The defendant, Stanley D. Chance, appeals1 from judgments of conviction rendered by the trial court after a juiy found him guilty of both arson in the first degree in violation of General Statutes § 53a-1112 and assault of a correctional officer in violation of General Statutes § 53a-167c.3 The defendant claims that
The jury reasonably could have found the following facts. At all times relevant to this appeal, the defendant was an inmate at the New Haven correctional center. On February 2, 1993, he was transferred from a dormitory unit in that facility to a cell in the protective custody unit. At dinner hour that same day, correctional officer Tanya Mercoucheff, who was on duty in the defendant’s cellblock, opened the doors of the cells in that block so that the inmates who wished to eat could proceed to the day room, where dinner was being served. The defendant, however, remained in his cell during the dinner period and, therefore, did not eat.
Shortly after his conversation with Mercoucheff, the defendant asked another inmate to tell Mercoucheff that if he was not promptly served dinner, he would “light the [expletive] on fire.”5 A few minutes later, the defendant, having received no response to his demand, set his mattress on fire. This fire, which also was extinguished by prison personnel, necessitated the evacuation of the other inmates on the cellblock and caused smoke damage to the wall of the defendant’s cell.
That evening, the defendant was removed from his cell in the protective custody unit and placed in the institution’s segregation unit. Later that night, the defendant gave a signed statement regarding the fire6 to state police troopers Philip Pilletere and Warren Hyatt, both of whom had been assigned to investigate the incident. In his statement, the defendant admitted to having set his mattress on fire in protest over the fact that he had not been served dinner. The defendant subsequently was charged with arson in the first degree.
Several days later, on the afternoon of February 7, 1993, Mercoucheff, who was on duty in the segregation
The trial court, over the defendant’s objection, granted the state’s motion to consolidate the arson and assault counts for trial. At the request of the defendant, however, the court also ordered a bifurcation of the evidentiary portion of the trial, requiring the state and the defendant first to present all of their evidence on the arson charge, to be followed by the evidence on the assault charge.
Thereafter, trial commenced. After the state had rested its case on the arson count, the defendant testified in his own defense with respect to that count. During his testimony, the defendant stated that he previously had been convicted of eleven felonies, four of which involved larcenies, “basically” for “stealing cars.”8 The state then proceeded with its evidence on
After all of the evidence had been presented in both cases, the defendant renewed his objection to the consolidation of the two charges for trial, claiming that the jury reasonably could not be expected to disregard his eleven prior felony convictions, which were admissible only in regard to the arson charge, in its consideration of the assault charge. The trial court again denied the defendant’s severance request and proceeded to charge the jury, which found the defendant guilty of both charges. Additional facts and procedural background will be provided as necessary.
I
The defendant first claims that the trial court improperly consolidated the arson and assault charges for trial. Specifically, he argues that he is entitled to a new trial: (1) on the arson charge, because the state’s evidence on the assault charge, which was unrelated to and inadmissible in regard to the arson charge, severely prejudiced him in his defense of the arson charge; and (2) on the assault charge, because the evidence of his eleven prior felony convictions, which was admissible only for impeachment as to the arson charge, severely prejudiced him in his defense of the assault charge. We are not persuaded.
Our review of a criminal defendant’s claim of error concerning the consolidation of charges for trial involves the question of whether the trial court abused its discretion in failing to conclude that the defendant would suffer “substantial injustice” if the two charges were adjudicated in a single trial. State v. Boscarino,
The following additional facts and procedural history are necessary to our resolution of the issues presented by the defendant’s claim. Before trial, the state moved for joinder of the arson and assault charges. The defendant objected to consolidation of the charges for trial, claiming, inter aha, that the conduct underlying the assault charge was so shocking that the state’s evidence of that charge would unduly prejudice him as to the arson charge, and that joinder would unfairly interfere
Several days after the trial court’s ruling on the state’s motion for consolidation, the state disclosed to the defendant inculpatory evidence pertaining to the assault charge. Specifically, the state informed the defendant that it intended to elicit testimony from Pilletere that, while Pilletere was questioning the defendant about the alleged arson, Mercoucheff walked by the interview room, prompting the defendant to exclaim, “[Tjhere goes that bitch, I’m going to get her,” or words to that effect.9 Upon receipt of this information, the defendant renewed his objection to the consolidation of the assault and arson charges for trial on the theory that the threat, inadmissible as to the arson charge, would be “one more act of misconduct that is going to taint [the defendant’s] fair trial on the charge of arson.” The trial court again overruled the defendant’s objection to consolidation, and trial thereafter began.
