State v. Belle
| Decision Date | 05 June 1990 |
| Docket Number | No. 13825,13825 |
| Citation | 576 A.2d 139,215 Conn. 257 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Christofe P. BELLE. |
Suzanne Zitser, Asst. Public Defender, with whom, on the brief were G. Douglas Nash, Public Defender, and Thomas Ullmann, Asst. Public Defender, for appellant (defendant).
Judith Rossi, Asst. State's Atty., with whom, on the brief was Michael Dearington, State's Atty., for appellee (state).
Before PETERS, C.J., and SHEA, CALLAHAN, GLASS, COVELLO, HULL and SANTANIELLO, JJ.
The defendant, Christofe P. Belle, was charged in a substitute information with the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70 1 and burglary in the second degree in violation of General Statutes § 53a-102. 2 After a jury trial, he was acquitted of the charged offenses, but was convicted of criminal trespass in the second degree; General Statutes § 53a-108; 3 a lesser included offense of burglary in the second degree. The trial court thereupon sentenced the defendant to an unconditional discharge. On appeal from this judgment, the defendant challenges: (1) the trial court's admission into evidence of the testimony of three state's witnesses whose statements had been destroyed by the investigating police department prior to the commencement of trial; and (2) the trial court's refusal to instruct the jury on the affirmative defense to criminal trespass in the second degree. We initially heard arguments in this case in January, 1990. Thereafter, we requested, sua sponte, further argument en banc. We now affirm the judgment of the trial court.
The jury could reasonably have found the following facts. During the summer of 1986, M and T, female students at Southern Connecticut State University (SCSU) in New Haven, were living on the fifth floor in Chase Hall, a residential dormitory on the SCSU campus. At approximately 6 p.m. on August 1, 1986, the two women left Chase Hall to walk to Skidder's, a nearby bar and dancing establishment. Upon discovering that Skidder's was not yet open for the evening, they decided to go first to Pizza Pal, where they shared a pizza and a pitcher of beer, and then to a bar, the New West Cafe.
While at the New West Cafe, M and T met three men, the defendant, Jacques and Fran. They spoke with the men and learned during their conversation that the men were originally from France but were presently living in Branford where they worked as pastry chefs. At approximately 10 p.m., M and T decided to walk to Skidder's and made informal arrangements to meet the three men there later.
M and T saw the three men thereafter at Skidder's and joined them for conversation and dancing. At approximately 11:30 p.m., M left Skidder's with Fran and took him to her room at Chase Hall dormitory. M used her key to obtain entry through the back door. Once in M's room, M and Fran removed their clothes and engaged in consensual sexual intercourse. They then returned to Skidder's at approximately midnight.
At some point during the course of the evening at Skidder's, T had a conversation with a college friend who had formerly lived in Chase Hall. They discussed the fact that, without a key, entry into Chase Hall could be achieved by scaling the building and climbing into the dormitory through an upper floor window. During this conversation, Jacques was standing behind T and overheard the discussion.
At closing time, approximately 2 a.m., M and T left Skidder's, having made no arrangements subsequently to meet the defendant, Fran and Jacques. When the women arrived at Chase Hall, they entered the back door of the locked dormitory with a key and went upstairs into the fifth floor lounge to eat sandwiches that they had just purchased. The women went to their respective rooms in the dormitory at approximately 2:30 a.m.
M went to bed wearing a tee shirt and underwear and left her door unlocked and ajar. M testified that she was a very deep sleeper, but that she was awakened at 4 a.m. by two men, one of whom she recognized as Fran and the other as the defendant, standing in her room. She testified that first Fran and then the defendant proceeded to engage in sexual intercourse with her. According to M, she was "in and out of sleep" during the entire incident.
T testified that she was awakened at approximately 4 a.m. by several knocks on her door. Unlike M, T stated that she had locked the door to her room prior to getting into bed. When she heard the knocks, she got up and found Jacques standing at her door. He told her that he wanted to see her. When asked how he had gotten into the building, Jacques responded: "Through the window like you said." T became concerned when she learned that the defendant and Fran were in M's room, so she decided to check on M. Jacques followed T and eventually cut ahead of her. He then opened the closed door to M's room, said "Oops, sorry," closed the door, and then returned with T to T's room. T testified that she did not hear any yelling or screaming from M's room. When T got back into her room, Jacques made sexual advances that T refused.
