205 Conn. 578 | Conn. | 1987
The defendant, Donald Santangelo, was charged in an information with one count of the
On appeal, the defendant claims that the trial court erred in: (1) denying his motion to recuse; (2) denying his motion to strike testimony of the victim’s husband and daughter; (3) denying his motion to exclude certain statements made by the victim to her husband and daughter which he claims were inadmissible hearsay; (4) charging the jury; (5) denying his motion to disqualify itself from sentencing; and (6) denying his motion of acquittal.
There was evidence to support and the jury could reasonably have found the following pertinent facts. The
The victim spoke to her husband, James Carrano, and her daughter, Janice, several times during the next few days concerning her meeting with the defendant. On Monday afternoon, September 10, the victim informed Janice that she expected to meet “Don” at the Chatham Pharmacy that evening and accompany him to the job interview. The victim asked her daughter to come with her but Janice declined. Thereafter, using the telephone number on the scrap of paper bag, the victim telephoned the Ramada Inn and spoke to the manager. The manager informed the victim that he knew of no prearranged interview but that she could come to the inn and fill out a job application. Shortly after the victim had completed her call to the manager, her telephone rang and was answered by her daughter. The caller identified himself as “Don” and asked to speak to the victim. When she was handed the telephone, the victim told the caller, “Yes, I will meet you at the Chatham Pharmacy.”
Later, the victim telephoned her husband at his job and told him that she intended to meet “Don” at the pharmacy at 6:50 p.m., leave her car and accompany him in his vehicle to the job interview. She also informed her husband that she would arrange to pick him up from work at about 8 p.m. after she had
The jury could also have found that the defendant was the only cook named “Don” employed at the Ramada Inn in North Haven, and that on September 10 he worked at the inn between the hours of 6 a.m. and 2 p.m. Later that day, at about 6 p.m., he borrowed the automobile of his girlfriend Carol Cacchillo, with whom he lived, and left their apartment purportedly to attend a menu meeting at the Ramada Inn. There was, however, no menu meeting scheduled at the inn for that evening. Between 7:30 and 8 p.m. on September 10, while driving Cacchillo’s automobile, the defendant was involved in a one car accident on Sherman Avenue in Hamden. The accident occurred approximately eight-tenths of one mile from the site where the victim’s body was later located. Cacchillo’s car was rendered inoperable by the accident and had to be towed from the scene.
After the accident, the defendant told persons who later testified at the trial that he was unfamiliar with the neighborhood and that he was on his way home from work. He had, however, previously been employed in the immediate area and, as indicated above, had finished work at 2 p.m. that day. The defendant also
Pursuant to their investigation of the missing person’s report concerning the victim, New Haven police officers on September 11 and 12, prior, to discovery of the victim’s body, interviewed her family, the staff at the Ramada Inn, Cacchillo and the defendant. At that time the defendant acknowledged meeting a woman whom he could not identify at the Chatham Pharmacy on September 7 and recalled that he might have given her his manager’s name. He denied knowing the victim, however, or ever having been with her in Cacchillo’s automobile. He admitted to the police that he had lied to Cacchillo about being required to attend a menu meeting in order to obtain the use of her car to meet a male friend named Terry. He said he had driven around in Hamden looking for Terry for about two hours prior to the accident.
A search of Cacchillo’s automobile by New Haven police department personnel at the garage where it had been towed subsequent to the accident, disclosed a blood stain on the front seat. The stain was later analyzed as type A blood, the victim’s blood type.
The defendant first argues that the trial court erred by denying his motion to recuse. The defendant claims, as the basis of his motion, that the trial court had actively participated in pretrial plea negotiations in his case and, consequently, disqualification was required. See State v. Gradzik, 193 Conn. 35, 47, 475 A.2d 269 (1984).
It is axiomatic that the burden of establishing a record that a judicial impropriety has occurred which demonstrates or gives the appearance of bias or partiality so as to require recusal rests with the party who claims the occurrence of such an impropriety. State v. Lopez, 197 Conn. 337, 348, 497 A.2d 390 (1985); State v. Fullwood, 194 Conn. 573, 581, 484 A.2d 435 (1984); State v. Nash, 149 Conn. 655, 658-59, 183 A.2d 275, cert. denied, 371 U.S. 868, 83 S. Ct. 130, 9 L. Ed. 2d 104 (1962). “In the absence of such a record, we have no basis for concluding that the trial judge's pretrial activities so impaired, or appeared to impair, his ability to act as a judicial officer or a neutral arbiter that it was error to deny the motion for disqualification.” State v. Fullwood, supra.
