State v. Brown

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STATE OF CONNECTICUT v. OTERRIO R. BROWN
(AC 41139)
Alvord, Devlin and Beach, Js.

Syllabus

Convicted under two informations of the crimes of breach of peace in the
second degree, criminal violation of a protective order and assault in
the third degree, the defendant appealed to this court. The defendant’s
convictions stemmed from two incidents, which occurred a few days
apart, in which he assaulted his roommate at their apartment in a dispute
involving the defendant’s wife. After the first alleged assault, the trial
court issued a protective order against the defendant, and shortly there-
after, the defendant violated the order by assaulting the victim again.
During voir dire, the state characterized the allegations against the
defendant as ‘‘domestic violence,’’ and ‘‘family violence,’’ to which the
court advised the state against using such language. Thereafter, the state
described the allegations as a ‘‘dispute between roommates.’’ On appeal,
the defendant claimed, inter alia, that the trial court improperly granted
the state’s motion for joinder of the cases for trial by allowing the jury
to consider prejudicial evidence of two different crimes and that the
trial court improperly allowed the state to use prejudicial language
during voir dire questioning, violating his federal right to a fair trial. Held:
1. The trial court did not abuse its discretion in granting the state’s motion
for joinder, as the defendant failed to demonstrate that joinder resulted
in substantial prejudice to him; the two incidents leading to the charges
against the defendant were discrete and easily distinguishable, even
though they concerned the same victim and defendant, the record dem-
onstrated that the events occurred at different times and locations, and
resulted in different injuries, and although the assaults were violent,
the defendant could not prevail on his claim that both assaults were so
brutal or shocking as to interfere with the jury’s ability to consider each
offense fairly and objectively.
2. The defendant could not prevail on his unpreserved claim that his right
to a fair trial was violated when the trial court allowed the state to use
prejudicial language during its voir dire questioning of potential jurors
and, thereafter, allowed the facts of the case to be introduced in an
effort to remedy the use of the prejudicial language; the introduction
of phrases such as ‘‘domestic violence,’’ ‘‘family violence,’’ and a ‘‘dispute
between roommates’’ was not improper because the defendant did not
dispute that the alleged crimes concerned disputes between roommates
and the title of the protective order, which was admitted into evidence,
referred to family violence, and, therefore, under the circumstances of
the present case, the defendant failed to prove that a constitutional
violation existed and that he was deprived of a fair trial.
3. The trial court did not abuse its discretion in denying the defendant’s
request for a continuance at the start of trial to accommodate the pres-
ence of a witness that the defendant claimed was crucial to his defense
of property argument; because the defendant’s request was made at the
last moment, substantial delay of the jury trial was likely to result if
the request had been granted, there was no guarantee from the defendant
that the witness would have appeared had the request for the continua-
tion been granted, and the defendant, at the time of the ruling, did not
provide any additional reasoning for the importance of the witness’
testimony, which had been discussed at earlier proceedings, nor did he
make any representation regarding the witness’ specific testimony.
Argued September 10, 2019—officially released January 14, 2020

Procedural History

Information, in the first case, charging the defendant
with the crimes of breach of the peace in the second
degree and failure to appear in the second degree, and
information, in the second case, charging the defendant
with the crimes of criminal violation of a protective
order, assault in the third degree and breach of the
peace in the second degree, brought to the Superior
Court in the judicial district of Waterbury, geographical
area number four, where the court, K. Murphy, J.,
granted the state’s motion for joinder; thereafter, the
matter was tried to the jury; verdicts and judgments of
guilty of two counts of breach of the peace in the second
degree and of criminal violation of a protective order
and assault in the third degree, from which the defen-
dant appealed to this court. Affirmed.
J. Patten Brown, III, for the appellant (defendant).
Linda F. Currie-Zeffiro, assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Marc Ramia, senior assistant state’s attor-
ney, for the appellee (state).
Opinion

BEACH, J. The defendant, Oterrio R. Brown, appeals
from the judgments of conviction, following a jury trial,
of two counts of breach of the peace in the second
degree, and of violation of a protective order and assault
in the third degree. The defendant claims that the court
improperly (1) granted the state’s request for joinder
of the two informations; (2) allowed the state to use
prejudicial language during the voir dire process; and
(3) denied the defendant’s request for a continuance.
We disagree and affirm the judgments of the trial court.
