State v. Douglas

• Decision Date: 10 March 1987
• Docket Number: Nos. 3989,4182,s. 3989
• Citation: 522 A.2d 302,10 Conn.App. 103
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Willie A. DOUGLAS. STATE of Connecticut v. Richard BUSH, Jr.

Page 302

522 A.2d 302

10 Conn.App. 103

STATE of Connecticut v. Willie A. DOUGLAS.

STATE of Connecticut v. Richard BUSH, Jr.

Nos. 3989, 4182.

Appellate Court of Connecticut.

Argued Dec. 10, 1986.

Decided March 10, 1987.

Leopold P. De Fusco, Special Public Defender, for appellants (defendant in each case)

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Gary Nicholson, Asst. State's Atty. and Donald A. Browne, State's Atty., for appellee (State).

Before HULL, DALY and BIELUCH, JJ.

HULL, Judge.

These two cases, which were tried together and combined on appeal, raise the issue of the conflict between the right of confrontation under the federal ¹ and state constitutions ² and General Statutes § 54-142a, ³ concerning erasure of records after acquittal. The defendants, Bush, Douglas and Jose Morales, and two others, Herbert Johnson and Lonnie Nichols, were each charged with the crimes of attempted robbery in the first degree in violation of General Statutes § 53a-134(a)(1), and aiding in an assault in the first degree in violation of General Statutes § 53a-59(a)(3). Bush, Douglas and Morales were tried in a joint trial. Prior to the Bush-Douglas-Morales trial, Nichols pleaded guilty to assault in the first degree and Johnson was tried and acquitted of all charges. All of the witnesses called by the state in the Johnson trial testified at the Douglas claims error in the court's failure to order the state to produce the transcripts of testimony of the state's witnesses in State v. Johnson, after those witnesses testified at his trial. Bush, in almost identical language, claims error in the court's refusal to grant his motion for inspection or copying of the trial transcript of State v. Johnson. Bush also claims two additional errors: (1) the court failed to sever his case from that of the codefendant Douglas; and (2) the court should have dismissed the information due to the failure of the warrant to establish probable cause pursuant to the federal and state constitutions. We conclude that the court erred in failing to make an in camera inspection of the transcript of the trial of State v. Johnson, in order to determine what if any of the prior testimony must be made available to Bush and Douglas to preserve their constitutional right of confrontation. We also consider Bush's two additional claims of error because they are apt to recur should the trial court, after examination of the transcript in State v. Johnson, find sufficient prejudice in the denial to Bush of those transcripts to merit a new trial.

                Bush-Douglas-Morales trial.   Johnson did not testify at either trial.   Bush, Douglas and Morales were all convicted as charged, after a trial to a jury
                

The state's case may be summed up as follows: In the early evening of November 26, 1983, Arthur Navarette drove his automobile to the G and G Market in Bridgeport. He had been drinking with a friend. He went into the store and bought some beer. When he left the store Nichols stole his wallet. Navarette returned and purchased cigarettes between 8:15 p.m. and 8:30 p.m. His back pocket was ripped. Johnson handed him his license, which was on the ground. After taking Navarette's wallet, Nichols ran into the Marina Apartments housing project. On Navarette's return, Bush suggested getting the person who took the wallet. Bush, Johnson, and Navarette went into the apartments. Bush knew that Nichols and others were going to do something to the victim. Nichols, Johnson, Bush and Douglas were with the victim in the hallway. Johnson held the man while Bush and Douglas checked his pockets. Nichols hit him twice, causing him to fall. Both Bush and Douglas hit the man once or twice. In the melee, everyone took turns hitting and kicking the man. Nichols stepped on the man's head three or four times.

Bush admitted going into the apartment with Navarette. He stated at the trial and in his written statement given to police before his arrest that he had gone with him to help him obtain his wallet from Nichols or to find it if Nichols had thrown it away. Bush was ahead of the others in the hallway. When he turned back, he saw Johnson holding Navarette as if he were robbing him, and he tried to convince Johnson that Navarette had no money. Nichols then ruthlessly beat Navarette despite Bush's attempt to make him stop. Bush admitted that he checked the victim's pockets. He claimed that Nichols was the only one beating the man.

Douglas admitted that he checked the victim's pockets with Bush. He attributed the beating to Nichols and Johnson and the stomping to Nichols. Morales' only involvement was driving away Navarette's automobile.

I

CLAIMED ERROR IN THE TRIAL COURT'S DENIAL TO BOTH DEFENDANTS

OF ACCESS TO THE TRANSCRIPT OF THE EARLIER TRIAL

OF A PARTICIPANT WHO HAD BEEN ACQUITTED.

