State v. Norris ( 2022 )

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STATE OF CONNECTICUT v.
JAHMON HAKEEM NORRIS
(AC 44024)
Bright, C. J., and Clark and DiPentima, Js.
Syllabus
Convicted under two informations of the crimes of risk of injury to a child,
assault in the third degree, breach of the peace in the second degree
and interfering with an officer, the defendant appealed to this court. The
defendant’s convictions stemmed from his involvement in a domestic
violence incident with his girlfriend, which her minor child witnessed,
and from his aggressive behavior with a police officer and hospital staff
after he was brought to a hospital following the domestic violence
incident. He claimed that the trial court improperly failed to conduct
an adequate independent inquiry into his competency to stand trial and
to order a competency hearing at the start of trial following a prior
evaluation in which he had been found competent to stand trial. He
also claimed that the court improperly granted the state’s motion for
joinder of the cases for trial because the conduct alleged in the domestic
violence assault case was significantly more brutal and shocking than
the conduct at the hospital alleged in the interfering with an officer
case. Held:
1. The trial court did not abuse its discretion in denying the defendant’s
motion for a competency evaluation or in failing to conduct an indepen-
dent inquiry into his competency, the defendant having failed to meet
his burden that, at the time he moved for the competency evaluation,
the court had before it specific factual allegations that, if true, would
have constituted substantial evidence of mental impairment: the court,
before ruling on the motion, engaged in extensive dialogue with the
defendant, observed his demeanor, took notice of his general pattern
of disruptive conduct, reviewed the competency report in the case file,
and determined that the defendant was competent to stand trial and
that his repeated disruptions and assertions that he did not understand
were a delay tactic and specifically referenced the defendant’s behavior
when denying the motion; moreover, the court concluded that, on the
basis of the defendant’s comments and ability to remain calm and cooper-
ative during the initial stages of jury selection, the defendant clearly
understood what was happening; furthermore, the court did not err in
relying, in part, on the defendant’s previous competency evaluation, as
the defendant failed to produce any evidence that demonstrated that
his condition had changed since that evaluation, and the previous report
was not the only source of information on which the court relied in
making its determination.
2. The trial court did not abuse its discretion in consolidating the two
informations for trial, as the defendant failed to demonstrate that joinder
resulted in substantial prejudice to him: although the trial court erred
by joining the defendant’s two cases for trial because the defendant’s
conduct with respect to the domestic violence assault charge was signifi-
cantly more brutal and shocking than his conduct at the hospital relating
to the interfering with an officer charge, the court’s explicit instructions
to the jury to consider each charge separately in reaching its verdict
sufficiently cured the risk of substantial prejudice to the defendant and,
therefore, preserved the jury’s ability to fairly and impartially consider
the offenses charged in the jointly tried cases; moreover, it was highly
unlikely that the violent nature of the facts adduced in the domestic
violence case prejudiced the jury’s verdict as to the defendant’s state
of mind in the interfering with an officer case because the facts of what
happened at the hospital were undisputed; furthermore, the fact that
the jury acquitted the defendant of charges in both cases highlighted
the limited prejudicial impact that joinder had.
Argued January 3—officially released June 14, 2022
Procedural History
Substitute information, in the first case, charging the
defendant with the crimes of risk of injury to a child,
interfering with an officer, breach of the peace in the
second degree, interfering with an emergency call,
assault in the third degree, threatening in the second
degree and strangulation in the second degree, and sub-
stitute information, in the second case, charging the
defendant with the crimes of assault on a public safety
officer and interfering with an officer, brought to the
Superior Court in the judicial district of Waterbury,
geographical area number four, where the court, Doyle,
J., granted the defendant’s motion for a competency
evaluation; thereafter, following a competency hearing,
the court, Doyle, J., determined that the defendant was
competent to stand trial; subsequently, the court, Klatt,
J., granted the state’s motion for joinder and denied
the defendant’s motion for a competency evaluation;
thereafter, the matter was tried to the jury before Klatt,
J.; verdicts and judgments of guilty of risk of injury to
a child, assault in the third degree, breach of the peace
in the second degree and interfering with an officer,
from which the defendant appealed to this court.
Affirmed.
Naomi T. Fetterman, assigned counsel, for the appel-
lant (defendant).
Melissa Patterson, senior assistant state’s attorney,
with whom were Anne Holley, senior assistant state’s
attorney, and, on the brief, Maureen Platt, state’s attor-
ney, for the appellee (state).
Opinion
BRIGHT, C. J. The defendant, Jahmon Hakeem Nor-
ris, appeals from the judgments of conviction, rendered
by the trial court following a jury trial, of risk of injury
to a child in violation of General Statutes § 53-21 (a)
(1), breach of the peace in the second degree in violation
of General Statutes § 53a-181 (a) (2), assault in the third
degree in violation of General Statutes § 53a-61 (a) (1),
and interfering with an officer in violation of General
Statutes § 53a-167a. On appeal, the defendant claims
that the court abused its discretion by (1) failing to con-
duct an adequate independent inquiry into the defen-
dant’s competency to stand trial and order a compe-
tency hearing pursuant to General Statutes § 54-56d1
and (2) improperly granting the state’s motion for join-
der for trial of the charge of interfering with an officer
with the other charges the defendant faced. We affirm
the judgments of the trial court.
The following facts, which reasonably could have
been found by the jury, and procedural history inform
our review of the defendant’s claims. In February, 2018,
the defendant rekindled a friendship with T.2 At that
time, the defendant was having financial difficulties and
needed help, so T allowed him to live with her and her
children at her Waterbury apartment. By April, 2018, T
and the defendant were in a romantic relationship.
On the morning of April 14, 2018, the defendant, T,
and T’s six year old daughter, I, were all at the apart-
ment. The defendant and T were arguing because the
defendant had asked her for money to visit his daughter
in New Haven, but T did not have any money to give
him. As the argument progressed, the defendant became
more aggressive with T and eventually pushed her into
the kitchen. At that point, T asked the defendant to
leave, but he refused and began walking toward her. T
told him, ‘‘Do not put your hands on me,’’ but the defen-
dant kept coming. T grabbed a knife to defend herself,
but the defendant broke the blade off of the knife while
it was still in her hand.
The fight between the defendant and T then became
more physical. The defendant grabbed at T, struck her,
bit her, held her down on the couch, ripped her clothes
off, spat in her face, pressed his arm against her throat,
grabbed her by the hair, threw her onto the kitchen
floor, and then hit her again, this time in the mouth,
which caused her to bleed onto the floor. The defendant
later instructed I to clean up her mother’s blood.
During the fight, T told I to leave the apartment, but
the defendant prevented I from leaving. T also repeat-
edly tried to call 911, but the defendant took her phone.
The defendant eventually gave T her phone back so
that she could try to find someone to give the defendant
money. T used that opportunity to text several people
and tell them that she needed help because the defen-
dant would not let her go.
One of the people who received a text from T called
the police, and two officers from the Waterbury Police
Department, Brian Gutierrez and Justin DeVaull, were
dispatched to T’s apartment to conduct a welfare check.
