State v. Louis D.

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STATE OF CONNECTICUT v. LOUIS D.*
(AC 39335)
Lavine, Prescott and Bright, Js.
Syllabus
Convicted, under three informations, of the crime of criminal possession
of a firearm and of three counts of the crime of criminal violation of a
protective order, the defendant appealed to this court. On appeal, he
claimed that the trial court improperly consolidated the three informa-
tions for trial and improperly denied his motion for a judgment of
acquittal. The defendant claimed, inter alia, that the improper joinder
instilled the presumption that he had a bad character and a propensity
for criminal behavior, and that the prejudice could not be cured by the
trial court’s instructions. The defendant had been arrested and charged
with violating a protective order that prohibited him from harassing the
victim. Subsequently, he was arrested and charged with violating a
protective order that prohibited him from having contact with the victim.
Thereafter, he was arrested and charged with criminal possession of a
firearm and violation a protective order that had required him to surren-
der all firearms and ammunition. Prior to the defendant’s trial, the state
filed a motion to consolidate the three informations, and the defendant
filed a motion for severance, arguing that the joinder of the three cases
would prejudice him severely. Following a hearing, the trial court granted
the state’s motion to consolidate. Subsequently, the state filed a consoli-
dated long form information charging the defendant with one count of
criminal possession of a firearm and three counts of criminal violation
of a protective order. Following a jury trial, the defendant was convicted
of the charges, and this appeal followed. Held:
1. The trial court’s ruling granting the state’s motion to consolidate the
informations was not an abuse of discretion, the defendant having failed
to demonstrate that the joinder of the informations caused him substan-
tial or unfair prejudice; although all three charges for violation of a
protective order alleged violations of increasingly restrictive protective
orders with different conditions, the defendant’s behavior underlying
each violation was not so similar so as to substantially prejudice him,
as the three informations involved discrete, factually distinguishable
scenarios, the trial was not particularly lengthy or complex given that
the presentation of evidence lasted four days and thirteen witnesses
were called, there was little chance that the jury would have confused
the evidence as to each charge given the drastically different factual
scenarios underlying the charges, and the court further reduced any
possibility of confusion by instructing the jury that it had consolidated
separate cases to be tried together and that the jury was to consider
each separately, which minimized any risk of prejudice that might have
resulted from the joinder of the three cases.
2. The defendant’s claim that the trial court improperly denied his motion
for a judgment of acquittal as to the count of criminal possession of a
firearm was unavailing, there having been sufficient evidence to establish
that the state had proven beyond a reasonable doubt that the defendant
was afforded notice and an opportunity to be heard prior to the issuance
of the subject protective order on December 26, 2014, as required by
statute ([Supp. 2014] § 53a-217 [a]); the plain language of that statute,
when read in conjunction with other statutes, demonstrated that the
requirement of ‘‘notice and an opportunity to be heard’’ in the statute
was satisfied by the defendant’s arraignment on December 26, 2014, at
which the court informed him that a protective order was being issued
against him and that he was prohibited from possessing firearms, and
the defendant indicated that he understood that he could not possess
firearms, if the defendant desired an evidentiary hearing on the matter,
he could have requested such a hearing at the arraignment, and if the
legislature had intended to imposed the specific requirement of an evi-
dentiary hearing prior to the issuance of the protective order, it could
have expressly done so but failed to include such language in the sub-
ject statute.
Argued December 11, 2017—officially released March 27, 2018
Procedural History
Substitute information, in the first case, charging the
defendant with the crime of criminal violation of a pro-
tective order, and substitute information, in the second
case, charging the defendant with the crime of criminal
violation of a protective order, and substitute informa-
tion, in the third case, charging the defendant with
the crimes of criminal possession of a firearm and of
criminal violation of a protective order, brought to the
Superior Court in the judicial district of Fairfield, geo-
graphical area number two, where the cases were con-
solidated; thereafter, the matter was tried to tried to
the jury before the court, Holden, J.; subsequently, the
court denied the defendant’s motion for a judgment of
acquittal as to the count of criminal possession of a
firearm; verdicts and judgments of guilty, from which
the defendant appealed to this court. Affirmed.
