Opinion
KNLCR160333714T
01-09-2018
STATE of Connecticut v. Shaquan LEE-SEALES
UNPUBLISHED OPINION
OPINION
Jongbloed, J.
In the present case, the state of Connecticut has charged the defendant in a single long form information with robbery in the third degree in violation of General Statutes § 53a-136(a) and murder in violation of § 53a-54a. On November 28, 2017, the defendant filed a motion to sever the robbery charge from the murder charge. The defendant maintains that the facts surrounding the two events are not cross admissible under the Code of Evidence. The defendant further asserts that, under the factors delineated in State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987), the offenses are violent in nature and a jury would not be able to keep the two charges separate. Additionally, the defense claims that joinder would be unfairly prejudicial in that the defendant’s right to testify with respect to one charge but not the other would be impinged.
The substitute information, filed November 29, 2017, also charged the defendant with carrying a pistol without a permit in violation of C.G.S. § 29-35(a). This count was not a subject of the motion to sever.
The defendant filed a memorandum in support of the motion on December 1, 2017.
The state filed a memorandum in opposition on December 1, 2017 contending that a review of the evidence likely to be produced at trial establishes that the evidence on each charge is cross admissible, and that the defendant has not met his burden of showing that the charges are not of the same character. The court heard argument on the motion on December 21, 2017.
Practice Book § 41-18 provides: " If it appears that a defendant is prejudiced by a joinder of offenses, the judicial authority may, upon its own motion or the motion of the defendant, order separate trials of the counts or provide whatever other relief justice may require." " [W]hen multiple charges have already been joined in a single information by the state pursuant to [General Statutes] § 54-57, and the defendant has filed a motion to sever the charges for trial pursuant to Practice Book § 41-18, the defendant bears the burden of proving that the offenses are not of the same character ... and therefore that the charges should be tried separately." (Citation omitted; internal quotation marks omitted.) State v. Payne, 303 Conn. 538, 549, 34 A.3d 370 (2012). To satisfy this burden, " the defendant must prove that the evidence of the separate charges would not be cross admissible if the cases were tried separately ... This is because [when] evidence of one incident would be admissible at the trial of the other incident, separate trials would provide the defendant no significant benefit ... Under such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial ... Accordingly, [our Supreme Court] ha[s] found joinder to be proper [when] the evidence of other crimes or uncharged conduct [was] cross admissible at separate trials." (Citation omitted; internal quotation marks omitted.) State v. Labarge, 164 Conn.App. 296, 305-06, 134 A.3d 259, cert. denied, 321 Conn. 915, 136 A.3d 646 (2016). Only if the defendant makes an initial showing that the evidence underlying the charges is not cross admissible does the court need to address the Boscarino factors. Id., 306. " The discretion of a court to order separate trials should be exercised only when a joint trial will be substantially prejudicial to the rights of the defendant, and this means something more than that a joint trial will be less than advantageous to the defendant." (Internal quotation marks omitted.) Id., 304.
Accordingly, the court must first determine whether the evidence of each of the charged incidents would be admissible at the trial of the other. " 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." (Internal quotation marks omitted.) State v. DeJesus, 288 Conn. 418, 440, 953 A.2d 45 (2008). " [B]ecause of its prejudicial impact, evidence of prior misconduct is inadmissible merely to show a defendant’s bad character or tendency to commit criminal acts ... On the other hand, such evidence may be offered in proof of an issue in the case, such as intent, identity, malice, motive or a system of criminal activity." (Internal quotation marks omitted.) State v. Vaught, 157 Conn.App. 101, 115, 115 A.3d 64 (2015). " In order to determine whether [evidence of prior misconduct] is admissible, we use a two-part test. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of [the prior misconduct] evidence must outweigh [its] prejudicial effect ..." (Internal quotation marks omitted.) State v. Chyung, 325 Conn. 236, 262, 157 A.3d 628 (2017).