At the conclusion of the state’s evidence on the arson charge, the defendant testified in his own defense with respect to the arson.10 He admitted that he had set fire to his mattress on February 2, but insisted that he had done so only with the intent to gain the attention of prison officials, not intending to destroy or to damage the prison facility. The defendant also acknowledged that he had previously been convicted of eleven felonies, including four for larceny.11
At that point, in advance of the formal jury instructions, the court reminded the jury that it was dealing with two distinct cases. The court also emphasized to the jury that the defendant did not have to put on any evidence at all but could leave the state to its proof as the defendant had done in the assault case. Further, the court reminded the jury that it should draw no adverse inference from the defendant’s failure to present a defense in one case even though he had presented a defense in the other. The jury was then excused so that, before the formal jury instructions were given, a record of the charging conference could be created.
At that point, the defendant renewed his objection to the consolidation of the two charges for trial. His objection was twofold: (1) he had been prejudiced by the fact that a defense had been presented as to one charge but not as to the other; and (2) he had been prejudiced as to the assault charge because the jury had been made aware of his eleven prior convictions during the arson case. He claimed that if the trials had not been consolidated, a jury empaneled for the assault
In its charge, the trial court instructed the jury that it was to consider the defendant’s prior felony convictions for impeachment purposes only and that it was “not permitted to infer, based upon the defendant’s felony convictions, that he was any more likely to commit the offenses charged in these cases.” The jury also was instructed that “no unfavorable inference may be drawn from the fact that the defendant . . . chose to testify in the arson case and not in [the assault] case. His decision to exercise his right in one case must have no impact on the other. . . . You must not permit such a fact to weigh in the slightest degree against the defendant . . . .” Lastly, the jury was twice instructed not to consider the evidence presented on one charge in its deliberations on the other charge.14
The defendant first claims that the evidence introduced by the state on the assault charge so prejudiced him in his defense of the arson charge that, notwithstanding the trial court’s limiting instructions, he is entitled to a new trial on the arson count. We do not agree.
We have stated that severance may be necessary to prevent undue prejudice resulting from the consolidation of two or more charges for trial when: (1) the cases do not involve discrete, easily distinguishable factual scenarios; (2) one or more of the counts alleges brutal or shocking conduct by the accused; or (3) the trial is one of long duration or very complex. State v. Boscarino, supra, 204 Conn. 722-24; see also State v. Jennings, 216 Conn. 647, 657-58, 583 A.2d 915 (1990). Whether to grant a severance, however, is a decision committed to the sound discretion of the trial court, the exercise of which will not be disturbed on appeal absent manifest abuse. State v. Jennings, supra, 657; State v. Boscarino, supra, 721. Finally, “[i]t is the defendant’s burden on appeal to show that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions.” (Internal quotation marks omitted.) State v.
First, the two charges were clearly distinguishable and arose from two discrete incidents that occurred several days apart. Further, there was no evidence presented at trial likely to have confused the two events in the minds of the jurors. Moreover, any remote possibility of confusion was eliminated by the trial court’s order requiring that evidence in the arson case be presented first, followed by evidence in the assault case. Second, although the conduct underlying the assault charge was certainly distasteful, we cannot say that it was “brutal or shocking” as contemplated in Boscarino. See State v. Herring, 210 Conn. 78, 97, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989) (two murders, each involving multiple gunshot wounds and occurring during or after commission of robbery, not so “brutal and shocking” as to require severance). Thus, there is no reason to conclude that the evidence presented on the assault charge was likely to have inflamed the emotions of the jury so that it could not render a fair verdict in the arson case. See, e.g., State v. Silver, supra, 139 Conn. 240 (severance appropriate when crimes involve brutality “that is apt to arouse the passion of the jury against [the defendant]”). Third, the issues presented by the two cases were simple and straightforward, and the evidence adduced at trial, which was completed in fewer than five trial days, was similarly uncomplicated. Finally, the trial court properly instructed the jurynotto consider the evidence adduced by the state on the assault charge in its deliberations on the arson charge. Accordingly, consolidation of the two cases did not unduly prejudice the defendant in his defense of the arson charge.