The jury reasonably could have found the following
facts. On January 22, 2016, two police officers, Paul Calo
and Kyle Cosmos, were called to a location in Waterbury
to respond to a domestic disturbance. The officers found
the defendant and the victim at the scene.1 The defendant
had blood on his shirt and a cut under his eye. When
asked by Cosmos what had occurred, the defendant
responded that there had been an altercation between
him and the victim. The defendant further explained
that he believed that the victim was sending naked
photographs of himself to the defendant’s wife, Grace
Quackenbush, so the defendant ‘‘kind of went at him
with clenched fist.’’ After speaking with the defendant,
the officers observed a trail of blood that led from the
kitchen to the back hallway where the victim was found.
Cosmos testified that the victim had a swollen left cheek
and a bloody nose. The officers arrested the defendant.2
He was charged with breach of the peace in the second
degree, in violation of General Statutes § 53a-181 (a)
(2), and, subsequently, a charge of failure to appear in
the second degree3 in violation of General Statutes
§ 53a-173 (a) (1) was added.
At a hearing on January 25, 2016, the trial court issued
a protective order. The defendant was ordered not to
have contact with the victim. The prohibition also
included refraining from assaulting, threatening, abus-
ing, harassing, following, or returning to the victim’s
home. Approximately thirty minutes after the issuance
of the protective order, the defendant returned to the
victim’s home. Shortly thereafter, the police received
a call regarding an incident at this location. Police found
the victim outside the house, screaming that the defen-
dant had just beaten him up. The officers also observed
blood in the snow and physical injuries to the victim,
including a swollen cheek and blood on his teeth. Calo
testified that these injuries were in addition to those
that he had observed on January 22, 2016.4 The defen-
dant was arrested and charged with criminal violation
of a protective order in violation of General Statutes
§ 53a-223a; breach of the peace in the second degree
in violation of § 53a-181 (a) (2); assault in the third
degree in violation of General Statutes § 53a-61 (a) (1);
and failure to appear in the first degree in violation of
General Statutes § 53a-172 (a) (1).
Prior to trial, the state filed a motion for joinder of
the separate informations, and the court granted the
state’s motion. After a week long jury trial, the defen-
dant was convicted of breach of the peace in the second
degree regarding the January 22, 2016 incident. He also
was convicted of criminal violation of a protective
order, breach of the peace in the second degree, and
assault in the third degree arising from the January
25 incident. The defendant was sentenced to a total
effective sentence of ten years of incarceration, execu-
tion suspended after two years, followed by three years
of probation. This appeal followed. Additional facts and
procedural history will be set forth as needed.
I
The defendant claims that the trial court improperly
granted the state’s motion for joinder. He contends that
combining the two informations substantially preju-
diced him according to the factors set forth in State v.
Boscarino, 204 Conn. 714, 722–24, 529 A.2d 1260 (1987).
The state counters by asserting that the Boscarino fac-
tors were not met and that the evidence in this case
was cross admissible. We agree with the state that the
Boscarino factors were not met.5
We first set forth the appropriate standard of review.
‘‘The principles that govern our review of a trial court’s
ruling on a motion for joinder . . . are well established.
Practice Book § 41-19 provides that, [t]he judicial
authority may, upon its own motion or the motion of
any party, order that two or more informations, whether
against the same defendant or different defendants, be
tried together. . . . In deciding whether to [join infor-
mations] for trial, the trial court enjoys broad discretion,
which, in the absence of manifest abuse, an appellate
court may not disturb. . . . The defendant bears a
heavy burden of showing that [joinder] resulted in sub-
stantial injustice, and that any resulting prejudice was
beyond the curative power of the court’s instructions.’’
(Internal quotation marks omitted.) State v. McKethan,
184 Conn. App. 187, 194–95, 194 A.3d 293, cert. denied,
330 Conn. 931, 194 A.3d 779 (2018). ‘‘Despite our reallo-
cation of the burden when the trial court is faced with
the question of joinder of cases for trial, the defendant’s
burden of proving error on appeal when we review the
trial court’s order of joinder remains the same. See
State v. Ellis, 270 Conn. 337, 376, 852 A.2d 676 (2004)
([i]t is the defendant’s burden on appeal to show that
joinder was improper by proving substantial prejudice
that could not be cured by the trial court’s instructions
to the jury . . .).’’ (Emphasis omitted; internal quota-
tion marks omitted.) State v. Payne, 303 Conn. 538, 550
n.11, 34 A.3d 370 (2012).