We first note that the defendant, although he filed a written motion to recuse, has failed to follow the procedural requirements of Practice Book § 997.
In the absence of an affidavit or evidentiary hearing the available record consists only of a colloquy among the trial court, defense counsel and an assistant state’s attorney. During the course of that colloquy defense counsel recounted his recollection of the part played by the trial court in pretrial proceedings relating to the defendant. Representations of counsel, however, are not evidence upon which we can rely in our review of the trial court’s conduct. State v. Watson, 198 Conn. 598, 611, 504 A.2d 497 (1986); State v. Weber, supra, 413. Other than the representations of defense counsel, the record contains only the recollections of the assistant state’s attorney and the trial court itself concerning any pretrial participation by the trial court in the defendant’s case. Both indicate that the trial court’s participation was minimal. Our review of the available record reveals that any contact by the trial court with the defendant’s case clearly did not amount to active participation in plea negotiations.
II
A
The defendant next claims that the trial court erred by denying his motion to strike the testimony of both
The tape, which was made somewhat less than three months after the release of our decision in the case of State v. Myers, 193 Conn. 457, 479 A.2d 199 (1984), was erased pursuant to a long-standing practice of the New Haven police department to erase and reuse tapes utilized in recording incoming calls for assistance. That practice, at least as of September 11,1984, had apparently not been brought into compliance with Myers and Practice Book § 752.
It is evident from a review of the transcript of his testimony that Carrano’s telephone call was a routine call wherein he reported that his wife had been missing since the previous evening and asked that an officer be sent to his home so that he could make an official report.
B
The defendant also claims that the trial court erred by denying his motion to strike the testimony of Janice Carrano, the victim’s daughter.
On September 20,1984, Janice gave a tape recorded statement to the Hamden police department. A three page typed transcription was later made of her recorded statement. The transcription was reviewed and signed by her on September 25. Thereafter, the tape was erased or destroyed and, consequently, was not available to the defendant at the time of trial. The defendant claims he was prejudiced by not having access to Janice Carrano’s original recorded statement because its loss damaged his ability to cross-examine her effectively. The state did turn over to the defendant the typed transcription of her recorded statement.
As in State v. Mullings, supra, the investigation in this case was conducted after the date of this court’s decision in State v. Myers, supra, but prior to our decision in State v. Milum, 197 Conn. 602, 500 A.2d 555 (1985). In Milum, we expressed our concern over the routine destruction of potentially discoverable taped statements even after a typed transcription is made. Id., 617. In Milum, we indicated that a “ 'course of conduct is not necessarily reasonable merely because it is routine. . . .’ United States v. Carrasco, 537 F.2d 372, 376 (9th Cir. 1976) . . . .” Id. In Mullings, however,
Absent bad faith we employ the balancing test set forth in State v. Shaw, supra, and State v. Myers, supra, to determine whether the trial court erred in refusing to strike Janice Carrano’s testimony. State v. Milum, supra. As previously indicated, that test weighs the extent of the state’s culpability for nondisclosure against the amount of prejudice demonstrated by the defendant. State v. Mullings, supra, 10; State v. Myers, supra, 467. Although the loss of the taped statement by the police is not excusable, our decision in Myers makes it understandable and reduces the state’s culpability to a minimum. The question, therefore, is what prejudice, if any, the defendant suffered as a result of the unavailability of the tape.
A review of the transcription of Janice Carrano’s taped statement and her voir dire testimony reveals that the defendant’s argument that he was prejudiced by the loss of the tape lacks merit. Janice testified on voir dire that she believed the words in the transcription were the same as those used in her taped statement. Unfortunately, two words in the three page transcription are typed over and difficult to read. It is on these two words that the defendant bases his argument. One word, commencing with the letter “T” in the context of the sentence in which it is used, is obviously the word “Town.” Janice testified that she meant to and believed she used the word “Town” in that sentence. The other word on the page of her statement
Ill
The defendant next claims it was error for the trial court to admit, over his objection, testimony of the victim’s husband and daughter relating to conversations they had with the victim concerning her intention to meet “Don” at the Chatham Pharmacy on September 10 and accompany him to a job interview. He also claims the trial court erred by denying his motion in limine and by overruling his objections to testimony of the victim’s husband and daughter relating to conversations they had with the victim concerning her first meeting with the defendant at the Chatham Pharmacy on September 7.