The defendant also raises the interrelated claims that consolidation adversely affected his free choice as to whether to testify in his own defense, and that the admission of his prior felony record for impeachment purposes in the arson case rendered the jury unable to reach a fair and impartial verdict on the assault charge despite extensive instructions by the trial court. We are not persuaded.
In order properly to resolve the complex issues involved in the defendant’s claims, we must recognize that the defendant’s objection to consolidation evolved and changed significantly over the course of the trial. Before trial, the defendant argued that his free choice with respect to whether to testify would be infringed if the charges were consolidated for trial because, at that point, he claimed that he wished to testify as to the arson charge but not as to the assault charge. After trial, the defendant did not claim that his choice of whether to testify was infringed or indeed that his decision as to whether to testify would have been affected at all had the charges not been consolidated for trial. Rather, he claimed only that in the assault case the jurors would necessarily have been prejudiced against him irreparably because they had become aware of his felony record when he had testified during the arson phase of the proceedings. Admittedly, any possible prejudice could not have occurred had the charges not been consolidated or had the defendant not testified concerning the arson. During his posttrial objection to the consolidation, however, the defendant did not argue that his choice of whether to testify was limited by the consolidation of the charges. Indeed, the defendant avowed from the beginning that he had wished to testify in the arson trial charge but not the assault trial. That, in fact, is precisely what he did.
In the defendant’s pretrial objection to the state’s motion to consolidate, it was represented to the trial court by defense counsel that the defendant “may testify in one case and not the other.” Additionally, it was represented by defense counsel “that she would advise the defendant to refrain from testifying in the urine-throwing case, and would probably advise the defendant to testify in the arson matter.” The defendant’s attorney stated that she intended to make those recommendations because the defendant would have need to explain to the jury his incriminating statement to the authorities concerning the charge of arson,15 but would not have to testify in the assault case because it was assumed that an exculpatory statement16 he had
A defendant who requests a severance on the theory that joinder of charges for trial will unfairly compromise his choice to testify or not to do so in his own defense must demonstrate “that he has both important testimony to give concerning one count and 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 one count and his reasons for not wishing to testify on the other — 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. Schroff, 198 Conn. 405, 409, 503 A.2d 167 (1986). The trial court properly overruled the defendant’s pretrial objection to the consolidation of the arson charge and the assault charge because the defendant failed to divulge a clear intent to testify as to one count but not the other. Defense counsel, in her pretrial objection to consolidation, stated only that she
On the record before it, the trial court could not determine that the defendant even had considered whether he would testily in either case. Defense counsel, at the time of the motion, did not represent definitively to the trial court one way or the other the defendant’s intent. We are mindful that there are cases in which a defendant will have legitimate reasons for being unable to make a decision as to whether to testify until shortly before trial begins, and that a court should not prod defendants to make that decision prematurely. Even if this were a case, however, where the defendant could not initially have made an intelligent decision as to whether to testify, he still could not prevail. After the trial commenced, the defendant never again reasserted his claim that his decision concerning whether to testify was being or had been in any way infringed upon by the consolidation of the charges against him. Once the defendant’s intentions as to testifying became clear, he could and should have made them clear to the trial court and renewed his objection to consolida
The defendant, however, did renew his objection to consolidation after trial. His objection at that point obviously was akin to a motion for a mistrial. It is necessary to recite additional facts to resolve the validity of the defendant’s posttrial objection to consolidation. After the presentation of the defense case on the arson charge, the defendant did not renew, on any grounds, his objection to the consolidation of the charges for trial. The state then began its case-in-chief on the assault charge. Mercoucheff, the first witness, stated that the defendant was a prisoner in the segregation unit on the date of the assault. She then testified in detail as to how she had been doused with urine upon placing her face up to the screened window of the defendant’s cell while conducting a routine head count of the inmate population. The next state’s witness was Wells, the shift supervisor on duty at the time of the alleged assault on Mercoucheff. He testified that the defendant had told him that the defendant and an inmate across the hall “had been horseplaying back and forth all day” and that he had thrown the urine at the other inmate in order to put an end to the horseplay. The state’s final witness was the nurse on duty the night of the assault. She confirmed that Mercoucheff s hair, face and body were “saturated” with urine and that she had rinsed Mercoucheff s eyes with diluted hydrogen peroxide.
