State v. Rivera ( 2014 )

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STATE OF CONNECTICUT v. JOSE I. RIVERA
(AC 36439)
Beach, Sheldon and Borden, Js.
Argued May 22—officially released August 12, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Hauser, J.)
Annacarina Jacob, senior assistant public defender,
for the appellant (defendant).
Katherine E. Donoghue, deputy assistant state’s
attorney, with whom, on the brief, were John C. Smriga,
state’s attorney, and Joseph T. Corradino, senior assis-
tant state’s attorney, for the appellee (state).
Opinion
BORDEN, J. The defendant, Jose I. Rivera, appeals
from the judgment of conviction rendered after a jury
trial of two counts of attempt to commit murder in
violation of General Statutes §§ 53a-49 (a) (2) and 53a-
54a (a), two counts of assault in the first degree in
violation of General Statutes § 53a-59 (a) (1), and one
count of carrying a pistol without a permit in violation
of General Statutes § 29-35 (a). In this appeal, the defen-
dant claims that the trial court improperly denied his
motion for a mistrial, predicated on the state’s failure
to disclose information that could have been used to
impeach the credibility of one of the state’s witnesses,
thereby violating: (1) his fourteenth amendment due
process right to obtain impeachment evidence, as set
forth in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963); and (2) his right to confrontation
pursuant to the sixth and fourteenth amendments to
the United States constitution.1 We disagree and,
accordingly, affirm the judgment of the trial court.
The defendant was arrested and charged with two
counts of attempted murder, two counts of assault in
the first degree, one count of conspiracy to commit
assault in the first degree in violation of General Stat-
utes §§ 53a-59 (a) (1) and 53a-48, and one count of
carrying a pistol without a permit. During the course
of the jury trial on those charges, the defendant moved
for a mistrial on the ground that the state had wrongfully
withheld information that could have been used to
impeach the credibility of one of the state’s witnesses.
The court provided the defendant with the opportunity
to examine the alleged impeachment evidence, and sub-
sequently, to cross-examine the subject witness. The
defendant declined the opportunity to conduct such
cross-examination. The jury found the defendant not
guilty on the charge of conspiracy to commit assault
in the first degree and found him guilty on the remaining
charges. The court accepted the verdict and sentenced
the defendant to a total effective term of thirty-two
years incarceration and twelve years of special parole.2
This appeal followed.
The following facts, as the jury reasonably could have
found them, and procedural history are relevant to our
disposition of this case. On the evening of July 29, 2010,
the defendant arranged to meet Derrick Lopez to pur-
chase marijuana from him. Lopez drove to the arranged
spot with his friend, Hakeem Webster, where they met
the defendant and an unidentified man. The defendant
and the unidentified man entered the backseat of Lopez’
car, at which point the defendant directed Lopez to
drive around the corner. Lopez did as directed and, as
he stopped the car, the defendant pulled out a gun and
held it to Lopez’ face. As Lopez tried to grab the gun,
the defendant shot at both Lopez and Webster. The
defendant shot Lopez five times and Webster two times.
The defendant and the unidentified man fled the
crime scene.
Prior to the commencement of the jury trial, the court
granted the defendant’s motion for discovery requesting
that the state disclose any exculpatory information and
material. The state complied with the request pursuant
to Practice Book § 40-7. On March 29, 2012, during the
course of jury selection, the state amended its witness
list to include Kimberly Biehn, a detective with the
Bridgeport Police Department. On the first day of trial,
April 3, 2012, Biehn testified that she and another detec-
tive processed Lopez’ vehicle to recover potential evi-
dence and that, in the course of such processing, they
found a spent shell casing and a bag of marijuana in
the vehicle.
On April 9, 2012, in the absence of the jury, the defen-
dant informed the court that, subsequent to Biehn’s
testimony, he discovered that Biehn had been arrested
and/or suspended from the Bridgeport Police Depart-
ment due to ‘‘conduct . . . involving an insurance
fraud and perhaps conduct unbecoming of an officer
. . . .’’ The defendant further stated, ‘‘[c]ertainly, this
was information that needed to be explored, perhaps
in her cross-examination. It would have an impact on
her credibility or perhaps her testimony here. Because
of the late disclosure of Detective Biehn, we have not
been able to explore information that could have been
essential to her cross-examination . . . .’’ The defen-
dant stated that he was unable to explore Biehn’s per-
sonnel file. In light of the newly discovered information,
the defendant requested that the court either suspend
the case to afford him time to explore Biehn’s purported
arrest and/or suspension from the Bridgeport Police
Department (arrest/suspension) or, alternatively, that
it declare a mistrial.