‘‘Substantial prejudice does not necessarily result
from [joinder] even [if the] evidence of one offense
would not have been admissible at a separate trial
involving the second offense. . . . Consolidation
under such circumstances, however, may expose the
defendant to potential prejudice for three reasons: First,
when several charges have been made against the defen-
dant, the jury may consider that a person charged with
doing so many things is a bad [person] who must have
done something, and may cumulate evidence against
him. . . . Second, the jury may have used the evidence
of one case to convict the defendant in another case
even though that evidence would have been inadmissi-
ble at a separate trial. . . . [Third] joinder of cases
that are factually similar but legally unconnected . . .
present[s] the . . . danger that a defendant will be
subjected to the omnipresent risk . . . that although
so much [of the evidence] as would be admissible upon
any one of the charges might not [persuade the jury]
of the accused’s guilt, the sum of it will convince them
as to all. . . .
‘‘The court’s discretion regarding joinder . . . is not
unlimited; rather, that discretion must be exercised in
a manner consistent with the defendant’s right to a fair
trial. Consequently, [in State v. Boscarino, supra, 204
Conn. 722–24] we have identified several factors that
a trial court should consider in deciding whether a
severance [or denial of joinder] may be necessary to
avoid undue prejudice resulting from consolidation of
multiple charges for trial. These factors include: (1)
whether the charges involve discrete, easily distinguish-
able factual scenarios; (2) whether the crimes were of
a violent nature or concerned brutal or shocking con-
duct on the defendant’s part; and (3) the duration and
complexity of the trial. . . . If any or all of these factors
are present, a reviewing court must decide whether the
trial court’s jury instructions cured any prejudice that
might have occurred.’’ (Internal quotation marks omit-
ted.) State v. Payne, supra, 303 Conn. 544–45.
A
The defendant first claims that consolidating his
cases allowed the jury to consider prejudicial evidence
of two different crimes. See State v. Holliday, 159 Conn.
169, 172, 268 A.2d 368 (1970). When a request for joinder
is made, the state ‘‘bears the burden of proving that
the defendant will not be substantially prejudiced by
joinder pursuant to Practice Book § 41-19.’’ State v.
Payne, supra, 303 Conn. 549–50. To overcome this bur-
den, the state must prove ‘‘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 pursuant to the Boscarino factors.’’ Id., 550.
In the present case, the defendant was charged in
two separate informations with crimes that occurred
on two different days. The trial court found that joinder
was proper as none of the Boscarino factors were pres-
ent. Specifically, the court reasoned that the informa-
tions were ‘‘easily distinguishable.’’ On appeal, the
defendant relies on the first and second Boscarino fac-
tors to support his claim that joinder of the two informa-
tions was improper. He concedes, in his brief, that the
third factor was not met.
The first Boscarino factor is whether two or more
factual scenarios were discrete and easily distinguish-
able. State v. Boscarino, supra, 204 Conn. 722–23. If
the two events were not easily distinguishable, the first
Boscarino factor is met. Id. The defendant asserts that
the joinder of the informations was prejudicial because
the jury was presented with factual scenarios that were
not easily distinguishable. In particular, the defendant
contends that the evidence of the scenarios presented
to the jury created a ‘‘gross violation of his fundamental
right to due process and a fair trial’’ because the two
incidents involved the same defendant, the same victim,
and similar alleged conduct, which occurred at the same
location. The defendant further asserts that even if the
state referred to each incident separately in its ques-
tioning and the court provided specific curative jury
instructions, the defendant would still be prejudiced.
We disagree.
In State v. Herring, 210 Conn. 78, 96, 554 A.2d 686,
cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed.
2d 579 (1989), our Supreme Court addressed the first
Boscarino factor. The court concluded that the evi-
dence involving two murders did not risk the degree
of confusion and prejudice that were present in Boscar-
ino. Id. The court in Herring explained that the two
murders were discrete and easily distinguishable
because the victims in the separate incidents suffered
different injuries and the crimes occurred in different
locations. Id.
Here, as in Herring, the jury was presented with
evidence of two criminal scenarios, which occurred on
January 22, 2016, and January 25, 2016. Even though the
informations concerned the same victim and defendant
and took place at the same general location, the events
were easily distinguishable. Although both crimes
occurred at the victim’s home, the January 22, 2016
incident occurred inside the home, and the January 25,
2016 incident occurred outside the home. In reference
to the January 22, 2016 incident, Cosmos and Calo both
testified as to finding blood inside the home. With
regard to the January 25, 2016 incident, Calo testified
that blood was found in the snow, outside of the home.
