State v. Walsh

• Decision Date: 13 April 1999
• Citation: 52 Conn. App. 708,728 A.2d 15
• Court: Connecticut Court of Appeals
• Parties: (Conn.App. 1999) STATE OF CONNECTICUT v. MICHAEL WALSH 16578

728 A.2d 15 (Conn.App. 1999)

STATE OF CONNECTICUT v. MICHAEL WALSH

16578

APPELLATE COURT OF CONNECTICUT

April 13, 1999

Pamela S. Nagy, special assistant public defender, for the appellant (defendant). Denise B. Smoker, assistant state's attorney, with whom, on the brief, were Maureen M. Keegan, supervisory assistant state's attorney and Cara Eschuk, assistant state's attorney, for the appellee (state).

JUDGES: O'Connell, C.J., and Foti and Sullivan, JJ.

O'CONNELL, C. J.

The defendant, Michael Walsh, appeals, following a jury trial, from judgments of conviction of four counts of sexual assault in the first degree in violation of General Statutes 53a-70 (a) (2),¹ two counts of risk of injury to a child in violation of General Statutes 53-21² and one count of sexual assault in the fourth degree in violation of General Statutes 53a-73a (1) (A).³ The trial court granted the defendant's motion for a judgment of acquittal of an additional risk of injury count. The defendant claims that the trial court improperly (1) consolidated two cases, (2) admitted evidence of uncharged misconduct, (3) admitted irrelevant hearsay evidence, (4) refused to give his requested jury charge concerning inconsistent statements and (5) refused to disclose a victim's confidential records. We affirm the judgments of the trial court.

The genesis of this appeal was two separate informations, each charging the defendant with sexually assaulting a girl. The victim, A, was born on December 7, 1985, and the victim, H, was born on August 9, 1984. Pursuant to General Statutes 54-57⁴ and Practice Book 829, now 41-19,⁵ the trial court, pursuant to the state's motion, consolidated both informations for trial. The jury reasonably could have found the following facts. In February and March, 1995, the defendant lived in Naugatuck with his girlfriend, her nine year old daughter, A, and their infant son. One morning after his girlfriend had left for work, the defendant ordered A into his bedroom and anally penetrated her. A screamed and tried to get out from under him. The defendant similarly assaulted her three more times in February and March, 1995. Following the last assault, the defendant threatened to "double it" the next time. A subsequently spoke with Detective Laura Wigglesworth of the Naugatuck police department, informing her that the defendant might also have assaulted her friend H.

H was similarly assaulted by the defendant when she was staying overnight at his house. The assault took place in the defendant's bedroom where he had H lie on his bed while he went behind her, pulled up her nightgown and, without removing her underpants, placed his penis between her legs. He did not, however, penetrate her. The defendant then went to his dresser, picked up a gun and, while loading it, threatened to kill H if she told anyone about the incident.

Additional facts will be included in the analysis of individual claims.

I

The defendant first claims that the trial court improperly granted the state's motion to consolidate the counts involving A with counts involving H. Following oral argument, the trial court ruled that the two cases were "factually similar and legally connected" and that there was a common scheme of sexually abusing young girls. The similarities that the court found were that (1) both victims were young girls, (2) all the alleged abuse occurred at the defendant's home, (3) similar threats were made against each victim and (4) the sexual assaults were all perpetrated in a similar manner.

The trial court has discretion to determine whether separate cases involving the same defendant should be consolidated; State v. Pollitt, 205 Conn. 61, 67, 530 A.2d 155 (1987); and the exercise of that discretion may not be disturbed on appeal unless it has been manifestly abused. Id., 67-68. To demonstrate that the trial court abused its discretion, the defendant bears the heavy burden of convincing this court that the joinder resulted in substantial injustice. Id., 68.

In Connecticut, joinder of cases is favored. State v. Hilton, 45 Conn. App. 207, 213, 694 A.2d 830 (1997). 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.'" State v. Vinal, 198 Conn. 644, 649 n.4, 504 A.2d 1364 (1986).

