Opinion
No. FST-CR06-113852-T
October 30, 2007
MEMORANDUM OF DECISION ON THE STATE'S MOTION FOR JOINDER AND DEFENDANT'S OBJECTION THERETO
Factual and Procedural History
On July 27, 2007, the state filed a motion to join the charges from three separate informations against the defendant, Anthony Rogers, together with a memorandum in support thereof. Thereafter, on September 12, 2007, the defendant filed an objection to the state's motion along with an accompanying memorandum of law. The following summary of the state's allegations is necessary to resolve the present motion and objection thereto.
On January 12, 2005, the defendant entered the Superior Supermarket (Superior) in Norwalk, Connecticut, where he argued with one of the store's employees, Abraham Vargas.
After leaving, the defendant fired a handgun into Superior at Vargas. Vargas was not injured by the gunshots.
On February 18, 2005, the Norwalk Police Department obtained an arrest warrant and three search and seizure warrants in connection with the January 12, 2005 shooting incident. Upon arresting the defendant in his car, the police discovered a nine millimeter pistol. Thereafter, the police executed a search of the defendant's home where they discovered marijuana, cocaine, cash, two live rounds of ammunition and several photographs of the defendant in which he appears to be in possession of firearms, narcotics and cash. The defendant posted bond and was released.
Thereafter, on April 9, 2005, Jimmy Cubillos, an employee at Superior, was walking home from work on Larsen Street in Norwalk. The defendant, believing that Cubillos was Vargas, approached Cubillos and shot him in the head, killing him. Although the defendant was considered a suspect in the murder, he was not immediately arrested.
Subsequently, in May of 2005, the defendant appeared in court for a hearing regarding his February 18, 2005 arrest. At that hearing, an outburst by the defendant resulted in a contempt finding for which he was sentenced to thirty days in jail. Upon arriving at the jail, the defendant was placed in a cell with another man, Barry Bersek. While speaking with Bersek, the defendant threatened to kill the owners of Superior as well as the attorney who was prosecuting his case. He also claimed to have killed several other people.
Bersek, acting on his own accord, concocted a false scheme in order to curry favor with the authorities. Specifically, he told the defendant that he was associated with organized crime figures in New Jersey and that these crime figures would hire the defendant to kill several of their gambling associates. The defendant agreed to perform the murders, whereupon the two exchanged phone numbers and arranged to meet following their release. Before he was released from jail, however, the defendant was transferred to federal prison in connection with a gun charge arising out of his February 18, 2005 arrest.
Upon Bersek's release from jail, he attempted to contact the defendant using the phone numbers with which the defendant had provided him. Bersek, through the defendant's mother, contacted the defendant's girlfriend, Latoya Boyd. Both Boyd and Bersek were able to contact the defendant at the federal prison center. Bersek, Boyd and the defendant changed the murder scheme to one in which the defendant would merely provide the guns for the murders.
Thereafter, the defendant directed Boyd to retrieve several guns from the defendant's associate, Joshua Huckabee, in furtherance of the scheme. The defendant, prior to his incarceration for contempt, had stored a number of guns at Huckabee's residence. By this time, Bersek had informed the Norwalk Police Department and the federal Bureau of Alcohol, Tobacco and Firearms (ATF) of the plan. Subsequently, an undercover ATF agent purchased two guns from Boyd. Of those two guns, one matched a shell casing recovered at the scene of the January 12, 2005 shooting. Finally, while executing a search of Huckabee's home, officers discovered a nine millimeter pistol that matched the shell casing found near the body of Cubillos and the bullet fragments that were recovered from Cubillos' skull.
Based upon the above allegations, the defendant has been charged in three separate informations. In the first information, docket number CR06-113852, the state charges the defendant with the murder of Cubillos; conspiracy to commit murder in connection with the Bersek scheme and attempted murder in connection with the Bersek scheme. In the second information, docket number CR05-107614, the state charges the defendant with attempted assault in connection with the January 12, 2005 shooting and possession of a pistol stemming from his February 18, 2005 arrest. Finally, in the third information, docket number CR05-153745, the state charges the defendant with possession of cocaine with intent to sell and possession of marijuana with intent to sell arising out of the February 18, 2005 search of his home.
The state, in its motion for joinder, seeks to join the charges in the three informations for trial.
Analysis and Conclusions
In the present case, the state maintains that it is appropriate to join the charges because Connecticut recognizes "a clear presumption in favor of joinder and against severance." Additionally, the state argues that the charges should be joined because they satisfy the requirements set forth in State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987). Finally, the state asserts that the charges should be joined because each charge contains evidence that would be cross admissible if the state were to try the offenses separately.
The defendant responds that joinder would subject him to substantial prejudice. Specifically, he argues that the charges do not meet the requirements set forth in State v. Boscarino, supra, 204 Conn. 722-24. Additionally, the defendant maintains that "inclusion of the murder charge with [the other charges] will inflame the passions of the jury against [the defendant] and will reduce the burden upon the state to prove each and every element of each of the joined charges due to their reaction to the murder claim." Finally, he asserts that, if the charges are joined, the jury may "accumulate the evidence and, in effect, use evidence admissible to prove one charge in one case against the defendant in determining the state's proof as to other charges."
