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State v. Perez

Supreme Court of Connecticut

July 26, 2016


          Argued Date October 13, 2015

          Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, Michael Gailor, executive assistant state’s attorney, and Christopher Alexy, senior assistant state’s attorney, for the appellant (state).

          Hubert J. Santos, with whom were Jessica M. Santos and Trent A. LaLima, for the appellee (defendant).

          Rogers, C. J., and Palmer, Zarella, McDonald, Robinson and Vertefeuille, Js.


          PALMER, J.

         This appeal raises the question of whether the trial court’s refusal to sever two unrelated criminal cases brought against the defendant, Eddie A. Perez, previously joined for trial for purposes of judicial economy, improperly compromised the defendant’s right to choose whether to testify on his own behalf in one of the cases but to remain silent in the other. The Appellate Court concluded that it did, reversed the judgments of conviction and remanded the cases to be retried in two separate proceedings.[1] State v. Perez, 147 Conn.App. 53, 93, 124, 80 A.3d 103 (2013). Thereafter, the state, on the granting of certification, appealed, contesting the propriety of this determination.[2] It contends, inter alia, that the defendant’s first request to sever the cases was accompanied by an inadequate offer of proof as to his need to testify and that a second request, although sufficiently detailed, was untimely. We conclude that the defendant timely made a compelling showing that he had important testimony to give in one case and a strong need to refrain from testifying in the other and, therefore, that the trial court had abused its discretion in declining to sever the cases.[3]Accordingly, we affirm the judgment of the Appellate Court.

         Following a jury trial, the defendant, the former mayor of the city of Hartford (city), was convicted of bribe receiving, fabricating evidence and larceny by extortion for actions he had taken while in office.[4] The state had charged the defendant with these offenses in two separate informations but, before trial, moved to consolidate the charges. The trial court granted the state’s motion to consolidate over the defendant’s objection, and the cases were tried together before a single jury.

         The Appellate Court’s opinion provides a detailed rendition of the facts underlying the defendant’s convictions, which need not be repeated in this opinion. See Id., 66–77, 82–88. For present purposes, however, it is necessary to briefly summarize the facts underlying the case involving the bribery and fabrication charges (bribery case).[5] The defendant was convicted of bribe receiving for accepting free home improvement services from a contractor, Carlos Costa, in exchange for the defendant’s assisting Costa in connection with certain problems that Costa had encountered while his company, USA Contractors, performed a construction contract for the city. Specifically, the defendant assisted Costa by requesting that the city treasurer expedite some payments due to USA Contractors and by interfering with efforts of the Hartford Department of Public Works (department) to manage the construction contract and to call USA Contractors’ performance bond due to insufficient performance, an action that would have removed USA Contractors from the city construction project and impaired its ability to do business with the city in the future. The defendant also was convicted of fabricating evidence in connection with his request that Costa create a bill for the home improvement work only when an investigation into the propriety of that work had commenced or was imminent.

         The state’s presentation of evidence in the bribery case, which preceded its presentation of evidence in the larceny by extortion case (extortion case), included the following. Department employees and outside consultants the department hired testified that USA Contractors had performed the construction contract with the city poorly and behind schedule, and that it had submitted baseless claims for additional payments. At some point, at the defendant’s behest, the city’s director of capital projects became involved to mediate issues that arose between the department and USA Contractors. Ultimately, because performance remained inadequate, the foregoing individuals together decided to contact USA Contractors’ bonding company and to report the performance issues for the purpose of calling the bond and terminating the contract between the city and USA Contractors. When Costa informed the defendant that a letter to this effect had been sent, the defendant became upset. Thereafter, the director of capital projects wrote another letter to the bonding company rescinding the first letter, without seeking the approval of the others involved in the earlier decision. USA Contractors remained on the job and finished the project well beyond the time period contemplated by the contract with no further action taken on its performance bond.

         Costa testified for the state. He agreed that he had sought the defendant’s assistance with the city’s expeditious payment of certain amounts due under the construction contract and with the rescission of the department’s letter to USA Contractors’ bonding company, but, in his view, those actions were wholly justified because he was being treated unfairly and also had experienced problems with late payments by the city. He attributed many of the problems and delays associated with the project to the department, and others to circumstances that were beyond his control. Costa since had sued the city for breach of the construction contract, seeking substantial damages. He believed that the consultants the department had hired operated under a conflict of interest due to their prior involvement in the design of the project. Costa, who had a history of successfully performing other work for the city, had been acquainted with the defendant for a considerable period of time prior to any of the events in question, and considered him a friend. In addition, Costa previously had campaigned and raised funds for the defendant.

