State v. Daugaard

• Decision Date: 04 November 1993
• Docket Number: No. 10709,10709
• Citation: 32 Conn.App. 483,630 A.2d 96
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. William DAUGAARD.

Page 96

630 A.2d 96

32 Conn.App. 483

STATE of Connecticut v. William DAUGAARD.

No. 10709.

Appellate Court of Connecticut.

Argued June 1, 1993.

Decided Aug. 17, 1993.

Certification Granted Limited to the Following Issue

Nov. 4, 1993.

Brian S. Carlow, Asst. Public Defender, for appellant (defendant).

John A. East III, Deputy Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Mary Elizabeth Baran, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and DALY and SCHALLER JJ.

DUPONT, Chief Judge.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree, in violation of General Statutes § 53a-70(a)(1). He claims that (1) the state's suppression of allegedly material evidence favorable to him violated his constitutional right to a fair trial, (2) the trial court abused its discretion by denying his request for a continuance so that he could subpoena the victim to testify, (3) the trial court improperly admitted evidence that was obtained pursuant to an illegal warrantless arrest, and (4) the trial court improperly admitted testimony detailing the defendant's invocation of various constitutional rights. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 11 p.m. on May 30, 1990, the victim was sitting on the front steps of her apartment building in West Haven when Michael Murray, Kristen Anderson and the defendant arrived in the defendant's car. Murray lived in the same building and he and Anderson were friends of the victim, but the defendant was unknown to the victim.

Murray invited the victim to his apartment, and the four drank there until the liquor they had was consumed. The victim then said that she knew the location of an after-hours club where they could purchase more. The defendant and the victim left to purchase liquor. The defendant told the victim that he wanted to drive because the car belonged to his sister and was not registered.

When the victim noticed that the defendant was ignoring her directions, she became frightened and demanded that the defendant drive her back to Murray's apartment. The defendant told the victim that "she wasn't going anywhere" and that he was "taking her to Las Vegas to be a prostitute." The defendant then punched the victim in the face and forced her head under the dashboard so that she was unable to see where they were going, although she was able briefly to see a highway sign that read "Wallingford-North Haven."

The victim testified that eventually the defendant drove the car off the highway to a secluded spot down a small, narrow road lined with tall weeds. The victim testified that she could see cars on the highway nearby, but that the area where the car had stopped was secluded and that there was no way that she could escape. The defendant pulled the victim into the backseat of the car and sexually assaulted her. After the attack, the defendant allowed the victim to leave the car and she walked to the highway and hitchhiked back to the apartment building.

Upon arriving at Murray's apartment, the victim related details of the attack to Anderson and Murray, who called the West Haven police department. A West Haven police officer took the victim to Yale-New Haven Hospital where she was examined by several physicians. The victim was then interviewed at the hospital by Detectives Theodore Milewski and Patricia Miranda of the Wallingford police department. After the victim was released from the hospital, the detectives twice unsuccessfully attempted to ascertain the location of the attack by driving around the New Haven area with the victim.

The morning following the assault, the West Haven police received a call from the defendant's sister complaining that the defendant had taken her car without her permission on the previous evening. The West Haven police arrested the defendant, without a warrant, at his sister's house where he lived, and charged him with using his sister's car without permission in violation of General Statutes § 53a-119b. Later, while the defendant was incarcerated at the West Haven police station in connection with the car theft, detectives from the Wallingford police department interviewed him in connection with their investigation of the sexual assault.

I

The defendant's first claim is that the state withheld favorable and material evidence from him, thus violating his constitutional right to a fair trial. Related to this claim is the defendant's assertion that the trial court abused its discretion by denying his request for a continuance so that he could subpoena the victim to testify as a defense witness regarding the evidence that the state allegedly withheld from him. Both parties agree that the two claims are interrelated, and we, therefore, will consider them together.

Prior to trial, the defendant moved to compel the state to disclose all exculpatory information and materials. The motion was granted and the state turned over numerous documents to the defendant. Later, at the conclusion of the victim's direct testimony at trial, the state gave the defendant a copy of the victim's formal statement as required by General Statutes § 54-86b and Practice Book § 752. ¹ The defendant then conducted a voir dire examination of the victim to determine whether any discoverable materials existed in addition to those already disclosed. After voir dire, the defendant served a subpoena on the Wallingford police department seeking all police reports prepared in the course of their investigation. In response, the requested reports, including two narrative reports prepared by Miranda, were delivered to the court, which ordered that they be sealed and marked as a court's exhibit.

The defendant requested that the court, Ripley, J., conduct an in camera review of the sealed reports in order to ascertain whether the defendant was entitled to any of them pursuant to the court's earlier discovery order. The court refused. The trial continued, and the defendant conducted an extensive cross-examination of the victim. Upon completion of her testimony, the victim returned to California where she had relocated after the incident.

The state proceeded to present its case, including testimony by Miranda. At the completion of Miranda's direct testimony, the state provided the defendant with two narrative reports Miranda had prepared. The first of these reports, defense exhibit eleven for identification, comprises the basis of the defendant's claims. ² Miranda's report states that while she and Milewski were driving around with the victim on the morning following the assault in an attempt to locate the scene of the assault, the victim "mentioned that she believed the location of the sexual assault was in a rest area off the highway, which had a tourist information center."

After receiving the report, the defendant moved to compel the state to produce the victim and to reopen her cross-examination, claiming that the victim's description of the location of the assault, as related in Miranda's report, contradicted the victim's testimony on direct examination ³ and the description in her formal statement. ⁴ The court denied the motion. The defendant then moved for a continuance so that he could subpoena the victim and present her as part of his case. This motion was also denied. The defendant was permitted, however, to cross-examine Miranda regarding the victim's statement that the location of the assault was "in a rest area off the highway." In response to defense questioning, Miranda testified that her report was in error and that the victim had told her that the attack had taken place "near" a rest area, not "in" a rest area as stated in her report.

A

We first address the defendant's contention that his due process rights were violated by the state's suppression of material evidence favorable to him after he specifically requested it. It is well established that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963); Demers v. State, 209 Conn. 143, 149, 547 A.2d 28 (1988); State v. Pollitt, 205 Conn. 132, 141, 531 A.2d 125 (1987). To establish a Brady violation, the defendant has the burden of demonstrating (1) that the state suppressed evidence after a request by the defense, (2) that the evidence was favorable to the defense, and (3) that the evidence was material. Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2567-68, 33 L.Ed.2d 706 (1972); State v. Rasmussen, 225 Conn. 55, 90, 621 A.2d 728 (1993); State v. Shannon, 212 Conn. 387, 398, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S.Ct. 510, 107 L.Ed.2d 512 (1989); Demers v. State, supra, 209 Conn. at 150, 547 A.2d 28. "To prevail on a claimed violation of Brady and its progeny, a defendant must establish each of these three prongs." State v. Green, 194 Conn. 258, 263, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S.Ct. 964, 83 L.Ed.2d 969 (1985).

It is undisputed that Miranda's report was provided to the defense at the completion of her direct testimony. The defendant concedes that disclosures made at trial may comport with constitutional requirements under certain circumstances, but argues that disclosure must be made at a time when it can effectively be used at trial. The defendant contends that because the report was not disclosed prior to the victim's return to California, he was precluded from effectively utilizing the report. ⁵ We agree with the defendant that due process requires Brady material to be disclosed to the defendant in such a manner that he may effectively utilize it at trial.

"The circumstance that claimed...