State v. Rivera

• Decision Date: 12 August 2014
• Docket Number: No. 36439.,36439.
• Citation: 152 Conn.App. 248,96 A.3d 1285
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Jose I. RIVERA.

152 Conn.App. 248

96 A.3d 1285

STATE of Connecticut

v.Jose I. RIVERA.

No. 36439.

Appellate Court of Connecticut.

Argued May 22, 2014.

Decided Aug. 12, 2014.

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 assistant state's attorney, for the appellee (state).

BEACH, SHELDON and BORDEN, Js.

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 defendant 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 disagreeand, 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 Statutes §§ 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 subsequently, 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 purchase 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 detective processed Lopez' vehicle to recover potential evidence 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 defendant informed the court that, subsequent to Biehn's testimony, he discovered that Biehn had been arrested and/or suspended from the Bridgeport Police Department 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 defendant stated that he was unable to explore Biehn's personnel 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/suspension. 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-examine 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 judgment 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 impression of the jury, is in the best position to evaluate the critical question of whether the juror's or jurors' exposure 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 instructions 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...