ARTHUR H. HEALEY, J.
The defendant was charged with burglary in the third degree in violation of General Statutes § 53a-103 and larceny in the third degree in violation of General Statutes § 53a-124. In a separate information, the defendant was also charged with possession of heroin and cocaine in violation of General Statutes § 19-481 (a). After a trial to a jury, the defendant was found guilty of all crimes charged and sentenced to an effective prison term of not less than two, nor more than four years.
About ten minutes later, Mrs. Wegher told Mr. Wegher that the woman across the street was having trouble getting out of the icy driveway. Mr. Wegher came back upstairs and noticed that the yellow auto had been turned around so that its trunk was backed up to the garage door. The woman, who was in the auto at this time, got out of the auto, approached the garage window and nodded her head or gestured to the man, who was inside the garage. The woman returned to the auto and the man opened the garage door from the inside.
The man took something from the trunk and put it in the back seat of the auto. He then went back into the garage and began placing cardboard boxes into the trunk of the auto. These boxes contained two toilets valued at $212. Mr. Wegher phoned the police while Mrs. Wegher tried to focus a pair of binoculars in an attempt to read the license plate number. Mrs. Wegher was having difficulty focusing the binoculars, so Mr. Wegher gave her the phone while he took the binoculars. He identified the license plate number as the car was passing his house. The car was registered to the defendant.
Prior to trial, the state was granted, over the defendant's objection and exception, a motion for joinder of the two informations, pursuant to Practice Book § 829, and the matters were tried together. On appeal, the defendant claims that the trial court erred (1) by granting the motion for joinder of the burglary and larceny information with the heroin and cocaine possession information and (2) by allowing into evidence a toxicological report without also requiring testimony of the chemist who actually performed the tests under the unique circumstances of this case where, during analysis, the narcotics evaporated.
This case presents us with our first opportunity to construe our rules of joinder of indictments and informations since their amendment in 1976. Section 492 of the 1963 Practice Book and General Statutes § 54-57 provided: "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." (Emphasis added.) In 1976, the rule, but not the statute, was amended to read as follows: "The judicial authority may, upon his own motion or the motion of any party, order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together." Practice Book, 1963, § 2240 (now Practice Book, 1978, § 829). The new rule omits reference to the requirement that the offenses joined be of the "same character." The drafters of the amendment stated that "[t]his extremely broad provision permits the court sua sponte or on motion to order joint trial of different charges, whether or not related, and whether or not against the same defendants. It thus goes beyond Federal Rules of Criminal Procedure, Rule 13 as well as existing statutory law [General Statutes § 54-57], and should be read in light of Sec. 2239 [now Sec. 828] permitting severance if prejudice may result." (Footnotes omitted.) Orland, Connecticut Criminal Procedure (1976), pp. 177-78. It is apparent that § 829 intentionally broadened the circumstances under which two or more indictments or informations could be joined and that whether the offenses are of the "same character" is no longer essential.
"The Superior Court is empowered to adopt and promulgate rules `regulating pleading, practice and procedure in judicial proceedings in courts in which they have the constitutional authority to make rules, for the purpose of simplifying proceedings in the courts and of promoting the speedy and efficient determination of litigation upon its merits. Such rules shall not abridge, enlarge or modify any substantive right ....' General Statutes § 51-14 (a).... Just as the general assembly lacks the power to enact rules governing procedure that is exclusively within the power of the courts; Conn. Const., art. V § 1; State v. Clemente, [166 Conn. 501, 510-11, 516, 353 A.2d 723 (1974)]; so do the courts lack the power to promulgate rules governing substantive rights and remedies. General Statutes § 51-14 (a); State v. Clemente, supra, , 509-10; see State v. Rodriguez, 180 Conn. 382, 385-86, 429 A.2d 919 (1980). Additionally the court rules themselves are expressly limited in scope to practice and procedure in the Superior Court; Practice Book § 1; and do not purport to reach beyond such limits." Steadwell v. Warden, 186 Conn. 153, 162-63, 439 A.2d 1078 (1982). With reference to the rule relating to disclosure of presentence investigation reports, two members of this court have stated: "`[C]ourts have an inherent power, independent of statutory authorization, to prescribe rules to regulate their proceedings and facilitate the administration of justice as they deem necessary.' State v. Clemente, supra, 514. It was in the exercise of this power that the judges of the Superior Court adopted § 917 in 1976 as part of a major revision of the rules of criminal procedure." (Footnote
The defendant claims that the trial court's granting of the state's motion for joinder resulted in a substantial injustice to her. She claims that (1) only offenses of the "same character" can be joined pursuant to General Statutes § 54-57 and (2) even if offenses of different characters can be joined, the court abused its discretion in joining these offenses. Since our holding that offenses of different characters can be joined under Practice Book § 829 disposes of the defendant's first basis, we will now address her alternative argument.