         Damningly to the defendant, however, Costa also testified that, around the time he sought assistance from the defendant for the problems he was experiencing with the construction project, he was performing kitchen and bathroom renovations at the defendant’s private residence without receiving any payment for such work. He confirmed that he never prepared a quote, took a deposit or expected to get paid for those renovations. Costa explained that he performed this work for free because the defendant was the mayor and his friend, he considered the work to be a cost of doing business with the city and he believed it would provide him with greater access to the defendant. According to Costa, the defendant did not begin to approach him about a bill until approximately one year after the work was completed, when rumors about the work began circulating in the community. Costa could not immediately provide the defendant with a bill because he had not kept records for the renovation work, believing that he would not be paid for it. He gave the defendant a bill several months later, however, and the defendant paid Costa several months after that.

         A number of materials suppliers and construction workers testified to provide detail about the work performed at the defendant’s residence and its substantial cost. Their testimony established that the amount the defendant ultimately paid for the home renovations was well below market rate. An employee of The Home Depot (Home Depot) testified that the defendant and his wife, prior to the work being done at their residence, had entered into an agreement with Home Depot to provide similar services but thereafter cancelled that agreement, purportedly because they had received a lower offer. The defendant’s executive assistant testified that the defendant would at times meet or speak with Costa when Costa visited or called the defendant’s office but that, at other times, he was not available to Costa. The city treasurer confirmed that the defendant’s office requested several times that USA Contractors receive expedited payment for its construction work, and that checks were issued after auditing protocols ensured that payment was proper. A city employee testified that building permits were not issued for the work performed at the defendant’s home prior to its completion. A city merchant testified that he had heard from a worker at the defendant’s home that the work there had been done for free and without permits, and that he thereafter began telling many people in the community, including the defendant’s political opponents, about what he had heard.

         Finally, Michael Sullivan, a former investigator with the public integrity unit of the Office of the Chief State’s Attorney, testified about the investigation that had led to the defendant’s arrest. Sullivan had arranged to meet with the defendant and to interview him about the events underlying the extortion case but, at some point, heard the rumors about Costa’s free home improvement work for the defendant. The interview occurred with the city’s corporation counsel also in attendance. At the conclusion of the interview, Sullivan asked the defendant whether USA Contractors had performed bathroom and kitchen renovations for him, and the defendant replied that it had. The defendant falsely claimed that he had paid for the work approximately one and one-half years prior to the interview, which was fairly close to the time the renovation work had been completed. Sullivan testified that, at this point in the interview, the defendant became noticeably nervous. The defendant agreed to provide Sullivan a copy of the cancelled check with which he purportedly had paid, but, after some delay, the defendant ultimately provided documentation indicating that he had applied for a home equity loan hours after he had met with Sullivan and subsequently paid for the renovation work with the proceeds of that loan. The defendant also provided the invoice Costa had prepared for the work several months beforehand, which Sullivan determined to be fabricated in that it was created after the fact and lacked supporting documentation. Sullivan’s investigation also yielded records of telephone or cell phone calls between Costa and the defendant around the time USA Contractors received expedited payments from the city and the time the second letter was sent to USA Contractors’ bonding company. Sullivan also testified that he secretly had recorded his interview with the defendant, and the recording was introduced into evidence.[6]

         The defense case largely was presented through cross-examination of the state’s witnesses. Otherwise, the defendant’s chief of staff testified for the defense, explaining that the defendant’s wife had encountered a serious medical issue when the renovation work was being performed at the defendant’s home, that she underwent multiple surgeries at different hospitals in the six month period thereafter, and that the defendant experienced difficulties in getting the family’s health insurer to pay all of the resulting bills. He testified further that the defendant was very concerned and distracted by these occurrences, and that he also was busy with his mayoral duties. The chief of staff confirmed that the defendant and Costa were acquainted prior to the events in question due to Costa’s campaign and fund raising assistance. He also testified that the defendant, as a general matter, prioritized supporting minority run businesses such as Costa’s and would assist in getting them paid by the city. As to the bribery case, the only other witness whom the defense called was the construction worker who purportedly reported the free and unpermitted work being done at the defendant’s residence. When called to the stand, he denied having done so and also stated that, in the entire time he had been at the defendant’s residence, he had seen the defendant there only once.