The state responded, ‘‘I believe the matter with
respect to Detective Biehn was resolved by way of
either a nolle or a dismissal, which means that there
. . . is no criminal case to cross-examine on. And as far
as personnel, [the] police department often suspends
police officers when charges are brought, but that’s only
because . . . the charges are brought, not because of
any kind of conviction.’’ The court continued the trial
for four days to allow the defendant to conduct an
investigation with respect to Biehn’s alleged arrest/sus-
pension. The court stated that upon recommencement
of the trial, it would allow the defendant to call Biehn
to the witness stand as a hostile witness during the
defendant’s case-in-chief, thereby affording him the
opportunity to conduct ‘‘a broad cross-examination
of [Biehn].’’
Following the four day hiatus, the trial continued on
April 16, 2012. In the absence of the jury, the court once
again stated that it would allow Biehn to testify as a
hostile witness. The defendant, however, responded, ‘‘I
did serve a subpoena on Detective Biehn as well as a
subpoena requesting her personnel file . . . and I
looked into it over the weekend. I don’t see where I
have a burden to put Detective Biehn on . . . and treat
her like a hostile witness and cross-examine her. I
believe . . . I had the right to cross-examine her when
she was here and testifying, which is one of the risks
we ran with the late disclosure. . . . I don’t believe
that I’m going to put her on because the defense does
not have a burden here. The . . . burden rested with
the state, and the only right we had was to cross-exam-
ine her, and that cross-examination has since come and
gone. So, I don’t believe I’m [going to] take the court
up on its offer, number one. And number two, I don’t
really see any authority for me to do that, to put on a
state’s witness and treat her as a hostile witness and
cross-examine her.’’ The defendant further stated that,
although he had subpoenaed Biehn’s personnel records,
the records had not been delivered to the court for
his review.
The court responded as follows: ‘‘[C]oncerning
Detective Biehn testifying in the manner . . . that I
outlined, I think the court has the . . . inherent power
to try to right what was . . . omitted by the . . . state,
and the state did not list her as a witness . . . until
the jury selection was almost over. So . . . the court
feels that . . . the alternative that [it] set up was a fair
option, and if you don’t want to take advantage of that
option, you have the right . . . not to take it. But . . .
the court feels it has the authority to . . . do that, and
. . . the option remains out there for you if you want it.’’
With respect to the contents of Biehn’s personnel
file, the state asserted that because the defendant stated
that he was not going to cross-examine Biehn, any
issues with respect to Biehn’s personnel file were moot.
The defendant responded, ‘‘Judge, the file’s not here,
we don’t know what’s in it. Did I want to look at it?
Yes, but it’s not here. . . . I suggest we move on at
this point.’’ The court stated, ‘‘you’ve decided not to
take advantage of the option and, therefore, there’s no
. . . further need for . . . testimony from Detective
Biehn.’’ The defendant subsequently moved for a judg-
ment of acquittal, which the court denied.
We first set forth the standard of review with respect
to the trial court’s decision to deny the defendant’s
motion for a mistrial. ‘‘While the remedy of a mistrial
is permitted under the rules of practice, it is not favored.
. . . If curative action can obviate the prejudice, the
drastic remedy of a mistrial should be avoided. . . .
The general rule in Connecticut is that a mistrial is
granted only where it is apparent to the court that as
a result of some occurrence during trial a party has
been denied the opportunity for a fair trial. . . . The
trial court enjoys wide discretion in deciding whether
a mistrial is warranted . . . and its evaluation as to
events occurring before the jury is to be accorded the
highest deference. . . . Every reasonable presumption
will be given in favor of the trial court’s ruling . . .
because the trial court, which has a firsthand impres-
sion of the jury, is in the best position to evaluate the
critical question of whether the juror’s or jurors’ expo-
sure has prejudiced a defendant. . . . It is only when
an abuse of discretion is manifest or where an injustice
appears to have been done that a reversal will result
from the trial court’s exercise of discretion. . . . A
reviewing court gives great weight to curative instruc-
tions in assessing error.’’ (Internal quotation marks
omitted.) Camacho v. Commissioner of Correction, 148
Conn. App. 488, 502, 84 A.3d 1246, cert. denied, 311
Conn. 937, 88 A.3d 1227 (2014).
