State v. Perez ( 2016 )

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STATE v. PEREZ—DISSENT
VERTEFEUILLE, J., with whom ZARELLA, J., joins,
dissenting. Deciding whether to sever two or more
informations against a defendant that have been joined
for a single trial calls for a trial court to exercise discre-
tion and balance considerations of judicial economy
against the likelihood that the joint trial will prejudice
the defendant. The trial court in the present case, after
balancing these competing considerations, joined for
trial two informations that charged the defendant,
Eddie A. Perez, former mayor of Hartford, with sepa-
rate, corruption related offenses—one of the alleged
crimes relating to an alleged bribe; the other crimes
relating to an alleged extortion attempt. The court there-
after denied two separate motions by the defendant
to sever the informations. Following his conviction of
various corruption related offenses after a jury trial,
the defendant appealed to the Appellate Court, which
reversed the trial court’s judgments and remanded the
cases for new, separate trials. State v. Perez, 147 Conn.
App. 53, 124, 80 A.3d 103 (2013).
The majority concludes that the trial court in the
present case abused its discretion by denying the defen-
dant’s first motion to sever because he wanted to testify
in the bribery case, but not in the extortion case. In my
view, however, the majority has not afforded the trial
court’s exercise of discretion the level of deference to
which it is entitled. Because I am persuaded that the
trial court acted properly within its discretion in declin-
ing to sever the cases on this basis, I respectfully
dissent.1
In considering whether to sever two cases that have
been joined for trial, ‘‘the trial court enjoys broad discre-
tion, which, in the absence of manifest abuse, an appel-
late court may not disturb.’’ (Internal quotation marks
omitted.) State v. Payne, 303 Conn. 538, 544, 34 A.3d
370 (2012); State v. Davis, 286 Conn. 17, 28, 942 A.2d
373 (2008). The party seeking to overturn a discretion-
ary ruling thus has a ‘‘heavy burden . . . .’’ State v.
Ross, 230 Conn. 183, 226, 646 A.2d 1318 (1994), cert.
denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d
1095 (1995). ‘‘[W]hen reviewing the action of a trial
court under an abuse of discretion standard, we should
read the record to support, rather than contradict, [the
trial court’s ruling].’’ (Internal quotation marks omit-
ted.) State v. Lugo, 266 Conn. 674, 692 n.16, 835 A.2d
451 (2003); accord State v. Orr, 291 Conn. 642, 667, 969
A.2d 750 (2009) (‘‘[i]n determining whether there has
been an abuse of discretion, the ultimate issue is
whether the court could reasonably conclude as it did’’
[internal quotation marks omitted] ); State v. Skakel,
276 Conn. 633, 724, 888 A.2d 985 (‘‘[i]n determining
whether there has been an abuse of discretion, every
reasonable presumption should be made in favor of the
correctness of the trial court’s ruling, and we will upset
that ruling only for a manifest abuse of discretion’’
[internal quotation marks omitted]), cert. denied, 549
U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006).
‘‘Our role as an appellate court is not to substitute our
judgment for that of a trial court that has chosen one
of many reasonable alternatives.’’ (Internal quotation
marks omitted.) State v. Day, 233 Conn. 813, 842, 661
A.2d 539 (1995).
A defendant who moves for severance pursuant to
Practice Book § 41-18 has the burden to show that sev-
erance is warranted. State v. Davis, supra, 286 Conn.
28. I agree with the majority that severance may be
warranted when the defendant wishes to testify in one
of the cases against him, but to remain silent in the
other. See, e.g., State v. Schroff, 198 Conn. 405, 409, 503
A.2d 167 (1986), citing Baker v. United States, 401 F.2d
958, 977 (D.C. Cir. 1968), cert. denied, 400 U.S. 965, 91
S. Ct. 367, 27 L. Ed. 2d 384 (1970). Nevertheless, the
defendant’s burden to obtain severance on this basis
is high. A defendant seeking severance must do more
than express a desire to testify in only one case. Baker
v. United States, supra, 977; see also United States v.