Guy P. Soares, with whom was Justin P. Soares, for
the appellant (defendant).
Linda F. Currie-Zeffiro, assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Kevin Dunn, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
LAVINE, J. The defendant, Louis D., appeals from
the judgments of conviction, rendered after a jury trial,
of three counts of criminal violation of a protective
order in violation of General Statutes § 53a-223 (a) and
one count of criminal possession of a firearm in viola-
tion of General Statutes (Supp. 2014) § 53a-217 (a) (4)
(A) arising out of three separate informations.1 On
appeal, the defendant claims that the trial court improp-
erly (1) consolidated the three informations for trial,
and (2) denied his motion for a judgment of acquittal.
We disagree and, accordingly, affirm the judgments of
the trial court.
The following facts and procedural history are rele-
vant. In 2013, the victim commenced an action against
the defendant seeking a dissolution of their marriage.
On December 25, 2014, a dispute between the victim
and the defendant escalated to the point where the
defendant pushed the victim to the ground. The victim
contacted the police, and the defendant was arrested
for disorderly conduct. At the defendant’s December
26, 2014 arraignment, the court, Devlin, J., issued a
protective order as a condition of the defendant’s
release on bail. The protective order permitted the
defendant to live in the family residence, but required
him to surrender all firearms and provided that he could
not ‘‘assault, threaten, abuse, harass, follow, interfere
with or stalk’’ the victim.
The defendant continued to reside in the family home
with the victim and their son. On January 4, 2015, the
defendant pushed the victim into a safe room in the
basement and closed the vault door until she pleaded
to be released. In February, 2015, the victim and the
couple’s son moved into the home of the victim’s
brother. On March 17, 2015, the court, Doyle, J., issued
a protective order that included the same terms as the
December 26, 2014 protective order and permitted the
defendant to return to the family residence one time
with police to retrieve his belongings, but ordered him
to otherwise stay away from that residence or wherever
the victim lived.
On March 18, 2015, the victim and the couple’s son
moved back into the family residence. That night, the
defendant telephoned the victim and threatened to take
his own life and the life of the family dog if she did
not cease all legal proceedings. The following day, the
victim had a security company assess the family resi-
dence to install security cameras in the home. On March
19, 2015, the defendant telephoned the victim and
threatened to break the security cameras. The victim
informed the police, and a warrant was issued for the
defendant’s arrest. The defendant was arrested and
charged in docket number CR-15-0283581-S with vio-
lating the March 17, 2015 protective order that prohib-
ited him from harassing the victim. On March 30, 2015,
the court, Pavia, J., issued a third protective order that
the defendant not contact the victim in any manner.
On April 5, 2015, the defendant had his sister, who
lived in the same duplex as the victim and his son,
deliver an Easter basket to his son. The defendant’s
sister placed the basket in the foyer of the duplex. The
victim noticed that the defendant had addressed an
Easter card to her. The victim notified the police, and
the defendant was arrested and charged in docket num-
ber CR-15-0284214-S with a violation of the March 30,
2015 protective order that prohibited him from having
contact with the victim.
On July 23, 2015, the victim hired a locksmith to open
the vault door of the safe room in the basement. Inside
the safe room was a .22 caliber Ruger pistol along with
rifle and pistol ammunition. The victim informed the
police. The victim also found a .25 caliber Berretta
handgun in the safe room and informed the police again.
The Ruger and the Beretta were both registered to a
friend of the defendant, to whom he had transferred
registration of the Beretta and the Ruger years earlier
when he was not permitted to possess firearms. The
defendant was arrested on November 29, 2015, and was
charged, by way of substitute long form information in
docket number CR-15-0287545-S, with criminal posses-
sion of a firearm, and a violation of the December 26,
2014 protective order requiring him to surrender all
firearms and ammunition.
Before trial commenced, the state moved for a con-
solidated trial on the charges in the three informations.
The defendant filed a motion for severance arguing
that the joinder of the three cases would prejudice him
severely. Following a hearing, the court, Holden, J.,
granted the state’s motion to consolidate. The state then
filed a consolidated long form information charging the
defendant with one count of criminal possession of
a firearm and three counts of criminal violation of a
protective order.
