36 Conn. App. 774 | Conn. App. Ct. | 1995
The defendant appeals
The jury could reasonably have found the following facts. On July 15, 1982, at approximately 1:30 a.m., two men entered the house of Edward DiLauro and Henrietta DiLauro at 855 Prospect Street in Hamden. Henrietta DiLauro, a seventy-three year old woman, was asleep on the couch on the first floor. One of the men placed his hand over her mouth and she was lifted from the couch and carried into the bathroom. The men threatened to kill her if she screamed. Her mouth was stuffed with tissues and she was bound and put under the sink. They took her three rings and stated that they came from Harlem and needed money for drugs. They wore masks and gloves. She could not tell their race. From the bathroom she could see them carrying her belongings from the house to the garage, including a television from the master bedroom, two oriental rugs from the foyer and liquor from a cabinet. They packed her car, took the car keys, but had trouble starting the car.
After she was able to free herself, she went upstairs where she found her husband with a bloodied pillow over his face.
The police were called and Hamden police detective Andy Polzella responded at approximately 3:30 a.m. Shortly thereafter, Officer Ronald Durkin arrived to assist in the investigation. They spoke to the victims
Later that morning, Henrietta DiLauro gave a statement at police headquarters. She could not identify the robbers or determine their race. She gave a list of the items stolen from the house and her person, which included a bankbook from the Connecticut Savings Bank.
Later on that same day, July 15, 1982, a woman entered the Connecticut Savings Bank with the DiLauro bankbook and approached the teller, Terry Gambardella. The woman sought to withdraw money from that account but since the bank signature card did not match the woman’s identification, the woman was asked to wait while Gambardella consulted the head teller. The woman departed, leaving a credit card and the bankbook. Later, Gambardella identified a police photograph of Carol Varella as the person attempting to withdraw money from the DiLauro account.
Varella’s testimony estabished that on July 15,1982, she was living in New Haven with Diane Reddick, the defendant’s sister, and Kenny Sanders. At approximately 8:30 a.m., Varella was awakened by Sanders and the defendant. Sanders had a bankbook and a Visa credit card. He told Varella that he and the defendant had obtained them earlier, and he asked her to use the
On July 23,1982, the police seized the “junk” jewelry and Varella was arrested. She saw the defendant once after July 15, 1982. They spoke of the police investigation of the incident and the defendant said he would not let the police catch him. At the time of trial in 1992, she had not seen the defendant for ten years.
Arrest warrants were issued for the defendant and Sanders, and the police attempted to locate the defendant at his address in July, 1982. Several stakeouts at this and other locations proved unsuccessful. The
The defendant’s fingerprints were found on the Jamaica bankbook and on the Greyhound map found at the scene of the crime. The defendant’s fingerprints also matched those on a fingerprint card issued to James Dawson at the Chicago police department. An inspector from the state’s attorney’s office, Raymond Brodeur, contacted Sergeant Thomas Barnes, records supervisor of the Chicago police department. Barnes sent a sworn affidavit along with certified copies of the fingerprint card and a mug shot of James Dawson.
I
The defendant first claims that the trial court improperly failed to strike the testimony, pursuant to Practice Book § 752,
The defendant’s claims regarding each of the two witnesses will be addressed separately.
A
The following facts are relevant to the defendant’s claim regarding Varella. Following Varella’s direct tes
The defendant claims that the state’s failure to produce Varella’s taped statement infringed on his constitutional right of confrontation. He farther claims that the state failed to prove that the nonproduction of the statement was harmless.
Our Supreme Court has set forth the analysis to be applied where the state is unable to comply with the mandate of Practice Book § 752. “[I]f a case involves intentional, but not bad faith, destruction of the statement of a state’s witness, an automatic sanction of striking that witness’testimony is not required.
