*1 is reversed and the judgment case remanded plaintiffs to grant direction motion to submit evidence, additional and for a plain- new trial appeal. tiffs justices
In opinion this the other concurred. OF STATE CONNECTICUT v. RITA DECARO
(SC 15891) Norcott, Borden, Katz, McDonald, Palmer and Js. *2 officially 31, 22, 2006 released October Submitted on briefs June appellant Philip a Russell filed brief (defendant). supervisory C. state’s attor- Marks,
Susan assistant ney, appellee (state). filed brief for the
Opinion PALMER, In v. DeCaro, J. State 252 Conn. A.2d 800 (2000), rejected this court all but one appeal by claims defendant, raised DeCaro, Rita who had convicted, jury trial, been after a of nine counts of forgery in the second degree violation of General Statutes 53a-139 id., respect § See 231-32. With (a).1 claim, namely, defendant’s remaining that her sixth rights amendment to confront witnesses and compul- sory process2 were violated on the basis of trial quash portion court’s decision of a duces tecum (subpoena) *3 that she had served on her former supervisor seeking relevant to case, documents the we agreed with the defendant the that trial court’s decision quash portion subpoena the was improper. id., See 258. Because, however, we could not determine, on the basis of the record, trial court whether impropriety had resulted in a violation the defen- sixth dant’s amendment we rights, remanded the case to the trial court for hearing on that Id., issue. 259. Following that the trial hearing, court determined that received, timely defendant had in a manner, documents that the subject were of the por- contested tion and, therefore, that the complied had been with. We agree with the trial court and further conclude that the defendant suffered no deprivation of her sixth amendment rights. Accordingly, we affirm judgment of conviction.
In v. DeCaro, supra, State 252 Conn. we set forth facts that the following jury reasonably could have found. “At all relevant times, defendant worked guilty larceny found the defendant not of three counts of in degree (a) (4). second in violation General § Statutes 53a-123 provides The sixth amendment to the United States constitution in rele part: prosecutions, enjoy vant “In all right criminal shall the accused against ... to be confronted the witnesses him . . . to have [and] compulsory process obtaining for in . . witnesses his favor . .” department . . building for the . clerk as account Westport (town)]. the town (department) [of per- building processes applications all department depart- at the employed defendant was mits. While the was the supervisor immediate ment, her [town] Smith, turn, reported official, Stephen Smith. the defen- Gough. Among tasks, other chief, fire Richard per- processed the permit fees. She also dant collected computer and applications department’s on the mit permit. computer generated permit A each printed out it was valid, however, signed until not become would copies . . Hard department . officials. by one of the file folders kept were in manila permits of all signed prepared offices. The defendant also in the permits issued reports accounting . . for the periodic by cash, particular or collected, check over and funds usually every once one or two weeks. These period, time controller, Donald reports were used the town deposit. When the defen- Miklus, prepare the fees for ill, reports were gener- dant went on vacation was no reports her return. Smith did not review the ated until prepared for Miklus. complained problems “The defendant often about *4 computer program, she was with the includ- having generate in the function used to the ing inaccuracies Specifically, complained reports for Miklus. she reports, permits she these often would when created complained The missing be from the list. defendant in problem Gough, type about this who told her complained also missing permits. difficulty information retrieving regarding that she had years. fiscal permits prior from April, 1994, “In an individual contacted the control- check that his bank had returned. ler’s office about a individual issued the check to the Although the department permit in of a October, 1993, payment in presented for payment the check had been fee, April, his bank until 1994. While investigating the reason delay, for this the controller’s office discovered that a substantial number of deposited checks certain during periods correspond did not permits listed on reports periods. for those Smith, According deposited checks should have been during the same period permits that the were issued. The controller’s office also found numerous instances in permit which a was listed on a a report particular for period, but the permit for by fee had been covered a check in the name of someone other than the permit applicant, and check permit corresponding depos- had been in period. ited a later Miklus informed both Smith and Gough irregularities expressed of these also and his unusually concern that small amounts of cash had been department included in recent deposits. Neither Smith previously nor Gough had been aware existence any undeposited cash checks, any discrepan- or of cies between the in a period particular which fee was period received and the in which that fee had been deposited. May
“After the close of business on or about 11,1994, Gough conducted search of the offices. During the course he search, envelope found in the defendant’s desk containing pad steno approximately $2593. eighty-six checks totaling checks bore dates ranging December, 1993, from through April, 1994. also in Gough found cash the defen- separate $82 dant’s desk two locations totaling $30, respectively. reporting period, the next
