State v. Coriano

• Decision Date: 09 October 1987
• Docket Number: No. 4900,4900
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Heriberto CORIANO.

Page 197

530 A.2d 197

12 Conn.App. 196

STATE of Connecticut v. Heriberto CORIANO.

No. 4900.

Appellate Court of Connecticut.

Argued May 5, 1987.

Decided Sept. 1, 1987.

Certification Denied Oct. 9, 1987.

Elsa M. Calderon, Asst. Public Defender, for appellant (defendant).

Harry Weller, Deputy Asst. State's Atty., with whom, on brief, were Arnold Markle, State's Atty., and Michael Lawlor, Former Asst. State's Atty., for appellee (state).

Before BORDEN, BIELUCH and SAMUEL S. FREEDMAN, JJ.

SAMUEL S. FREEDMAN, Judge.

After a trial to a jury on charges of burglary in the third degree in violation of General Statutes § 53a-103 and larceny in the third degree in violation of General Statutes § 53a-124, the defendant was acquitted of larceny in the third degree but convicted of burglary in the third degree. He appeals from that conviction. This appeal generates five issues. It asks whether the court erred (1) in refusing to strike testimony of the complainant because the police erased a recording of his emergency call reporting the crime, (2) in denying the defendant's motions for mistrial, (3) in denying the defendant's motion for judgment of acquittal, (4) in admitting evidence of an act of prior misconduct for the purpose of impeaching the defendant, and (5) in its jury instructions on the crime of burglary and the use of fingerprint evidence. We find no error.

The jury could reasonably have found the following facts. On December 17, 1984, the victim, Dean Andrews, following his usual routine, left his home between 7 and 8 a.m. His house was fronted by a porch and had double-hung windows on either side of the front door, both covered by storm windows. Because of debris left in front of the lefthand window, it had been inaccessible from the outside since Labor Day of 1984.

Returning home that evening, Andrews saw that someone had made a path through the debris to the window. There were markings on the storm window, and its glass and the glass of the inner window were both broken. Some large pieces of broken glass were lying around. The telephone inside the house was ripped from the wall. Andrews' revolver and rifle were missing. Andrews, using a neighbor's phone, then called the police to report a burglary. Officer Herman Badger responded to the call approximately forty-five minutes later. Badger put six pieces of broken glass into a plastic bag and took them to police headquarters where they were checked for fingerprints. One piece of glass had three fingerprints on it, two on one side and one on the other.

At a later date, Andrews informed the police that the defendant, a former employee, could have been responsible for the incident. He had been at Andrews' house the Friday after Thanksgiving, 1984, and also lived with a woman who sometimes worked for Andrews as a house cleaner. Andrews had fired the defendant from his employment on December 8, 1984. The defendant had previously filed a workers' compensation claim against Andrews based on a back injury suffered at his place of employment. Andrews also told the police that other items had been taken besides those already reported, but that his insurance company had paid him for them.

Comparing the defendant's prints with those from the broken glass, the police determined that two prints on one side of the glass matched the defendant's index and middle fingers and the print on the other side matched the defendant's thumb. A police expert was able to conclude, on the basis of all the evidence, that the prints were placed there at the same time the glass was removed.

The defendant testified and presented a defense of alibi. He stated that while doing yard work the day after Thanksgiving he was bothered by back pain and leaned against the window in question, touching it. He said that later that day he was inside the house and leaned on the inside of the window while looking out, again touching it. He stated he never opened the inside window or the storm window. He further stated he was home in bed the entire day on December 17, 1984, at the suggestion of a doctor, because of back pain. Sonia Figueroa, with whom he lived, testified in corroboration of his alibi.

During the trial, the defendant's veracity was impeached by the state by evidence that he had lied under oath in a prior legal proceeding. The defendant responded that he was without an interpreter and had not understood the judge's questions at that proceeding or the proceeding itself. The defendant also attempted unsuccessfully to impeach the character of Andrews for truthfulness.

Testimony at trial further revealed that the New Haven police had erased a tape recording of the victim's emergency call reporting the burglary.