After arriving at the apartment building, the officers
knocked on the exterior front door but no one answered.
They eventually located an open window and used that
to enter the building. The officers then found the door
to T’s apartment, knocked, and identified themselves.
The defendant partially opened the door but with the
chain lock still in place. The officers identified them-
selves again and told the defendant that they were there
for a welfare check, but the defendant slammed the
door shut. The officers then kicked the door down so
that they could check on T. Upon entering the apart-
ment, they found T in the kitchen, crying and shaking,
and with bruises to her neck, back, and lip, and bite
marks on both sides of her body. I was also in the kitchen
with T and appeared scared. The officers then arrested
the defendant.
After the defendant was arrested, he was taken to St.
Mary’s Hospital in Waterbury. Officer Joseph Civitella
accompanied the defendant to the hospital and was
assigned to guard him while he was being treated. The
defendant was seen by a physician, who determined
that he needed X-rays. While the defendant and Civitella
waited for him to be x-rayed, the defendant became
agitated and impatient. Civitella unsuccessfully tried to
calm him down, but the defendant, who was partially
handcuffed to a stretcher, became physically aggressive
and launched himself off of the stretcher and onto the
floor. Civitella requested assistance to get the defendant
back on the stretcher. A fellow officer, as well as hospi-
tal security staff and a patient care assistant, Raphael
Pages, came to help. While the group was struggling to
return the defendant to the stretcher, he began banging
his head against the wall. Pages, in an attempt to restrain
the defendant, placed his hand over the defendant’s
face. The defendant then bit Pages’ finger through his
medical glove, causing Pages to bleed.
The state charged the defendant in two separate infor-
mations—one relating to the domestic violence incident
in T’s apartment and one relating to the defendant’s
actions at the hospital. With respect to the domestic
violence incident, the defendant was charged with risk
of injury to a child, interfering with an officer, breach
of the peace in the second degree, interfering with an
emergency call, assault in the third degree, threatening
in the second degree, and strangulation in the second
degree. With respect to the hospital incident, the defen-
dant was charged with assault on a public safety officer
and interfering with an officer.
Prior to the defendant’s trial, the state filed a motion
to join the two informations for trial, which the court,
Klatt, J., granted.3 A jury trial followed. With respect
to the domestic violence incident, the defendant testi-
fied that T was the aggressor and that he had acted in
self-defense. He also testified that he never prevented
I from leaving the apartment. As to the hospital incident,
the defendant admitted to throwing himself off of the
stretcher and biting Pages but claimed that he only
bit Pages because Pages was restricting his ability to
breathe.
After the conclusion of the trial, the jury found the
defendant guilty of risk of injury to a child, assault in
the third degree, and breach of the peace in the second
degree in the domestic violence case, and guilty of
interfering with an officer in the hospital case. The jury
acquitted the defendant of the remaining charges in
both cases. The court accepted the jury’s verdict and
sentenced the defendant to a total effective term of
twelve years of incarceration, execution suspended
after six years, with five years of probation. This appeal
followed. Additional facts and procedural history will
be set forth below as needed.
I
The defendant first claims that the court abused its
discretion by failing to conduct an independent inquiry
into his competency to stand trial and, consequently,
failing to order a competency hearing pursuant to § 54-
56d. We are not persuaded.
The following additional facts and procedural history
are necessary to our resolution of these claims. Defense
counsel was appointed for the defendant on May 15,
2018, and, thereafter, moved for a competency evalua-
tion pursuant to § 54-56d, which the court, Doyle, J.,
granted. Suzanne Ducate, a psychiatrist, performed the
defendant’s competency evaluation and issued a report
in which she concluded that the defendant was able to
understand the proceedings against him and assist in
his own defense. On December 10, 2018, the court held
a competency hearing at which the defendant was found
competent to stand trial.
On July 26, 2019, the defendant filed a motion for a
speedy trial, which was granted on September 11, 2019.
Two days later, defense counsel made an oral motion
to withdraw as counsel, which the court granted. There-
after, Attorney Jared Millbrandt was appointed to repre-
sent the defendant. Then, on November 6, 2019, the
parties appeared before the court for a hearing on the
state’s motion for joinder and the start of jury selection.
At the start of the hearing, the defendant indicated that
he wanted to address the court. The court warned the
defendant against doing so, but the defendant iterated
his wish to speak. The defendant then remarked as
follows:
‘‘In all due respect, Your Honor, I don’t believe that
I’m ready to go to trial. I wasn’t briefed or prepared to
go to trial; I just met this attorney . . . maybe less than
a month [ago]. We had two sessions in Cheshire, and
since then it’s—I’m not prepared. I don’t know nothing
about the jury. I don’t know about the selection. I don’t
know what to ask him. I wasn’t told anything. Today
was supposed to have been a day where we schedule,
and . . . I was supposed to have another chance of
seeing my lawyer to talk to him about jury duty, or how
to pick [a] jury, or what to say to the jury, or what the
jury is.’’
The parties then had a short conversation with the
court about the defendant’s previously granted motion
for a speedy trial. The parties also agreed that jury
selection had been scheduled to start that day. The
court then explained to the defendant that his speedy
trial motion had ‘‘[set] into motion a series of steps,
which lead to jury selection.’’ The court further noted
that there was no indication that defense counsel was
unprepared to select a jury. In response, the defendant
reiterated his belief that he and Millbrandt were not
prepared for jury selection and that it was in the defen-
dant’s best interest to reschedule the proceedings.
Defense counsel denied being unprepared, and the
court denied the defendant’s motion for a continuance.
The court next attempted to hear the state’s motion
for joinder, but the defendant interrupted the proceed-
ings again, this time stating: ‘‘I don’t want to work with
[Millbrandt] no more. It’s over. I don’t want to work with
you, so I don’t know how that’s going to work. I’d rather
represent myself. I’m fine.’’ The court advised the defen-
dant against representing himself and also warned him
that continued disruptions would not be tolerated. The
court took no action on the defendant’s request to have
defense counsel removed.
After hearing arguments from the parties on the state’s
motion for joinder, the court granted that motion. Because
the state had filed two substitute informations in order
to correct some typographical errors, the court ordered
that the defendant be put to plea on the substitute
informations. At that point, the defendant remarked:
‘‘Your Honor, I don’t know what’s going on.’’ The court
explained that, as a matter of procedure, the defendant
needed to enter his not guilty pleas again. The following
colloquy then took place:
‘‘The Defendant: So what about the splitting the two
cases and not joining? That’s what we—
‘‘The Court: I granted the state’s motion to join them,
so it’s one trial that you’re facing. Two separate informa-
tion[s], but one trial that you’re facing.
‘‘The Defendant: So, you’re saying that the jury’s going
to hear both cases at the same time?
‘‘The Court: Correct.
‘‘The Defendant: But that’s—I thought that’s what we
were arguing about. Your Honor, see, this is what I’m—
‘‘The Court: And I get that, sir. Your counsel made—
again, your—
‘‘The Defendant: He made an argument just now for
that?
