State v. Anderson ( 2015 )

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STATE OF CONNECTICUT v. DICKIE
E. ANDERSON, JR.
(SC 19024)
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa,
Robinson and Vertefeuille, Js.
Argued April 30—officially released September 15, 2015
Christopher Y. Duby, assigned counsel, with whom,
on the brief, was William A. Adsit, assigned counsel,
for the appellant (defendant).
Marissa Goldberg, deputy assistant state’s attorney,
with whom were Stephen M. Carney, senior assistant
state’s attorney, and, on the brief, Michael L. Regan,
state’s attorney, for the appellee (state).
Opinion
PALMER, J. The defendant, Dickie E. Anderson, Jr.,
was charged in separate informations with the murders
of Rene Pellegrino and Michelle Comeau in violation
of General Statutes § 53a-54a (a). After the trial court
granted the state’s motion to consolidate the cases
based on the cross admissibility of the evidence, the
jury found the defendant guilty of the murder of Pelle-
grino but was unable to reach a verdict in the Comeau
case. The trial court therefore declared a mistrial in
that case and subsequently sentenced the defendant to
sixty years imprisonment for the murder of Pellegrino.
On appeal from the judgment of conviction in the Pelle-
grino case,1 the defendant claims that the trial court
abused its discretion in consolidating the cases for trial
because the state had failed to meet its burden of estab-
lishing either that the evidence was cross admissible
or that the defendant would not be substantially preju-
diced by the joinder. We disagree and, accordingly,
affirm the judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
analysis of the defendant’s claims. On June 25, 1997, the
police discovered the naked body of an adult Caucasian
female in the travel portion of a rural roadway in the
town of Waterford. The body had been posed, with
knees bent, feet together and arms outstretched. No
clothing or jewelry was found in the vicinity of the
body. The victim was later identified as Pellegrino, a
known prostitute from the New London area who
recently had been released from prison. Pellegrino’s
body was transported to the Office of the Chief Medical
Examiner, where the medical examiner performing the
autopsy determined her cause of death to be ‘‘asphyxia
by neck compression,’’ with evidence of both manual
and ligature strangulation. Pellegrino, who was seven-
teen weeks pregnant at the time of her death, also
had sustained occipital trauma, and her blood tested
positive for cocaine. A vaginal swab taken from Pelle-
grino contained DNA from an unknown male, which
was subsequently entered into a national DNA database
(DNA database). After several months, the investigation
into the Pellegrino murder went cold.
On May 1, 1998, the police located the naked body
of another adult Caucasian female in the travel portion
of a rural roadway in the town of Franklin, close to the
Norwich line. The victim’s body was found with her
arms and legs outstretched. The first witnesses to dis-
cover the body reported seeing a vehicle parked next
to the victim that sped off as the witnesses approached.
No clothing or jewelry was found in the vicinity of the
body. The decedent was later identified as Michelle
Comeau, a convicted prostitute from the Norwich area
who recently had been released from prison. The medi-
cal examiner determined Comeau’s cause of death to
be ‘‘asphyxia by neck compression,’’ with evidence of
both manual and ligature strangulation. Comeau’s blood
also tested positive for cocaine, and, like Pellegrino, she
had sustained occipital trauma. As with the Pellegrino
murder investigation, the investigation into Comeau’s
murder went cold after several months.
In 2008, authorities, through the DNA database,
matched the unknown DNA from Pellegrino’s vaginal
swab to the defendant, who subsequently was inter-
viewed by the police. At first, the defendant denied
knowing Pellegrino. After he was informed of the DNA
match, however, the defendant admitted to having had
sexual intercourse with Pellegrino the evening before
and the morning of her death. According to the defen-
dant, he gave Pellegrino crack cocaine in exchange for
sex. Two witnesses, Arthur Moore and Toni Wilson,
implicated the defendant in Pellegrino’s death. Moore,
who was the defendant’s cellmate at Osborne Correc-
tional Institution, reported to the police that the defen-
dant told him that he had strangled a woman named
Rene at his sister’s house after having sex with her
because the woman was being loud and demanding
money. According to Moore, the defendant told him
that he left the woman’s body on a road in Waterford
and that he would not have killed her if he had known
that she was pregnant. Wilson, the defendant’s former
girlfriend and the mother of two of his children,
informed the police that, in 1998, in a very emotional
state, the defendant had confessed to killing a woman
after having sex with her. According to Wilson, the
woman had demanded payment for the sexual encoun-
ter, and the defendant did not want to pay, so they
fought, and he killed her.
