43 Conn. App. 527 | Conn. App. Ct. | 1996
The defendant, Michael Marsala, appeals from the judgment of conviction, rendered after a jury trial, of twenty-five
The jury reasonably could have found the facts that follow. Between April 4 and June 26,1994, the defendant made at least twenty-five telephone calls to the victim. Many of the calls were made during early morning hours. On April 4, there were four calls made in the thirty-five minutes between 6:45 a.m. and 7:20 a.m. On June 17 and June 19, the defendant made four and five calls, respectively, to the victim. Most of the telephone calls concerned the victim’s daughter, Tamra. The contents of the calls varied. One of the calls, made at 5 a.m., wished Tamra a happy birthday, while another claimed that “the Bridgeport police . . . don’t think very much of you and your slut daughter. They know her from the streets. In fact even quite a few of them
The victim positively identified the defendant as the caller in each of the telephone calls about which she testified. The victim testified that she had met the defendant in May, 1992, while she was visiting her daughter in a hospital. The victim had spoken with the defendant for ten or fifteen minutes on that occasion. The victim stated that she spoke to the defendant between ten and twelve times during the two years between meeting him and when the telephone calls started. She indicated that she was familiar with his voice from these conversations. Additionally, two months before the trial, the victim listened in person to the defendant’s five voice for about seven minutes and identified it as the voice she heard on the telephone.
I
The defendant’s insufficiency of evidence claim has two prongs. The first is that there was insufficient evidence to identify him as the caller, and the second, that there was insufficient evidence to prove that the caller’s intent was “to harass, annoy or alarm.”
“In reviewing [a] sufficiency [of the evidence] claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Mejia, 233 Conn. 215, 223-24, 658 A.2d 571 (1995).” (Citation omitted; internal quotation marks omitted.) State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996).
The second prong of the defendant’s insufficiency of evidence claim is closely related to the defendant’s severance claim. Because our reasoning as to severance also controls the insufficiency of evidence claim, we will consider them together in the following part.
II
The defendant claims that the trial court should have granted his motion to sever the twenty-five counts of harassment. The defendant asserts that the joinder of the claims is unduly prejudicial because the jury is likely to aggregate the evidence from each count of
“General Statutes § 54-57
“Because of its prejudicial impact, evidence of prior acts of misconduct is inadmissible merely to show a
“Where evidence of one incident can be admitted at the trial of [another incident], 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, supra, 205 Conn. 68; State v. King, 35 Conn. App. 781, 791, 647 A.2d 25 (1994), aff'd, 235 Conn. 402, 665 A.2d 897 (1995).
We agree with the trial court that joinder of the twenty-five claims was proper because evidence relating to each count could have been used in a trial of each of the other counts to prove the identity of the defendant, the intent of the defendant, and to demonstrate a common scheme. See State v. King, supra, 35 Conn. App. 791. “To be relevant on the issue of identity or common scheme, the other crime charged must be ‘sufficiently unique to warrant a reasonable inference that the person who performed one misdeed also did the other.’ State v. Ibraimov, 187 Conn. 348, 354, 446 A.2d 382 (1982). The similarities connecting the crimes need not be so unique as to constitute ‘signature crimes.’ See State v. Pollitt, supra, 205 Conn. 69-70. Rather, the features may be of substantial but lesser distinctiveness which, if considered separately, would be insufficient
In this case, a single victim received more than twenty telephone calls she identified as having been made by the same man. Although the contents of the calls were not identical, the victim was able to identify the defendant as the caller each time. The testimony that the victim asked the defendant during several calls not to call again would have been admissible on later counts to demonstrate that the calls were unwanted, and to show that the later calls were intended to annoy or alarm. The fact that there were twenty-five calls would have been relevant to showing a common plan or scheme to harass, annoy or alarm.
Even if evidence of the other calls would not have been admissible at each individual trial of twenty-five counts, we would still conclude that joinder of the twenty-five counts was proper. The factors to be considered in determining whether severance is necessary include whether the charges involve discrete, easily distinguishable factual scenarios, whether one or more of the counts alleges brutal or shocking conduct by the accused, which would prejudice the defendant as to all the charges, or whether the trial is long or very complex. State v. Chance, 236 Conn. 31, 42, 671 A.2d 323 (1996).
Severance is usually not necessary if the charges against a defendant are distinguishable. Here, each count referred to a separate telephone call, each on a given date, at a given time. The victim was able to testify to the contents and circumstances of each telephone call individually. “Where the state’s orderly presentation of evidence has prevented confusion of the jury and has enabled the jurors to consider the evidence relevant to each offense separately and distinctly, we will not conclude that the trial court has manifestly
The second factor of Chance, whether the crimes were violent or brutal, is disposed of easily. Telephone calls, while annoying and unwanted at times, cannot usually be characterized as violent or brutal.
The trial’s length and complexity, the third factor, is also resolved in the state’s favor. The trial lasted two days, there were three witnesses and no exhibits. See 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); State v. Herring, supra, 210 Conn. 97 (no undue duration or complexity where eight days of testimony by twenty-three witnesses); but see State v. Boscarino, supra, 204 Conn. 723-24 (ten weeks of testimony with fifty-five witnesses constituted undue duration and complexity). Further, as previously stated, the evidence was presented in an orderly fashion so as to mitigate any potential complexity and risk of juror confusion. See State v. Jennings, supra, 660.