Prior to trial, the court, Melville, J., denied the defendants' motions to inspect or copy the transcripts of the Johnson trial but ordered that a transcript of the testimony of the state's witnesses in State v. Johnson be prepared and sealed so that they would be available at a later time if the trial court ordered their disclosure or release. During the trial, Bush filed a motion for an in camera inspection of the transcript, claiming that at least one witness had contradicted his testimony and that his right of confrontation would be lost. The court, Ford, J., denied this motion. Following testimony by two witnesses Bush claims that without the Johnson transcript he could not determine what if any inconsistencies existed between statements made by various witnesses in the two different trials. He cites Davis v. Alaska, 415 U.S. 308, 319-20, 94 S.Ct. 1105, 1111-1112, 39 L.Ed.2d 347 (1974), wherein the Supreme Court considered that a witness' right to anonymity as a juvenile offender yielded to the paramount right to cross-examine provided in the confrontation clause. He also relied by analogy on the cases of State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984), and State v. Bruno, 197 Conn. 326, 497 A.2d 758 (1985), cert. denied, --- U.S. ----, 106 S.Ct. 1635, 90 L.Ed.2d 181 (1986), which considered the conflict between a defendant's right of confrontation and the right of confidentiality between patient and psychiatrist contained in General Statutes § 52-146e. ⁴

                whom Douglas considered critical, he requested transcripts of their testimony in State v. Johnson.   These motions were denied
                

Douglas claims that his constitutional right of confrontation was violated. He relies procedurally, however, on General Statutes § 54-86b(a) ⁵ and Practice Book § 752, ⁶ directing the prosecution, after a witness has testified, to produce any statements of the witness in the possession of the prosecution relating to the subject matter as to which the witness has testified. He relies by analogy on the case of Chesney v. Robinson, 403 F.Supp. 306 (D.Conn.1975), aff'd, 538 F.2d 308 (2d Cir.), cert. denied, 429 U.S. 867, 97 S.Ct. 177, 50 L.Ed.2d 147 (1976), which involved the conflict between the confrontation clause and grand jury secrecy in Connecticut. We conclude, however, that the proper foundation on which to resolve the tension between the confrontation clause and the erasure statutes lies in the defendants' federal and state constitutional rights to confrontation. Although we base this decision primarily on federal constitutional law, the right of confrontation in the constitution of Connecticut is substantially similar. See State v. Veal, 201 Conn. 368, 375 n. 7, 517 A.2d 615 (1986).

The due process clause of the fourteenth amendment to the United States constitution confers the right of confrontation upon defendants in state prosecutions. Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923 (1965). The principal purpose of this right is to provide the opportunity for cross-examination. Davis v. Alaska, supra, 415 U.S. at 315, 94 S.Ct. at 1109; State v. George, 194 Conn. 361, 365, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S.Ct. 963, 83 We look by analogy to four emerging lines of authority in Connecticut. All four areas overlap to some extent although each arises from a different statutory and historical matrix. We seek to distill the essence of these developing trends to guide the way in this case.

                L.Ed.2d 968 (1985).   Confronting a witness with his own statement contradicting his own testimony is a valuable and standard method of attacking his credibility.   State v. Carter, 189 Conn. 631, 640, 458 A.2d 379 (1983)
                

A

THE PSYCHIATRIST-PATIENT PRIVILEGE CASES

We cannot improve on the summary of the law on this subject by Justice Shea in State v. Pierson, 201 Conn. 211, 514 A.2d 724 (1986). "This court has faced similar problems of attempting to reconcile the privilege with the right of confrontation in respect to disclosure of records of psychiatric treatment of a witness in a criminal case. State v. Bruno, [supra, 197 Conn. at 329-32, 497 A.2d 758]; State v. Esposito, [supra, 192 Conn. at 177-80, 471 A.2d 949]; State v. Storlazzi, 191 Conn. 453, 455-63, 464 A.2d 829 (1983). In State v. Storlazzi, supra, an in camera inspection of the records had been made by the trial court, apparently without objection, as in this case, and we affirmed, after our own examination of these records, the denial of the defendant's request for access to them, because they did not 'sufficiently disclose material especially probative of the victim's ability to know and correctly relate the truth so as to justify breaching their confidentiality in disclosing them to the defendant.' Id. [, at] 460 . In State v. Esposito, supra, where the trial court had refused to make an in camera examination of psychiatric records, we upheld the ruling upon the ground that, before the court should engage in that procedure, even with the consent of the witness, 'there must be a showing that there is reasonable ground to believe that the failure to produce the...