When questioned about the Comeau murder, the
defendant initially denied knowing Comeau but eventu-
ally admitted that she had been a frequent visitor at the
home of his father, Dickie Anderson, Sr., in the city of
Norwich, and that, on the day of her death, he had
exposed his penis to her in a bathroom at his father’s
house. The defendant described himself to the police
as a ‘‘trick artist’’ who traded crack cocaine for sex
with prostitutes. The defendant denied killing Comeau,
however, or ever having had sexual intercourse with
her. Two witnesses, Tanya Anderson, the defendant’s
sister, and Moore, the defendant’s former cellmate,
implicated the defendant in Comeau’s murder. Moore
reported to the police that the defendant had told him
that a woman with whom he was having sexual relations
overdosed on drugs while they were together and that
he disposed of her body in Franklin. Tayna Anderson
reported to the police that, after Comeau’s murder, the
defendant told her that he had been sexually intimate
with a woman whose body was found on a road in
Norwich and that he had met the woman at their
father’s house.
On June 1, 2010, the defendant was arrested and
charged in an information with the murder of Pelle-
grino. On September 1, 2010, the defendant was charged
in a separate information with the murder of Comeau.
On November 21, 2011, the defendant filed a motion
for a speedy trial in the Comeau case, and, shortly
thereafter, on December 3, 2011, the state filed a motion
to consolidate the cases based, in part, on the cross
admissibility of the evidence. In a memorandum of law
in support of its motion, the state argued, inter alia,
that the evidence would be cross admissible to prove
the identity of the killer based on the signature nature
of the crimes and to show a common scheme or plan.
Specifically, the state maintained that the murders
shared a sufficient number of unique characteristics to
support an inference that the same person had commit-
ted both crimes in furtherance of an overall plan,
namely, ‘‘to murder prostitutes and display their dead
bodies for others to find.’’
With respect to the signature nature of the crimes,
the state’s memorandum of law set forth twenty-nine
similarities between the murders, which may be sum-
marized as follows: the crimes took place ten months
apart in New London County during warm weather
months; the victims’ naked bodies were found in the
travel portion of a rural roadway approximately fifteen
miles apart; the victims knew each other; there was
evidence of posing in both cases; both victims were
Caucasian and had dark hair; both victims were prosti-
tutes who had recently been released from prison; no
clothing or jewelry was found in the vicinity of either
body; both victims were known to use crack cocaine
and had cocaine in their blood at the time of death;
both victims resided in New London County; both vic-
tims knew the defendant; both victims were killed on
a week night; both victims were killed in a location
other than where their bodies were discovered; both
victims were strangled with a ligature; both victims
sustained occipital trauma; and the defendant admitted
to having sexual encounters with both victims on the
day of their murders.
In an oral ruling following a hearing on the state’s
motion for consolidation, the trial court granted the
motion. Thereafter, the court granted the defendant’s
motion for articulation of the ruling and issued a memo-
randum of decision explaining its reasons for consol-
idating the cases. In its memorandum of decision, the
court stated that joinder was appropriate under the
factors set forth in State v. Boscarino, 204 Conn. 714,
720–24, 529 A.2d 1260 (1987),2 because the cases
involved easily distinguishable factual scenarios, the
trial would not be long or overly complex, and the
allegations in both cases, although serious, were not
so shocking or brutal that there was any risk that one
case would be tainted by the shocking or brutal nature
of the other. The court further concluded that joinder
was also appropriate because the evidence was cross
admissible to prove the defendant’s identity based on
the signature nature of the crimes. In support of this
conclusion, the court explained that ‘‘[e]ach of the char-
acteristics of the crimes, when viewed in isolation,
[was] not necessarily distinctive. When viewed as a
whole, however, the characteristics reveal[ed] a distinc-
tive combination of factors, one that strongly sug-
gest[ed] a modus operandi inherent in the activities of
but one perpetrator.’’
