Argued
September 10, 2019
Procedural
History
Information,
in the first case, charging the defendant with the crimes of
breach of the peace in the second degree and failure to
appear in the second degree, and information, in the second
case, charging the defendant with the crimes of criminal
violation of a protective order, assault in the third degree
and breach of the peace in the second degree, brought to the
Superior Court in the judicial district of Waterbury,
geographical area number four, where the court, K.
Murphy, J., granted the state's motion for joinder;
thereafter, the matter was tried to the jury; verdicts and
judgments of guilty of two counts of breach of the peace in
the second degree and of criminal violation of a protective
order and assault in the third degree, from which the
defendant appealed to this court. Affirmed.
J.
Patten Brown, III, for the appellant (defendant).
Linda
F. Currie-Zeffiro, assistant state's attorney, with whom,
on the brief, were Maureen Platt, state's attorney, and
Marc Ramia, senior assistant state's attorney, for the
appellee (state).
Alvord, Devlin and Beach, Js.
OPINION
BEACH,
J.
The
defendant, Oterrio R. Brown, appeals from the judgments of
conviction, following a jury trial, of two counts of breach
of the peace in the second degree, and of violation of a
protective order and assault in the third degree. The
defendant claims that the court improperly (1) granted the
state's request for joinder of the two informations; (2)
allowed the state to use prejudicial language during the voir
dire process; and (3) denied the defendant's request for
a continuance. We disagree and affirm the judgments of the
trial court.
The
jury reasonably could have found the following facts. On
January 22, 2016, two police officers, Paul Calo and Kyle
Cosmos, were called to a location in Waterbury to respond to
a domestic disturbance. The officers found the defendant and
the victim at the scene.[1] The defendant had blood on his shirt
and a cut under his eye. When asked by Cosmos what had
occurred, the defendant responded that there had been an
altercation between him and the victim. The defendant further
explained that he believed that the victim was sending naked
photographs of himself to the defendant's wife, Grace
Quackenbush, so the defendant ‘‘kind of went at
him with clenched fist.'' After speaking with the
defendant, the officers observed a trail of blood that led
from the kitchen to the back hallway where the victim was
found. Cosmos testified that the victim had a swollen left
cheek and a bloody nose. The officers arrested the
defendant.[2] He was charged with breach of the peace in
the second degree, in violation of General Statutes §
53a-181 (a) (2), and, subsequently, a charge of failure to
appear in the second degree[3] in violation of General Statutes
§ 53a-173 (a) (1) was added.
At a
hearing on January 25, 2016, the trial court issued a
protective order. The defendant was ordered not to have
contact with the victim. The prohibition also included
refraining from assaulting, threatening, abusing, harassing,
following, or returning to the victim's home.
Approximately thirty minutes after the issuance of the
protective order, the defendant returned to the victim's
home. Shortly thereafter, the police received a call
regarding an incident at this location. Police found the
victim outside the house, screaming that the defendant had
just beaten him up. The officers also observed blood in the
snow and physical injuries to the victim, including a swollen
cheek and blood on his teeth. Calo testified that these
injuries were in addition to those that he had observed on
January 22, 2016.[4] The defendant was arrested and charged
with criminal violation of a protective order in violation of
General Statutes § 53a-223a; breach of the peace in the
second degree in violation of § 53a-181 (a) (2); assault
in the third degree in violation of General Statutes §
53a-61 (a) (1); and failure to appear in the first degree in
violation of General Statutes § 53a-172 (a) (1).
Prior
to trial, the state filed a motion for joinder of the
separate informations, and the court granted the state's
motion. After a week long jury trial, the defendant was
convicted of breach of the peace in the second degree
regarding the January 22, 2016 incident. He also was
convicted of criminal violation of a protective order, breach
of the peace in the second degree, and assault in the third
degree arising from the January 25 incident. The defendant
was sentenced to a total effective sentence of ten years of
incarceration, execution suspended after two years, followed
by three years of probation. This appeal followed. Additional
facts and procedural history will be set forth as needed.
I
The
defendant claims that the trial court improperly granted the
state's motion for joinder. He contends that combining
the two informations substantially prejudiced him according
to the factors set forth in State v. Boscarino, 204
Conn. 714, 722-24, 529 A.2d 1260 (1987). The state counters
by asserting that the Boscarino factors were not met
and that the evidence in this case was cross admissible. We
agree with the state that the Boscarino factors were
not met.[5]
We
first set forth the appropriate standard of review.
‘‘The principles that govern our review of a
trial court's ruling on a motion for joinder . . . are
well established. Practice Book § 41-19 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. . . . In 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. . . . The defendant bears a
heavy burden of showing that [joinder] 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. McKethan, 184 Conn.App. 187, 194-95, 194
A.3d 293, cert. denied, 330 Conn. 931, 194 A.3d 779 (2018).
‘‘Despite our reallocation of the burden when the
trial court is faced with the question of joinder of cases
for trial, the defendant's burden of proving error on
appeal when we review the trial court's order of joinder
remains the same. See State v. Ellis, 270 Conn. 337,
376, 852 A.2d 676 (2004) ([i]t is the defendant's burden
on appeal to show that joinder was improper by proving
substantial prejudice that could not be cured by the trial
court's instructions to the jury . . .).''
(Emphasis omitted; internal quotation marks omitted.)
State v. Payne, 303 Conn. 538, 550 n.11, 34 A.3d 370
(2012).
‘‘Substantial
prejudice does not necessarily result from [joinder] even [if
the] evidence of one offense would not have been admissible
at a separate trial involving the second offense. . . .
Consolidation under such circumstances, however, may expose
the defendant to potential prejudice for three reasons:
First, when several charges have been made against the
defendant, 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 evidence against him. . . .
Second, the jury may have used the evidence of one case to
convict the defendant in another case even though that
evidence would have been inadmissible at a separate trial. .
. . [Third] joinder of cases that are factually similar but
legally unconnected . . . present[s] the . . . danger that a
defendant will be subjected to the omnipresent risk . . .
that although so much [of the evidence] as would be
admissible upon any one of the charges might not [persuade
the jury] of the accused's guilt, the sum of it will
convince them as to all. . . .
‘‘The
court's discretion regarding joinder . . . is not
unlimited; rather, that discretion must be exercised in a
manner consistent with the defendant's right to a fair
trial. Consequently, [in State v. Boscarino, supra,
204 Conn. 722-24] we have 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. Payne, supra, 303
Conn. 544-45.
A
The
defendant first claims that consolidating his cases allowed
the jury to consider prejudicial evidence of two different
crimes. See State v. Holliday, 159 Conn. 169, 172,
268 A.2d 368 (1970). When a request for joinder is made, the
state ‘‘bears the burden of proving that the
defendant will not be substantially prejudiced by joinder
pursuant to Practice Book § 41-19.'' State
v. Payne, supra, 303 Conn. 549-50. To overcome this
burden, the state must prove ‘‘by a preponderance
of the evidence, either that the evidence in the cases is
cross admissible or that the defendant will not be unfairly
prejudiced pursuant to the Boscarino
factors.'' Id., 550.
In the
present case, the defendant was charged in two separate
informations with crimes that occurred on two different days.
The trial court found that joinder was proper as none of the
Boscarino factors were present. Specifically, the
court reasoned that the informations were
‘‘easily distinguishable.'' On appeal,
the defendant relies on the first and second
Boscarino factors to support his ...