The state’s failure to provide material to which a defendant is entitled under Practice Book § 752 may “adversely affect a defendant’s ability to cross-examine . . . witnesses and thereby infringe upon his constitutional right of confrontation.” State v. Williamson, 212 Conn. 6, 20, 562 A.2d 470 (1989). In determining whether cross-examination has been impaired, our Supreme Court has considered such factors as the trial or reviewing court’s access to the unproduced material, the declarant’s adoption of a counterpart transcript within a short time after making the statement, and the extent to which the defendant’s conviction rested on the testimony of the witness whose pretrial statement was destroyed. State v. Belle, supra, 215 Conn. 269-70. It is also appropriate to consider whether other impeachment material was available to the defendant. State v. Cerilli, 222 Conn. 556, 580, 610 A.2d 1130 (1992). Absent a showing that a defendant’s constitutional right of confrontation was violated by the destruction, the state need prove only that it was more probable than not that the nonproduction was harmless. Where the inability to produce a statement so adversely affects the defendant’s ability to cross-examine the witness that his confrontation rights are infringed, the state must prove harmlessness beyond a reasonable doubt. State v. Belle, supra, 269-70.
One of the factors in determining whether the non-production of Varella’s taped statement interfered with the defendant’s right to confrontation is whether Varella adopted a counterpart transcript within a short time after making the statement. The trial court found that the only tape of the interview was the one made at the Hamden police station. This tape was transcribed and signed by Varella one day later. There is little or no likelihood that the taped interview and the transcript
This leads us to conclude that the failure to produce the tape did not so adversely affect the defendant’s ability to cross-examine Varella that it infringed on his constitutional right of confrontation. Accordingly, the standard to be applied to the harmless error inquiry is whether the state has met its burden of proving that it is more probable than not that the nonproduction of the tape was harmless. State v. Johnson, 214 Conn. 161, 175, 571 A.2d 79 (1990). In applying the balancing test set forth previously, we must weigh the state’s culpability in the destruction of the tape-recorded statement against the prejudice suffered by the defendant as a result of that destruction to determine whether the trial court abused its broad discretion in denying the defendant’s motion to strike. We conclude that the trial court did not abuse its discretion.
Varella reviewed and signed the typed statement, which the trial court found identical to the taped statement given the previous day. It is unlikely that the tape would have revealed anything different. Our review of the whole record leads us to conclude that the destruction of the tape was harmless because the result would not have been different had it been preserved. State v. Belle, supra, 215 Conn. 268. The court did not abuse its discretion in failing to strike Varella’s testimony.
B
The following facts are relevant to the defendant’s claim regarding Henrietta DiLauro. Following DiLauro’s direct examination, the state gave to the defendant the typewritten statement that DiLauro had given to the police on the day of the burglary ten years earlier. During voir dire by the defendant, DiLauro indicated that
Following Polzella’s testimony, the defendant asked to see the notes of his interview with DiLauro at her house. Polzella indicated that any notes taken ten years earlier were no longer in his possession because he destroyed his notebooks when they were filled. He also stated that he probably wrote only the victims’ names, address and dates of birth, as that was his usual habit. Durkin testified that he also had taken notes when interviewing the victims. He stated that those notes were destroyed, but the contents had been condensed in his reports that had already been furnished to the defendant.
Although the defendant objected to his not being furnished with the police notes concerning the DiLauro interview, the defendant never moved to strike her testimony.
The defendant also claims that the state’s failure to produce DiLauro’s statement^ deprived him of the opportunity to cross-examine her effectively. We do not agree. The trial court found that DiLauro’s typed and signed statement made at the police station on the day of the crime was the only statement that DiLauro had made. The record supports this determination.