T then saw a shadow in the bathroom adjoining her room. When T asked who it was and got no answer, she walked over to the bathroom and saw Fran standing there in his underwear. She started yelling at Fran and then ran to M's room. When T threw open M's door, the defendant, who was not clothed, was either on top of M or had just gotten off of her. T became extremely upset and yelled at Fran and the defendant. She subsequently escorted all three of the men down the elevator and out of the building.
T then returned to M's room and found M crying, standing by her closet. M told T that the men had hurt her and that she wanted T to call the police. T immediately called the SCSU police who arrived within five minutes. They interviewed M and T and then took them to Yale-New Haven Hospital where M was examined and released.
Officer Thomas Buell of the campus police conducted an examination of the exterior windows of Chase Hall and found an open window with no screen in the third floor lobby and also found a sneaker print on the windowsill. He testified that during the six years that he had been an officer at the university, it was "quite a common practice for students and nonstudents alike" to enter Chase Hall through the windows. Later in the morning of August 2, 1986, Detective Robert Coffey of the New Haven police department arrived at Chase Hall to begin the department's investigation into the alleged crimes.
Although the defendant did not testify at trial, a statement that he had given Coffey while he was being held in custody on unrelated charges was introduced at trial. 4 The defendant had admitted to Coffey that he had been in the dormitory on the SCSU campus on August 2, 1986, and that he thought his friend had engaged in sexual acts with a young woman in the dormitory. The defendant denied in his statement to Coffey, however, that he had engaged in any such activities with the woman. At trial, during cross-examination of M and during his closing argument, the defendant suggested that M had consented to any sexual activities that had occurred during the early morning hours of August 2, 1986.
The defendant first claims that the trial court should not have admitted into evidence the testimony of M, T and Coffey. The defendant's argument is based on the fact that the New Haven police destroyed statements of these witnesses prior to the commencement of trial. According to the defendant, the state's consequent failure to produce the statements pursuant to General Statutes § 54-86b 5 and Practice Book § 752 et seq. 6 so prejudiced him that the court's refusal to strike the trial testimony of the three witnesses requires reversal of his conviction. We do not agree.
The following facts are relevant to the defendant's claim. On the morning of August 2, 1986, M and T were interviewed by Coffey. During the course of these interviews, the detective took notes on the back of an "8- 1/2 by 11 scrap paper folded into quarters." He later incorporated the information from these notes into his police report and discarded the paper containing the written notes.
On August 4 and 9, 1986, Coffey took tape recorded statements from T and M, respectively. Five days after T gave her statement, she reviewed a transcription of that statement, made minor changes in the transcription and then signed it. M reviewed and signed, without making changes, a transcription of her tape recorded statement three days after she had given the statement. In both instances the tapes were erased subsequent to their transcription pursuant to a routine police procedure of erasing and reusing such tapes.
On June 6, 1987, the defendant was arraigned in New Haven on unrelated charges. Coffey had called M to ask her to come to the court house to see if she could identify the defendant as her assailant. M identified the defendant as one of the men who allegedly had sexually assaulted her on August 2, 1986. Subsequent to making the identification, M gave a tape recorded statement to Coffey regarding the identification procedure. The tape was transcribed and was then erased. M did not review this latter transcription until the pretrial hearing one year later when she adopted it as her own.
Because the destruction of the detective's notes and of M's and T's tape recorded statements would render impossible the state's compliance with General Statutes § 54-86b and Practice Book § 752 et seq., the defendant filed a pretrial motion requesting that the court exclude at trial the testimony of M, T and Coffey. A hearing on this motion was held prior to the commencement of trial, during which testimony was heard from M, T, Coffey and another police officer involved in the investigation of the crimes with which the defendant was charged. The testimony elicited at...
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