Moreover, this is not a case where the defendant unwillingly testified as to both counts “in order to avoid
“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.) State v. Schroff, supra, 198 Conn. 408. The defendant’s burden to show substantial prejudice “includes a showing that any prejudice from joinder may be beyond the curative power of the court’s instructions.” State v. King, supra, 187 Conn. 302. “ ‘ [T]he jury is presumed, in the absence of an indication to the contrary, to have followed the instructions of the trial court.’ State v. Moye, 199 Conn. 389, 396, 507 A.2d 1001 (1986).” State v. Greene, 209 Conn. 458, 469 n.12, 551 A.2d 1231 (1988). In the present case, the trial
While it may be that joint trials were less advantageous to the defendant than separate trials, such a showing is insufficient to require severance. State v. Schroff, supra, 198 Conn. 408. The defendant must prove “substantial injustice.” State v. King, supra, 187 Conn. 302. The defendant has not met this burden. The jury in the assault case legitimately was aware of facts that reduce the possibility of any significant harm to the
II
The defendant next claims that he is entitled to a new trial on the arson charge because the trial court refused to instruct the jury on the lesser offense of criminal mischief in the third degree, General Statutes § 53a-117 (a) (2).20 We disagree.
At the conclusion of the evidence and before the trial court charged the jury, the defendant requested a jury
The law governing the right of a defendant to an instruction on a lesser offense than that charged by the state is well established. “A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the
On appeal, as he did at trial, the defendant concedes that the second condition of the Whistnant test is not satisfied in this case because it is possible to commit arson in the first degree without first having committed criminal mischief in the third degree.22 He nevertheless contends that he was entitled to an instruction on criminal mischief because, in light of the undisputed evidence, the jury possibly could have found him guilty of that crime, rather than arson, if it had concluded that the defendant had negligently, rather than intentionally, caused damage to the building when he had set fire to his mattress. The defendant acknowledges that he can prevail on this claim only if we are persuaded to expand the second prong of the test enunciated in Whistnant. He argues that considerations of fairness require us to do so. See, e.g., Moore v. State, 105 Nev. 378, 383, 776 P.2d 1235 (1989) (“fairness to the defendant requires instructions on related but not necessarily included offenses . . . when . . . [1] the lesser offense is closely related to the offense charged; [2] defendant’s theory of defense is consistent with a conviction for a related offense; and [3] evidence of the lesser offense exists”); see also People v. Geiger, 35 Cal. 3d 510, 674 P.2d 1303, 199 Cal. Rptr. 45 (1984) (same). He argues further that a liberalization of the Whistnant test would not be unprecedented. See State v. Rodriguez, 180 Conn. 382, 407, 429 A.2d 919 (1980) (“[f]or purposes of the second condition of Whistnant ... an offense that
Ill
The defendant next contends that the trial court improperly permitted the state to impeach a defense witness, Peter Ventura, an inmate who had been incarcerated in the defendant’s cellblock, with evidence of certain lawsuits that Ventura had filed against department of correction officials. We disagree.
On direct examination, Ventura testified, in corroboration of the defendant’s testimony, that prison officials had failed to open the door to the defendant’s cell at dinner hour on February 2,1993. Ventura also explained that he had been placed in the protective custody unit of the facility because he had filed several lawsuits against various prison officials. On cross-examination, the state, in an effort to demonstrate Ventura’s bias against prison personnel, sought to question him further about those lawsuits. The defendant objected to any such inquiry by the state on relevancy grounds.
Before ruling on the defendant’s objection, the trial court excused the jury to permit the state to conduct a voir dire examination of Ventura. At that voir dire, Ventura testified that he had filed four separate lawsuits against several different officials of the department of correction and, further, that each of the lawsuits alleged unconstitutional conditions of confinement. Ventura also testified that although one of his lawsuits challenged the constitutionality of the conditions at the New Haven correctional center, Mercoucheff was not a party to that or any other lawsuit he filed.
