State v. Perez , 322 Conn. 118 ( 2016 )

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STATE OF CONNECTICUT v. EDDIE A. PEREZ
(SC 19285)
Rogers, C. J., and Palmer, Zarella, McDonald, Robinson and Vertefeuille, Js.
Argued October 13, 2015—officially released July 26, 2016
Harry Weller, senior assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, Michael Gailor, executive assistant state’s attor-
ney, and Christopher Alexy, senior assistant state’s
attorney, for the appellant (state).
Hubert J. Santos, with whom were Jessica M. Santos
and Trent A. LaLima, for the appellee (defendant).
Opinion
PALMER, J. This appeal raises the question of
whether the trial court’s refusal to sever two unrelated
criminal cases brought against the defendant, Eddie A.
Perez, previously joined for trial for purposes of judicial
economy, improperly compromised the defendant’s
right to choose whether to testify on his own behalf in
one of the cases but to remain silent in the other. The
Appellate Court concluded that it did, reversed the judg-
ments of conviction and remanded the cases to be
retried in two separate proceedings.1 State v. Perez, 147
Conn. App. 53, 93, 124, 80 A.3d 103 (2013). Thereafter,
the state, on the granting of certification, appealed,
contesting the propriety of this determination.2 It con-
tends, inter alia, that the defendant’s first request to
sever the cases was accompanied by an inadequate
offer of proof as to his need to testify and that a second
request, although sufficiently detailed, was untimely.
We conclude that the defendant timely made a compel-
ling showing that he had important testimony to give
in one case and a strong need to refrain from testifying
in the other and, therefore, that the trial court had
abused its discretion in declining to sever the cases.3
Accordingly, we affirm the judgment of the Appellate
Court.
Following a jury trial, the defendant, the former
mayor of the city of Hartford (city), was convicted of
bribe receiving, fabricating evidence and larceny by
extortion for actions he had taken while in office.4 The
state had charged the defendant with these offenses in
two separate informations but, before trial, moved to
consolidate the charges. The trial court granted the
state’s motion to consolidate over the defendant’s
objection, and the cases were tried together before a
single jury.
The Appellate Court’s opinion provides a detailed
rendition of the facts underlying the defendant’s convic-
tions, which need not be repeated in this opinion. See
id., 66–77, 82–88. For present purposes, however, it is
necessary to briefly summarize the facts underlying the
case involving the bribery and fabrication charges (brib-
ery case).5 The defendant was convicted of bribe receiv-
ing for accepting free home improvement services from
a contractor, Carlos Costa, in exchange for the defen-
dant’s assisting Costa in connection with certain prob-
lems that Costa had encountered while his company,
USA Contractors, performed a construction contract
for the city. Specifically, the defendant assisted Costa
by requesting that the city treasurer expedite some pay-
ments due to USA Contractors and by interfering with
efforts of the Hartford Department of Public Works
(department) to manage the construction contract and
to call USA Contractors’ performance bond due to insuf-
ficient performance, an action that would have removed
USA Contractors from the city construction project and
impaired its ability to do business with the city in the
future. The defendant also was convicted of fabricating
evidence in connection with his request that Costa cre-
ate a bill for the home improvement work only when
an investigation into the propriety of that work had
commenced or was imminent.
The state’s presentation of evidence in the bribery
case, which preceded its presentation of evidence in
the larceny by extortion case (extortion case), included
the following. Department employees and outside con-
sultants the department hired testified that USA Con-
tractors had performed the construction contract with
the city poorly and behind schedule, and that it had
submitted baseless claims for additional payments. At
some point, at the defendant’s behest, the city’s director
of capital projects became involved to mediate issues
that arose between the department and USA Contrac-
tors. Ultimately, because performance remained inade-
quate, the foregoing individuals together decided to
contact USA Contractors’ bonding company and to
report the performance issues for the purpose of calling
the bond and terminating the contract between the city
and USA Contractors. When Costa informed the defen-
dant that a letter to this effect had been sent, the defen-
dant became upset. Thereafter, the director of capital
projects wrote another letter to the bonding company
rescinding the first letter, without seeking the approval
of the others involved in the earlier decision. USA Con-
tractors remained on the job and finished the project
well beyond the time period contemplated by the con-
tract with no further action taken on its performance
bond.
Costa testified for the state. He agreed that he had
sought the defendant’s assistance with the city’s expedi-
tious payment of certain amounts due under the con-
struction contract and with the rescission of the
department’s letter to USA Contractors’ bonding com-
pany, but, in his view, those actions were wholly justi-
fied because he was being treated unfairly and also had
experienced problems with late payments by the city.
He attributed many of the problems and delays associ-
ated with the project to the department, and others to
circumstances that were beyond his control. Costa
since had sued the city for breach of the construction
contract, seeking substantial damages. He believed that
the consultants the department had hired operated
under a conflict of interest due to their prior involve-
ment in the design of the project. Costa, who had a
history of successfully performing other work for the
city, had been acquainted with the defendant for a con-
siderable period of time prior to any of the events in
question, and considered him a friend. In addition,
Costa previously had campaigned and raised funds for
the defendant.
Damningly to the defendant, however, Costa also tes-
tified that, around the time he sought assistance from
the defendant for the problems he was experiencing
with the construction project, he was performing
kitchen and bathroom renovations at the defendant’s
private residence without receiving any payment for
such work. He confirmed that he never prepared a
quote, took a deposit or expected to get paid for those
renovations. Costa explained that he performed this
work for free because the defendant was the mayor
and his friend, he considered the work to be a cost of
doing business with the city and he believed it would
provide him with greater access to the defendant.
According to Costa, the defendant did not begin to
approach him about a bill until approximately one year
after the work was completed, when rumors about the
work began circulating in the community. Costa could
not immediately provide the defendant with a bill
because he had not kept records for the renovation
work, believing that he would not be paid for it. He
gave the defendant a bill several months later, however,
and the defendant paid Costa several months after that.