Based upon a proffer of the evidence provided at the hearing on December 21, 2017, and as set forth in the state’s memorandum in opposition to the motion, the state alleges that this case arises out of a feud between narcotics dealers Mark Looknanan (" Looknanan") and the defendant, Shaquan Lee-Seales. The state alleges that the defendant had an issue with one Jobsam Pena (Pena) who was selling heroin on Looknanan’s behalf. That dispute in turn led to the alleged robbery of Pena by the defendant in the afternoon of December 10, 2015, on State Pier Road in New London. Following that robbery, Looknanan allegedly threatened the defendant Lee-Seales who sought out Looknanan later that night. At approximately 10:50 p.m. on December 10, 2015, Looknanan was standing outside his residence on Grand Street in New London with his cousin Gilberto Olivencia when the defendant allegedly appeared at a nearby intersection, pulled out a nine millimeter gun and opened fire toward Looknanan from about 20-30 feet away. The defendant allegedly missed Looknanan and instead struck and killed Gilberto Olivencia.
Based upon the proffered facts, evidence of the alleged robbery of Pena would be admissible as to the murder charge to establish the defendant’s malice toward Pena’s alleged associate, Looknanan, as well as the defendant’s motive and intent with respect to the murder charge. See, e.g., State v. Crenshaw, 313 Conn. 69, 87, 95 A.3d 1113 (2014) (concluding that the trial court did not abuse its discretion in consolidating two informations and affirming the trial court’s determination that evidence of assault and kidnapping would have been cross admissible as to the murder case to establish defendant’s intent and motive to kill); see also State v. Lopez, 280 Conn. 779, 795, 911 A.2d 1099 (2007) (stating that " evidence of prior misconduct that tends to show that the defendant harbored hostility toward the intended victim of a violent crime is admissible to establish motive"); Conn. Code Evid. § 4-5(c). Similarly, with respect to the admissibility of the murder in the robbery case, the evidence of the murder, which allegedly occurred just hours after the alleged robbery, would be relevant to establish the defendant’s identity as the person involved in the robbery, the existence of a feud between the defendant and Looknanan, and, thus, a motive to rob Pena. See Conn. Code Evid. § 4-5(c).
Section 4-5(c) of the Connecticut Code of Evidence provides: " When evidence of other crimes, wrongs or acts is admissible. Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony."
Thus, the evidence as to both charges would be relevant and material to one of the exceptions and the probative value outweighs any prejudicial effect. The defendant has not met his burden of establishing that the offenses are not of the same character. Rather, the state has established that the evidence is relevant and cross admissible, namely, the evidence of each alleged incident, the robbery and the murder, would be admissible at the trial of the other. The charged incidents are not attenuated, unrelated incidents as argued by the defendant, but rather each incident is part of a series of alleged events that culminated in the shooting of Gilberto Olivencia on the evening of December 10, 2015. Accordingly, the evidence is cross admissible and separate trials would provide the defendant no significant benefit. See State v. LaFleur, 307 Conn. 115, 155, 51 A.3d 1048 (2012).
Even if the evidence were not cross admissible, a review of the Boscarino factors leads to the conclusion that the defendant would not be unfairly prejudiced by denying the motion to sever the charges. in State v. Boscarino, supra, 204 Conn. 722-24, the Connecticut Supreme Court identified three factors that a trial court should consider in deciding whether charges should be severed to avoid substantial prejudice resulting from consolidation of multiple cases for trial. " 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." State v. Ellis, 270 Conn. 337, 375, 852 A.2d 676 (2004).
Here, with respect to the first factor, the charges involve discrete and easily distinguishable factual scenarios. The state alleges two separate incidents, which although linked as set forth above, involved different victims and different factual scenarios. Specifically, the state alleges that the defendant robbed Pena of a cell phone, drugs and cash during the afternoon of December 10, 2015, on State Pier Road in New London. With respect to the murder charge, the state alleges that later that same day, only hours after the robbery, the defendant shot and killed Olivencia in front of a residence located at 8 Grand Street in New London.
Second, the crux of the defendant’s motion to sever the robbery and murder charges is that the allegations underlying the murder charge are so brutal or shocking as to impair the jury’s ability to impartially consider the robbery charges against the defendant if the charges were tried together. Here, however, Rogers v. Commissioner of Correction, 143 Conn.App. 206, 214, 70 A.3d 1068 (2013), is instructive:
[ [O]ur Supreme Court] has held that [w]hile any murder involves violent and upsetting circumstances, it would be unrealistic to assume that any and all such deaths would inevitably be so brutal and shocking that a jury, with proper instructions to treat [the] killing separately, would necessarily be prejudiced by a joint trial. (Internal quotation marks omitted.)
