State v. Maldonado

• Decision Date: 12 June 1984
• Citation: 193 Conn. 350,478 A.2d 581
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Jose A. MALDONADO.

Page 581

478 A.2d 581

193 Conn. 350

STATE of Connecticut v. Jose A. MALDONADO.

Supreme Court of Connecticut.

Argued March 7, 1984.

Decided June 12, 1984.

Jon L. Schoenhorn, West Hartford, with whom was Michael R. Sheldon, West Hartford, for appellant (defendant).

Lawrence J. Tytla, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., Richard E. Maloney, Deputy Chief State's Atty., John M. Massameno, Asst. State's Atty., and John Nazzaro, legal intern, for appellee (State).

Before SPEZIALE, C.J., and PARSKEY, GRILLO, DALY and MENT, JJ.

PARSKEY, Associate Justice.

The defendant was convicted by a jury of felony murder, in violation of General Statutes §§ 53a-54c and 53a-54a(c) and sentenced by the trial court to a term of not less than twenty years nor more than life. Five of the defendant's six claims on appeal arise out of the disappearance of a state's witness after he had testified for the state but before the defendant had completed cross-examining him. The defendant claims that (1) the failure of this witness to return for the completion of the cross-examination deprived the defendant of his federal and state constitutional rights to confrontation and required the trial court to dismiss the indictment; (2) the trial court's failure to use all available means to seek the return of this witness deprived the defendant of his constitutional rights to confrontation and due process of law; (3) the denial of the defendant's motion to release the grand jurors from their oath of secrecy so that they could testify to inconsistent testimony that the missing witness gave before the grand jury deprived the defendant of his constitutional rights to confrontation and to compel the testimony of witnesses on his behalf; (4) the trial court's failure to permit the introduction of extrinsic evidence to impeach the testimony of the missing witness denied the defendant his constitutional rights to compulsory process, confrontation and due process; (5) the trial court deprived the defendant of due process by remarking in the presence of the jury that the defendant's testimony about the missing witness' testimony before the grand jury was "self-serving"; and (6) the defendant was denied a fair trial by the state's failure to provide the defendant with exculpatory information in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We find no error.

The jury could reasonably have found the following facts: At approximately 8 p.m. on May 24, 1976, the defendant, who was wearing a red blazer jacket and a blue and white golf hat entered the El Comerieno Cafe in Hartford. He watched television for awhile and then inquired of several people whether they had seen Miriam Acosta. He remained inside the bar of the cafe for five or ten minutes and then left. A few minutes later, a man brandishing a pistol entered the cafe, fired a shot, announced a holdup and told everyone to empty their pockets and get on the floor. When this was done, he reached down and picked up some money, fired more shots, one of which hit Ramon Rodriguez, and then departed. Rodriguez died shortly thereafter. On the basis of descriptions given by patrons of the bar of the perpetrator and of a car leaving the scene, the police at 8:30 p.m. stopped a Datsun 240-Z which was orange and had a black stripe. The defendant, who was driving the car, matched the description of the suspect in both dress and appearance. Between the two seats of the car the police found a blue and white hat. Shortly thereafter, the defendant was arrested.

At the defendant's trial, several patrons of the El Comerieno Cafe testified to the events surrounding the murder of Ramon Rodriguez. ¹ Victor Resto and Francisco Rivera identified the defendant as the killer. Angel Vasquez placed the defendant in the bar during the robbery but did not see the shooting. Dora Ortiz did not see the murderer's face because it was obscured by the gun, but gave a description of his height, weight, build, beard, clothes and hat, which matched the defendant's. Wilfredo Gonzales testified that the defendant had been in the bar prior to the shooting and that the assailant was the same size, wore the same kind of jacket and hat and had similar facial hair as the defendant. Carmen Martinez testified that the defendant was definitely not the man who had shot Rodriguez. The state also introduced evidence that the defendant had purchased a pistol and cartridges of the same type that had killed Rodriguez. The murder weapon was never found.

