State v. Dedrick

• Decision Date: 30 April 1991
• Docket Number: No. 8417,8417
• Citation: 589 A.2d 1241,24 Conn.App. 518
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Leonard DEDRICK.

Page 1241

589 A.2d 1241

24 Conn.App. 518

STATE of Connecticut v. Leonard DEDRICK.

No. 8417.

Appellate Court of Connecticut.

Argued Feb. 15, 1991.

Decided April 30, 1991.

Stephen V. Moran, Asst. Public Defender, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and John Smriga and Frederick W. Fawcett, Asst. State's Attys., for appellee (state).

Before DALY, NORCOTT and FOTI, JJ.

FOTI, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134(a)(3), and of assault in the third degree in violation of General Statutes § 53a-61(a)(1). The defendant claims that the trial court improperly (1) denied his motion to strike certain testimony, and (2) failed to give the jury a requested lesser included offense instruction with respect to the charge of robbery in the first degree. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On October 13, 1988, at approximately 5:35 a.m., Gerald Grant left his home and went to a twenty-four hour convenience store to purchase cigarettes. After leaving the store he was approached by the defendant, who attempted to sell him a white substance contained in a small glass bottle. When Grant refused, three other individuals approached and grabbed and struck him, causing him to lose consciousness. As he regained consciousness, he was aware of someone going through his pockets. He was then thrown to the ground and kicked twice by the defendant. Someone other than the defendant told Grant to "give him the money and he'll stop beating you." Grant was then picked up and placed across a car, where the defendant put a knife to Grant's throat and threatened to cut Grant's throat if he did not give him money. Grant then reached into his pocket and gave the defendant between $260 and $270.

After being denied the use of the telephone at the store, Grant used a phone booth near the store to call 911 to summon the police. After their arrival, the police brought Grant to a street a few blocks away, where he identified the defendant.

The defendant challenges the court's failure to strike Grant's testimony because the police erased the tape of his emergency 911 call. The following facts are relevant to this claim. During the direct examination of Grant, the defendant, in the absence of the jury, requested that Grant's testimony be stricken, citing State v. Williamson, 14 Conn.App. 108, 552 A.2d 815 (1988), aff'd, 212 Conn. 6, 562 A.2d 470 (1989), ¹ and representing that a 911 tape of Grant's call to the police had been erased. The court denied the motion. Subsequently, during a hearing on a motion to suppress identification the issue again arose and the defendant asserted that he had subpoenaed the records of Grant's calls to the police and had been informed that, as a matter of routine policy, the tape had been erased sixty days after the call. Without further offer, the defendant, again citing Williamson, moved to strike Grant's testimony. The court informed the defendant's counsel that a record had to be developed on which to predicate a ruling, and that oral statements of counsel did not constitute evidence. The issue was not raised again until after the verdict when, for the first time, the defendant filed a written motion to strike Grant's testimony. A hearing was held and the defendant examined his first and only witness, Sergeant Robert Lomax, supervisor of the communications division of the Bridgeport police department. Lomax testified that the tape of the 911 call had been destroyed after sixty days, that normally such tapes are held for thirty to sixty days for purposes of inquiries and that then the tapes are reused. He did, however, have a copy of the complaint dispatch, which is a nonverbatim record of the Grant phone call. The transcription indicated that the victim had been robbed by five black males who were on the corner of Fifth Street and Stratford Avenue, that one was wearing a green army jacket, two had black jackets and one a gray hooded shirt. The complainant was to be met in front of Faces Cafe. The court denied the defendant's motion to strike.

Although the record may be far from ideal, it is not so inadequate that we will not accept the review of this proffered issue.

The state concedes that the tape of the 911 emergency call constituted a "statement" within the definition provided by Practice Book § 749(2). ² State v. Williamson, supra, 14 Conn.App. at 112-13, 552 A.2d 815. The defendant concedes that the tape was not destroyed in bad faith, or by deliberate act done with intent to deprive the defense of information; see State v. Santangelo, 205 Conn. 578, 587, 534 A.2d 1175 (1987); but rather by intentional nonpreservation. See State v. Williamson, supra, 212 Conn. at 16, 562 A.2d 470. Our Supreme Court has recently stated the law regarding such destruction. " '[I]f a case involves intentional, but not bad faith, destruction of the statement of a state's witness, an automatic sanction of striking that witness' testimony is not required....' State v. Johnson, 214 Conn. 161, 168, 571 A.2d 79 (1990). Rather, under such circumstances 'it is appropriate that the court weigh " 'the culpability of the state for its failure to make disclosable material available on the one hand, against any resulting prejudice to the defendant on the other....' " This approach gives broad discretion to the trial court.... Where ... the destruction of a witness' statement, although not in bad faith, is deliberate, the state properly bears the burden of establishing harmlessness.... "[T]he proper harmless error inquiry is whether the result of the trial may have been different had the state not violated the rule." ...' " (Citations omitted.) State v. Belle, 215 Conn. 257, 268, 576 A.2d 139 (1990).

Our careful review of the record indicates that the state has sustained its burden of establishing harmlessness. On the particular circumstances of this case, because the defendant is not claiming that his ability to cross-examine Grant was affected by the tape's destruction, there is no claimed violation of the confrontation clause of the sixth amendment, and, therefore, the state need not prove harmlessness beyond a reasonable doubt. See State v. Belle, supra, at 271-72, 576 A.2d 139; State v. Johnson, supra, 214 Conn. 161, 173-74, 571 A.2d 79 (1990); see also In re Jesus C., 21 Conn.App. 645, 575 A.2d 1031 (1990). Although a violation of the defendant's right to discovery did occur when the tape was destroyed, the impact of that violation was lessened due to the existence of the complaint report that was available to the defendant. The substance of the statements on the tape was the time of the incident, the number and the descriptions of the assailants, where Grant could meet the police and where the assailants could be found....