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State v. Cruz
STATE OF CONNECTICUT v. ANTHONY CRUZ
(AC 45685)
Bright, C. J., and Moll and Westbrook, Js.
Syllabus
Convicted of the crimes of assault in the first degree, criminal possession
of a firearm and carrying a pistol without a permit, the defendant
appealed to this court, claiming that his constitutional rights to confrontation and a fair trial were violated as a result of misrepresentations
made by the state in moving to join his case for trial with that of his
codefendant, J. The defendant and J had entered an apartment in which
C was staying and engaged in an altercation with him, during which the
defendant shot C, and C stabbed J with a knife. A police detective, F,
interviewed J twice. During trial, the state informed the court that it
intended to offer as consciousness of guilt evidence against J a recording
of only J’s first interview with the police. That recording was admitted
into evidence during the state’s direct examination of F, and the state
did not thereafter question F about the second interview or offer the
recording of that interview into evidence. On cross-examination, in
response to an open-ended question by defense counsel, F testified that,
during the second interview, J had identified the defendant and had
stated that the defendant was in C’s apartment at the time of the shooting.
The court denied the defendant’s motion to strike F’s answer but
expressed concern about F’s reference to the second interview, of which
the jury previously had been unaware. The court then approved an
agreement between the parties, under which they would each elicit
limited testimony from F about the second interview. F further testified
that J had later identified the defendant from a photographic array the
police had prepared. During closing argument, the state relied on F’s
testimony as substantive evidence of the defendant’s culpability. Held
that the defendant could not prevail on his unpreserved claim that the
joinder of his case with J’s case for trial was improper because the
state had misrepresented that the evidence in the two cases was cross
admissible: it was only after F had referenced J’s second interview with
the police in a truthful, responsive answer to defense counsel’s open-ended question on cross-examination about the police investigation that
the state relied on that interview as substantive evidence against the
defendant; moreover, at no point prior to that cross-examination did
the state use, or suggest an intention to use, the second interview against
the defendant, and the defendant abandoned any challenge to the court’s
denial of his motion to strike F’s testimony by failing to brief a claim
of error as to that issue; furthermore, defense counsel expressly agreed
to the procedure approved by the trial court that permitted the state to
introduce limited portions of J’s second interview through F’s redirect
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State v. Cruz
testimony, and defense counsel failed to raise any objection to the
agreement on the record.
Argued March 6—officially released July 30, 2024
Procedural History
Substitute information charging the defendant with
the crimes of assault in the first degree, conspiracy to
commit assault in the first degree, criminal possession
of a firearm, criminal use of a firearm, and carrying a
pistol without a permit, brought to the Superior Court
in the judicial district of Hartford, where the court,
Gold, J., granted the state’s motion to join for trial the
defendant’s case with that of a codefendant; thereafter,
the case was tried to the jury before Gold, J.; verdict
of guilty of assault in the first degree, criminal possession of a firearm, criminal use of a firearm and carrying
a pistol without a permit; subsequently, the court
vacated the verdict as to the charge of criminal use of a
firearm; judgment of guilty of assault in the first degree,
criminal possession of a firearm and carrying a pistol
without a permit, from which the defendant appealed
to this court. Affirmed.
Adele V. Patterson, for the appellant (defendant).
James A. Killen, senior assistant state’s attorney,
with whom, on the brief, were Sharmese L. Hodge,
state’s attorney, and Emily Dewey Trudeau, senior
assistant state’s attorney, for the appellee (state).
Opinion
MOLL, J. The defendant, Anthony Cruz, appeals from
the judgment of conviction, rendered after a jury trial,
of assault in the first degree in violation of General
Statutes § 53a-59 (a) (5), criminal possession of a firearm in violation of General Statutes (Rev. to 2019) § 53a-
217, and carrying a pistol without a permit in violation
of General Statutes (Rev. to 2019) § 29-35 (a). On appeal,
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State v. Cruz
the defendant claims that the state made certain purported misrepresentations in moving to join his case
with a codefendant’s case that resulted in an improper
joinder of the cases and violated his constitutional
rights to confrontation and to a fair trial pursuant to
the sixth and fourteenth amendments to the United
States constitution. We disagree and, accordingly, affirm
the judgment of conviction.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
resolution of the defendant’s claim. Sometime prior to
September 10, 2019, an incident occurred between the
defendant and Marcelo Campos. Specifically, Campos
witnessed the defendant attempting to get into Campos’
car because the defendant believed that Campos had
stolen liquor from him. Campos called the police to
report the defendant, but the defendant was not
arrested in connection with this incident.