The defendant claims that the counts should have been severed because he wanted to testify as to some of the counts but not as to others. There is no need for severance of claims unless a defendant “ ‘makes a convincing showing that he has both important testimony to give concerning [some counts] and [a] strong need to refrain from testifying on [others]. In making
There is a clear presumption in favor of the consolidation of charges, and against severance. State v. Chance, supra, 236 Conn. 38. We conclude that the joinder of the twenty-five counts of harassment did not result in substantial injustice and that the defendant has not established that the trial court manifestly abused its discretion by refusing to sever the counts.
The defendant claims that there was insufficient evidence to prove his intent in each count of harassment individually.
Ill
The defendant next claims that § 53a-183, harassment in the second degree, is unconstitutionally void for vagueness and overbroad. The defendant admits that
IV
The defendant claims that the trial court improperly failed to instruct the jury members that they must be “unanimous as to the defendant’s actus reus.” The defendant’s argument is that the jury should have been instructed that there must be unanimity as to whether the defendant’s intent was to harass, or to annoy, or to alarm the victim. The defendant is attempting, therefore, to distinguish an intent to harass from an intent to annoy or from an intent to alarm. In situations where “the alternatives of the mens rea [intent] component give rise to the same criminal culpability, it does not appear critical that the jury may have reached different conclusions regarding the nature of the defendant’s intent if such differences do not reflect disagreement on the facts pertaining to the defendant’s conduct.” State v. Suggs, 209 Conn. 733, 763, 553 A.2d 1110 (1989). Here, the precise nature of the defendant’s intent does not implicate any lack of unanimity regarding the defendant’s conduct.
The conduct of the defendant, if the testimony of the victim was believed, was not in dispute, and that
There is no conceptual distinction among acts intended “to harass,” “to annoy,” and “to alarm,” and no instruction on unanimity of verdict as to them was necessary.
The judgment is affirmed.
In this opinion the other judges concurred.
The defendant was originally charged with twenty-seven counts of harassment, but the trial court, directed a judgment of acquittal on two counts because the state produced no evidence on those two counts.
General Statutes § 53a-183 (a) provides in relevant part: “A person is guilty of harassment in the second degree when ... (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm.”
General Statutes § 54-57 provides: “Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”
Practice Book § 829 provides: “The judicial authority may, upon its own motion or the motion of any party, order that two or more informations, whether against the same defendant or different defendants, be tried together.”
The testimony establishes that all of the telephone calls, including the first one, were not made in a vacuum. The calls were made in the context of the victim’s prior knowledge of the defendant and of her daughter’s opinion of the defendant. The jury, during deliberations, requested that the first ten minutes of the victim’s testimony be replayed for them. It is in the early part of this testimony that the victim discusses her daughter’s relationship with the defendant.
“Q. Now, your daughter Tamra, does she have a relationship with Mr. Marsala?
“Q. Can you give us some of the circumstances of their . . . how they got to know each other?
“A. Well, my daughter is a drug addict, presently in recovery. They met on the streets down there. . . .
“Q. And if you can, I don’t know if you can or not, how would you describe your daughter’s relationship with Mr. Marsala?
“A. She didn’t like him. She was afraid of him.”
The victim testified that the defendant, in the first telephone call, told her, “ ‘so your daughter is in a halfway house in Bridgeport, the Mary Magdalene House,’ and I said, ‘how do you know that?’ He said, ‘she called me,’ and I said, ‘No, I don’t believe that. She doesn’t want any part of you. Leave her alone, stop calling me.’ ”
Knowing the victim’s daughter’s history with the defendant, the jury could reasonably have believed that the defendant’s intention in making this call was to alarm the victim with his knowledge of her daughter’s whereabouts.
The victim’s daughter was residing in a halfway house, the location of which was confidential. The defendant indicated in the calls that he knew where she was and had seen her there.
Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40.
Because it is difficult to hypothesize about a case without a record that reflects the statute of which a defendant was convicted or without a record that reflects a defendant’s conduct, it appears that State v. Indrisano, supra, 228 Conn. 800, supersedes the decision of State v. Santiago, 218 Conn. 483, 485, 590 A.2d 434 (1991). Santiago held that “the failure of the defendant to raise the constitutionality of [a statute] at trial leaves the record inadequate for a fair consideration of whether the statute was unconstitutionally applied to the circumstances . . . .” State v. Santiago, supra, 485. Indrisano also affects State v. Pitt, 28 Conn. App. 825, 612 A.2d 60, cert. denied, 224 Conn. 907, 615 A.2d 1049 (1992), because in that case, decided before Indrisano, this court relied on Santiago.
Wo note, however, that the constitutionality of this statute was addressed in State v. Anonymous, 34 Conn. Sup. 689, 695-96, 389 A.2d 1270 (1978). Justice David Shea, writing for the Appellate Session of the Superior Court, held that the harassment statute was not unconstitutionally overbroad. Id. In a decision denying the petition of “Anonymous” for a writ of habeas corpus, the United States Court of Appeals for the Second Circuit also determined § 53a-183 is not unconstitutionally overbroad. Gormley v. Director, Dept. of Adult Probation, 632 F.2d 938 (2d Cir.), cert. denied, 449 U.S. 1023, 101 S. Ct. 591, 66 L. Ed. 2d 485 (1980).
The trial court instructed the jury as follows: “Harass means to trouble, worry or torment. Annoy means to irritate, vex, bother as by repeated action. Alarm means to make suddenly afraid or anxious, frightened.”