         In his memorandum in opposition to the state’s pre-trial motion to consolidate, the defendant briefly mentioned that consolidation would affect his ability to exercise his right to testify but did not elaborate. On May 18, 2010, near the end of the state’s presentation of its evidence in the bribery case, defense counsel notified the court and the assistant state’s attorneys (state) that, when the state concluded its evidence in that case, he would be moving to sever the two cases on the ground that the defendant wished to testify in the bribery case but not in the extortion case. Defense counsel stated that this decision was based on his assessment of Costa as a witness for the prosecution, an assessment he could not have made prior to trial. The state indicated that it was opposed to severance as ‘‘not appropriate, ’’ arguing that the defendant, in previously arguing against consolidation, had not claimed that he wanted to testify in one case but not the other. In the state’s view, the defendant had failed to make the determination as to whether he would testify in a timely fashion, and, therefore, severance was not warranted. The court, for its part, agreed that ‘‘[i]t’s something that probably should have been raised and highlighted a lot earlier.’’

         On May 20, 2010, at the close of the state’s bribery case, the defendant filed a motion to sever pursuant to Practice Book§ 41-18 (first motion to sever). In addition to reiterating his previous arguments raised in his memorandum in opposition to the state’s motion to consolidate, which pertained to the Boscarino factors, [7] he expressly claimed that he was prejudiced substantially by the consolidation because he wished to testify in the bribery case but to exercise his constitutional right not to testify in the extortion case. In his first motion to sever, the defendant described the testimony that he would give in the bribery case as follows: (1) ‘‘[t]he defendant’s reasons for misleading . . . Sullivan during their initial interview on June 27, 2007’’; (2) ‘‘[h]ow . . . Costa became involved in the defendant’s home renovation project, details regarding when [the defendant] first approached . . . Costa and requested a bill, the number of times that [the defendant] personally followed up with Costa regarding his request, and the reasons for his delay in payment’’; (3) ‘‘[t]he context of [the defendant’s] involvement in the [second] letter . . . [to USA Contractors’ bonding company] regarding the [city construction] project’’; and (4) ‘‘[t]he context of [the defendant’s] involvement in the issuing of [expedited payments] from the [city] treasurer . . . to USA Contractors.’’ The defendant also contended in the first motion to sever that his ‘‘testimony on these points, at a minimum, will be absolutely critical for the jury’s complete assessment of both his intent, as well as interactions that he alone may have had with . . . Costa. Thus, [the defendant’s] ability to exercise his right to testify is critical because he is the sole source of information on these points.’’ The first motion to sever also provided reasons why the defendant did not wish to testify in the extortion case, namely, that his version of the underlying facts in that case would be presented to the jury through his recorded interview with Sullivan, making his live testimony unnecessary, particularly since it would expose him to a risk of prejudicial cross-examination regarding uncharged misconduct that related only to the extortion case.[8]

         When the first motion to sever was argued on May 20, 2010, defense counsel reiterated that his assessment of the defendant’s need to testify in the bribery case had not crystallized until he had heard the state’s presentation of its evidence and could evaluate the credibility of the witnesses. According to defense counsel, it was then clear that the defendant had to testify in order to have a chance of acquittal in the bribery case. The state, in response, argued that Connecticut case law indicated that motions to sever based on a defendant’s wish to testify selectively should be raised pretrial, and that the defendant should have made his argument in this regard at the time of the state’s motion to consolidate. In the state’s view, the defendant was making an improper and untimely ‘‘attempt . . . to control the course of the case, ’’ and, moreover, it was unnecessary for the defendant to testify because the matters he had identified had been addressed adequately on cross-examination of various witnesses. After a colloquy between the court and counsel regarding the fact that our jurisprudence, at the time, supported a presumption in favor of joinder, [9] the court rejected the defendant’s claim that his constitutional right to testify could outweigh the interest in judicial economy. Notably, the court never determined that the defendant’s testimonial proffer was inadequate for it to balance those two interests, nor did it remark on the substance of that proffer.

