State v. Cardona

• Decision Date: 04 February 1986
• Docket Number: No. 2781,2781
• Citation: 504 A.2d 1061,6 Conn.App. 124
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Benjamin CARDONA.

Page 1061

504 A.2d 1061

6 Conn.App. 124

STATE of Connecticut v. Benjamin CARDONA.

No. 2781.

Appellate Court of Connecticut.

Argued Oct. 9, 1985.

Decided Feb. 4, 1986.

James J. Ruane, Special Public Defender, with whom, on brief, were Richard T. Meehan, Sr., and Richard T. Meehan, Jr., Bridgeport, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on brief, were Donald A. Browne, State's Atty., and Domenick J. Galluzzo, Asst. State's Atty., for appellee (state).

Before SPALLONE, DALY and BIELUCH, JJ.

SPALLONE, Judge.

The defendant was charged with the crime of murder in violation of General Statutes § 53a-54a. He was convicted, after a jury trial, of the lesser included offense of assault in the first degree in violation of General Statutes § 53a-59(a)(1) and is appealing from the judgment of that conviction.

The jury could reasonably have found the following facts. On the evening of October 10, 1982, the defendant went to Fannie's Lost and Found Cafe, in Bridgeport. While there, he socialized with several individuals including the following: Willie Tolliver, the cafe's bouncer; Barry Hopkins, who, along with the defendant, was charged in connection with the stabbing death of Luis Valentine; Richard Young, the main witness against the defendant; Bernadine James, the sister of Barry Hopkins; Alice White, the defendant's girlfriend by whom he had a son; and Agnes White, Alice White's sister-in-law. The defendant consumed several drinks while at the bar. At approximately midnight the defendant left the bar with Tolliver. The two men went to Park City Hospital where Tolliver was treated for a stomach ailment. The defendant left Tolliver at the hospital and went back to Fannie's Lost and Found Cafe. He remained there until closing, approximately 2 a.m.

Throughout the evening, the defendant and the other individuals discussed an incident in which Bernadine James' daughter had been sexually molested. Richard Young, upon hearing of the molestation of the young girl, became extremely upset, expressed his desire to confront the individual involved, and had to be calmed down. At some point, Young volunteered to go with Barry Hopkins to pick up the individual whom they believed was responsible for the molestation.

When the cafe closed, the defendant, Young, Hopkins and another individual, Richard Coover, left together. Agnes White and Bernadine James walked to White's apartment where they were met by the defendant, Young and Hopkins. Coover had been dropped off at his home.

The victim, Luis Valentine, was also at White's apartment. He spoke with the defendant and Hopkins and left with them. The defendant, Young and Hopkins returned to White's apartment approximately forty-five minutes after they had left. Valentine did not return with them. Upon entering the apartment, Young threw at least two knives into the kitchen sink, Hopkins wrapped a towel around his hand which had been cut and the defendant banged his head against the refrigerator and stated that he was sorry. Shortly thereafter, the three men went to Bridgeport Hospital seeking treatment for Hopkins' hand. Hopkins remained at the hospital. The defendant and Young left and the defendant eventually drove Young to the Bridgeport train station where Young boarded a train bound for New York. Young left the train and reported Valentine's death to the Bridgeport police. He took the police to the body and implicated the defendant and Hopkins in the killing, whereupon the police sought the arrests of both men.

I

The defendant's first claim is that the trial court erred in denying his request for production of written statements of named, but uncalled, state's witnesses.

In his motion for discovery, the defendant requested the names and addresses of individuals whom the state intended to call as witnesses at trial. The court granted the defendant's request as limited by Practice Book §§ 743 and 752. ¹ At the close of the state's case, the state had not called all the witnesses originally named. The defendant filed a motion for production seeking copies of all written statements of the individuals named but not called. The court denied the defendant's motion and the defendant called these individuals as witnesses during the presentation of his case. Each witness was subject to full cross-examination.

The defendant claims that the denial of his request for production violated his federal and state constitutional right to a fair trial and his right to call witnesses on his own behalf. He argues that, without knowing the contents of the witnesses' statements in advance, he was foreclosed from making an intelligent decision whether to call the particular individual as a witness, thereby undermining his opportunity to present a complete defense. We find this argument unpersuasive.

