SUPREME COURT

OF THE

state of Connecticut
JUDICIAL DISTRICT OF HARTFORD

S-C-19285
STATE OF CONNECTICUT

EDDIE PEREZ

REPLY BRIEF OF THE STATE OF CONNECTICUT-APPELLANT

To Be Argued By:
HARRY WELLER

Senior Assistant State's Attorney

Office Of The Chief State's Attorney
Appellate Bureau
300 Corporate Place
Rocky Hill, CT 06067
Telephone: (860) 258-5807
Facsimile: (860) 258-5828
Juris Number: 401859

harry.weller@ctqov # DCJ.OCSA.Appellate@ctus

TABLE OF CONTENTS

Page
CERTIFIED QUESTIONS
TABLE OF AUTHORITIES.
NATURE OF THE PROCEEDINGS
I.

THE APPELLATE COURT ERRED WHEN IT DETERMINED THAT THE

TRIAL COURT ABUSED ITS DISCRETION IN JOINING TWO POLITICAL

CORRUPTION CASES FOR TRIAL AND THAT SUCH JOINDER WAS NOT
HARMLESS

A.

Legal Principles The Court Must Apply

B.

The Defendant Is Not Entitled to An Automatic Reversal

C.

Analyzed Prospectivety, the Majority Should Not Have Substituted Its

Discretion For the Trial Court's

1.

2.

Stare decisis plays no role in determining v^/hether a joinder

decision is analyzed prospectively or retrospectively

The initial decision to join was not an abuse of discretion

If the trial court abused its discretion, looking retrospectively, the

defendant has not proven harm

THE APPELLATE COURT ERRED WHEN IT DETERMINED 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

12

A.

The May 20 Offer

12

B.

The June 11 Offer

14

D.

II.

CONCLUSION

15

CERTIFIED QUESTIONS
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?
DID THE APPELLATE COURT PROPERLY DETERMINE THAT THE TRIAL

COURTS REFUSAL TO SEVER THE CASES VIOLATED THE DEFENDANT'S

RIGHT TO TESTIFY IN ONE CASE WHILE REMAINING SILENT IN THE OTHER?

TABLE OF AUTHORITIES

Page

State V. Boscarino, 204 Conn. 714 (1987)

2, 3, 4, 6, 8, 9. 10

State V. Bergin, 214 Conn. 657 (1990)

State v. Booth, 250 Conn. 611 (1999)

State y. Castelli, 92 Conn. 58 (1917)

State V. Crenshaw, 313 Conn. 69 (2014)

State V. Davis, 286 Conn. 17 (2008)

3, 4

State V. DeJesus, 288 Conn. 418 (2008)

State V. DeMarco, 311 Conn. 510 (2014)

State V. Herrell, 199 Conn. 255 (1986)

15

State V. Hoiup, 167 Conn. 240 (1974)

State V. Miranda, 176 Conn. 107 (1978)

State V. Payne, 303 Conn. 538 (2012)

State V. Perez, 147 Conn. App. 53 (2013)

3. 4

2. 3, 4. 6

1, 3, 8, 9, 10, 11

State V. Perez, 311 Conn. 920 (2014)

State V. Rivera, 260 Conn. 486 (2002)

2, 7

State V. Schroff, 198 Conn. 405 (1986)

12

State V. Torrence, 196 Conn. 430 (1985)

State V. Woodson, 227 Conn. 1 (1993)

United States v. Alexander, 135 F.3d 470 (7th Cir. 1998)

13

United States v. Balzano, 916 F.2d 1273 (7th Cir. 1990)

13

United States v. Casamento, 887 F.2d 1141 (2d Cir. 1989)

3, 7

Statutes

General Statutes 54-84

Rules

Practice Book 41-19

NATURE OF THE PROCEEDINGS

A majority of the Appellate Court reversed the defendant's convictions, because the
trial court abused its discretion when it joined for trial two separate cases, (hereinafter the
bribery case and the larceny case). The majority held that joinder prevented the jury from
considering "each charge separately" and "independently." State v. Perez, 147 Conn. App.

53, 105, 106 (2013). Judge Lavine disagreed that the initial joinder decision was an abuse
of discretion. He also would hold that it was obvious from the record that the jury reached

independent verdicts on each case, and indeed, each crime within each case. Id. at 134.
(Lavine J., dissenting and concurring).