Following a jury trial, the defendant was convicted
of one count of criminal possession of a firearm and
three counts of violation of a protective order. The
defendant was sentenced to seven years incarceration,
execution suspended after three and one-half years,
with five years probation. This appeal followed. Addi-
tional facts will be set forth as necessary.
I
The defendant first claims that the court improperly
consolidated the three informations for trial. We
disagree.
‘‘[I]n 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.’’ (Internal quotation marks omitted.) State v.
LaFleur, 307 Conn. 115, 158, 51 A.3d 1048 (2012). ‘‘At
trial, the burden rests with the state to prove that joinder
will not substantially prejudice a defendant. As our
Supreme Court [has] clarified, when charges are set
forth in separate informations, presumably because
they are not of the same character, and the state has
moved in the trial court to join the multiple informations
for trial, the state bears the burden of proving that
the defendant will not be substantially prejudiced by
joinder pursuant to Practice Book § 41-19. The state
may satisfy this burden by proving, by a preponderance
of the evidence, either that the evidence in the cases
is cross admissible or that the defendant will not be
unfairly prejudiced pursuant to the Boscarino factors.
. . . 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.’’ (Citation omitted; emphasis
added; footnote omitted; internal quotation marks omit-
ted.) State v. Wilson, 142 Conn. App. 793, 800–801, 64
A.3d 846, cert. denied, 309 Conn. 917, 70 A.3d 40 (2013).
In State v. Payne, 303 Conn. 538, 548, 34 A.3d 370
(2012), our Supreme Court overruled prior precedent
and concluded ‘‘that the blanket presumption in favor
of joinder . . . is inappropriate and should no longer
be employed. . . . In cases where the evidence cannot
be used for cross admissible purposes . . . the blanket
presumption in favor of joinder is inconsistent with
the well established evidentiary principle restricting the
admission of character evidence.’’ (Citations omitted;
internal quotation marks omitted.)
‘‘The court’s discretion regarding joinder, however,
is not unlimited; rather, that discretion must be exer-
cised in a manner consistent with the defendant’s right
to a fair trial. Consequently, [in State v. Boscarino, 204
Conn. 714, 722–24, 529 A.2d 1260 (1987), our Supreme
Court] identified several factors that a trial court should
consider in deciding whether a severance may be neces-
sary to avoid undue prejudice resulting from consolida-
tion of multiple charges for trial. These factors include:
(1) whether the charges involve discrete, easily distin-
guishable factual scenarios; (2) whether the crimes
were of a violent nature or concerned brutal or shocking
conduct on the defendant’s part; and (3) the duration
and complexity of the trial. . . . If any or all of these
factors are present, a reviewing court must decide
whether the trial court’s jury instructions cured any
prejudice that might have occurred.’’ (Citations omitted;
internal quotation marks omitted.) State v. Payne,
supra, 303 Conn. 545. The defendant argues that he was
prejudiced by the court’s joinder of the three informa-
tions on the basis of the first and third Boscarino factors
only2 and that the prejudice could not be cured by the
trial court’s instructions.3 Specifically, the defendant
argues that ‘‘[g]iven the inflammatory nature of the
three separate cases, both alleging [the defendant’s]
abuse as a husband and repeated violations of criminal
protective orders, the improper joinder instilled the pre-
sumption that [the defendant] had a bad character and
a propensity for criminal behavior. It increased the risk
that the jury simply obtained the view that [the defen-
dant] was just another abusive husband that this state
is so accustomed to of late.’’ We disagree.
As to the first Boscarino factor, the defendant’s three
informations involved discrete, factually distinguish-
able scenarios.4 The defendant argues that his behavior
in each case involved ‘‘several months of overlapping
conduct’’ wherein the violation of a protective order
‘‘was at the core of each case.’’ Although all three
charges for violation of a protective order alleged viola-
tions of increasingly restrictive protective orders with
different conditions, the defendant’s behavior underly-
ing each violation was not so similar so as to substan-
tially prejudice him. One information alleged the
defendant violated the March 17, 2015 protective order
by making a telephone call to the victim on March 18,
2015, threatening the family dog, and making a tele-
phone call on March 19, 2015, threatening to break
security cameras at the family residence. Another infor-
mation stemmed from the defendant’s addressing an
Easter card to the victim in violation of the no contact
provision of the third protective order. A third informa-
tion alleged that the defendant possessed firearms in
violation of the December 26, 2014 protective order.