‘‘The Court: He argued it, he filed a brief.
‘‘The Defendant: Wait a minute. When did he argue
on—that’s what I’m just trying to understand. I don’t
understand.
‘‘The Court: Sir, I am not getting into a conversation
with you about what just happened. You heard your
attorney argue. I have already indicated that he has
filed a motion. I’ve listened to both arguments—
‘‘The Defendant: Can I see that motion? Oh, this is
the motion?
‘‘The Court: I have done—I have listened to both
arguments—
‘‘The Defendant: Yes.
‘‘The Court: I’ve researched the case law, and I’ve
made a ruling. Just because . . . the court doesn’t rule
in your favor, does not mean that a lawyer is not doing
his job. Now, put the defendant to plea. . . .
‘‘The Defendant: No, I don’t understand what’s
going on.’’
The court again attempted to put the defendant to
plea, first on the information in the domestic violence
case, to which the defendant pleaded not guilty. The
court next asked the defendant if he was electing a trial
by the court or a trial by jury, to which the defendant
again professed, ‘‘I don’t know what’s going on.’’ The
court explained the difference between a jury trial and
a bench trial, but the defendant continued to state that
he did not understand what was happening. This led
to another exchange between the court, the defendant,
and defense counsel:
‘‘The Defendant: Okay. And what are we doing right
now?
‘‘[Defense Counsel]: We’re picking a jury, as I’ve
explained to you a number of times.
‘‘The Defendant: I don’t understand you. I don’t under-
stand it.
‘‘[Defense Counsel]: Your Honor, at this point I don’t
know what more I can say to the court.
‘‘The Court: Sir, are you electing to a court or a jury?
‘‘The Defendant: If I’m asking Your Honor, if I’m being
forced, I don’t want to be forced to say anything that
I [don’t] understand. That’s why I’m asking. I don’t—
and I see that you’re getting frustrated because you’re
feeling like I—
‘‘The Court: What don’t you understand about what’s
happening?
‘‘The Defendant: I just don’t understand what’s going
on. I don’t know why I’m pleading guilty, okay—
‘‘The Court: You’re not pleading guilty, you’re plead-
ing not guilty.
‘‘The Defendant: Okay. I don’t understand why I’m
not—
‘‘The Court: What don’t you understand about being
told that you’re being asked whether or not you want
a jury trial? You filed the motion for [a] speedy trial.
You’re telling me you don’t understand. What don’t you
understand about this process?
‘‘The Defendant: I filed for a motion because that’s
what I discussed with my lawyer, that that was for my
best interest.
‘‘The Court: Okay.
‘‘The Defendant: To push the case forward. But, since
then I don’t understand where—like, what’s today and
how like, you’re telling me to plead—not plead guilty,
and to pick for a jury. And that you said something
about you and the court and the state, or whatever.
‘‘The Court: All right.
‘‘The Defendant: I’m not playing to—you know, I
don’t—
‘‘The Court: Sir, I don’t—quite frankly I’m going to
have it noted for the record that it appears to me that
the defendant fully understands what’s happening, and
is attempting to be obstructionist. So, again—
‘‘The Defendant: Okay.
‘‘The Court: [A]re you electing to a jury trial?
‘‘The Defendant: Your Honor—
‘‘The Court: Do you want a jury to make a decision
as to whether or not you’re guilty or not guilty, or do
you want a judge to make a decision as to whether or
not you’re guilty or not guilty? It’s that simple. It’s not
difficult to understand. You’re an intelligent young man,
make that choice now.
‘‘The Defendant: I don’t—I don’t—what do you want
me to do, man?’’
Defense counsel then asked for a five minute recess,
which the court granted. After the parties returned to
the courtroom, defense counsel moved for a compe-
tency evaluation, stating: ‘‘Your Honor, at this time I
just would like to make a record. I met with [the defen-
dant] in an effort to discuss what is happening here
today again. I emphasize[d] that we are here to begin
jury selection in his case, for which he had prior counsel
file a speedy trial motion. He repeatedly indicated to
me he doesn’t understand what’s happening. At this
point I’m making a motion pursuant to [§] 54-56d, as
he does not apparently have the ability to assist in his
own defense, nor understand the charges against him.’’
The defendant then interrupted, again stating that
he did not understand what was happening. Defense
counsel explained that he was moving for a competency
evaluation to determine whether the defendant under-
stood the nature of the charges against him, as had
previously occurred in the case. The defendant pro-
claimed to have no memory of a prior competency
evaluation, at which point the prosecutor interrupted
and noted that the defendant had previously undergone
a competency evaluation and been found competent to
stand trial. The court then reviewed the competency
report in the case file. Thereafter, the court remarked:
‘‘All right. I’ve reviewed the file. I’ll indicate for the
record that apparently the defendant’s indication that
he doesn’t know, he doesn’t understand, has been a
repeated theme throughout this particular prosecution.
‘‘The psychiatrist who examined him indicated that
he was uncooperative throughout the process. He
repeatedly responded to her, I don’t know, I don’t remem-
ber, it’s none of your business. That he claimed [that]
he developed some type of amnesia when he was incar-
cerated. I lost my memory at [the Department of Correc-
tion]. I can’t remember things. But it’s simply—the bot-
tom line determination is overall, and I’m quoting from
the [competency] report. ‘Overall it is the evaluator’s
opinion that [the defendant’s] uncooperativeness dur-
ing the evaluation and his lack of psychiatric symptoms
or signs indicate that his performance during much
of the evaluation is not considered to be an accurate
representation of his abilities [or knowledge] base,
especially with his past history of involvement with the
legal system.’ I think he is attempting to simply prolong
or postpone things, rather than to get to—ultimately
get to the trial. I do not see where his behavior or
anything that [the defendant] has said is indicative of
the fact that he’s not capable of understanding or not
capable of assisting his counsel. He may be unwilling
to do so, but that is not the same as being incapable.
So, in light of that, and in light of the fact that there
has been a recent evaluation, and I’ve seen nothing
different other than he repeats the same thing again and
again and again, I’ll deny any motion for evaluation.’’
In response, the defendant remarked: ‘‘Your Honor,
like I said, I’m not playing any games with you. I’m not
trying to manipulate the system.’’ The court responded
that such a comment told the court that the defendant
was ‘‘fully capable and understanding of the system and
[had] the ability to proceed.’’ The substitute informa-
tions were again read to the defendant, who continued
to claim that he did not understand. The court then
entered pleas of not guilty on all of the charges in both
informations and elected a jury trial on the defendant’s
behalf. Thereafter, the court ordered the defendant to
cooperate with defense counsel and warned him that,
if he disrupted the proceedings again, he would be held
in contempt. At that point, one final conversation
between the court and the defendant occurred:
‘‘The Defendant: I’m not going to cause any problems.
But, Your Honor—
‘‘The Court: Very good.
