dissenting. The certified issue in this appeal is whether the trial court abused its discretion in allowing the joinder of the crimes of risk of injury to a child and manslaughter in the first degree with regard to that same child.1 But the issue in this case is, however, more appropriately restated as follows: whether the trial court abused its discretion by joining for trial purposes before a jury, for the purported purpose of “foster[ing] economy and expedition of judicial administration,”2 two counts accusing the defendant, Rafael Delgado, of brutal, shocking and outrageous conduct — in the first count accusing the defendant of complicity with respect to the abuse of the child and in the second count accusing him of causing the death of that child. We have long held that judicial economy, although important, can never trump the doing of justice. See State v. Oliver, 161 Conn. 348, 360-62, 288 A.2d 81 (1971). Because I consider the joinder of the counts in this case to have deprived the defendant of a fair trial, I would affirm the judgment of the Appellate Court.
Although the joinder of charges for trial is permitted by statute and by the rules of practice; General Statutes § 54-57; Practice Book § 829; and serves the purpose of preserving precious judicial resources, we have recognized that in some cases, joinder can be highly prejudicial. State v. Boscarino, 204 Conn. 714, 722, 529 A.2d *5391260 (1987). Accordingly, this court adopted in Boscarino three factors to be considered in determining whether there was an abuse of judicial discretion in ordering joinder: (1) whether the charges were not discrete and easily distinguishable; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) whether the trial was lengthy or complex. Id., 722-23. If any one or more of these factors are present, an appellate court is then required to determine “whether the trial court’s jury instructions cured any prejudice that might have occurred.” (Internal quotation marks omitted.) State v. Cassidy, 236 Conn. 112, 133, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996). In my view, all three Boscarino factors are shockingly present in this case and the jury instructions did not cleanse the taint of the improper joinder of the charges for trial. See State v. Horne, 215 Conn. 538, 551-53, 577 A.2d 694 (1990).
First, the crimes of risk of injury to a child and manslaughter in the first degree in the present case did not involve discrete, easily distinguishable factual scenarios. The “alleged crimes are so similar in time, place and circumstance, there is a danger that the jury may [have used] evidence of one crime to convict the defendant of the other [crime].” State v. Crosby, 36 Conn. App. 805, 809, 654 A.2d 371, cert. denied, 232 Conn. 921, 656 A.2d 669 (1995). Indeed, the state’s attorney argued before the trial court that the counts involved the same time period, the same victim and the same location.3 The *540Appellate Court concluded that “both counts involve allegations of physical abuse inflicted on the victim over a continuous period of time.” State v. Delgado, 42 Conn. App. 382, 395, 681 A.2d 327 (1996). The risk of injury to a child count was predicated on the “deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare . . . .” (Internal quotation marks omitted.) Id., 392. The resulting injuries of a broken leg, severe bruises, cuts, and bumps were observed on several occasions between November 1 and December 14, 1992, and on the night of December 14,1992. The manslaughter count was predicated on the child receiving a fatal skull fracture on December 14, 1992.
In this case, unlike many other joinder cases involving separate or multiple victims in separate incidents that *541passed muster under the Boscarino factors, there was only one victim.4 See State v. Chance, 236 Conn. 31, 671 A.2d 323 (1996) (many arson victims, one assault victim); State v. Herring, 210 Conn. 78, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989) (two murder victims); State v. Stevenson, 43 Conn. App. 680, 686 A.2d 500 (1996), cert. denied, 240 Conn. 920, 692 A.2d 817 (1997) (four sexual assault victims); State v. Snead, 41 Conn. App. 584, 677 A.2d 446 (1996) (one assault victim, two threatened police officers); State v. Crosby, supra, 36 Conn. App. 805 (one murder victim, one sexual assault victim, one assault victim). The defendant in the present case was also alleged to have committed each of the offenses in the same location — his apartment — in the presence of the child’s mother.
