State v. Torres

• Decision Date: 09 May 2000
• Docket Number: (AC 19820)
• Citation: 57 Conn. App. 614,749 A.2d 1210
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JUAN R. TORRES

57 Conn. App. 614

749 A.2d 1210

STATE OF CONNECTICUT v. JUAN R. TORRES

(AC 19820)

Appellate Court of Connecticut.

Argued January 12, 2000.

Officially released May 9, 2000.

O'Connell, C. J., and Zarella and Dupont, Js.¹ Richard Hustad Miller, special public defender, for the appellant (defendant).

John A. East III, assistant state's attorney, with whom, on the brief, were Mark S. Solak, state's attorney, and Vincent J. Dooley, senior assistant state's attorney, for the appellee (state).

Opinion

ZARELLA, J.

The defendant, Juan R. Torres, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B). On appeal, the defendant claims that the trial court improperly allowed the state (1) to present evidence of other misconduct and (2) to make the jury aware that his separately tried accomplice was imprisoned. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant was a longtime friend of Julio Santiago and Jose Ortiz. Ortiz was employed at the Big A auto parts store in Windham. Ortiz informed the defendant that Big A was profitable and that at the end of the business day, several thousand dollars in proceeds usually were taken from the registers and placed in the store's safe. Additionally, Ortiz revealed that the safe generally was unlocked during business hours until fifteen minutes prior to closing, when the day's proceeds were counted and deposited in the safe.

The defendant and Santiago devised a plan to rob the store just prior to closing, when the day's proceeds had been counted and deposited in the safe. As part of that plan, the defendant and Santiago agreed to disguise themselves with ski masks and to rob the store at gunpoint.

On February 14, 1996, Ortiz left work at Big A at approximately 6:15 p.m. and returned home at 6:20 p.m. The defendant telephoned Ortiz to tell him that the robbery was about to occur and that he would call Ortiz after it was completed with instructions on where to meet him and Santiago after the robbery.

The owner of Big A, Glen Gabriele, was working at the store on February 14, 1996. At approximately 6:40 p.m., Gabriele's friend, Doug Hoyle, entered and Gabriele asked him to watch the front of the store while he went to the bathroom. The only other person in the store at that time was Alan Fenrow, a Big A employee.

A man entered the store and announced, "This is a stickup!" The man was thin, approximately five feet, ten inches tall, and was wearing dark clothing, gloves and a black ski mask. Hoyle asked the man if he was serious, and the man thrust a gun at Hoyle's face. A second robber, who was thin and approximately five feet, four inches tall, then entered the store.

The taller robber placed his gun to Hoyle's back and forced him to lie on the floor. The shorter robber stood guard over Hoyle while the taller robber approached Fenrow, who was unaware that a robbery was occurring because he was busy repairing a computer. The taller robber put his gun to Fenrow's back and said, "This is a stickup!" He forced Fenrow to guide him to the safe, which the taller robber then emptied. Fenrow was forced to the floor, and the robbers warned him and Hoyle to remain on the ground. The robbers then fled.

Gabriele returned from the bathroom and discovered that the store had been robbed. After the police were called, neither Hoyle nor Fenrow could describe the robbers' faces. Both agreed, however, that the taller robber had a semiautomatic handgun. Also, Hoyle informed the police that the shorter robber carried a semiautomatic weapon that was smaller than the one carried by the taller robber.²

Sometime after 7 p.m., the defendant, using a cellular telephone, called Ortiz and instructed him to go to a deserted cornfield one to two miles from Big A and wait for Santiago and the defendant to arrive. Ortiz immediately drove to the cornfield to meet the two men. Upon arriving, the defendant and Santiago entered Ortiz's car, and the defendant told Ortiz that he had buried both guns and his mask in the snow in the cornfield. The defendant and Santiago gave Ortiz specific details describing the robbery. Santiago openly displayed the money stolen from Big A, and the two robbers complained to Ortiz that they had only obtained $152 and some rolled coins from the safe. Ortiz drove Santiago to his sister's house and then went with the defendant to a fast-food restaurant. Ortiz drove the defendant back to the cornfield a few days later, and the defendant retrieved the guns and the mask he had buried.