However, the panel unanimously held that severance subsequently was required
because the defendant expressed his desire to testify in the bribery case but not the
larceny case. Id. at 113-124, 135. The state appealed and this Court granted certification
as follows;

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 (2014).
I.

THE APPELLATE COURT ERRED WHEN IT DETERMINED THAT THE TRIAL

COURT ABUSED ITS DISCRETION IN JOINING TWO POLITICAL CORRUPTION
CASES FOR TRIAL AND THAT SUCH JOINDER WAS NOT HARMLESS

The defendant cites several reasons why the majority below was correct. First, he
claims he is entitled to an automatic reversal. Second, he takes issue with the state's

argument that Judge Lavine was correct when he evaluated the Boscarino factors'*
prospectively. Third, he argues, nevertheless, that the trial court abused its discretion when

it made its initial decision to join the cases. Fourth, he claims that he established on appeal
that he was prejudiced by joinder. The defendant's contentions are meritless.
A.

Legal Principles The Court Must Apply

"On an appeal, after certification from the decision of the Appellate Court, the focus
of [this Court's] review is not the action of the trial court, but the actions of the Appellate
Court. [This Court does] not hear the appeal de novo." State v. Torrence, 196 Conn. 430,
433 (1985). This is important for several reasons.

First, the Appellate Court was charged with reviewing the joinder claim for an abuse
of discretion. State v. Payne, 303 Conn. 538, 545 (2012).

When doing so, it does not

matter that the Appellate Court "might disagree with the trial court's conclusions" on the
Boscarino factors, but rather whether the trial court's conclusions "coupled with proper and

adequate jury instructions, constituted an abuse of discretion." State v. Rivera, 260 Conn.

486, 493 (2002) (trial court's determination that "two cases were not brutal or shocking" is
(1) whether the "factual similarities ... [although] insufficient to make the
evidence in each case substantively admissible at the trial of the others, were
significant enough to impair the defendant's right to the jury's fair and
independent consideration of the evidence in each case"; (2) whether "[t]he
prejudicial impact of joinder in these cases was exacerbated by the violent
nature of the crimes with which the defendant was charged ... [giving] the
state the opportunity to present the jury with the intimate details of each of
these offenses, an opportunity that would have been unavailable if the cases
had been tried separately"; and (3) whether "[t]he duration and complexity of
the trial also enhanced the likelihood that the jury would weigh the evidence
against the defendant cumulatively, rather than independently in each case.
See. State v. Payne, 303 Conn. 538, 543 n. 2 (2012), quoting, State
Conn. 714, 722-724(1987).

Boscarino, 204

not abuse of discretion even if this Court might disagree). This standard of review overlays
two related aspects of the Appellate Court's ruling that were incorrect. Most directly, it casts

doubt on the Appellate Court's independent reevaluation of the Boscarino factors.

Relatedly, as detailed below, when the majority "second guessed" the trial court's exercise
of discretion; State v. Payne, 303 Conn, at 544-545. it relied on information and events that
were not before the trial court when the cases were joined.

Second, at bottom, a decision to join cases must be "consistent with the defendant's

right to a fair trial." Id. at 545. Although both Judge Lavine, in his concurrence^; and the
court in United States v. Casamento^ recognized the problems of joining the respective
cases, Judge Lavine would, and the Court of Appeals in Casamento did, affirm the
convictions because each defendant received a fair trial. Thus, if it is clear that the

defendant received a fair trial, the Appellate Court must be reversed.

B.

The Defendant Is Not Entitled to An Automatic Reversal

The defendant argues that because the trial court relied on the presumption in favor
of joinder reaffirmed in State v. Davis, 286 Conn. 17, 29 (2008), and this Court, in Payne,
reversed the presumption after his trial, this Court must find that the trial court's joinder
decision "constitutes a clear abuse of discretion. .

D/B at 19. He claims further that he is

entitled to "automatic reversal." Id. citing State v. Miranda, 176 Conn. 107, 115 (1978).^
Miranda, however, does not say that. Rather, in Miranda this Court, recognizing that it had
"changed" the law in that very case, did not pass on the trial court's exercise of discretion.

^ State V. Perez, 147 Conn. App. 53, 134, n. 11

^ United States v. Casamento, 887 F. 2d 1141, 1151 {2d Cir. 1989)
'' The defendant acknowledges that Payne does not require automatic reversal. D/B
at 19 n. 22.