The defendant concedes that the victim’s statements indicating her intention to do a particular act in the immediate future, made in apparent good faith and not for self-serving purposes, were admissible as an exception to the hearsay rule, to prove that the act was in fact performed. See State v. Journey, 115 Conn. 344, 351, 161 A. 515 (1932). He contends, however, that her
The hearsay statements of an unavailable declarant, made in good faith and not for a self-serving purpose, that express his or her present intentions to meet with another person in the immediate future are admissible and allow the trier of fact reasonably to infer that the declarant’s expressed intention was carried out. Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 295-96, 12 S. Ct. 909, 36 L. Ed. 706 (1892); United States v. Pheaster, 544 F.2d 353, 377-80 (9th Cir. 1976), cert. denied sub nom. Inciso v. United States, 429 U.S. 1099, 97 S. Ct. 1118, 51 L. Ed. 2d 546 (1977); People v. Alcalde, 24 Cal. 2d 177, 186, 148 P.2d 627 (1944); Hunter v. State, 40 N.J.L. 495, 534, 536, 538 (1878); State v. Vestal, 278 N.C. 561, 585-86, 180 S.E.2d 755 (1971), cert. denied, 414 U.S. 874, 94 S. Ct. 157, 38 L. Ed. 2d 114 (1973); C. McCormick, Evidence (3d Ed.) § 295, p. 848. “Applying this rule to the evidence in question, most of the statements made by the deceased to his wife related to his then present intention to go to New Haven to meet the defendants and were admissible.” (Emphasis added.) State v. Perelli, 125 Conn. 321, 325, 5 A.2d 705 (1939). The trial court did not err, therefore, by allowing into evidence testimony by James and Janice Carrano concerning statements made to them by the victim that she intended to meet “Don” at the Chatham Pharmacy on September 10.
The defendant also claims that the trial court erred by allowing the victim’s husband and daughter to testify to what they were told by the victim concerning
It would be incongruous to allow evidence of the victim’s expression of a future plan or intention and exclude evidence of a contemporaneous explanation of the reasons that prompted it. To hold that the victim’s statements that she was going to meet “Don” at the Chatham Pharmacy are sufficiently trustworthy for the jury to consider without confrontation, but that her references to her September 7 meeting and her conversations with the defendant that produced her intention are not, is illogical. United States v. Annunziato, 293 F.2d 373, 377-78, cert. denied, 368 U.S. 919, 82 S. Ct. 240, 7 L. Ed. 2d 134 (1961). “True, inclusion of a past event motivating the plan adds the hazards of defective perception and memory to that of prevarication; but this does not demand exclusion or even excision, at least when, as here, the event is recent, is within the personal knowledge of the declarant and is so integrally included in the declaration of design as to make it unlikely in the last degree that the latter would be true and the former false.” Id., 378. The victim’s statement that she was going to meet “Don” had to be explained and placed in some context for it to have any meaning for the trier of fact. State v. Smith, 198 Conn. 147,157-58, 502 A.2d 874 (1985). The only way that could be done was to have the victim’s account of her meeting with the defendant brought to the jury’s attention. The trial court did not abuse its discretion in allowing the state to do so. State v. Boucino, 199 Conn. 207, 228-29, 506 A.2d 125 (1986).
The defendant next claims that the trial court erred in several respects in its charge to the jury.
A
The defendant claims first that the court should not have instructed the jury that one of the elements of the crime that the state had to prove beyond a reasonable doubt in order to convict him was that he was “of sound mind. That is legally sane [at the time of the crime].” The defendant does not argue that the court’s instruction was technically incorrect. He argues, rather, that his sanity was never in question and, therefore, that the trial court “confused and misled the jury” by appearing to place it in issue.
