915. In this case, the trial court explicitly instructed the jury that it was required to consider each offense separately. We, therefore, conclude that the trial court did not abuse its discretion in consolidating the two informations for trial.

II

The defendant next argues that the trial court abused its discretion by allowing the state to amend the information on the eve of trial to add tampering with a witness and threatening charges relating to an event that occurred at a different place and time than the robbery with which the defendant was charged. 1 We disagree.

As we have noted, the original long form information charged the defendant with robbery, larceny and assault. On the morning that jury selection was scheduled to begin, the state filed an amended information adding the charges of tampering with a witness and threatening. These charges related to the alleged telephone call made by the defendant to the victim subsequent to the alleged robbery. Following oral argument, the trial court overruled the defendant's objection to the filing of the amended information.

"Before the commencement of trial, a prosecutor has broad authority to amend an information under Practice Book § 623. Once the trial has started, however, the prosecutor is constrained by the provisions of Practice Book § 624." State v. Tanzella, 226 Conn. 601, 607, 628 A.2d 973 (1993). It is clear that for purposes of Practice Book §§ 623 and 624, a criminal trial begins with the voir dire of the prospective jurors. Id., at 607-08, 628 A.2d 973; State v. Nixon, 32 Conn.App. 224, 229, 630 A.2d 74 (1993), aff'd on other grounds, 231 Conn. 545, 651 A.2d 1264 (1995). In the present case, the state filed an amended long form information before jury selection commenced and thus § 623 governed the trial court's analysis. 2 That section provides that "[i]f the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information. Upon motion of the defendant, the judicial authority, in his discretion, may strike the amendment or added counts or substitute information, if the trial or the cause would be unduly delayed or the substantive rights of...

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