During the early morning hours of September 10,
2019, Campos was at an apartment located at 433 Zion
Street in Hartford (apartment), which was situated
above a bodega owned by the defendant’s family.
Campos, who was living out of his car at the time,
previously had been permitted by the owner of the
building to stay in the apartment; however, Campos
did not have permission to be at the apartment that
morning.
While on the back porch of the apartment, Campos
observed a group of individuals outside, one of whom
was carrying a gun. Campos went into the apartment,
looked out of a window, and saw the group in front of
the building, at which point he recognized the defendant
as the individual holding the gun. Thereafter, the group
gained entry to the building, ascended the stairs, and
entered the apartment. At some point, the defendant
told Campos, ‘‘you’re mine, motherfucker.’’ Two of the
other individuals in the group, including Jamal Johnson,
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State v. Cruz
approached Campos and started swinging at him.
Campos, who was armed with two knives, stabbed
Johnson. During this tussle, the defendant shot Campos.
Following the gunshot, Johnson and the other individual who had been attacking Campos dispersed, with
one of them stating, ‘‘not here, Ant.’’ The defendant
then shot Campos a second time and fled. Campos
managed to call 911 and was taken to Hartford Hospital
(hospital) to be treated for his injuries, which resulted,
inter alia, in the removal of his spleen and a portion of
his small intestine.
That same day, Johnson arrived at the hospital to
receive treatment for his stab wounds. While at the
hospital, Johnson told a police officer who had been
dispatched to investigate his stabbing that he had been
stabbed in the vicinity of 465 Zion Street in Hartford,
which was approximately four or five buildings north
of the apartment, by an unidentified male who had
approached him asking for money.
On September 30, 2019, two members of the Hartford
Police Department, including Detective Philip Fuschino, interviewed Johnson (first interview). During the
first interview, which was recorded, Johnson initially
maintained his narrative that an unidentified male
stabbed him in the area of 465 Zion Street. Johnson’s
account changed as the first interview progressed, with
Johnson later stating that (1) an unknown assailant had
stabbed him downstairs from the apartment (i.e., 433
Zion Street), (2) he chased the assailant upstairs into
the apartment, (3) he fought with the assailant, and (4)
he exited the apartment after hearing a gunshot. At no
point during the first interview did Johnson name the
defendant or identify the shooter.
On October 8, 2019, the defendant was arrested in
connection with Campos’ shooting. Subsequently, on
January 3, 2020, Johnson was arrested vis-à-vis Campos’
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State v. Cruz
shooting. On the day of his arrest, Johnson was interviewed for a second time by Fuschino and another
detective (second interview). During the second interview, which was also recorded, Johnson stated that (1)
he knew the defendant by the nickname ‘‘Ant,’’ (2) he
and the defendant entered the apartment on September
10, 2019, ‘‘to fuck up’’ Campos, and (3) before they
had entered the apartment, the defendant was ‘‘talking
about all the problems he had with Campos . . . .’’
Johnson never indicated during the second interview
that he saw the defendant with a gun or witnessed
the defendant shoot at Campos. Subsequently, Johnson
picked the defendant out of a photographic array prepared by the police.