The defendant did not present evidence concerning his sanity, raise insanity as a defense, or request a charge on insanity. The trial court erred, therefore, by instructing the jury, sua sponte, that the defendant’s sanity was an element of the crime to be considered in this case. State v. Rodgers, 198 Conn. 53, 56, 502 A.2d 360 (1985). “The trial court should submit no issue to the jury which is foreign to the facts in evidence, or upon which no evidence was offered, and it should not submit to the jury considerations which find no support in the evidence.” Id.; State v. Cofone, 164 Conn. 162,168, 319 A.2d 381 (1972). “[T]he issue of insanity is not properly raised until ‘substantial evidence’ tending to prove insanity has come into the case.” State v. Rodgers, supra; State v. Rossier, 175 Conn. 204, 209, 397 A.2d 110 (1978).
We find, however, that the trial court’s error was harmless. Although the trial court incorrectly injected the defendant’s sanity into the case, it promptly removed the issue by instructing the jury that “the law
The insanity instruction complained of is not to be judged in artificial isolation from the overall charge. State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984). “The whole charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error.” State v. Reddick, 197 Conn. 115,132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067,106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). A review of the entire charge makes it abundantly clear that the trial court’s instructions effectively made the element of the defendant’s sanity exactly what it was in this case, a nonissue. It is not reasonably probable that the jury was confused or misled to believe otherwise.
B
The defendant next claims that the trial court erred by refusing to give his requested jury instruction concerning evidence, produced by the state, of a thumb print of the victim that was lifted from inside the front
The failure to produce a witness for trial who is available and whom a party would naturally be expected to call warrants an adverse inference instruction against the party who would be expected to call that witness. Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75,165 A.2d 598 (1960). In such a situation there is a logical nexus between the failure to call the witness and an adverse inference. In other words, it makes sense to infer that the witness’ testimony, had the available witness testified, would be adverse to the party who would naturally be expected to call that witness but failed to do so. The scenario in this case is dissimilar. Here, the evidence of the exact location of the victim’s thumb print did not exist, was impossible to resurrect and was obviously not available at the time of trial. The police officer simply failed to follow, what he admitted on cross-examination might be, the best possible procedure for obtaining, locating and recording fingerprint evidence. As a result, although he was able at trial to testify that the victim’s thumb print was found on the inside of the car window, the officer was
An adverse inference instruction might be required if tangible evidence were deliberately destroyed or ignored to prevent its utilization by the defense. 2 J. Wigmore, Evidence (Chadbourn Rev. 1979) § 291. Absent proof of such deliberate action, however, it is illogical to postulate that the failure, even if negligent, of a police investigation to discover and record all available tangible evidence requires an inference that the tangible evidence, had it been discovered and recorded, would be favorable to the defendant. The defendant was certainly entitled to point out to the jury any infirmity in the state’s case that he discerned by reason of the failure to record the exact location of the victim’s thumb print. He was not, however, entitled to an adverse inference instruction.
C
The defendant also claims that the trial court erred by failing to instruct the jury, in accordance with his request, that if it found the prosecution had proved that
The rule quoted has its Connecticut genesis in two cases: State v. Mayell, 163 Conn. 419, 311 A.2d 60 (1972), and State v. Payne, 186 Conn. 179, 440 A.2d 280 (1982). In Mayell, the defendant’s conviction was set aside because it was based primarily, if not solely, on fingerprint evidence. Such evidence had little meaning, however, because the defendant was regularly employed to drive the vehicle in which his fingerprint was found and he was rightfully in the vehicle only six hours before the crime was allegedly committed. In Payne, the defendant’s conviction was based solely on fingerprint evidence. It was reversed on the ground that there was insufficient evidence to convict because there was no corroboration of the state’s claim that the defendant’s fingerprint had been impressed on the victim’s automobile at the time of the crime.
Those cases stand for the proposition “that a conviction may not stand on fingerprint evidence alone unless the prints were found under such circumstances that they could only have been impressed at the time the crime was perpetrated.” State v. Payne, supra, 182. Under the circumstances of this case the requested instruction would have been inappropriate. See State v. Gasparro, 194 Conn. 96, 113, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828,106 S. Ct. 90, 88 L. Ed. 2d
The trial court apparently concluded that, under the factual circumstances of this case, the defendant’s request to charge was misleading and unwarranted. See State v. Vass, 191 Conn. 604, 620-21, 469 A.2d 767 (1983); State v. Maturo, 188 Conn. 591, 600, 452 A.2d 642 (1982). We agree. There was no error in refusing to charge in accordance with that request. The trial court should submit to the jury only those issues relevant to the facts in issue. Bonner v. Winter, 175 Conn. 41, 48, 392 A.2d 436 (1978).