When on March 30, 1977, after four days of trial, Francisco Rivera was called by the state, he testified that he saw the defendant shoot Ramon Rodriguez. He made an in-court identification of the defendant. At the conclusion of the state's direct examination of Rivera, the defendant began his cross-examination. After briefly exploring Rivera's ability to observe the defendant in the bar, then attempting unsuccessfully to get him to agree that he had given a conflicting account of the incident to the grand jury which had indicted the defendant, counsel sought to introduce the prior felony record of the witness for impeachment purposes. When the arrest record supplied to the defendant by the state was found to contain discrepancies, the state's attorney offered defense counsel the opportunity to examine police records before continuing with his cross-examination. Consequently, court was adjourned until the following morning, March 31, and Rivera was instructed to return to court at that time.

Rivera failed to appear in court the next day. The state proceeded with its case while attempting to locate Rivera. On April 1, two investigators described to the trial court their unsuccessful efforts to locate Rivera. It was suggested that Rivera had fled because his life had been threatened. ² The trial court concluded that further efforts would probably be fruitless and thus set a deadline of 10 a.m. on Monday, April 4, by which time the state had to produce Rivera.

On April 4, the two investigators recounted their further unsuccessful investigatory efforts to the trial court. The court concluded that Rivera was unavailable and refused to permit a further continuance. The defendant then moved to dismiss the indictment on the basis of the state's failure to produce Rivera for the completion of the cross-examination. ³ This motion was denied. Thereafter, the state moved to strike Rivera's testimony. Although the trial court considered this the proper remedy, the defendant objected, claiming that that procedure would not erase Rivera's damaging testimony from the jurors' minds. The defendant then stipulated that Rivera's testimony should not be stricken and the jury should not be instructed to disregard it, but reserved all rights on his motion to dismiss. With the agreement of the state, the defendant was then permitted to introduce Rivera's manslaughter conviction into evidence and to have his counsel read to the jury allegedly inconsistent testimony given by Rivera in a pretrial suppression hearing.

In the middle of the trial, the defendant moved to dismiss the indictment claiming that the state had failed to disclose exculpatory material. The motion was denied.

I

We first consider the defendant's claim that the only remedy for the denial of his right of confrontation, caused by Rivera's disappearance, was a mistrial. We do not agree.

Every criminal defendant must be provided with the opportunity fairly and fully to confront and cross-examine adverse witnesses. U.S. Const., amends. VI, XIV; Conn. Const., art. I § 8; Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974); Chambers v Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973); Pointer v. Texas, 380 U.S. 400, 403-404, 85 S.Ct. 1065, 1067-1068, 13 L.Ed.2d 923 (1965); State v. Wilson, 188 Conn. 715, 721, 453 A.2d 765 (1982); State v. Hackett, 182 Conn. 511, 517, 438 A.2d 726 (1980). As the defendant concedes, however, not every intrusion on that right requires a mistrial. See, e.g., State v. Reed, 174 Conn. 287, 299-300, 386 A.2d 243 (1978); State v. Jones, 167 Conn. 228, 233, 355 A.2d 95 (1974).

When considering a motion for mistrial, the trial court must determine whether some event has occurred which is so prejudicial as to preclude a fair trial. Such a determination is subject to the sound discretion of the trial court. State v. Vass, 191 Conn. 604, 613, 469 A.2d 767 (1983); State v. Nowakowski, 188 Conn. 620, 624, 452 A.2d 938 (1982). If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. State v. Altrui, 188 Conn. 161, 173, 448 A.2d 837 (1982).

In State v. Rado, 172 Conn. 74, 81, 372 A.2d 159 (1976), we upheld the trial court's denial of a motion for mistrial when a witness for the state became ill and could not be cross-examined. Because his testimony was "merely corroborative" we found the trial court's decision to strike the testimony and to instruct the jury to disregard it to be the proper remedy. Id., 82-83, 372 A.2d 159. Similarly our analysis of this appeal turns on whether the trial court was correct in finding that Rivera's testimony was cumulative and corroborative and hence that any prejudice resulting from the incomplete cross-examination could be remedied by a motion to strike and a curative instruction. Accord Commonwealth v. Davis, 380 Mass. 1, 401 N.E.2d 811 (1980); State v. Gardner, 269 S.C. 698, 239 S.E.2d 729 (1977); cf. State v. Malinsky, 153 F.Supp. 321 (S.D.N.Y.1957) (where after the trial had just begun the witness suffered a heart attack on the stand and could not be cross-examined, a mistrial was warranted because the state had summarized the witness' testimony in its opening statement and had emphasized its importance, and the jury had witnesses his heart attack and would not forget his presence and hence his testimony on direct...