Opinion
No. CR01 25067
May 26, 2005
Relying on State v. Floyd, 253 Conn. 700 (2000), and pursuant to Connecticut Practice Book §§ 66-5, 61-10, 60-2(1) and (9), the defendant-appellant moved in the Appellate Court for a rectification and augmentation of the trial court record and requested an evidentiary hearing. The defendant claimed that the state violated its constitutional duty to disclose exculpatory information regarding the credibility and culpability of the state's witness against the defendant. The motion having been forwarded to this court, this court ordered an evidentiary hearing to which the state objected. The state, in the Appellate Court, moved for review of this court's decision to conduct an evidentiary hearing which was granted, but the relief sought therein was denied without prejudice to filing a motion for review following this court's final disposition of the motion for rectification and augmentation. The state also moved in the Appellate Court for review of this court's denial of stay which also was granted, but the relief sought therein was denied. An evidentiary hearing on the defendant's motion for rectification and augmentation was conducted on February 23, 2005. The parties were afforded an opportunity to brief the issues.
FACTUAL BACKGROUND
Subsequent to a four day jury trial in October 2003, the defendant; Hipolito Ortiz, was convicted of conspiracy to commit burglary in the first degree in violation of General Statutes §§ 53a-48 and 53a-101(a)(2); aiding and abetting burglary in the first degree in violation of General Statutes §§ 53a-8 and 53a-101(a)(2); and aiding and abetting assault in the second degree in violation of General Statutes §§ 53a-8 and 53a-60(a)(2). On December 19, 2003, the defendant was sentenced to five years incarceration on count one; five years incarceration (concurrent) on count two; and three years incarceration (consecutive) on count three, for a total effective sentence of eight years incarceration.
The charges resulted from a series of events which began on December 23, 2001, when the defendant and his "common law wife" were interrupted at her mother's house by the victim, who was having an affair with the defendant's common law wife. During the ensuing argument and fight, the victim bit and broke one of the defendant's fingers. On Christmas Day, the defendant told his brother, codefendant Michael Ortiz, what had happened. Michael Ortiz then wanted to beat the victim in retribution. During the early morning hours on December 31, 2001, the defendant, his brother, and the third codefendant, Angel Mundo (Mundo), who had been recruited in New York, drove to the victim's apartment. The defendant remained in his car and the other two went up to the victim's apartment to beat him. The defendant had a walkie-talkie in the car, and the other two had a walkie-talkie with them. The walkie-talkies malfunctioned. During the assault of the victim, the police were called to the scene and arrested Michael Ortiz and Mundo inside the victim's apartment. The defendant was detained in his car outside on the street. After it was determined that the walkie-talkie and a latex glove found in the defendant's car matched a walkie-talkie and latex gloves possessed by the two individuals arrested inside the victim's apartment, the defendant was arrested. (Trial Transcript [Tr.], 10/10/03, pp. 114-21.)
Both Michael Ortiz and Mundo pleaded guilty prior to trial, each in return for an agreed recommended sentence of eight years incarceration. The defendant, Hipolito Ortiz, elected a trial by jury, for which jury selection commenced on October 2, 2003. On the same date, the assistant state's attorney prosecuting the defendant, interviewed the codefendant, Angel Mundo, for the first time. (Hearing Transcript [H. Tr.], 2/23/05, page 26.)
During the jury trial, the codefendant, Mundo, was called as a witness by the state on October 10, 2003. During cross-examination on his possible motives for testifying, the following colloquy occurred:
[Defense Counsel]: You would like to get out of jail as soon as possible; correct?
[The Witness]: Yes.
[Defense Counsel]: I can't hear you.
[The Witness]: Yes.
[Defense Counsel]: And one way you could do that is by testifying in this case; right?
[The Witness]: No.
[Defense Counsel]: No?
[The Witness]: No promises were made for me, no deals were made to me, nothing was made to me.
[Defense Counsel]: What is your expectation?
