State v. Brown

195 Conn.App. 244

224 A.3d 905

STATE of Connecticut

v.Oterrio R. BROWN

AC 41139

Appellate Court of Connecticut.

Argued September 10, 2019

Officially released January 14, 2020

J. Patten Brown, III, for the appellant (defendant).

Linda F. Currie-Zeffiro, assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Marc Ramia, senior assistant state's attorney, for the appellee (state).

Alvord, Devlin and Beach, Js.

BEACH, J.

The defendant, Oterrio R. Brown, appeals from the judgments of conviction, following a jury trial, of two counts of breach of the peace in the second degree, and of violation of a protective order and assault in the third degree. The defendant claims that the court improperly (1) granted the state's request for joinder of the two informations; (2) allowed the state to use prejudicial language during the voir dire process; and (3) denied the defendant's request for a continuance. We disagree and affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On January 22, 2016, two police officers, Paul Calo and Kyle Cosmos, were called to a location in Waterbury to respond to a domestic disturbance. The officers found the defendant and the victim at the scene.¹ The defendant had blood on his shirt and a cut under his eye. When asked by Cosmos what had occurred, the defendant responded that there had been an altercation between him and the victim. The defendant further explained that he believed that the victim was sending naked photographs of himself to the defendant's wife, Grace Quackenbush, so the defendant "kind of went at him with clenched fist." After speaking with the defendant, the officers observed a trail of blood that led from the kitchen to the back hallway where the victim was found. Cosmos testified that the victim had a swollen left cheek and a bloody nose. The officers arrested the defendant.² He was charged with breach of the peace in the second degree, in violation of General Statutes § 53a-181 (a) (2), and, subsequently, a charge of failure to appear in the second degree³ in violation of General Statutes § 53a-173 (a) (1) was added.

At a hearing on January 25, 2016, the trial court issued a protective order. The defendant was ordered not to have contact with the victim. The prohibition also included refraining from assaulting, threatening, abusing, harassing, following, or returning to the victim's home. Approximately thirty minutes after the issuance of the protective order, the defendant returned to the victim's home. Shortly thereafter, the police received a call regarding an incident at this location. Police found the victim outside the house, screaming that the defendant had just beaten him up. The officers also observed blood in the snow and physical injuries to the victim, including a swollen cheek and blood on his teeth. Calo testified that these injuries were in addition to those that he had observed on January 22, 2016.⁴ The defendant was arrested and charged with criminal violation of a protective order in violation of General Statutes § 53a-223a ; breach of the peace in the second degree in violation of § 53a-181 (a) (2) ; assault in the third degree in violation of General Statutes § 53a-61 (a) (1) ; and failure to appear in the first degree in violation of General Statutes § 53a-172 (a) (1).

Prior to trial, the state filed a motion for joinder of the separate informations, and the court granted the state's motion. After a week long jury trial, the defendant was convicted of breach of the peace in the second degree regarding the January 22, 2016 incident. He also was convicted of criminal violation of a protective order, breach of the peace in the second degree, and assault in the third degree arising from the January 25 incident. The defendant was sentenced to a total effective sentence of ten years of incarceration, execution suspended after two years, followed by three years of probation. This appeal followed. Additional facts and procedural history will be set forth as needed.

I

The defendant claims that the trial court improperly granted the state's motion for joinder. He contends that combining the two informations substantially prejudiced him according to the factors set forth in State v. Boscarino , 204 Conn. 714, 722–24, 529 A.2d 1260 (1987). The state counters by asserting that the Boscarino factors were not met and that the evidence in this case was cross admissible. We agree with the state that the Boscarino factors were not met.⁵

We first set forth the appropriate standard of review. "The principles that govern our review of a trial court's ruling on a motion for joinder ... are well established. Practice Book § 41-19 provides that, [t]he judicial authority may, upon its own motion or the motion of any party, order that two or more informations, whether against the same defendant or different defendants, be tried together.... In deciding whether to [join informations] for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb.... The defendant bears a heavy burden of showing that [joinder] resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court's instructions." (Internal quotation marks omitted.) State v. McKethan , 184 Conn. App. 187, 194–95, 194 A.3d 293, cert. denied, 330 Conn. 931, 194 A.3d 779 (2018). "Despite our reallocation of the burden when the trial court is faced with the question of joinder of cases for trial, the defendant's burden of proving error on appeal when we review the trial court's order of joinder remains the same. See State v. Ellis , 270 Conn. 337, 376, 852 A.2d 676 (2004) ( [i]t is the defendant's burden on appeal to show that joinder was improper by proving substantial prejudice that could not be cured by the trial court's instructions to the jury ...)." (Emphasis omitted; internal quotation marks omitted.) State v. Payne , 303 Conn. 538, 550 n.11, 34 A.3d 370 (2012).

"Substantial prejudice does not necessarily result from [joinder] even [if the] evidence of one offense would not have been admissible at a separate trial involving the second offense.... Consolidation under such circumstances, however, may expose the defendant to potential prejudice for three reasons: First, when several 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 ... present[s] the ... danger that a defendant will be subjected 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....

"The court's discretion regarding joinder ... is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant's right to a fair trial. Consequently, [in State v. Boscarino , supra, 204 Conn. at 722–24, 529 A.2d 1260 ] we have 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 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." (Internal quotation marks omitted.) State v. Payne , supra, 303 Conn. at 544–45, 34 A.3d 370.

A

The defendant first claims that consolidating his cases allowed the jury to consider prejudicial evidence of two different crimes. See State v. Holliday , 159 Conn. 169, 172, 268 A.2d 368 (1970). When a request for joinder is made, the state "bears the burden of proving that the defendant will not be substantially prejudiced by joinder pursuant to Practice Book § 41-19." State v. Payne , supra, 303 Conn. at 549–50, 34 A.3d 370. To overcome this burden, the state must prove "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." Id., at 550, 34 A.3d 370.

In the present case, the defendant was charged in two separate informations with crimes that occurred on two different days. The trial court found that joinder was proper as none of the Boscarino factors were present. Specifically, the court reasoned that the informations were "easily distinguishable." On appeal, the defendant relies on the first and second Boscarino factors to support his claim that joinder of the two informations was improper. He concedes, in his brief, that the third factor was not met.

The first Boscarino factor is whether two or more factual scenarios were discrete and easily distinguishable. State v. Boscarino , supra, 204 Conn. at 722–23, 529 A.2d 1260. If the two events were not easily distinguishable, the first Boscarino factor is met. Id. The defendant asserts that the joinder of the informations was prejudicial because the jury was presented with factual scenarios that were not easily distinguishable. In particular, the defendant contends that the evidence of the scenarios presented to the jury created a "gross violation of his fundamental right to due process and a fair trial" because the two incidents involved the same...