         Thereafter, on June 9, 2010, following the state’s presentation of its evidence in the extortion case, the defendant renewed his arguments in a second motion to sever.[10] After a June 11, 2010 hearing at which counsel provided extensive detail as to the defendant’s planned testimony in the bribery case, [11] the trial court again declined to sever the cases, reasoning that the jury had been instructed repeatedly to consider the two cases separately and that the defendant remained free to testify in only one case if he so chose, with any cross-examination limited to the case about which he testified.

         On appeal to the Appellate Court, the defendant argued, inter alia, that the trial court’s denial of his motions to sever was improper because it constrained his right to testify; see State v. Perez, supra, 147 Conn.App. 93, 113; and the entire panel of that court hearing the case, although split on the question of whether the cases had been improperly joined, agreed See id, 113; id, 124–25 (Lavine, J, concurring) Specifically, the panel concluded that the trial court’s refusal to sever the cases midtrial had compromised the defendant’s ability to testify in the bribery case, causing him substantial prejudice Id., 113; id, 124–25 (Lavine, J, concurring). We agree with the Appellate Court that the trial court abused its discretion in declining to sever the cases because the defendant’s first motion to sever was filed timely and constituted a compelling showing that he had important testimony to give in one case and a strong need to refrain from testifying in the other.

         It long has been recognized that joinder of unrelated criminal charges can cause unfair prejudice when it ‘‘embarrasses or confounds an accused in making his defense.’’ (Internal quotation marks omitted.) Cross v. United States, 335 F.2d 987, 989 (D.C. Cir. 1964). For example, ‘‘[p]rejudice 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. His decision whether to testify will reflect a balancing of several factors with respect to each count: the evidence against him, the availability of defense evidence other than his testimony, the plausibility and substantiality of his testimony, [and] the possible effects of demeanor, impeachment, and cross-examination. But if the two charges are joined for trial, it is not possible for him to weigh these factors separately as to each count. If he testifies on one count, he runs the risk that any adverse effects will influence the jury’s consideration of the other count. Thus he bears the risk on both counts, although he may benefit on only one. Moreover, a defendant’s silence on one count would be damaging in the face of his express denial of the other. Thus he may be coerced into testifying on the count [on] which he wished to remain silent.’’ (Footnotes omitted.) Id.

         ‘‘[B]ecause of the unfavorable appearance of testifying on one charge while remaining silent on another, and the consequent pressure to testify as to all or none, the defendant may be confronted with a dilemma: whether, by remaining silent, to lose the benefit of vital testimony on one count, rather than risk the prejudice (as to either or both counts) that would result from testifying on the other. Obviously no such dilemma exists [when] the balance of risk and advantage in respect of testifying is substantially the same as to each count.’’ Baker v. United States, 401 F.2d 958, 976 (D.C. Cir. 1968).

         Undue prejudice will not invariably result from a decision to testify selectively. Consequently, ‘‘[a]n accused’s election to testify on some but not all of the charges on trial does not automatically require a severance.’’ (Internal quotation marks omitted.) State v. King, 187 Conn. 292, 304, 445 A.2d 901 (1982), overruled in part on other grounds by State v. Payne, 303 Conn. 538, 34 A.3d 370 (2012). Rather, the matter remains within the trial court’s discretion, ‘‘though a discretion within limits narrowly confined by the exigencies of the situation. In the end, it is incumbent [on] 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.’’ (Internal quotation marks omitted.) State v. King, supra, 304. Although ‘‘trial courts must be afforded reasonable latitude in exercising discretion in these matters, [it bears emphasis] that compromise of a defendant’s fundamental right to a fair trial free of undue prejudice as the quid pro quo for the mere expeditious disposition of criminal cases will not be tolerated.’’ People v. Lane, 56 N.Y.2d 1, 8, 436 N.E.2d 456, 451 N.Y.S.2d 6 (1982).

         In State v. Schroff, 198 Conn. 405, 408–409, 503 A.2d 167 (1986), we adopted the analysis that federal courts use when a criminal defendant contends that severance of the charges is necessary because he or she wishes to testify as to some charges but not as to others. Pursuant to that approach, ‘‘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 [a] 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.) Id., 409, quoting Baker v. United States, supra, 401 F.2d 977.

