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STATE OF CONNECTICUT v. JOSE I. RIVERA

(AC 36439)

Beach, Sheldon and Borden, Js.

Argued May 22—officially released August 12, 2014

(Appeal from Superior Court, judicial district of

Fairfield, Hauser, J.)

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).
Opinion

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 53a54a (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 disagree and,

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 Webstertwo times.
The defendant and the unidentified man fled the

crime scene.

Priorto 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 personnelrecords,

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 underthe 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 contention that the state violated his fourteenth

amendment right to due process by withholding information regarding Biehn’s alleged arrest/suspension in

contravention of the requirements of Brady v. Maryland, supra, 373 U.S. 87. As a threshold matter, we note

that forthe purposes of this appeal, we assume, without

deciding, that information regarding Biehn’s alleged

arrest/suspension would have been admissible at trial

for the purpose of impeaching her credibility.3 The central issue, therefore, is whether such information was

suppressed in violation ofthe defendant’s constitutional

right to due process. We conclude that it was not.

The applicable standard of review with respect to

an alleged Brady violation is as follows. ‘‘In Brady v.

Maryland, supra, 373 U.S. 87, the United States

Supreme Court held that the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either

to guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution.’’ (Internal quotation

marks omitted.) Morant v. Commissioner of Correction, 117 Conn. App. 279, 284–85, 979 A.2d 507, cert.

denied, 294 Conn. 906, 982 A.2d 1080 (2009). ‘‘[T]he

Brady rule applies not just to exculpatory evidence,

but also to impeachment evidence . . . which, broadly

defined, is evidence having the potential to alter the

jury’s assessment of the credibility of a significant prosecution witness.’’ (Citations omitted; internal quotation

marks omitted.) Adams v. Commissioner of Correction, 309 Conn. 359, 369–70, 71 A.3d 512 (2013). ‘‘In

order to prove a Brady violation, the defendant must

show: (1) that the prosecution suppressed evidence

after a request by the defense; (2) that the suppressed

evidence was favorable to the defense; and (3) that

the evidence was material.’’ (Internal quotation marks

omitted.) State v. Dickman, 146 Conn. App. 17, 41, 75

A.3d 780, cert. denied, 310 Conn. 948, 80 A.3d 905 (2013).
‘‘[E]vidence known to the defendant or his counsel,

orthat is disclosed, even if during trial, is not considered

suppressed as that term is used in Brady. . . . Even

if evidence is not deemed suppressed under Brady

because it is disclosed during trial, however, the defendant nevertheless may be prejudiced if he is unable to

use the evidence because of the late disclosure. . . .

Under these circumstances, the defendant bears the

burden of proving that he was prejudiced by the state’s

failure to make the information available to him at an

earlier time.’’ (Citations omitted; internal quotation

marks omitted.) State v. Guilbert, 306 Conn. 218, 272,

49 A.3d 705 (2012). ‘‘Whether the [defendant] was

deprived of his due process rights due to a Brady violation is a question of law, to which we grant plenary

review.’’ (Internal quotation marks omitted.) Davis v.

Commissioner of Correction, 140 Conn. App. 597, 606,

59 A.3d 403, cert. denied, 308 Conn. 920, 62 A.3d

1133 (2013).

We conclude that the defendant failed to satisfy his

burden of demonstrating that the state suppressed

information with respect to Biehn’s alleged arrest/suspension and, further, that he was prejudiced by the

delayed disclosure of such information. During the

state’s case-in-chief, but subsequent to Biehn’s testimony, the defendant learned of Biehn’s alleged arrest/

suspension. The court suspended the trial for four days

to afford the defendant time to conduct an adequate

investigation into the information. When the trial reconvened, the court provided the defendant with the opportunity to call Biehn as a hostile witness in order to

cross-examine her about her alleged arrest/suspension.

‘‘[E]vidence known to the defendant or his counsel, or

that is disclosed, even if during trial, is not considered

suppressed as that term is used in Brady.’’ (Internal

quotation marks omitted.) State v. Guilbert, supra, 306

Conn. 272. In light of the procedures implemented by

the court, we conclude that the alleged impeachment

information was not suppressed within the meaning of

Brady because the defendant obtained it in time to

use it at trial, namely, through questioning Biehn as a

hostile witness.

Moreover, the defendant was not prejudiced by the

late discovery of Biehn’s alleged arrest/suspension. Pursuant to Brady, ‘‘the defendant bears the burden of

proving that he was prejudiced by the state’s failure to

make the information available to him at an earlier

time.’’ (Internal quotation marks omitted.) Id. Here, the

court afforded the defendant the opportunity to crossexamine Biehn about her alleged arrest/suspension, but

the defendant failed to avail himself of that opportunity.

