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STATE v. PEREZ—DISSENT

VERTEFEUILLE, J., with whom ZARELLA, J., joins,

dissenting. Deciding whether to sever two or more

informations against a defendant that have been joined

for a single trial calls for a trial court to exercise discretion and balance considerations of judicial economy

against the likelihood that the joint trial will prejudice

the defendant. The trial court in the present case, after

balancing these competing considerations, joined for

trial two informations that charged the defendant,

Eddie A. Perez, former mayor of Hartford, with separate, corruption related offenses—one of the alleged

crimes relating to an alleged bribe; the other crimes

relating to an alleged extortion attempt. The court thereafter denied two separate motions by the defendant

to sever the informations. Following his conviction of

various corruption related offenses after a jury trial,

the defendant appealed to the Appellate Court, which

reversed the trial court’s judgments and remanded the

cases for new, separate trials. State v. Perez, 147 Conn.

App. 53, 124, 80 A.3d 103 (2013).

The majority concludes that the trial court in the

present case abused its discretion by denying the defendant’s first motion to sever because he wanted to testify

in the bribery case, but not in the extortion case. In my

view, however, the majority has not afforded the trial

court’s exercise of discretion the level of deference to

which it is entitled. Because I am persuaded that the

trial court acted properly within its discretion in declining to sever the cases on this basis, I respectfully

dissent.1

In considering whether to sever two cases that have

been joined fortrial, ‘‘the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb.’’ (Internal quotation marks

omitted.) State v. Payne, 303 Conn. 538, 544, 34 A.3d

370 (2012); State v. Davis, 286 Conn. 17, 28, 942 A.2d

373 (2008). The party seeking to overturn a discretionary ruling thus has a ‘‘heavy burden . . . .’’ State v.

Ross, 230 Conn. 183, 226, 646 A.2d 1318 (1994), cert.

denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d

1095 (1995). ‘‘[W]hen reviewing the action of a trial

court under an abuse of discretion standard, we should

read the record to support, rather than contradict, [the

trial court’s ruling].’’ (Internal quotation marks omitted.) State v. Lugo, 266 Conn. 674, 692 n.16, 835 A.2d

451 (2003); accord State v. Orr, 291 Conn. 642, 667, 969

A.2d 750 (2009) (‘‘[i]n determining whether there has

been an abuse of discretion, the ultimate issue is

whether the court could reasonably conclude as it did’’

[internal quotation marks omitted] ); State v. Skakel,

276 Conn. 633, 724, 888 A.2d 985 (‘‘[i]n determining

whether there has been an abuse of discretion, every
reasonable presumption should be made in favor of the

correctness of the trial court’s ruling, and we will upset

that ruling only for a manifest abuse of discretion’’

[internal quotation marks omitted]), cert. denied, 549

U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006).

‘‘Our role as an appellate court is not to substitute our

judgment for that of a trial court that has chosen one

of many reasonable alternatives.’’ (Internal quotation

marks omitted.) State v. Day, 233 Conn. 813, 842, 661

A.2d 539 (1995).

A defendant who moves for severance pursuant to

Practice Book § 41-18 has the burden to show that severance is warranted. State v. Davis, supra, 286 Conn.

28. I agree with the majority that severance may be

warranted when the defendant wishes to testify in one

of the cases against him, but to remain silent in the

other. See, e.g., State v. Schroff, 198 Conn. 405, 409, 503

A.2d 167 (1986), citing Baker v. United States, 401 F.2d

958, 977 (D.C. Cir. 1968), cert. denied, 400 U.S. 965, 91

S. Ct. 367, 27 L. Ed. 2d 384 (1970). Nevertheless, the

defendant’s burden to obtain severance on this basis

is high. A defendant seeking severance must do more

than express a desire to testify in only one case. Baker

v. United States, supra, 977; see also United States v.