Rather, it noted, as did Judge DiPentima at oral argument below, that the trial court was
correct when it ruled. Id. at 115. This Court went on to determine whether the defendant

was harmed when the trial court excluded evidence that became admissible for the first

time as a result of the Miranda decision. Id. Miranda, therefore, does not create an
automatic reversal rule.

And importantly, Payne did not alter the burden of proving harm on appeal. Thus,
the defendant retains the burden of showing that he suffered the prejudice addressed by
the Boscarino factors. State v. Payne, 303 Conn, at 550 n.11.

0.

Analyzed Prospectively, the Majority Should Not Have Substituted Its

Discretion For the Trial Court's

The defendant makes two points in this regard. First, he claims that stare decisis

mandates that the Boscarino factors be analyzed retrospectively. Second, he claims that
even if the Soscar/no factors are applied prospectively, he prevails. He is incorrect.

1.

Stare decisis plays no role In determining whether a joinder

decision is analyzed prospectively or retrospectively

As Justice Katz chronicled, this Court had a long history of evaluating joinder
decisions much like it reviewed other discretionary rulings, by considering what was before
the trial court when the issue was ruled upon. State v. Davis, 286 Conn. 17, 45-51 (Katz, J.,

and Palmer J. concurring), citing State v. CastelH, 92 Conn. 58, 63 (1917); State v. Holup,
167 Conn. 240, 245 (1974). Also, rather than expressly altering how it reviewed joinder
claims, this Court over time had "conflated what should be a two-pronged inquiry." State v.

Davis. 286 Conn, at 50 {Katz, J. concurring). Indeed, the cases the defendant cites as proof
that retrospective analysis is correct; D/B at 31 n. 35; are merely echoes of that conflation
and are not binding. See, State v. DeJesus, 288 Conn. 418, 455 (2008) (dicta without

analysis "it is not binding precedent...."). In fact, nnany tinnes in recent years this Court has
"acknowledge[d] that [its] statennents regarding the proper standard to be applied have not
always been the model of clarity," [and taken the] opportunity to clarify the appropriate
standard of review." State v. DeMarco, 311 Conn. 510, 518 (2014). This Court should do
the same with joinder review.

Moreover, recently, in State v. Crenshaw, 313 Conn. 69, 88-89 (2014), this Court
expressly stated that it reviews joinder decisions based on what was before the court when

the issue was decided. Here, as in Crenshaw, it does not "make sense for a reviewing
court to overturn the trial court's discretionary ruling" based on what transpired thereafter.
Id. And there is no need to. Our rules of practice provide that if circumstances arise during
trial that suggest joinder is no longer appropriate, a defendant can move to sever under
Practice Book 41-19. State v. Bootti, 250 Conn. 611, 623 (1999) (does joint trial develop

such that substantial injustice arises). Indeed, that very type of claim is addressed in the
second issue, the defendant's decision during trial that he wanted to testify in one case and
not the other-and is analyzed separately based on the record at that juncture.

The defendant claims Crenshaw is inapplicable because the issue on review was
whether joinder was justified by cross-admissibility. D/B at 20. In Crenshaw, however, this
Court made two points. The first, which the state relies on, is that the temporal reference for
reviewing joinder claims is when they are made. Id. at 89. Second, the court "also"
considered the issue of cross-admissibility as it related to "judicial economy." Id. The
defendant's distinction goes to the second point.

The defendant claims Booth is inapplicable because that case dealt with joinder of
defendants rather than separate cases of a single defendant. D/B at 20 n. 23. The state,
however, relies on how the Court interpreted and applied Practice Book 41-9, which
addresses both joining defendants and joining the cases of one defendant. State v. Booth,
250 Conn, at 619-623. The distinction the defendant identifies is this Court's separate

analysis of the factors considered when determining whether joining defendants was
prejudicial. Id. at 623-633.

2.

The initial decision to join was not an abuse of discretion

The defendant claims that the state failed to establish, although it did not have the
burden at the time, that the Boscarino factors supported joinder in the first instance.

Specifically, he claims that post-Payne, judicial economy plays no role whatsoever when
joinder is not based on cross-admissibility. D/B at 17, n. 21. He then claims that, in support
of its motion for joinder, the state failed to address the first Boscarino factor, that the crimes
were discrete factual scenarios, and it likewise failed to address the length and complexity
of the trial. D/B at 18. He is incorrect on all counts.