Second, although the victim suffered a swollen cheek
in both incidents, there was evidence of new injuries
to the victim following the January 25, 2016 encounter.
Specifically, when questioned as to whether the victim
incurred new injuries during the January 25, 2016 inci-
dent, Calo responded: ‘‘The injuries that [the victim]
sustained on the 22nd were still there but . . . there
were more injuries because there was fresh blood on
his mouth. . . . His face seemed more swollen and he
showed me a laceration on the inside of his mouth.
. . . It wasn’t bleeding out but it was fresh. It looked
fresh to me.’’Additionally, the two events occurred at
different times of the day. The January 22, 2016 incident
occurred at night, while the January 25, 2016 event
occurred during the day.
On the basis of the foregoing, it is clear from the
record that the two scenarios were easily distinguish-
able in that the events occurred at different times and
locations, and resulted in different injuries. The court
did not abuse its discretion in finding the two incidents
discrete and easily distinguishable. Therefore, the
defendant was not prejudiced by joinder under the first
Boscarino factor.
B
The defendant next claims that joinder was improper
under the second Boscarino factor. He maintains that
his conduct in both assaults was violent and resulted
in visible injuries to the victim, resulting in prejudice.
We disagree.
‘‘Whether one or more offenses involved brutal or
shocking conduct likely to arouse the passions of the
jurors must be ascertained by comparing the relative
levels of violence used to perpetrate the offenses
charged in each information.’’ (Internal quotation marks
omitted.) State v. Payne, supra, 303 Conn. 551. The
assault on January 22 must be compared to the assault
on January 25 to determine whether the ‘‘alleged con-
duct in one incident is not so shocking or brutal that
the jury’s ability to consider fairly and objectively the
remainder of the charges is compromised.’’ State v.
LaFleur, 307 Conn. 115, 160–61, 51 A.3d 1048 (2012).
In Payne, the court compared the charge of felony
murder to a separate charge of jury tampering and deter-
mined that the second Boscarino factor regarding preju-
dice was satisfied ‘‘[b]ecause the defendant’s conduct
in killing the victim in the felony murder case was
significantly more brutal and shocking than his conduct
in attempting to tamper with the jurors . . . [t]he evi-
dence from the felony murder case was prejudicial to
the defendant with regard to the jury tampering case.’’
State v. Payne, supra, 303 Conn. 552. Furthermore, in
Boscarino, the defendant committed multiple sexual
assaults, all with the force of a deadly weapon. State
v. Boscarino, supra, 204 Conn. 723. The court held that
joinder was improper as it ‘‘gave the state the opportu-
nity to present the jury with the intimate details of each
of these offenses, an opportunity that would have been
unavailable if the cases had been tried separately.’’ Id.
In the present case, the defendant was charged with
breach of the peace in the second degree with regard
to the January 22 incident and breach of the peace in
the second degree and with assault in the third degree
with regard to the January 25 incident; both incidents
involved punching the victim. Neither incident was
shockingly violent. The defendant concedes that the
alleged conduct was not as brutal as the conduct that
occurred in Payne and Boscarino.
Our Supreme Court has addressed the second Bosc-
arino factor in the context of an assault. In State v.
LaFleur, supra, 307 Conn. 160, the court held that an
assault, in which the defendant punched a woman in
the face, was not ‘‘so shocking or brutal as to preclude
joinder.’’ In State v. Jennings, 216 Conn. 647, 659, 583
A.2d 915 (1990), our Supreme Court held that an assault
was not so brutal or shocking as to create a serious
risk of prejudice when tried with an allegation of kid-
napping. Citing to State v. Herring, supra, 210 Conn.
97, the court noted that although physical harm was
inflicted on the victim, it was not disabling and did not
satisfy the second Boscarino factor. State v. Jennings,
supra, 216 Conn. 659.
In the present case, the defendant assaulted the vic-
tim on two separate dates. These assaults, although
violent, were not so brutal or shocking as to interfere
with the jury’s ability to consider each offense fairly
and objectively. As such, we conclude that the second
Boscarino factor is not met.