In its operative long form information against the
defendant, dated April 11, 2022, the state charged the
defendant with (1) assault in the first degree in violation
of § 53a-59 (a) (5), (2) conspiracy to commit assault in
the first degree in violation of General Statutes §§ 53a-
48 and 53a-59 (a) (5), (3) criminal possession of a firearm in violation of General Statutes (Rev. to 2019) § 53a-
217, (4) criminal use of a firearm in violation of General
Statutes § 53a-216, and (5) carrying a pistol without a
permit in violation of General Statutes (Rev. to 2019)
§ 29-35 (a). In its operative information against Johnson,
dated April 11, 2022, the state charged Johnson with
conspiracy to commit assault in the first degree in violation of §§ 53a-48 and 53a-59 (a) (5).1
1
In prior informations read to the jury during the first day of trial on
April 7, 2022, the state also charged the defendant and Johnson each with
conspiracy to commit assault in the first degree in violation of §§ 53a-48
and 53a-59 (a) (4). On April 11, 2022, the trial court, Gold, J., determined
that these conspiracy charges were precluded by Wharton’s rule, which
‘‘provides that [a]n agreement by two persons to commit a particular crime
cannot be prosecuted as a conspiracy when the crime is of such a nature
as to necessarily require the participation of two persons for its commission.’’
(Emphasis omitted; internal quotation marks omitted.) State v. Jones, 35
Conn. App. 839, 849,
647 A.2d 43 (1994). Thereafter, the state filed its operative informations, which omitted these conspiracy charges.
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State v. Cruz
On March 1, 2022, pursuant to Practice Book § 41-
19,2 the state filed a motion for joinder of the defendant’s
case with Johnson’s case for trial. The state asserted
in relevant part that (1) the defendant and Johnson were
‘‘charged with conspiring to assault the same victim,
for the same motive, at the same time and place,’’ (2)
‘‘[a]ll evidence against one defendant, to include witness testimony, would be used in an identical manner
against the other,’’ and (3) ‘‘the proffered defenses
raised by [the defendant’s trial counsel (defense counsel) and Johnson’s trial counsel (Johnson’s counsel)]
are not in conflict, as [the defendant and Johnson] each
alleged to have not been present for the shooting, and
to have no idea as to the identity of the shooter.’’ On
March 3, 2022, the trial court, Gold, J., held a hearing
on the motion for joinder. The court summarized that
the ‘‘motion sets forth the fact that the evidence is the
same, in many respects, as to both [the defendant and
Johnson]. Both [the defendant and Johnson] have been
charged in connection with the same incident. The state
represents that the defenses that will be raised by . . .
Johnson and [the defendant] are not, in any way, antagonistic. Nor will they require the jury to reject one in
order to find the other.’’ Defense counsel and Johnson’s
counsel did not object to the motion. The court further
inquired whether there was any concern about the possibility that the defendant’s and Johnson’s respective
defenses would be mutually antagonistic. Defense
counsel and Johnson’s counsel responded that they did
not discern any risk of presenting antagonistic defenses.
The court, without objection, granted the motion for
joinder.3
2
Practice Book § 41-19 provides: ‘‘The 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.’’
3
On March 22, 2022, prior to jury selection, the court summarized the
hearing on the motion for joinder, stating in relevant part that it had (1)
granted the motion without objection and (2) been ‘‘assured by [defense
counsel and Johnson’s counsel] that they saw no potential for [obstacles
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State v. Cruz
On March 24, 2022, the court held a hearing to address
outstanding pretrial motions. The state requested that
the court address any preliminary objections to exhibits
set forth in a proposed exhibit list that the state had
circulated to the court and to opposing counsel. In
response, defense counsel stated: ‘‘I can make it easy
for you. I don’t have objections to anything.’’ The court
then inquired whether the state intended to introduce
‘‘Johnson’s statement . . . .’’ The state represented
that it planned to offer recordings of the first and second
interviews as consciousness of guilt evidence, not for
the truth of the matter asserted, against Johnson only.
The state further stated that a limiting instruction preceding the playbacks of the first and second interviews
‘‘would be appropriate just because of any potential
Crawford4 issues as they relate to [the defendant].’’
(Footnote added.) With regard to the second interview,
the state represented that Johnson ‘‘maintain[ed] that
[the defendant] did not have a weapon and was not
the shooter and that [the shooter] was a third party
unknown to both of them.’’ In light of that representation, defense counsel did not object to the admission
of the second interview as proffered by the state. With
the consent of defense counsel and Johnson’s counsel,
the court indicated that it would review the first and
second interviews in advance of trial.
The joined cases were tried to a jury on April 7, 8
and 11, 2022. Prior to the start of evidence on April 7,
to joinder] occurring, anything in the nature of inconsistent defenses.’’ Additionally, at the outset of the first day of trial on April 7, 2022, the court
iterated that the respective cases against the defendant and Johnson had
been joined without objection.