A number of materials suppliers and construction
workers testified to provide detail about the work per-
formed at the defendant’s residence and its substantial
cost. Their testimony established that the amount the
defendant ultimately paid for the home renovations was
well below market rate. An employee of The Home
Depot (Home Depot) testified that the defendant and
his wife, prior to the work being done at their residence,
had entered into an agreement with Home Depot to
provide similar services but thereafter cancelled that
agreement, purportedly because they had received a
lower offer. The defendant’s executive assistant testi-
fied that the defendant would at times meet or speak
with Costa when Costa visited or called the defendant’s
office but that, at other times, he was not available to
Costa. The city treasurer confirmed that the defendant’s
office requested several times that USA Contractors
receive expedited payment for its construction work,
and that checks were issued after auditing protocols
ensured that payment was proper. A city employee testi-
fied that building permits were not issued for the work
performed at the defendant’s home prior to its comple-
tion. A city merchant testified that he had heard from
a worker at the defendant’s home that the work there
had been done for free and without permits, and that he
thereafter began telling many people in the community,
including the defendant’s political opponents, about
what he had heard.
Finally, Michael Sullivan, a former investigator with
the public integrity unit of the Office of the Chief State’s
Attorney, testified about the investigation that had led
to the defendant’s arrest. Sullivan had arranged to meet
with the defendant and to interview him about the
events underlying the extortion case but, at some point,
heard the rumors about Costa’s free home improvement
work for the defendant. The interview occurred with
the city’s corporation counsel also in attendance. At
the conclusion of the interview, Sullivan asked the
defendant whether USA Contractors had performed
bathroom and kitchen renovations for him, and the
defendant replied that it had. The defendant falsely
claimed that he had paid for the work approximately
one and one-half years prior to the interview, which
was fairly close to the time the renovation work had
been completed. Sullivan testified that, at this point in
the interview, the defendant became noticeably ner-
vous. The defendant agreed to provide Sullivan a copy
of the cancelled check with which he purportedly had
paid, but, after some delay, the defendant ultimately
provided documentation indicating that he had applied
for a home equity loan hours after he had met with
Sullivan and subsequently paid for the renovation work
with the proceeds of that loan. The defendant also pro-
vided the invoice Costa had prepared for the work sev-
eral months beforehand, which Sullivan determined to
be fabricated in that it was created after the fact and
lacked supporting documentation. Sullivan’s investiga-
tion also yielded records of telephone or cell phone
calls between Costa and the defendant around the time
USA Contractors received expedited payments from
the city and the time the second letter was sent to USA
Contractors’ bonding company. Sullivan also testified
that he secretly had recorded his interview with the
defendant, and the recording was introduced into
evidence.6
The defense case largely was presented through
cross-examination of the state’s witnesses. Otherwise,
the defendant’s chief of staff testified for the defense,
explaining that the defendant’s wife had encountered
a serious medical issue when the renovation work was
being performed at the defendant’s home, that she
underwent multiple surgeries at different hospitals in
the six month period thereafter, and that the defendant
experienced difficulties in getting the family’s health
insurer to pay all of the resulting bills. He testified
further that the defendant was very concerned and dis-
tracted by these occurrences, and that he also was busy
with his mayoral duties. The chief of staff confirmed
that the defendant and Costa were acquainted prior to
the events in question due to Costa’s campaign and
fundraising assistance. He also testified that the defen-
dant, as a general matter, prioritized supporting minor-
ity run businesses such as Costa’s and would assist in
getting them paid by the city. As to the bribery case,
the only other witness whom the defense called was
the construction worker who purportedly reported the
free and unpermitted work being done at the defen-
dant’s residence. When called to the stand, he denied
having done so and also stated that, in the entire time
he had been at the defendant’s residence, he had seen
the defendant there only once.
In his memorandum in opposition to the state’s pre-
trial motion to consolidate, the defendant briefly men-
tioned that consolidation would affect his ability to
exercise his right to testify but did not elaborate. On
May 18, 2010, near the end of the state’s presentation
of its evidence in the bribery case, defense counsel
notified the court and the assistant state’s attorneys
(state) that, when the state concluded its evidence in
that case, he would be moving to sever the two cases
on the ground that the defendant wished to testify in
the bribery case but not in the extortion case. Defense
counsel stated that this decision was based on his
assessment of Costa as a witness for the prosecution,
an assessment he could not have made prior to trial.
The state indicated that it was opposed to severance
as ‘‘not appropriate,’’ arguing that the defendant, in
previously arguing against consolidation, had not
claimed that he wanted to testify in one case but not
the other. In the state’s view, the defendant had failed
to make the determination as to whether he would
testify in a timely fashion, and, therefore, severance
was not warranted. The court, for its part, agreed that
‘‘[i]t’s something that probably should have been raised
and highlighted a lot earlier.’’
On May 20, 2010, at the close of the state’s bribery
case, the defendant filed a motion to sever pursuant to
Practice Book § 41-18 (first motion to sever). In addition
to reiterating his previous arguments raised in his mem-
orandum in opposition to the state’s motion to consoli-
date, which pertained to the Boscarino factors,7 he
expressly claimed that he was prejudiced substantially
by the consolidation because he wished to testify in
the bribery case but to exercise his constitutional right
not to testify in the extortion case. In his first motion
to sever, the defendant described the testimony that he
would give in the bribery case as follows: (1) ‘‘[t]he
defendant’s reasons for misleading . . . Sullivan dur-
ing their initial interview on June 27, 2007’’; (2) ‘‘[h]ow
. . . Costa became involved in the defendant’s home
renovation project, details regarding when [the defen-
dant] first approached . . . Costa and requested a bill,
the number of times that [the defendant] personally
followed up with Costa regarding his request, and the
reasons for his delay in payment’’; (3) ‘‘[t]he context of
[the defendant’s] involvement in the [second] letter
. . . [to USA Contractors’ bonding company] regarding
the [city construction] project’’; and (4) ‘‘[t]he context
of [the defendant’s] involvement in the issuing of [expe-
dited payments] from the [city] treasurer . . . to USA
Contractors.’’ The defendant also contended in the first
motion to sever that his ‘‘testimony on these points, at
a minimum, will be absolutely critical for the jury’s
complete assessment of both his intent, as well as inter-
actions that he alone may have had with . . . Costa.