At the conclusion of the hearing, the trial court overruled the defendant’s objection, concluding that the state’s questioning of Ventura was appropriate to establish his bias, if any, against correction officials. The
“[C]ross-examination is the principal means by which the credibility of witnesses and the truth of their testimony is tested.” State v. Lee, 229 Conn. 60, 69, 640 A.2d 553 (1994). Although only relevant evidence may be elicited through cross-examination; State v. Kelley, 229 Conn. 557, 562, 643 A.2d 854 (1994); “[e]vidence tending to show motive, bias or interest of an important witness is never collateral or irrelevant. [Indeed, i]t may be . . . the very key to an intelligent appraisal of the testimony of the [witness].” (Internal quotation marks omitted.) State v. Colton, 227 Conn. 231, 248, 630 A.2d 577 (1993). Accordingly, cross-examination to elicit facts tending to show that a witness’ testimony was motivated by bias may not be unduly restricted. Id., 249; see also State v. Francis, 228 Conn. 118,123,635 A.2d 762 (1993). “Bias may consist of a friendly feeling or of hostility. It may be shown in a variety of ways.” State v. Asherman, 193 Conn. 695, 719, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).
The trial court reasonably could have concluded that Ventura’s lawsuits claiming improper treatment by department of correction officials evinced a hostility toward those officials and that, in view of the defendant’s claim of mistreatment by Mercoucheff on February 2, 1993, Ventura’s bias, if any, toward those authorities was relevant to the case. Furthermore, the fact that Mercoucheff was not named in any of Ventura’s lawsuits did not render irrelevant the state’s contention that Ventura harbored a general bias against correction officials stemming from his own alleged mistreatment while in their custody. “The trial court has broad discretion in deciding the relevancy of evidence as it pertains to cross-examination . . . and on appeal the appellant has the burden of establishing that there has been an
IV
The defendant next contends that the trial court improperly permitted the state to cross-examine him as to false statements that he allegedly had made to prison officials.23 We are unpersuaded.
The state notified the defendant, prior to his testimony regarding the arson charge, that it intended to question him, for impeachment purposes only, about four separate occasions on which he had allegedly given false information to correction officers.24 The defendant denied having made false statements on three of the four occasions and, on that ground, objected to being asked any questions about those three incidents. The trial court overruled the defendant’s objection to the line of questioning contemplated by the state and the defendant on cross-examination denied that he had given false information to correction officers on three of the four occasions.25
The defendant does not dispute that cross-examination regarding prior false statements is generally permissible because such misconduct is probative of the witness’ veracity. The defendant claims, rather, that the state should not have been allowed to question him about three of the alleged false statements because he had already indicated that he would, on cross-examination, deny that any of those statements were untrue. The defendant’s argument is predicated on the fact that “if on cross-examination a witness denies having engaged in . . . prior acts of misconduct, the examiner must accept the answer and is prohibited from offering extrinsic evidence to prove such acts.” Demers v. State, supra, 209 Conn. 157.
We are persuaded that the trial court did not abuse its discretion in permitting the state to cross-examine the defendant regarding all four statements even though the defendant, through counsel, had informed the court that he had not provided false information on three of the four occasions. The state, relying on the findings contained in the prison disciplinary reports, had a good faith basis to believe otherwise. See, e.g., State v. Barnes, 232 Conn. 740, 747-48, 657 A.2d 611 (1995); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. Sup.
The defendant also contends that the trial court permitted the state too much leeway in its cross-examination concerning the four incidents. Specifically, he claims that the trial court should have prohibited any further probing by the prosecutor once the defendant had denied having engaged in any misconduct.26 Contrary to the defendant’s argument, however, the trial court was within its discretion in allowing the state some latitude in its cross-examination on this issue. “ ‘[I]f the witness stands his ground and denies the alleged misconduct, the examiner must “take his answer” not that he may not cross-examine to extract an admission, but in the sense that he may not call other witnesses to prove the discrediting acts.’ McCormick, [Evidence (3d Ed.)] § 42.”State v. Horton, 8 Conn. App. 376, 380, 513 A.2d 168, cert. denied, 201 Conn. 813, 517 A.2d 631 (1986); see also State v. McIntosh, 12 Conn. App. 179, 185, 530 A.2d 191, cert. denied, 205 Conn. 808, 532 A.2d 77 (1987). The record indicates that the state’s questioning was very brief and to the point, and that the state did not unduly press the issue once the defendant had denied the misconduct. The defendant’s claim to the contrary, therefore, is meritless.
V
The defendant next challenges the trial court’s denial of his motion for a psychiatric examination made pursuant to General Statutes § 17a-56627 prior to sentencing. This claim also is without merit.