We conclude that the defendant has not shown that
he was prejudiced under the Boscarino factors and that
the trial court did not abuse its discretion in granting
the state’s motion for joinder.
II
The defendant claims that the trial court improperly
allowed the state to introduce facts and prejudicial lan-
guage during its voir dire questioning. The defendant
argues that the trial court violated his sixth amendment
right to a fair trial by allowing the state to use the terms
such as ‘‘domestic violence,’’ ‘‘family violence,’’ and
‘‘dispute between roommates’’ during voir dire. We
disagree.
The state argues preliminarily that the issue is unpre-
served and, thus, unreviewable. We agree that the issue
is not preserved. Practice Book § 60-5 states, in relevant
part, that ‘‘[this] court shall not be bound to consider
a claim unless it was distinctly raised at the trial or arose
subsequent to the trial.’’ An unpreserved constitutional
claim, however, may be considered by this court if all
of the following conditions are met: ‘‘(1) the record is
adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the viola-
tion of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the
[defendant] of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt.’’ State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), as modified by In re Yasiel
R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).
The record is adequate to review this claim, and the
defendant is alleging a violation of his fundamental right
to a fair trial pursuant to the sixth amendment of the
United States constitution. Because the claim is review-
able, we address the merits of the defendant’s claim.
The federal constitution guarantees a defendant the
fundamental right to a trial by an impartial jury. U.S.
Const., amends. VI and XIV. ‘‘Although the conduct of
voir dire is within the broad discretion of the trial court
. . . that discretion must be exercised within the
parameters established by the right to a fair trial.’’ (Cita-
tions omitted.) State v. Mercer, 208 Conn. 52, 58, 544
A.2d 611 (1988).
‘‘The actual impact of a particular practice on the
judgment of jurors cannot always be fully determined.
But [the United States Supreme Court] has left no doubt
that the probability of deleterious effects on fundamen-
tal rights calls for close judicial scrutiny. . . . Courts
must do the best they can to evaluate the likely effects
of a particular procedure, based on reason, principle,
and common human experience. . . . Due to the seri-
ous constitutional implications of the defendant’s claim,
[courts] have the duty to make an independent evalua-
tion of the circumstances.’’ (Citation omitted; internal
quotation marks omitted.) State v. Mercer, supra, 208
Conn. 58.
The following additional facts are pertinent to this
claim. On June 5, 2017, the voir dire process began.
During the state’s questioning of a venireperson, the
state characterized the allegations against the defen-
dant as ‘‘domestic violence.’’ The state asked: ‘‘[T]he
term ‘domestic violence,’ does that conjure up any
thoughts, feelings, opinions or anything like that?’’ The
state continued to use the term ‘‘domestic violence’’
until the court, on its own accord, cautioned against
its use in voir dire. The court stated: ‘‘I will caution
the state [not to] use [a] term as general as domestic
violence. I don’t know . . . that [the relationship
between the parties] fits . . . the traditional definition
of a domestic violence . . . so I don’t want to disqualify
jurors when this isn’t even going to be the kind of
case that they’re talking about [referring to domestic
violence].’’ The state then altered its questioning and
used the term ‘‘family violence’’ rather than ‘‘domestic
violence.’’ The court advised against using either term
and suggested that an appropriate question would be,
‘‘how do you feel about violence between roommates.’’
The state indicated its concerns about discussing the
facts of the case, to which the court responded: ‘‘There’s
nothing getting into the facts of the case if it goes to a
prejudice or bias . . . the allegations are violence
between roommates. I don’t have a problem with that.’’
Ultimately, the state adopted the court’s suggestion and
referred to the allegation as a ‘‘dispute between
roommates.’’
The defendant contends that the court’s supervision
of voir dire questioning was improper in two ways: (1)
the court improperly allowed prejudicial language to
be used initially; and (2) to remedy the process, the
court improperly allowed facts of the case to be intro-
duced during the voir dire process. The defendant fur-
ther contends that the use of facts in voir dire gave the
jurors preconceived notions about the case, thereby,
violating the defendant’s constitutional right to a fair
trial.6
Our Supreme Court has warned counsel and the trial
courts not to engage in voir dire questioning that
touches on the facts of the case. ‘‘We have noted with
concern increasing abuse of the voir dire process . . .
It appears that all too frequently counsel have engaged
in wideranging interrogation of veniremen in a not too
subtle attempt to influence the ultimate decision of a
venireman if he should be selected for service or to
ascertain the attitude of the venireman on an assumed
state of facts.’’ (Internal quotation marks omitted.)