“During Miklus and Gough $112 noted that in cash had been received the defen- dant in payment permit fees. Miklus and Gough *5 waited to if see the cash and checks that Gough discovered in the defendant’s desk be would included in the defendant’s next report. When the defendant had failed to include the checks or cash in report, her Gough, the defendant. meet with arranged to Smith and Miklus May 20, which occurred meeting, At that corre- did not why the checks was asked defendant report. The defendant on the permits listed spond attrib- discrepancy and unaware of the that she was said heavy When workload. any discrepancy to her uted why deposited, and it was not about the cash asked it make have used that she must the defendant said check. overpaid with a who had change someone any was unaware also said that she The defendant reporting periods. She undeposited from earlier checks depart- in the only remaining indicated that the checks been be those checks that had ment offices would Miklus period. reporting received the current during offices they search the suggested then there were checks there that should to see whether period. deposited during prior a have been defendant an “Gough, gave Smith and Miklus checks, to look for such but she claimed opportunity from any. Gough to be unable to find then retrieved that he had found envelope the defendant’s desk the pad. and steno earlier, containing the checks envelope from but Gough, defendant tried take why he handed it to Miklus. The defendant was asked they envelope. the checks were in the She stated that corresponded permits yet reports. reflected in her pad, Miklus retained the checks and the then asked produce correspond- permits defendant if she could envelope. agreed the checks in the ing thereafter, so, provided Gough to do and some time thirty-two be the documents that she claimed to thirty-two corresponding permits. None of docu- official. ments, however, signed controller’s office reviewed the “Gough $3140 thirty-two documents, which reflected a total of fees, they legitimate to determine whether were they in the corresponded whether to the checks found *6 September Gough defendant’s 30, desk. On 1994, and meeting Miklus held another with the defendant at they reported findings regarding which their the docu- Although ments. their review indicated that some of permits legitimate they were in that had not been previously, projects issued others related to for which general already prepaid applica- contractor all Specifically,approximately permits, ble fees. ten of the representing corresponded $326 of fees, worth to work permits previously for which had been issued at no general prepayments fee aas result of contractors’ for anticipated work. Thus, subcontractor there was no permits reason for such Moreover, have been issued. none of the checks found in the defendant’s desk thirty-two permits. matched explanation, “When asked for an the defendant reported that she had checked the manila file folders preparing the documents. She that, instead, indicated only computer, provided she had consulted the permits knowledge, yet that, to the best her had not why been issued. The defendant also was asked there deposited recently. had been so little cash The defen- responded only department dant that the received cash Regarding in ‘dribs and drabs.’ the cash fees that the May, had received in 1994, the defendant explain why deposited. could not that cash had not been February, police questioned “In the defen- discrepancies irregularities. dant about various deputy, Thereafter, defendant went to Miklus’ John point Kondub, to out that there was cash in the office, in three different locations, that had been received in payment photocopying department records. She going told Kondub that she ‘wasn’t to take the blame money being for this here.’ Kondub then collected and $367.85. counted cash, which totaled The defendant also told Kondub that Smith knew cash, about the Smith had used some of it for a officials’meet- the defendant had authorized and, finally, that Smith ing buy flowers for money from the fund to take some *7 of he was aware Smith stated that a sick volunteer. he had but that payments photocopying, the cash on a properly, was deposited that the cash assumed that he had acknowledged Smith also regular basis. for the flowers out pay the defendant authorized fees. photocopying collected for the cash that had been employment from her “The defendant was terminated 18,1995. Gough then hired April with the secretary permit the manila temporary go through a year 1993, report listing, for fiscal prepare files and issued, the issuance permit each that had been alia, inter copy the file had date, charged, the fee whether report permits signed. The indicated that been in For $351,911 issued for a total of fees. been deposited, $358,557 in fees had been year, same fiscal Id., $6500.” approximately excess of representing subsequently was arrested and 233-38. defendant in the forgery with nine counts of second charged larceny degree. and three counts of in the second degree juryA trial thereafter ensued. DeCaro, 229, v. Conn. sets opinion
Our in State proce- relevant facts and following forth the additional “On Janu- history relative to the defendant’s trial. dural trial, ary 28, 1997, day the second the defendant appear him to on Smith that directed served day with him certain bring in court on that same Specifically, and documents. records three produce following catego- Smith to directed ries of materials: manuals, Any procedure and all operators]
“A. memorand[a], or written instruments guidelines, . in . . permit procedure regarding building from 1993 to 1995. [department “B. All computer . . records . [department from the later of Permit Building 52260 or June [No.] present 1993 until the date. Any correspondence,
“C. statements, and/or memo- randa to and/or from possession [the defendant] . the . . [d]epartment.” (Internal quotation marks Id., omitted.) 251.