Furthermore, in many of the joinder cases decided since Boscarino, our appellate courts have concluded that the counts involved discrete and distinguishable factual scenarios partly because, unlike this case, the state had presented its evidence in an orderly fashion, and kept the evidence for the counts separate at trial. See State v. Jennings, 216 Conn. 647, 659, 583 A.2d 915 (1990) (state presented different eyewitnesses to testify to each incident, and treated two cases separately during examination of witnesses and during closing argument); State v. Frazier, 39 Conn. App. 369, 375, 665 *542A.2d 142 (1995) (“state . . . presented a chronologically ordered case in which the jury could distinguish one factual scenario from another”); State v. Jones, 37 Conn. App. 437, 447, 656 A.2d 696, cert. denied, 233 Conn. 915, 659 A.2d 186 (1995) (“severance was not required . . . because the state presented its evidence in a clear, comprehensive and straightforward manner” [citation omitted]); State v. Crosby, supra, 36 Conn. App. 810 (evidence was organized chronologically and presented logically, not commingled); State v. King, 35 Conn. App. 781, 793, 647 A.2d 25 (1994), aff’d, 235 Conn. 402, 665 A.2d 897 (1995) (“orderly manner in which the state presented the evidence . . . had the effect of clearly distinguishing the evidence . . . applicable to each count”). In State v. Chance, supra, 236 Conn. 43, this court pointed out that the discreteness of the joined counts was enhanced because of “the trial court’s order requiring that evidence [of one count] be presented first, followed by evidence [on the second count].”
In the present case, the state did not keep separate the evidence relating to the two counts of risk of injury to a child and manslaughter.5 Indeed, the state’s medical *543witnesses testified to issues arising under both counts. Such commingling of medical testimony concerning the two critical issues in the defendant’s case — the precise cause of the child’s death and whether the defendant acquiesced in the abuse of the child — presented a “legitimate concern that the jury [could not distinguish] the facts or charges stemming from these two events.”6 *544State v. Atkinson, 235 Conn. 748, 764, 670 A.2d 276 (1996).
*545The prejudicial impact is further underscored in this case because there was no direct evidence to implicate the defendant in either the risk of injury to a child count or the manslaughter count. Since no eyewitnesses testified,7 the state’s proof consisted of the testimony of medical personnel who observed the injuries before and on December 14, 1992, and the fatal skull fracture that occurred on December 14,1992. Therefore, in order to find the defendant guilty on both counts, the juiy was required to draw inferences based solely on the fact that he resided in the same apartment as that of the child victim and that he was present when the child received the injury to her skull that caused her death.8
Second, the two counts alleged “brutal or shocking conduct” on the defendant’s part. The defendant’s claim that the joinder prejudiced him is based on his legitimate fear that the jury, under the circumstances of this case, might have used “evidence of one to find guilt in the other.” State v. Stevenson, supra, 43 Conn. App. 688. He does not claim, despite the majority’s reliance on the Appellate Court’s one sentence reference, that the joinder prejudiced him only as to the manslaughter count. See State v. Delgado, supra, 42 Conn. App. 393. Rather, he claims, as argued in his brief, that “[b]y consolidating the two cases, the trial court required the jury to undertake the difficult if not impossible task of listening to two somewhat similar cases against the defendant, and yet ignore . . . the inflammatory nature of the allegations of abuse and the alleged cause of the victim’s death.”9 This court must thus consider *546the nature of both counts to determine if one or both involved such “brutal or shocking conduct”; State v. Boscarino, supra, 204 Conn. 722; that it “inevitably infected the jury’s fair consideration of the other [count].” State v. Horne, supra, 215 Conn. 549.
Under anyone’s sense of morality, the allegations forming the basis of the risk of injury count — that the defendant acquiesced in the beating or cruel treatment of a sixteen month old child, afflicted with Down’s Syndrome, over a period of time — and the allegations forming the basis of the manslaughter count — that the defendant caused that child to suffer a fractured skull that resulted in the child’s death — concern brutal and shocking conduct.10 One factor leading to our conclusion in Home that the counts involved brutal and shocking conduct was that the “victim was a complete *547innocent who was forced at gunpoint behind the store counter and made to lie face down on the floor while the assailant took cash from the store’s cash drawer and took a bank card from her purse. Then . . . the assailant stripped off her clothes and sexually assaulted her.” (Emphasis added.) Id. I cannot think of a more innocent victim than a sixteen month old child, afflicted with a disability; she too was made to suffer terribly at the hands of her assailant. As we stated in Home, “[b]y any barometer of human behavior, [the defendant’s alleged conduct in regard to both counts] constitutes ‘shocking conduct’ that inevitably infected the jury’s fair consideration of [one of the counts].” Id.