As indicated by the trial court, neither the presentence report nor the psychological evaluation of the defendant concluded that he was mentally ill. Rather, the reports merely raised that possibility.29 The trial court, moreover, had been fully apprised of the defendant’s personal history and background and, in addition, had observed the defendant’s testimony and demeanor throughout the trial and could draw its own conclusions. In the absence of a far more convincing showing by the defendant, therefore, we cannot say that the trial court was incorrect when it concluded that the defendant did not appear to be suffering from a mental illness.
VI
The defendant also claims that the trial court improperly instructed the jury that a reasonable doubt “is a doubt for which a valid reason can be assigned.” Because the defendant failed to preserve this claim, he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).
“The challenged instruction is identical to the instruction recently approved by this court in State v. Gomez, 225 Conn. 347, 353, 622 A.2d 1014 (1993), and numerous cases cited therein. In our previous cases, we concluded that this instruction did not decrease the state’s burden of proof when viewed in the context of the charge as a whole. Id., 354. In this case, the jury charge, taken as a whole, presents an accurate definition of proof beyond a reasonable doubt.” State v. Williams, 231 Conn. 235, 254 n.22, 645 A.2d 999 (1994). Accordingly, the defendant’s claim must fail.
Finally, the defendant asserts that he was deprived of a fair trial due to improper closing argument by the state. The defendant also concedes that this claim was not properly preserved at trial, but contends that review is appropriate under State v. Golding, supra, 213 Conn. 239-40, or, alternatively, under the plain error doctrine.30 We will review the claim under Golding but we do not agree that the defendant was deprived of a fair trial.
The defendant’s claim is founded on certain statements made by the state during closing argument, in which the prosecutor purportedly made reference to facts not in evidence. The defendant also alleges that the prosecutor deprived the defendant of a fair trial by vouching for the credibility of witnesses, claiming that the defense case contained “smoke screens” and “red herrings,” calling the defendant a “con man,” commenting on matters not in evidence, commingling the evidence, testifying as an expert witness and injecting extraneous matters. A careful review of the record reveals that each of these claims is either entirely unsupported or does not approach the level of a due process violation. The challenged remarks, to the extent that they were made and were inappropriate, were isolated and brief, and did not reflect a pattern of misconduct. See State v. Williams, supra, 231 Conn. 245-47. They certainly did not deprive the defendant of a fair trial; see State v. Golding, supra, 213 Conn. 239-40; or otherwise implicate the fairness and integrity of and public confidence in the judicial proceedings. See State v. Day, 233 Conn. 813, 849, 661 A.2d 539 (1995). The defendant,
The judgment is affirmed.
In this opinion PETERS, C. J., and NORCOTT, J., concurred.
1.
The defendant appeals directly to this court pursuant to General Statutes § 51-199 (b), which provides in relevant part: “The following matters shall be taken directly to the supreme court ... (3) a,n appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony ... for which the maximum sentence which may be imposed exceeds twenty years . . . .”
2.
General Statutes § 53a-lll provides in relevant part,: “Arson in the first degree: Class A felony, (a) A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or (2) any other person is ipjured, either directly or indirectly; or (3) such fire or explosion was caused for the purpose of collecting insurance proceeds for the resultant loss; or (4) at the scene of such fire or explosion, a peace officer or firefighter is subjected to a substantial risk of bodily injury.”
3.
General Statutes § 53a-167c provides in relevant part: “(a) A person is guilty of assault of [an] . . . employee of the department of correction . . . when, with intent to prevent a reasonably identifiable . . . employee of the department of correction . . . from performing his duty, and while
4.
The trial court sentenced the defendant on the arson count to a term of imprisonment of twelve years, suspended after five years, with three years probation, and on the assault count to a prison term of two years, the sentences to run consecutive to each other and to the sentence already being served by the defendant.
5.
The defendant claimed that he was referring to his mattress, while the state contended that he was referring to the cellblock.
6.
All references hereinafter are to the mattress fire. The earlier paper fire, which was also set by the defendant, is not the subject of this appeal.
7.
The defendant also provided state police investigators with a signed statement that contained a similar account of the urine-throwing incident.
8.
On cross-examination, the state listed the dates of the eleven prior convictions and the defendant responded that it was he who had been
9.
At the time of the interview, Pilletere had not considered the defendant’s remark relevant to his arson investigation and, consequently, he had not noted it in his report.
10.
The defendant also called several witnesses in the defense case.
11.