Bleau v. Ward, 221 Conn. 331, 339–40, 603 A.2d 1147
(1992). In the present case, however, we do not find
that the challenged language gave potential jurors pre-
conceived notions about the case.
We conclude that the introduction of the phrases
‘‘domestic violence,’’ ‘‘family violence,’’ and a ‘‘dispute
between roommates,’’ was not improper. Language in
the protective order concerning ‘‘family violence’’
would be admitted into evidence. The order was titled
‘‘protective order—family violence.’’ Under the circum-
stances of the incidents, we cannot conclude that the
use of ‘‘family violence’’ or ‘‘domestic violence’’ was so
harmful to the defendant. It was never disputed that
the alleged crimes concerned ‘‘disputes between room-
mates.’’ We, therefore, conclude that the defendant has
failed to prove that a constitutional violation existed
and that he was deprived of a fair trial.
III
Lastly, the defendant claims that the trial court
improperly denied his request for a continuance, thus
violating his sixth amendment right to a fair trial. We
disagree.
‘‘A reviewing court ordinarily analyzes a denial of a
continuance in terms of whether the court has abused
its discretion. . . . This is so where the denial is not
directly linked to a specific constitutional right. . . .
If, however, the denial of a continuance is directly
linked to the deprivation of a specific constitutional
right, some courts analyze the denial in terms of
whether there has been a denial of [such right].’’ In Re
Shaquanna M., 61 Conn. App. 592, 601–602, 767 A.2d
155 (2001). ‘‘The defendant’s burden on appeal is to
show that the trial court acted arbitrarily, in light of
the information available at the time of its decision,
and thereafter, if an abuse of discretion has been estab-
lished, that the defendant’s ability to defend himself
has thereby been demonstrably prejudiced.’’ State v.
Hamilton, 228 Conn. 234, 246, 636 A.2d 760 (1994). Our
analysis, then, first considers whether the court abused
its discretion in denying the defendant’s motion for a
continuance. See State v. Godbolt, 161 Conn. App. 367,
374 n.4, 127 A.3d 1139, cert. denied, 320 Conn. 931, 134
A.3d 621 (2016).
‘‘There are no mechanical tests for deciding when a
denial of a continuance is so arbitrary as to violate due
process. The answer must be found in the circum-
stances present in every case, particularly in the reasons
presented to the trial judge at the time the request is
denied. . . .
‘‘Among the factors that may enter into the court’s
exercise of discretion in considering a request for a
continuance are the timeliness of the request for contin-
uance; the likely length of the delay; the age and com-
plexity of the case; the granting of other continuances in
the past; the impact of delay on the litigants, witnesses,
opposing counsel and the court; the perceived legiti-
macy of the reasons proffered in support of the request;
the defendant’s personal responsibility for the timing
of the request; [and] the likelihood that the denial would
substantially impair the defendant’s ability to defend
himself. . . . We are especially hesitant to find an
abuse of discretion where the court has denied a motion
for continuance made on the day of the trial. . . .
‘‘Lastly, we emphasize that an appellate court should
limit its assessment of the reasonableness of the trial
court’s exercise of its discretion to a consideration of
those factors, on the record, that were presented to the
trial court, or of which that court was aware, at the
time of its ruling on the motion for a continuance.’’
(Citations omitted; emphasis omitted; internal quota-
tion marks omitted.) Id., 374–75.
In the present case, the defendant contends that the
denial of his request for a continuance was unreason-
able. To support this claim, the defendant asserts three
arguments: (1) because the court granted the state’s
request for a continuance earlier during the proceed-
ings, the court should have also granted his request for
a continuance; (2) the state did not object to the request
for a continuance; and (3) the denial of the continuance
greatly impaired the defendant’s defense, because
Quackenbush was a crucial witness in support of the
defendant’s claim that he was acting in defense of prop-
erty. The state counters by asserting that the court
properly denied the request for a continuance. We agree
with the state.