‘‘The Defendant: [Y]ou just met me, Your Honor, and
you already have an idea of who I am, and I continue
to say the same thing—
‘‘The Court: I have no idea who you are sir.
‘‘The Defendant: I continue to say the same thing.
This whole . . . almost eighteen months I haven’t
known anything that’s going on with my case, Your
Honor. I don’t know anything.
‘‘The Court: And simply saying I don’t know, doesn’t
quite frankly help you at this point in time.
‘‘The Defendant: How is that not helping me? I’m not
trying to ask for help, but how do I suppose to talk to
a jury, get up on the stand when I wasn’t—I don’t know
anything about my defense. It’s in my—like, I don’t have
a defense, Your Honor.
‘‘The Court: Sir, again—
‘‘The Defendant: You just—all right. You just—it’s all
about this man and he’s fighting—he might as well
take—he might as well take the sentence that I have.
‘‘The Court: Okay.
‘‘The Defendant: You giving my life to this man
right here.
‘‘The Court: Well, what everyone is trying to tell you
is you are accused of a crime. You have a right to a
trial. You are being given the opportunity for that trial.
What I am trying to warn you about is, based on your
past behavior this morning, we should have already
been jury selecting. Instead, we have continually—you
have continually stopped the events by claiming that
you don’t know what’s happening, when it’s abundantly
clear that you do know what’s happening.
‘‘The Defendant: How is that?
‘‘The Court: That is because I’m listening to what
you’ve said.’’
Despite the court’s repeated warnings, the defendant
continued to disrupt the remaining jury selection pro-
ceedings by making loud comments to Millbrandt and
asking the court questions about jury selection. This
led the court ultimately to remark: ‘‘All right. Counsel,
for the last time, and I am not repeating it. If your client
interrupts one more time with the loud questioning
of you, which is clearly heard throughout the whole
courtroom, and possibly infecting the jury, and I would
note that he certainly managed to keep quiet and not
interrupt during the time when he needed to. So, in my
opinion, this is all a show by him.’’
We begin by setting forth the standard of review and
legal principles that guide our analysis. ‘‘We review the
court’s ruling on a motion for a competency evaluation
under the abuse of discretion standard. . . . In
determining whether the trial court [has] abused its
discretion, this court must make every reasonable pre-
sumption in favor of [the correctness of] its action. . . .
Our review of a trial court’s exercise of the legal discre-
tion vested in it is limited to the questions of whether
the trial court correctly applied the law and could rea-
sonably have reached the conclusion that it did.’’ (Cita-
tion omitted; internal quotation marks omitted.) State
v. Kendall, 123 Conn. App. 625, 651, 2 A.3d 990, cert.
denied, 299 Conn. 902, 10 A.3d 521 (2010).
‘‘[T]he conviction of an accused person who is not
legally competent to stand trial violates the due process
of law guaranteed by the state and federal constitutions.
. . . This rule imposes a constitutional obligation, [on
the trial court], to undertake an independent judicial
inquiry, in appropriate circumstances, into a defen-
dant’s competency to stand trial . . . . [Section] 54-
56d (a) codified this constitutional mandate, providing
in relevant part: A defendant shall not be tried, con-
victed or sentenced while the defendant is not compe-
tent. [A] defendant is not competent if the defendant
is unable to understand the proceedings against him or
her or to assist in his or her own defense.
‘‘This statutory definition mirrors the federal compe-
tency standard enunciated in Dusky v. United States,
362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) (per
curiam). According to Dusky, the test for competency
must be whether [the defendant] has sufficient present
ability to consult with his lawyer with a reasonable
degree of rational understanding—and whether he has
a rational as well as factual understanding of the pro-
ceedings against him. . . .
‘‘Although § 54-56d (b) presumes the competency of
defendants, when a reasonable doubt concerning the
defendant’s competency is raised, the trial court must
order a competency examination. . . . Thus, [a]s a
matter of due process, the trial court is required to
conduct an independent inquiry into the defendant’s
competence whenever he makes specific factual allega-
tions that, if true, would constitute substantial evidence
of mental impairment. . . . Substantial evidence is a
term of art. Evidence encompasses all information
properly before the court, whether it is in the form of
testimony or exhibits formally admitted or it is in the
form of medical reports or other kinds of reports that
have been filed with the court. Evidence is substantial
if it raises a reasonable doubt about the defendant’s
competency . . . . The trial court should carefully
weigh the need for a hearing in each case, but this is not
to say that a hearing should be available on demand.’’
(Citation omitted; footnote omitted; internal quotation
marks omitted.) State v. Jordan, 151 Conn. App. 1,
30–32, 92 A.3d 1032, cert. denied, 314 Conn. 909, 100
A.3d 402 (2014).
The defendant claims that his convictions should be
reversed, and a new hearing ordered to determine
whether a competency evaluation is required, because
the court in the present case failed to conduct an ade-
quate, independent inquiry into his competency and,
thus, violated his due process rights. In support of his
claim, the defendant principally relies on State v. Dort,
315 Conn. 151, 106 A.3d 277 (2014). Specifically, he
claims that ‘‘the extent of the ‘inquiry’ conducted by
the court was to review a stale competency evaluation
and unilaterally interpret [the defendant’s] behavior as
obstinate and dilatory. As in Dort . . . this is insuffi-
cient to satisfy the court’s constitutional mandate.’’
Because the facts of this case are markedly different
than those in Dort, we are not persuaded.
In Dort, our Supreme Court affirmed this court’s
reversal of the defendant’s judgment of conviction fol-
lowing the trial court’s denial of the defendant’s request
for a competency hearing. State v. Dort, supra, 315
Conn. 153–55. As in the present case, the defendant in
Dort was found competent to stand trial after an earlier
competency evaluation was done. Id., 156. Before the
start of jury selection, however, defense counsel
requested a second competency evaluation. Id., 156–57.
In requesting that evaluation, defense counsel provided
several detailed representations to the court regarding
why further inquiry into the defendant’s competency
was required. Id., 156–59. Specifically, defense counsel
told the court that his client had a fundamental misun-
derstanding as to ‘‘what can be put forward as a defense
in this case’’ and ‘‘the seriousness of the charges in light
of the defense.’’ (Internal quotation marks omitted.)
Id., 158. Defense counsel also informed the court that
‘‘attempting to extrapolate the relevant information
from [the defendant] in order for [counsel] to go for-
ward with his defense is virtually impossible’’ and that
the current circumstances were not merely a tactical
disagreement between him and the defendant. (Internal
quotation marks omitted.) Id. When pressed by the
court for more details, defense counsel asserted that the
defendant lacked a sufficient understanding of certain
facts that were highly relevant to the case.4 Id., 159.
The court then reviewed the earlier competency
report and, based largely on that report, denied the
defendant’s motion for a competency evaluation after
finding that the statements made by defense counsel
in support of the motion did not constitute substantial
evidence that would give rise to a concern regarding
the defendant’s competency. Id., 175. In denying the
defendant’s motion, the court did not canvass the defen-
dant regarding his competency or consider the defen-
dant’s behavior in court. Id., 176. The court also denied
the defendant’s request to address the court regarding
his competency to stand trial. Id., 159–60. The defendant
then appealed to this court.