A

It is clear that the provisions of Practice Book § 752 which require the production of a statement of a witness who testified for the prosecuting authority are mandatory. State v. Anonymous (83-FG), 190 Conn. 715, 732, 463 A.2d 533 (1983); State v. Gonzales, 186 Conn. 426, 432, 441 A.2d 852 (1982). Our rules on this subject are substantially similar to the Jencks Act, 18 U.S.C. § 3500; State v. Gonzales, supra; which provides for discovery of statements and reports in criminal prosecutions brought by the United States. A prerequisite to the applicability of the Jencks Act is that the individual whose statement or report is sought be called as a witness. United States v. Disston, 612 F.2d 1035, 1038 (7th Cir.1980). " 'The purpose of the Jencks Act was to provide the defense with a means of impeaching a government witness by means of a prior inconsistent statement ... while not allowing an unrestrained search through government files.' United States v. Catalano, 491 F.2d 268, 274 (2d Cir.), cert. denied, 419 U.S. 825, 95 S.Ct. 42, 42 L.Ed.2d 48 (1974)...." State v. Hinton, 196 Conn. 289, 301, 493 A.2d 837 (1985). The language of our rules in this regard is clear and is consistent with the federal rule. Only "after a witness called by the state has testified on direct examination at trial" must the judicial authority order the state to produce any statement of the witness which is in the possession of the state or its agents. Practice Book § 752. Nowhere do the rules of practice indicate that the state is required to produce the statements of prospective witnesses whom the state decides ultimately not to call at trial.

Although this rule must not be applied so as to circumvent the prosecution's duty "to ensure that all evidence tending to aid in the ascertainment of the truth be laid before the court, whether it be consistent with the contention of the prosecution that the accused is guilty"; State v. Moynahan, 164 Conn. 560, 568, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973); it must be recognized that there is no constitutional requirement that the prosecution routinely deliver its entire file to the defense. California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 2534 n. 8, 81 L.Ed.2d 413 (1984).

B

The defendant argues further that Practice Book § 741(3) requires the production of the written statements he sought. Again, we do not agree.

Practice Book § 741(3) requires the prosecuting authority to disclose to the defendant certain relevant materials which are exculpatory, material to the preparation of the defense or which are intended for use by the prosecution as evidence in chief at the trial. The rule does not require the wholesale production of all materials and information in the prosecution's possession. The defendant's pretrial motion for discovery and inspection which sought the statements in question was granted by the trial court as limited by the provisions of Practice Book § 752, discussed above. The record and transcripts do not indicate that the defendant made a showing of materiality sufficient to require production of the statements in question under § 741(3). Likewise, there was no showing that the statements were exculpatory and therefore discoverable. Absent any such showing, we cannot say that the trial court erred in denying the defendant's requests for production of the statements.

II

The defendant's next two claims challenge the propriety of two related rulings made by the trial court which concerned the admissibility of prior written statements.

A

During the trial, the defense called Bernadine James as a witness. On cross-examination, the state questioned her in detail as to her withdrawal of charges against an individual charged with the molestation of James' daughter. The state also questioned the witness as to the events preceding the homicide of Luis Valentine.

In an attempt to impeach the witness' credibility, the state offered a statement she made to the police in which she recounted the events in question. The defendant objected to the introduction of the statement and sought to limit the offer to what the state alleged to be inconsistencies with her in-court testimony. The court overruled the defendant's objection and concluded that the alleged inconsistencies could not be isolated and taken out of context. The defendant claims that the trial court's ruling which allowed into evidence the unredacted statement of a witness violated his federal and state constitutional right to a fair trial.

The elementary rule of evidence that the credibility of a witness may be attacked by showing a materially inconsistent prior statement made by that witness is well settled in our law. State v. Carter, 189 Conn. 631, 639-40, 458 A.2d 379 (1983); G & R Tire Distributors, Inc. v. Allstate Ins. Co., 177 Conn. 58, 60-61, 411 A.2d 31 (1979); State v. Saia, 172 Conn. 37, 45-46, 372 A.2d 144 (1976). The trial court is vested with broad discretion in controlling the inquiry surrounding such matters and in deciding whether and to what extent the inconsistent statements should be admitted. G & R Tire...