“The . . claimed that she had a sixth right amendment to obtain the materials identified in [part A the [Although the state had moved of] quash portion subpoena, the state never- objection indicated that it had no to the defen- theless] *8 request dant’s the documents thereunder. sought stated, The trial however: T do. [court] [The defendant] charged is with the of [larceny crimes in the second degree and forgery in the second degree]. She is not with charged using computer improperly or the jive I up records didn’t think right. [part] A is irrelevant and immaterial.’ The later court stated: ‘[The defendant] charged very simple with a charge. charged She’s money and I taking falsifying documents. see no to reason have this court listen to or have the have operator’s to read procedure manuals guidelines [or] I’m deny .... to . . . . .’” going [part] A . . Id., 251-52. jury subsequently the guilty found defendant
the forgery
guilty
but not
charges
larceny charges.
The trial
judgment
court rendered
in accordance with
jury verdict,
appealed,3
and the defendant
claiming,
alia,4
inter
sixth
her
amendment
to confront
rights
3
appealed
judgment
Appellate
The defendant
from the
to
conviction
Court,
appeal
pursuant
and we transferred the
to this court
to General
(c)
§
§
Statutes 51-199
and Practice Book 65-1.
appeal,
(1)
In her
the defendant also claimed that
the evidence was
forgery charges, (2)
to
insufficient
sustain her conviction on the
her convic
forgery charges
on
tion
must be vacated because that conviction was
acquittal
larceny charges,
(3)
her
inconsistent with
and
the trial court
improperly
request
or, alternatively,
denied her
for a mistrial
for a curative
response
allegedly improper
instruction in
to
comments that the senior
process6 were violated
compulsory
to
witnesses
decision
the trial court’s
on the basis of
DeCaro,
State
v.
explained
As we
A of the
claimed, specifi
supra, 252 Conn.
quashed
improperly
cally, that “the trial court
[had]
sought
because the materials
part
A of the
operator[’s] manuals,
and all
thereunder, namely, ‘[a]ny
[a], or written
memorandum
procedure
guidelines,
permit procedure in the
regarding
instruments
1995,’
were central
. . .
from 1993
[department
her in cross-
likely would have assisted
her defense and
empha
The defendant
state’s witnesses.
examining the
directly
charges related
forgery
the fact that the
size [d]
reports
did not
permits
preparation
to her
permits.
for the
defen
correspond
payments
were
forgeries
dant
. .
that the claimed
maintain[ed]
defraud,
injure
by any
deceive or
not motivated
intent
overwork,
disor
but, rather,
were the result
town,
per
attempt
an honest
to reconcile
ganization and
defendant,
According
mits with the checks.
policies cov-
as to
therefore,
information
during
arguments.
attorney
closing
State v.
had made
assistant state’s
indicated,
rejected
DeCaro,
previously
supra,
232. we
have
we
252 Conn.
As
*9
they
claims;
239, 242, 245; and, therefore,
id.,
are not the
each of these
subject
opinion.
of this
5
primary
right
confrontation is the
to cross-
“The
interest secured
constitutionally
Compliance
guaranteed right
....
with the
examination
present
requires
be
to
the
to
that the defendant
allowed
cross-examination
appropriately
relating
jury
it
draw inferences
with facts from which
could
witness’reliability.
inquiry
partic
of
to
. .
sufficient
into
the
[Preclusion
motive,
may
tending
interest
result in a violation
ular matter
to show
bias and
requirements
. . .
of the sixth amendment.
of the constitutional
[Further
deprive
may
more],
the
of
the
of defense evidence
his
exclusion
present
(Internal quotation
right
marks omit
constitutional
to
a defense.”
