State v. Cain

• Decision Date: 25 August 1992
• Docket Number: No. 14407,14407
• Citation: 613 A.2d 804,223 Conn. 731
• Court: Connecticut Supreme Court
• Parties: , 61 USLW 2219 STATE of Connecticut v. Anthony CAIN.

Page 804

613 A.2d 804

223 Conn. 731, 61 USLW 2219

STATE of Connecticut v. Anthony CAIN.

No. 14407.

Supreme Court of Connecticut.

Argued June 4, 1992.

Decided Aug. 25, 1992.

Berdon, J., filed dissenting opinion.

Richard Emanuel, Asst. Public Defender, with whom, on the brief, were G. Douglas Nash, Public Defender, and Suzanne Zitser and Kent Drager, Asst. Public Defenders, for appellant (defendant).

Harry Weller, Assistant State's Atty., with whom, on the brief, were Mary Galvin, State's Atty., and Frank McQuade, Supervisory Asst. State's Atty., for appellee (state).

Max S. Case, Milford, filed a brief for the city of Milford as amicus curiae.

Before PETERS, C.J., and CALLAHAN, GLASS, BORDEN and BERDON, JJ.

BORDEN, Associate Justice.

The dispositive issue of this appeal is whether a 911 emergency telephone call is a "statement" within the meaning of Practice Book § 749(2). ¹ The defendant, Anthony Cain, appeals, upon our grant of certification, from the judgment of the Appellate Court affirming the trial court's judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70, ² and burglary in the third degree in violation of General Statutes § 53a-103. ³ The defendant claims that the judgment of the Appellate Court should be reversed because the unavailability of the tape recording of the victim's 911 telephone call and the failure of the trial court to strike the testimony of the victim in light of that unavailability violated the defendant's rights under Practice Book § 752, ⁴ General Statutes § 54-86b, ⁵ and his federal and state constitutional rights of confrontation. ⁶ We hold that a tape recording of a 911 emergency telephone call is not a "statement" within the meaning of either Practice Book § 749 or General Statutes § 54-86b, and that, therefore, the state was not required by the provisions of the Practice Book to preserve and produce the tape recording in question. Accordingly, we affirm the judgment of the Appellate Court.

The relevant facts were stated by the Appellate Court: "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 did not 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 this room until the defendant left the apartment.

"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." State v. Cain, 25 Conn.App. 503, 505-506, 596 A.2d 449 (1991).

On appeal to the Appellate Court, the defendant claimed that the trial court improperly denied his motion to strike the testimony of the victim, because of the state's failure to produce the tape of her 911 telephone call. Id., at 507, 596 A.2d 449. The Appellate Court stated the following facts that were necessary for the resolution of that 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....' Although the 911 call was tape-recorded when it was made, this tape was erased thirty days after the incident pursuant to Milford police department policy. Consequently, the state was unable to produce the tape 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 tape could have explained the discrepancy between the victim's testimony and that of her friend, and that its nonproduction violated his right to confrontation as guaranteed under the state and federal constitutions." Id., at 508-509, 596 A.2d 449.

The Appellate Court held, in accordance with an acknowledgment by the state, that the tape recording of the 911 call was a "statement" within the meaning of Practice Book § 749(2). Id., at 509, 596 A.2d 449. It also held that, since the erasure of the tape had not been done in bad faith; see State v. Williamson, 212 Conn. 6, 16, 562 A.2d 470 (1989) (in context of violation of Practice Book § 752, "bad faith" means done with intent to deprive defendant of information); the defendant's constitutional right of confrontation had not been violated, and that the violation of Practice Book § 752 was harmless. State v. Cain, supra, 25 Conn.App. at 510-11, 596 A.2d 449.

The Appellate Court also held, however, that "because ... the indefinite preservation of 911 tapes can place an unreasonable burden on police departments"; id., at 512, 596 A.2d 449; henceforth, 911 tapes "are excluded from that portion of Practice Book § 752 that states that a defendant may refrain from moving for production of statements until after a state's witness has testified." Id. The court mandated that police departments preserve all 911 tapes for one year "from the date of the 911 call." Id. If within that period a defendant had not requested the preservation of a 911 recording, the police department would be free to erase and reuse the tape; if the defendant had requested the tape's preservation, erasure of the tape would be a per se violation of Practice Book § 751 et seq. and General Statutes § 54-86b requiring the trial court to strike the testimony of the witness who had made the 911 call. Id., at 513, 596 A.2d 449. Recognizing, however, that in some cases there may not have been an arrest within a reasonable time after the 911 call, the court held that if "the police investigation [were] protracted ... the police shall bear the burden of preserving the tape for one year from the date of arrest." Id., at 513-14, 596 A.2d 449.

We granted the defendant's petition for certification, as supplemented by the state's response thereto. ⁷ This appeal followed.

With respect to the first certified question; see footnote 7, supra; the defendant argues that, first, under the plain language of Practice Book § 749(2), a tape recording of a 911 telephone call is a "statement," ⁸ that second, such tapes are in the possession of the state or its agents, including not only police departments but all municipalities, and third, it is foreseeable that such tapes might be relevant to criminal prosecutions. Therefore, the defendant contends that such tapes must be preserved by the state and produced upon request of the defendant pursuant to Practice Book § 752. We disagree. ⁹ We conclude on the contrary, that despite the fact that the language of Practice Book § 749(2), read literally, would cover the tape recording of a 911 telephone call, it is not within the intent of that language to cover such a tape recording and that, therefore, a tape recording of a 911 telephone call is not a "statement" within the meaning of § 749(2) that is subject to preservation and to disclosure pursuant to § 752. ¹⁰

We begin with a history and description of the 911 emergency telephone call system in our state. ¹¹ In 1968, the American Telephone and Telegraph Company (AT & T) designated 911 as a nationwide, universal emergency telephone number. Statewide Emergency Communications Study Commission Final Report to the Connecticut General Assembly (1980). After a series of public acts regarding the study and implementation of such a system statewide; see Spec. Acts 1978, No. 35; Spec. Acts 1979, No. 56; Public Acts 1980, No. 80-360; and Public Acts 1981, No. 81-458; in 1984, the legislature enacted what are now General Statutes §§ 28-25 through 28-29b, ¹² requiring, inter alia, that "[e]ach municipality shall, not later than December 31, 1989, establish and operate a public safety answering point which utilizes enhanced 9-1-1 network features." General Statutes § 28-25a(b). Pursuant to these statutes, each municipality maintains, on a twenty-four hour basis, a "public safety answering point." A " '[p]ublic safety answering point' means a facility, operated on a twenty-four hour basis, assigned the responsibility of receiving 9-1-1 calls and, as appropriate, directly dispatching emergency response services, or transferring or relaying emergency 9-1-1 calls to other public safety agencies. A public safety answering point is the first point of reception by a public safety agency of a 9-1-1 call and serves the jurisdictions in which it is located or other...