“Joinder gave the state the opportunity 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 tiled separately.” State v. Boscarino, supra, 204 Conn. 723. At trial in this case, the state presented detailed testimony of more than six medical professionals concerning the injuries sustained by the child, including written and videotaped exhibits that demonstrated the extent of her injuries. At least one witness testified that the child’s fatal injury was caused by a tremendous amount of force and likened it to a fall from fifteen feet. For the majority to conclude that this medical testimony “is not likely to incite the passions of the jury” is simply incredible, when the state sought to have the jury infer from that evidence that the defendant “failed to take action to protect” the child from physical abuse by another over a period of time, and that the defendant brutally caused the death of the child.
Third, the evidence the state presented in regard to the risk of injury to a child and manslaughter counts *548was complex. The state never presented any direct evidence to support either count. Because there were no eyewitnesses, the state relied primarily on the observations and theories of medical professionals and on the fact that the child resided in the same apartment with the defendant. The medical professionals who testified at the defendant’s trial — pediatric residents, pediatric neurologists, medical examiners and diagnostic radiologists — gave highly technical testimony supporting their respective theories of the cause of the child’s injuries. Ordinarily, such extensive medical testimony aids the jury in filling the gaps that may exist from the lay witness testimony. In this case, however, where there was no direct evidence, the jury was left to draw inferences from the inferences drawn by the medical professionals.
The majority’s conclusion that the sparse reference in the jury charge that “[e]ach count is a separate crime and you must consider them separately in your deliberations” would cure an improper joinder is not only unrealistic, but is contrary to our precedent.11 In State v. Horne, supra, 215 Conn. 551-53, this court held that a substantially more extensive instruction could not protect the defendant by asking “the jury somehow to ignore the obviously inflammatory nature and impact of [the crimes].” Id., 552. This court, in State v. Tinsley, 180 Conn. 167, 170, 429 A.2d 848 (1980), recognized that in certain instances when the evidence is inflammatory it would be fiction to believe that a juror could put *549aside evidence he or she heard that is relevant only on one count when considering the guilt or innocence of a defendant on another count. Indeed, in Boscarino, this court stated “that even the trial court’s apt and thorough admonitions could not mitigate the potential for prejudice wrought by the joinder of the cases against the defendant.” State v. Boscarino, supra, 204 Conn. 725. “ ‘It is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge’s instructions to disregard such information. Nevertheless, as was recognized in Jackson v. Denno [378 U.S. 368, 388-91, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964)], there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.’ Bruton v. United States, 391 U.S. 123, 135, 88 S. Ct. 1627, 20 L. Ed. 2d 476 (1968). ‘The government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds.’ Delli Paoli v. United States, 352 U.S. 232, 248, 77 S. Ct. 294, 1 L. Ed. 2d 278 (1957) [Frankfurter, J., dissenting], cited with approval in Bruton v. United States, supra, 129.” State v. Tinsley, supra, 170-71.12
*550In this case, the majority also suggests that the defendant waived his rights because he neither, through a request to charge, urged the court to give more extensive instructions on keeping the counts separate, nor took an exception to the charge on this ground. The majority cites no authority for this unusual claim and it would greatly surprise me if any authority can be found in this or any other jurisdiction to support such a claim. Furthermore, this claim by the maj ority misconstrues the issue. The error of the trial court is not the failure to give a sufficient instruction to the jury but, rather, the improper joinder of the counts. The improper joinder for trial purposes is not made proper by jury instructions. Rather, it is jury instructions that may, in some cases, make the error harmless. The burden of demonstrating that the error is harmless, if it is possible, should not be placed on the shoulders of the defendant. Nonetheless, the joinder in this case simply could not be cured by a jury instruction because it was too prejudicial. See State v. Boscarino, supra, 204 Conn. 725.
Finally, the state’s suggestion that the evidence supporting one count may have been admitted at a separate trial on the other count totally ignores the evidentiary rule that to be admitted under one of the prior misconduct exceptions, the evidence must meet two requirements: “(1) it must be relevant and material to the exception claimed; and (2) its probative value must outweigh its prejudicial effect.” State v. Santiago, 224 Conn. 325, 338, 618 A.2d 32 (1992). Even if the prior misconduct evidence was relevant or material, the conclusion that the evidence presented in this case is “brutal or shocking” clearly establishes that any probative value is outweighed by its prejudicial effect. Furthermore, it is inconceivable that, under any circumstances, evidence underlying either count would be admissible *551in a separate trial on the other count, when the misconduct is based upon purely inferential evidence as it is in this case.13
What greatly concerns me is that this result oriented opinion sets a new standard for consolidating trials and that standard can result in grave injustices. It allows the state to introduce highly prejudicial evidence that it would not be able to do otherwise. It sends a message to our trial courts that all joinders will pass muster. Indeed, much to its credit, and unlike the majority of this court, the state conceded at oral argument that this was a “close call.”14 One would never believe that from a reading of the majority opinion.
