State v. Morales

• Decision Date: 25 April 1995
• Docket Number: No. 14908,14908
• Court: Connecticut Supreme Court
• Parties: , 63 USLW 2727, 40 A.L.R.5th 845 STATE of Connecticut v. Roberto MORALES.

Page 585

657 A.2d 585

232 Conn. 707, 63 USLW 2727, 40

A.L.R.5th 845

STATE of Connecticut v. Roberto MORALES.

No. 14908.

Supreme Court of Connecticut.

Argued Oct. 27, 1994.

Decided April 25, 1995.

Temmy Ann Pieszak, Asst. Public Defender, for the appellant (defendant).

Donald A. Browne, State's Atty., with whom, on the brief, was John Smriga, Asst. State's Atty., for the appellee (state).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and KATZ, JJ.

BERDON, Associate Justice.

The dispositive issue in this appeal is whether, in order to prove a claim that he has been deprived of due process of law under the state constitution, a criminal defendant must prove that the police acted in bad faith in failing to preserve potentially exculpatory evidence.

The defendant, Roberto Morales, was convicted after a court trial of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1), ¹ robbery in the first degree in violation of General Statutes § 53a-134(a)(3) ² and threatening in violation of General Statutes § 53a-62(a)(1). ³ The defendant appealed to the Appellate Court, which affirmed the judgment of conviction. State v. Morales, 33 Conn.App. 184, 634 A.2d 1193 (1993). We granted the defendant's petition for certification. State v. Morales, 228 Conn. 928, 640 A.2d 116 (1994). ⁴ We reverse the judgment of the Appellate Court and remand the case to the Appellate Court for further proceedings.

The following facts were elicited at trial. ⁵ On December 30, 1990, the victim was at the Pembroke Grill on Pembroke Street in Bridgeport. She left the grill at approximately 11:45 p.m., walked down Pembroke Street and turned left onto East Main Street. While on East Main Street, she heard someone following her. She stopped at a phone booth and was approached by a man who tried to initiate a conversation with her. While the man spoke with a third person, however, the victim walked away and turned down Seymour Street.

On Seymour Street, the victim saw the same man following her, so she turned down Kossuth Street. As she reached a highway underpass, however, the man accosted her, grabbing her and punching her in the mouth. He then pulled a knife from his coat, placed it at her neck and pushed her down on her knees, telling her not to move or say anything. He also told her that if she did not keep her head down, he would kill her.

The man told the victim to unbutton and unzip her pants. He then removed her pants and underwear, moved behind her and held her around the neck. From that position, he penetrated her, ejaculating in her anus. He withdrew his penis and wiped it on the victim's leather jacket, leaving ejaculate "all over" the jacket. He then pulled off her necklaces and bracelet and fled.

After the assault, the victim went immediately to Bridgeport police headquarters, where she signed a statement narrating what had happened. The police then took her to Park City Hospital. At the hospital she repeated to the treating physician what she had told the police, i.e., that her assailant had sodomized her and that he subsequently had wiped his penis on her jacket. She told a nurse, however, that her assailant had sodomized her and also had raped her vaginally. The physician conducted several tests, including taking a swab and smear of the victim's anus and anal area, as well as her vagina. The police seized the victim's jacket as evidence.

Laboratory tests revealed the presence of partial spermatozoa on the anal swab and the presence of intact spermatozoa on the anal smear. Tests also revealed the presence of sperm on the vaginal swab. In accordance with established procedures, laboratory personnel did not attempt to conduct blood grouping tests on the anal swab or anal smear. ⁶ Blood grouping tests conducted on the vaginal swab, however, revealed an antigenic substance that could only have been deposited by a person with type A blood. The victim, who was type O, could not have been the source of that antigenic substance.

Sometime early in 1991, the victim, who did not have another winter jacket, sought to have the police return the jacket they had seized. The police, after repeated requests from the victim, finally returned her jacket on February 13, 1991, some six weeks after she had been attacked.