II
The defendant next claims that the trial court improperly admitted, through the testimony of Varella, statements made during a conversation that Varella had had with the defendant and Sanders. Varella testified as to aspects of this conversation, which occurred in the
“An admission may be introduced only against the party who made the admission. . . . An accused can be held to have adopted a statement as his own, however, when his conduct indicates that he assents to or adopts a statement made by another person.” (Citation omitted.) Id., 682-83. Such an adoption must be demonstrated by conduct or statements that are “ 'unequivocal, positive and definite in nature, clearly showing that in fact the defendant intended to adopt the hearsay statements as his own.’ ” State v. Morrill, 197 Conn. 507, 537, 498 A.2d 76 (1985). Even if a defendant makes no response to a statement made within his hearing, that statement may be introduced when the circumstances show that he heard and understood the statement, had the opportunity to speak and circumstances naturally called for a reply from him if the statement was not true. Id., 535. “Such an admission by one cries out for denial by
Our review of the record discloses that the defendant either made the accusatory statements or heard them and did not disavow them. The trial court found that both the defendant and Sanders had participated in the conversation, and neither had disavowed what the other said. The statements were accusatory in nature and involved a brutal crime. Such statements would naturally have required a response if the listener had not participated in the alleged crimes. The main conversation took place in the privacy of a car, a small space in which conversation could easily be heard and where no police or unfriendly witnesses were present. The fact that both men participated in the conversation indicates that they understood each other’s statements and had an opportunity to reply. See State v. John, supra, 210 Conn. 684. We conclude that Varella’s testimony was admissible under the adoptive admissions exception to the hearsay rule.
The defendant argues that to allow hearsay under an adoptive admission “requires a more stringent and specific showing of assent” and that Festo is probably not good law today. Festo is Supreme Court precedent. This court will not reevaluate Supreme Court precedent. State v. Cecarelli, supra, 32 Conn. App. 825.
Ill
The defendant claims that the trial court improperly admitted, as evidence of flight, testimony that the defendant was found in Florida two years after the crimes. He contends that there was no evidence of flight in this case. The crimes occurred on July 15,1982. The defendant was found in Florida in July, 1984. There was no evidence as to when the defendant departed for Florida.
Here, there were several pieces of evidence that supported consciousness of guilt. The evidence showed that the police made unsuccessful efforts to locate the defendant immediately after the crimes. In addition, there was testimony that shortly after the crimes the defendant had indicated that the police would not find him. There was also evidence presented that the defendant had used an alias. Under these circumstances, the fact that the state could not prove when the defendant had gone to Florida is not significant. A lapse in time between the commission of the crimes and the flight, whenever that might have occurred, should not affect the admissibility of the evidence of flight. The evidence was sufficient to support an inference that the defendant was in Florida for the purpose
IV
The defendant’s final claim is that the trial court improperly allowed into evidence an affidavit, a fingerprint card bearing the name James Dawson, and a photograph of the defendant.
The following facts are relevant to this claim. The affidavit of Sergeant Thomas Barnes, records supervisor of the Chicago police department, was offered to establish the foundation for admitting the fingerprint card. The purpose of admitting the fingerprint card was to establish that the defendant was the owner of a bankbook found at the scene of the crime. This bankbook was issued to “James Dawson.” During voir dire, Raymond Brodeur, an inspector from the state’s attorney’s office testified that he spoke to Barnes about the alias “James Dawson” on the defendant's record. He was told that the fingerprint card and mug shot were made and kept in the normal course of police business. Barnes sent his affidavit to this effect, along with the certi
The trial court has broad discretion in determining the relevancy of evidence. State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987). We afford a trial court’s ruling on the admissibility of evidence great deference. State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). Its evidentiary rulings will be set aside only where there has been a clear abuse of discretion. State v. Holliman, 214 Conn. 38, 50, 570 A.2d 680 (1990). Every reasonable presumption should be given in favor of the trial court’s ruling. State v. Shindell, 195 Conn. 128, 136, 486 A.2d 637 (1985).