I
We now address the defendant’s claim that the court
improperly denied his motion for a mistrial on the basis
of his contention that the state violated his fourteenth
amendment right to due process by withholding infor-
mation regarding Biehn’s alleged arrest/suspension in
contravention of the requirements of Brady v. Mary-
land, supra, 373 U.S. 87. As a threshold matter, we note
that for the purposes of this appeal, we assume, without
deciding, that information regarding Biehn’s alleged
arrest/suspension would have been admissible at trial
for the purpose of impeaching her credibility.3 The cen-
tral issue, therefore, is whether such information was
suppressed in violation of the defendant’s constitutional
right to due process. We conclude that it was not.
The applicable standard of review with respect to
an alleged Brady violation is as follows. ‘‘In Brady v.
Maryland, supra, 373 U.S. 87, the United States
Supreme Court held that the suppression by the prose-
cution of evidence favorable to an accused . . . vio-
lates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution.’’ (Internal quotation
marks omitted.) Morant v. Commissioner of Correc-
tion, 117 Conn. App. 279, 284–85, 979 A.2d 507, cert.
denied, 294 Conn. 906, 982 A.2d 1080 (2009). ‘‘[T]he
Brady rule applies not just to exculpatory evidence,
but also to impeachment evidence . . . which, broadly
defined, is evidence having the potential to alter the
jury’s assessment of the credibility of a significant pros-
ecution witness.’’ (Citations omitted; internal quotation
marks omitted.) Adams v. Commissioner of Correc-
tion, 309 Conn. 359, 369–70, 71 A.3d 512 (2013). ‘‘In
order to prove a Brady violation, the defendant must
show: (1) that the prosecution suppressed evidence
after a request by the defense; (2) that the suppressed
evidence was favorable to the defense; and (3) that
the evidence was material.’’ (Internal quotation marks
omitted.) State v. Dickman, 146 Conn. App. 17, 41, 75
A.3d 780, cert. denied, 310 Conn. 948, 80 A.3d 905 (2013).
‘‘[E]vidence known to the defendant or his counsel,
or that is disclosed, even if during trial, is not considered
suppressed as that term is used in Brady. . . . Even
if evidence is not deemed suppressed under Brady
because it is disclosed during trial, however, the defen-
dant nevertheless may be prejudiced if he is unable to
use the evidence because of the late disclosure. . . .
Under these circumstances, the defendant bears the
burden of proving that he was prejudiced by the state’s
failure to make the information available to him at an
earlier time.’’ (Citations omitted; internal quotation
marks omitted.) State v. Guilbert, 306 Conn. 218, 272,
49 A.3d 705 (2012). ‘‘Whether the [defendant] was
deprived of his due process rights due to a Brady viola-
tion is a question of law, to which we grant plenary
review.’’ (Internal quotation marks omitted.) Davis v.
Commissioner of Correction, 140 Conn. App. 597, 606,
59 A.3d 403, cert. denied, 308 Conn. 920, 62 A.3d
1133 (2013).
We conclude that the defendant failed to satisfy his
burden of demonstrating that the state suppressed
information with respect to Biehn’s alleged arrest/sus-
pension and, further, that he was prejudiced by the
delayed disclosure of such information. During the
state’s case-in-chief, but subsequent to Biehn’s testi-
mony, the defendant learned of Biehn’s alleged arrest/
suspension. The court suspended the trial for four days
to afford the defendant time to conduct an adequate
investigation into the information. When the trial recon-
vened, the court provided the defendant with the oppor-
tunity to call Biehn as a hostile witness in order to
cross-examine her about her alleged arrest/suspension.
‘‘[E]vidence known to the defendant or his counsel, or
that is disclosed, even if during trial, is not considered
suppressed as that term is used in Brady.’’ (Internal
quotation marks omitted.) State v. Guilbert, supra, 306
Conn. 272. In light of the procedures implemented by
the court, we conclude that the alleged impeachment
information was not suppressed within the meaning of
Brady because the defendant obtained it in time to
use it at trial, namely, through questioning Biehn as a
hostile witness.
Moreover, the defendant was not prejudiced by the
late discovery of Biehn’s alleged arrest/suspension. Pur-
suant to Brady, ‘‘the defendant bears the burden of
proving that he was prejudiced by the state’s failure to
make the information available to him at an earlier
time.’’ (Internal quotation marks omitted.) Id. Here, the
court afforded the defendant the opportunity to cross-
examine Biehn about her alleged arrest/suspension, but
the defendant failed to avail himself of that opportunity.