On appeal, we reversed the trial court’s judgment
of conviction, holding that the court had abused its
discretion by disregarding defense counsel’s assertions
that the defendant was not competent without conduct-
ing any further inquiry into the defendant’s competence.
State v. Dort, 138 Conn. App. 401, 412, 51 A.3d 1186(2012), aff’d, 315 Conn. 151, 106 A.3d 277 (2014). We
specifically concluded that the court’s inquiry into the
defendant’s competence was insufficient because the
court never made ‘‘any reference to the defendant’s
behavior or any relevant communications with the
defendant’’ and ‘‘also refused the defendant the oppor-
tunity to address the court on [the issue of compe-
tency].’’ Id.The state then appealed to our Supreme Court. On
appeal, the Supreme Court affirmed this court’s reversal
of the judgment of the trial court, albeit on different
grounds. State v. Dort, supra, 315 Conn. 178. The court
focused on whether the allegations made by the defen-
dant in support of his motion for a competency evalua-
tion constituted substantial evidence of mental impair-
ment such that further inquiry into the impairment was
required by the trial court and, if so, whether the court
sufficiently conducted such an inquiry. Id., 169–70. The
court then concluded that ‘‘[t]he statements made by
defense counsel in support of the defendant’s motion
for a competency hearing represent the sort of specific,
fact laden allegations that, if true, would constitute
substantial evidence of mental impairment on the part
of the defendant.’’ Id., 178. Accordingly, the court con-
cluded that the trial court abused its discretion when
it rejected defense counsel’s statements and instead
relied solely on the ‘‘seven month old competency report.’’
Id.
The court also rejected the state’s argument that the
trial court properly relied on its own observations of
the defendant instead of relying on counsel’s represen-
tations. Id., 182. The court held: ‘‘Although we agree
with the state that a trial court need not automatically
defer to the opinion of defense counsel on the matter
of the defendant’s competence when the trial court sees
evidence contradicting those representations before his
or her own eyes; see, e.g., State v. DesLaurier, [230
Conn. 572, 589–90, 646 A.2d 108 (1994)]; we disagree
that the defendant was canvassed here, and we note
that the trial court did not deny the defendant’s motion
on the basis of its own in-court observations regarding
the defendant’s behavior.’’ Id.The facts of this case are distinguishable from those
in Dort in two important respects. First, in the present
case, unlike in Dort, defense counsel failed to make any
specific or detailed factual representations in support of
his motion for a competency evaluation. Instead, defense
counsel stated only that the defendant had ‘‘repeatedly
indicated to me he doesn’t understand what’s happen-
ing’’ and that defense counsel therefore believed that
the defendant ‘‘does not apparently have the ability to
assist in his own defense, nor understand the charges
against him.’’ These representations were vague in
nature and unsupported by any particular allegations
that might have constituted substantial evidence of the
defendant’s lack of competency. Trial courts are only
required to conduct an independent inquiry into a defen-
dant’s competency when the defendant ‘‘makes specific
factual allegations that, if true, would constitute sub-
stantial evidence of mental impairment.’’ (Emphasis
added; internal quotation marks omitted.) State v. Jor-
dan, supra, 151 Conn. App. 31. Such specific factual
allegations simply do not exist in the present case.
Accordingly, the court did not abuse its discretion when
it declined to conduct a more thorough independent
inquiry than it did into the defendant’s competency.
Second, unlike in Dort, the court in the present case
conducted a thorough inquiry into the defendant’s com-
petency by engaging in extensive dialogues with the
defendant both before and after Millbrandt moved for
a competency evaluation, and it made reference to its
observation of the defendant’s behavior when dis-
cussing the defendant’s competency. As we set forth
previously in detail, the court and the defendant had
several in-depth conversations over the course of the
proceedings on November 6, 2019. During these lengthy
exchanges, the court was able to speak directly with
the defendant and observe his demeanor, as well as
take notice of a general pattern of disruptive conduct
by the defendant. In addition, the court also reviewed
the competency report in the case file and determined
that the report confirmed the court’s own observations
that the defendant was competent to stand trial and
that his repeated disruptions and assertions that he did
not understand were simply a delay tactic.
Furthermore, even after the court denied the defen-
dant’s motion for a competency evaluation, the court
continued to take into account the defendant’s behav-
ior, including his comments that he was not ‘‘playing
games’’ or trying to manipulate the system, as well as
the defendant’s ability to remain calm and cooperative
during the initial stages of jury selection. On the basis
of these additional observations, the court again con-
cluded that, the defendant’s repeated assertions not-
withstanding, it was abundantly clear that the defendant
did, in fact, understand what was happening.
Thus, the bases for the court’s denial of a competency
evaluation in this case were much different than that
in Dort. In State v. Dort, supra, 315 Conn. 182, ‘‘the trial
court did not deny the defendant’s motion on the basis
of its own in-court observations regarding the defen-
dant’s behavior.’’ In the present case, by contrast, the
court specifically referenced the defendant’s behavior,
which it had observed at length, when denying the
motion for a competency evaluation. This court has
held that relying on such information is sufficient. See
State v. Jordan, supra, 151 Conn. App. 35–37 (court’s
denial of defendant’s motion for competency evaluation
was not abuse of its discretion when denial was based
on court’s review of previous competency report and
court’s own observations of defendant). This court also
previously has held that behavior of a defendant similar
to that observed by the court in this case does not
require a competency evaluation. See State v. Johnson,
22 Conn. App. 477, 489, 578 A.2d 1085 (defendant’s
‘‘obstreperous, uncooperative or belligerent behavior
did not obligate the court to order a competency exami-
nation,’’ particularly when defendant’s behavior
showed he had ability to be cooperative but did not
want to), cert. denied, 216 Conn. 817, 580 A.2d 63 (1990);
see also State v. Paulino, 127 Conn. App. 51, 66, 12
A.3d 628 (2011) (‘‘although the defendant did admit that
he often was confused by court procedures, a lack of
legal expertise is not indicative of incompetence’’).
Consequently, contrary to the defendant’s claim, the
court was not required to accept defense counsel’s bald
assertion that the defendant lacked the capacity to
understand the proceedings and assist in his own
defense. First, it is clear from the transcript of the
November 6, 2019 hearing that the court did consider
defense counsel’s allegations regarding the defendant’s
competency. It simply was unpersuaded by those allega-
tions, in large part because the court had been able to
observe and talk with the defendant during the hearing.
On the basis of the court’s own observations of and
interactions with the defendant, it was reasonable for
the court to give less weight to defense counsel’s repre-
sentations regarding the defendant’s competency. Sec-
ond, we are unpersuaded by the defendant’s argument
that his counsel’s opinion regarding his competency
was entitled to greater weight because the motion for
a competency evaluation was made after a brief recess
during which counsel had an opportunity to talk pri-
vately with the defendant. Following the recess, defense
counsel provided the court with no specific factual alle-
gations concerning the defendant’s lack of competency.