Thus, [the defendant’s] ability to exercise his right to
testify is critical because he is the sole source of infor-
mation on these points.’’ The first motion to sever also
provided reasons why the defendant did not wish to
testify in the extortion case, namely, that his version
of the underlying facts in that case would be presented
to the jury through his recorded interview with Sullivan,
making his live testimony unnecessary, particularly
since it would expose him to a risk of prejudicial cross-
examination regarding uncharged misconduct that
related only to the extortion case.8
When the first motion to sever was argued on May
20, 2010, defense counsel reiterated that his assessment
of the defendant’s need to testify in the bribery case
had not crystallized until he had heard the state’s pre-
sentation of its evidence and could evaluate the credibil-
ity of the witnesses. According to defense counsel, it
was then clear that the defendant had to testify in order
to have a chance of acquittal in the bribery case. The
state, in response, argued that Connecticut case law
indicated that motions to sever based on a defendant’s
wish to testify selectively should be raised pretrial, and
that the defendant should have made his argument in
this regard at the time of the state’s motion to consoli-
date. In the state’s view, the defendant was making an
improper and untimely ‘‘attempt . . . to control the
course of the case,’’ and, moreover, it was unnecessary
for the defendant to testify because the matters he had
identified had been addressed adequately on cross-
examination of various witnesses. After a colloquy
between the court and counsel regarding the fact that
our jurisprudence, at the time, supported a presumption
in favor of joinder,9 the court rejected the defendant’s
claim that his constitutional right to testify could out-
weigh the interest in judicial economy. Notably, the
court never determined that the defendant’s testimonial
proffer was inadequate for it to balance those two inter-
ests, nor did it remark on the substance of that proffer.
Thereafter, on June 9, 2010, following the state’s pre-
sentation of its evidence in the extortion case, the defen-
dant renewed his arguments in a second motion to
sever.10 After a June 11, 2010 hearing at which counsel
provided extensive detail as to the defendant’s planned
testimony in the bribery case,11 the trial court again
declined to sever the cases, reasoning that the jury had
been instructed repeatedly to consider the two cases
separately and that the defendant remained free to tes-
tify in only one case if he so chose, with any cross-
examination limited to the case about which he tes-
tified.
On appeal to the Appellate Court, the defendant
argued, inter alia, that the trial court’s denial of his
motions to sever was improper because it constrained
his right to testify; see State v. Perez, supra, 147 Conn.
App. 93, 113; and the entire panel of that court hearing
the case, although split on the question of whether the
cases had been improperly joined, agreed. See id., 113;
id., 124–25 (Lavine, J., concurring). Specifically, the
panel concluded that the trial court’s refusal to sever
the cases midtrial had compromised the defendant’s
ability to testify in the bribery case, causing him sub-
stantial prejudice. Id., 113; id., 124–25 (Lavine, J., con-
curring). We agree with the Appellate Court that the
trial court abused its discretion in declining to sever
the cases because the defendant’s first motion to sever
was filed timely and constituted a compelling showing
that he had important testimony to give in one case
and a strong need to refrain from testifying in the other.
It long has been recognized that joinder of unrelated
criminal charges can cause unfair prejudice when it
‘‘embarrasses or confounds an accused in making his
defense.’’ (Internal quotation marks omitted.) Cross v.
United States, 335 F.2d 987, 989 (D.C. Cir. 1964). For
example, ‘‘[p]rejudice may develop when an accused
wishes to testify on one but not the other of two joined
offenses which are clearly distinct in time, place and
evidence. His decision whether to testify will reflect a
balancing of several factors with respect to each count:
the evidence against him, the availability of defense
evidence other than his testimony, the plausibility and
substantiality of his testimony, [and] the possible
effects of demeanor, impeachment, and cross-examina-
tion. But if the two charges are joined for trial, it is not
possible for him to weigh these factors separately as
to each count. If he testifies on one count, he runs the
risk that any adverse effects will influence the jury’s
consideration of the other count. Thus he bears the risk
on both counts, although he may benefit on only one.
Moreover, a defendant’s silence on one count would
be damaging in the face of his express denial of the
other. Thus he may be coerced into testifying on the
count [on] which he wished to remain silent.’’ (Foot-
notes omitted.) Id.‘‘[B]ecause of the unfavorable appearance of testi-
fying on one charge while remaining silent on another,
and the consequent pressure to testify as to all or none,
the defendant may be confronted with a dilemma:
whether, by remaining silent, to lose the benefit of vital
testimony on one count, rather than risk the prejudice
(as to either or both counts) that would result from
testifying on the other. Obviously no such dilemma
exists [when] the balance of risk and advantage in
respect of testifying is substantially the same as to each
count.’’ Baker v. United States, 401 F.2d 958, 976 (D.C.
Cir. 1968).
Undue prejudice will not invariably result from a
decision to testify selectively. Consequently, ‘‘[a]n
accused’s election to testify on some but not all of
the charges on trial does not automatically require a
severance.’’ (Internal quotation marks omitted.) State
v. King, 187 Conn. 292, 304, 445 A.2d 901 (1982), over-
ruled in part on other grounds by State v. Payne, 303
Conn. 538, 34 A.3d 370 (2012). Rather, the matter
remains within the trial court’s discretion, ‘‘though a
discretion within limits narrowly confined by the exi-
gencies of the situation. In the end, it is incumbent [on]
the judge to weigh the considerations of economy and
expedition in judicial administration against the defen-
dant’s interest in having a free choice with respect to
testifying, and to grant or deny the severance accord-
ingly.’’ (Internal quotation marks omitted.) State v.
King, supra, 304. Although ‘‘trial courts must be
afforded reasonable latitude in exercising discretion in
these matters, [it bears emphasis] that compromise of
a defendant’s fundamental right to a fair trial free of
undue prejudice as the quid pro quo for the mere expedi-
tious disposition of criminal cases will not be tolerated.’’