The defendant claims substantial prejudice in three respects. First, she claims that because of joinder, "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 the evidence against him ..."; see Drew v. United States, 331 F.2d 85, 88 (D.C. Cir. 1964); second, she claims that evidence of one
"The most obvious example of possible prejudice is that, when the crimes, near in time, place and circumstance, are so similar although legally unconnected, as in the present case, there is danger that the jury will use the evidence of one crime to convict the defendant of the other crimes. See Drew v. United States, 331 F.2d 85, 89 (D.C. Cir. ); 1 Wigmore, Evidence (3d Ed.) § 194." State v. Oliver, 161 Conn. 348, 361, 288 A.2d 81 (1971). In State v. Jonas, 169 Conn. 566, 570, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S.Ct. 1132, 47 L. Ed. 2d 331 (1976), we stated that the question of severance rested within the sound discretion of the trial court and that the exercise of that discretion could not be disturbed unless it has been manifestly abused. See State v. Silver, 139 Conn. 234, 93 A.2d 154 (1952). In Silver, "we defined the test to be applied as follows ... : `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 advantageous to the defendant. State v. McCarthy, 130 Conn. 101, 103, 31 A.2d 921 ; State v. Castelli, 92 Conn. 58, 63, 101 A. 476 . The test is whether substantial injustice will result to the defendant if the charges are tried together. State v. Klein, 97 Conn. 321, 324, 116 A. 596 .' The only example of substantial injustice given in Silver concerned evidence of such brutality by the
Judge Learned Hand, in United States v. Lotsch, 102 F.2d 35 (2d Cir.), cert. denied, 307 U.S. 622, 59 S.Ct. 793, 83 L. Ed. 1500 (1939), stated: "There is indeed always a danger when several crimes are tried together, that the jury may use the evidence cumulatively; that is, that, although so much as would be admissible upon any one of the charges might not have persuaded them of the accused's guilt, the sum of it will convince them as to all. This possibility violates the doctrine that only direct evidence of the transaction charged will ordinarily be accepted, and that the accused is not to be convicted because of his criminal disposition. Yet in the ordinary affairs of life such a disposition is a convincing factor, and its exclusion is rather because the issue is practically unmanageable than because it is not rationally relevant. When the accused's conduct on several separate occasions can properly be examined in detail, the objection disappears, and the only consideration is whether the trial as a whole may not become too confused for the jury....
In the present case, after weighing the consideration of the judicial economy of a single trial against the consideration of substantial injustice to the accused, we conclude that joinder was not erroneous. There is no question that joinder of the informations was obviously less advantageous than a separate trial. That, in and of itself, is hardly dispositive of the issue. See State v. Jonas, supra, 570; United States v. Knife, 592 F.2d 472 (8th Cir.
The evidence introduced was simple, separable and straightforward. The danger that the jury cumulated and considered evidence of one offense is not substantial in this case. See Dunaway v. United States, supra, 26-27. In her brief the defendant concedes that the danger that proof of one offense may be used to convict of a second offense, even though inadmissible at a separate trial, poses "greater problems in trials involving similar offenses." The trial court specifically, sufficiently and without exception charged the jury on this issue
The consideration whether evidence of the burglary and larceny charges would be admissible in a separate trial on the drug charge does not require a different result in this case. The defendant's arrest on the latter charge was clearly incident to her arrest on the former charges. While the trial judge observed that trying the two informations together "would result in undue prejudice," he went on to say that that joinder would not result "in such great prejudice as would outweigh the practical result in trying both cases together...." We agree and cannot conclude that this was a manifest abuse of discretion so as to result in substantial injustice to the defendant to warrant a reversal.
As to any "influence" on the defendant's decision to testify which the joinder might have had, we note that this claim was never raised at trial or at the hearing on the pretrial motion for joinder.