Furthermore, the court engaged in an extensive dia-
logue with the defendant after the recess and specifi-
cally referred to its observations of and interactions
with the defendant when it denied the defendant’s
motion.
We also reject the defendant’s argument that the court
should not have considered the defendant’s prior com-
petency evaluation because it was one year old. In State
v. Jordan, supra, 151 Conn. App. 36–37, the defendant
made the same argument. In response, this court noted:
‘‘The defendant . . . has not cited, and we have not
found, any case law that establishes a bright line rule
as to when a competency report becomes stale. State v.
Mordasky, 84 Conn. App. 436, 447, 853 A.2d 626 (2004).
Rather, the court’s inquiry when deciding whether to
order another competency evaluation is whether the
defendant’s condition has materially changed since a
previous finding of competence.’’ (Internal quotation
marks omitted.) State v. Jordan, supra, 37. As was true
of the defendant in Jordan, in the present case, the
defendant failed to produce any evidence that demon-
strated that his condition had changed since the 2018
evaluation. Moreover, as previously noted in this opin-
ion, the 2018 competency report was not the only source
of information on which the court relied when making
its decision. Accordingly, the court’s reliance, in part,
on the 2018 competency report does not undermine our
conclusion that the court did not abuse its discretion
in denying the defendant’s motion for a competency
evaluation.
The defendant also argues that, by relying on the previ-
ous competency report to deny his motion, the court
ignored and discounted the defendant’s prior history of
mental impairment. We disagree. The report specifically
discussed the defendant’s mental health history, and
there is nothing in the record to indicate that the court
did not consider that portion of the report in denying
the defendant’s motion.
Finally, the defendant argues that the court erred when
it failed to canvass the defendant before denying his
motion. There are two problems with this argument.
First, it assumes that there was no canvass of the defen-
dant in the present case. As set forth previously in this
opinion, the court had extensive discussions with the
defendant from which it could form an opinion as to
the defendant’s competency. During these discussions,
the defendant initially stated that he was not ready to
go to trial, had not had sufficient time to meet with his
counsel, who he did not believe was prepared for trial,
and had questions about the jury selection process. He
also asked whether the cases were going to be tried
separately. Thus, he demonstrated that he understood
what was happening but just did not want to go forward
with jury selection on a consolidated trial that day. It
was only after the court told the defendant that jury
selection was going forward that he began stating that
he did not understand what was happening. The court
then engaged in further discussions with the defendant
before defense counsel made his motion for a compe-
tency evaluation, which the court denied. Although the
court did not specifically ask the defendant if he under-
stood the nature of the charges against him and whether
could assist in his own defense, it simply is inaccurate
to say that the court did not canvass the defendant.
Second, in Dort, the Supreme Court made clear that
some form of a canvass of the defendant was required
because defense counsel had made ‘‘specific, fact laden
allegations that, if true, would constitute substantial
evidence of mental impairment on the part of the defen-
dant.’’ State v. Dort, supra, 315 Conn. 178. In the present
case, no such allegations were made.
In sum, for the foregoing reasons, we conclude that
the court did not abuse its discretion by denying the
defendant’s motion for a competency evaluation or con-
ducting a further inquiry of its own before denying the
motion.
II
The defendant next claims that the court erred when
it granted the state’s motion to join for trial the charges
in the two separate informations. Specifically, the
defendant argues that joinder was improper under the
second State v. Boscarino, 204 Conn. 714, 723, 529 A.2d
1260 (1987) factor because the conduct alleged in the
domestic violence case was ‘‘of a brutal or shocking
nature, far in excess of the allegations underlying the
interfering with an officer charge [in the hospital case].’’
The defendant further argues that insufficient jury
instructions were given to cure the prejudicial effect
of the joinder. We agree that the court erred in joining
the charges in the two separate informations, but we
also conclude that, under the circumstances of this
case, the court’s instructions to the jury were sufficient
to cure any prejudice caused by the joinder.
The following additional facts and procedural history
are necessary to our resolution of this claim. On Sep-
tember 23, 2018, the state filed a motion for joinder of
the charges in the two informations, claiming that the
‘‘charges involve discrete, easily distinguishable factual
scenarios . . . the crimes are not violent in nature and
do not concern brutal or shocking conduct on the defen-
dant’s part . . . the incidents are consecutive events
. . . and . . . the trial will not be complex.’’ On
November 6, 2019, the defendant filed an objection to
the motion, asserting that joinder was ‘‘inappropriate
as it would result in significant and substantial prejudice
to the defendant [and] allow the jury to hear repetitious
allegations concerning violent conduct and might allow
the jury to conclude guilt based on what amounts to
propensity evidence.’’
Also on November 6, 2019, the court, Klatt, J., held
a hearing on the state’s motion. At the hearing, the
prosecutor conceded that the evidence in the two cases
was not cross admissible but argued that joinder was
nonetheless proper. Defense counsel disagreed and
argued that joinder of the two cases would ‘‘amount to
propensity evidence, thus allowing the jury to conclude
that, because [the defendant] is charged in two informa-
tions occurring on the same date, or two separate inci-
dents occurring on the same date, that he is essentially
a bad person.’’ The court then conducted an analysis
under State v. Boscarino, supra, 204 Conn. 722–24, and
concluded that joinder would not substantially preju-
dice the defendant because (1) the charges were dis-
creet and based on easily distinguishable facts, (2) the
crimes, although violent in nature, were not shocking
to the conscience, and (3) joinder would not result in
a lengthy or complicated trial. The charges in the two
informations were then joined for presentation at a
single trial. On appeal, the defendant challenges only the
court’s conclusion as to the second Boscarino factor.
We first set forth the standard of review and legal
principles that guide our analysis. ‘‘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 cura-
tive power of the court’s instructions. . . .
‘‘A long line of cases establishes that the paramount
concern [when joining informations] is whether the
defendant’s right to a fair trial will be impaired. There-
fore, in considering whether joinder is proper, this court
has recognized that, where evidence of one incident
would be admissible at the trial of the other incident,
separate trials would provide the defendant no signifi-
cant benefit. . . . Under such circumstances, the
defendant would not ordinarily be substantially preju-
diced by joinder of the offenses for a single trial. . . .
Accordingly, we have found joinder to be proper where
the evidence of other crimes or uncharged misconduct
[was] cross admissible at separate trials. . . . Where
evidence is cross admissible, therefore, our inquiry ends.
‘‘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 cir-
cumstances, however, may expose the defendant to
potential prejudice for three reasons: First, when sev-
eral 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 . . . pre-
sent[s] the . . . danger that a defendant will be sub-
jected 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. . . .
‘‘[Accordingly, the] court’s discretion regarding join-
der . . . is not unlimited; rather, that discretion must
be exercised in a manner consistent with the defen-
dant’s right to a fair trial. Consequently, [in State v.