Alexander, 135 F.3d 470, 477 (7th Cir. 1998). Instead,

he must make a ‘‘ ‘convincing showing’ ’’ that he has

(1) important testimony to give concerning one case,

and (2) a strong need to refrain from testifying in the

other. Baker v. United States, supra, 977; State v.

Schroff, supra, 409. To establish that he has important

testimony to give, the defendant must show that his

intended testimony credibly relates to the charges

against him and will not be wholly cumulative of testimony available from other sources. See, e.g., United

States v. Alosa, 14 F.3d 693, 695 (1st Cir. 1994) (no

prejudice from joinder when defendant’s intended testimony did not credibly account for his conduct); United

States v. Valentine, 706 F.2d 282, 291 (10th Cir. 1983)

(defendant’s intended evidence was cumulative);

United States v. Outler, 659 F.2d 1306, 1313 (5th Cir.

1981) (same). Conversely, to show a strong need to

refrain from testifying, a defendant must show that he

will suffer substantial prejudice as a result of his testifying, such as opening the door to impeachment evidence; he may not rest on an assertion that he wishes

to leave the government to its proof. See, e.g., United

States v. Jones, 530 F.3d 1292, 1301 (10th Cir. 2008);

United States v. Valentine, supra, 291.

Moreover, to perfect this claim and enable the trial

court to properly evaluate prejudice, ‘‘it is essential that

the defendant present enough information—regarding

the nature of the testimony he wishes to give [in one

case] 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 againstthe defendant’s interestin having

a free choice with respect to testifying.’’(Internal quotation marks omitted.) State v. Schroff, supra, 198 Conn.

409. A defendant must give ‘‘specific examples of the

exculpatory testimony that the defendant would give.’’

United States v. Alexander, supra, 135 F.3d 477; see

United States v. Balzano, 916 F.2d 1273, 1283 (7th Cir.

1990) (no showing of prejudice when defendant

‘‘neglected to set forth any specific examples of the

alleged exculpatory testimony he would have presented’’). A ‘‘general statement’’ about the topics of

the intended testimony is not enough. United States v.

Alexander, supra, 477.

In the present case, the defendant twice moved for

severance on the basis that the joining of the two informations for a single trial was interfering with his decision about whether to testify. He first filed a motion

for severance on this basis, dated May 20, 2010, after

the state had finished the evidence in the bribery case,

but before it began presenting its extortion case. The

trial court denied his motion and the state proceeded

with its extortion case. The defendant renewed his

requestfor severance on this basis with a second motion

dated June 9, 2010, after the state had completed its

extortion case. The trial court denied this motion, as

well. The majority addresses only the May 20 motion

and concludes that the trial court was required to sever

the cases at that time. I disagree with this conclusion.

In my view, the defendant did not provide sufficient

specific information about his proposed testimony to

properly perfect his May 20 motion for severance, and

this lack of information prevented the trial court from

meaningfully considering his claim of prejudice. In his

motion, he provided only general statements about topics of testimony he intended to give, and did not provide

the trial court with any specific facts that he intended

to establish with his testimony or how it might differ

from testimony already presented.2 For example, he

represented to the court that he needed to explain the

reasons for his false statements to Michael Sullivan, an

inspector with the state Division of Criminal Justice in

its public integrity unit, and why he delayed in paying

his bill, but he did not tell the court anything about

what those reasons were. In addition, the May 20 motion

stated that the defendant wanted to testify about ‘‘[h]ow

[the contractor] Carlos Costa became involved in the

[d]efendant’s home renovation project, details regarding when he first approached . . . Costa and requested

a bill, [and] the number of times that he personally

followed up with Costa regarding his request . . . .’’

See footnote 2 ofthis dissenting opinion. As the majority

explains in its recitation of the facts, however, Costa

had already testified about these details. If the defendant intended to give different testimony on these

points, such that it would not be cumulative, he, as the

party moving for severance, had the burden to demon-
strate that to the trial court. The defendant, however,

did not give any indication of whether or how he

expected his testimony to differ from Costa’s.