Alexander, 135 F.3d 470, 477 (7th Cir. 1998). Instead,
he must make a ‘‘ ‘convincing showing’ ’’ that he has
(1) important testimony to give concerning one case,
and (2) a strong need to refrain from testifying in the
other. Baker v. United States, supra, 977; State v.
Schroff, supra, 409. To establish that he has important
testimony to give, the defendant must show that his
intended testimony credibly relates to the charges
against him and will not be wholly cumulative of testi-
mony available from other sources. See, e.g., United
States v. Alosa, 14 F.3d 693, 695 (1st Cir. 1994) (no
prejudice from joinder when defendant’s intended testi-
mony did not credibly account for his conduct); United
States v. Valentine, 706 F.2d 282, 291 (10th Cir. 1983)
(defendant’s intended evidence was cumulative);
United States v. Outler, 659 F.2d 1306, 1313 (5th Cir.
1981) (same). Conversely, to show a strong need to
refrain from testifying, a defendant must show that he
will suffer substantial prejudice as a result of his testi-
fying, such as opening the door to impeachment evi-
dence; he may not rest on an assertion that he wishes
to leave the government to its proof. See, e.g., United
States v. Jones, 530 F.3d 1292, 1301 (10th Cir. 2008);
United States v. Valentine, supra, 291.
Moreover, to perfect this claim and enable the trial
court to properly evaluate prejudice, ‘‘it is essential that
the defendant present enough information—regarding
the nature of the testimony he wishes to give [in one
case] 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 quota-
tion marks omitted.) State v. Schroff, supra, 198 Conn.
409. A defendant must give ‘‘specific examples of the
exculpatory testimony that the defendant would give.’’
United States v. Alexander, supra, 135 F.3d 477; see
United States v. Balzano, 916 F.2d 1273, 1283 (7th Cir.
1990) (no showing of prejudice when defendant
‘‘neglected to set forth any specific examples of the
alleged exculpatory testimony he would have pre-
sented’’). A ‘‘general statement’’ about the topics of
the intended testimony is not enough. United States v.
Alexander, supra, 477.
In the present case, the defendant twice moved for
severance on the basis that the joining of the two infor-
mations for a single trial was interfering with his deci-
sion about whether to testify. He first filed a motion
for severance on this basis, dated May 20, 2010, after
the state had finished the evidence in the bribery case,
but before it began presenting its extortion case. The
trial court denied his motion and the state proceeded
with its extortion case. The defendant renewed his
request for severance on this basis with a second motion
dated June 9, 2010, after the state had completed its
extortion case. The trial court denied this motion, as
well. The majority addresses only the May 20 motion
and concludes that the trial court was required to sever
the cases at that time. I disagree with this conclusion.
In my view, the defendant did not provide sufficient
specific information about his proposed testimony to
properly perfect his May 20 motion for severance, and
this lack of information prevented the trial court from
meaningfully considering his claim of prejudice. In his
motion, he provided only general statements about top-
ics of testimony he intended to give, and did not provide
the trial court with any specific facts that he intended
to establish with his testimony or how it might differ
from testimony already presented.2 For example, he
represented to the court that he needed to explain the
reasons for his false statements to Michael Sullivan, an
inspector with the state Division of Criminal Justice in
its public integrity unit, and why he delayed in paying
his bill, but he did not tell the court anything about
what those reasons were. In addition, the May 20 motion
stated that the defendant wanted to testify about ‘‘[h]ow
[the contractor] Carlos Costa became involved in the
[d]efendant’s home renovation project, details regard-
ing when he first approached . . . Costa and requested
a bill, [and] the number of times that he personally
followed up with Costa regarding his request . . . .’’
See footnote 2 of this dissenting opinion. As the majority
explains in its recitation of the facts, however, Costa
had already testified about these details. If the defen-
dant intended to give different testimony on these
points, such that it would not be cumulative, he, as the
party moving for severance, had the burden to demon-
strate that to the trial court. The defendant, however,
did not give any indication of whether or how he
expected his testimony to differ from Costa’s.