The prosecutor also sought to impeach the defendant by questioning him concerning four separate incidents of alleged dishonesty. The defendant has challenged the propriety of those questions. See part IV of this opinion.
12.
The state chose not to introduce the defendant’s written statement regarding this incident. See footnote 7.
13.
Defense counsel stated: “I don’t think Your Honor can say well, you heard he had prior felony convictions and you can use that to impeach his credibility, and I don’t think they can forget about that when drey are deciding whether my client had the intent to prevent a reasonably identifiable employee [of the department of correction] from performing her duties.”
14.
First, the court instructed the jury as follows: “As I have already made clear throughout this proceeding, the defendant is charged with two separate offenses, even though those cases were consolidated into a single trial. In one information, the state has charged Mr. Chance with arson in the first degree and in the other information the state has charged the defendant with assault on a department of correction employee. You must consider each alleged incident separately and distinctly from the other. You must keep them both separate in your evaluation of the facts and separate in your minds in the determination of your verdict. The evidence from one alleged incident must not be considered by you or affect your verdict in the other alleged incident. Also, by virtue of the fact that there are two separate informations pending against the defendant, you must not hold
Later, the court reiterated its earlier instruction as follows: “Again I will remind you that you are dealing with two separate cases here. You are to consider them separate and apart from one another . . . .”
15.
The substance of this statement is that the defendant had become involved in a dispute with Mereoucheff regarding his dinner arrangements on February 2, 1993. The defendant stated that he asked another inmate to tell Mereoucheff that if he was not served dinner within ten minutes he was “gonna light the [expletive] on fire.” The defendant then admitted that shortly thereafter he “lit the paper on fire with matches and threw the paper on the mattress.”
16.
The substance of this statement is that the defendant and the inmate across the corridor from him had been engaged in a water fight and that “I decided that if I threw urine at him he would stop. As I threw the urine at [the other] inmate I was unaware that . . . Mereoucheff was walking near [the cell adjacent to mine], . . . Mereoucheff was then struck with the
17.
We do not, as the dissent suggests, find Schroff inapplicable to the defendant’s posttrial objection to consolidation “simply because the objection was not made until after the defendant had testified as to the arson count and had elected not to testily with respect to the assault count.” We hold, rather, that Schroff does not apply because at the time of the posttrial objection, the defendant could not claim that his choice as to whether to testify had been infringed in any way.
This analysis is unaffected by the state’s decision not to introduce testimony by Pilletere concerning the defendant’s threat to “get” Mercoucheff in its case-in-chief with respect to the assault charge. The defendant maintained in his posttrial objection to consolidation only that the jury’s knowledge of his prior felony convictions — knowledge the jury on the assault charge would not have ha.d but for the consolidation — would render the jury unable to deliberate fairly as to the assault charge. See footnote 18. We simply treat the defendant’s posttrial objection to consolidation as any other claim where the defendant alleges that unduly prejudicial evidence has come before the jury as a result of consolidation and has rendered the jury unable fairly to deliberate. The mere fact that the admissibility of the defendant's prior felony record was dependent on his decision as to whether to testily does not transform his claim of harm resulting from the introduction of his felony record for impeachment into a claim under Schroff that he was deprived of a free choice with respect to testifying. Although it is possible that if the state had introduced the threat the defendant would have felt compelled to testify in the assault case, that consequence has no
18.
Defense counsel's entire argument in support of the defendant’s posttrial objection to consolidation was as follows: “I do also have some other motions or comments to make on the record. One is that with respect to my severance objection — my consolidation objection earlier, I wanted to renew that formally. I know that I spoke to Your Honor about this in chambers, but it is my position that, given the posture of these two cases, now that all is said and done, and it turns out, not through any fault of mine or my client, but on some — based on some strategy decision that the state made, state elected not to offer through the trooper my client’s statement. In response to that decision my client elected not to put on a defense, as is his right. We’re in a situation, Judge, where we have a full blown two-sided trial in one case where my client elected to testify and during which his eleven felony convictions were introduced to impeach his credibility as contrasted to the second trial where the state offered the testimony of three witnesses and the defense chose not to put on a defense including the defendant’s own choice not to testify in the particular proceeding and my concern, Your Honor, is twofold.
“Number one, the jury will have heard this very long and drawn out series of testimonies in one case and a very short land of testimony in the other case and they are — I am afraid will infer we put on a lot of defense witnesses in one case and chose not to put on any in the other case, maybe we’re hiding something. I think they draw inferences just from having sat through that first proceeding that would not normally be relevant to a situation had these cases been separated.