One “test of the quality of [our] civilization is its treatment of those charged with crime, particularly with offenses which arouse the passions of a community.” Irvin v. Dowd, 366 U.S. 717, 729, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961) (Frankfurter, J., concurring). If in cases such as this the rights of an accused are compromised because of the nature of the crimes with which he is charged, then the quality of our civilization is severely threatened. Unfortunately, in my view, this case fails the test enunciated by Justice Frankfurter.
Accordingly, I would affirm the judgment of the Appellate Court in this case.
The defendant was charged with three crimes, one count of risk of injury to a child in violation of General Statutes § 53-21, and two counts of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1) and (3). Of course, he could not be found guilty of both manslaughter charges. The jury found him guilty of risk of injury to a child and manslaughter in the first degree in violation of § 53a-55 (a) (1).
State v. Greene, 209 Conn. 458, 462, 551 A.2d 1231 (1988).
The majority incredibly concludes that the crimes charged were discrete and involved distinguishable factual scenarios. I obviously read a different record than the majority. Indeed, as the Appellate Court pointed out, even the state’s attorney, before the trial court, acknowledged — at the time he opposed the severance of these charges — that they did not involve distinguishable factual scenarios. The state’s attorney argued for joinder before the trial court because “we have the same victim involved in all three counts. We have the same location involved in all three counts. We have the same victim but also roughly the same time period involved in all three counts. *540While the first two counts specifically focus on December 14 of 1992, which is the date that the victim in this particular case, the state believes, suffered the head injury — the fractured skull which thereby led to her death, the risk of injury covers the time before that — November 1 to December 14. So we basically have the same time period involved. As part of that, the state intends to produce evidence of the child’s condition when seen by medical personnel in November, 1992, which goes back to the risk of injury charge.
***
“I would also note the state believes the witnesses will be the same for both in this case — the two charges. It just doesn’t make any sense when the evidence is basically the same and the risk of injury charge necessarily involves what happened on the night of December 14 including his conduct on that particular evening. ” (Emphasis altered; internal quotation marks omitted.) State v. Delgado, 42 Conn. App. 382, 394-95 n.10, 681 A.2d 327 (1996).
The state concluded its argument for joinder with the following remark: “So the evidence I submit would be the same for both charges given the same victim, same location and the same time period.” (Emphasis added.)
The state’s attorney in this case kept his promise with respect to the order in which the witnesses testified and to the commingling of the evidence pertaining to the risk of injury and manslaughter charges. See footnotes 5 and 6 of this dissent. Joinder allowed the state to expose the jury to “the evidence of one case to convict the defendant in another case even though that evidence would have been inadmissible at a separate trial.” (Internal quotation marks omitted.) State v. Atkinson, 235 Conn. 748, 763, 670 A.2d 276 (1996).
Although the majority relies on State v. Jennings, 216 Conn. 647, 583 A.2d 915 (1990), it is totally inapposite to this case. The court held in Jennings: “Although the victim was the same in each case, the factual circumstances were different. One case involved a physical attack upon the victim in a parking lot and an abduction to an empty apartment. The other case involved a less serious altercation between the defendant and the victim in the home of the victim’s niece. The wounds suffered by the victim were of differing character and severity. The victim sustained bruising and deep knife wounds in the parking lot incident while she sustained comparatively minor, superficial cuts in the incident at her niece’s home. . . . Thus, the distinctiveness of the factual scenarios made it unlikely that the jurors would confuse the two cases.” (Citation omitted.) Id., 658-59.
In its case-in-chief, the state presented the testimony of seventeen witnesses. The following list of witnesses, in the chronological order in which they were called, demonstrates that the state was unable to keep the evidence for the two counts separate at trial. The subject matter of each witness’ testimony is included in parentheses.
