State v. Taylor

• Decision Date: 20 April 1999
• Court: Connecticut Court of Appeals
• Parties: (Conn.App. 1999) STATE OF CONNECTICUT v. DEVON TAYLOR 17995

729 A.2d 226 (Conn.App. 1999)

STATE OF CONNECTICUT v. DEVON TAYLOR

17995

Connecticut Court of Appeals

Argued January 12

April 20, 1999

Glenn W. Falk, special public defender, for the appellant (defendant). Timothy J. Sugrue, executive assistant state's attorney, with whom, on the brief, were James Thomas, state's attorney, and Rosita Creamer, senior assistant state's attorney, for the appellee (state).

Foti, Schaller and Sullivan, Js.

Schaller, J.

Substitute information charging the defendant with the crimes of murder and criminal possession of a firearm, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Barry, J.; verdict and judgment of guilty, from which the defendant appealed to this court. Affirmed.

OPINION

The defendant, Devon Taylor, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes (Rev. to 1997) §§ 53a-54a and criminal possession of a firearm in violation of General Statutes §§ 53a-217. The defendant's sole claim on appeal is that the trial court improperly denied his motion to sever the charges. ¹ We affirm the judgment of the trial court.

The defendant was charged with murder and criminal possession of a firearm, an essential element of which is a prior felony conviction. ² Prior to trial, the defendant moved to sever the murder charge from the weapons charge on the ground that the evidence of his prior felony conviction for the purpose of proving the weapons charge would have a prejudicial impact on the jury in its consideration of the murder charge. The trial court denied the motion, ruling that it could contain any undue prejudice with an appropriate limiting instruction. The defendant subsequently stipulated that he had been previously convicted of larceny in the second degree, a class C felony. On the last day of the state's evidence, the trial court informed the jury of the stipulation and, at the same time, gave the jury a limiting instruction. ³ The trial court repeated the identical limiting instruction in its charge to the jury. ⁴ The defendant did not testify at trial.

The jury reasonably could have found that the defendant shot the victim, Jay Murray, with a revolver in the course of a drug transaction in Hartford involving the defendant as seller and the victim as buyer. The victim and Ronald Wightwood, the victim's companion, were attempting to purchase drugs. They met the defendant and indicated to him that they wanted cocaine. The defendant and the victim discussed the purchase and the defendant entered the victim's pickup truck and drove it to the vicinity of a car wash on Albany Avenue. The defendant exited the truck and retrieved a plastic bag containing a white powdery substance, which he gave to the victim. After the victim sampled and rejected the substance, the defendant drove the truck and its occupants to Milford Street. The defendant left the truck but returned several minutes later and shot the victim with a revolver through the driver's side window of the truck. All of those events occurred in the presence of Wightwood. The police found $150 in the truck and also found the defendant's fingerprints on the exterior and interior of the truck. At trial, Wightwood identified the defendant as the shooter.

The defendant argues that he was substantially prejudiced with respect to defending against the charge of murder by the evidence of his prior felony conviction in view of the brevity of the trial, the disputed nature of the identification testimony, the fact that the conviction would not otherwise have been admissible because he did not testify, and the prosecutor's use of the defendant's prior conviction in her closing argument. The state argues that a denial of severance is discretionary and that our decision in State v. Davis, 51 Conn. App. 171, 180-84, 721 A.2d 146 (1998), is dispositive.

We conclude that Davis is dispositive of the issue in this case. Davis involved a similar situation. In Davis, the defendant made a similar request to sever a criminal possession charge under §§ 53a-217. The defendant claimed, as in the present case, that the proof of a prior felony conviction would have a prejudicial impact on the jury in its consideration of the other counts. The defendant further claimed that the prejudicial impact was increased because the trial court failed to issue any cautionary instruction and the defendant did not testify. The defendant in Davis, as in the present case, stipulated that he had been previously convicted of a felony.

We held in Davis that the defendant did not establish that he was substantially prejudiced by the trial court's denial of his motion to sever despite the failure of the trial court to give any cautionary instruction to the jury and the fact that the defendant did not testify. In doing so, we stated: "The question of severance lies within the discretion of the trial court. We will not disturb the trial court's Conclusion on the issue absent a clear abuse of discretion. The discretion to sever a trial should be exercised only if a joint trial will substantially prejudice the defendant. Substantial prejudice is more than disadvantage and the formidable task of demonstrating an abuse of discretion and that a joint trial resulted in substantial prejudice falls to the defendant. . . . Simply put, the test to be applied is whether substantial inJustice will result if the charges are tried together." (Citations omitted; internal quotation marks omitted.) Id., 180-81.

We further stated the applicable law as follows: "The trial court correctly applied State v. Banta, [15 Conn. App. 161, 167, 544 A.2d 1226, cert. denied, 209 Conn. 815, 550 A.2d 1086 (1988)], in its decision not to sever or bifurcate the count at issue. In Banta, the defendants were charged with violating General Statutes §§ 53a-217 and each requested that the trial court sever that count for a separate trial. The trial court denied the motions. The Banta defendants likewise claimed that they were substantially prejudiced because proof of a prior felony conviction was an essential element of General Statutes §§ 53a-217. In determining whether one of the Banta defendants was so prejudiced, this court set forth five factors to evaluate: (1) the manner in which the evidence entered the case and the extent of the jury's knowledge of the facts...