State v. Jones, 9378
| Citation | 29 Conn.App. 304,615 A.2d 149 |
| Decision Date | 22 September 1992 |
| Docket Number | No. 9378,9378 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Roy JONES. |
Charles D. Gill, Jr., and David J. Sheldon, Sp. Public Defenders, with whom, on the brief, was Ramona S. Carlow, Hartford, for appellant (defendant).
Mary H. Lesser, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Michael A. Pepper, Asst. State's Atty., for appellee (state).
Before NORCOTT, FOTI and FREDERICK A. FREEDMAN, JJ.
[29 Conn.App. 305] FREDERICK A. FREEDMAN, Judge.
The defendant appeals from the judgment of conviction, rendered after a jury trial, of aiding and abetting the sale of narcotics in violation of General Statutes §§ 21a-278(b) and 53a-8. He claims that the trial court improperly (1) refused to strike the entire testimony of the state's key witness pursuant to Practice Book § 755 and General Statutes § 54-86b, 1 (2) determined that the prosecutor struck the first two minority jurors for neutral reasons, and then refused to seat those two jurors when it later determined that the prosecutor engaged in purposeful discrimination, and (3) determined that the mitigating factors submitted by the defendant could not constitute a significant impairment of mental capacity pursuant to § 21a-278(b). We reverse the judgment of the trial court and remand for a new trial. 2
The jury could reasonably have found the following facts. On January 6, 1988, the New Haven police street crime narcotics task force conducted an undercover narcotics operation in the Hill section of New Haven. [29 Conn.App. 306] Officer Frank Roberts, a member of the task force, was assigned to make undercover narcotics purchases from dealers on the street. Two surveillance teams were assigned as backups to Roberts, one of which included Officer Joseph Pettola.
By approximately 12:15 p.m., Roberts had been driving around the Hill area for nearly two hours, and had already made several undercover narcotics purchases. Pettola and his partner were parked at the intersection of Sylvan Avenue and Ward Street. At that time, Roberts stopped his car at the intersection of Elliot Street and Sylvan Avenue for approximately five to seven seconds. He saw two persons begin walking up Sylvan Avenue toward his car and one of them was waving his arms at Roberts. Roberts noted at the time that both individuals were black and were wearing beige jackets. Roberts then drove around the block so as to proceed to the intersection of Sylvan Avenue and Asylum Street where he had seen the two men, which was one block away from Pettola's surveillance position.
When Roberts reached the intersection, he saw two black men standing on the corner, and he pulled his car over to the curb next to them. The first black male approached Roberts and asked him what he wanted. Roberts replied, "I will take one twenty cent piece." The first male asked, "just one?" Roberts replied affirmatively to the question, and the first male then yelled and gestured to the second male to get "one piece." The second male then walked down Asylum Street to a tree, reached down and retrieved a small, yellow glassine envelope from a brown paper bag. The second male then proceeded to Roberts' car with the envelope. While the second male dealt with Roberts, the first male moved away from the car and looked up and down Sylvan Avenue. Roberts handed the second male twenty dollars, took possession of the envelope, and [29 Conn.App. 307] drove away. The entire transaction lasted no more than one minute, and Pettola and his partner witnessed the entire transaction from their vantage point.
As Roberts drove away from the scene, he made written notes containing general descriptions of the two men, including their height, weight, clothing description, outstanding marks, age and skin color. Immediately thereafter, he radioed Pettola and gave him a description of the two men. Roberts described them as one wearing a knit hat with "Mercedes-Benz" written on it and the other wearing a similar hat with "BMW" on it. Pettola and his partner remained in surveillance of the two men, who did not leave the area. After waiting long enough so as not to disclose Roberts' cover, Pettola and his partner drove up the street to the two men and exited their car. They identified themselves as police officers and asked the two men for identification. Pettola recognized one of the men as Darryl Spears, and the other man, the defendant, produced a picture identification card and stated that his name was Roy Jones. Jones gave them his social security number and his home address, 74 Asylum Street.
