State v. Cepeda

• Decision Date: 05 January 1999
• Docket Number: (AC 16082)
• Citation: 51 Conn. App. 409,723 A.2d 331
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. IVAN CEPEDA

51 Conn. App. 409

723 A.2d 331

STATE OF CONNECTICUT v. IVAN CEPEDA

(AC 16082)

Appellate Court of Connecticut.

Argued September 15, 1998.

Officially released January 5, 1999.

Landau, Schaller and Healey, Js.

Paul R. Kraus, for the appellant (defendant).

Paul J. Ferencek, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and David J. Strollo, assistant state's attorney, for the appellee (state).

Opinion

HEALEY, J.

The defendant, Ivan Cepeda, appeals from the judgment of conviction,¹ following a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1),² conspiracy to commit assault in the first degree in violation of General Statutes §§ 53-48 (a)³ and 53a-59 (a) (1) and carrying a pistol without a permit in violation of General Statutes § 29-35.⁴

On appeal, the defendant claims that the trial court improperly (1) restricted the cross-examination of the state's eyewitnesses concerning the charged incident of August 1, 1993, (2) failed to conduct a Batson⁵ hearing concerning the state's use of a peremptory challenge on a prospective juror, (3) admitted uncharged misconduct that did not bear a sufficient relation to the charges to have any probative value, (4) denied the defendant's motion to allow the defense to inspect notes taken by the prosecutor during his conversation with the witness Joel Coban pursuant to General Statutes § 54-86b⁶ and (5) allowed the rebuttal testimony of Joseph Lawlor, an inspector for the state, because it did not address the credibility of any defense witness. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On August 1, 1993, the victim, Anibal Torres, and his brother drove his girlfriend, Christine Barker, and her two year old daughter, Emily, to 63 Winthrop Avenue in New Haven where the defendant lived with his parents and five brothers. The defendant is Emily's father. Barker was bringing Emily to visit with her grandmother, the defendant's mother. Barker was romantically involved with the defendant previously, but after Emily was born she had left the defendant to date the victim. She resumed her relationship with the defendant, however, while pregnant with the victim's son, but returned to the victim after the birth of his son. The victim and the defendant had been on poor terms since Barker had broken up with the defendant and became pregnant by the victim.

The victim parked his car across the street from the defendant's home on Winthrop Avenue, and he and his brother remained in the car. Barker got out of the car with Emily, crossed Winthrop Avenue and knocked on the front door, which was answered by Emily's grandmother. At that time, the defendant, his brothers Frank Cepeda and Luis Cepeda, his uncle and another individual went across Winthrop Avenue toward the car in which the victim was sitting. The victim testified that they said that they were "going to fight me." The victim got out of his car and a fight started. The victim hit the defendant, who fell down, and all of the men started fighting in the street. The defendant "screamed" for someone "to get the gun." The defendant's uncle went into the house, came out with a small grayish-black handgun and fired a shot toward the victim. During this melee, the uncle approached the victim's brother, who was being held down on the ground by the defendant's brothers Frank and Luis, and pointed the gun at his head. Barker moved into the street, and pushed the uncle with the gun away from the victim's brother. As she did so, the "gun went off and nothing came out," having apparently jammed. The defendant then obtained the handgun from his uncle.

The victim's brother stabbed the defendant's brother, Frank Cepeda, in the leg with a knife, which caused a minor wound to his thigh. The victim ran toward his car and, as he was attempting to get in, the defendant fired at least two shots at the victim. Two bullets struck the victim. One bullet passed through his left arm and another penetrated his chest fracturing his fourth thoracic vertebra.

Two brothers, Demetrius Coban and Joel Coban, who had been walking their dog in the area, witnessed the incident. They each saw the defendant point the handgun toward the victim and fire two shots. The victim's brother and Barker helped him into the car and drove him to Yale-New Haven Hospital.⁷

The jury heard and observed fourteen witnesses called by the state and seven witnesses called by the defense. The state also called another witness on rebuttal. The defendant did not take the witness stand.

I

The defendant claims that his federal and state⁸ constitutional rights were violated when the trial court declined to let him cross-examine the victim, Barker, Demetrius Coban and Joel Coban on whether these eyewitnesses had seen the victim's brother stab Frank Cepeda in the leg. He claimed that he was entitled to do so to impeach their credibility, to test their powers of recollection and abilities to observe and to set out a time continuum of events. The defendant made essentially the same claim several times as the state presented each of these eyewitnesses.

This issue requires the recital of certain additional facts. After the victim had testified on cross-examination that he had not seen "any knives," the defendant, in the absence of the jury, first made his claim that he be permitted to cross-examine the victim on the basis already stated. The state objected on relevancy grounds, claiming that such an inquiry would be a collateral issue. The trial court ruled that while it arguably might have some relevance, allowing the requested inquiry could rapidly develop into collateral issues and tend to confuse the jury. The trial court pointed out that the defendant would have ample opportunity to cross-examine the victim to test and explore his powers of recollection and observation. It did, however, state that it would allow the defendant to ask the victim if he saw anyone with a knife, but precluded him from asking the victim if he had actually seen the stabbing incident. Thereafter, in the presence of the jury and upon further cross-examination, the victim stated that he had not seen anyone with a knife.

Again, upon cross-examination of Demetrius Coban, Joel Coban and Barker, defense counsel, asserting the same grounds, pressed his claim to cross-examine each concerning the stabbing. The state again objected, arguing that the issue involved was whether the defendant shot, attempted to shoot or assisted another person in shooting the victim, and that the matter of the stabbing incident claimed between the victim's brother and Frank Cepeda was a collateral issue. In the course of pressing his request to the court, defense counsel stated that he anticipated presenting testimony from individuals, including Frank Cepeda, as to how he was stabbed and the surrounding circumstances. He argued that this was relevant to impeaching the witnesses' credibility and their powers of recollection and observation. The state maintained that the defendant's argument was based on his assumption that, if that inquiry was allowed, the state's eyewitnesses would testify that they did not see the stabbing. The trial court again precluded defense counsel from cross-examining these witnesses about the stabbing. Thereafter, defense counsel, in cross-examining the witnesses, did not ask if they had seen a knife.

The analysis of the defendant's claim of improper restriction of his right of cross-examination is guided by familiar constitutional principles relevant to cross-examination by a defendant in a criminal trial. "It is axiomatic that the defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. U.S. Const., amends. VI, XIV ... Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); Pointer v. Texas, 380 U.S. 400, 403-404, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965).... The primary interest secured by confrontation is the right to cross-examination; Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); and an important function of cross-examination is the exposure of a witness' motivation in testifying. Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959). Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. State v. Lubesky, 195 Conn. 475, 481-82, 488 A.2d 1239 (1985). In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Davis v. Alaska, [supra, 318]; State v. Lubesky, supra, 482...." (Citation omitted; internal quotation marks omitted.) State v. Beliveau, 237 Conn. 576, 584-85, 678 A.2d 924 (1996).

The United States Supreme Court has said: "Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." (Emphasis in original.) Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985); see State v. Joyner, 225 Conn. 450, 478, 625 A.2d 791 (1993); State v. Jones, 22 Conn. App. 665, 667, 578 A.2d 667 (1990). The Beliveau court also said: "The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. State v. Johnson, 21 Conn. App. 291, 293, 573 A.2d 1218 (1990). Only relevant evidence may be elicited through cross-examination. State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 749 (1980). The...