Boscarino, supra, 204 Conn. 722–24, our Supreme
Court] 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 scenar-
ios; (2) whether the crimes were of a violent nature or
concerned brutal or shocking conduct on the defen-
dant’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.’’ (Citation omitted; internal quotation marks
omitted.) State v. McKethan, 184 Conn. App. 187, 194–
96, 194 A.3d 293, cert. denied, 330 Conn. 931, 194 A.3d
779 (2018).
Before turning to the merits of the defendant’s joinder
claim we address the state’s argument that the claim
was not properly preserved for appellate review. The
state argues that the claim is unpreserved because (1)
‘‘the defendant never contested the state’s representa-
tion of the facts as they relate to the second Boscarino
factor’’ and (2) ‘‘when [T] testified at trial, the defendant
never moved to sever based on the supposed change
in factual circumstances, namely, the more shocking
or brutal nature of the ‘domestic violence’ case allega-
tions.’’ We disagree and conclude that this claim was
preserved.
The state is correct that, as summarized above, the
defendant never specifically addressed the second
Boscarino factor in either his written objection or at
the hearing. The court, however, in its ruling on the
state’s motion for joinder, did address that factor, stat-
ing in relevant part: ‘‘The crimes, while they are violent
in nature, are certainly not so shocking to the con-
science that the second factor would be triggered.’’
Because the court addressed the issue now raised on
appeal, the claim was properly preserved for appellate
review. See State v. McKethan, supra, 184 Conn. App.
194 n.2 (defendant’s challenge to second Boscarino fac-
tor was preserved even though defendant did not specif-
ically challenge factor before trial court because court
addressed second factor in its ruling). Furthermore, the
fact that the defendant did not move to sever the two
cases after T testified does not undermine our conclu-
sion that the defendant’s claim is preserved. Again,
because the trial court specifically addressed the violent
nature of the defendant’s charges in its ruling on the
state’s motion for joinder, the claim is preserved. See
id. (‘‘Unlike the trial court in [State v.] Snowden, [171
Conn. App. 608, 157 A.3d 1209, cert. denied, 326 Conn.
903, 163 A.3d 1204 (2017)], the trial court in this case
specifically addressed the violent nature of the defen-
dant’s murder charge in its ruling, which the defendant
presently challenges on appeal. We therefore conclude
that the defendant’s claim is preserved for appellate
review.’’).
We now move to the merits of the defendant’s claim.
We agree with the defendant that the second Boscarino
factor weighs against joinder and that the court conse-
quently abused its discretion when it joined for trial
the charges in the two informations.
‘‘Whether one or more offenses involved brutal or
shocking conduct likely to arouse the passions of the
jurors must be ascertained by comparing the relative
levels of violence used to perpetrate the offenses
charged in each information.’’ (Internal quotation marks
omitted.) State v. Payne, 303 Conn. 538, 551, 34 A.3d
370 (2012). The domestic violence case was based on
allegations and evidence that the defendant struck, bit,
strangled, spit at, and grabbed T, and, at one point,
threw her onto the kitchen floor and hit her in the
mouth so hard that she began to bleed. In the hospital
case, however, far less violence was involved. Although
the defendant did bite a hospital employee during that
incident, that was the only violence committed and
the incident was described by the hospital’s security
supervisor as ‘‘[j]ust another day at work. Unruly patient
and just honestly another day at work.’’ Because the
defendant’s conduct in the domestic violence case was
significantly more brutal and shocking than his conduct
in the hospital case, we conclude that the second Bosc-
arino factor weighs against joinder. See State v. Ellis,
270 Conn. 337, 378, 852 A.2d 676 (2004) (defendant’s
abuse of one victim was substantially more egregious
than his abuse of other victims and, therefore, joinder
was improper under second Boscarino factor). Accord-
ingly, the court erred when it found that the second
Boscarino factor was not triggered and, thus, abused
its discretion when it joined for trial the charges in the
two informations.
Our analysis of this claim, however, does not end
here. Having concluded that joinder of the defendant’s
two cases was improper, we must decide whether the
court’s jury instructions cured any potential prejudice.
In assessing any prejudice to the defendant it is
important to note that any prejudice to the defendant
could have occurred only with respect to the charges
in the hospital case, which was the case that involved
substantially less egregious allegations. By contrast, the
fact that the jury heard evidence regarding the hospital
case was not prejudicial to the defendant, under the
second Boscarino factor, in the domestic violence case
because the allegations in the domestic violence case
were more shocking and brutal. See State v. Payne,
supra, 303 Conn. 554 n.19. Consequently, we must deter-
mine whether the joinder of the charges in the two
informations prejudiced the defendant in the hospital
case.
‘‘On appeal, the burden rests with the defendant to
show that joinder was improper by proving substantial
prejudice that could not be cured by the trial court’s
instructions to the jury. . . . [A]lthough a curative
instruction is not inevitably sufficient to overcome the
prejudicial impact of [inadmissible other crimes] evi-
dence . . . where the likelihood of prejudice is not
overwhelming, such curative instructions may tip the
balance in favor of a finding that the defendant’s right
to a fair trial has been preserved.’’ (Citation omitted;
internal quotation marks omitted.) State v. McKethan,
supra, 184 Conn. App. 198.
In the present case, the court instructed the jury as
follows with regard to the charges against the defen-
dant:
‘‘The defendant here is charged with ten counts in
two separate informations. The defendant is entitled to
and must be given by you, a separate and independent
determination of whether he is guilty or not guilty as
to each count. Each of the counts charged is a separate
crime. The state is required to prove each element in
each count beyond a reasonable doubt.
‘‘Each count must be deliberated upon separately.
The total number of counts charge[d] does not add to
the strength of the state’s case. You may find that some
evidence applies . . . to more than one count, in more
than one information. The evidence, however, must be
considered separately as to each element in each count.
Each count is a separate entity.
‘‘You must consider each count separately and return
a separate verdict for each count. This means you may
reach opposite verdicts on different counts. A decision
on one count does not bind your decision on another
account. Now, again, as I have indicated, the defendant
is charged in two separate informations.’’
The court further instructed the jury on the two sepa-
rate counts of interfering with an officer as follows:
‘‘Now, interfering with an officer. The defendant is
charged in two separate counts with interfering with
an officer. . . . Now, I will remind you of my previous
instructions on multiple charges during your delibera-
tions.
‘‘The defendant is charged with two counts of interfer-
ing with an officer. While the elements are the same,
each of the counts charged is a separate crime. The state
charges that separate incidents occurred at different
times, in different locations, and with three distinct
complainants. Each count must be considered sepa-
rately, and must be given by you a separate and indepen-
dent determination of whether [the defendant] is guilty
or not guilty as to each count.’’
The defendant argues that these instructions were
insufficient because, despite the court’s repeated instruc-
tion that each count was to be considered separately,
the court never instructed the jury that the evidence in
both cases was not cross admissible, and, thus, that
the jury could not consider the evidence in the domestic
violence case in determining the defendant’s guilt in the
hospital case.