Furthermore, following the defendant’s decision not to

cross-examine Biehn, the defendant also declined the

opportunity to review Biehn’s police department personnel file for potential impeachment evidence, stating,
‘‘Judge, the file’s not here . . . . I suggest we move on

at this point.’’ Thus, the defendant failed to make any

showing that it was likely that production of Biehn’s

personnel file, which he had subpoenaed, would have

led to the discovery of impeachment evidence. The

defendant has therefore failed to meet his burden of

demonstrating prejudice.4 Consequently, the court did

not violate the defendant’s right to due process, and

its denial of the defendant’s motion for a mistrial was

not improper.

II

We next address the defendant’s claim that the court

improperly denied his motion for a mistrial because his

delayed discovery of Biehn’s alleged arrest/suspension

violated his constitutional right to confrontation. As in

part I of this opinion, for the purposes of resolving this

claim, we assume, without deciding, that information

regarding Biehn’s alleged arrest/suspension would have

been admissible at trial for the purpose of impeaching

her credibility. Operating under this assumption, we

conclude that the trial court did not violate the defendant’s constitutional right to confrontation by denying

his motion for a mistrial.

At trial, the court provided the defendant with the

opportunity to take curative action to remediate any

potential harm caused by the state’s failure to disclose

information regarding Biehn’s alleged arrest/suspension. The court informed the defendant that he was

permitted to call Biehn to testify as a hostile witness

during the defendant’s case-in-chief, effectively

allowing him to cross-examine Biehn in light of the

alleged impeachment information. The defendant, however, declined to avail himself of this opportunity, stating that the court did not have the authority to allow

him to question Biehn in the prescribed manner.

Contrary to the defendant’s assertion, however, the

court had the authority to restructure the trial in a

mannerthat enabled him to cross-examine Biehn during

the defendant’s case-in-chief. Indeed,the court’s actions

were aligned with the sound policy that courts are

afforded wide latitude to redress potentially harmful

improprieties in order to avoid ‘‘the drastic remedy of

a mistrial . . . .’’ (Internal quotation marks omitted.)

Camacho v. Commissioner of Correction, supra, 148

Conn.App. 502. Specifically, with respectto the curative

action offered by the court in this case, we note that

‘‘[t]he [c]onfrontation [c]lause guarantees only an

opportunity for effective cross-examination, not crossexamination that is effective in whatever way, and to

whatever extent, the defense might wish.’’ (Emphasis

added; internal quotation marks omitted.) State v.

Pierre, 277 Conn. 42, 81, 890 A.2d 474, cert. denied, 547

U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006).

Thus, the fact that the defendant would have preferred

to cross-examine Biehn at a different time and in a
different manner does not constitute a violation of his

constitutional right to confrontation. We therefore conclude that the court did not improperly deny the defendant’s motion for a mistrial.

The judgment is affirmed.

In this opinion the other judges concurred.

1 The defendant also claims that the state’s failure to disclose impeachment

information violated his right to a fair trial pursuant to article first, § 8, of

the constitution of Connecticut. Because the defendant failed to provide a

separate analysis ofthis claim undertheConnecticut constitution, we decline

to afford it review. See State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d

1225 (1992).

2

In his brief to this court, the defendant also relied on this court’s decision

in State v. Brown, 133 Conn. App. 140, 34 A.3d 1007 (2012), rev’d, 310 Conn.

693, 80 A.3d 878 (2013), in support of his claim that the trial court illegally

sentenced him by imposing a period of special parole that exceeded ten

years. At oral argument before this court, the defendant abandoned this

claim, conceding that it was meritless in light of our Supreme Court’s decision in State v. Brown, 310 Conn. 693, 80 A.3d 878 (2013), which reversed

this court’s decision with respect to the maximum period of special parole,

and which was decided subsequent to the defendant’s filing of his appellate

brief. In light of this concession, we do not review this claim.

3 With respect to Biehn’s arrest, the state contends that, although Biehn

was arrested, the charges against her were dismissed and, consequently,

the state did not have a duty to disclose them because they were erased

pursuant to General Statutes § 54-142a (a). Because we assume, without

deciding, that information existed that the defendant properly could have

used for the purpose of impeaching Biehn’s credibility, we need not address

the applicability of § 54-142a (a).

4 The defendant additionally claims that the state violated Practice Book

§ 40-13 (a), which requires the state to ‘‘disclose to the defendant any record

of felony convictions of the witnesses known to the prosecuting authority

and any record of felony or misdemeanor charges pending against the witnesses known to the prosecuting authority.’’ In light of our determination

that the state did not suppress information pursuant to Brady, we likewise

conclude that such information was not wrongfully withheld pursuant to

Practice Book § 40-13 (a).