D
The defendant next claims that the trial court erred by refusing to instruct the jury in accordance with his request concerning the erasure of the tape of James Carrano’s telephone call to the New Haven police
As we indicated earlier, there is a logical nexus between the failure to call an available witness and drawing an adverse inference against the party who fails to call that witness. Secondino v. New Haven Gas Co., supra, 674. When physical evidence, however, such as this tape, is lost prior to trial, and not destroyed intentionally to thwart the defense, there is no logical connection between the failure to produce the evidence and an adverse inference. It is the failure to produce available evidence that leads to a logical adverse inference. Savard v. Marine Contracting, Inc., 471 F.2d 536, 541-42 (2d Cir. 1972), cert. denied sub nom. Savard v. Perini Corporation, 412 U.S. 943, 93 S. Ct. 2778, 37 L. Ed. 2d 404 (1973); State v. Hogan, 67 Conn. 581, 584, 35 A. 508 (1896); B. Holden & J. Daly, Connecticut Evidence § 65 (a). Lost or destroyed evidence may, in some instances, evoke sanctions. Practice Book § 755. Sanctions, however, must be distinguished from inferences. “[An] inference to be drawn must be one which in common experience leads naturally and logically to the fact inferred or presumed.” Reliance Ins. Co. v. Commission on Human Rights & Opportunities, supra, 489. The fact that the September 11 tape was unavailable does not lead naturally and logically to the conclusion that its contents were unfavorable to the state and favorable to the defendant. The testimony in this case, in fact, indicated that the taped telephone
V
The defendant next claims that the trial court committed reversible error by denying the defendant’s oral motion for disqualification from sentencing. The defendant’s motion to recuse was based on his claim that the trial judge, prior to his scheduled sentencing, received and read a letter from Detective Leonard Pastore of the New Haven police department. Pastore’s letter contained unsubstantiated, inflammatory comments and accusations concerning the defendant.
The defendant’s motion for disqualification was procedurally deficient in that it was unaccompanied by either an affidavit setting forth the facts upon which it relied or a certificate of counsel attesting to the fact that the motion was made in good faith. The defendant’s motion does not, therefore, comply with § 997 of the Practice Book. A motion to disqualify a judicial officer because of the claimed possibility of bias is a serious matter. If counsel makes such a motion, it is not asking too much to require that he or she follow the established rules that treat it as such. Oral motions to disqualify simply do not comport with acceptable procedure. In view, however, of the lengthy sentence imposed on the defendant, we will treat the merits of his motion briefly.
The defendant claims that the fact that the trial court sentenced the defendant to the maximum statutory period of incarceration for murder clearly manifested partiality or its appearance. We disagree. The fact that a trial court rules adversely to a defendant does not demonstrate bias. Hartford Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 8, 469 A.2d 778 (1984), cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985); Payton Health Care Facilities, Inc. v. Estate of Campbell, 497 So. 2d 1233, 1238 (Fla. App.
VI
The defendant’s final claim is that the evidence adduced at his trial was insufficient to sustain a conviction and that the trial court erred by denying his motion for acquittal. “When the claim on appeal challenges the sufficiency of the evidence, we undertake a two part task. ‘We must first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus estabished and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. . . .’ ” (Citations omitted.) State v. Simino, 200 Conn. 113,116-17, 509 A.2d 1039 (1986); State v. Rodriquez, 200 Conn. 685, 687, 513 A.2d 71 (1986). “The relevant question in our review ‘ “ ‘is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . .’ ” ’ ” (Emphasis in original; citations omitted.) State v. Rodriquez, supra, 688.
After a scrupulous review of the record we think it manifest that there was more than sufficient evidence to allow the jury to have found beyond a reasonable doubt that the defendant was guilty of the murder of the victim.
There is no error.
In this opinion the other justices concurred.
“[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime. . . .”