“But secondly and more importantly, Your Honor, I submit that the fact that he did not testify at the second trial, while the jury is able to consider his eleven felony convictions as impeachment evidence with respect to his testimony at the first trial, clearly that’s not the type of evidence that they ever would have heard about had the second trial occurred as it did here and so it is not the type of situation where I think a curative instruction can address. I simply don’t.
Page 51“I don’t think that Your Honor can say well, you heard he had prior felony convictions and you can use that to impeach his credibility, and I don’t think they can forget about that when they are deciding whether my client had the intent to prevent a reasonably identifiable employee from performing her duties.
“This is something that I had written about in my memorandum of law that I submitted for the court at the outset. I specifically stated that I was concerned about his felony convictions. Now that the trial is completed I do think that that danger is going to play itself out in the jury deliberation room. I just wanted to renew my motion to sever these offenses. I don’t think it is too late. I think that the court can indicate to the jury that they are just to deliberate on the arson charge and I would renew it, Your Honor, my motion — rather my objection to the state’s motion to consolidate because I think that a continued consolidation of these two matters would only lead to prejudice to the defendant given the procedural posture of those particular cases.”
19.
The court instructed the jury as follows: “Now, again as to the arson case there was testimony here of a previous felony conviction or previous felony convictions, I should say, on the part of witnesses. The evidence was offered and admitted for one purpose only, that is, to address the question of credibility or believability of those witnesses. A witness’s conviction of a prior felony may be weighed by you, but the jury in testing the credibility of a witness — but for that purpose and in testing the credibility of a witness but for that purpose only. You may consider that everything else being equal you would not believe the testimony of a person who has committed a serious crime as readily as you would believe the testimony of a person of good character. You are not required to disbelieve a witness because he has been previously convicted of a felony. It is simply something you may take into account in judging his credibility if you find that it bears on his credibility.
“Now in accordance with these principles I will also instruct you that you are notpermitted to infer, based upon the defendant’s felony convictions, that he was any more likely to commit the offenses charged in these cases. Again, the only purpose for their use in this case is to assist you, the jury, in evaluating the credibility of the defendant’s testimony. Those convictions are not evidence of guilt for the charge at issue in this case and you shall not consider them as evidence of guilt.
“As I have already made clear throughout this proceeding, the defendant is charged with two separate offenses, even though those cases were consolidated into a single trial. . . . The evidence from one alleged incident must not be considered by you or affect your verdict in the other alleged incident. ...”
20.
General Statutes § 53a-117 provides in relevant part: “(a) A person is guilty of criminal mischief in the third degree when, having no reasonable ground to believe that he has a right to do so, he . . . (2) damages tangible property of another by negligence involving the use of any potentially harmful or destructive force or substance, such as, but not limited to, fire, explosives, flood, avalanche, collapse of building, poison gas or radioactive material.”
21.
Criminal mischief in the third degree is a class B misdemeanor, and is therefore punishable by a maximum term of imprisonment of six months. Arson in the first degree, a class A felony, is punishable by a term of imprisonment of not less than ten years nor more than twenty-five years.
22.
Indeed, the elements of arson in the first degree and criminal mischief in the third degree are completely different. See footnotes 2 and 20.
23.
None of these alleged incidents occurred at the New Haven correctional center.
24.
In each case, prison officials prepared a disciplinary report citing the defendant for having provided a false statement to correction officers.
25.
The defendant acknowledged that he had provided false information to correction officers on one of the four occasions, and he admitted to having done so on cross-examination.
26.
The defendant also claims that the state should not have referred to the disciplinary reports in its formulation of its questions about the alleged false statements. Because the defendant did not object on this ground at trial, we decline to review the claim on appeal.
27.
General Statutes § 17a-566 provides in relevant part: “(a) Except as provided in section 17a-574 any court prior to sentencing a person convicted
28.
The trial court did not address the issue of whether the defendant also posed a danger to himself or others. See General Statutes § 17a-566.
29.
We have conducted an independent review of those reports and concur with the trial court’s characterization of them.
30.
Practice Book § 4185 provides in relevant part: “Errors Considered
“The court on appeal shall not be bound to consider a claim unless it was distinctly raised at trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”