State v. Cain, s. 8056
| Citation | 25 Conn.App. 503,596 A.2d 449 |
| Decision Date | 13 November 1991 |
| Docket Number | Nos. 8056,8057,s. 8056 |
| Court | Appellate Court of Connecticut |
| Parties | STATE of Connecticut v. Anthony CAIN. |
Richard Emanuel, Asst. Public Defender, with whom, on the brief, were G. Douglas Nash, Public Defender, Suzanne Zitser, Asst. Public Defender, and Kent Drager, Asst. Public Defender, for the appellant (defendant).
Harry Weller, Asst. State's Atty., with whom, on the brief, were Mary Galvin, State's Atty., Frank McQuade, Supervisory Asst. State's Atty., and Kathryn St. Amand, Law Student Intern, for appellee (state).
Before DALY, NORCOTT and HEIMAN, JJ.
The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70, burglary in the third degree in violation of General Statutes § 53a-103, and one count of harassment in violation of General Statutes § 53a-183(a)(3). 1 The defendant claims that the trial court improperly (1) denied his motion to strike certain testimony despite the state's failure to produce relevant 911 and police broadcast tapes, (2) denied his motion for severance, (3) violated his right to due process by allowing the elicitation of evidence of his invocation of his constitutional rights, (4) denied his motion for a judgment of acquittal on the burglary and harassment counts despite insufficient evidence, (5) instructed the jury on the elements of sexual assault in the first degree, and (6) refused to exclude a state's exhibit. We affirm the judgment of the trial court.
The following facts are necessary for the resolution of this case. From 1985 until December, 1987, the defendant and the victim were romantically involved. In December, 1987, the victim severed her relationship with the defendant. After their breakup, the defendant began repeatedly calling the victim at home and at work. On January 23, 1988, the defendant telephoned the victim and threatened her, stating that she would be sorry if she didn't get back together with him. The victim filed a complaint with the Milford police department, but did not seek the defendant's arrest at that time.
On February 14, 1988, the defendant telephoned the victim at her apartment and asked her to go to lunch with him. She refused his invitation and turned on her answering machine to avoid further calls from him. After the victim showered and got dressed, she noticed that her cat was standing by the door. She opened the door and the defendant forced his way into her apartment, forced her onto the sofa, and sexually assaulted her. The victim then retreated to the bathroom and locked the bathroom door behind her. She stayed in After the defendant left her apartment, the victim called a friend, who advised the victim to call 911. The victim then dialed 911 and reported that she had been sexually assaulted and named the defendant as her assailant. The defendant was arrested and charged with first degree sexual assault and burglary in the third degree, and was released on bond.
this room until the defendant left the apartment.
On February 16, 1988, the victim began to keep a written record of telephone calls from the defendant. On February 17, she logged seventy calls. The police put a trap on the defendant's business telephone line and it registered thirty-four calls to the victim on February 16 and 17, 1988. The defendant made additional calls to the victim on February 18, 1988. The defendant was arrested again and charged with harassment. He was again released on bond with the condition that he stay away from the victim. His bond was later raised to $100,000 after he admitted that he had violated that condition. Although he could not raise this amount initially, he was later released after posting the bond.
On June 21, 1988, the defendant phoned the victim at her health club. As a result of this phone call, the defendant was again arrested and charged with harassment and tampering with a witness.
The defendant moved for acquittal on all charges at the close of the state's case, claiming that there was insufficient evidence to prove the defendant's guilt. The court granted the defendant's motion as to the harassment charges that arose out of the telephone calls of February 16, 17, and 18, 1988, and as to the charges of tampering with a witness that arose out of a telephone call to the victim's health club on June 21, 1988.
The defendant first claims that the trial court improperly denied his motion to strike certain testimony based on the state's failure to produce the 911 and police broadcast tapes. As a preliminary matter, we note that the defendant never moved to strike any of the officers' testimony relating to the police broadcast tapes at trial. Practice Book § 4185 provides in pertinent part that this court "shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial." Further, the defendant bears the burden of seeking a definitive ruling on the striking of each witnesses' testimony, after each has testified at trial, in order to comply fully with our rules of practice and to preserve his claim of error as to each witness. State v. Johnson, 214 Conn. 161, 170, 571 A.2d 79 (1990). Because the defendant did not properly preserve his claim with respect to the police broadcast tapes, we will not consider it. We therefore focus our analysis solely on the trial court's refusal to strike the victim's testimony in light of the Milford police department's destruction of the 911 tape.
The following facts are necessary to the resolution of this claim. At trial, the victim testified that when she called her friend after the defendant had left the apartment, she told her, "Tony assaulted me." The victim also testified that when she dialed 911 to report the incident, she told the police that the defendant had raped her. When the victim's friend testified, she stated that when the victim telephoned her immediately after the incident she said, "Tony hit me."
Before the trial began, the trial court granted the defendant's motion for discovery seeking "[c]opies of statements of prosecution witnesses in the possession of the State or its agents, including state and local law enforcement officers, which statements relate to the subject matter about which the witness will testify...." 2 Although the 911 call was tape-recorded when it was made, this tape was erased Although the law in this area is still evolving, past cases have analyzed the destruction of 911 tape recordings in the same way that we have analyzed the destruction of any other recorded statement. Compare State v. Pollitt, 205 Conn. 61, 85-87, 530 A.2d 155 (1987) (), with State v. Belle, 215 Conn. 257, 268, 576 A.2d 139 (1990) ().
thirty days after the incident pursuant to Milford police department policy. Consequently, the state was unable to produce the tapes at the time of trial. The defendant contends that the destruction of the 911 tape and the state's inability to produce it violated his rights under General Statutes § 54-86b and Practice Book § 752. He also alleges that the 911 tapes could have explained the discrepancy between the victim's testimony and that of her friend, [25 Conn.App. 509] and that its nonproduction violated his right to confrontation as guaranteed under the state and federal constitutions. We agree with the defendant that the state's failure to produce the 911 tape violated our rules of practice, but we conclude, nonetheless, that this violation was harmless on the facts of this case
Practice Book § 752 provides that, upon a defendant's request, the state must disclose "any statement of the witness in the possession of the state or its agents...." See General Statutes § 54-86b. The disclosure provisions of § 54-86b and Practice Book § 752 apply to a 911 tape recording. State v. Williamson, 14 Conn.App. 108, 112-13, 552 A.2d 815 (1988), aff'd, 212 Conn. 6, 562 A.2d 470 (1989). The state was unable to comply with this requirement at trial because of the police department's routine erasure of the 911 tape.
The state acknowledges that the 911 tape is a statement within the meaning of Practice Book § 749(2), 3 and the defendant concedes that the tape was not destroyed in bad faith, 4 or by a deliberate act intended to thwart the defense. Where, as here, ...' " (Citations omitted.) State v. Belle, supra; State v. Dedrick, 24 Conn.App. 518, 589 A.2d 1241 (1991). Where the state's failure to produce the tape rises to the level of a denial of the defendant's right to confrontation the state must prove harmlessness beyond a reasonable doubt. State v. Johnson, 214 Conn. 161, 175, 571 A.2d 79 (1990). Where the state's failure does not rise to this level, however, the appropriate inquiry is whether the...
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