[The Witness]: I have no expectation. I already copped out to the time I was offered.
[Defense Counsel]: You haven't been sentenced, Mr. Mundo. Don't lie to the jury.
[The Witness]: I didn't say —
MR. MARIANI: Objection. Mr. Crone's characterization of that as a lie, Mr. Crone knows to be untrue. I have the plea transcript for this particular defendant's case.
MR. CRONE: I don't know what he's talking about. This person hasn't been sentenced yet.
THE COURT: I don't know what you're talking about either, Mr. Mariani. You are using very strong language concerning what you know.
MR. MARIANI: There's an agreed upon recommendation. He's already pled guilty. Mr. Crone was provided the transcript of that. He's read it.
MR. CRONE: I haven't been given a transcript. Again, I don't think his guilty plea is something that should be —
MR. MARIANI: I handed him the transcript the other day and he sat here and read it, Judge.
THE COURT: Degenerating quickly here. What's the objection?
MR. MARIANI: That that is a misstatement of fact.
THE COURT: All right. I'll overrule the objection.
BY MR. CRONE: (Cont.):
[Defense Counsel]: You haven't been sentenced yet; right?
[The Witness]: No.
[Defense Counsel]: Your sentencing was scheduled to take place, was it earlier this week or last week?
[The Witness]: The seventh.
[Defense Counsel]: Okay. It didn't go forward; right?
[The Witness]: No.
[Defense Counsel]: It's been postponed until after this case is over; right?
[The Witness]: Yes.
[Defense Counsel]: You're not here testifying because you're a good guy; right?
[The Witness]: No. I'm here testifying because I got taken for a fool. You understand? I'm here testifying because I was told that it was supposed to be done a certain way. Something was supposed to get out of it, after I was incarcerated —
[Defense Counsel]: Do you expect testifying in this case is going to somehow help you at the time of your sentence?
[The Witness]: No.
[Defense Counsel]: You don't expect that?
[The Witness]: I don't expect it. I was never told that.
[Defense Counsel]: Okay. I didn't ask you what you were told, but you've been around a little bit aren't you hoping that by testifying in this case you are going to do a little bit better than you would if you didn't testify?
[The Witness]: No. The only thing I'm hoping that the time I'm going to do, I'm going to share it with the person that brought me to Connecticut.
[Defense Counsel]: Okay. Okay. So then your answer is no?
[The Witness]: Yeah, definitely no.
(Tr, 10/10/03, pp. 62-64, 66).
Subsequently, during legal argument, made outside the presence of the jury, about the admission of the transcript of Mundo's guilty plea, the following colloquy occurred:
MR. MARIANI: Sorry, Judge. It's a transcript of Mr. Mundo's plea. And it is a nine page document.
THE COURT: What's the purpose of the offer?
MR. MARIANI: To rebut the cross-examination that Mr. Mundo, I'm sorry, never changed his statement. It's a straight guilty plea to the burglary in the first degree and conspiracy at burglary first degree. It is an agreed upon recommendation where he's to receive eight years in jail.
THE COURT: You're claiming that it rebuts his testimony that he never changed his statement to the police?
MR. MARIANI: Yes. Well, never changed his statements as to the version of events that particular night. The cross-examination was extensive on the point that since day one until he's sitting here today he's stuck with the version that he was just in there to buy drugs. This document refutes that. I think it is also extremely relevant on the point of the — of any expectations that Mr. Mundo had as to what was going to happen with the disposition of this case. His case based on his testimony and the transcript I would submit clearly indicates that it's an agreed upon recommendation, that he's going to get eight years.
MR. CRONE: I would object, Judge . . .
* * *
MR. MARIANI: Judge, I don't think that it is fair to leave the jury with the impression that Mr. Mundo has — it's not accurate that he's never wavered from his position which was I think what the cross-examination implied until he came on to the witness stand today because he expects some favorable treatment in his case. His case is disposed of in terms of the plea, he has pled guilty. It is an agreed upon recommendation. And it directly rebuts the defense's extensive cross-examination that he is doing this based on some promise or expectation from the state.