People v. Lane, 56 N.Y.2d 1, 8, 436 N.E.2d 456, 451
N.Y.S.2d 6 (1982).
In State v. Schroff, 198 Conn. 405, 408–409, 503 A.2d
167 (1986), we adopted the analysis that federal courts
use when a criminal defendant contends that severance
of the charges is necessary because he or she wishes
to testify as to some charges but not as to others. Pursu-
ant to that approach, ‘‘no need for a severance exists
until the defendant makes a convincing showing that
he has both important testimony to give concerning
one count and [a] strong need to refrain from testifying
on the other. In making such a showing, it is essential
that the defendant present enough information—
regarding the nature of the testimony he wishes to give
on one count and his reasons for not wishing to testify
on the other—to satisfy the court that the claim of
prejudice is genuine and to enable it intelligently to
weigh the considerations of economy and expedition
in judicial administration against the defendant’s inter-
est in having a free choice with respect to testifying.’’
(Internal quotation marks omitted.) Id., 409, quoting
Baker v. United States, supra, 401 F.2d 977.
We conclude that the trial court improperly denied
the defendant’s first motion to sever because the motion
was timely filed and his accompanying proffer, as to
his need to testify in the bribery case, was sufficient
to meet the foregoing standard. At that point in the
proceedings, the defendant adequately demonstrated
that his interest in testifying on his own behalf in the
bribery case outweighed the considerations of judicial
economy that had justified joinder at the outset of trial.
The defendant was convicted of receiving a bribe
pursuant to General Statutes § 53a-148 (a), which pro-
vides in relevant part: ‘‘A public servant . . . is guilty
of bribe receiving if he solicits, accepts or agrees to
accept from another person any benefit for, because
of, or as consideration for his decision, opinion, recom-
mendation or vote.’’ A distinguishing feature of the
crime of bribery, with respect to the recipient of a bribe,
is that it ‘‘requires intent . . . to be influenced in an
official act . . . .’’ (Internal quotation marks omitted.)
United States v. Sun-Diamond Growers of California,
526 U.S. 398, 404, 119 S. Ct. 1402, 143 L. Ed. 2d 576(1999).12 ‘‘In other words, for bribery there must be a
quid pro quo—a specific intent to . . . receive some-
thing of value in exchange for an official act.’’ (Empha-
sis is original.) Id., 404–405. Stated otherwise, the
benefit that the public official receives is ‘‘the prime
mover or producer of [his or her] official act.’’ (Internal
quotation marks omitted.) United States v. Strand, 574
F.2d 993, 995 (9th Cir. 1978). If direct evidence of the
requisite intent is unavailable, it may be established, as
it was in the present case, by circumstantial evidence.
See, e.g., United States v. Jennings, 160 F.3d 1006,
1014 (4th Cir. 1998). ‘‘The quid pro quo requirement is
satisfied [as] long as the evidence shows a course of
conduct of favors and gifts flowing to a public official
in exchange for a pattern of official actions favorable
to the donor.’’ (Emphasis in original; internal quotation
marks omitted.) Id.Under the law governing bribery, it was essential for
the state to prove, beyond a reasonable doubt, that the
defendant had accepted a benefit from Costa, namely,
free home improvement services. The state also needed
to prove, beyond a reasonable doubt, that the defendant
undertook one or more official acts, such as interfering
with the department’s decisions to call USA Contrac-
tors’ bond and to remove USA Contractors from the
job, or requesting that the city treasurer expedite pay-
ments due to USA Contractors, in exchange for that
benefit. Stated otherwise, the state needed to show that
the motivating force for the defendant’s taking of these
actions was his receipt of a benefit from Costa, and
not his independent judgment that the actions were a
proper and warranted exercise of his mayoral authority.
When the state rested in the bribery case, its evidence
tended to show that (1) the defendant received substan-
tial home improvement services from Costa, with whom
he previously was friendly, without any advance pay-
ment or an agreed on price, (2) at various times in the
two years that followed, the defendant assisted USA
Contractors, Costa’s business entity, in getting paid and
remaining on the city construction contract, despite
USA Contractors’ questionable performance, (3) the
defendant did not get a bill for the home improvement
services until more than one year after they were com-
pleted, and that bill stated an amount that was below
market cost for the services rendered, (4) the defendant
did not pay the bill until several months later, after he
was questioned by an investigator, and (5) the defen-
dant, when questioned by that investigator, appeared
nervous and falsely reported that he previously had
paid for the services. Without an effective rebuttal by
the defense, the state’s proof that the defendant had
received a benefit from Costa in exchange for official
acts was quite strong.
We conclude that the defendant’s description in his
first motion to sever of the testimony that he would give,
when viewed against the foregoing evidence offered by
the state, adequately enabled the trial court to weigh
the defendant’s interest in testifying against the counter-
vailing consideration of judicial economy and, more-
over, that the trial court’s denial of the defendant’s
request for severance at that point was an abuse of
discretion that prejudiced the defendant substantially.
To begin, it bears emphasis that the trial court, in deny-
ing the first motion to sever, did not state that the
defendant’s testimonial proffer was in any way inade-
quate for it to engage in that balancing of interests, nor
did it even comment on the substance of that proffer.
Rather, the court appeared to deny the first motion to
sever on the basis of untimeliness and general deference
to the presumption in favor of joinder that existed at
the time the cases were tried. Impairment of the choice
whether to testify, however, is a recognized form of
prejudice that may override that presumption in certain
circumstances.13 Under our rules of practice and juris-
prudence, the defendant was entitled to request sever-
ance on this basis midtrial, and it was ‘‘incumbent [on]
the [court] to weigh the considerations of economy
and expedition in judicial administration against the
defendant’s interest in having a free choice with respect
to testifying,14 and to grant or deny the severance
accordingly.’’ (Footnote added; internal quotation
marks omitted.) State v. King, supra, 187 Conn. 304.