By not giving the trial court any specific details about
his intended testimony, the defendant deprived the trial
court of the opportunity to properly assess his claim
of prejudice. The trial court could not evaluate the
extent to which his intended testimony was credible,
relevant, and not entirely cumulative of testimony
already presented. See, e.g., United States v. Alexander,
supra, 135 F.3d 477 (explaining that ‘‘general assertions’’
about topics of intended testimony are ‘‘insufficient
to establish prejudice’’ and fall short of ‘‘ ‘convincing
showing’ ’’ that is required for trial court to assess defen-
dant’s claim and grant severance). Without any specific
examples of the defendant’s intended testimony, the
trial court was left to speculate as to the substance and
import of the testimony he intended to give, preventing
it from balancing the extent of any possible prejudice
to the defendant against considerations of judicial econ-
omy. State v. Schroff, supra, 198 Conn. 409. In addition,
the lack of any detail also prevented the state from
meaningfully responding to the defendant’s claim of
prejudice—it had no notice of what the defendant
would actually testify to and so could not formulate
arguments based on the content of the defendant’s pro-
posed testimony.
The defendant argues in his brief that he did not
provide specifics of his testimony to avoid giving the
state ‘‘a preview of his defense . . . .’’ It is just these
specifics, however, that our case law and case law from
federal courts require to support a motion for severance
on this basis. See State v. Schroff, supra, 198 Conn.
409–10; see also United States v. Alexander, supra, 135
F.3d 477 (defendant’s failure to provide examples of
his intended testimony is fatal to his claim); see also
State v. Lemay, 46 A.3d 1113, 1121 (Me. 2012) (defen-
dant’s tactical decision to not provide details about
his intended testimony to avoid revealing theory of his
defense inhibits court’s ability to assess prejudice).
The defendant had the burden to produce sufficient
detailed information to support his May 20, 2010 motion
and thereby to persuade the trial court to grant it. Given
the paucity of information presented by the defendant,
it was hardly an abuse of discretion for the trial court
to deny the May 20 motion to sever. It is not enough
for an appellate panel to disagree with the trial court’s
exercise of discretion; the defendant must show that
the trial court’s exercise was unreasonable under the
circumstances presented. I would conclude that the
defendant did not meet that burden.
In addition, although not considered by the majority, I
would further conclude that the trial court also properly
denied the defendant’s second motion for severance.
The defendant renewed his request for severance in his
June 9, 2010 motion, after the state had presented its
evidence in both cases. This time, however, at the hear-
ing on the motion, he provided the trial court with a
detailed description of the testimony he intended to
provide in the bribery case and reiterated the reasons
he wished to remain silent in the extortion case.3 For
example, regarding the reasons he misled Sullivan
about his payment of the home improvement bill, the
defendant’s counsel represented to the court, for the
first time, that the defendant would ‘‘explain the lies
that were made to [Sullivan] with [the city’s corporation
counsel] in the room, and he’ll testify that he was embar-
rassed to reveal that he had not paid the bill to [Costa]
with [corporation counsel] present in the room.’’ The
defendant’s counsel then set forth, in extensive detail,
the testimony the defendant intended to give on approx-
imately eighteen topics pertaining to the bribery charge.
Importantly, the defendant also requested alternative
relief, including a request that, if the court refused sever-
ance, he be allowed to testify in the bribery case, but
remain silent and be shielded from any cross-examina-
tion with regard to the extortion case. After hearing
argument on that motion, the trial court found that the
defendant had shown that he had important testimony
to give in the bribery case and strong reasons to refrain
from testifying in the extortion case. Nevertheless, the
court, exercising its discretion, refused to sever the
cases. Significantly, however, the trial court did grant
the defendant’s alternative requested relief, and permit-
ted him to testify about the bribery case without being
subject to cross-examination with regards to the extor-
tion case. The defendant, however, ultimately chose
not to testify.