“An out of court statement is hearsay when it is offered to establish the truth of the matters contained therein. . . . As a general rule, hearsay evidence is not admissible unless it falls under one of several well established exceptions. . . . The purpose behind the hearsay rule is to effectuate the policy of requiring that testimony be given in open court under oath, and subject to cross-examination. . . . The residual, or catchall, exception to the hearsay rule allows a trial court to admit hearsay evidence not admissible under any of the established exceptions if: (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions. State v. Sharpe, supra, [195 Conn.] 664 . . . .” (Citations omitted; internal quotation marks omitted.) State v. Oquendo, 223 Conn. 635, 664, 613 A.2d 1300 (1992).
The trial court recognized the reliability of the items and held that they should be admitted in the interest of justice. The court also noted that Barnes, although technically available, could not testify in place of the documents, and to bring him “all the way from Chicago, merely to ask him the foundation questions to qualify a business record, to ... go through that expense and trouble which would result in I suspect not a single question on cross-examination” would not be reasonable.
The reasonable necessity requirement is met when common sense demonstrates that the documents are considered sufficiently trustworthy to be admissible and there appears to be no justifiable need for cross-examination of the witness, not the declarant, in the traditional sense.
The trial court determined that the evidence was relevant, that it was necessary to the resolution of the case, that the documents were reliable and trustworthy, and that they should be admitted in the interest of justice.
We therefore conclude that the trial court did not abuse its discretion in admitting the evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.
Edward DiLauro died prior to trial.
Practice Book § 752 provides: “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness testified.”
In the context of this issue, bad faith is defined as destruction done with a deliberate intent to deprive the defendant of discoverable material or with malicious intent. State v. Williamson, 212 Conn. 6, 16, 562 A.2d 470 (1989). Here, the defendant concedes that there was no bad faith on the part of the police. He claims that nonproduction of the witness’ statement violated his confrontation rights.
The defendant did move to strike Durkin’s testimony because of the destruction of his field notes. The court’s denial of this motion is not before us on appeal. Regarding DiLauro’s testimony, the defendant argues that it should have been stricken without the defendant’s having to request it. We find this argument to be without merit. “The appropriate sanctions for the state’s failure to comply with discovery are set forth in Practice Book § 755, which requires the trial court either to strike the testimony of the state’s witness or to declare a mistrial, if the defendant seeks it and the interests of justice require it.” State v. Cecarelli, 32 Conn. App. 811, 823, 631 A.2d 862 (1993).
Practice Book § 4185 provides in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”
While it seems clear that the officers took field notes at the time of the first response to the house, field notes are not statements unless they are signed or otherwise adopted. See State v. Belle, supra, 215 Conn. 266. The record does not indicate that the notes were signed or otherwise adopted in this case.
In State v. John, supra, 210 Conn. 682, our Supreme Court affirmed the trial court’s decision to admit the testimony of a witness concerning admissions that had been made by one or both of the defendants while riding in the witness’ car. The court held that the statements, whether attributable to one or the other defendant, were admissible against both under the adoptive admissions exception to the hearsay rule.
The court instructed on consciousness of guilt, mentioning all the evidence and not only the defendant’s apprehension in Florida. The court also charged as to the function of the jury in this regard, and noted that flight does not create a presumption of guilt. The jury instruction provided in part that the jury should consider “the length of time between the offense and the first evidence that the defendant had at some point traveled to Florida, that there may be reasons for this fully consistent with innocence. You may include the fact that we live in a mobile society.” The court’s instruction clearly stated that consciousness of guilt was but one permissible inference to be drawn from the evidence of flight.
The defendant, while not challenging the admission of the photograph in his main brief “as a result of counsel’s oversight,” raises that challenge in his reply brief and asks that we review this part of the issue. We do so, noting no prejudice to the state because the issues presented by the admission of the photograph are fully analyzed in the parties’ briefs.
The state argues that neither the fingerprint card nor the mug shot is a statement and therefore that neither is hearsay. We find this argument to be unpersuasive. The trial court treated both as hearsay and ruled accordingly.