The Rogers court discussed the reasoning of the trial court, which stated, " the allegations surrounding [the] murder do not involve prolonged anguish, gratuitous injuries, prior taunting or any other claims that might inflame the jury’s passion. Instead, the murder, while tragic and upsetting, was committed in a relatively clinical fashion." Id., 214. Similarly, here, although indisputably tragic, the murder charge involves an allegation of a single shot to the victim’s upper chest. There is no allegation in this case that the defendant tortured, prolonged or taunted the victim prior to the alleged murder. See id., 214. Accordingly, the alleged murder was not so brutal or shocking under Boscarino as to impair the jury’s ability to impartially consider the robbery charge. See Rogers v. Commissioner of Correction, supra, 143 Conn.App. 214.
Third, the duration and complexity of the trial will not be significantly increased if the charges are not severed. Indeed, the series of events leading up to the alleged murder (including the alleged robbery) would be admissible, as described above, if the murder charge were tried alone.
Therefore, the court finds that the state has established by a preponderance of the evidence that the evidence is cross admissible and further, even if it were not cross admissible, the defendant would not be unfairly or substantially prejudiced, pursuant to the Boscarino factors. Accordingly, because the defendant has failed to show that a denial of his motion to sever would cause him prejudice and that the charges are not cross admissible, this portion of the defendant’s severance claim fails.
The defendant next claims that severance is necessary because trying the charges together impinges on his right to remain silent with respect to the murder charge where " the stakes are higher" and his right to testify with respect to the robbery charge where he anticipates testifying in order to dispute Pena’s testimony and to dispute what the video evidence shows. In response, the state argues that the defendant has not met his burden of demonstrating that the evidence related to each charge is not cross admissible, and, even if the charges were to be severed and the defendant testified in a separate trial on the robbery charge, he would still have to address the murder charge because questions regarding the alleged murder would be permissible pursuant to Conn. Code Evid. § 4-5(c).
In State v. Schroff; 198 Conn. 405, 409, 503 A.2d 167 (1986), our Supreme Court concluded " that no need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and a strong need to refrain from testifying on the other ... In making such a showing, it is essential that the defendant present enough information- regarding the nature of the testimony he wishes to give on [some counts] and his reasons for not wishing to testify on [others]- to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of economy and expedition in judicial administration against the defendant’s interest in having a free choice with respect to testifying." (Internal quotation marks omitted.) State v. Labarge, supra, 164 Conn.App. 308-09.
Based on the defendant’s proffer, the defendant has failed to meet his burden of showing that the joinder of the charges results in substantial prejudice to his right to testify. Specifically, the defendant offered that he would be likely to testify as to the robbery charge in order to dispute the testimony of Pena and the videotaped evidence and that he would not testify in the murder case because the stakes were higher. This does not amount to a genuine need to testify as to one count and a strong need to forego testifying on the other.
In State v. Perez, 322 Conn. 118, 121, 139 A.3d 654 (2016), our Supreme Court concluded " that the defendant timely made a compelling showing that he had important testimony to give in one case and a strong need to refrain from testifying in the other, and, therefore, the trial court had abused its discretion in declining to sever the [two unrelated criminal] cases." The facts underlying Perez are readily distinguishable from the present case. State v. Perez, supra, 322 Conn. 123-26. In Perez, a case involving the joinder of two unrelated informations for trial, the court reasoned that the defendant’s proffered testimony regarding the bribery charge was sufficient to undermine the state’s evidence and the state’s assertions that the defendant " received free home renovations in exchange for his official acts." Id., 139, 141-42. Specifically, the defendant proposed to testify as to when he first sought a bill, the number of times he followed up on the request for a bill, reasons for his delay in payment, and an explanation as to why he initially provided misleading information regarding payment. Id., 139-42. As to the unrelated extortion charge, the state did not challenge the defendant’s desire not to testify. Id., 129 n.8, 141. Unlike Perez, in the present case, the evidence of the two charged incidents is interrelated and cross admissible. If the defendant testified at trial on one of the charges, the evidence of the other would be admissible and thus the defendant has not made the requisite showing. See State v. Schroff, supra, 198 Conn. 409. Accordingly, for all the reasons set forth above, the defendant’s motion to sever offenses is denied.
It is So Ordered, this 9th day of January 2018.