State v. Perez, 32747.

• Decision Date: 17 December 2013
• Docket Number: No. 32747.,32747.
• Citation: 80 A.3d 103,147 Conn.App. 53
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Eddie A. PEREZ.

147 Conn.App. 53

80 A.3d 103

STATE of Connecticut

v.Eddie A. PEREZ.

No. 32747.

Appellate Court of Connecticut.

Argued Feb. 19, 2013.

Decided Dec. 17, 2013.

Hubert J. Santos, with whom were Hope C. Seeley, Hartford, and, on the brief, Jessica M. Santos, for the appellant (defendant).

Harry Weller, senior assistant state's attorney, with whom were Christopher A. Alexy, senior assistant state's attorney, and, on the brief, Gail P. Hardy, state's attorney, and Michael A. Gailor, executive assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and LAVINE and BISHOP, Js.

DiPENTIMA, C.J.

The defendant, Eddie Alberto Perez, once mayor of the city of Hartford (city),¹appeals from the judgments of conviction, rendered after a jury trial, of bribe receiving in violation of General Statutes § 53a–148 (a), fabricating evidence as an accessory in violation of General Statutes §§ 53a–155 (a)(2) and 53a–8, conspiracy to fabricate evidence in violation of General Statutes §§ 53a–155 (a)(2) and 53a–48, conspiracy to commit larceny in the first degree by extortion in violation of General Statutes §§ 53a–48, 53a–122 (a)(1) and 53a–119 (5)(H), and attempt to commit larceny in the first degree by extortion in violation of General Statutes §§ 53a–49 (a)(2), 53a–122 (a)(1), and 53a–119 (5)(H).

On appeal, the defendant claims that (1) the evidence was insufficient to support his convictions, (2) the court improperly consolidated the two informations for trial, (3) the court improperly instructed the jury ² and (4) the court improperly admitted into evidence testimony regarding uncharged misconduct.³ We conclude that there was sufficient evidence to sustain the defendant's convictions. We further conclude that the court improperly joined the defendant's two criminal cases for a single trial, and, therefore, reverse the judgments of conviction and remand each case for a new trial. As a result of this determination, we do not reach the defendant's instructional or evidentiary claims.⁴

We begin by setting forth the relevant procedural history. On January 21, 2009, the state charged the defendant by information with bribe receiving, fabricating physical evidence and conspiracy to fabricate physical evidence. On May 7, 2010, by way of a substitute information, the state charged the defendant with bribe receiving, fabricating physical evidence, fabricating physical evidence as an accessory and conspiracy to fabricate physical evidence (hereinafter the bribery charges or bribery case). The defendant entered pleas of not guilty to all of the bribery charges on May 12, 2010. ⁵

Meanwhile, on August 28, 2009, in a separate information the state charged the defendant with attempt to commit larceny in the first degree by extortion, conspiracy to commit larceny in the first degree by extortion and conspiracy to commit coercion. On May 7, 2010, the state filed a substitute information charging the defendant with conspiracy to commit larceny in the first degree by extortion and attempt to commit larceny in the first degree by extortion (hereinafter the extortion charges or extortion case).⁶ The defendantentered not guilty pleas to all the extortion charges on May 12, 2010.

On or about September 10, 2009, the state filed a motion to consolidate the informations, to join the bribery charges with the extortion charges for a single trial. On November 4, 2009, the court held a hearing on the state's motion to consolidate. At the conclusion of that hearing, the court granted the state's motion. Jury selection commenced on April 12, 2010, and was completed ten days later. On May 12, 2010, after the court's initial remarks to the jury, including reading both of the operative informations, the defendant moved for a mistrial. Defense counsel argued that the defendant had been prejudiced because the jury knew of the bribery charges and the extortion charges. In the alternative, defense counsel requested that the court instruct the jury that the evidence presented during the bribery case could not be considered as part of the extortion case. The court agreed to the latter ⁷ and denied the motion for a mistrial.