MR. CRONE: The case certainly isn't disposed of. He hasn't been sentenced yet. It's not disposed of.
THE COURT: I don't see it as disposed of, Mr. Mariani. I don't think that the transcript does anything. It can be withdrawn before you go in. The state could still go in and say, even though we agreed to X number of years, because the defendant testified we'll agree to Y number of years. Is there anything that would prevent the state from doing that?
MR. MARIANI: I don't believe so, Your Honor.
(Tr., 10/10/03, pp. 90, 92, 93.)
Indeed, at the disposition of Mundo, which took place subsequent to the disposition of the defendant, Hipolito Ortiz, the following sentencing remarks were conveyed to the sentencing judge (Iannotti, J.):
MR. MARIANI: This is Mr. Mundo. He pled guilty to two counts conspiracy first degree, and burglary first degree, back on September 2nd, 2003. The agreed upon recommendation was an eight-year sentence. In the meanwhile, between plea and sentencing, Mr. Mundo did testify in State versus Hipolito Ortiz, and we have brought his cooperation to your attention, and I believe based on the discussion in chambers with Mr. Connelly, that the state is now recommending a six-year sentence. So it's his testimony saved him two years incarceration.
(Tr., 12/22/03, p. 2; Defendant's Exhibit B, Hearing, 2/25/05.) Mundo was sentenced to six years incarceration.
The defendant, Hipolito Ortiz, filed in the Appellate Court on November 30, 2004, the present Motion for Rectification and Augmentation of the Trial Court Record Pursuant to State v. Floyd, 253 Conn. 700 (2000)." Attached to the defendant's motion and brief were a number of exhibits, including complete transcripts of the foregoing and an affidavit from the defendant's trial counsel which provided:
1. The State of Connecticut, represented by Terrance [Mariani], did not disclose a sentencing agreement between the State of Connecticut and Angel Mundo to reduce Angel Mundo's sentence in exchange for testimony against Hipolito Ortiz prior to Hipolito Ortiz's trial.
2. The State of Connecticut did not disclose that it would give Angel Mundo consideration at sentencing by reducing his sentence if he testified against Hipolito Ortiz.
3. If the existence of a sentencing agreement or an agreement for leniency at the time of sentencing of Angel Mundo was available, the defense would have used the information at trial to impeach Angel Mundo.
The defendant in his motion requested a hearing pursuant to CT Page 9961 State v. Floyd, supra, 253 Conn. 700, to determine whether there had been Brady violations at trial. The State opposed having a hearing, as detailed above, and continues to maintain that no hearing was warranted. This court granted the defendant's request, and a hearing on the defendant's motion was conducted on February 23, 2005.
THE HEARING
Alan McWhirter, the public defender for the judicial district of Waterbury, represented Mundo on the underlying burglary and assault charges. The state's attorney, John Connelly, originally handled the prosecution of the three codefendants himself and was adamant that he did not want the cooperation of Mundo. (H. Tr., p. 100.) In the judicial district of Waterbury, the state's attorney personally controls all Part A and some Part B sentencing offers to defendants. (H. Tr., p. 108.) The sentencing offer to each of the three codefendants involved in this case was eight years, which was set by the state's attorney. The state's attorney assigned assistant state's attorney Terrence Mariani (Mariani) to the cases when they were called in for trial. All three codefendants were offered plea bargains of eight years incarceration; Michael Ortiz and Mundo accepted the offers and pleaded guilty. (H. Tr., p. 108.)