Pettola and his partner left the scene without making an arrest or retrieving the alleged bag of narcotics near the tree. Later that same day, Pettola and Roberts met at the police station, where Roberts gave the yellow envelope to Pettola, who was to have it tested to determine if it contained a narcotic substance. While at the station, Pettola conducted a search of New Haven police department records for any information about Jones and Spears. The search indicated that Jones had previously been arrested for disorderly conduct, criminal mischief and breach of the peace.
On January 6, the same day that he gave the envelope for testing to Pettola, Roberts proceeded to dictate a police report, using his notes to refresh his [29 Conn.App. 308] recollection concerning the chain of events earlier in the day. When the dictation was completed, he gave it to a secretary for transcription. On January 29, 1988, twenty-three days after Roberts made the dictation, the typist returned the typed report to Roberts, along with the dictation tape. The typed report indicated the heights for both Jones and Spears as "6'." Roberts testified that when he read the typed report on January 29, he noticed two mistakes in it, which he had confirmed by checking his field notes from January 6. Roberts then crossed out both typewritten heights, and handwrote "5'10"" as the height for Jones and "5'9"" as the height for Spears. Roberts initialed both cross-outs. Roberts then signed the typed report, dating it January 6, 1988, the date he had dictated it. Roberts testified that he had dictated "5'10"" and "5'9"" as the heights for Jones and Spears, respectively, but that the typist must have incorrectly heard "6'" in both instances. Roberts also admitted that the typed report contained biographical information about Jones and Spears of which he had no knowledge at the time he wrote his field notes.
The defendant was arrested on February 26, 1988. Roberts testified that after the arrest he threw away his notes because the sting operation had been completed. He also testified that, pursuant to department policy, the tape was erased so that it could be used for other dictation.
At trial, the state's only witnesses were Roberts, Pettola and a toxicologist who testified that the yellow envelope contained cocaine. Upon the completion of Roberts' direct testimony, the defendant moved, pursuant to Practice Book § 752, for production of all statements made by Roberts concerning this incident that the state had in its possession. The state gave the defendant a copy of Roberts' typewritten police report with Roberts' handwritten changes. When the state [29 Conn.App. 309] failed to produce either Roberts' dictation tape or his field notes from January 6, the defendant moved, pursuant to Practice Book § 755, to have Roberts' entire testimony stricken. After hearing argument by counsel outside the presence of the jury, the trial court determined that it would strike only the in-court identification made by Roberts. The defendant objected to this sanction. Thereafter, without withdrawing his objection to the court's failure to strike Roberts' entire testimony, the defendant requested that since the court refused to strike all of Roberts' testimony, the court should prohibit all of the other state's witnesses from
making in-court identifications of Jones, and should give an adverse inference instruction when it charged the jury. The trial court ruled that it would prohibit all of the other state's witnesses from making in-court identifications of the defendant. It reserved decision, however, on the defendant's request for an adverse inference instruction until it was time to instruct the jury. Subsequently, the trial court declined to give the instruction requested by the defendant, and he was convicted as chargedThe defendant claims that the trial court improperly refused to strike Roberts' entire testimony. He claims that Practice Book § 755 and General Statutes § 54-86b require that a state's witness' entire testimony be stricken when the court determines that the state's failure to produce "statements" is harmful. The state concedes that the dictation tape is a "statement" for purposes of Practice Book § 749. 3 The state argues, however, that the defendant was not harmed by the [29 Conn.App. 310] destruction and nonproduction of the tape, and thus urges our affirmance of the defendant's conviction.
Whereas the facts of this case necessitate this court's return, yet again, to the New Haven police department's policy of destruction of taped statements, we do so this time in a slightly different setting. Typically, we are presented with a case in which the trial court has found that the state satisfied its burden of proving harmlessness, and thus we must decide whether the trial court abused its discretion in making that finding. Here, however, the trial court has already determined that (1) the dictation tape contained a "statement" for the purpose of Practice Book § 749 et seq., (2) that the New Haven police destroyed the tape intentionally, although not maliciously or with the intent to deprive the defendant of the evidence contained therein, and (3) that the state failed to meet its burden of proving that the destruction of the tape was harmless beyond...
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