330,
ted.)
Brown,
338,
(2005).
869
State v.
Conn.
A.2d 1224
compulsory process
right
right
to
includes the
“The sixth amendment
witnesses,
compel
attendance,
testimony
and to
their
if
offer the
defense,
plain
present
necessary,
right
right
the
is in
terms the
[and]
present
...
so that it
the defendant’s version
the facts
quotation
may
(Internal
omitted.)
the
lies.”
marks
State
decide where
truth
Cerreta,
260-61,
(2002).
The state maintained that the trial court had not its abused discretion quashing part subpoena A of the compliance because “would unduly have been burden- some”; id.; and because the defendant’s request was nothing more than a “fishing expedition.” (Internal quo- tation omitted.) Id., marks 256. The state further main- tained that the defendant had made insufficient showing that the part materials under A sought would have been useful to her defense “because she ha[d] any demonstrated that the subject was policies procedures.” Id. applicable After reviewing legal principles, we concluded that the trial court improperly quashed part A of because the materials sought thereunder were highly relevant to the defendant’s claim that her any conduct did not violate official department policy and because the request suffi- ciently particularized unduly and not burdensome. See id., We present 258. then stated: “Nevertheless, record, we cannot determine whether the trial court’s decision to A violated the constitutionally protected defendant’s rights under the compulsory process or confrontation clauses. Because prohibited the trial court obtaining defendant from sought part materials under A of subpoena, we do not know whether such materials If exist. such *10 policies procedures written exist, do dowe know they may the extent to which support the defen- claim conduct, sloppy dant’s that her though or negli-
467 not know Moreover, we do was not criminal. gent, poli- or of the followed some all the defendant whether facts, we of such all. In the absence cies, or none at any, if the defendant harm, determine the cannot [that produce those of the failure to as result suffered] if hand, On policies and the other procedures. written guidelines, no such written department maintained the trial demonstrate that defendant still must then the subpoena so part A of the quash decision to court’s fact, notwithstand- ability establish that inhibited her any policies written of the absence other evidence ing a new trial.7 . . she entitled to procedures or per- circumstances, therefore, we are “Under the foregoing determination of the that an initial suaded which will by court, the trial issues should be made a full to do so on the basis of opportunity have the Thereafter, developed after a hearing. factual record whatever parties present will able to to this court be whether the may appropriate be arguments regarding amendment were violated rights defendant’s sixth harm as a of the trial court’s whether she suffered result part quash decision to A of the issued Id., we Accordingly, 258-59. (Citation omitted.) Smith.” hearing trial court for a remanded the case to the quash part the issues raised that court’s decision to subpoena. A of the attorney senior assistant state’s hearing,
At that that, notwith- the trial court attorney) informed (state’s A of standing the court’s decision attor- town, at the direction of the state’s subpoena, the part in a manner with ney, had, complied timely in fact, attorney Specifically, the state’s A of the respect regarding the “other evidence With our observation DeCaro, supra, any policies procedures”; v. or State absence 259; was unaware of we that Smith had testified that “he Conn. noted Id., n.23; policies procedures.” see also footnote 11 of [such] opinion. this
468
explained requested provide that he had that the town portion sought him with the documents under that of attorney so, the The town did and the state’s then made those documents available to defense coun- sel. Associates of defense counsel's firm reviewed them attorney’s attorney in the state’s office. state’s also pro- the informed court that defense counsel had been vided with in those documents advance of his cross- examination of Smith and that certain of those docu- by ments had been introduced into evidence Although agreed defense.8 defense counsel with the attorney’s representations, state’s he maintained that the defendant nevertheless was entitled to a new trial quash part because the trial court’s decision to A of the subpoena compromised ability the defendant’s policies establish that the had no written procedures regarding processing per- building of Following hearing, mits.9 the trial court determined part complied A had been with and, therefore, that no further action the trial court necessary. parties supplemen- Thereafter, we ordered the to file respect tal whether, briefs in view of the facts hearing, judg- and circumstances adduced at the ment of should conviction be affirmed.10In her brief, 8 produced respect part With to the materials in accordance with A the of subpoena, attorney the state’s identified ten full exhibits defendant had introduced into evidence and two exhibits that had been marked only. identification that, argued produced The defendant also because none of the documents part setting under depart A the was written material forth the policies procedures regarding processing permits, ment’s required, pursuant opinion DeCaro, the trial court was to our in earlier express finding make as to whether its decision to A the subpoena had, compromised fact, ability the defendant’s to establish the