The defendant and Santiago next planned to rob a McDonald's restaurant in Mansfield, and Ortiz agreed to be the driver of the getaway car. On February 23, 1996, nine days after the Big A robbery, Ortiz dropped the two men off near the McDonald's restaurant and then drove to a nearby spot on a limited access highway beneath the Route 195 overpass to wait for them. At 11:30 p.m., state police Trooper Robert Peasley, who was on duty, spotted the parked car. He approached the car, believing that it was abandoned, and discovered Ortiz lying across the front seat. Ortiz was visibly nervous and gave Peasley evasive responses to his questions. Ortiz claimed that his car had overheated. Peasley was suspicious and radioed for assistance. Three troopers arrived and discovered that the car was in good working condition.

Despite their suspicions about Ortiz, the troopers could not justifiably detain him and allowed Ortiz to drive away. The troopers then received a call on the radio dispatch reporting the robbery of a nearby McDonald's restaurant. The troopers went to the McDonald's and discovered that two masked men had robbed the restaurant at gunpoint and fled on foot. Two of the troopers began tracking the robbers with the assistance of a dog. The dog led the troopers to a spot beneath the highway overpass where they had encountered Ortiz. The dog then led the troopers past the overpass to a large bush. Underneath the bush the troopers found a nine millimeter pistol, a .380 caliber pistol, a black ski mask and several money bags. The robbers were not found.

After his encounter with the troopers, Ortiz went home and received a telephone call from the defendant, asking why Ortiz had not met him at the overpass. Soon thereafter, the police went to Ortiz's home and took him into custody. The police took Ortiz to the McDonald's, where Ortiz discovered that Santiago also was in custody. Ortiz gave the police a statement that implicated the defendant, Santiago and himself in the robbery of the McDonald's. The defendant also confessed to the McDonald's robbery. Two days later, Ortiz was interviewed by two detectives while awaiting arraignment in connection with the McDonald's robbery. Ortiz gave a statement implicating the defendant, Santiago and himself in the Big A robbery. Ortiz testified at the Big A robbery trial for the prosecution.

I

The defendant first claims that the court improperly allowed the state to present evidence concerning the McDonald's robbery during his trial in connection with the Big A robbery. We disagree.

The following additional facts are necessary for the resolution of this issue. During the defendant's trial, the state submitted a motion to admit evidence about the McDonald's robbery. The state sought to introduce the evidence for the limited purpose of establishing a course of conduct and the defendant's identity. The grounds for the state's motion were the signature crime and identity exceptions to the general rule prohibiting the admission of other misconduct evidence.

After a hearing outside the presence of the jury, the court agreed that the evidence of the McDonald's robbery was admissible, but disagreed that it was admissible under either the signature crime or identity exceptions. Instead, the court concluded that the evidence of the McDonald's robbery was admissible to prove an element of the crime of robbery in the first degree. The court stated that the McDonald's evidence was admissible for the limited purpose of establishing the identity of the two handguns and the ski mask. The court determined that the probative value of the evidence outweighed its prejudicial effect. The court also ruled that the defendant's confession to the McDonald's robbery was admissible, but that the evidence of his conviction for that crime was inadmissible.

Before the jury heard any evidence pertaining to the McDonald's robbery, the court gave the jury a cautionary instruction.³ The state then presented the testimony of several witnesses, including Ortiz, regarding the planning, execution and aftermath of the McDonald's robbery. The state also offered into evidence the two guns used in the McDonald's robbery, the ski mask and the defendant's confession.

Defense counsel objected to the admission of the testimony concerning the McDonald's robbery. In overruling the defendant's objection, the court gave the jury an additional cautionary instruction.⁴ A final cautionary instruction also was given during the court's charge to the jury.⁵ "As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused.... Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior." (Citations omitted.) State v. Kulmac, 230 Conn. 43, 60, 644 A.2d 887 (1994). Exceptions to the general rule exist, however, "if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime." (Internal quotation marks omitted.) State v. Adorno, 45 Conn. App. 187, 191-92, 695 A.2d 6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997); see State...