4
‘‘In Crawford v. Washington, 541 U.S. 36,
124 S. Ct. 1354,
158 L. Ed. 2d
177 (2004), the United States Supreme Court held that testimonial hearsay
is admissible against a criminal defendant at trial only if the defendant had
a prior opportunity for cross-examination and the witness is unavailable to
testify at trial.’’ State v. Armadore, 186 Conn. App. 140, 148,
198 A.3d 586
(2018), aff’d, 338 Conn. 407,
258 A.3d 601 (2021).
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State v. Cruz
2022, and outside of the jury’s presence, the following
colloquy occurred between the court and defense counsel regarding the second interview:
‘‘The Court: . . . Johnson in [the second interview]
could be seen . . . to some degree [to] implicate [the
defendant] in the crimes by putting [the defendant] at
the scene of the crime at the time of the crime. I did
not hear anything specific that . . . Johnson said that
[the defendant] was involved in the shooting or that he
possessed the handgun. I think, in fact, [Johnson] said
he did not see [the defendant] with a handgun. But
[Johnson] does say [the defendant] was . . . at the
scene of the crime at the time of the shooting. So, to
the extent that will assist the state, one might see that
as somewhat of a Bruton5 problem that could warrant
a severance. But it’s my understanding that you have
no objection to that statement being played, and you
continue to have no objection to the joinder of these
cases. Am I correct in my understanding?
‘‘[Defense Counsel]: One hundred percent correct.
‘‘The Court: One hundred percent correct. All right.
So, you’re not seeking those statements made by Johnson that put [the defendant] at the scene to be redacted.
Correct?
5
‘‘[I]n [Bruton v. United States, 391 U.S. 123,
88 S. Ct. 1620,
20 L. Ed. 2d 476
(1968)], the United States Supreme Court held that a defendant is deprived
of his rights under the confrontation clause [of the sixth amendment to the
United States constitution] when his codefendant’s incriminating confession
is introduced at their joint trial, even if the jury is instructed to consider
that confession only against the codefendant. The Bruton court held that
the admission of the codefendant’s statements added substantial, perhaps
even critical weight to the [g]overnment’s case [against the defendant] in a
form not subject to cross-examining, since [the codefendant] did not take
the stand, and therefore, [the defendant] had been denied his rights of
confrontation. . . . In Bruton . . . the court emphasized that it was dealing with a case in which the hearsay statement inculpating [the defendant]
was clearly inadmissible against him under traditional rules of evidence.’’
(Citation omitted; internal quotation marks omitted.) State v. Robertson,
254 Conn. 739, 765,
760 A.2d 82 (2000).
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State v. Cruz
‘‘[Defense Counsel]: No, sir.
‘‘The Court: And you are not seeking, because of
those statements, to have the matter severed?
‘‘[Defense Counsel]: That’s correct.’’ (Footnote added.)
On April 8, 2022, outside of the jury’s presence, the
state informed the court that it intended to offer the
first interview as consciousness of guilt evidence, but
it did not plan to offer the second interview. Later that
day, the state called Fuschino as a witness. During
Fuschino’s direct examination, the court, without objection, admitted the first interview in full, which was
played for the jury. The state did not question Fuschino
regarding the second interview or offer the second interview.
On cross-examination, defense counsel questioned
Fuschino about the police investigation into Campos’
shooting. During cross-examination, the following colloquy occurred between defense counsel and Fuschino:
‘‘[Defense Counsel]: Okay. So, at the end of the day,
you have . . . Campos telling you that [the defendant]
is responsible for shooting him, right?6
‘‘[Fuschino]: Correct.
‘‘[Defense Counsel]: That there is no other independent evidence whatsoever that would support that other
than [Campos’] worth?
‘‘[Fuschino]: Well, during the second interview of
. . . Johnson, he identified [the defendant].’’ (Footnote
added.)
Defense counsel immediately moved to strike Fuschino’s answer. The state objected, arguing that Fuschino’s answer was responsive to defense counsel’s question. After excusing the jury, the court stated that
6
On September 23, 2019, Campos provided a statement to Fuschino identifying the defendant as the shooter.