Furthermore, following the defendant’s decision not to
cross-examine Biehn, the defendant also declined the
opportunity to review Biehn’s police department per-
sonnel file for potential impeachment evidence, stating,
‘‘Judge, the file’s not here . . . . I suggest we move on
at this point.’’ Thus, the defendant failed to make any
showing that it was likely that production of Biehn’s
personnel file, which he had subpoenaed, would have
led to the discovery of impeachment evidence. The
defendant has therefore failed to meet his burden of
demonstrating prejudice.4 Consequently, the court did
not violate the defendant’s right to due process, and
its denial of the defendant’s motion for a mistrial was
not improper.
II
We next address the defendant’s claim that the court
improperly denied his motion for a mistrial because his
delayed discovery of Biehn’s alleged arrest/suspension
violated his constitutional right to confrontation. As in
part I of this opinion, for the purposes of resolving this
claim, we assume, without deciding, that information
regarding Biehn’s alleged arrest/suspension would have
been admissible at trial for the purpose of impeaching
her credibility. Operating under this assumption, we
conclude that the trial court did not violate the defen-
dant’s constitutional right to confrontation by denying
his motion for a mistrial.
At trial, the court provided the defendant with the
opportunity to take curative action to remediate any
potential harm caused by the state’s failure to disclose
information regarding Biehn’s alleged arrest/suspen-
sion. The court informed the defendant that he was
permitted to call Biehn to testify as a hostile witness
during the defendant’s case-in-chief, effectively
allowing him to cross-examine Biehn in light of the
alleged impeachment information. The defendant, how-
ever, declined to avail himself of this opportunity, stat-
ing that the court did not have the authority to allow
him to question Biehn in the prescribed manner.
Contrary to the defendant’s assertion, however, the
court had the authority to restructure the trial in a
manner that enabled him to cross-examine Biehn during
the defendant’s case-in-chief. Indeed, the court’s actions
were aligned with the sound policy that courts are
afforded wide latitude to redress potentially harmful
improprieties in order to avoid ‘‘the drastic remedy of
a mistrial . . . .’’ (Internal quotation marks omitted.)
Camacho v. Commissioner of Correction, supra, 148
Conn. App. 502. Specifically, with respect to the curative
action offered by the court in this case, we note that
‘‘[t]he [c]onfrontation [c]lause guarantees only an
opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to
whatever extent, the defense might wish.’’ (Emphasis
added; internal quotation marks omitted.) State v.
Pierre, 277 Conn. 42, 81, 890 A.2d 474, cert. denied, 547
U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006).
Thus, the fact that the defendant would have preferred
to cross-examine Biehn at a different time and in a
different manner does not constitute a violation of his
constitutional right to confrontation. We therefore con-
clude that the court did not improperly deny the defen-
dant’s motion for a mistrial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also claims that the state’s failure to disclose impeachment
information violated his right to a fair trial pursuant to article first, § 8, of
the constitution of Connecticut. Because the defendant failed to provide a
separate analysis of this claim under the Connecticut constitution, we decline
to afford it review. See State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d
1225 (1992).
2
In his brief to this court, the defendant also relied on this court’s decision
in State v. Brown, 133 Conn. App. 140, 34 A.3d 1007 (2012), rev’d, 310 Conn.
693, 80 A.3d 878 (2013), in support of his claim that the trial court illegally
sentenced him by imposing a period of special parole that exceeded ten
years. At oral argument before this court, the defendant abandoned this
claim, conceding that it was meritless in light of our Supreme Court’s deci-
sion in State v. Brown, 310 Conn. 693, 80 A.3d 878 (2013), which reversed
this court’s decision with respect to the maximum period of special parole,
and which was decided subsequent to the defendant’s filing of his appellate
brief. In light of this concession, we do not review this claim.
3
With respect to Biehn’s arrest, the state contends that, although Biehn
was arrested, the charges against her were dismissed and, consequently,
the state did not have a duty to disclose them because they were erased
pursuant to General Statutes § 54-142a (a). Because we assume, without
deciding, that information existed that the defendant properly could have
used for the purpose of impeaching Biehn’s credibility, we need not address
the applicability of § 54-142a (a).
4
The defendant additionally claims that the state violated Practice Book
§ 40-13 (a), which requires the state to ‘‘disclose to the defendant any record
of felony convictions of the witnesses known to the prosecuting authority
and any record of felony or misdemeanor charges pending against the wit-
nesses known to the prosecuting authority.’’ In light of our determination
that the state did not suppress information pursuant to Brady, we likewise
conclude that such information was not wrongfully withheld pursuant to
Practice Book § 40-13 (a).