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State v. Brown

Appellate Court of Connecticut

January 14, 2020

STATE OF CONNECTICUT
v.
OTERRIO R. BROWN

         Argued September 10, 2019.

Page 906

          Appeal from the Superior Court in the judicial district of Waterbury, K. Murphy, J.

         COUNSEL:

          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. In this opinion the other judges concurred.

          OPINION

Page 907

         [195 Conn.App. 246] BEACH, J.

         The defendant, Oterrio R. Brown, appeals from the judgments of conviction, following a jury trial, of two counts of

Page 908

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 [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.[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 [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.[4] The defendant was arrested and

Page 909

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 [195 Conn.App. 249] 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 [195 Conn.App. 250] under such circumstances, however, ...


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