Each information alleged easily distinguishable factual
scenarios. In fact, the defendant acknowledges that ‘‘the
factual scenarios for each separate offense were drasti-
cally different from one another.’’
With respect to the third Boscarino factor, the trial
was not particularly lengthy or complex. ‘‘The factor,
at its core, is a question of whether the jury will confuse
the evidence as a result of a long, complicated trial.’’
State v. Perez, 147 Conn. App. 53, 100, 80 A.3d 103
(2013), aff’d, 322 Conn. 118, 139 A.3d 654 (2016). The
joinder of the three informations, which alleged three
separate violations of protective order counts, did not
result in a trial that was long; the presentation of evi-
dence lasted four days and thirteen witnesses were
called. See, e.g., State v. David P., 70 Conn. App. 462,
469, 800 A.2d 541, 548 (2002) (concluding that six day
trial, including argument and jury instruction, with thir-
teen witnesses not unduly long or complex), cert.
denied, 262 Conn. 907, 810 A.2d 275 (2002). Further-
more, given the ‘‘drastically different’’ factual scenarios
underlying the charges, there was little chance that the
jury would confuse the evidence as to each charge.
The court further reduced any possibility of confu-
sion by instructing the jury that it had consolidated
separate cases to be tried together and that the jury was
to consider each separately. This instruction minimized
any risk of prejudice that might have resulted from the
joinder of the three cases. ‘‘[W]e presume, absent a fair
indication to the contrary, that the jury followed the
instruction of the court as to the law.’’ State v. Lasky,
43 Conn. App. 619, 629, 685 A.2d 336 (1996), cert. denied,
239 Conn. 959, 688 A.2d 328 (1997). We conclude that
the defendant has not demonstrated that the joinder
of the informations caused him substantial or unfair
prejudice. Accordingly, we conclude that the court’s
ruling on the state’s motion to consolidate the informa-
tions was not an abuse of discretion.
II
The defendant also claims that the court improperly
denied his motion for judgment of acquittal as to the
count of criminal possession of a firearm. We disagree.
After the state rested, the defendant filed a motion
for a judgment of acquittal as to the charge of criminal
possession of a firearm on the ground that the state
failed to prove that he was given notice and an opportu-
nity to be heard, as required by § 53a-217 (a), prior to
Judge Devlin issuing the December 26, 2014 protective
order. Judge Holden denied the defendant’s motion.
‘‘The standard of appellate review of a denial of a
motion for a judgment of acquittal has been settled by
judicial decision. . . . The issue to be determined is
whether the jury could have reasonably concluded,
from the facts established and the reasonable infer-
ences which could be drawn from those facts, that
the cumulative effect was to establish guilt beyond a
reasonable doubt. . . . The facts and the reasonable
inferences stemming from the facts must be given a
construction most favorable to sustaining the jury’s ver-
dict.’’ (Internal quotation marks omitted.) State v. Bal-
buena, 168 Conn. App. 194, 199, 144 A.3d 540, cert.
denied, 323 Conn. 936, 151 A.3d 384 (2016).
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In seeking to determine that
meaning, General Statutes § 1-2z directs us first to con-
sider the text of the statute itself and its relationship
to other statutes. If, after examining such text and con-
sidering such relationship, the meaning of such text is
plain and unambiguous and does not yield absurd or
unworkable results, extratextual evidence of the mean-
ing of the statute shall not be considered. . . . The test
to determine ambiguity is whether the statute, when
read in context, is susceptible to more than one reason-
able interpretation.’’ (Internal quotation marks omit-
ted.) State v. Agron, 323 Conn. 629, 633–34, 148 A.3d
1052 (2016). ‘‘Issues of statutory construction raise
questions of law, over which we exercise plenary
review.’’ (Internal quotation marks omitted.) State v.