Although the state's attorney was adamant that he did not want cooperation from Mundo, the public defender concluded from the beginning that if the defendant, Hipolito Ortiz's case ever went to trial, the state might find Mundo's testimony to be useful in its prosecution. (H. Tr., p. 86.) His rationale was that Mundo and Michael Ortiz had been apprehended inside the victim's apartment while committing the criminal acts, whereas the defendant, Hipolito Ortiz, was outside in a vehicle. Once Mariani began preparing the case against Hipolito Ortiz for trial, he called the public defender to determine if Mundo was still interested in cooperating. (H. Tr., p. 89.) Thereafter, Mariani met with Mundo and his attorney in the lockup at the Waterbury courthouse. An agreement was reached that the prosecutor would bring Mundo's cooperation to the attention of the sentencing judge. (H. Tr., p. 92-93.) The public defender testified that "when my client agreed to testify in Mr. Hipolito Ortiz's trial, the only understanding that existed was that his — the fact of his testifying would be brought to the attention of the sentencing judge at the time my client was sentenced. There was no discussion whatsoever as to numbers, promises of any kind. Simply that his act of testifying would be brought to the attention of the sentencing judge for whatever benefit the sentencing judge might feel was appropriate." (H. Tr., p. 88.)
The defendant's trial attorney was unaware and had not been told of any agreement between the state and Mundo's attorney to bring Mundo's cooperation to the attention of Mundo's sentencing judge during the defendant's trial. The defendant's trial attorney also was unaware of this agreement at the defendant's disposition, although Mariani stated on the record just prior to the defendant's sentencing that the state would bring Mundo's cooperation to the attention of Mundo's sentencing judge. (H. Tr., pp. 151-52.)
DISCUSSION
The question presented to this court, as elucidated by the evidence adduced at the hearing, is whether pursuant to State v. Floyd, supra, the failure to disclose the existence of this agreement with the witness and the witness's attorney to bring the witness's cooperation to the attention of the sentencing judge constitutes a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
In Brady v. Maryland, supra, 373 U.S. 87, the United States Supreme Court held that "the suppression by the State of evidence favorable to an accused upon request 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." A Brady violation occurs when it is demonstrated "(1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence was material." (Internal quotation marks omitted.) State v. McIntyre, 242 Conn. 318, 323 (1997).
Here, the state concedes that it did not disclose to the defendant's attorney, prior to the defendant's trial, that Mundo's original plea agreement had been "modified." (State's Hearing Brief, dated April 7, 2005, p. 17.) In fact, the modification or agreement was not disclosed to the defendant's attorney or to the court prior to the defendant's trial, during the defendant's trial, or during the defendant's sentencing. Mundo's agreement with the state that his testimony would be brought to the attention of his sentencing judge came to light during the hearing on the defendant's rectification motion. This evidence of an agreement had been suppressed.
As to whether this evidence was favorable to the defense, "[i]t is well established that [i]mpeachment evidence as well as exculpatory evidence falls within Brady's definition of evidence favorable to an accused . . . A plea agreement between the state and a key witness is impeachment evidence falling within the definition of exculpatory evidence contained in Brady." (Citations omitted; internal quotation marks omitted.) State v. Henderson, 83 Conn.App. 739, 744, cert. denied, 271 Conn. 913 (2004.)
Finally, in determining whether there has been a Brady violation, this court must decide whether the nondisclosed modified plea agreement was material. "The test for materiality is well established. The United States Supreme Court . . . in United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), [held] that undisclosed exculpatory evidence is material, and that constitutional error results from its suppression by the government, 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. The United States Supreme Court recently discussed several aspects of materiality under Bagley that bear emphasis. See Kyles v. Whitley, 514 U.S. 419,434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995.) The court explained that a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal . . . The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence . . . The United States Supreme Court also emphasized that the Bagley test is not a sufficiency of evidence test . . . A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict . . . One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a difference light as to undermine confidence in the verdict . . . Accordingly, the focus is not whether, based upon a threshold standard, the result of the trial would have been different if the evidence had been admitted. [The court] instead concentrate[s] on the overall fairness of the trial and whether nondisclosure of the evidence was so unfair as to undermine [the court's] confidence in the jury's verdict. United States v. Bagley, supra, 682. (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Wilcox, 254 Conn. 441, 453-54, 758 A.2d 824 (2000.) Simply put, [w]here there is no reasonable probability that disclosure of the exculpatory evidence would have affected the outcome, there is no constitutional violation under Brady." Internal quotation marks omitted.) State v. Boyd, 89 Conn.App. 1, 24-25 (2005).