The defendant's claim that judicial economy "should play no part" in the trial court's
post-Payne joinder decision is curious based on his accurate quote that "judicial economy

'weighs differently'" when joinder is not based cross-admissibility. D/B at 17, n. 21, quoting
State s/. Payne, 303 Conn, at 549. This court went on to state that, in non-cross-admissible
cases, judicial economy is "far less compelling" but did not completely eliminate it as a
consideration. Id. This case presents a compelling example of how joining non-cross-

admissible cases of admittedly a "highly visible figure" serves judicial economy. See S/App.
Part 1 at A-18; see also state's main brief at 16.

The defendant claims that the state's promise that the case would be presented in

an orderly fashion does not address a Boscarino factor. D/B at 17-18. He is incorrect. That
promise addresses both the first and third Boscarino factors: 1) it guarantees that the jury
will have sufficiently discrete evidence to consider cases separately, and, 2) it ensures that
the jury will not be confused by the trial's length and level of detail and make it unlikely the
jury would cumulate evidence against the defendant.

The defendant claims that the length of the trial augured against joinder because the
state indicated that trying the bribery case would take two to three weeks, whereas adding
the larceny charge would extend the case to five to seven weeks. D/B at 18. Actually, in his
objection to joinder, the defendant stated that the original estimate for trying the bribery
case was "three to four weeks." S/App. Part 1 at A-27. Thus, the trial court was dealing with

the possibility of the trial only being 1-3 weeks longer than the estimate/ Moreover, prior to
trial the defendant's concern over the trial's proposed length targeted his ability to empanel
a jury representing a fair cross-section of the community. S/App. Part 1 at A-1819. Judge

Dewey, noted, however, that even a projected eight-week trial was not overly long for
Hartford. T. 11/4 at 25. Here is where the discretionary ruling of an experienced trial judge
should trump a reviewing court's evaluation even if the latter disagrees. State v. Rivera,
260 Conn, at 493.

Indeed, the United States Court of Appeals for the Second Circuit considers its

courts and jurors capable of sitting through much longer joint trials, sifting through far more

massive amounts of evidence regarding many different players and reaching fair results

regarding rather simple crimes. United States v. Casawento, 887 F. 2d at 1149-1150.

Likewise, Judge Dewey and Judge Lavine are confident that Connecticut courts are just as
capable as those in other jurisdictions of trying white collar crimes with simple elements.

The majority's ruling, by contrast, stands for the proposition that when Connecticut jurors sit
on a state case they are somehow not as capable as they would be if the case were tried in

^ Ironically, the trial lasted five weeks of which seventeen days were trial days. Thus
the trial was just one week longer in calendar time and considerably shorter in the number
of trial days than projected for the bribery case alone.

federal district court. Judge Dewey's exercise of discretion promotes a healthier policy that
is confirmed by this very trial. Her ruling should have been affirmed.
As to the trial's complexity, w/hat the defendant complains about throughout, and
what concerned the majority, was not complexity but detail. Judge Dewey, however, had
reviewed the warrants which the defendant discusses in his brief; D/B at 22-24; and saw

two discrete factual scenarios, each case containing crimes with wholly different elements
and issues that were not in themselves complex. Judge Lavine agreed:
To be sure, there were numerous witnesses who described many
transactions over a period of approximately two and one-half years, but as
white collar or corruption cases go. there was nothing unduly complex or
confusing about the evidence in these two cases.

State V. Perez, 147 Conn. App. at 131. Indeed, the defendant himself, both at oral
argument and in his trial court brief, acknowledged that the bribery prosecution was
"relatively straightforward." S/App. at Part 1 at A-18; T. 11/4/09 at 18.

It cannot be an

abuse of discretion for the trial court to agree with him.

Finally, as to either a prospective or retrospective Boscarino analysis, the defendant
ostensibly claims that for crimes to have discrete factual scenarios, they must occur at

specific and different times. D/B at 27. Or, as the majority held, when joined crimes
temporally overlap and each is committed over time, jurors are incapable of making
discrete, independent judgments on either offense. Although it is true that this Court has
relied on the distinct temporal events as one aspect of this Boscarino factor, it has never

held as a matter of law that temporally overlapping conduct cannot be distinct enough to be
evaluated as discrete factual scenarios. Indeed, to so hold would be contrary to the notion

that juries are fully capable of considering and convicting a defendant of two distinct crimes
arising from the very same conduct in a single trial. See. State v. Woodson, 227 Conn. 1.

