State v. Groomes

Berdon, J.,

dissenting. One of the principal issues in this appeal is whether the trial court, for trial purposes, should have severed the three serious felony counts from the twenty-one counts stemming from “cat burglaries.”1 The defendant, Bobby Groomes, was tried on all twenty-four counts in one trial, which resulted in convictions for which he received a total effective sentence of seventy-five years of imprisonment2—a sentence that is fifteen years longer than a life sentence in Connecticut.3

Prior to trial, the defendant moved generally to sever each of the twenty-four counts with which he was charged, arguing that a separate trial was needed for each. On appeal, however, the defendant has narrowed this claim. He now argues that of the twenty-four counts with which he was charged, only three should have been severed and tried separately. He claims that the more serious counts of aiding first degree burglary, aiding first degree robbery and aiding second degree larceny—all of which stemmed from the single incident at the Bango home—should have been severed from the less serious counts constituting the twenty-one “cat burglaries.” He bases his argument largely on our decisions in State v. Boscarino, 204 Conn. 714, 529 A.2d 1260 (1987), and State v. Herring, 210 Conn. 78, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989).

*478The majority declines to address this issue because the defendant failed to articulate his narrower claim for severance with requisite specificity before the trial court. Concluding that “[t]he claim posited by the defendant on appeal” is not the mirror image of the one he urged at trial, the majority refuses to address it.

I believe the court is wrong for two reasons. First, this court has stated unequivocally that a defendant’s failure to articulate a severance claim at trial is not grounds for refusing to review the issue on appeal. In State v. Herring, supra, 210 Conn. 95 n.16, the state argued that this court should decline to address the defendant’s claim for severance because he had failed to articulate the legal basis for severance before the trial court. We rejected this argument: “We disagree with the state’s contention that we should limit our review of this claim because the defendant failed to raise any of the specific Boscarino factors as grounds for severance at the trial. State v. Boscarino, [supra, 204 Conn. 722-24]. Despite the general rule that ‘this court will not consider claimed errors on the part of the trial court unless there has been a compliance with the provisions of [Practice Book § 4185]’ . . . that rule cannot foreclose a review in the present circumstances. Several of the factors that we stressed in State v. Boscarino [supra, 721-22,] require hindsight in determining whether the defendant received a fair trial. While it may be relevant to consider whether the defendant raised the question of prejudice at trial or requested appropriate curative instructions, the effect of a denial of severance may be difficult to predict in advance of the actual testimony at trial.” State v. Herring, supra, 95 n.16. This reasoning applies with equal force to this case. The majority, therefore, should address and rule on the defendant’s narrow claim of severance.

*479Second, the plain error doctrine4 demands that this court hear the defendant’s claim. We have defined plain error to be those “situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the jury proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). The Boscarino factors, which we are to consider in determining whether counts should be severed for trial purposes, are “(1) whether the charges involved 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.” (Internal quotation marks omitted.) State v. Herring, supra, 210 Conn. 95; State v. Boscarino, supra, 204 Conn. 722-23. In this case, the three counts that the defendant argues should have been severed stemmed from the anomalous incident at the Bango home, which involved a gun and physical violence. Indeed, these three serious felony charges account for forty-five years of the defendant’s seventy-five year sentence of imprisonment.

This court has emphasized that severance is necessary to avoid 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.” (Citations omitted; internal quotation marks omitted.) State v. Boscarino, supra, 204 Conn. 721-22. Fundamental fairness and the integrity of our judicial system demand that we review the defendant’s claim, reverse the convictions and order new trials with the serious felony charges severed from the “cat burglary” charges.

Accordingly, I respectfully dissent.5_

The defendant labels as “cat burglaries” those burglaries of “garages and/or sunrooms/porches” in which “no weapons were involved, no occupants were ever aware of the intruder (much less held at gunpoint and threatened with death), and no cars were stolen.”

The defendant was sentenced as a persistent serious felony offender. The first twenty-five years of his seventy-five year sentence are based on his conviction under the first and second counts, aiding first degree burglary and aiding first degree robbery, respectively. The next twenty years are based on his conviction under the third count, aiding second degree larceny.

“Life imprisonment” is defined as a sentence of sixty years. General Statutes § 53a-35b.

“The court may in the interest of justice notice plain error not brought to the attention of the trial court.” Practice Book § 4185.

In addition, I continue to be concerned about jury instructions on consciousness of guilt that are predicated on nothing more than the defendant’s flight. See State v. Freeney, 228 Conn. 582, 602-609, 637 A.2d 1088 (1994) (Berdon, J., dissenting).