The following facts are relevant to this issue. On June
13, 2017, the defendant informed the court that his
witness, Quackenbush, would not appear at trial that
day because she had a work conflict. In his view, the
witness was important, and he orally requested a contin-
uance to the following day. The court denied the defen-
dant’s request, reasoning that a continuance would ‘‘just
[be] delaying this case.’’ The court noted that it ‘‘had
directed that [the defendant] be prepared to start evi-
dence . . . on Friday the 9th,’’ such that a continuance
would disrupt the time frame of the trial. The court
noted its concern that a delay might result in the loss
of a juror: ‘‘[w]e told this jury they would potentially
have this case on the 9th but we definitely would give
it to them by the 13th and now we’re telling them the
15th and . . . there is at least one juror who has work
problems.’’ In addition to the potential delay, the court
also mentioned the timeliness of the request, stating,
‘‘If you had raised this issue at an earlier time . . . the
witness was supposed to be here today. . . . So this
is not a minor request. The record should reflect I would
certainly consider this if it weren’t for the fact that
defense isn’t available the 15th, the state’s not available
the 16th. But the result of me granting this continuance
is more likely forcing this case into next week and I’m
potentially losing other jurors.’’ Accordingly, the trial
court properly considered the potential delay to the
proceeding, the untimeliness of the defendant’s request,
and the resulting prejudice to the trial management.
The trial court’s ruling was not arbitrary.
The defendant further alleges that his sixth amend-
ment right to present a complete defense was impaired
because Quackenbush was a key witness in support of
his claim that he exercised a reasonable degree of force
in defense of property. He argues that he notified the
court of the importance of Quackenbush’s testimony,
and that she was present at both altercations. The sug-
gestion regarding the importance of Quackenbush’s tes-
timony was not made at the time of the request for a
continuance, however, but, rather, was made earlier in
the trial during a discussion regarding instructions to
the jury. The defendant’s attorney stated: ‘‘[I]n regards
to the evidence about defense of property . . . the plan
was that evidence was going to come through Grace
Quackenbush, [she] did make the 911 call. I wasn’t
planning on introducing that, because I was going to
elicit her testimony. If she doesn’t appear . . . I’m
going to call [the 911 dispatcher] in my case-in-chief
and introduce her 911 call. . . .’’7 At the time of its
ruling on the defendant’s request for a continuance, the
court stated that ‘‘Ms. Quackenbush’s . . . her state-
ment . . . has come in through a 911 call.’’
The defendant, at the time of the ruling, did not pro-
vide any additional reasoning for the importance of
Quackenbush’s testimony nor did he make any repre-
sentation regarding her specific testimony. The defen-
dant has not persuaded us that his sixth amendment
right to a fair trial was violated by the denial of his
request for a continuance. See State v. Godbolt, supra,
161 Conn. App. 374 n.4.
Because the request for a continuance was made at
the last moment, substantial delay was likely to result
if the request had been granted, and there was no assur-
ance that the witness would have appeared if the contin-
uance had been granted, the court’s ruling was not an
abuse of discretion and, accordingly, did not violate the
defendant’s constitutional right to a fair trial.
The judgments are affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victim of family violence, we decline to identify the victim or others through
whom the victim’s identities may be ascertained. See General Statutes
§ 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2012); we decline to identify any party protected or sought to be protected
under a protective order or a restraining order that was issued or applied
for, or others through whom that party’s identity may be ascertained.
2
At trial, Cosmos stated his reasoning for arresting the defendant: ‘‘[W]ith
. . . everything that we observed on the scene, with all the blood, the
injuries to [the victim], and the motive that he had, we believed that [the
defendant] was the one that should be arrested.’’ Calo testified: ‘‘I took the
whole scenario and it had a lot to do with credibility and motive. I found
that [the defendant] was upset because he found pictures of his wife—he
found pictures of [the victim] naked on his wife’s phone. So he confronted
[the victim] about it. And [the victim] really had no reason to lash out at
the defendant.’’
3
The defendant failed to appear for a scheduled hearing on August 26,
2016.
4
Calo testified: ‘‘The injuries that he sustained on the 22nd were still there
but there . . . were more injuries because there was blood in his mouth
. . . . His face seemed more swollen and he showed me a laceration on
the inside of his mouth.’’
5
In light of our determination regarding the Boscarino factors, we need
not decide whether the evidence was cross admissible.
6
With regard to the use of the term ‘‘dispute between roommates,’’ each of
the three venirepersons who were informed that the parties were roommates
indicated that the factual scenario would not affect his or her ability to be
impartial. Ultimately, none of the jurors who were informed that the parties
were roommates was selected to sit on the panel of jurors. One, however,
was selected as an alternate juror.
7
The referenced 911 call was subsequently introduced into evidence by
the state.