Next, the defendant’s proffered testimony clearly had
the potential to undermine the state’s evidence of brib-
ery and, therefore, to provide the defendant a meaning-
ful chance of an acquittal on that charge. Specifically,
the defendant proposed to testify regarding when he
first sought a bill from Costa, the number of times he
followed up on that request and the reasons for his delay
in payment. He also offered to provide an explanation as
to why he had misled Sullivan regarding the timing of
his payment. If the defendant could convince the jury
that he had intended to pay for the renovation work
all along, that he had attempted to do so much earlier
than the state had contended and that he had a good
reason for the delay in payment, it would rebut the
evidence that the defendant had accepted a benefit from
Costa, an essential element of bribery.15
With respect to the defendant’s false statement to
Sullivan, we agree with the Appellate Court’s apt assess-
ment that ‘‘[t]he need to rehabilitate [that untruth] is
evident, and, to do that, the defendant’s testimony was
required.’’ State v. Perez, supra, 147 Conn. App. 123. In
his first motion to sever, the defendant also indicated
that he would explain ‘‘[t]he context of his involvement’’
in both the second letter to USA Contractors’ bonding
company and the expedited payments to USA Contrac-
tors. Because there was evidence tending to show that
neither of those courses of action necessarily was
unwarranted, it was likely that the defendant would
have explained that he undertook them for reasons
entirely unrelated to his receipt of a benefit from Costa,
thereby negating the state’s circumstantial proof of an
illegal quid pro quo.16
Weighing the defendant’s need to testify in one case
and his need to refrain from testifying in the other
against considerations of judicial economy, we con-
clude that the trial court’s denial of the defendant’s first
motion to sever was an abuse of discretion because
joinder of the cases, at that point in time, caused the
defendant substantial prejudice. As we previously
noted, the defendant had a strong interest in testifying
in the bribery case on the points that he identified, so
as to refute the state’s case that he had received free
home renovations in exchange for his official acts. Fur-
thermore, it is not disputed that the defendant gave
adequate reasons for wishing to refrain from testifying
in the extortion case. See footnote 8 of this opinion.
Insofar as the state had yet begun presenting its case
with respect to the charges of larceny by extortion,
neither the state nor the court had expended significant
resources trying that case. Consequently, the cost to
judicial economy of permitting a severance of the
charges at that point was relatively low. Because the
denial of a free choice to testify in only the bribery case
deprived the defendant ‘‘of an appreciable chance for
an acquittal [on the bribery charge], a chance that [he]
would have had in a severed trial’’; (internal quotation
marks omitted) United States v. Little Dog, 398 F.3d
1032, 1037 (8th Cir. 2005); the result, in our view, was
serious prejudice.
The state contends instead that the trial court prop-
erly denied the defendant’s first motion to sever
because it was insufficiently detailed for the court to
evaluate his claim of prejudice. This reasoning, how-
ever, ignores the actual basis of the court’s ruling. As
we previously explained, the trial court, in ruling on
the first motion to sever, did not reject the defendant’s
testimonial proffer as insufficient or even discuss that
proffer or address the governing legal standard. Rather,
it appears that the court denied the first motion to sever
on the basis of untimeliness and the preexisting general
presumption in favor of joinder. In any event, the defen-
dant’s proffer was sufficient to meet the governing legal
standard. Our research reveals that, in the usual case
in which a court reviewing a claim that a defendant’s
right to testify was impaired by joinder rejects that
claim due to an insufficient testimonial proffer, it is
because the proffer at issue was entirely bereft of infor-
mation that would have enabled the court to engage in
the required balancing of interests.17 That simply is not
the case here.
We are further unconvinced by the state’s contention
that the defendant was not prejudiced by the court’s
ruling because his proposed testimony was insignifi-
cant, unbelievable or cumulative to other testimony. As
we noted, the defendant’s proposed testimony clearly
was relevant to the elements of bribery, offering him
a reasonable chance of acquittal, and whether it was
credible ultimately was a question for the jury. See, e.g.,
United States v. Sampson, 385 F.3d 183, 190–93 (2d
Cir. 2004) (defendant was prejudiced when proposed
testimony could have refuted state’s evidence as to his
identity as perpetrator of drug sale), cert. denied, 544
U.S. 924, 125 S. Ct. 1642, 161 L. Ed. 2d 483 (2005); cf.
United States v. Valentine, 706 F.2d 282, 291 (10th Cir.
1983) (defendant was not prejudiced when proposed
testimony would not have related to element of crime
charged). Moreover, it could not be entirely cumulative
of testimony already elicited on cross-examination, par-
ticularly insofar as it concerned the defendant’s own
subjective intentions. Although defense counsel’s cross-
examination of Costa suggested that the defendant
would attribute his delayed payment for the home
improvement work to his wife’s illness and his assisting
Costa to reasons unrelated to the home improvement
work, there was no substitute for the jury’s observation
of the defendant’s own testimony regarding those mat-
ters and any explanations that he may have had. See,
e.g., United States v. Jordan, 112 F.3d 14, 17–18 (1st
Cir.) (defendant was prejudiced when proposed testi-
mony as to his subjective intent could have provided
good faith defense to tax fraud and false tax return
charges, and testimony of his attorney was not effective
substitute), cert. denied, 522 U.S. 923, 118 S. Ct. 318,
139 L. Ed. 2d 245 (1997); cf. United States v. Valentine,
supra, 291 (defendant was not prejudiced when his pro-
posed testimony that guns were brought to his resi-
dence by third party, whom he had contacted in effort
to have them removed, was cumulative of that party’s
testimony as to same facts). As the defendant himself
explained in his first motion to sever, his testimony was
‘‘absolutely critical for the jury’s complete assessment
of . . . his intent . . . [and] because he is the sole
source of information on these points.’’