"Whether a joint trial will be substantially prejudicial to the defendant means something more than that it will be less advantageous to [him]." State v. Lee, 32 Conn. App. 84, 106, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993), cert. denied, 510 U.S. 1202, 114 S. Ct. 1319, 127 L. Ed. 2d 668 (1994). In determining whether joinder is appropriate, the court must consider several factors. "The factors to be considered are (1) whether the charges involve discrete, easily distinguished factual scenarios, (2) how long and complex the trial was, and (3) whether one or more of the counts alleges brutal or shocking conduct by the accused." State v. Stevenson, 43 Conn. App. 680, 686, 686 A.2d 500 (1996), cert. denied, 240 Conn. 920, 692 A.2d 817 (1997). 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 from improper joinder. State v. Lee, 32 Conn. App. at 106-107.

First, the factual scenarios here are distinct, easily distinguished and discrete. Our review of the record indicates that the evidence was presented in an orderly manner. We will not conclude that the trial court has abused its discretion in consolidating two cases where the "state's orderly presentation of evidence has prevented confusion of the jury and has enabled the jury to consider the evidence relevant to each charge separately and distinctly." State v. Pollitt, supra, 205 Conn. 68.

It is true that, "when incidents are easily distinguished, but contain factual similarities, there is some danger that a jury, under certain circumstances, might use evidence of one to find guilt in the other." State v. Stevenson, supra, 43 Conn. App. 688. In this case, however, the evidence admissible in the trial of the charges arising from one incident would likely be admissible in a separate trial of the charges arising from the other incident because "evidence tending to prove prior criminal conduct which is relevant and material to an element of the crime, identity, malice, motive, or which shows a pattern of criminal activity is admissible if the trial court determines, in the exercise of its sound discretion, that its probative value outweighs its prejudicial impact." State v. Howard, 187 Conn. 681, 685, 447 A.2d 1167 (1982). The jury, therefore, would have been able to use the evidence stemming from one set of charges to determine the defendant's guilt in the trial stemming from the other set of charges.

Second, the trial was not exceptionally long or complex. It lasted only six days and involved only two victims. See State v. Chance, 236 Conn. 31, 43, 671 A.2d 323 (1996) (five day trial not unduly long or complex); State v. Stevenson, supra, 43 Conn. App. 680 (trial not unduly long or complex when it lasted six days and involved only two incidents).

Third, the defendant was not prejudiced by the joinder of two brutal and shocking cases. The defendant argues that the nature of the brutal and shocking allegations in the trial involving A made it impossible for the jury to consider independently the charges in the trial involving H. If both cases sought to be consolidated are brutal or shocking, "they may be joined properly, if consolidation does not cause a high risk of one case being tainted by the unusually shocking . . . or brutal nature of the other . . . ." State v. Stevenson, supra, 43 Conn. App. 691.

We agree with the defendant that all of the sexual assaults charged to him were brutal and shocking. We cannot, however, assume that any and all sexual assaults are so brutal and so shocking that a defendant would always be prejudiced by a joint trial. Sexual assault cases should be severed only where one of the sexual assault crimes with which the defendant is charged is "so brutal and shocking when compared with the other, that a jury, even with proper limiting instructions, could not treat them separately." Id., 691-92. We conclude that the case involving A was not so brutal and shocking when compared to the case involving H that consolidation would create the risk that evidence of the defendant's assaults against A would interfere with the jury's consideration of the defendant's assaults against H.

Even if the trial court had improperly consolidated the two cases, its jury instructions cured any prejudice that might have occurred. In the absence of contrary evidence, jurors are presumed to have followed the instructions of the trial court. State v. Moye, 199 Conn. 389, 396, 507 A.2d 1001 (1986). The trial court instructed the jury, when deliberating over one case, not to infer that the defendant had a criminal propensity to commit this type of crime on the basis of the evidence introduced in the other case. Accordingly, we conclude that the trial court sufficiently instructed the jury to keep the crimes charged in the two informations separate.

The defendant relies on State v. Boscarino, 204 Conn. 714, 722-25, 529 A.2d 1260 (1987), to argue that the two trials should not have been consolidated. The defendant's reliance on Boscarino, however, is misplaced. In Boscarino, the trial court joined four trials arising from the defendant's repeated sexual assaults over several years. Our Supreme Court applied the three prong test and ordered that the trials be severed, concluding that their consolidation allowed the jury to aggregate impermissibly the evidence. First, the Supreme Court concluded that the cases...