STATE v. LEOTIS PAYNE, SC 17965

Judicial District of New Haven

 Criminal; Joinder; Whether Trial Court Properly Granted State's Motion to Join Felony Murder and Jury Tampering Cases Under the "Substantial Prejudice" Standard.  The defendant was charged with felony murder in connection with a shooting death that occurred in New Haven.  He was later accused, in a separate information, of attempting to tamper with certain jurors who participated in his trial, which ended in a mistrial.  The state subsequently sought to retry the defendant, and, relying on State v. King, 187 Conn. 292 (1982), it moved to join the felony murder and jury tampering cases for a single trial on the ground that the joinder of the two matters would not result in substantial prejudice to the defendant.  The trial court granted the motion, finding that the two incidents were factually distinct and occurred years apart.  Additionally, the court determined that although one case involved the serious charge of felony murder, the conduct attributed to the defendant in that matter was not so brutal or shocking as to impair the jury's ability to consider the charges set forth in the two informations in a fair manner.  It further opined that the granting of the motion would not result in an unduly long or complex trial.  Thereafter, another dispute arose when the state attempted to elicit testimony from one of its witnesses, Steven Thomas, concerning an alleged threat that the defendant had made to Thomas on the day of the shooting, namely, that Thomas' van would be "busted up" if he refused to permit the defendant's acquaintance to drive it.  Although the court initially prohibited the state from eliciting such testimony on direct examination, it later reversed its ruling on the ground that, on cross-examination, the defendant's attorney had "opened the door" to the admission of the testimony when he asked Thomas whether he had been concerned that the van may have been implicated in the shooting.  The defendant subsequently moved for a mistrial, claiming that, during closing arguments, the prosecutor improperly accused defense counsel of engaging in unethical conduct by personally vouching for the credibility of the defendant.  The court denied the motion, determining that the prosecutor's comment did not constitute a personal attack upon defense counsel.  After the defendant was convicted as charged, he filed this appeal, arguing that a motion for joinder should be granted only where, pursuant to General Statutes § 54-57, the offenses at issue are "of the same character" and that the "substantial prejudice" standard, as articulated in State v. King and as applied by the trial court in the present matter, should be abandoned because it permits the joinder of unrelated cases.  He also argues, among other things, that the court improperly admitted Thomas' testimony under the "opening the door" doctrine and that the prosecutor engaged in impropriety when he accused defense counsel of being unethical.