(1) Paula Mancini, friend of child’s mother (risk of injury)
(2) Pauline Barnes, neighbor in downstairs apartment (manslaughter)
(3) Benjamin Barnes, neighbor (manslaughter)
(4) Detective John Whalen (manslaughter)
(5) Deborah Messina, forensic lab technician (manslaughter)
(6) Detective Paul Lengyel (manslaughter)
(7) Fred Beitman, landlord (manslaughter and risk of injury)
(8) Michael Fusaro, emergency medical technician for Bridgeport Ambulance Service (manslaughter and risk of injury)
(9) John Corris, emergency medical technician for Bridgeport Ambulance Service (manslaughter and risk of injury)
(10) Detective Giselle Doszpoj (manslaughter)
(11) Malka Shah, associate medical examiner for the office of the chief medical examiner (manslaughter and risk of injury)
*543(12) Tammy Vargas, pediatric resident at St. Joseph’s Family Medical Center (risk of injury)
(13) Deborah Spaight, pediatric resident in Bridgeport Hospital emergency room (manslaughter and risk of injury)
(14) Michelle Bruno, child’s aunt (risk of injury)
(15) Kieve Berkwits, senior attending physician for the department of pediatrics at Bridgeport Hospital (manslaughter)
(16) Sheila Collins, nurse at St. Joseph’s Family Medical Center (risk of injury)
(17) Regina Featherston, nutritionist for Women, Infants and Children (WIC) program in Norwalk (risk of injury)
The majority defensively claims that “the factual scenarios underlying the two crimes were separate and distinct,” but that misunderstands the Boscarino test. The discreteness factor of the Boscarino test also requires, and importantly so, a determination of whether the relevant evidence could have been and was presented on each count separately in order to avoid the commingling of the evidence so that it was less likely that the jury would be influenced in deciding one count by the evidence that was solely admissible in the other count. The following exceipt from the state’s attorney’s direct examination of Malka Shah, associate medical examiner for the state of Connecticut who performed an autopsy on the child, is an illustrative example of that precise danger — that the evidence presented to the jury was commingled in such a manner that there was a likelihood that the evidence relevant with respect to one count may have influenced the jury on the other count.
“[Stephen J. Sedensky III, Assistant State’s Attorney]: What signs of injury did you see as a result of your examination [of the child]?
“[Shah]: She did not have any injury in her chest, abdomen or neck organs. However, she did have injuries on her head.
“Q. Where were the injuries on her head?
“A. She had a hemorrhage on the left back of her scalp or the skin of her head. She also had a fracture of the skull on the left side. She also had a hemorrhage which was present around the brain, itself ....
“Q. As a result of that examination, were you able to determine what the cause of her death was?
“A. Yes, I was.
“Q. And what did you determine was the cause of her death?
*544“A. The cause of her death was head injury.
“Q. When you say head injury, what do you mean?
“A. Head injury means it’s a fracture of the skull with subdural and subarachnoid hemorrhage. All of that caused her death.
* * *
“Q. Now, what injury did you detect to the right leg?
“A. The right leg is not as straight as the left leg. . . . It’s broken. . . . The fractured ends are dislocated, which indicates this has not been treated because if there was a treatment then they would be in a straight line.
* *
“Q. Can you tell us at a minimum how old that fracture — that broken leg is?
“A. It’s a minimum of two weeks old — the fracture is.
* * *
“Q. Doctor, showing you what has been marked as State’s Exhibit S, a videotape, did you have a chance to review that videotape?
“A. Yes, I did.
“Q. And did you have a chance to observe [the child] in that videotape?
“A. Yes, I did.
“Q. . . . [C]an you give us any information with regard to the healing leg fracture based on that — what you saw with regard to [the child’s] leg in that videotape?
“A. In the video, [the child] does not show any deformity at all on her right leg. . . . From looking at [the videotape], it looks like she does not have any bodily injuries on her.
“Q. If this injury had occurred before November 16, how long before November 16 would it have to have occurred?
“A. For the Doctor not to notice it, it would have to have occurred at least two weeks and before that — so that it had healed, the swelling ....
“Q. Now, based on your review of the videotape and those [medical] records [State’s Exhibit Q], would it be your opinion that the break to the leg took place before or after November 16, 1992?
“A. I would say after November 16, 1992. . . .
“Q. With regard to the bruises that you saw on the left side of [the child’s] face, can you just tell us where those were again?
“A. They were present — two of them were present on her jaw and three of them were present on the upper shoulder and neck area. . . .
“Q. Can you tell us what kind of mechanism or type of injury could have caused that type of bruise on the cheek?
“A. They’re small circular looking bruises. Many a time if the child has been handled roughly, with the ftnger[tips], it could be — or with the fingers, that can give you like that kind of injuries or even pinching of the face and cheek area can give you that kind of hemorrhages.”