policies. court, however, nonexistence those declined to make finding. such requested argument Neither state nor the oral defendant on that issue, and we did not order it. new entitled to a that she is maintains actually of whether the defense because, regardless trial *12 A the part under of sought documents received the were violated rights amendment subpoena, her sixth quash part to trial decision on the of the court’s basis contends In the defendant particular, A the subpoena. of compromised quash unduly the court’s decision to sub- regarding the ability questions her to ask certain policies written documents, including whether poenaed permit department’s building respect with existed why they so, produced. had not been procedures and, if opportunity to asserts that the The defendant further likely would have questioning have in such engaged by possible it more making bolstered her defense of her to have discredited one or more the state’s wit- counters that the defendant’s constitu- nesses. state the defendant tional were not violated because rights subpoenaed because, documents and did receive the trial, opportunity at counsel was afforded an defense inquire particular— inquire to did of Smith in —and policies procedures department’s about the and con- of cerning processing building permits.11 following excerpt of is an defense counsel’s cross-examination of subject part regarding of A of the Smith the documents that were the subpoena. “ you way, And where received a [Defense Counsel]: was — today defense, you prior coming here from the did not? Yes. “[Smith]: you day you subpoena, got And on the were Counsel]: “[Defense procedures policies handling asked to search for and in connection with the Honor, you yes, paragraph were Your A. cash and asked — Attorney]: going object, I am Your Honor. You struck that. “[State’s against I on those.” “The Court: ruled [the defendant] Whereupon was excused. is, asking I whether he But what am witness Counsel]: “[Defense produce things whether, records, in his called those review of [on] up anything, going he came and then I am to ask him what those procedures documents, going are. I’m for the and he is under call obligation brought no to have them here. I am aware of the court’s [decision subpoena], A the of what I am I am also aware entitled to cross-examination, having ask this man under direct examination focused it, policies procedures department. good for a bit of on the of the agree We with the state that, under the circum- stances, the defendant suffered deprivation no of her sixth amendment It rights. undisputed is that the defen- timely dant received, manner, the documents that part she A sought under Moreover, defense opportunity counsel to cross-examine the state’s witnesses concerning knowledge their policies procedures concerning pro- cessing of building permits, and defense counsel took advantage opportunity of that in connection with his cross-examination Smith. See footnote 11 of this opinion. Thus, even though the trial had quashed court part A of the subpoena, there in the record nothing *13 to indicate that the court limited the defendant’s inquiry into the existence or nonexistence of such poli- written procedures; cies or indeed, as defense counsel’s cross- examination of Smith reflects, the court did do so. The record also contains suggestion no that the court would have opportunity limited the defendant’s to call any witness or witnesses of her choosing pur- Attorney]: phrase question But he’s to “[State’s not entitled his as if this obligated bring today, man is to that doing. stuff here which is what he was agree you. question, counsel], Court: “The I There’s no that [defense you procedures department. building can ask him all about the yesterday, I p.m.], And can ask him “[Defense whether Counsel]: before [3 looking he was for those documents. you that, unfair, “The Court: I can think ask too. But I think it it’s prejudicial my jury, up bring in mind to the to which I’veruled on. question, you.” I will not ask that “[Defense Your Honor. Counsel]: Thank Whereupon brought back into the courtroom. department Does the “[Defense of Counsel]: official of the town 1993, 1994, any policies . procedures . back in did it have for the money handling of taken? policies? Written “[Smith]: Yes. “[Defense Counsel]: any.” I’m not aware of “[Smith]: that, although question We gener- note defense counsel continued to Smith ally deposits about the manner in which the handled refunds and computer problems pertaining and about some documents that had been pursuant produced subpoena, question he did not Smith further about department’s policies procedures permits. regarding building and from the defen- inquiry. same Aside pose making assertion that speculative and dant’s unsubstantiated part A of the quash court’s decision to the trial counsel’s cross-examination compromised defense has witnesses, the defendant or more of the state’s one from resulted arguably no harm that even identified subpoena.12 Indeed, A of the that decision timely receipt of the docu- of the defendant’s because part subpoena, A of the sought ments that she had under prohibit did not or otherwise and because the trial court opportunity testimony to adduce limit the defendant’s policies that were the concerning procedures subject portion subpoena, of that we can conceive could have from the court’s no harm that flowed quash. Consequently, the defendant was not decision her confront deprived rights sixth amendment compulsory process. witnesses judgment is affirmed. opinion BORDEN, KATZ, this NORCOTT and In Js., concurred.