Peters, 287 Conn. 82, 87, 946 A.2d 1231 (2008).
We begin with the language of the pertinent statute.
Section 53a-217 (a) provides in part: ‘‘A person is guilty
of criminal possession of a firearm [or] ammunition
. . . when such person possesses a firearm [or] ammu-
nition . . . and . . . (4) knows that such person is
subject to (A) a . . . protective order of a court of
this state that has been issued against such person,
after notice and an opportunity to be heard has been
provided to such person in a case involving the use,
attempted use or threatened use of physical force
against another person. . . .’’5 (Emphasis added.)
The defendant argues that the state presented no
evidence as to the element of ‘‘notice and an opportunity
to be heard’’ on the charge of criminal possession of a
firearm. He argues that § 53a-217 (a) (4) (A) required the
court, prior to issuing the December 26, 2014 protective
order, to hold a hearing at which the defendant could
contest the necessity of a protective order. The defen-
dant argues that, at the December 26, 2014 arraignment,
the court did not even inform him that he had a right to
such a hearing. The state contends that the arraignment
itself provided the defendant with the required notice
and opportunity to be heard. We agree with the state.
The text of § 53a-217 (a) (4) (A) provides that the
defendant be given ‘‘notice and an opportunity to be
heard. . . .’’ The meaning of this statutory phrase may
be clarified by looking at the words with which it is
associated in the statute. See State v. Agron, supra, 323
Conn. 636. The notice and opportunity to be heard is
to be provided to the defendant prior to the issuance
of a protective order. Although § 53a-217 is a firearms
statute located in the ‘‘Miscellaneous Offenses’’ chapter
of the Penal Code, subsection (a) (4) (A) clearly refer-
ences protective orders. Section 1-2z directs us first to
consider the text of the statute and its relationship to
other statutes before consulting other sources. See
State v. Agron, supra, 636.
The statutory scheme involving criminal protective
orders informs our understanding of what is required
by the phrase ‘‘notice and opportunity to be heard.’’
Our Supreme Court in State v. Fernando A., 294 Conn.
1, 981 A.2d 427 (2009), held that the statutory scheme
concerning family violence protective orders ‘‘permit[s]
the trial court to issue a criminal protective order at
arraignment after consideration of oral argument and
the family services report . . . [and] require[s] the trial
court to hold, at the defendant’s request made at the
initial hearing, a subsequent hearing within a reasonable
period of time wherein the state will be required to
prove the continued necessity of that order by a fair
preponderance of the evidence . . . .’’ Id., 13. The
court emphasized that the family violence protective
order statutes6 do not ‘‘entitle a defendant to an eviden-
tiary hearing beyond consideration of the parties’ argu-
ments and the family services report prior to the initial
issuance of a criminal protective order at arraignment,
which may well occur within hours of the alleged inci-
dent of family violence.’’ (Emphasis omitted.) Id., 23–24.
If the legislature had intended to impose the specific
requirement of an evidentiary hearing prior to the issu-
ance of the protective order, it could have expressly
done so. See id., 11–13. For example, General Statutes
§ 54-82r (a), which concerns protective orders prohib-
iting the harassment of a witness, provides for a ‘‘hear-
ing at which hearsay evidence shall be admissible’’ after
which the court must find by a preponderance of the
evidence the necessity of issuing such an order. The
legislature did not include similar language in § 53a-217.
‘‘It is axiomatic that, when interpreting the terms of
one statute, we are guided by the principle that the
legislature is always presumed to have created a harmo-
nious and consistent body of law . . . . Legislation
never is written on a clean slate, nor is it ever read in
isolation or applied in a vacuum. Every new act takes
its place as a component of an extensive and elaborate
system of written laws. . . . Construing statutes by ref-
erence to others advances [the values of harmony and
consistency within the law]. In fact, courts have been
said to be under a duty to construe statutes harmoni-
ously where that can reasonably be done. . . . More-
over, statutes must be construed, if possible, such that
no clause, sentence or word shall be superfluous, void
or insignificant.’’ (Internal quotation marks omitted.)