Three and one-half weeks after the police had returned the jacket, on March 11, 1991, the victim was a passenger on a bus in Bridgeport and saw the defendant standing on the corner of Stratford Avenue and East Main Street. She stayed on the bus for a few stops, then disembarked and called the police. The police transported the victim back to the corner of Stratford and East Main, where she identified the defendant as her assailant and the police arrested him. Tests subsequently conducted on the defendant revealed that his blood was type O, and that he could not have deposited the foreign antigenic substance found in the victim's vagina.

Prior to trial, the court granted the defendant's timely motion for general discovery and inspection, which required the police to produce exculpatory information, materials and tangible objects. The defendant's counsel conceded that both he and prior defense counsel knew then of the existence of potential semen stains, but failed to ask specifically that the police produce the jacket. ⁷

At trial, the defendant moved to dismiss the charges against him because the police had failed to preserve the victim's jacket as evidence. The defendant did not argue that the police, in returning the jacket to the victim, had acted in bad faith or that they had any motive for doing so other than accommodating the victim. Rather, the defendant argued that the fact that the jacket was unavailable had irreparably harmed his ability to defend himself in two ways. First, he argued that the defense could have conducted tests on the jacket to determine if semen was present. If tests showed no semen on the jacket, the defense could have used that result to attack the credibility of the victim. Second, if the tests showed that semen was, in fact, present on the jacket, the defense could have evaluated any DNA ⁸ contained in the semen to prove that the defendant had not been the assailant. See generally State v. Hammond, 221 Conn. 264, 280-86, 604 A.2d 793 (1992). The trial court, however, denied the defendant's motion.

In the defendant's appeal from the judgment of the trial court, he argued to the Appellate Court that the failure of the Bridgeport police to preserve the victim's jacket had violated his right to due process of law under article first, § 8, of the Connecticut constitution. The Appellate Court, however, determined that the standard adopted by the United States Supreme Court in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), reh. denied, 488 U.S. 1051, 109 S.Ct. 885, 102 L.Ed.2d 1007 (1989), under the federal due process clause also was the proper standard under the state constitution's due process clause. In Youngblood, the Supreme Court concluded that a criminal defendant must prove that the police acted in bad faith in failing to preserve potentially useful evidence. Id., 488 U.S. at 58, 109 S.Ct. at 337-38. The Appellate Court, noting that the defendant in this case had failed to show bad faith on the part of the police, concluded that his right to due process of law provided by article first, § 8, of our state constitution, similarly had not been violated.

We now consider (1) what degree of protection the due process clause of our state constitution offers to criminal defendants when the police fail to preserve potentially useful evidence, and (2) what remedy should follow if the defendant has established that a failure to preserve such evidence has violated his state constitutional rights.

I

We begin our analysis of the defendant's claim by setting forth the relevant legal background of "what might loosely be called the area of constitutionally guaranteed access to evidence." United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982). Under the federal constitution, the state's failure to provide evidence within its control to a criminal defendant may violate the defendant's right to due process of law in two types of situations.

The first situation concerns the withholding of exculpatory evidence by the police from the accused. The United States Supreme Court has held "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 [government]." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963); State v. Walker, 214 Conn. 122, 126, 571 A.2d 686 (1990); State v. Cohane, 193 Conn. 474, 495, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984); see State v. Milner, 206 Conn. 512, 539-40, 539 A.2d 80 (1988). This type of violation of the defendant's due process rights is commonly referred to as a "Brady violation."

The second situation, and the one at issue in this case, concerns the failure of the police to preserve evidence that might be useful to the accused. The United States Supreme Court discussed this situation in Arizona v. Youngblood, supra, 488 U.S. 51, 109 S.Ct. 333, a case in which the facts are remarkably similar to those in this case. In Youngblood, the child victim had been sodomized and the state had failed properly to preserve the child's clothing, which was stained with semen, and a swab taken of the victim's rectum after the assault. The defendant claimed that, had the state properly preserved this evidence, test results might have completely exonerated him. The United States Supreme Court, however, held under the federal constitution that a criminal defendant carries a heavy burden in seeking to overturn a conviction based on the failure of the...