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State v. Cruz
defense counsel had asked an ‘‘open-ended question’’
regarding evidence that the police had gathered connecting the defendant to Campos’ shooting, to which
Fuschino had provided a responsive answer. The court
then expressed concern about Fuschino’s reference to
the second interview, of which the jury previously had
been unaware, and indicated that additional action was
required to address the issue. The court reserved to the
next trial date its ruling on the motion to strike and its
consideration of how to rectify the issue caused by
Fuschino’s testimony.
On April 11, 2022, outside of the jury’s presence, the
court denied the motion to strike Fuschino’s testimony,
determining that Fuschino ‘‘did respond appropriately
to the question that had been posed by [defense counsel].’’ Nevertheless, the court determined that it was
‘‘incumbent upon [the court] to find some way to protect
the rights of [the defendant and Johnson] on one hand,
[and] the state’s on the other by limiting the extent to
which there can be follow up to that.’’ The court then
delineated, for the record, an off-the-record agreement
reached with counsel (agreement), pursuant to which
(1) Fuschino would resume the witness stand, (2) the
court would repeat the last two questions that defense
counsel had posed to Fuschino and Fuschino’s attendant answers, (3) the court would explain to the jury
that (a) Johnson had participated in a second interview
with the police on the day of his arrest, which interview
was conducted by Fuschino, along with another detective, largely in the same fashion as the first interview,
and (b) the second interview would not be played for
the jury, but counsel would be permitted to ask a few
narrow questions regarding the second interview, (4)
defense counsel would ask two leading questions to
Fuschino about the second interview, reflecting that
Johnson never indicated that he saw the defendant
either (a) with a gun or (b) shoot Campos, and (5) the
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State v. Cruz
state would be afforded an opportunity for redirect
examination, which, insofar as it delved into the second
interview, would be limited to asking leading questions
indicating that (a) Johnson and the defendant entered
the apartment to ‘‘ ‘fuck . . . Campos up,’ ’’ (b) Johnson referred to the defendant by the nickname ‘‘Ant,’’
(c) Johnson selected the defendant’s photograph out
of an array of photographs prepared by the police, and
(d) the defendant ‘‘had issues’’ with Campos. The court
noted that it was ‘‘trying to find a way to almost thread
a needle allowing enough evidence in so as to offset
any suggestion that there was no other evidence against
[the defendant] but, at the same time, not allowing that
single [question] to throw open the door completely to
allow, in essence, the whole second interview . . . to
come in.’’ Defense counsel affirmed that he did not
object to this procedure.
Before recalling the jury, the court reviewed proposed jury instructions with counsel. In discussing a
proposed instruction regarding consciousness of guilt
with respect to the first interview, the court inquired
whether the instruction should also apply to the evidence concerning the second interview that would be
adduced pursuant to the agreement. The state
responded that it was seeking to use evidence vis-à-vis
the second interview as substantive evidence against
the defendant because it was defense counsel who had
brought the second interview to the jury’s attention.
The court responded: ‘‘Yeah. I mean, I guess that’s going
to be argued by all sides substantively.’’ Defense counsel did not object or otherwise interject during this
discussion.
After the jury had returned to the courtroom, in accordance with the agreement, the court provided the jury
with additional information concerning the second
interview. Thereafter, Fuschino resumed the witness
stand. On cross-examination, Fuschino testified that,
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State v. Cruz
during the second interview, Johnson never indicated
that he saw the defendant either (1) with a gun or (2)
fire a weapon at Campos. On redirect examination,
Fuschino testified that, during the second interview,
Johnson stated that (1) he knew the defendant by the
nickname ‘‘Ant,’’ (2) he and the defendant entered the
apartment ‘‘to fuck up . . . Campos,’’ and (3) before
entering the apartment, the defendant ‘‘was talking
about all the problems he had with Campos . . . .’’
Fuschino further testified that Johnson later picked out
the defendant from a photographic array.
During its closing argument and rebuttal, the state
relied on the second interview as substantive evidence
incriminating the defendant. Thereafter, in charging the
jury, the court provided a consciousness of guilt instruction as to the first interview and instructed the jury that
it could not consider that evidence with respect to the
charges against the defendant. The court’s jury instructions did not expressly refer to the second interview.