Saving government resources through judicial econ-
omy is a legitimate concern. On the other side of the
scale, however, is a defendant’s right to a fair trial at
which his constitutional right to testify on his own
behalf has not been unfairly impeded. As the core juris-
prudence in this area recognizes, testifying in one case
while remaining silent in another is, in and of itself,
prejudicial to a defendant. See, e.g., Baker v. United
States, supra, 401 F.2d 976 (acknowledging ‘‘the unfa-
vorable appearance of testifying on one charge while
remaining silent on another’’); Cross v. United States,
supra, 335 F.2d 989 (‘‘a defendant’s silence on one count
would be damaging in the face of his express denial of
the other’’). Notably, the defendant in the present case
consistently and repeatedly fought consolidation and
sought severance of the charges against him throughout
the trial court proceedings. In recognition of the fact
that juries are suspicious of defendants who choose to
testify selectively, the defendant ultimately chose to
remain silent in both of his cases. If severance had been
afforded, his choice would not have been so con-
strained. In light of the potentially persuasive defense
in the bribery case set forth in the defendant’s first
testimonial proffer, which was timely presented to the
court, we conclude that judicial economy should have
given way to the defendant’s opportunity to present
that case to a jury free of the significant prejudice that
necessarily flowed from the court’s denial of his motion
to sever. See People v. Lane, supra, 56 N.Y.2d 8 (‘‘com-
promise of a defendant’s fundamental right to a fair
trial free of undue prejudice as the quid pro quo for
the mere expeditious disposition of criminal cases will
not be tolerated’’).
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and McDONALD and
ROBINSON, Js., concurred.
1
The Appellate Court also concluded, as a preliminary matter, that the
evidence presented at trial was sufficient to support the defendant’s convic-
tions. State v. Perez, 147 Conn. App. 53, 58, 80 A.3d 103 (2013). In addition,
the court concluded that the two cases against the defendant improperly
had been joined prior to trial, based on an analysis of the factors identified
by this court in State v. Boscarino, 204 Conn. 714, 722–24, 529 A.2d 1260(1987). State v. Perez, supra, 95–96, 100.
2
We granted the state’s petition for certification to appeal, limited to the
following issues:
‘‘1. Did the Appellate Court properly determine that the trial court abused
its discretion in joining two political corruption cases for trial and that such
joinder was not harmless?
‘‘2. Did the Appellate Court properly determine that the trial court’s refusal
to sever the cases violated the defendant’s right to testify in one case while
remaining silent in the other?’’ State v. Perez, 311 Conn. 920, 920–21, 86
A.3d 468 (2014).
3
In light of this conclusion, we need not answer the first certified question.
See footnote 2 of this opinion.
4
The defendant was convicted of fabricating evidence as an accessory
and as a coconspirator, in connection with the bribery charge. In regard to
larceny by extortion, he was convicted both of attempt and conspiracy to
commit that crime. He received a total effective sentence of ten years
imprisonment, suspended after three years, and three years of probation.
5
As the opinion of the Appellate Court explains in some detail, the larceny
by extortion case against the defendant was predicated on testimony indicat-
ing that the defendant had pressured a developer, Joseph Citino, to pay
$100,000 to Abraham Giles, a political ally of the defendant, as a prerequisite
to Citino’s desired purchase of a certain parcel of property from the city.
See State v. Perez, supra, 147 Conn. App. 82–88. For reasons set forth
hereinafter, the details of that case are not necessary to an understanding
of the severance issue presented by this appeal.
6
During the interview, the defendant also provided Sullivan with his ver-
sion of the facts relative to what resulted in the extortion case.
7
See State v. Boscarino, 204 Conn. 714, 722–24, 529 A.2d 1260 (1987).
8
The state does not challenge the validity or legitimacy of the defendant’s
desire not to testify in the extortion case.
9
Under the law governing joinder at the time of trial, there existed a
presumption in favor of joinder, and the defendant bore the burden of
proving that the presumption was rebutted. See, e.g., State v. Davis, 286
Conn. 17, 28–29, 942 A.2d 373 (2008). Thereafter, in State v. Payne, 303 Conn.
538, 548, 34 A.3d 370 (2012), we concluded that the blanket presumption
in favor of joinder was inappropriate and no longer should be employed,
specifically because it conflicted, in cases involving unrelated charges, with
the well established evidentiary principle restricting the admission of evi-
dence of a defendant’s other crimes or misconduct. Now, when ‘‘the state has
moved in the trial court to join [charges set forth in] 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 . . . .’’ (Footnote omitted.) Id., 549–50.
10
In the second motion to sever, the defendant again argued that there
was no need for him to testify in the extortion case in light of the recorded
interview with Sullivan but that his testimony was necessary in the bribery
case ‘‘to explain his alleged lies regarding Costa, his delay in paying Costa,
his intention of paying Costa earlier in time, and the fact that whatever he
did to help Costa was justified on the merits and unrelated to any benefits
he may have received.’’ On June 10, 2010, the trial court directed the parties
to be prepared to argue the motion the following day, alerting them to
relevant case law that the court’s recent research had uncovered, and it
instructed defense counsel that that case law would require ‘‘specific, articu-
lated reasons’’ supporting the defendant’s desire to testify in the bribery
case only. Although the defendant had provided such reasons and cited
some of the same law referenced by the court in his first motion to sever,
and the state had quoted that law in court in opposing the second motion
to sever, the court conveyed its belief that the issue regarding the defendant’s
desire to testify selectively had not been raised previously.
11
Defense counsel stated: ‘‘And so what I had prepared to do, with the
court’s permission, is to [note] on the record why it is important for the
[defendant] to testify [in] the bribery [case], and I will list them seriatim:
one, he needs to explain the lies that were made to . . . Sullivan with
[the city’s corporation counsel] in the room, and he’ll testify that he was
embarrassed to reveal that he had not paid the bill to . . . Costa with
[corporation counsel] present in the room.
‘‘The efforts—he’ll testify as to the efforts he had made to do the home
improvement project himself, and the fact that he was at . . . Home Depot
picking out a product, a countertop product, the fact that he had been to
other stores doing that before he got to Home Depot, the fact that . . .
Costa came down to Home Depot to see him and advised him that he could
do it a lot cheaper, and, thereafter, the defendant will testify [that] he, at
. . . Costa’s invitation . . . went to his showroom.
‘‘He’ll testify as to his historical relationship with . . . Costa as a friend
and political supporter that went back many years and that, when . . .