I

Relying on State v. Myers, 193 Conn. 457, 467-68, 479 A.2d 199 (1984), and Practice Book §§ 748 et seq., the defendant claims that destruction of the victim's recorded telephone call, which he maintains was a "Jencks statement," ¹ deprived him of his constitutional right of confrontation. He argues that the recording could have contained inconsistent impeachment material. We cannot agree. The right under the rules of practice to statements of witnesses after direct examination is not a right of constitutional magnitude. United States v. Augenblick, 393 U.S. 348, 356, 89 S.Ct. 528, 533, 21 L.Ed.2d 537 (1969), on remand, 509 F.2d 1157, 206 Ct.Cl. 74, cert. denied, 422 U.S. 1007, 95 S.Ct. 2628, 45 L.Ed.2d 669 (1975); State v. Vessichio, 197 Conn. 644, 661-62, 500 A.2d 1311 (1985), cert. denied, --- U.S. ----, 106 S.Ct. 1642, 90 L.Ed.2d 187 (1986). The defendant therefore bears the burden of showing prejudice. State v. Myers, supra, 193 Conn. at 469 n. 7, 479 A.2d 199.

Under State v. Myers, supra, we do not condone the erasure of the recording. We are, however, required to determine whether it was sufficiently prejudicial to warrant reversal. Under the facts of this case, we conclude it was not. Unlike the anonymous call in State v. Myers, supra, which included a detailed description of the crime, Andrews' call in this case merely reported a burglary to the police and requested assistance. The defendant's counsel had full opportunity to cross-examine at length both the victim and the investigating officer to whom he spoke. Yet, nothing in the record even hints at the existence of impeachment material. The defendant's argument rests on speculation, failing to establish the weakest showing of prejudice.

The state, in a cogent public policy argument, urges us to carve out an exception to State v. Myers, supra, for emergency 911 calls. Despite the appeal of this argument, we decline to accept the invitation. Because the defendant failed to make any threshold showing of prejudice, we need not reach that question and leave it for another day.

II

The defendant next argues that the trial court erred in refusing to grant a mistrial (1) for refusing a continuance to investigate newly discovered fingerprint evidence and for limiting his cross-examination of the complainant for bias, and (2) for the destruction of the recording of the complainant's telephone call. See State v. Hill, 201 Conn. 505, 510, 518 A.2d 388 (1986); State v. Moye, 199 Conn. 389, 395, 507 A.2d 1001 (1986).

Responding to the defendant's motion for discovery, the state agreed to allow inspection of all evidence, including fingerprints. At that time, the state's expert had located three prints on the broken glass, two of which he identified as belonging to the defendant. The defendant's expert had the opportunity to inspect these prints. Just before trial, the state's expert was able to identify the third print as that of the defendant's thumb. The defendant requested preclusion of the additional fingerprint evidence due to late disclosure; see Practice Book § 747; and alternatively requested a continuance for his expert to review the new conclusion. The court denied these motions. After the state's expert testimony was presented, the defendant asked for a mistrial, citing the failure to grant the continuance and the defendant's inability to cross-examine Andrews on bias, interest and motive.

The fingerprint evidence complained of by the defendant was seasonably made available to him after the original disclosure. The defendant's expert was thus able to inspect those prints and draw any conclusion from them he found reasonable. Since he already had the opportunity to view what the defendant later requested, the court's denial of a continuance was not an abuse of discretion. Moreover, nothing prevented the defendant from bringing his expert into the courthouse to look at the prints.

The record also indicates that the defendant's claim of bias by the victim was, in fact, explored on cross-examination by his counsel, and denied by the victim. Accordingly, the first motion for mistrial was properly denied.

We have already concluded that no error resulted from the police erasure of the telephone tape recording. Our review of the record confirms that the trial court did not abuse its discretion in failing to grant the defendant's second motion for mistrial.

III

The defendant alleges that the court erred in denying his motion for judgment of acquittal after the verdict. Essentially, the claim has three prongs: (1) the verdict rested upon fingerprint testimony which cannot stand alone in the absence of evidence indicating that the prints were made at the time of the crime; (2) there was a reasonable hypothesis consistent with innocence concerning the fingerprints; and (3) the defendant's alibi defense, coupled with his explanation of when the fingerprints could have been impressed, created a reasonable doubt as a matter of law.

The defendant's first argument fails because the fingerprint evidence did not stand alone. See State v. Thorpe, 188 Conn. 645, 648-50, 453 A.2d 88 (1982). The defendant knew the victim's work habits; his friend worked in the house; the point of entry was inaccessible from the outside...