SUPREME COURTOF 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 WELLERSenior Assistant State's Attorney

Office Of The Chief State's AttorneyAppellate Bureau

300 Corporate PlaceRocky Hill, CT 06067

Telephone: (860) 258-5807Facsimile: (860) 258-5828

Juris Number: 401859harry.weller@ctqov # DCJ.OCSA.Appellate@ctus

TABLE OF CONTENTS

Page

CERTIFIED QUESTIONS

TABLE OF AUTHORITIES.

NATURE OF THE PROCEEDINGS 1

I. THE APPELLATE COURT ERRED WHEN IT DETERMINED THAT THETRIAL COURT ABUSED ITS DISCRETION IN JOINING TWO POLITICALCORRUPTION CASES FOR TRIAL AND THAT SUCH JOINDER WAS NOTHARMLESS 1

A. Legal Principles The Court Must Apply 2

B. The Defendant Is Not Entitled to An Automatic Reversal 3

C. Analyzed Prospectivety, the Majority Should Not Have Substituted ItsDiscretion For the Trial Court's 4

1. Stare decisis plays no role in determining v^/hether a joinderdecision is analyzed prospectively or retrospectively 4

2. The initial decision to join was not an abuse of discretion 6D. If the trial court abused its discretion, looking retrospectively, the

defendant has not proven harm 9

II. THE APPELLATE COURT ERRED WHEN IT DETERMINED THAT THETRIAL COURT'S REFUSAL TO SEVER THE CASES VIOLATED THEDEFENDANT'S RIGHT TO TESTIFY IN ONE CASE WHILE REMAININGSILENT IN THE OTHER 12

A. The May 20 Offer 12

B. The June 11 Offer 14

CONCLUSION 15

CERTIFIED QUESTIONS

DID THE APPELLATE COURT PROPERLY DETERMINE THAT THE TRIALCOURT ABUSED ITS DISCRETION IN JOINING TWO POLITICAL CORRUPTIONCASES FOR TRIAL AND THAT SUCH JOINDER WAS NOT HARMLESS?

DID THE APPELLATE COURT PROPERLY DETERMINE THAT THE TRIALCOURTS REFUSAL TO SEVER THE CASES VIOLATED THE DEFENDANT'SRIGHT 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) 9State v. Booth, 250 Conn. 611 (1999) 5

State y. Castelli, 92 Conn. 58 (1917) 4

State V. Crenshaw, 313 Conn. 69 (2014) 5

State V. Davis, 286 Conn. 17 (2008) 3, 4

State V. DeJesus, 288 Conn. 418 (2008) 4

State V. DeMarco, 311 Conn. 510 (2014) 5State V. Herrell, 199 Conn. 255 (1986) 15

State V. Hoiup, 167 Conn. 240 (1974) 4

State V. Miranda, 176 Conn. 107 (1978) 3. 4

State V. Payne, 303 Conn. 538 (2012) 2. 3, 4. 6

State V. Perez, 147 Conn. App. 53 (2013) 1, 3, 8, 9, 10, 11State V. Perez, 311 Conn. 920 (2014) 1

State V. Rivera, 260 Conn. 486 (2002) 2, 7

State V. Schroff, 198 Conn. 405 (1986) 12

State V. Torrence, 196 Conn. 430 (1985) 2State V. Woodson, 227 Conn. 1 (1993) 8

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 5

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 thebribery case and the larceny case). The majority held that joinder prevented the jury fromconsidering "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 abuseof 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 itsdiscretion in joining two political corruption cases for trial and that such joinderwas not harmless?

2. Did the Appellate Court properly determine that the trial court's refusal tosever the cases violated the defendant's right to testify in one case whileremaining silent in the other?

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

I. THE APPELLATE COURT ERRED WHEN IT DETERMINED THAT THE TRIALCOURT ABUSED ITS DISCRETION IN JOINING TWO POLITICAL CORRUPTIONCASES 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 appealthat 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 theevidence in each case substantively admissible at the trial of the others, weresignificant enough to impair the defendant's right to the jury's fair andindependent consideration of the evidence in each case"; (2) whether "[t]heprejudicial impact of joinder in these cases was exacerbated by the violentnature of the crimes with which the defendant was charged ... [giving] thestate the opportunity to present the jury with the intimate details of each ofthese offenses, an opportunity that would have been unavailable if the caseshad been tried separately"; and (3) whether "[t]he duration and complexity ofthe trial also enhanced the likelihood that the jury would weigh the evidenceagainst the defendant cumulatively, rather than independently in each case.

See. State v. Payne, 303 Conn. 538, 543 n. 2 (2012), quoting, State Boscarino, 204Conn. 714, 722-724(1987).

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 respectivecases, 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 ItsDiscretion 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 joinderdecision is analyzed prospectively or retrospectively

As Justice Katz chronicled, this Court had a long history of evaluating joinderdecisions 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 joinderclaims, 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 thesecond 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 waswhether joinder was justified by cross-admissibility. D/B at 20. In Crenshaw, however, thisCourt made two points. The first, which the state relies on, is that the temporal reference forreviewing 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. Thedefendant's distinction goes to the second point.

The defendant claims Booth is inapplicable because that case dealt with joinder ofdefendants 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, whichaddresses 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 separateanalysis of the factors considered when determining whether joining defendants wasprejudicial. Id. at 623-633.

2. The initial decision to join was not an abuse of discretionThe 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 whenjoinder 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'spost-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, quotingState 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 aconsideration. Id. This case presents a compelling example of how joining non-cross-

admissible cases of admittedly a "highlyvisible 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 jurywill 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 thejury 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 ascapable 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 siton 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. Thusthe trial was just one week longer in calendar time and considerably shorter in the numberof 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 manytransactions over a period of approximately two and one-half years, but aswhite collar or corruption cases go. there was nothing unduly complex orconfusing 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 crimesarising 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, thedefendant has not proven harm

Looking back, the majority agreed that the trial proceeded in an orderly and distinctmanner 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 ofmaking 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 thesame 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 evidencefairly 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 billthrough 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 havingconvicted 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 jurywas 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 wasincapable 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 TRIALCOURT'S REFUSAL TO SEVER THE CASES VIOLATED THE DEFENDANT'SRIGHT 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, forexample, how he would explain the fraudulent representations made onthe mortgage application about either the Charles Schwab account or aboutthe tax returns he allegedly filed in the preceding years. Nor has he indicatedwhat he would say about the falsified Schwab receipt and tax returns or theforged letter from the IRS. Alexander has instead only generally assertedthat any testimony supporting his representations on the mortgage loanapplication would harm his defense on the personal bankruptcy fraudcharges.

(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 SeventhCircuit has] set for a severance on this ground-that the defendant make aconvincing showing that he has both important testimony to give concerningone 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 toshow 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 offersand his appellate argument that he is "not required to give a point-by point proffer of hisprecise 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.

March 2015

Respectfully submitted,

STATE OF CONNECTICUT

HARRY^LLERSenior Assistant State'^XftorneyOffice of the Chief St^'s AttorneyAppellate Bureau-300 Corporate PlaceRocky Hill. CT 06067Tel. (860) 258-5807Fax (860) 258-5828Juris No. 401859

GAIL P. HARDYState's AttorneyJudicial District of Hartford

MICHAEL GAILORExecutive Assistant State's AttorneyOffice of the Chief State's Attorney

CHRISTOPHER ALEXYSenior Assistant State's AttorneyOffice of the Chief State's AttorneyStatewide Prosecution Bureau

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 Xenior Assistant State'^ Attorney