By not giving the trial court any specific details about

his intended testimony, the defendant deprived the trial

court of the opportunity to properly assess his claim

of prejudice. The trial court could not evaluate the

extent to which his intended testimony was credible,

relevant, and not entirely cumulative of testimony

already presented. See, e.g., United States v. Alexander,

supra, 135 F.3d 477 (explaining that ‘‘general assertions’’

about topics of intended testimony are ‘‘insufficient

to establish prejudice’’ and fall short of ‘‘ ‘convincing

showing’ ’’ thatis required fortrial court to assess defendant’s claim and grant severance). Without any specific

examples of the defendant’s intended testimony, the

trial court was left to speculate as to the substance and

import of the testimony he intended to give, preventing

it from balancing the extent of any possible prejudice

to the defendant against considerations of judicial economy. State v. Schroff, supra, 198 Conn. 409. In addition,

the lack of any detail also prevented the state from

meaningfully responding to the defendant’s claim of

prejudice—it had no notice of what the defendant

would actually testify to and so could not formulate

arguments based on the content of the defendant’s proposed testimony.

The defendant argues in his brief that he did not

provide specifics of his testimony to avoid giving the

state ‘‘a preview of his defense . . . .’’ It is just these

specifics, however, that our case law and case law from

federal courts require to support a motion for severance

on this basis. See State v. Schroff, supra, 198 Conn.

409–10; see also United States v. Alexander, supra, 135

F.3d 477 (defendant’s failure to provide examples of

his intended testimony is fatal to his claim); see also

State v. Lemay, 46 A.3d 1113, 1121 (Me. 2012) (defendant’s tactical decision to not provide details about

his intended testimony to avoid revealing theory of his

defense inhibits court’s ability to assess prejudice).

The defendant had the burden to produce sufficient

detailed information to support his May 20, 2010 motion

and thereby to persuade the trial court to grant it. Given

the paucity of information presented by the defendant,

it was hardly an abuse of discretion for the trial court

to deny the May 20 motion to sever. It is not enough

for an appellate panel to disagree with the trial court’s

exercise of discretion; the defendant must show that

the trial court’s exercise was unreasonable under the

circumstances presented. I would conclude that the

defendant did not meet that burden.

In addition, although not considered by the majority, I

would further conclude that the trial court also properly

denied the defendant’s second motion for severance.

The defendant renewed his request for severance in his
June 9, 2010 motion, after the state had presented its

evidence in both cases. This time, however, at the hearing on the motion, he provided the trial court with a

detailed description of the testimony he intended to

provide in the bribery case and reiterated the reasons

he wished to remain silent in the extortion case.3 For

example, regarding the reasons he misled Sullivan

about his payment of the home improvement bill, the

defendant’s counsel represented to the court, for the

first time, that the defendant would ‘‘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

defendant’s counsel then set forth, in extensive detail,

the testimony the defendant intended to give on approximately eighteen topics pertaining to the bribery charge.

Importantly, the defendant also requested alternative

relief, including a requestthat, ifthe courtrefused severance, he be allowed to testify in the bribery case, but

remain silent and be shielded from any cross-examination with regard to the extortion case. After hearing

argument on that motion, the trial court found that the

defendant had shown that he had important testimony

to give in the bribery case and strong reasons to refrain

from testifying in the extortion case. Nevertheless, the

court, exercising its discretion, refused to sever the

cases. Significantly, however, the trial court did grant

the defendant’s alternative requested relief, and permitted him to testify about the bribery case without being

subject to cross-examination with regards to the extortion case. The defendant, however, ultimately chose

not to testify.