6-13 (1993). Moreover, time is not a material element of bribery and the dates of each case
were relevant only to that specific case. State v. Bergin, 214 Conn. 657, 668 (1990). The
trial court, therefore, did not abuse its discretion when finding that these crimes were
factually, elementally and evidentially distinct scenarios, and thus, when tried in an orderly
fashion with the proper instruction, would not confuse the jury.
D.

If the trial court abused its discretion, looking retrospectively, the

defendant has not proven harm

Looking back, the majority agreed that the trial proceeded in an orderly and distinct
manner with both cases presented separately. State v. Perez, 147 Conn. App. 150.

Likewise, the majority acknowledged that the trial court undertook "herculean" efforts to
keep the cases separate and thus provide the defendant with a fair trial, /d. at 111. There
is no question that each case was based: 1) on entirely different evidence; 2) on, with one

substantive exception, entirely different witnesses; 3) on two entirely different transactions;

4) involving different departments of city government and; 5) on different motivations. The

crimes charged in each case had wholly different elements. And the joint trial was
completed in about the same time as predicted for the bribery case alone. See n. 9. supra.

Thus, there is every reason to presume, as the law does, that a properly instructed jury in
this situation was "intellectually capable" of sorting through the details of each crime.

Nevertheless, the Appellate Court, evaluating the Boscarino factors retrospectively,

concluded that the trial was too long and so complex that "the jury was not able" to consider

each charge independently, fairly, separately and distinctly. Or, as the defendant puts it,
once the jury concluded in the bribery case that he was "a liar, a cheat and a thief, he was
doomed to being convicted in both cases regardless of what happened at trial. D/B at 33.
However, the deliberations and the verdicts conclusively establish otherwise; "the jury here

demonstrated that it could not only keep the cases separate, but also the counts within the
informations." State v. Perez, 147 Conn. App. 134 (Lavine, J., concurring).
The defendant relies on a mere footnote to address the state's and Judge Lavine's

position that deliberations and the acquittal prove that the jury was not confused. D/B at
35, n. 40. He suggests that he was acquitted on Count 2 because the jury "heard testimony

that defense counsel, not Mr. Perez, presented Costa's fake invoice to the state's attorney."
D/B at 35 n. 40. Assuming arguendo, that this theory of acquittal is correct, it speaks
volumes to the jury's discriminating evaluation of the two cases, the evidence in each count
and the elements of each charged offense, and proves just as conclusively that none of the
concerns addressed by Boscarino were realized in this case .

First, the defendant's theory of acquittal means that after hearing all the "complex"
evidence of both the bribery, which was tried first, and then the larceny, the jury

nevertheless was able to return to the bribery case and pick out this one discrete fact counsel, rather than the defendant, presented the fake bill-as casting doubt on the

defendant's guilt on this one discrete element in this not so discrete count. A jury capable of
making such a fine distinction was not confused by the details of the cases or ovenwhelmed
by the length of the trial or the number of exhibits proving each case. It clearly sorted
through those details.

Second, a jury that could make this distinction among three counts charging the
same offense is not, as the defendant claims, a panel influenced by the impression that
"Mr. Perez was a liar, a cheat and a thief." D/B at 33. The defendant makes this argument

because evidence in the bribery case contained what all agreed was a lie he told to
Inspector Sullivan-that he had paid Carlos Costa for the work done in his house. And the

majority made a point of noting that, had the cases been tried separately, the jury would not
have heard this lie. State v. Perez, 147 Conn. App. at 123. However, the "lie" to inspector

Sullivan about having paid Costa that allegedly Infected the jury's consideration of both
cases, did not even infect the very bribery case in which it was admitted. And the fact that
he helped Costa create the fake bill and he was convicted as an accomplice and

conspirator involving fabricating the fake bill, did not brand him as an unmitigated "liar" such
that the jury was unable to evaluate the elements of each count of fabricating evidence
fairly and independently. Indeed, a jury that already had judged the defendant an

unmitigated thief and liar, would have no need to even consider the factual nuance the
defendant identifies as a basis for the acquittal. So, under his own theory, the defendant
was not harmed by joinder because the jury was up to the task.