In determining whether the defendant should have
new and separate trials on the charges he faces, it is
of substantial import to me that the trial court granted
him an alternative form of relief, one that he had
expressly requested in his motion to sever—the right
to testify on the bribery charges without being exposed
to cross-examination on the extortion charges. Practice
Book § 41-18 specifically authorizes the court to provide
such other relief as ‘‘justice may require’’ in the alterna-
tive to severance. Although the defendant ultimately
decided not to testify at all, in my view, the trial court’s
grant of alternative relief that he specifically requested
substantially undercuts his claim of prejudice. The trial
court’s grant of the defendant’s requested alternative
relief afforded him protection from cross-examination
on the extortion charge and thus mitigated to a signifi-
cant extent any prejudice to the defendant caused by
joinder. I recognize that this relief might not have pro-
vided complete protection from all prejudice that might
have arisen if he took the stand to expressly deny one
set of charges while remaining silent on the other. Nev-
ertheless, under the circumstances of this case, I con-
clude that the defendant did not present a convincing
showing of substantial prejudice, especially in light of
the deferential abuse of discretion standard that we
must apply. State v. Davis, supra, 286 Conn. 27–28.
For these reasons, in my view, the trial court properly
denied the defendant’s motions for severance. Conse-
quently, I respectfully dissent and would reverse the
Appellate Court’s judgment and remand the case to that
court to consider the defendant’s remaining claims on
appeal not previously addressed by that court.
1
As explained in the majority opinion, the defendant also claimed in his
appeal to the Appellate Court that, pursuant to the factors identified in our
decision in State v. Boscarino, 204 Conn. 714, 723, 529 A.2d 1260 (1987),
the trial court had abused its discretion in joining the two cases in the first
place and then by failing to sever them after trial began. See footnote 1 of
the majority opinion. The defendant argued that the two cases were too
similar and too complex for a jury to fairly consider each case separately.
State v. Perez, supra, 147 Conn. App. 93–94. In considering this claim, the
Appellate Court reviewed the trial court’s joinder and severance decisions
together, based on a review of the entire trial record, rather than by limiting
its review to only the information before the trial court at the time it decided
to join the cases, or when it declined to sever them. Id., 95–109. On the
basis of this combined review, the Appellate Court concluded that the trial
court either should not have joined the cases or should have later severed
them. Id., 109 n.51, 109–13.
In a separate concurrence, Judge Lavine disagreed with this portion of
the Appellate Court’s decision. He first concluded that whether the trial
court should have joined the two cases in the first place must be considered
separately from whether the trial court should later sever the cases. Id.,124–25 and n.1 (Lavine, J., concurring). He also concluded that each decision
by the trial court must be reviewed based only on the information before
the trial court at the time it decides the motion to join or to sever the cases.
Id., 128–29 (Lavine, J., concurring). Considering each decision separately
and based on the information before the trial court at the time it made each
decision, Judge Lavine further concluded that the trial court properly joined
the cases for trial because the crimes and relevant facts at issue in each
case were sufficiently distinct to allow the jury to fairly consider each case
separately. Id., 132–34 (Lavine, J., concurring).
Although the majority does not address this aspect of the Appellate Court’s
decision, because it resolves the appeal on a different ground, I note that
I agree with both Judge Lavine’s analytical approach and his conclusion.
2
The defendant’s motion explained that the defendant wanted to testify
on the following topics: ‘‘The [d]efendant’s reasons for misleading . . .
[Michael Sullivan, an inspector with the state Division of Criminal Justice
in its public integrity unit] during their initial interview on June 27, 2007;
[h]ow . . . [the contractor, Carlos Costa] became involved in the [d]efen-
dant’s home renovation project, details regarding when he first approached
. . . [Costa] and requested a bill, the number of times that he personally
followed up with Costa regarding his request, and the reasons for his delay
in payment . . . [t]he context of his involvement . . . regarding the Park
Street Project; and . . . [t]he context of his involvement in the issuing of
emergency and manual checks from the [t]reasurer for the [city of Hartford]
. . . to [Costa’s company].’’ (Internal quotation marks omitted.) State v.
Perez, supra, 147 Conn. App. 114.
3
The lengthy description of the defendant’s intended testimony is included
in the majority opinion and also appears in the Appellate Court’s opinion.
See State v. Perez, supra, 147 Conn. App. 116–19 nn.58 and 59.