"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 § 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." (Internal quotation marks omitted.) State v. Swain, 101 Conn.App. 253, 258-59, 921 A.2d 712, cert. denied, 283 Conn. 909, 928 A.2d 539 (2007).
In State v. Boscarino, supra, 204 Conn. 722-24, the court identified three factors that should be considered in order to avoid the aforementioned risks. "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." (Internal quotation marks omitted.) State v. Swain, supra, 101 Conn.App. 259.
In the present case, the defendant has failed to satisfy his burden under Boscarino. To begin, although the defendant concedes that "the charges involve discrete, easily distinguishable factual scenarios," he maintains that the murder charge is "brutal and shocking." The alleged factual scenario relating to the murder of Cubillos, however, does not rise to the level of brutal or shocking. As the state notes, the allegations surrounding Cubillos' 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. Indeed, the 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 each killing separately, would necessarily be prejudiced by a joint trial." State v. Herring, 210 Conn. 78, 97, 554 A.2d 686 (1989); see also State v. Hair, 68 Conn.App. 695, 700-01, 792 A.2d 179, cert. denied, 260 Conn. 925, 797 A.2d 522 (2002). Accordingly, the circumstances surrounding the murder of Cubillos do not qualify as "brutal or shocking" under Boscarino.
Further, while the defendant asserts that joinder will prejudice the defendant by extending the length of the murder trial, he cites no case law and provides no analysis in support of his position. "Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) State v. Anderson, 67 Conn.App. 436, 441 n. 8, 787 A.2d 601 (2001). Here, the defendant has failed to articulate how the duration or complexity of the trial would substantially prejudice the defendant upon a joinder of the charges. Additionally, neither party has provided the court with a witness list, exhibit list or a reasonable estimate concerning the length of the trial. In light of apparent cross admissibility and the presumption in favor of joinder, the court cannot conclude that the additional charges will extend the length of the trial or increase the trial's complexity so as to potentially cause confusion for the jury and thus unfairly prejudice the defendant.
It should be noted that, although there is no specific criteria for determining whether a trial will be overly complex or exceptionally long, courts have traditionally considered several factors when examining this issue. See State v. Walsh, 52 Conn.App. 708, 713, 728 A.2d 15, cert. denied, 249 Conn. 911, 733 A.2d 233 (1999) (six-day trial involving two victims not exceptionally long or complex); State v. Stevenson, 43 Conn.App. 680, 689, 686 A.2d 500 (1996), cert. denied, 240 Conn. 920, 692 A.2d 817 (1997) (six-day trial involving two incidents not unnecessarily long or complex); State v. Jennings, 216 Conn. 647, 659-60, 583 A.2d 915 (1990) (five-day trial with fourteen witnesses and twenty-eight exhibits of short duration and evidence not complex); compare State v. Boscarino, supra, 204 Conn. 723-24 (ten-week trial involving fifty-five witnesses, four victims unduly long, complex).
Indeed, if, as the state asserts, the evidence contained in the various charges would be admissible in the murder trial regardless of whether the charges are joined, then the defendant's argument regarding the length and complexity of the trial is without merit. It is difficult to understand how the length and complexity of the trial would be affected by joining the charges if the evidence from each charge would be cross admissible were the state to try the offenses separately. Surely, the introduction of such evidence without joining the charges would result in a trial that is substantially similar to one in which the charges are joined. It is difficult, if not impossible to find otherwise given what appears to be an interrelated factual matrix.
Apart from the role that cross admissibility plays in the Boscarino analysis, where the evidence from each charge is cross admissible, there exists an independent ground for joinder. See CT Page 18400 State v. Swain, supra, 101 Conn.App. 262 n. 5. The court has held that "[w]here evidence of' one incident can be admitted at the trial of the other, separate trials would provide the defendant no significant benefit. It is clear that, under such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial." State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987).
In the present case, it appears that the evidence contained in each charge would be admissible in the murder trial pursuant to the Connecticut Code of Evidence § 4-5(b), subject to individual rulings by the court. Accordingly, joinder is proper under either Boscarino or a cross admissibility analysis.
Section 4-5(b) of the Connecticut Code of Evidence provides: "Evidence of other crimes, wrongs or acts of a person is admissible . . . 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."
At the same time, however, the court is concerned with the cumulative effect of joining the drug charges with the murder charge due to the risk that the jury will view the defendant as a "bad person." Here, joining the drug charges would provide the state with an opportunity to present the defendant as a drug dealer when the bulk of the charges are not directly related to the sale of narcotics. While the court acknowledges that this is a close call, the risk posed by joinder of the drug charges is too significant to ignore. Simply put, insofar as the drug charges are concerned, while evidence with regard to same may be cross-admissible, the potential for prejudice cautions against joinder. To avoid this risk, the court denies the state's motion with respect to the drug charges under docket number CR05-153745.
It should be noted that the court's ruling with respect to the non-joinder of the drug charges will not control whether the evidence relating to those charges is admissible in the murder case. See State v. Rogers, 199 Conn. 453, 459, 508 A.2d 11 (1986).
As to the remaining charges, the state's motion for joinder is granted.
Although unlikely, any prejudice that may arise from joinder of the remaining charges can be cured with an appropriate instruction to the jury.
THE COURT