On April 12, 2022, the jury found the defendant guilty
of the charges of assault in the first degree, criminal
possession of a firearm, criminal use of a firearm, and
carrying a pistol without a permit; however, the jury
acquitted him of the conspiracy to commit assault in
the first degree charge. As to Johnson, the jury found
him not guilty of the conspiracy to commit assault in
the first degree charge. On July 12, 2022, after vacating
the defendant’s conviction of criminal use of a firearm,7
7
The court vacated the criminal use of a firearm conviction on the basis
of its determination that, pursuant to § 53a-216 and State v. Hardy, 85 Conn.
App. 708,
858 A.2d 845 (2004), aff’d,
278 Conn. 113,
896 A.2d 755 (2006), the
defendant could not be convicted ‘‘on both [the criminal use of a firearm]
charge and the underlying charge, which, in this case, would be the assault
in the first degree [charge].’’ See General Statutes § 53a-216 (a) (‘‘[n]o person
shall be convicted of criminal use of a firearm . . . and the underlying
felony upon the same transaction but such person may be charged and
prosecuted for both such offenses upon the same information’’); State v.
Hardy, supra, 712–13 (reversing judgment of conviction of criminal use of
firearm when defendant was convicted of both criminal use of firearm and
underlying felony of robbery in first degree).
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State v. Cruz
the court sentenced the defendant to a total effective
sentence of thirteen years of incarceration followed by
seven years of special parole. This appeal followed.
On the basis of the defendant’s appellate briefs, we
decipher the crux of the defendant’s claim to be that
the joinder of his case with Johnson’s case was
improper and his constitutional rights to confrontation
and to a fair trial were violated as a result of the state’s
purported misrepresentations, in moving for joinder,
that the evidence in the respective cases against the
defendant and Johnson was cross admissible. The
defendant asserts that, following the grant of the motion
for joinder, the state improperly relied on the second
interview, which was inadmissible as to the defendant,
to support its case against the defendant. The defendant
maintains that, in line with its representations in support of the motion for joinder, the state should have
taken action to prevent the second interview from being
admitted at trial, or to minimize the effect of the admission of any portion thereof, by, for instance, agreeing
with defense counsel’s motion to strike Fuschino’s testimony and requesting a curative instruction.8
Conceding that his claim is unpreserved, the defendant seeks review of his unpreserved claim pursuant
to State v. Golding, 213 Conn. 233, 239–40,
567 A.2d
823 (1989), as modified by In re Yasiel R.,
317 Conn.
8
The state frames the defendant’s appeal as raising a claim of prosecutorial
impropriety. See State v. Cusson, 210 Conn. App. 130, 164,
269 A.3d 828 (‘‘It
is well established that [i]n analyzing claims of prosecutorial [impropriety],
we engage in a two step analytical process. The two steps are separate and
distinct: (1) whether [impropriety] occurred in the first instance; and (2)
whether that [impropriety] deprived a defendant of his due process right
to a fair trial.’’ (Internal quotation marks omitted.)), cert. denied, 343 Conn.
913,
274 A.3d 114 (2022). The defendant refutes this construction of his
claim and clarified during oral argument before this court that he was not
specifically raising such a claim. On the basis of this acknowledgment and
our interpretation of the defendant’s claim, we conclude that the prosecutorial impropriety framework is inapplicable here.
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State v. Cruz
773, 781, 120 A.3d 1188 (2015). ‘‘Pursuant to Golding,
a [defendant] can prevail on a claim of constitutional
error not preserved at trial only 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 violation of a fundamental
right; (3) the alleged constitutional violation . . .
exists and . . . deprived the [defendant] of a fair trial;
and (4) if subject to harmless error analysis, the [state]
has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt.
. . . The first two steps in the Golding analysis address
the reviewability of the claim, [whereas] the last two
steps involve the merits of the claim.’’ (Emphasis in
original; internal quotation marks omitted.) In re Gabriella M., 221 Conn. App. 827, 836,
303 A.3d 319, cert.
denied, 348 Conn. 925,
304 A.3d 443 (2023). We conclude
that the defendant’s unpreserved claim is reviewable,
as (1) the record is adequate for review and (2) the
claim is of constitutional magnitude alleging violations
of fundamental rights. We further conclude, however,
that the defendant’s claim fails on the merits under
the third prong of Golding because he has failed to
demonstrate that the claimed violations of his constitutional rights occurred.