On January 16, 2012, the defendant filed a motion to
sever the trials in light of this court’s then recent deci-
sion in State v. Payne, 303 Conn. 538, 34 A.3d 370
(2012),3 in which we overruled our prior case law adopt-
ing a presumption in favor of joinder in criminal cases
and imposed on the state the burden of establishing
either that the evidence was cross admissible or that
the defendant would not be unduly prejudiced by join-
der upon application of the Boscarino factors. See id.,
547–50. At the hearing on the defendant’s motion to
sever, defense counsel argued that Payne required the
court to conduct an adversarial hearing, similar to a
suppression hearing, at which the state would be
required to prove by a preponderance of the evidence
that the evidence was cross admissible. The trial court
rejected this contention, stating that Payne did not ‘‘in
any way indicate that [the court] needs [to hold] an
evidentiary hearing before it can [join cases for trial].
. . . I see nothing in the case that mandates an eviden-
tiary hearing. It would be virtually a trial before a trial.’’
The court further stated that, although Payne had elimi-
nated the presumption in favor of joinder, there was
nothing in Payne to suggest that this court intended to
alter the customary procedure by which joinder ordi-
narily occurs, which, the court observed, the state had
followed in the present case by filing a memorandum
of law and an accompanying offer of proof in support
of its motion for consolidation. The court therefore
concluded: ‘‘Clearly, the presumption of joinder no
longer exist[s] [after] . . . Payne . . . . Payne . . .
expressly state[s] that . . . on a motion [for] join[der],
the state has the burden . . . to show by a preponder-
ance of the evidence either that the evidence in the
case is cross admissible or that the defendant would
not be unfairly prejudiced in regard to the Boscarino
factors. I’ll state for the record that [the] court has
found that the state has, in fact, by a preponderance
of the evidence, established both that the evidence is
cross admissible and that there is no unfair prejudice
in regard to the Boscarino factors.’’
After a joint trial of both the Comeau and Pellegrino
cases, the jury found the defendant guilty of the Pelle-
grino murder but could not reach a verdict in the Com-
eau case. The trial court rendered judgment in accor-
dance with the jury verdict in the Pellegrino case and
declared a mistrial in the Comeau case.
On appeal from the judgment of conviction in the
Pellegrino case, the defendant claims that the trial court
failed to hold the state to its burden, under State v.
Payne, supra, 303 Conn. 547–50, of establishing either
that the evidence in the two cases was cross admissible
or that the defendant would not be unduly prejudiced
by joinder of the cases under the Boscarino factors.
Although the defendant’s claim with respect to the cross
admissibility issue is not crystal clear, he appears to
argue that the state was required but failed to adduce
actual testimony to provide a proper evidentiary basis
for its offer of proof. The defendant argues that, instead
of making such a showing, the state submitted a memo-
randum of law containing ‘‘[a] laundry list of alleged
similarities between the two cases,’’ unsupported by
any testimony or evidence, and, further, that the trial
court should not have treated that submission as a
‘‘legitimate’’ offer of proof. We agree with the state that
its offer of proof was sufficient for purposes of its claim
that the evidence was cross admissible and that the
trial court did not abuse its discretion in granting the
state’s motion for consolidation on the basis of the
cross admissibility of the evidence. We therefore need
not engage in an evaluation of the Boscarino factors.
We first address the defendant’s contention that the
trial court improperly treated the state’s memorandum
of law in support of its motion for consolidation as an
offer of proof for purposes of deciding that motion.
We previously have stated that ‘‘[o]ffers of proof are
allegations by the attorney . . . in which he represents
to the court that he could prove them if granted an
evidentiary hearing. . . . The purpose of an offer of
proof has been well established by our courts. First, it
informs the court of the legal theory under which the
evidence is admissible. Second, it should inform the
trial [court] of the specific nature of the evidence so that
the court can judge its admissibility. Third, it creates a
record for appellate review. . . . Additionally, an offer
of proof should contain specific evidence rather than
vague assertions and sheer speculation.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Marti-
nez, 295 Conn. 758, 771, 991 A.2d 1086 (2010). As we
previously indicated, in its memorandum of law the
state identified twenty-nine factual similarities between
the two murders, which it argued were sufficiently
unusual and distinctive as to warrant a reasonable infer-
ence that the same person had committed both crimes.