MCDONALD, J., I to adhere to dissenting. continue DeCaro, my dissent in State v. 252 Conn. 745 A.2d *14 case, In that I would have ordered a new (2000). 800 improperly that trial court upon finding trial a the quashed subpoena rele- seeking highly the defendant’s procedures building permit guidelines. vant contrary, a further majority, hearing the ordered which was held in 2001. court, before the trial appears the trial court’s The thrust of defendant’s claim be the subpoena ability A to establish decision to limited her department procedures policies concerning the no written or the had permits. explained, processing building the As we have defendant has persuasive support note, provided argument We more no her contention. any suggest over, that the that the record devoid of evidence procedures policies; indeed, bearing or the evidence on that such clearly contrary. opinion. question quite 11 ol' this is to the See footnote majority quashing now holds that the of the sub- poena was harmless defendant, because the Rita dispute requested receiving DeCaro, did not the mate- attorney (state’s rial from the senior assistant state’s attorney). disagree I because real there is a difference obtaining between subject directly all the town’s documents supervisor
from the town acquiring attorney from the state’s all of upon attorney’s request, that, documents the state’s gave attorney. Simply the town to the state’s because attorney gave the state’s the defendant all of the docu- attorney ments that the state’s had received does not necessarily everything mean that town turned over it had. Defense counsel stated to the trial in court that the documents made available compliance,” “seemed to be in and that he had “no dispute” attorney’s factual basis on which to the state’s representation accepted and therefore it. Defense coun- stated, however, sel also that he did not know whether he “did” “didn’t” receive all of the information. Because the defendant did not refute the state’s attor- ney’s representations regarding subpoenaed docu- compliance ments, the court found that there was full finding with This was anot reasonable dispute as the defendant could the town’s full com- pliance without and cross-examination of town officials. The defendant faced “Catch-22”1 from escape. which there no Miklus, Donald the town controller, testified before jury adequate that there had been cash and check place. management controls in The defendant neverthe- asking Stephen less was restricted from Smith, supervisor, defendant’s before the he, whether 1Catch-22 is defined as situation in which a desired *15 “[a] outcome or impossible inherently illogical solution is to attain because of a set of rules Dictionary Heritage English Language or conditions . . .” American of the (4th 2000). Ed. and found for had searched subpoena, to the response regarding or guidelines building procedures presented was no evidence Thus, of cash. handling produce under jury from the witness to the procedures no such written to show that such records before the Smith testified existed.2 guidelines or policies any written was “not aware” of only that he Docu- answer.3 equivocal thus procedures, giving or by sub- required are not when produced ments that evidence of strongest be, course, poena would I that the would conclude their nonexistence. testimony was preju- present such was entitled she could not. diced because by the state be claimed that disclosure It cannot presented material to be seeking to a bar sixth amendment that the I would conclude jury. compulsory process right guarantee favor witnesses in a criminal defendant’s obtaining obtained from of documents met such disclosure not subject secondary source on com finally the restrictions conclude that I would testimony process deprived the defendant pulsory have been material plausibly would from witnesses United States See, e.g., her defense. and favorable to 868, 102 Ct. Valenzuela-Bernal, 3440, S. v. 458 U.S. I would order a Accordingly, 1193 (1982). 73 L. Ed. 2d new trial. hearing that there were no such the 2001 Defense counsel stated at material,
procedures guidelines in and the court stated that or the disclosed attorney that, about after which it would have to “bother” the state’s attorney reply dispute counsel’s did not defense statement. state’s majority opinion. 11 of the See footnote