An "accused's election to testify on some but not all of the charges on trial does not automatically require a severance. `Such a rule,' ... `in fact, would divest the court of all control over the matter of severance and entrust it to the defendant.' There remains with the trial judge ... a discretion in the matter, though a discretion within limits narrowly confined by the exigencies of the situation. In the end, it is incumbent upon the judge `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,' and to grant or deny the severance accordingly." (Footnotes omitted.) Bradley v. United States, 433 F.2d 1113, 1122 (D.C. Cir. 1969). See Blunt v. United States, 404 F.2d 1283, 1289 (D.C. Cir. 1968), cert. denied, 394 U.S. 909, 89 S.Ct. 1021, 22 L. Ed. 2d 221 (1969); Baker v. United States, 401 F.2d 958, 976-77 (D.C. Cir. 1968), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L. Ed. 2d 384 (1970); Strickland v. United States, 389 A.2d 1325, 1332 (D.C. App. 1978), cert. denied, 440 U.S. 926, 99 S.Ct. 1258, 59 L. Ed. 2d 481 (1979); Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973); see also Wangrow v. United States, 399 F.2d 106, 112 (8th Cir.), cert. denied, 393 U.S. 933, 89 S.Ct. 292, 21 L. Ed. 2d 270 (1968); Roldan v. United States, 353 A.2d 292, 294 (D.C. App. 1976); Coleman
In asserting that the "greatest danger" resulting from joinder is its influence on her decision whether to testify, the defendant argues that it is "especially significant in this case where `prejudice may develop when an accused wishes to testify on one but not the other of two joined offenses which are clearly distinct in time, place and evidence.' Cross v. United States, 335 F.2d 987, 989 (D.C. Cir. 1964)." Cross involved two defendants charged and tried together in one trial of two counts of robbery, one robbery being of a church rectory on February 23, 1962, and the other being that of a tourist home on May 2, 1962. In reversing the trial court which denied severance, the appellate court held
In its later decisions, the Cross court indicated that that case should not be read so broadly as conclusively to establish prejudice based on the mere fact that the defendant moves to sever. Baker v. United States, supra, 976; see Blunt v. United States, supra, 1289. That same court held 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 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 reason 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
At no time during or after her testimony did the defendant alert the trial court, in any way, to any possible influence or interference with her right to testify resulting from the joinder.
The defendant's second claim is that she was denied her sixth amendment constitutional right to confront the chemist who actually performed the toxicological tests and who was the last person to see any amount of the narcotics allegedly seized from the defendant because the chemist was not called to the witness stand to testify.
At trial, Abraham Stolman, chief toxicologist for the state, testified as to the presence of cocaine and heroin in the substances seized from the defendant on the basis of a report made by the chemist who actually performed the tests. He stated that the chemist, Helen Wright, performed these tests under his supervision and direction and that he also reviewed and examined the results to ensure their accuracy.
In State v. Cosgrove, supra, we stated: "While a defendant may be disadvantaged in certain contexts by the prosecutor's failure to call the extrajudicial declarant; see, e.g., Phillips v. Neil, 452 F.2d 337, 348 (6th Cir. ); those disadvantages would seemingly be inconsequential in the present case because of the defendants' ability to call the chemist as their own witness. See, e.g., State v. Walker, 53 Ohio St.2d 192, 197, 374 N.E.2d 132 . Moreover, it may well have been true that defendants' counsel, like Evans' counsel in Dutton v. Evans, [400 U.S. 74, 88 n.19, 91 S.Ct. 210, 27 L. Ed. 2d 213 (1970)], concluded that subpoenaing the extrajudicial declarant in this case would not have been in the best interest of their clients." Id., 580.
The defendant utilized her rights under the pretrial discovery rules and obtained a copy of the toxicological report. The defendant could also have subpoenaed the chemist, pursuant to General Statutes § 54-2a, if she had doubts about the report's reliability. See State v. Cosgrove, supra, 578. The fact that the narcotics had been used up or evaporated during testing (and thus were unavailable
"Moreover, if the production of the chemist is deemed mandated by the confrontation clause in this case, it would seem that anyone involved in the tests would have to be produced, e.g., the person charged with ensuring the laboratory machines' accuracy. The laboratory could be quickly decimated and the court dockets congested waiting for the testimony of the laboratory personnel." (Footnote
Finally, the defendant contends that a recent United States Supreme Court case, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L. Ed. 2d 597 (1980), requires the state to produce the chemist who actually performed the tests in this unique situation. The defendant's brief quotes that portion of Roberts which stated: "[I]n conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. See Mancusi v. Stubbs, 408 U.S. 204 [92 S.Ct. 2308, 33 L. Ed. 2d 293] (1972); Barber v. Page, 390 U.S. 719 [88 S.Ct. 1318, 20 L. Ed. 2d 255] (1968). See also Motes v. United States, 178 U.S. 458 [20 S.Ct. 993, 44 L. Ed. 1150] (1900); California v. Green, 399 U.S. , at 161-62, 165, 167, n.16 [90 S.Ct. 1930, 26 L. Ed. 2d 489 (1970)]." (Footnote omitted.) Id., 65.
On the very next page, however, the court stated: "In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible
There is no error.
In this opinion the other judges concurred.
"The defendant, Christine King, has been charged in two separate cases with a burglary and larceny, alleged to have been committed on January 14, 1979, and possession of narcotics and drugs, alleged to have been committed on January 29, 1979.
"You are not to assume or to consider that there is any relationship between the two incidents, or cases. Further, no inference is to be made by you that the burglary and larceny offenses may have been committed as the result of any drug dependency on the part of Christine King. To make such an inference would be wrong, and improper. Each case must be considered separately on the facts as presented in court."