Contrary to the defendant’s contention, these alleged
similarities were not ‘‘vague assertions’’ based on ‘‘sheer
speculation.’’ Indeed, a review of the record reveals
that all of the allegations were taken directly from the
arrest warrant affidavits in both cases and that those
affidavits set forth in considerable detail the evidence
that the police had collected over the course of their
nearly ten year investigation into the murders of both
Pellegrino and Comeau, including the medical examin-
er’s findings, crime scene evidence, witness statements,
and the defendant’s own incriminating statements. This
information, together with the state’s arguments in sup-
port of joinder, was more than sufficient to apprise the
court of the specific nature of the evidence that the
state intended to present at trial, and why, in the state’s
view, the evidence in the two cases was, in fact,
cross admissible.
To the extent that the defendant contends that an
offer of proof to establish cross admissibility under
Payne must be presented by way of an evidentiary
hearing at which the state presents actual testimony,
we reject that claim. As we have explained, ordinarily,
an offer of proof, although evidentiary in nature, may
consist of statements or submissions by counsel, and
that approach was fully adequate for purposes of the
present case. Of course, if a defendant were to call into
question the factual validity of the state’s offer of proof,
the trial court would be required to address the disputed
issue and, if the court deemed it necessary to resolve
the dispute, conduct an evidentiary hearing for that
purpose. No such factual challenge to the state’s offer
of proof, however, occurred in the present case.4
We turn, therefore, to the defendant’s claim that the
trial court abused its discretion in granting the state’s
motion for consolidation because the state failed to
demonstrate that the evidence was cross admissible.
The following legal principles guide our analysis of this
claim. ‘‘[I]n deciding whether to [join informations] for
trial, the trial court enjoys broad discretion, which, in
the absence of manifest abuse, an appellate court may
not disturb.’’ (Internal quotation marks omitted.) State
v. LaFleur, 307 Conn. 115, 158, 51 A.3d 1048 (2012).
‘‘[W]hen charges are set forth in separate informations,
presumably because they are not of the same character,
and the state has moved in the trial court to join the
multiple informations for trial, the state bears the bur-
den of proving that the defendant will not be substan-
tially prejudiced by joinder pursuant to Practice Book
§ 41-19.’’ State v. Payne, supra, 303 Conn. 549–50. On
appeal, however, the burden shifts to the defendant ‘‘to
show that joinder was improper by proving substantial
prejudice that could not be cured by the trial court’s
instructions to the jury . . . .’’ (Internal quotation
marks omitted.) State v. LaFleur, supra, 158.
In Payne, ‘‘[t]his court . . . revisited the principles
that govern our review of a trial court’s ruling on a
motion for joinder. As we clarified in [Payne], a trial
court’s ruling on a motion for joinder of multiple infor-
mations for trial implicates Practice Book § 41-19 . . .
[which] provides that [t]he 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. A
long line of cases establishes that the paramount con-
cern is whether the defendant’s right to a fair trial will
be impaired. Therefore, in considering whether joinder
is proper, this court has recognized that, [when] evi-
dence of one incident would be admissible at the trial
of the other incident, separate trials would provide the
defendant no significant benefit. . . . Under such cir-
cumstances, the defendant would not ordinarily be sub-
stantially prejudiced by joinder of the offenses for a
single trial. . . . Accordingly, we have found joinder
to be proper [when] the evidence of other crimes or
uncharged misconduct [was] cross admissible at sepa-
rate trials. . . . [When] evidence is cross admissible,
therefore, our inquiry ends.’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.) Id.,
154–55; see also State v. Crenshaw, 313 Conn. 69, 84,
95 A.3d 1113 (2014) (‘‘[w]e consistently have found join-
der to be proper if we have concluded that the evidence
of other crimes or uncharged misconduct would have
been cross admissible at separate trials’’ [internal quota-
tion marks omitted]).
‘‘As a general rule, evidence of guilt of other crimes
is inadmissible to prove that a defendant is guilty of
the crime charged against him. . . . The rationale of
this rule is to guard against its use merely to show
an evil disposition of an accused, and especially the
predisposition to commit the crime with which he is
now charged. . . . The fact that such evidence tends
to prove the commission of other crimes by an accused
does not render it inadmissible if it is otherwise relevant
and material. . . . Such evidence is admissible for
other purposes, such as to show intent, an element
[of] the crime, identity, malice, motive or a system of
criminal activity. . . .