We begin by setting forth the following principles
regarding the joinder of cases pursuant to Practice Book
§ 41-19, which permits a judicial authority to ‘‘order
that two or more informations, whether against the
same defendant or different defendants, be tried
together.’’ ‘‘[T]he argument for joinder is most persuasive when the offenses are based [on] the same act or
criminal transaction, since it seems unduly inefficient to
require the state to resolve the same issues at numerous
trials. . . . In contrast, when the cases are not of the
same character, the argument for joinder is far less
compelling because the state must prove each offense
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State v. Cruz
with separate evidence and witnesses [thus] eliminat[-
ing] any real savings in time or efficiency which might
otherwise be provided by a single trial. . . . Further,
[a] joint trial expedites the administration of justice,
reduces the congestion of trial dockets, conserves judicial time, lessens the burden [on] citizens who must
sacrifice both time and money to serve [on] juries, and
avoids the necessity of recalling witnesses who would
otherwise be called to testify only once. . . .
‘‘Although joint trials may serve to conserve judicial
resources, we note that trials may not be joined if a
substantial injustice is likely to result unless a separate
trial be accorded. . . . A separate trial will be ordered
[when] the defenses of the accused are antagonistic,
or evidence will be introduced against one which will
not be admissible against others, and it clearly appears
that a joint trial will probably be prejudicial to the rights
of one or more of the accused. . . . We also note that
[t]he phrase prejudicial to the rights of the [accused]
means something more than that a joint trial will probably be less advantageous to the accused than separate
trials.’’ (Citations omitted; internal quotation marks
omitted.) State v. Tyus, 342 Conn. 784, 796–97,
272 A.3d
132 (2022). ‘‘[W]e will reverse a trial court’s ruling on
joinder only [when] the trial court commits an abuse
of discretion that results in manifest prejudice to one
or more of the defendants. . . . [I]n deciding whether
to [join informations] for trial, the trial court enjoys
broad discretion, which, in the absence of manifest
abuse, an appellate court may not disturb.’’ (Citation
omitted; internal quotation marks omitted.) Id., 797–98.
We conclude that the constitutional violations
claimed by the defendant are not supported by the
record. Contrary to the defendant’s position, the state
did not misrepresent its intentions vis-à-vis the second
interview in the motion for joinder. The second interview was not referenced expressly either in the motion
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State v. Cruz
for joinder or during the March 3, 2022 hearing prior
to the court’s grant of the motion. During the pretrial
hearing on March 24, 2022, the state notified the court
and opposing counsel that it planned to offer the first
and second interviews at trial; however, per the state’s
proffer, the first and second interviews would be
offered as consciousness of guilt evidence against Johnson only. On the second day of trial, the state represented to the court and opposing counsel that it did
not intend to offer the second interview, and, in accord
with that representation, the state neither questioned
Fuschino on direct examination about the second interview nor offered the second interview.
The record further reflects that, while questioning
Fuschino on cross-examination regarding the police
investigation into Campos’ shooting, defense counsel
elicited testimony from Fuschino that, for the first time,
alerted the jury to the existence of the second interview
and Johnson’s identification of the defendant during
that interview. After the state objected to defense counsel’s motion to strike Fuschino’s testimony on the
ground that Fuschino’s answer was responsive to the
question asked, the state adduced additional portions
of the second interview through Fuschino’s testimony,
as permitted pursuant to the agreement, and substantively relied on the second interview in arguing its case
against the defendant.
As the record demonstrates, at no point prior to the
cross-examination of Fuschino by defense counsel did
the state use, or suggest an intention to use, the second
interview as evidence, substantively or otherwise,
against the defendant. It was only after Fuschino, in a
truthful, responsive answer9 to defense counsel’s question on cross-examination,10 referenced the second
9
It is undisputed that Fuschino answered defense counsel’s question truthfully.