Cacchillo had not observed any bloodstain on the front seat prior to September 10. There was testimony, however, that her daughter, who had type A blood, had suffered an injury to her foot and had bled in the car some time in August.
“[Practice Book] Sec. 997.—procedure
“A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith. The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time.”
Judge Hadden succinctly stated his recollection of the role he played in the “plea negotiations”: “My recollection of the so-called 9:30 pretrial is in accord with Mr. Clifford’s recollection. When I became presiding judge or acting presiding judge, whatever I was for six months, as cases came
“And when you came in, if you say you came in in February, I assume there was a 9:30 [a.m.] pretrial, whatever took place, I have no recollection of ever discussing the facts of this case. I don’t know the facts of this case at this moment. When you say strengths and weaknesses, I don’t know the strengths and weaknesses of this case. I don’t think I ever opened that file until today. And when I do pretry cases and actively participate in them, even when I do not actively participate in the plea bargain negotiations, I make notes as to what takes place. And there are no notes in that notebook, which means that the pretrial, if you want to call it that, was along the lines of what Mr. Clifford had said. I looked at the thing, and there is a 55-year figure being mentioned by the state. I look at the defendant, are you interested? No. That’s the end of it. It was at that point I think, Mr. Sweeney, you did indicate that you were engaged in some type of psychiatric investigation. I think it was at that time, but I’m not sure on that. But for sure, this court did not actively participate in the negotiations of a plea bargain, which is what you have to establish to show that I should be recused or excused from sitting on this case. I don’t think there’s any merit to this motion at all, not in the slightest.
“Therefore, your motion is denied.”
The defendant contends that because the trial court ruled adversely to him on two pretrial motions, subsequent to the denial of his motion to recuse, bias or its appearance was demonstrated. We disagree. Hartford Savings & Loan Assn. v. Tucker, 192 Conn. 1, 8, 469 A.2d 778 (1984); Payton Health Care Facilities, Inc. v. Estate of Campbell, 497 So. 2d 1233,1238 (Fla. App. 1986).
“[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.”
The trial court stated: “Intentionally destroyed, yes, but not intentionally destroyed to deprive counsel in this case or the defendant in this case from access.”
“[Practice Book] Sec. 755.--failure to comply with order
“If the prosecuting authority elects not to comply with an order of the judicial authority to deliver to the defendant any statement of a witness who has testified or such portion thereof as the judicial authority may direct, the judicial authority shall strike from the record the testimony of the witness, and the trial shall proceed unless the judicial authority, in his discretion, upon motion of the defendant, determines that the interests of justice require that a mistrial be declared.”
Officer Arthur Granucci of the New Haven police department was sent to the Carrano home the morning of September 11 and spoke to James Carrano on the front porch for approximately ten or fifteen minutes. Granucci’s report Was made available to the defense.
The cross-examination of Janice Carrano was relatively short and barely touched on her statement of September 20 to the Hamden police. The concentration during cross-examination appears rather to have been on what information she had given to Detective Leonard Pastore of the New Haven police department over a week earlier.
The defendant does not argue in Ms brief that the trial court’s charge concerning sanity was constitutional error so as to require application of the reasonably possible standard. State v. Annunziato, 169 Conn. 517, 532 n.7, 363 A.2d 1011 (1975). Even under that standard, however, the charge would withstand scrutiny. See State v. Ruiz, 171 Conn. 264, 273, 368 A.2d 222 (1976).
The defendant claims that it was possible for the victim’s thumb print to have been left at a time other than when the crime was committed because the Cacchillo vehicle was frequently in the Fair Haven section and the victim lived and occasionally shopped in that area.
This was James Carrano’s telephone call to the New Haven police department in which he first reported his wife’s disappearance.
The fact that in State v. Hamele, 188 Conn. 372, 382, 449 A.2d 1020 (1982), and in State v. Doolittle, 189 Conn. 183, 200 n.23, 455 A.2d 843 (1983), the trial court, in an abundance of caution or generosity, gave an adverse inference instruction because the state lost physical evidence does not mean that such instructions were required.
It is the defendant’s contention that the letter would necessarily have “tainted” the perception of the trial judge at sentencing.
It goes almost without saying that Pastore’s letter was inappropriate.