‘‘Our analysis of whether evidence of the uncharged
misconduct is admissible is two-pronged. First, the evi-
dence must be relevant and material to at least one of
the circumstances encompassed by the exceptions to
the propensity rule. Second, the probative value of such
evidence must outweigh the prejudicial effect of the
other crimes evidence.’’ (Citations omitted; internal
quotation marks omitted.) State v. Figueroa, 235 Conn.
145, 161–62, 665 A.2d 63 (1995).
‘‘The first threshold for the use of evidence of other
crimes or misconduct on the issue of identity is that
the methods used be sufficiently unique to warrant a
reasonable inference that the person who performed
one misdeed also did the other. . . . [I]n proffering
other crime evidence [t]o prove other like crimes by
the accused so nearly identical in method as to earmark
them as the handiwork of the accused . . . much more
is demanded than the mere repeated commission of
crimes of the same class, such as repeated burglaries
or thefts. The device used must be so unusual and
distinctive as to be like a signature. . . . In order to
determine if this threshold criterion for admissibility
has been met, [the court] must examine the proffered
evidence and compare it to the charged offenses.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
163.
Applying these principles to the present case, we
have no hesitation in concluding that the trial court did
not abuse its discretion in joining the Pellegrino and
Comeau cases for trial based on the cross admissibility
of the evidence in each case. The similarities between
the victims (both women were prostitutes and drug
users), the geographic and temporal proximity of the
murders (the crimes were committed ten months apart
within a fifteen miles radius), the victims’ cause of death
(both women were strangled manually and with a liga-
ture), and the extremely unusual and degrading manner
in which the victims’ bodies were disposed of after
death (completely naked in the travel portion of a rural
roadway), are, standing alone, distinctive enough char-
acteristics to warrant an inference that the same person
committed both crimes. Indeed, what the killer did with
the victims’ bodies after the murders—placing them in
the middle of a road in the apparent hope that they
would be discovered immediately—is itself sufficiently
unusual as to suggest a type of signature. In addition, H.
Wayne Carver II, the chief medical examiner, testified at
trial that, out of the more than 6000 autopsies he has
performed or supervised in his career, he could recall
only three cases in which the victims presented with
evidence of both manual and ligature strangulation, and
the Pellegrino and Comeau murders were two of those
cases. Moreover, Edward T. McDonough, the former
deputy chief medical examiner and the medical exam-
iner who performed the autopsies on both Pellegrino
and Comeau, similarly testified that the Pellegrino and
Comeau murders were the only cases he could recall
that had involved both manual and ligature strangu-
lation.
As the state maintains, however, numerous other
commonalities bring into sharp relief the signature
nature of the crimes. As we previously indicated, both
women were murdered shortly after being released
from prison, both women were killed in a location other
than where their bodies were found, both women sus-
tained occipital trauma, both women had ingested
cocaine immediately prior to death, no clothing or jew-
elry was found in the vicinity of either body, there was
evidence that both women frequented the home of the
defendant’s father, and the defendant admitted to hav-
ing had a sexual encounter with each victim on the
day of each murder. These additional factors, when
considered together with the aforementioned factors,
underscore the propriety of the trial court’s decision
to join the cases for trial.
Accordingly, we find no merit in the defendant’s con-
tention that the trial court abused its discretion in join-
ing the cases for trial because some of the similarities
between the murders—for example, both women were
prostitutes, both women used crack cocaine, and both
women resided in New London County—were not suffi-
ciently unique or distinctive as to warrant an inference
that the murders were committed by the same person.
Indeed, even if we agreed with the defendant’s charac-
terization of this evidence as commonplace, ‘‘[t]he fact
that some of the similarities between the offenses [are]
. . . relatively common occurrences when standing
alone does not . . . negate the uniqueness of the
offenses when viewed as a whole. It is the distinctive
combination of actions [that] forms the signature or
modus operandi of the crime . . . and it is this criminal
logo [that] justifies the inference that the individual
who committed the first offense also committed the
second.’’ (Citations omitted; internal quotation marks
omitted.) State v. Figueroa, supra, 235 Conn. 164. We
therefore conclude that, even though some of the
shared characteristics of the murders were not espe-
cially unique when viewed in isolation, the distinctive
combination of elements fully justified an inference that
the same person had committed both crimes.
