September 10, 2019.
from the Superior Court in the judicial district of
Waterbury, K. Murphy, J.
Patten Brown, III, for the appellant (defendant).
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
Alvord, Devlin and Beach, Js. In this opinion the other
Conn.App. 246] BEACH, J.
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
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. The defendant [195 Conn.App. 247]
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. 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 in violation of General
Statutes § 53a-173 (a) (1) was added.
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 [195 Conn.App.
248] 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. The defendant was
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).
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.
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 [195 Conn.App. 249] was
cross admissible. We agree with the state that the
Boscarino factors were not met.
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 [195 Conn.App. 250] under such
circumstances, however, ...