25 Conn. App. 255 | Conn. App. Ct. | 1991
The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). The defendant claims that the trial court improperly admitted a witness’ testimony because of the destruction of a 911 telephone taped statement reporting the crime. We affirm the judgment of the trial court.
The defendant claims that the trial court should have granted his motion to strike the testimony of one of the victims because the state failed to produce the 911 tape recording of Blake’s call to the Hamden police, pursuant to Practice Book § 752
Subsequently, the defendant’s motion to strike the testimony of Blake was denied. On the basis of several facts, the trial court found that the destruction of the 911 tape was not done in bad faith. First, the trial court found that Blake did not provide a description of the defendant when Blake reported the robbery, but that the actual source of the description on the dispatch card, acknowledging the 911 call from Blake, was Officer John Cappiello of the Hamden police department during his initial investigation. The court also noted that the description on the dispatch card was similar to the description given by Blake when testifying at
Under this court’s decision in Williamson I, supra, 911 tape recordings of witnesses’ statements must be preserved and given to the defendant upon appropriate request.
The record discloses that this case involves an intentional destruction of the 911 tape in accordance with the Hamden police department’s policy. This was done in clear violation of our decision in Williamson I, supra, which requires the preservation of 911 statements and was released on April 12, 1988, some eight months before the destruction of the 911 tape in this case. The defendant requests that we find this intentional destruction constituted “constructive bad faith” due to the Hamden police department’s failure to establish standards in accordance with Williamson I to preserve
Because the state did not act with bad faith, the court must next weigh “ ‘ “ ‘the culpability of the state for its failure to make disclosable material available . . . against any resulting prejudice to the defendant . . . .’ ” ’ ” (Citations omitted.) State v. Belle, supra, 268. The intentional destruction of the 911 statement in this case properly places the burden on the state to establish the harmlessness of its violation. Id.; State v. Johnson, 214 Conn. 161, 172, 571 A.2d 79 (1990). Whether the state must establish harmlessness beyond a reasonable doubt or by the lesser “more probable than not” standard, depends on the extent to which the missing 911 tape impaired the defendant’s constitutional right to confront and cross-examine witnesses. State v. Belle, supra, 269-70; State v. Johnson, supra, 173-74.
In evaluating whether the state’s failure to produce the victim’s 911 statements reporting the robbery
The critical factor distinguishing this case from Williamson II is that this defendant’s conviction did not rest solely on the testimony of the witness whose pretrial statement had been destroyed. See State v. Johnson, supra, 174; Williamson II, supra, 22-23. In the present case, two witnesses were present during the robbery and positively identified the defendant as the person who committed the robbery. In addition to Blake, whose statement on the 911 tape was destroyed, Seinsheimer saw the defendant take the money from the cash register. Seinsheimer saw the defendant’s face and gave a description similar to the description given by Blake. Both witnesses selected the defendant’s picture from a police photograph board and were also able to identify the defendant during the trial. This case, therefore, is factually closer to State v. Johnson, supra, in which the defendant’s conviction did not rest solely on the testimony of the witness whose taped statement was destroyed. In Johnson, the defendant’s conviction was also based on circumstantial evidence unrelated to the destroyed statement. State v. Johnson, supra.
Finally, the trial court found, and we agree, that Blake’s testimony identifying the defendant would remain in evidence because it was not part of her 911 statement reporting the crime. The trial court, therefore, did not abuse its discretion in refusing to strike the testimony of Blake.
The judgment is affirmed.
In this opinion the other judges concurred.
“[Practice Book] Sec. 752.--production following testimony
“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 has testified.”
“[General Statutes] Sec. 54-86b. right of accused to examine statements. (a) In any criminal prosecution, after a witness called by the prosecution has testified on direct examination, the court shall on motion of the defendant order the prosecution to produce any statement oral or written of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified, and the court shall order
“(b) If the prosecution fails to comply with the order of the court, the court shall strike from the record the testimony of the witness and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.”
There are four requirements that a defendant must meet for the mandates of General Statutes § 54-86b and Practice Book § 752 to apply and thereby to compel discovery: “First, the witness whose prior statements are sought, must have been a witness for the prosecution and must have testified under direct examination. This condition is clearly met in this case. Second, the defendant must make a motion to the trial court for production of the witness’ statement. The defendant has satisfied this condition. Third, the statements must relate to the subject matter about which the witness has testified. There is no dispute that this condition is also satisfied. Finally, the statements sought to be produced must be in the possession of the state or its agents.” State v. Williamson, 14 Conn. App. 108, 113, 552 A.2d 815 (1988) (Williamson I), aff’d, 212 Conn. 6, 562 A.2d 470 (1989). It is uncontested that the defendant in this case fulfilled these requirements regarding the 911 taped statement.
Unless there is showing of bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process under the federal constitution. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988).