Nevertheless, the jury did not ask the trial court whether presenting the fake bill
through a third party would support a conviction. Rather, it asked whether the act of
"presenting" alone proved that count. The correct answer is "yes," the trial court told jurors

"no" and the jury acquitted on that count. That acquittal occurred despite the jury's having
convicted him of every other element of that crime and undisputed evidence that the
defendant did indeed, through defense counsel, "present" a fake bill to the state. This jury
was not confused one iota. In this case, the presumption that the jury followed the court's
"herculean" instructions is confirmed by the deliberations and the verdict, and there is no
evidence to the contrary. It was error to speculate, as did the majority, that the jury was

incapable of doing what it obviously did. At bottom, the defendant got a fair trial. The
Appellate Court should, therefore, be reversed.

II.

THE APPELLATE COURT ERRED WHEN IT DETERMINED 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

Twice during trial, on May 20 and June 11, the defendant sought to sever the two

cases clainning that he wanted to testify in the bribery case but not the larceny case. Both
parties and the Appellate Court agree that a defendant moving for severance because he

wants to testify In one case and remain silent in another must satisfy a two-pronged test: he
must make a "convincing showing" that he has both important testimony to give concerning

one count, and a strong need to refrain from testifying in the other. State v. Schroff, 198
Conn. 405, 409 (1986). Likewise, the state does not contest the second part of the test, the
defendant's strong need not to testify in the larceny case. So the remaining issue is when

did the defendant make a "convincing showing" that he had "important testimony" in the
bribery case? The Appellate Court agreed with the defendant that he made that showing on
May 20, after the state rested in the bribery case.

That was error. Consequently, the

Appellate Court never evaluated the trial court's actual ruling on June 11, when the

defendant expressly stated for the first time that he was now complying with the first part of
the test.

A.

The May 20 Offer

On May 20, the defendant set forth four topics he would testify about in the bribery
case: 1) why he lied to Inspector Sullivan, 2) how Costa became involved in his renovation
project, the number of times he requested a bill and why his payment was late; 3) the

context of the May 16 2006 letter directed to Costa's bonding company rescinding a prior
letter stating Costa was in default; and 3) the context of his involvement in having

emergency checks written to Costa. S/App. Part 1 at A-3334. To understand why the

defendant's offer of May 20 was woefully inadequate, this Court need only compare it to
another woefully inadequate offer.

[The defendant] has provided no specifics here. He has not told us, for
example, how he would explain the fraudulent representations made on
the mortgage application about either the Charles Schwab account or about
the tax returns he allegedly filed in the preceding years. Nor has he indicated
what he would say about the falsified Schwab receipt and tax returns or the
forged letter from the IRS. Alexander has instead only generally asserted
that any testimony supporting his representations on the mortgage loan
application would harm his defense on the personal bankruptcy fraud
charges.

(Emphasis added.) United States v. Alexander, 135 F.3d 470, 477 (7th Cir. 1998). Clearly,
and contrary to the defendant's effort to deflect the force of Alexander, D/B at 39 n. 44; that
court demanded specifics to satisfy the first prong of the test. Supplying general topics
alone fails to provide the trial court with vital infomiation necessary to decide if the

defendant indeed has "important testimony to give" and thus severance is required. On

May 20, this defendant offered general topics. By his express terms, the defendant offered
to testify to: "reasons" without explicating those reasons, "context," without explaining the
context; and "how," without describing "how" he would explain things.

That sort of general statement does not meet the standard [the Seventh
Circuit has] set for a severance on this ground-that the defendant make a
convincing showing that he has both important testimony to give concerning
one count and strong need to refrain from testifying on the other.

(Internal quotation omitted) United States v. Alexander, 135 F.3d at 477; see also. United
States V. Balzano, 916 F.2d 1273, 1283 (7th Cir. 1990) ("Balzano has neglected to set forth
any specific examples of the alleged exculpatory testimony he would have presented in a
separate trial on the witness intimidation count"). When the law and offer of proof are
analyzed correctly, denying severance on May 20 was not an abuse of discretion.

B.

