State v. Quintana, 13179

• Decision Date: 06 September 1988
• Docket Number: No. 13179,13179
• Citation: 209 Conn. 34,547 A.2d 534
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Jose QUINTANA.

Page 534

547 A.2d 534

209 Conn. 34

STATE of Connecticut v. Jose QUINTANA.

No. 13179.

Supreme Court of Connecticut.

Argued June 1, 1988.

Decided Sept. 6, 1988.

Joette Katz, Public Defender, for appellant (defendant).

Susan C. Marks, Deputy Asst. State's Atty., with whom, on the brief, were Bradford Ward, Asst. State's Atty., Harry Weller, Deputy Asst. State's Atty., and Peter Markle, Former Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and HULL, JJ. COVELLO, Associate Justice.

Following a jury trial, the defendant, Jose Quintana, has appealed from a judgment of conviction of felony murder in violation of General Statutes § 53a-54c. ¹ The defendant claims that: (1) his due process rights were violated by the state's failure to disclose the existence of criminal charges pending against a state's witness; (2) this nondisclosure contravened Practice Book § 744 and constituted reversible error; (3) the trial court's instructions to the jury allowed it to convict the defendant on theories of liability that were unsupported by the evidence; (4) the trial court erred in its instructions to the jury on the crime of attempt; (5) the trial court erred in its instructions to the jury on the law of self-defense and the duty to retreat; and (6) the trial court's instructions on self-defense allowed the jury to convict the defendant on a less than unanimous verdict, in violation of his rights under the Connecticut constitution.

The jury could reasonably have found that on the evening of March 11, 1986, the victim, Robert Chrisman, was stabbed in the chest on a sidewalk near his apartment in Waterbury. Police responding to a call reporting the incident found a silver-colored aluminum cigarette case and cigarette lighter on the sidewalk near the victim. The victim's fiance, who later identified his body, testified that she did not recognize the lighter and cigarette case as belonging to the victim and had never seen them in his possession. The police officers at the scene collected the lighter and cigarette case and brought them to police headquarters for forensic examination. Police experts later determined that fingerprints on both of these items were the defendant's.

The defendant's former girlfriend, Jeannette Berman, testified that in a conversation with her two days after the stabbing incident, the defendant admitted having stabbed the victim in self-defense in an altercation that, according to the defendant, had been initiated by the victim. She also identified the cigarette case and lighter that police had recovered from the crime scene as belonging to the defendant.

Berman further testified that, a few days after the murder, she picked up the defendant in her car at a prearranged meeting place pursuant to his instructions. As they drove around Waterbury, the defendant ordered her to pull over to pick up a friend of his whom he saw walking nearby. She identified the passenger as Gregorio Hernandez, and testified that the defendant and Hernandez subsequently carried on a conversation in Spanish in the back seat of her car while she drove.

Hernandez testified at the defendant's probable cause hearing and again at the trial that, during this back seat conversation, the defendant confided in Hernandez that he had killed Chrisman during an attempted robbery.

I

The defendant first claims that his due process rights were violated by the state's failure to disclose the existence of criminal charges pending against the witness Hernandez at the time of his trial testimony. We find no reversible error.

"In Brady v. Maryland, [373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ], the United States Supreme Court stated that 'suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment....' " State v. Pollitt, 205 Conn. 132, 141, 531 A.2d 125 (1987). The state acknowledges that such a request was made, by virtue of the defendant's motion for disclosure on May 7, 1986, requesting "all exculpatory information and material."

Hernandez testified at the defendant's probable cause hearing on May 14, 1986. At the time of his probable cause testimony, there were no charges pending against Hernandez. On August 25, 1986, the state responded to the defendant's motion for disclosure and stated that it "possessed no obviously exculpatory information or material." The defendant's trial for felony murder began on January 28, 1987, and Hernandez testified again as a witness for the state, essentially reiterating the testimony he had given at the May 14, 1986 probable cause hearing. Criminal charges against Hernandez had arisen during the interval between the probable cause hearing and the defendant's criminal trial. ² Thus, at the time of his trial testimony, Hernandez was a witness against whom nondisclosed criminal charges were pending.

The determination of whether the defendant's due process rights were violated by the states's nondisclosure of the charges pending against Hernandez at the time of his trial testimony turns on whether that information was material. In United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the United States Supreme Court articulated the standard of materiality for disclosures mandated by Brady: " 'The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.' " See State v. Pollitt, supra, 205 Conn. at 142-43, 531 A.2d 125.

Applying this standard of materiality to the circumstances of this case, "we must determine whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." State v. Monteeth, 208 Conn. 202, 214-15, 544 A.2d 1199 (1988). We conclude that the nondisclosure of Hernandez' pending charges does not raise a reasonable probability that the outcome of the defendant's criminal trial would have been different. The crucial aspect of Hernandez' trial testimony, that the defendant had admitted the stabbing and attempted robbery of the victim, was a reiteration of the testimony Hernandez had presented at the probable cause hearing. The impeachment force of the evidence of the pending charges, i.e., that Hernandez might be induced to give testimony that would benefit his own interest in winning favor with the state, was undermined by the fact that he had presented entirely consistent testimony at the probable cause hearing when there were no such pending charges, and thus no potential inducements affecting the credibility of his statements. In our view, the trial testimony served largely to confirm and restate the evidence given at the probable cause hearing. Further, any perceived infirmities in the probative value of Hernandez' testimony because of the pending charges could easily have been cured by the rehabilitative effect of the introduction of the probable cause testimony as a prior consistent statement. State v. Dolphin, 178 Conn. 564, 571, 424 A.2d 266 (1979).

Had the pending charges against Hernandez been disclosed by the state, and had the defendant made use of the charges to discredit the witness, the jury could still reasonably have chosen to believe Hernandez on the basis of his earlier, consistent testimony given at the probable cause hearing. We deem the nondisclosure insufficient to have undermined confidence in the outcome of the proceedings, and therefore the information withheld was not "material" according to the test articulated in Bagley. We conclude that under the circumstances of this case, the nondisclosure of criminal charges pending against the witness Hernandez at the time of his trial testimony did not deprive the defendant of due process of law.

II

The defendant next claims that the state's nondisclosure of the charges against Hernandez violated Practice Book § 744, which provides in relevant part: "After a witness called by the state has testified on direct examination, the prosecuting authority shall disclose ... any record of felony or misdemeanor charges pending against the witness known to the prosecuting authority." The defendant contends that the state's violation of § 744 entitles him to a new trial. We disagree.

As we have just determined, Hernandez' pending charges did not constitute "material" information within the meaning of United States v. Bagley, supra, and did not, therefore, rise to the level of a constitutional violation. There is no dispute that the required disclosure was not made and that, therefore, a violation of § 744 did occur. This violation is reviewable as plain error. Practice Book § 4185. While we hasten to emphasize that we do not condone the withholding of exculpatory information, it was the defendant's burden in this case to show the harmfulness of this nonconstitutional error. State v. Gonzalez, 197 Conn. 677, 681, 500 A.2d 1330 (1985). On the present record, we are not persuaded that the defendant has made the requisite showing of the harmfulness of this Practice Book violation. Consequently, he has failed to establish his entitlement to a new trial.

III

The defendant next claims that the trial court's instructions on the charge of criminal attempt were erroneous in that they invited the jury to consider theories of liability unsupported by the evidence. The charge of felony murder was based on a substitute information that claimed that the defendant had caused the death of the victim in the course of and in furtherance of the crime of attempted robbery.

In its instructions to the jury on the crime of attempt, the trial court, pursuant to General Statutes § 53a-49, ³ explained the statutory requirement that the defendant's conduct constitute...