Costa was doing the work in his home, he did not view [him] as a contractor
for the city . . . doing the work but as a friend, and will admit, if he testifies,
that, in retrospect, that was a mistake.
‘‘He will testify that he repeatedly requested a bill from . . . Costa. . . .
Costa testified that there was a bill request, but I think his testimony was
only on one occasion. But [the defendant] will testify when . . . [his wife]
came back home from the hospital and they had a reception for her, he asked
[Costa] for a bill, and he asked him for a bill a number of times thereafter.
‘‘He will testify . . . concerning the effect of his wife’s illness regarding—
regarding his conduct, and how it affected him in terms of concentrating,
reading material that might have been available to him, focusing on the bill
that was due . . . Costa . . . [and Costa would] say, in light of [the defen-
dant’s wife’s] illness, there was no hurry on the bill, and [the defendant]
was focused on [his wife’s] illness and put the payment of the bill on the
back burner and really did not think there was any immediacy to pay it,
although he had every intention to pay it.
‘‘Furthermore, his problem, [in] terms of focus and the problems with
the bill, was tremendously compounded by [his health insurer’s] refusal to
pay the medical bills for the doctor in New York at Columbia Presbyterian
Hospital, and he would receive bill after bill from Medicare, [the health
insurer] showing large balances that were due; and this—and this caused
him to realize that he might have to get a major loan, not [a] $20,000 loan,
but a major loan, not only to pay for the medical bills, but also to pay . . .
Costa. And the medical bills just—were not resolved for a long period of
time after [his wife’s] surgery.
‘‘He will further testify [about] his lack of involvement in the home
improvement project and that, principally . . . Costa interacted with [the
defendant’s wife] and that he had little, if anything, to do with it because,
most of the time, he was off and running at city hall, getting home late in
the day from his school board duties and his many, many obligations as the
mayor of the city . . . . And he seldom saw . . . Costa at the house or
his work[ers] at the house.
‘‘He’ll further testify that he—when he asked . . . Costa for the bill . . .
Costa told him that it was going to run between $26,000 and $28,000, and
he was stunned by that amount. And he’ll testify concerning that, in support
of his claim, that he had every intention to pay the bill, otherwise he would
not have been stunned by the amount that . . . Costa quoted him.
‘‘He’ll testify that when he finally got the bill from . . . Costa, he did not
read the bill; he did not analyze the bill. He simply saw that the amount
was $20,000 plus, and he was relieved that it wasn’t $26,000 or $28,000. And
there was no knowledge, on his part, that the bill was incomplete and
misleading, or whatever. He just saw that number, $20,000, and he was
pleased that it was—it was in that ballpark.
‘‘He’ll testify that the decision to turn over the bill—the invoice, through
counsel, to the Office of the Chief State’s Attorney was in no way intended
to mislead the state; it simply was in an attempt to show the state what [it]
asked for, which was the bill he received from . . . Costa.
‘‘He’ll further testify . . . that his involvement with Costa regarding the
. . . [city construction] project—he’ll further testify concerning his decision
to get [the director of capital projects] involved in the project. He’ll testify
as to the project’s delay, and that it was an important project to him for
many reasons. Once it was—it was a project to benefit the Latino community,
of which he was obviously a part and a leader, and also a source of pride
to be able to develop something that had not been developed over the years
by any predecessor mayors.
‘‘He’ll testify concerning his decision to accept and follow . . . [the] deci-
sion or recommendation [of the director of capital projects] to send the
[second] letter to [USA Contractors’ bonding company], and he will deny
that accusation made by [a public works official] that there was an episode
in his office where he was shaking a letter and saying what the F is this;
that never occurred, he will testify in his own defense.
‘‘He will further testify that his decision not to assist . . . Costa in his
quest for the payment of claims and extras, and many of which were detailed
in the lawsuit and other documents, that he did not, in any way, participate
to help . . . Costa get those paid.
‘‘He’ll testify about his concern of a delay on the [city construction]
project—if the project were delayed by terminating . . . Costa, and the
tremendous problems it would cause [the defendant], not only in his service
to the Latino community, but also politically by the reaction among the
merchants and other people who were interested in the project.
‘‘He will further testify that there were many more projects and issues
that required his time and attention during the . . . period of time [between
2005 and 2007] when [the city construction project] was going on, including
the school building projects, the library construction controversy, and the
issues of violent crime in the city . . . and that, when compared . . . with
these problems . . . the [city construction] project was a minor project in
terms of his priorities [for] the city . . . and the enormity of the other
projects that he was involved in, including the eleven school projects, which
were budgeted at between $400,000 and $5,000,000.
‘‘He will further testify that the—that [the] practice of supporting business-
men like minority businessmen or contractors, like USA Contractors, was
one of [the defendant’s] top priorities as a mayor and as a candidate for
mayor, and, in following through with that commitment, he would make
efforts to make sure that they got their approved invoices paid in a timely
manner out of the treasurer’s office.
‘‘He will testify as to the reasons he took to help [to] get some of . . .
Costa’s approved invoices paid. He will testify that he devoted his life to
public service and further testify that he is not interested in worldly posses-
sions or the accumulation of wealth or other material things.
‘‘He will also testify that his religious convictions guide his conduct, and
those convictions would not, in any way, permit him to accept a bribe or
to do anything that not only—or to fabricate evidence, or anything else that
would violate his moral code.’’
Defense counsel also explained in greater detail why the defendant did
not want to testify in the extortion case, an explanation which the state has
conceded was adequate.
12
Appellate jurisprudence construing Connecticut’s bribery statute is
sparse. The federal statute prohibiting bribery of a public official is similar,
however, providing in relevant part that, ‘‘[w]hoever . . . (2) being a public
official . . . directly or indirectly, corruptly demands, seeks, receives,
accepts, or agrees to receive or accept anything of value personally or
for any other person or entity, in return for: (A) being influenced in the
performance of any official act,’’ shall be fined or imprisoned, or both, and
may be disqualified from holding public office. 18 U.S.C. § 201 (b) (2012).