In determining whether the defendant should have

new and separate trials on the charges he faces, it is

of substantial import to me that the trial court granted

him an alternative form of relief, one that he had

expressly requested in his motion to sever—the right

to testify on the bribery charges without being exposed

to cross-examination on the extortion charges. Practice

Book § 41-18 specifically authorizes the courtto provide

such other relief as ‘‘justice may require’’ in the alternative to severance. Although the defendant ultimately

decided not to testify at all, in my view, the trial court’s

grant of alternative relief that he specifically requested

substantially undercuts his claim of prejudice. The trial

court’s grant of the defendant’s requested alternative

relief afforded him protection from cross-examination

on the extortion charge and thus mitigated to a significant extent any prejudice to the defendant caused by

joinder. I recognize that this relief might not have provided complete protection from all prejudice that might

have arisen if he took the stand to expressly deny one

set of charges while remaining silent on the other. Nevertheless, under the circumstances of this case, I conclude that the defendant did not present a convincing
showing of substantial prejudice, especially in light of

the deferential abuse of discretion standard that we

must apply. State v. Davis, supra, 286 Conn. 27–28.

For these reasons, in my view, the trial court properly

denied the defendant’s motions for severance. Consequently, I respectfully dissent and would reverse the

Appellate Court’s judgment and remand the case to that

court to consider the defendant’s remaining claims on

appeal not previously addressed by that court.

1 As explained in the majority opinion, the defendant also claimed in his

appeal to the Appellate Court that, pursuant to the factors identified in our

decision in State v. Boscarino, 204 Conn. 714, 723, 529 A.2d 1260 (1987),

the trial court had abused its discretion in joining the two cases in the first

place and then by failing to sever them after trial began. See footnote 1 of

the majority opinion. The defendant argued that the two cases were too

similar and too complex for a jury to fairly consider each case separately.

State v. Perez, supra, 147 Conn. App. 93–94. In considering this claim, the

Appellate Court reviewed the trial court’s joinder and severance decisions

together, based on a review of the entire trial record, rather than by limiting

its review to only the information before the trial court at the time it decided

to join the cases, or when it declined to sever them. Id., 95–109. On the

basis of this combined review, the Appellate Court concluded that the trial

court either should not have joined the cases or should have later severed

them. Id., 109 n.51, 109–13.

In a separate concurrence, Judge Lavine disagreed with this portion of

the Appellate Court’s decision. He first concluded that whether the trial

court should have joined the two cases in the first place must be considered

separately from whether the trial court should later sever the cases. Id.,

124–25 and n.1 (Lavine, J., concurring). He also concluded that each decision

by the trial court must be reviewed based only on the information before

the trial court at the time it decides the motion to join or to sever the cases.

Id., 128–29 (Lavine, J., concurring). Considering each decision separately

and based on the information before the trial court at the time it made each

decision, Judge Lavine further concluded that the trial court properly joined

the cases for trial because the crimes and relevant facts at issue in each

case were sufficiently distinct to allow the jury to fairly consider each case

separately. Id., 132–34 (Lavine, J., concurring).

Although the majority does not address this aspect of the Appellate Court’s

decision, because it resolves the appeal on a different ground, I note that

I agree with both Judge Lavine’s analytical approach and his conclusion.

2 The defendant’s motion explained that the defendant wanted to testify

on the following topics: ‘‘The [d]efendant’s reasons for misleading . . .

[Michael Sullivan, an inspector with the state Division of Criminal Justice

in its public integrity unit] during their initial interview on June 27, 2007;

[h]ow . . . [the contractor, Carlos Costa] became involved in the [d]efendant’s home renovation project, details regarding when he first approached

. . . [Costa] and requested a bill, the number of times that he personally

followed up with Costa regarding his request, and the reasons for his delay

in payment . . . [t]he context of his involvement . . . regarding the Park

Street Project; and . . . [t]he context of his involvement in the issuing of

emergency and manual checks from the [t]reasurer for the [city of Hartford]

. . . to [Costa’s company].’’ (Internal quotation marks omitted.) State v.

Perez, supra, 147 Conn. App. 114.

3 The lengthy description of the defendant’s intended testimony is included

in the majority opinion and also appears in the Appellate Court’s opinion.

See State v. Perez, supra, 147 Conn. App. 116–19 nn.58 and 59.