We also find no merit in the defendant’s contention
that the trial court abused its discretion in consolidating
the cases because many of the alleged similarities were
not proven at trial. Specifically, the defendant argues
that it was never proven that Pellegrino and Comeau
knew one another, that Comeau knew the defendant,
that Comeau’s body was posed or in the process of
being posed at the time of discovery, that the murders
occurred in warm weather months, that the bodies were
discovered in rural areas, or that the victims both had
dark hair. We do not agree with the defendant’s charac-
terization of the evidence presented at trial. As the state
maintains, and as a review of the record confirms, the
state adduced evidence of all but two of the alleged
similarities, namely, that the victims knew one another
and that they had dark hair.5 But even if the state’s
evidence fell short in some respects, it would not alter
our conclusion regarding the propriety of the trial
court’s decision to join the cases for trial because, as we
recently have explained in addressing a similar claim, ‘‘it
is well established that the trial court, in making the
discretionary, pretrial decision to join multiple cases,
rules on whether the evidence could be admissible, not
whether the evidence actually is admitted. . . .
Because the decision to join two cases occurs prior to
the introduction of evidence, the trial court must make
its decision on the basis of potential admissibility rather
than what actually transpires at trial. It would not make
sense for a reviewing court to overturn the trial court’s
discretionary, pretrial decision to consolidate solely on
the ground that the parties did not ultimately introduce
the evidence at trial.’’ (Citation omitted; emphasis omit-
ted.) State v. Crenshaw, supra, 313 Conn. 89. Similarly,
it would make no sense for this court to set aside a
trial court’s pretrial decision to consolidate solely
because the state ultimately failed to prove some of the
facts alleged to be cross admissible when the evidence
that was adduced was sufficient to support the determi-
nation that the evidence was cross admissible.
We also disagree with the defendant that the trial
court abused its discretion in joining the cases for trial
because some of the alleged similarities were duplica-
tive of one another. Specifically, the defendant argues
that the state’s separate allegations that the homicides
took place approximately fifteen miles apart, that they
took place in the same county, and that both victims
resided in New London County, are really just another
way of saying that the homicides occurred in ‘‘roughly
the same geographic area.’’ (Internal quotation marks
omitted.) The defendant also argues that the allegations
that both victims ‘‘ ‘were known to use crack cocaine’ ’’
and ‘‘ ‘had cocaine in their blood when their bodies
were found’ ’’ are also duplicative because ‘‘the use of
cocaine . . . [is] a necessary condition of . . . having
cocaine in one’s system . . . .’’ We do not agree that
these allegations are duplicative. As the state maintains,
it does not necessarily follow that a victim who uses
crack cocaine will also have cocaine in her system at
the time of her death. The fact that she does, however,
is relevant not only for what it reveals about the victim’s
drug habits, but also for what it reveals about the modus
operandi of the killer, in particular, the methods he may
use to target or lure his victims. Similarly, the fact that
both Pellegrino’s and Comeau’s bodies were found
approximately fifteen miles apart and the fact that they
both resided and were killed in New London County
are not necessarily duplicative in the context of proving
a signature crime. Although these facts may seem to
support but a single proposition concerning geographic
proximity, each one adds to the distinctive mosaic of
common occurrences that ultimately combine to justify
the inference of a signature crime. Finally, even if we
were to agree that one or more of the allegations con-
tained in the state’s offer of proof were duplicative,
the other nonduplicative allegations were sufficient to
justify an inference of modus operandi. Accordingly,
the defendant cannot prevail on his claim that the trial
court abused its discretion in consolidating the Pelle-
grino and Comeau cases for trial on the basis of the
cross admissibility of the evidence in the two cases.6
The judgment is affirmed.
In this opinion the other justices concurred.
1
The defendant appealed directly to this court from the judgment of the
trial court pursuant to General Statutes § 51-199 (b).
2
In Boscarino, this court ‘‘identified several factors that a trial court
should consider in deciding whether a severance [or denial of joinder]
may be necessary to avoid undue prejudice resulting from consolidation of
multiple charges for trial. These factors include: (1) whether the charges
involve 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.
. . . If any or all of these factors are present, a reviewing court must decide
whether the trial court’s jury instructions cured any prejudice that might
have occurred.’’ (Internal quotation marks omitted.) State v. LaFleur, 307
Conn. 115, 156, 51 A.3d 1048 (2012).
3
Although our decision in Payne was officially released on January 24,
2012, and the defendant filed his motion, which was based on that decision,
one week earlier, on January 17, 2012, a preliminary version of our decision
in Payne had been released to the public on the Judicial Branch website
on or before January 17, 2012.
