State v. Swain

• Decision Date: 22 May 2007
• Docket Number: No. 26398.,26398.
• Citation: 101 Conn.App. 253,921 A.2d 712
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Scott D. SWAIN.

921 A.2d 712

101 Conn.App. 253

STATE of Connecticut v. Scott D. SWAIN.

No. 26398.

Appellate Court of Connecticut.

Argued November 29, 2006.

Decided May 22, 2007.

Charles F. Willson, special public defender, for the appellant (defendant).

Bruce R. Lockwood, assistant state's attorney, with whom, on the brief, were Patricia M. Froehlich, state's attorney, Mark A. Stabile, supervisory assistant state's attorney, and Thomas M. DeLillo, assistant state's attorney, for the appellee (state).

DiPENTIMA, GRUENDEL and HARPER, Js.

HARPER, J.

The defendant, Scott D. Swain, appeals from the judgments of conviction, rendered following a jury trial, of two counts of aggravated sexual assault in the first degree in violation of General Statutes § 53a-70a(a)(1), two counts of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1), two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 and two counts of threatening in the second degree in violation of General Statutes § 53a-62.¹ The defendant claims that (1) the trial court improperly denied his motion to sever the two cases that were joined for trial, (2) the court improperly excluded certain impeachment evidence and (3) prosecutorial misconduct deprived him of a fair trial. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On August 5, 2001, B² was staying at the residence of a friend in Willimantic. B was a heroin addict who earned money by means of prostitution. At approximately 3:45 a.m., she left her friend's residence to purchase heroin. While she was walking along Main Street, the defendant drove by her several times in his automobile. The defendant ultimately stopped his automobile, conversed with B and asked her to get into his automobile. B recognized the defendant as someone who, on several prior occasions, had paid her to perform oral sex. One such occasion had occurred as recently as eight months prior to this encounter. B got into the defendant's automobile, and the defendant drove B away from Main Street.

The defendant agreed to pay B $60, and B agreed to perform oral sex and to permit the defendant to engage in vaginal intercourse with her. The defendant drove to a desolate, wooded area in Windham, off Old Mansfield Road, and parked his automobile. The defendant and B got out of the automobile, and B began to perform oral sex on the defendant. The defendant asked B to stop, grabbed her by the hair with his left hand and held a knife against her neck with his right hand. The defendant instructed B to do as he said, threatening to stab her if she did not.

The defendant ordered B to undress and, while she resisted, attempted to engage in anal intercourse with her. Ultimately, the defendant forced B to her knees and instructed her to perform oral sex. Following the sexual assault, the defendant told B to get dressed and to walk into the wooded area, threatening to kill her if she looked back. The defendant drove away. B eventually walked to a traveled roadway, where a bystander provided assistance and took B to the workplace of one of B's friends in Willimantic. The bystander later reported the incident to the police and, while a police officer was in the process of investigating the reported incident later that morning, B approached him and related what had occurred.

Less than one year later, on July 16, 2002, P, a heroin addict who engaged in prostitution, left her Willimantic residence at approximately 2 a.m. to earn money to purchase heroin. P walked toward Main Street in Willimantic. The defendant approached P in his automobile and inquired if she was working as a prostitute. P responded affirmatively and got into the defendant's automobile. The defendant inquired how much P would charge him for specific sexual acts, but the parties did not reach an agreement in this regard.

The defendant drove P to approximately the same area off Old Mansfield Road in Windham where he had sexually assaulted B. Soon after he parked his automobile in a wooded clearing, the defendant forced P to perform oral sex. He grabbed her hair and told her he was armed with a knife and a gun. He also showed her a gun. At one point, he held a knife against her back and threatened to stab her. Later, he struck P's head, partially undressed her and, by means of his fingers or a gun, vaginally penetrated P. After he completed his sexual act, the defendant forcibly removed P from the automobile, pulling her by her hair. The defendant walked P into the wooded area, instructed her to start running and not to look back. The defendant drove away. P made her way out of the wooded area and walked to a residence where she asked for help. Police responded to the scene and assisted P in obtaining medical care. Additional facts related to the incidents will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion to sever the two cases that were joined for trial. We disagree.

The record reflects that in December, 2003, the state filed a motion for joinder, requesting that the court join for trial four pending cases against the defendant. The first case concerned the defendant's conduct on August 5, 2001, against B. The second case concerned the defendant's conduct in June, 2002. In this second case, the state alleged that the defendant, while accompanied by another individual, sexually assaulted a female victim in Chaplin. The third case concerned the defendant's conduct on July 16, 2002, against P. The fourth case concerned the defendant's failure to register as a sex offender in this state following an unrelated Massachusetts conviction. In May, 2004, the defendant filed a motion to sever these four cases. The court held a hearing on the defendant's motion and, in an oral ruling, granted the defendant's motion in part, severing the second and fourth cases from trial.³ The court denied the motion in part, joining the first and third cases described previously. The defendant claims that the court's ruling deprived him of his right to a fair trial under the federal and state constitutions.⁴

The standard of review and legal principles that govern this type of claim were recently set forth by this court: "In Connecticut, joinder of cases is favored. . . . Joinder expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve upon juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once. . . .

"Despite this deferential standard, the court's discretion regarding joinder, however, is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant's right to a fair trial. . . . [Our Supreme Court has recognized] that an improper joinder may expose a defendant to potential prejudice for three reasons. First, when several charges have been made against the defendant, the jury may consider that a person charged with doing so many things is a bad [person] who must have done something, and may cumulate evidence against him. . . . Second, the jury may have used the evidence of one case to convict the defendant in another case even though that evidence would have been inadmissible at a separate trial. . . . [Third] joinder of cases that are factually similar but legally unconnected . . . present[s] the . . . danger that a defendant will be subjected to the omnipresent risk . . . that although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused's guilt, the sum of it will convince them as to all. . . .

"General Statutes § 54-57 and Practice Book § 829 [now § 41-19] expressly authorize a trial court to order a defendant to be tried jointly on charges arising separately. In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. . . . The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice and that any resulting prejudice was beyond the curative power of the court's instructions. . . . [W]hether a joint trial will be substantially prejudicial to the rights of the defendant . . . means something more than that a joint trial will be less advantageous to the defendant. . . .

"Furthermore, we have identified several factors that a trial court should consider. . . . These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant's part; and (3) the duration and complexity of the trial. . . . If any or all of these factors are present, a reviewing court must decide whether the trial court's jury instructions cured any prejudice that might have occurred." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Davis, 98 Conn.App. 608, 615-16, 911 A.2d 753 (2006), cert. granted on other grounds, 281 Conn. 915, 917 A.2d 999 (2007).

In its oral ruling, the court considered each of the factors described previously. The court reasoned that because the cases to be joined shared "extremely similar" factual allegations, evidence admissible during one case would be admissible during the other. The court stated that, this being the case, "[s]eparate trials would provide the defendant no significant benefit." The court, however, noted that the factual scenarios in these cases were nonetheless "discrete" and "easily distinguishable. . . ." The court also stated that although allegations of brutal conduct were at issue in both cases, "the risk that one of the cases will so shock the jurors that they would convict the defendant on the other...