Although we agree that it is better practice for a trial
court to give a specific instruction that the evidence is
not cross admissible, we conclude that the jury instruc-
tions given in this case were adequate because the risk
of prejudice was very low. See State v. McKethan, supra,
184 Conn. App. 199 (court’s repeated instructions to
jury that each count must be considered separately
cured prejudice caused by joinder because risk of preju-
dice was not overwhelming). We reach this conclusion
for two reasons. First, the instructions given by the
court in the present case, with one exception, were
very similar to those given by the trial court in McKe-
than, which this court determined were sufficient to
cure any possible prejudice resulting from the errone-
ous joinder. Id. The one difference between the instruc-
tions in this case and those in McKethan is that, in this
case, the court instructed the jury that it may find that
some evidence applies ‘‘in more than one information.’’
That single statement should not have been made by
the court because the state conceded that the evidence
supporting each information was not cross admissible.
Nevertheless, we cannot conclude that the defendant
was prejudiced by this error. The error was an isolated
occurrence outweighed by the court’s repeated instruc-
tions to the jury that it must consider each count against
the defendant separately. Moreover, the defendant did
not object to the statement after the court made it. In
fact, on appeal the defendant has not claimed any error
as a result of this statement.
Second, although the defendant’s state of mind was
at issue regarding the hospital incident, there was no
dispute as to the events that occurred during that inci-
dent. The defendant himself testified at trial that he
threw himself off of the stretcher and bit a hospital
employee while receiving treatment at St. Mary’s and,
at oral argument before this court, the defendant again
conceded that the events of the hospital incident were
not in dispute. Given that what happened at the hospital
is undisputed, we conclude that it is highly unlikely that
the violent nature of the facts adduced in the domestic
violence case could have prejudiced the jury’s verdict
as to his state of mind during the hospital incident. This
conclusion is strengthened by the fact that the jury
acquitted the defendant of charges in both cases, includ-
ing of the more serious charge of assault of a police
officer in the hospital case, which highlights the limited
prejudicial impact that joinder had. See State v. Davis,
286 Conn. 17, 37, 942 A.2d 373 (2008) (‘‘by acquitting
the defendant of all of the offenses charged in [case
A], the jury evidently was able to keep the three cases
separate and did not blindly condemn the defendant on
the basis of the evidence adduced in [case B]’’), over-
ruled on other grounds by State v. Payne, 303 Conn.
528, 549, 34 A.3d 370 (2012); see also State v. Atkinson,
235 Conn. 748, 766, 670 A.2d 276 (1996) (‘‘by returning
a verdict of not guilty on the charge of possession of
a weapon in a correctional institution . . . the jury evi-
dently was able to separate the two cases and did not
blindly condemn the defendant on his participation in
the murder’’); State v. Gerald A., 183 Conn. App. 82,
123 n.21, 191 A.3d 1003 (‘‘[w]e conclude that acquittal
of the charges related to [one victim’s] allegations dem-
onstrates that the jury properly considered each infor-
mation separately’’), cert. denied, 330 Conn. 914, 193
A.3d 1210 (2018); State v. Rodriguez, 91 Conn. App.
112, 120–21, 881 A.2d 371 (‘‘Although the jury found the
defendant guilty of all the counts of burglary, attempt
to commit burglary, larceny and criminal trespass that
it considered, it found the defendant not guilty of one
count of breach of the peace in the second degree.
That acquittal demonstrated that the jury was able to
consider each count separately and, therefore, was not
confused or prejudiced against the defendant.’’), cert.
denied, 276 Conn. 909, 886 A.2d 423 (2005). But see
State v. Boscarino, supra, 204 Conn. 724 (acquittals in
joined cases did not ‘‘establish that the results in the
four cases, had they been separately tried, would have
been the same’’).
Although we conclude that the court’s instructions,
on the specific facts of the present case, were sufficient,
as noted previously in this opinion, it would have been
preferable for the court expressly to have informed the
jury that the evidence adduced by the state with regard
to the domestic violence case was not admissible as
proof in the hospital case, and to have informed the
jury that the cases had been consolidated solely for the
purpose of judicial economy. See State v. Delgado, 243
Conn. 523, 536 n.13, 707 A.2d 1 (1998) (advising that
better practice when cases have been joined is to explic-
itly instruct that evidence in one case is not admissible
as proof in separate case). Giving such an instruction
further minimizes any potential prejudice that might
come with joining charges in separate informations and
serves to underscore for the jury that it must consider
the evidence in each case separately.5
In sum, for the reasons we have explained, we con-
clude that, even though the court erred by joining the
defendant’s two cases, the jury instructions that the
court gave sufficiently cured the risk of prejudice to
the defendant and, therefore, preserved the jury’s ability
to fairly and impartially consider the offenses charged
in the jointly tried cases. We therefore conclude that
the court did not abuse its discretion in consolidating
the two informations for trial.
The judgments are affirmed.
In this opinion the other judges concurred.
1
General Statutes § 54-56d (c) provides: ‘‘If, at any time during a criminal
proceeding, it appears that the defendant is not competent, counsel for the
defendant or for the state, or the court, on its own motion, may request an
examination to determine the defendant’s competency.’’
2
In accordance with federal law; see 18 U.S.C. § 2265 (d) (3) (2018), as
amended by the Violence Against Women Act Reauthorization Act of 2022,
Pub. L. No. 117-103, § 106, 136 Stat. 49; we decline to identify any person
protected or sought to be protected under a protection order, protective
order, or a restraining order that was issued or applied for, or others through
whom that person’s identity may be ascertained.
3
Additional facts about the joinder of the two informations will be pro-
vided in part II of this opinion.
4
Defense counsel specifically stated: ‘‘And there’s been things he’s seized
upon, including the fact that there’s . . . an alleged gun. And he’s been
informed that that’s not whether the gun is operable or whether it’s a rubber
gun or it’s made of wood—that does not constitute a defense. I cannot for
the life of me extrapolate much more in the way of facts from him at this
juncture. I don’t know whether it’s because he’s seizing up today or what
. . . but I need the information that he’s talking about because the charges
have just changed and now that’s not an issue.’’ (Internal quotation marks
omitted.) State v. Dort, supra, 315 Conn. 174–75.
5
Our review of the Connecticut Judicial Branch’s model criminal jury
instructions reveals that the model instructions on multiple informations
do not contain the language that we have suggested here. See Connecticut
Criminal Jury Instructions 2.6-11, available at https://www.jud.ct.gov/JI/
Criminal/Criminal.pdf (last visited June 3, 2022). Accordingly, we encourage
the Criminal Jury Instruction Committee to consider adding language to the
model instructions directing that, where cases have been joined but the
evidence is not cross admissible, the jury cannot use evidence from one case
to reach its result in another. The committee may find the jury instructions
discussed in State v. Boscarino, supra, 204 Conn. 719 n.6, and State v.
Iovieno, 14 Conn. App. 710, 722 n.7, 543 A.2d 766, cert. denied, 209 Conn.
805, 548 A.2d 440 (1988), to be helpful examples of such instructions.