The state then presented its case on the bribery charges. The jury heard testimony on these charges on May 12, May 13, May 14, May 17, May 18, May 19, May 20, and May 26, 2010. On May 20, 2010, the defendant filed a motion for severance of offenses pursuant to Practice Book § 41–18.⁸ He claimed that the failure to sever would result in substantial injustice, and would deny him a fair trial and due process of law. He incorporated the arguments previously made in his objection to the state's motion to consolidate and claimed substantial prejudice from the fact that he wanted to testify as to the bribery charges but to exercise his fifth amendment right not to testify as to the extortion charges. The court heard argument on this motion and denied it. The state concluded its case on the bribery charges on May 26, 2010. The court then instructed the jury: “Furthermore, I remind you that these two cases must be considered separately; in other words, the evidence that has been presented by the state relating to the charges of bribe receiving and fabricating physical evidence may not be considered by you in regard to the second case. Likewise, the evidence the state introduces relating to the charge of attempted larceny by extortion and conspiracy to commit larceny by extortion cannot be considered by you in regard to the first case; they are two separate cases, each case must stand on its own proof and the charges must be proven by the state beyond a reasonable doubt.”

The jury heard evidence on the extortion changes on May 26, May 27, June 2, June 3, June 4, June 7, and June 8, 2010. The state rested with respect to both sets of charges on June 8, 2010. On June 10, 2010, the defendant moved for a judgment of acquittal, a mistrial, and, in the alternative, to sever the two cases. The defendant also requested permission to testify only as to the bribery charges. The court denied the motion for a judgment of acquittal and deferred ruling on the other motions until the next day. After hearing argument, the court denied the defendant's remaining motions on June 11, 2010.

The defense presented evidence on June 10, June 11 and June 14, 2010. The state presented rebuttal evidence, and the evidentiary portion of the trial concluded on June 14, 2010. The next day, defense counsel renewed the motions for a judgment of acquittal, mistrial and severance. The court denied the defendant's motions.

With respect to the bribery charges, the jury found the defendant guilty of bribe receiving, fabricating physical evidence as an accessory and conspiracy to fabricate physical evidence. The jury found the defendant not guilty of fabricating physical evidence. With respect to the extortion charges, the jury found the defendant guilty of conspiracy to commit larceny in the first degree by extortion and attempt to commit larceny in the first degree by extortion.

On July 6, 2010, the defendant filed a motion for a new trial, arguing, inter alia, that the court improperly joined the two cases for trial and denied his motion to sever. That same day, the defendant also filed a motion for a judgment of acquittal on the ground that there was insufficient evidence to support the jury's verdicts. The court denied the defendant's motions and rendered judgments in accordance with the verdicts. The court sentenced the defendant to a total effective term of ten years incarceration, suspended after three years, and three years of probation. This appeal followed.

I

The defendant first claims that the evidence was insufficient to support his convictions on both the bribery charges and the extortion charges. ⁹ With respect to the bribery charges, the defendant argues that there was insufficient evidence that (1) an official proceeding was about to be instituted, (2) the defendant intended to mislead a public servant, (3) the defendant aided Carlos Costa ¹⁰ in fabricating the invoice from USA Contractors, Inc. (USA Contractors), for renovations done at the defendant's residence, (4) the defendant and Costa agreed to fabricate the invoice from USA Contractors, and (5) the defendant accepted or solicited the renovation work on his home in consideration for aiding Costa in his dealings and disputes with the city as to his work on the Park Street revitalization project in Hartford (project). The defendant also argues that the evidence was insufficient to support his conviction of the extortion charges. Specifically, he contends that the state failed to establish that (1) he sought to compel Joseph Citino to pay $100,000 to Abraham Giles, (2) the defendant instilled a fear in Citino that if he failed to pay Giles, the defendant would impede Citino's renovation and development plans at the Davis Building lot, and (3) the defendant and Giles had an agreement to extort money from Citino. We are not persuaded by these claims of evidentiary insufficiency.

As an initial matter, we set forth the relevant legal principles and standard of review relating to a claim of insufficient evidence. “In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and...