In the present case, there is no reasonable probability that disclosure of the exculpatory evidence would have affected the outcome. The exculpatory evidence which the state failed to disclose was an agreement to bring the witness' cooperation to the attention of the witness's sentencing judge. Particularly troubling to this court are the prosecutor's repeated references during the trial proceedings to the "agreed recommendation" of an eight year sentence for the witness while at the same time having this undisclosed agreement with the witness and the witness's attorney to bring the witness's cooperation to the attention of the sentencing judge. See Hayes v. Brown, 399 F.3d 972 (9th Cir. 2005) (en banc) (holding that evidence of undisclosed deal with witness's attorney was material where witness's testimony regarding defendant's confession was critical to prosecution's case and where all other evidence against defendant was circumstantial.) The repeated references to an agreed recommendation were misleading. However, in the colloquy with the court held outside the jury's presence, as referenced above, the prosecutor did admit that the recommendation could be changed prior to disposition. Additionally, at the defendant's disposition, the prosecutor did inform the court that he would make the sentencing court aware of Mundo's cooperation at Mundo's disposition.
This court, having presided over the trial proceedings, has carefully considered the evidence adduced at the hearing on the defendant's motion, vis-a-vis, the evidence adduced at trial. At trial, the witness, Mundo, was not portrayed as, nor did he pretend to be anything other than what he was, namely, a drug addicted thug from Brooklyn, New York, with a lengthy criminal record. Mundo's criminal record consisted of some 19 pages. He admitted to using aliases five or six times when arrested by the police. He testified that on December 31, 2001, he had been addicted to heroin for four years and used cocaine when he had the money. He admitted to using heroin just hours before the events in question. His numerous felony convictions included convictions for narcotics offenses, larcenies, grand larceny, larceny on school grounds, burglary, possession of burglary tools, fraud, and robbery. Mundo was subjected to cross-examination about the details of the underlying offenses charged in this case, his use of a false name when arrested, his concoction of a false story for the police, and his knowledge of firearms. In short, this cooperating witness was cross-examined extensively and thoroughly by a veteran trial attorney. (Tr. 10/10/03, pp. 46-108.)
This court finds that, given the comprehensive cross-examination of the witness, there is no reasonable probability that, had the agreement been disclosed to the defense, the effectiveness of the cross-examination of Mundo would have been enhanced. This court finds that the defendant, even in the absence of full disclosure, received a fair trial. This court's confidence in the outcome of the jury trial is steadfast.
Likewise, there is no reasonable probability that had the agreement been disclosed to the defense, the result of the disposition or sentence would have been different. The court and the defense were aware of the substance of the agreement prior to the actual sentence imposition and were aware during the trial that the state's recommended sentence was subject to change. Again, the court's confidence in the outcome of the disposition remains steadfast.
Accordingly, this court will find that the defendant, Hipolito Ortiz, has failed to establish that the suppression of the agreement between the state and the witness to bring the witness's cooperation to the attention of the witness's sentencing judge is material. Thus, there was no violation of Brady and its progeny.
CONCLUSION
Based on all of the foregoing, this court, having conducted a hearing to rectify and augment the record pursuant to State v. Floyd, supra, 253 Conn. 700, finds no violation of the principles of Brady v. Maryland, supra, 373 U.S. 87, which would undermine the court's confidence in the outcome of the trial proceedings. There is no reasonable probability that disclosure of the exculpatory evidence would have affected the outcome.
The Court
Michael Hartmere, Judge