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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 attorney, Michael Gailor, executive assistant state’s attorney, 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 fortrial 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 judgments 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 contends, 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 compelling 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 convictions, 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 (bribery case).5 The defendant was convicted of bribe receiving for accepting free home improvement services from

a contractor, Carlos Costa, in exchange for the defendant’s assisting Costa in connection with certain problems 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 payments 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 insufficient 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 create 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 consultants the department hired testified that USA Contractors 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 Contractors. Ultimately, because performance remained inadequate, 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 defendant that a letter to this effect had been sent, the defendant 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 Contractors remained on the job and finished the project

well beyond the time period contemplated by the contract 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 expeditious payment of certain amounts due under the construction contract and with the rescission of the

department’s letter to USA Contractors’ bonding company, but, in his view, those actions were wholly justified 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 associated 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 involvement 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 considerable 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 performed at the defendant’s residence and its substantial

cost. Their testimony established that the amount the

defendant ultimately paid forthe home renovations was

well below market rate. An employee of The Home

Depot (Home Depot) testified that the defendant and

his wife, priorto the work being done at theirresidence,

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 testified 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 testified that building permits were not issued for the work

performed at the defendant’s home prior to its completion. 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 nervous. 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 provided the invoice Costa had prepared for the work several months beforehand, which Sullivan determined to

be fabricated in that it was created after the fact and

lacked supporting documentation. Sullivan’s investigation 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 distracted 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 defendant, as a general matter, prioritized supporting minority 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 defendant’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 pretrial motion to consolidate, the defendant briefly mentioned 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 memorandum in opposition to the state’s motion to consolidate, 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 during their initial interview on June 27, 2007’’; (2) ‘‘[h]ow

. . . Costa became involved in the defendant’s home

renovation project, details regarding when [the defendant] 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 [expedited 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 interactions 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 crossexamination 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 presentation of its evidence and could evaluate the credibility 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 consolidate. 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 crossexamination of various witnesses. After a colloquy

between the court and counsel regarding the fact that

ourjurisprudence, 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 outweigh the interest in judicial economy. Notably, the

court never determined that the defendant’s testimonial

proffer was inadequate for it to balance those two interests, nor did it remark on the substance of that proffer.

Thereafter, on June 9, 2010, following the state’s presentation ofits evidence in the extortion case, the defendant 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 testify in only one case if he so chose, with any crossexamination limited to the case about which he testified.

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 substantial prejudice. Id., 113; id., 124–25 (Lavine, J., concurring). 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-examination. 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.’’ (Footnotes omitted.) Id.

‘‘[B]ecause of the unfavorable appearance of testifying 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), overruled 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 exigencies 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 defendant’s interest in having a free choice with respect to

testifying, and to grant or deny the severance accordingly.’’ (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 forthe mere expeditious 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. Pursuant 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 interest 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 provides 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, recommendation 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 something of value in exchange for an official act.’’ (Emphasis 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 Contractors’ bond and to remove USA Contractors from the

job, or requesting that the city treasurer expedite payments 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 substantial home improvement services from Costa, with whom

he previously was friendly, without any advance payment 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 completed, and that bill stated an amount that was below

market cost forthe services rendered, (4)the defendant

did not pay the bill until several months later, after he

was questioned by an investigator, and (5) the defendant, 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 interestin testifying against the countervailing consideration of judicial economy and, moreover, 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 denying the first motion to sever, did not state that the

defendant’s testimonial proffer was in any way inadequate 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 jurisprudence, the defendant was entitled to request severance 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 bribery and, therefore, to provide the defendant a meaningful 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 thatrequest 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 assessment 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 Contractors. 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 conclude 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. Furthermore, 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 properly denied the defendant’s first motion to sever

because it was insufficiently detailed for the court to

evaluate his claim of prejudice. This reasoning, however, 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 defendant’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 information 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 insignificant, 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, particularly insofar as it concerned the defendant’s own

subjective intentions. Although defense counsel’s crossexamination 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 matters 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 testimony 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 proposed testimony that guns were brought to his residence 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 economy 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 jurisprudence 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 unfavorable 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 constrained. 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 (‘‘compromise 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 convictions. 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 answerthe 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 indicating 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 version 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 evidence 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, articulated 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 defendant’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] decision 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 furthertestify that the—that [the] practice of supporting businessmen 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 possessions 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 testimony 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 prejudiced 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 government.’’ 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 omitted.) Id. Rather, he appointed, and possessed ‘‘real power’’ over, all department 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 ‘‘contend[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).