10
Before setting forth the terms of the agreement on the record on April
11, 2022, the court stated that it ‘‘want[ed] to make it clear that the court
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State v. Cruz
interview that the state sought to rely on the second
interview as substantive evidence in prosecuting the
defendant’s case. It cannot reasonably be inferred from
the state’s reliance on the second interview following
defense counsel’s cross-examination of Fuschino that
it made misrepresentations vis-à-vis the motion for joinder. Instead, we conclude that defense counsel’s line
of questioning on cross-examination opened the door
for the state to utilize the second interview against the
defendant. See State v. Mark T., 339 Conn. 225, 236,
260 A.3d 402 (2021) (‘‘Generally, a party who delves
into a particular subject during the examination of a
witness cannot object if the opposing party later questions the witness on the same subject. . . . The party
who initiates discussion on the issue is said to have
opened the door to rebuttal by the opposing party.’’
(Internal quotation marks omitted.)).
Our conclusion that the state did not make misrepresentations vis-à-vis the motion for joinder is bolstered
by two additional considerations. First, by failing to
brief a claim of error with regard to the denial of the
motion to strike Fuschino’s testimony; see footnote 10
of this opinion; the defendant has abandoned any claim
challenging the court’s decision to allow Fuschino’s
initial testimony regarding the second interview to
remain in evidence. See White v. Latimer Point Condominium Assn., Inc., 191 Conn. App. 767, 777 n.6,
216
A.3d 830 (2019) (appellant’s failure to brief claim results
in abandonment of claim). Second, after having denied
the motion to strike, the court set forth the terms of
the agreement, which authorized the state, through
[was] in no way criticizing . . . Fuschino for responding as he did. As [the
court] said, [Fuschino’s answer] was responsive to the question that [defense
counsel] had posed.’’ The defendant does not claim on appeal that the court
improperly determined that Fuschino’s testimony was responsive. Indeed,
as the defendant’s appellate counsel conceded on appeal, the defendant has
not briefed a claim of error asserting that the court’s denial of the motion
to strike was improper.
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State v. Cruz
Fuschino’s testimony on redirect examination, to introduce limited portions of the second interview. Defense
counsel expressly affirmed that he agreed to the procedure detailed in the agreement, and defense counsel
did not raise any objection to the agreement on the
record. See State v. Andres C., 208 Conn. App. 825, 854,
266 A.3d 888 (2021) (‘‘When a party consents to or
expresses satisfaction with an issue at trial, claims arising from that issue are deemed waived and may not be
reviewed on appeal. . . . [W]e do not look with favor
on parties requesting, or agreeing to, an instruction or
a procedure to be followed, and later claiming that that
act was improper.’’ (Internal quotation marks omitted.)), aff’d, 349 Conn. 300,
315 A.3d 1014 (2024). Under
these circumstances, the defendant has not asserted a
viable claim that his constitutional rights were violated
stemming from the state’s representations in support
of the motion for joinder.
In sum, we conclude that the defendant has failed to
demonstrate that violations of his constitutional rights
occurred as required under the third prong of Golding.11
The judgment is affirmed.
In this opinion the other judges concurred.
11
In the alternative, the defendant requests reversal of the judgment of
conviction pursuant to the plain error doctrine. ‘‘The plain error doctrine
is based on Practice Book § 60-5, which provides in relevant part: The court
shall not be bound to consider a claim unless it was distinctly raised at the
trial or arose subsequent to the trial. The court may in the interests of justice
notice plain error not brought to the attention of the trial court. . . . The
plain error doctrine is reserved for truly extraordinary situations [in which]
the existence of the error is so obvious that it affects the fairness and
integrity of and public confidence in the judicial proceedings. . . . A party
cannot prevail under [the] plain error [doctrine] unless [he] has demonstrated that the failure to grant relief will result in manifest injustice.’’
(Internal quotation marks omitted.) Lafferty v. Jones, 225 Conn. App. 552,
572 n.26, 316 A.3d 742 (2024). For the same reasons that we reject his claim
under the third prong of Golding, we conclude that the defendant has not
‘‘met the stringent standard for relief pursuant to the plain error doctrine.’’
(Internal quotation marks omitted.) Id.