         We conclude that the trial court improperly denied the defendant’s first motion to sever because the motion was timely filed and his accompanying proffer, as to his need to testify in the bribery case, was sufficient to meet the foregoing standard. At that point in the proceedings, the defendant adequately demonstrated that his interest in testifying on his own behalf in the bribery case outweighed the considerations of judicial economy that had justified joinder at the outset of trial.

         The defendant was convicted of receiving a bribe pursuant to General Statutes § 53a-148 (a), which provides in relevant part: ‘‘A public servant . . . is guilty of bribe receiving if he solicits, accepts or agrees to accept from another person any benefit for, because of, or as consideration for his decision, opinion, recommendation or vote.’’ A distinguishing feature of the crime of bribery, with respect to the recipient of a bribe, is that it ‘‘requires intent . . . to be influenced in an official act . . . .’’ (Internal quotation marks omitted.) United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404, 119 S.Ct. 1402, 143 L.Ed.2d 576 (1999).[12] ‘‘In other words, for bribery there must be a quid pro quo-a specific intent to . . . receive something of value in exchange for an official act.’’ (Emphasis is original.) Id., 404–405. Stated otherwise, the benefit that the public official receives is ‘‘the prime mover or producer of [his or her] official act.’’ (Internal quotation marks omitted.) United States v. Strand, 574 F.2d 993, 995 (9th Cir. 1978). If direct evidence of the requisite intent is unavailable, it may be established, as it was in the present case, by circumstantial evidence. See, e.g., United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998). ‘‘The quid pro quo requirement is satisfied [as] long as the evidence shows a course of conduct of favors and gifts flowing to a public official in exchange for a pattern of official actions favorable to the donor.’’ (Emphasis in original; internal quotation marks omitted.) Id.

         Under the law governing bribery, it was essential for the state to prove, beyond a reasonable doubt, that the defendant had accepted a benefit from Costa, namely, free home improvement services. The state also needed to prove, beyond a reasonable doubt, that the defendant undertook one or more official acts, such as interfering with the department’s decisions to call USA Contractors’ bond and to remove USA Contractors from the job, or requesting that the city treasurer expedite payments due to USA Contractors, in exchange for that benefit. Stated otherwise, the state needed to show that the motivating force for the defendant’s taking of these actions was his receipt of a benefit from Costa, and not his independent judgment that the actions were a proper and warranted exercise of his mayoral authority.

         When the state rested in the bribery case, its evidence tended to show that (1) the defendant received substantial home improvement services from Costa, with whom he previously was friendly, without any advance payment or an agreed on price, (2) at various times in the two years that followed, the defendant assisted USA Contractors, Costa’s business entity, in getting paid and remaining on the city construction contract, despite USA Contractors’ questionable performance, (3) the defendant did not get a bill for the home improvement services until more than one year after they were completed, and that bill stated an amount that was below market cost for the services rendered, (4) the defendant did not pay the bill until several months later, after he was questioned by an investigator, and (5) the defendant, when questioned by that investigator, appeared nervous and falsely reported that he previously had paid for the services. Without an effective rebuttal by the defense, the state’s proof that the defendant had received a benefit from Costa in exchange for official acts was quite strong.

         We conclude that the defendant’s description in his first motion to sever of the testimony that he would give, when viewed against the foregoing evidence offered by the state, adequately enabled the trial court to weigh the defendant’s interestin testifying against the countervailing consideration of judicial economy and, moreover, that the trial court’s denial of the defendant’s request for severance at that point was an abuse of discretion that prejudiced the defendant substantially. To begin, it bears emphasis that the trial court, in denying the first motion to sever, did not state that the defendant’s testimonial proffer was in any way inadequate for it to engage in that balancing of interests, nor did it even comment on the substance of that proffer. Rather, the court appeared to deny the first motion to sever on the basis of untimeliness and general deference to the presumption in favor of joinder that existed at the time the cases were tried. Impairment of the choice whether to testify, however, is a recognized form of prejudice that may override that presumption in certain circumstances.[13] Under our rules of practice and jurisprudence, the defendant was entitled to request severance on this basis midtrial, and it was ‘‘incumbent [on] the ...

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