13
It appears from the record that the trial court did not fully appreciate
this until it was considering the defendant’s second motion to sever, although
the defendant clearly had argued it earlier and cited the applicable legal
standard in his first motion to sever. See footnote 10 of this opinion. If the
court had expressed a concern that the proffer was inadequate, the defense,
in all likelihood, would have detailed further the defendant’s intended testi-
mony as defense counsel ultimately did upon the court’s later request, which
appears to have been prompted by the court’s closer review of the governing
case law.
14
Practice Book § 41-18 provides: ‘‘If it appears that a defendant is preju-
diced by a joinder of offenses, the judicial authority may, upon its own
motion or the motion of the defendant, order separate trials of the counts
or provide whatever other relief justice may require.’’ The provision contains
no time limitation. Furthermore, in State v. Chance, 236 Conn. 31, 671 A.2d
323 (1996), we acknowledged that a defendant may be unable to make a
decision about whether to testify at the outset of a consolidated trial but
that, if his intention to testify becomes clear during the course of that trial,
he can and should convey that intention to the trial court through a renewed
objection to consolidation claiming deprivation of a meaningful choice as
to whether to testify. See id., 47–48.
15
The defendant’s proffered testimony also could have undermined the
state’s proof with respect to the charges of fabricating physical evidence.
See General Statutes § 53a-155 (a) (2).
16
As we previously indicated, Costa had an entirely different view from
the department with respect to the reasons for USA Contractors’ inability
to perform the city construction project within the time allotted by the
contract. Conceivably, the defendant shared some or all of this view, or had
other reasons for wishing to keep Costa on the job despite issues with his
company’s performance. Additionally, there was evidence presented at trial
that the city, approximately two years prior to the events in question, had
changed its charter, resulting in a ‘‘strong-mayor form of municipal govern-
ment.’’ State v. Perez, supra, 147 Conn. App. 57 n.1. Pursuant thereto, the
mayor was not, as he was previously, merely ‘‘the head of the [city] council,
more of . . . a ceremonial position . . . .’’ (Internal quotation marks omit-
ted.) Id. Rather, he appointed, and possessed ‘‘real power’’ over, all depart-
ment heads. (Internal quotation marks omitted.) Id. Presumably, then, he
was entitled to second-guess their decisions.
17
See, e.g., United States v. Ervin, 540 F.3d 623, 629 (7th Cir. 2008)
(defendant ‘‘merely stated that he ‘wish[ed] to testify’ in his own defense
against the homicide counts, but ‘[t]hat combining all the counts at one
trial’ would prevent him from doing so’’), cert. denied sub nom. Zambrana
v. United States, 555 U.S. 1149, 129 S. Ct. 1030, 173 L. Ed. 2d 315 (2009);
United States v. Little Dog, supra, 398 F.3d 1037 (defendant simply ‘‘con-
tend[ed] he was prejudiced because he did not want to testify [with respect
to an] obstruction charge but did want to testify [with respect] to . . .
sexual [abuse and contact] charges’’); United States v. Bowker, 372 F.3d
365, 385 (6th Cir. 2004) (defendant’s motion to sever ‘‘stat[ed] only that his
testimony was ‘anticipated to be crucial’ [on two counts] because these
crimes have a specific intent requirement,’’ whereas testimony on other
count was ‘‘ ‘not needed’ ’’ due to lack of such requirement), vacated on
other grounds, 543 U.S. 1182, 125 S. Ct. 1420, 161 L. Ed. 2d 181 (2005);
United States v. Utley, 62 Fed. Appx. 833, 836 (10th Cir. 2003) (defendant
asserted only ‘‘that he ‘may wish to testify at trial as to one or more counts,
but not as to all’ ’’); United States v. Balzano, 916 F.2d 1273, 1280, 1284
(7th Cir. 1990) (defendant’s ‘‘assert[ion] that severance was required because
it was his intention to testify only [with respect to] the witness intimidation
count and not to testify [as to] any of the remaining counts’’ was ‘‘ ‘nothing
more than . . . a bald allegation of a mere possibility that [he] would give
exculpatory evidence in a severed proceeding’ ’’); United States v. Possick,
849 F.2d 332, 338 (8th Cir. 1988) (defendant ‘‘simply claimed [as to continuing
criminal enterprise charge, that] he was ‘not a kingpin [and] did not supervise
five or more persons [or] obtain substantial income’ ’’); United States v.
Hernandez, 829 F.2d 988, 991 (10th Cir. 1987) (defendant’s affidavit ‘‘simply
stated his belief that he had a valid defense to [one count], the fact that he
might testify as to [that count], and his belief that the testimony given as
to [that count] would incriminate him as to the other counts,’’ and, at hearing
on motion to sever, defense counsel ‘‘cryptically noted’’ that testimony would
relate to certain elements of identified count [emphasis in original]), cert.
denied, 485 U.S. 1013, 108 S. Ct. 1486, 99 L. Ed. 2d 714 (1988); United States
v. Scivola, 766 F.2d 37, 39–40, 43 (1st Cir. 1985) (defendant claimed only
that he wanted to testify in his own behalf as to one count but not as to
other without specifying what testimony he would have given); United States
v. Corbin, 734 F.2d 643, 649 (11th Cir. 1984) (defendants did ‘‘no more than
express a generalized desire to testify as to some counts but not others’’
and ‘‘[did] not [indicate] what they would have testified to, and whether
such testimony would have been of any particular importance’’); United
States v. Reicherter, 647 F.2d 397, 401 (3d Cir. 1981) (defendant stated simply
that he intended to present alibi defense, without even specifying that he
would testify); United States ex rel. Tarallo v. LaVallee, 433 F.2d 4, 5–6 (2d
Cir. 1970) (defendant’s motion to sever presented fact that he had to make
election between testifying as to one robbery charge or another but ‘‘not
that he was confronted with a dilemma fraught with prejudice’’), cert. denied
sub nom. Tarallo v. LaVallee, 403 U.S. 919, 91 S. Ct. 2235, 29 L. Ed. 2d
697 (1971).