The child’s mother did not testify at trial.
Although the defendant challenged the sufficiency of the evidence before the Appellate Court, this court did not certify that issue for review on appeal. State v. Delgado, 239 Conn. 920, 682 A.2d 1008 (1996).
I disagree with the majority that the defendant never claimed “that the manslaughter evidence unduly prejudiced his defense of the risk of ii\jury count.” Rather than resort to the defendant’s brief as to his claims, the majority culls one sentence out of the Appellate Court opinion for support of its claim. The defendant argued that he was prejudiced by the joinder *546without limitation of one count with respect to the other. He begins his argument in his brief with the following introductory paragraph: “The trial court erred in allowing the joinder of the manslaughter and the risk of injury charges; the two charges did not involve discrete, easily distinguishable factual scenarios, the manslaughter count alleged brutal or shocking conduct and the trial court’s brief instruction to keep the counts separate from one another was not sufficient to stem the prejudice caused by the joinder. That prejudice derived from the fact — as found by the Appellate Court — that the evidence did not involve discrete, easily distinguishable factual scenarios and that, given the trial court’s parlous instructions, the jury probably commingled the evidence of one case with another and was inflamed by the brutal and shocking allegations of abuse and subsequent death of an infant afflicted with Down’s Syndrome. In short, the defendant suffered substantial prejudice which made it impossible for him to receive a fair trial.” (Emphasis in original.)
The defendant argues that he was prejudiced by the joinder in the remaining pages of his brief without limitation to any one count, and he ends his discussion with the conclusion that “[b]y consolidating the two cases, the trial court required the jury to undertake the difficult if not impossible task of listening to two somewhat similar cases against the defendant, and yet ignore . . . the inflammatory nature of the allegations of abuse and the alleged cause of the victim’s death.”
The majority concedes, as it must, that “the injuries inflicted on the victim, and especially the head injuries that resulted in her death, are shocking.” Notwithstanding its concession of the presence of shocking conduct that satisfies the second Boscarino factor, the majority ignores the remaining *547analysis required by Boscarino — 1,ha1 is, whether the two sentence instruction of the trial court was sufficient to cure the improper joinder. See footnotes 11 and 12 of this dissent.
The majority states that “the trial court instructed the jury that each count was a separate offense and, therefore, that the jury was required to consider them individually.” On two occasions, the trial court issued a one sentence instruction to the impaneled jury that the counts were to be treated separately. Those instructions were as follows: “[e]ach count is a separate crime and you must consider them separately in your deliberations,” and “each and every count is a charge of a separate crime and must be proved individually and separately beyond a reasonable doubt.” The majority would lead a reader into believing that these instructions were extensive, but, as indicated, both were sparse one sentence instructions.
The majority defensively claims that it is deciding this case “on well established principles." I do not quarrel with the “well established principles” set forth in Boscarino. My problem is the result oriented application of these principles. The majority opinion, as it must, concedes that the allegations of the iqjuries inflicted upon the sixteen month old victim under both counts are shocking — one a little less than the other — but still shocking. If I am wrong in my reading of the majority opinion — that is, if the majority claims that neither count is brutal or shocking, or if only one count is brutal or shocking under the Boscarino factors — the majority should say so. Once any one of the Boscarino factors is established, then we must determine whether it is possible to cure the prejudice with jury instructions and, if so, whether the jury instructions passed muster. In my view, no instruction could cure the prejudice caused by the joinder in this case. And even if it could have, the jury instructions consisting of two sentences; see footnote *55011 of this dissent; fall far short of the mark. See State v. Horne, supra, 215 Conn. 551-53.
The state, implicitly recognizing the tenuous position of its claim that none of the Boscari.no factors were present in this case, focused much of its brief and almost all of its oral argument on the claim that the underlying evidence of one count would have been admissible in a separate trial on the other count on various theories, including prior misconduct evidence. In doing so, the state sought “guidance” from this court with respect to the admissibility of the evidence, pointing out its import,anee because of the unfortunate proliferation of child abuse cases in Connecticut. As a result of this case, the state need not be concerned about being unable to get this prejudicial evidence before the jury in other cases. By allowing the state to join the two counts of risk of injury and manslaughter, the majority has enabled the state to get through the back door what it could not get through the front door under our rules of evidence. See footnote 3 of this dissent.
See footnote 13 of this dissent.