State v. Agron, supra, 323 Conn. 638. Applying this prin-
ciple to the terms of § 53a-217 (a) (4) (A), we conclude
that the plain language of the statute, as read in connec-
tion with other statutes, demonstrates that an arraign-
ment satisfies the requirement of ‘‘notice and an
opportunity to be heard.’’
At trial, the state admitted as a full exhibit the tran-
script of the defendant’s December 26, 2014 arraign-
ment. The transcript reveals that the court informed
the defendant that a protective order was being issued
against him and that he was prohibited from possessing
firearms. The defendant indicated that he understood
that he could not possess firearms, and he inquired as
to whether he was allowed to go home, to which ques-
tion the court responded affirmatively. Accordingly, this
transcript reveals that defendant was provided with an
opportunity to be heard prior to the issuance of the
protective order. If the defendant desired an evidentiary
hearing on the matter, he could have requested such a
hearing at the arraignment. In reviewing the evidence
in the light most favorable to sustaining the verdict, we
conclude that there was sufficient evidence to establish
that the state had proven beyond a reasonable doubt
that the defendant was afforded notice and an opportu-
nity to be heard prior to the issuance of the December
26, 2014 protective order. Accordingly, we conclude
that the court did not err in denying the defendant’s
motion for judgment of acquittal.
The judgments are affirmed.
In this opinion the other judges occurred.
* In accordance with our policy of protecting the privacy interests of the
victims of family violence, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
All references to § 53a-217 are to the 2014 supplement to the General
Statutes.
2
Accordingly, we do not analyze the second Boscarino factor, i.e., whether
the crimes were of a violent nature or concerned brutal or shocking conduct
on the defendant’s part. See, e.g., State v. Ellis, 270 Conn. 337, 376, 852 A.2d
676 (2004) (limiting analysis to Boscarino factor addressed by defendant).
3
The defendant argues that the court improperly applied a blanket pre-
sumption in favor of joinder despite our Supreme Court’s having abolished
the previous blanket presumption in favor of joinder in State v. Payne, 303
Conn. 538, 548, 34 A.3d 370 (2012). The court did not express its reasons
for granting the state’s motion to consolidate, and the defendant did not
move for an articulation. We do not infer error from a silent record. See
State v. Andriulaitis, 169 Conn. App. 286, 295, 150 A.3d 720 (2016). Rather,
‘‘[j]udges are presumed to know the law . . . and to apply it correctly.’’
(Internal quotation marks omitted.) State v. Stern, 65 Conn. App. 634, 648,
782 A.2d 1275, cert. denied, 258 Conn. 935, 785 A.2d 232 (2001).
It also is unclear whether the court granted the state’s motion to consoli-
date the informations on the basis that the evidence in the three cases
was cross admissible, or, alternatively, that the evidence was not cross
admissible, but the defendant was still, nonetheless, not prejudiced by join-
der pursuant to the Boscarino factors. On appeal, the defendant does not
discuss the question of cross admissibility except in his reply brief in
response to the state’s contention that the evidence was cross admissible.
We do not address claims raised for the first time in a reply brief. See State
v. Toro, 172 Conn. App. 810, 818, 162 A.3d 63, cert. denied, 327 Conn. 905,
A.3d (2017). Consequently, we do not decide whether the evidence relating to
the charges set forth in each information would have been cross admissible
in separate trials. See State v. Delgado, 243 Conn. 523, 536 n.14, 707 A.2d 1
(1998) (when appellate court concludes that defendant has not met burden of
showing joinder resulted in substantial injustice, it need not decide whether
evidence of one charge would be cross admissible at separate trials).
4
We note that the existence of discrete, easily distinguishable factual
scenarios weighs in favor of joinder. See, e.g., State v. Rodriguez, 91 Conn.
App. 112, 118–21, 881 A.2d 371 (2005).
5
We note that § 53a-217 (a) (4) (A) was amended in 2016 by No. 16–34
of the Public Acts, which removed the words ‘‘and an opportunity to be
heard.’’ The 2014 supplement of the statute, which includes the phrase
‘‘opportunity to be heard,’’ is at issue in this case. See footnote 1 of this
opinion.
6
See General Statutes §§ 54-63c (b) and 46b-38c.