4
In Payne, we explained that the state must ‘‘prov[e], by a preponderance
of the evidence,’’ either that the evidence is cross admissible or that the
defendant will not be unfairly prejudiced in accordance with Boscarino.
State v. Payne, supra, 303 Conn. 550. The defendant suggests that this
language supports his contention that an evidentiary hearing is required
whenever the state seeks to join multiple informations for trial. The defen-
dant misapprehends our holding in Payne, in which we concluded only that
the state bears the burden of establishing that joinder is proper. See id.
5
We note, however, that there was evidence that both Pellegrino and
Comeau had frequented the home of the defendant’s father.
6
We note that the defendant also claims that the trial court improperly
denied his motion to dismiss in the Comeau case for lack of a speedy trial.
As we previously indicated, the trial court declared a mistrial in the Comeau
case after the jury was unable to reach a verdict in that case. Although
neither party has raised the issue of whether the trial court’s denial of the
defendant’s motion to dismiss constitutes a final judgment for purposes of
appeal, we must address the issue because it implicates this court’s subject
matter jurisdiction. See, e.g., State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566
(1983) (‘‘[b]ecause our jurisdiction over appeals . . . is prescribed by stat-
ute, we must always determine the threshold question of whether the appeal
is taken from a final judgment before considering the merits of the claim’’).
It is well established that ‘‘[t]he principal statutory prerequisite to invoking
our jurisdiction is that the ruling from which an appeal is sought must
constitute a final judgment. See General Statutes §§ 51-197a and 52-263.
. . . We cannot hear appeals from preliminary rulings of the trial court
. . . . Piecemeal appeals, particularly in criminal proceedings, are not only
outside [of] our jurisdiction, but also contravene the long-standing case law
of this state and the United States.’’ (Internal quotation marks omit-
ted.) State v. Rhoads, 122 Conn. App. 238, 243, 999 A.2d 1, cert. denied, 298
Conn. 913, 4 A.3d 836 (2010). Moreover, it is well established that, ‘‘[i]n a
criminal proceeding, there is no final judgment until the imposition of a
sentence.’’ (Emphasis omitted; internal quotation marks omitted.) Id. This
court previously has recognized that the denial of a motion to dismiss for
lack of a speedy trial is not a final judgment for purposes of appeal. See, e.g.,
State v. Fielding, 296 Conn. 26, 36, 994 A.2d 96 (2010); State v. Spendolini, 189
Conn. 92, 93, 454 A.2d 720 (1983); State v. Lloyd, 185 Conn. 199, 207, 440
A.2d 867 (1981). Although some narrowly defined exceptions to the final
judgment rule exist in the civil context, ‘‘[w]e have been disinclined . . .
to extend the privilege of an interlocutory appeal in criminal cases beyond
the double jeopardy circumstance. This reluctance stems principally from
our concern that to allow such appeals would greatly delay the orderly
progress of criminal prosecutions in the trial court . . . .’’ (Internal quota-
tion marks omitted.) State v. Alvarez, 257 Conn. 782, 796, 778 A.2d 938
(2001). In the present case, the defendant does not explain why he is entitled
to review of his speedy trial claim in the absence of a final judgment in the
Comeau case, and, accordingly, we adhere to our prior practice of declining
to review such claims for want of subject matter jurisdiction.
We note, however, that the defendant also argues that the alleged speedy
trial violation in the Comeau case caused him prejudice in the Pellegrino
case, presumably because, if there had been no such purported speedy trial
violation, the cases would have been tried separately, and, consequently,
the jury in the Pellegrino case would never have learned about the Comeau
murder. The defendant’s argument fails to account for the fact that the cases
were tried together because the evidence would have been cross admissible
if they had been tried separately. Accordingly, even if there was a speedy
trial violation in the Comeau case, it could not possibly have prejudiced the
defendant in the Pellegrino case because the evidence relating to Comeau’s
murder nevertheless would have been admissible in the Pellegrino case. Cf.
State v. Crenshaw, supra, 313 Conn. 89 (when evidence is cross admissible,
joinder does not prejudice defendant ‘‘as the proper remedy for improper
joinder is the granting of two new, separate trials, during which the parties
ostensibly would be free to introduce the contested evidence in both cases
in any event’’).