The June 11 Offer

The substantive differences between the defendant's May 20 offer and the June 11
offer are as apparent as they are dispositive. To begin with, the defendant himself prefaced

his June 11 offer by acknowledging that he was obligated to show a "particularized need"
and, for the first time, placed "on the record why it is important for the mayor to testify on

the bribery and fabrication counts." S/App. Part 2 at A-189194. And in response, when
the state tried to liken the June 11 offer to the May 20 offer, the trial court stated, "Actually
it's not [the same]. This is the first time I've heard it, that's why it's unique." (Emphasis
added.) S/App. Part 2 at A-200. The Appellate Court, therefore, erred when it did not review
the only ruling the trial court made after the defendant made an adequate showing that he
had a compelling need to testify. And that did not occur until June 11.

Once the defendant made an adequate offer, the trial court was persuaded of his

need to testify, and ruled he could testify only in the bribery case and be insulated from any
cross-examination derived from the larceny case. The defendant insists, however, that he

could not have accepted that offer because he would nevertheless suffer "substantial
prejudice." D/B at 41. What he fails to address at all, however, is how his tactic of waiting
until June 11 to disclose his "particularized need" to testify; see fn 8; affected the trial
court's exercise of discretion.

Whereas on May 20 it was easier to sever the cases because the state's evidence in
the bribery case was complete and no evidence had been presented in the larceny case.

The record reveals that the defendant made a thoughtful tactical decision not to
show a "particularized need" until after the state had completed evidence In both cases.
That is the only way to explain the difference between the May 20 and the June 11 offers
and his appellate argument that he is "not required to give a point-by point proffer of his
precise anticipated testimony, thereby giving the State a preview of his defense." D/B at 39.

by June 11 all the state's evidence was before the jury. Thus, almost all of the court's
resources had been expended. Put simply, the balance between his interests and Judicial
economy had tipped overwhelmingly against severance. The defendant ignores this. The

trial court, however, addressed this very different paradigm with a rather Solomonic
exercise of discretion: it allowed the defendant to testify in the bribery case insulated from
any ill-effects of the larceny and to let both cases go to the jury.

That ruling should be

affirmed.

The defendant also argues that by testifying in the bribery case "it would have
opened the door to the State cross examin[ing] Mr. Perez, with leading questions on any

evidence in which it had a good faith belief that he lied relative to Citino [larceny case] and
his emails." D/B at 41. The trial court's ruling, however, eliminated this concern completely.

Without testifying, he cannot obtain relief on the speculative claim that the trial court would
have reneged on its guarantee. State v. Herrell, 199 Conn. 255, 266 (1986).
He also claims that no curative instruction would have stopped the jury from

speculating as to why he testified in the bribery but not in the larceny. In other words, he
suggests that, in this circumstance, the "no adverse inference" instruction mandated by

General Statutes 54-84 and adapted to these facts was doomed to failure. This Court,
however, presumes that the jury would follow this particular instruction, and, based on the
deliberations and verdict, there is no question that the jury did just that; it considered each
crime and, indeed, each element separately.
CONCLUSION

For all of the foregoing reasons, the State asks this Court to reverse the Appellate
Court and remand the case for consideration of the remaining issues.

Respectfully submitted,
STATE OF CONNECTICUT

HARRY^LLER
Senior Assistant State'^Xftorney

Office of the Chief St^'s Attorney

Appellate Bureau300 Corporate Place

Rocky Hill. CT 06067
Tel. (860) 258-5807
Fax (860) 258-5828
Juris No. 401859
GAIL P. HARDY

State's Attorney
Judicial District of Hartford
MICHAEL GAILOR

Executive Assistant State's Attorney

Office of the Chief State's Attorney
CHRISTOPHER ALEXY

Senior Assistant State's Attorney

Office of the Chief State's Attorney
Statewide Prosecution Bureau
March 2015

CERTIFICATION

The undersigned attorney hereby certifies, pursuant to Connecticut Rule of Appellate

Procedure 67-2, that

(1) the electronically submitted brief and appendix has been delivered electronically
to the last known e-mail address of each counsel of record for whom an e-mail address has

been provided; and

(2) the electronically submitted brief and appendix and the filed paper brief and
appendix have been redacted or do not contain any names or other personal identifying

information that is prohibited from disclosure by rule, statute, court order or case law; and
(3) a copy of the brief and appendix has been sent to each counsel of record and to
any trial judge who rendered a decision that is the subject matter of the appeal, in com
pliance with Section 62-7; and

(4) the brief and appendix being filed with the appellate clerk are true copies of the
brief and appendix that were submitted electronically; and
(5) the brief complies with all provisions of this rule.

RY VVEtLER

enior Assistant State'^Attorney