State v. Palmer

• Decision Date: 07 May 1985
• Citation: 196 Conn. 157,491 A.2d 1075
• Parties: STATE of Connecticut v. Edward C. PALMER.
• Court: Connecticut Supreme Court

Page 1075

491 A.2d 1075

196 Conn. 157

STATE of Connecticut v. Edward C. PALMER.

Supreme Court of Connecticut.

Argued Feb. 6, 1985.

Decided May 7, 1985.

John R. Williams, New Haven, for appellant (defendant).

Frank S. Maco, Asst. State's Atty., with whom, on the brief, was Donald A. Browne, State's Atty., for the appellee (State).

Before PETERS, C.J., and HEALEY, PARSKEY, DANNEHY and SANTANIELLO, JJ.

PARSKEY, Associate Justice.

The defendant has appealed from his convictions in two cases. In the first case, after a jury trial, the defendant was convicted of the crimes of robbery in the first degree in violation of General Statutes § 53a-134(a)(2) and theft of a firearm in violation of General Statutes § 53a-212(a). The defendant received a sentence of ten to twenty years on the robbery charge and a consecutive sentence of two and one-half to five years on the theft charge for a total effective sentence of twelve and one-half to twenty-five years. In the second case the defendant pleaded guilty to charges of burglary in the first degree in violation of General Statutes § 53a-101(a)(1) and carrying a pistol without a permit in violation of General Statutes § 29-35, and received a sentence of six to twelve years on the burglary charge to run concurrently with the sentence imposed in the first case, and a consecutive sentence of two to three years on the pistol charge, the second sentence also to run consecutively with the sentences imposed in the first case.

In the first case the defendant claims that he was denied due process of law by the state's loss of key exculpatory evidence, and by the court's permitting the state's attorney to inform the jury that he was providing defense counsel with all prior statements of prosecution witnesses. He further asserts that the court erred in allowing expert testimony concerning similarities between the defendant and a police sketch artist's drawing of the perpetrator of the crimes charged. The defendant also claims that in its charge to the jury the court unconstitutionally diluted the presumption of innocence. In the second case the defendant claims that in making one of the sentences consecutive to the sentences imposed in the first case the court violated the double jeopardy clause of the federal constitution. We find no error in either case.

I

The robbery in the first case occurred on November 28, 1980. The victim of the robbery, Frank Taylor, was a special police officer at the University of Bridgeport where the robbery occurred. Taylor was held up at gun point and relieved of his .38 caliber Colt diamond back revolver and his wallet containing some money and other items of personal property. At the time of the robbery the assailant was wearing a hooded parka which covered his chin and the perimeter of his face. Taylor, in reporting the robbery to the Bridgeport police, described his assailant as a black male, five feet ten inches tall, 160 to 170 pounds, twenty-seven years old, dark skinned, possibly with a thin moustache and wearing a green parka-type coat with a fur-lined hood, tied under the chin. Thereafter, he gave a description to officer Michael Barrett, a suspect sketch artist, from which description Barrett prepared a composite sketch of the suspect. Photocopies of the sketch were made and the original was placed in the police file.

On April 8, 1981, the court, Ment, J., upon the defendant's motion, ordered the state to provide the defendant, inter alia, with "[a]ny and all exculpatory information and materials and any and all books, tangible objects, papers, photographs and/or documents which are within the possession, custody or control of any State agency, including, but not limited to, any local police department, and which are intended for use by the prosecuting attorney as evidence at the defendant's trial or which are material to preparation of the defense." On June 11, 1981, the state responded to this order by disclosing that any such materials were "[a]vailable for inspection upon appointment." The state asserts, and the defendant does not dispute, that the defendant never sought an appointment to examine the requested material.

The original of the composite sketch was lost before the commencement of the defendant's trial. A photocopy of the sketch was introduced into evidence by the state in its place. The defendant claims that because Taylor had described his assailant as dark skinned and the defendant was in fact light skinned, the state's loss of the original sketch deprived him of presumably exculpatory evidence and therefore denied him due process of law. We disagree.

The defendant made a general request for any exculpatory information and the order of the court to provide the defendant with such information was fashioned in the same general form of the request. In such situations there is no duty to disclose unless the exculpatory nature of the information in the hands of the prosecutor is obvious. United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976). The original sketch cannot be characterized as obviously exculpatory. The state's witnesses testified that the facial shading on the missing original was lighter than that of the photocopy admitted into evidence. They reached this conclusion from personal observation and from the fact that the photocopying process tends either to darken the original picture or to blur any differences in shading. Except for the defendant's bald assertion, there was no showing that the original sketch was exculpatory at all and, if so, that its exculpatory nature was obvious. Indeed, if the description of the original was accurate, the original bore a closer resemblance to the defendant than did the photocopy.

The defendant claims that he was denied due process by virtue of the state's alleged failure to disclose the existence of the original sketch and by its loss. The defendant's nondisclosure claim is not factually supported. The defendant filed a general request for any papers, photographs and documents intended for use by the prosecuting attorney at the defendant's trial or which were material to preparation of the defense. The prosecuting attorney quite properly responded that such material was available for inspection by appointment. The state had no obligation to turn the original sketch over to the defendant. Under Practice Book § 741 the state's duty is limited to making the sketch available to the defendant for inspection and copying. In its disclosure the state advised the defendant that any photographs, papers or documents he sought were available for his inspection. Had the defendant availed himself of the opportunity, he could have made his own comparison between the original sketch and the photocopy. Since he chose not to do so, for whatever reason, he cannot now be heard to complain.

Whether the defendant, due to the loss of the original composite sketch, has been deprived of a fair trial depends on "the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, and the reasons for its nonavailability to the defense. United States v. Herndon, 536 F.2d 1027, 1029 (5th Cir. [1976]." State v. Harden, 175 Conn. 315, 326-27, 398 A.2d 1169 (1978). In cases where the defendant claims that he was prejudiced by the loss of allegedly exculpatory evidence, "[i]t is very often true, and it is true here, that the materiality of the evidence in question is key." State v. Doolittle, 189 Conn. 183, 197, 455 A.2d 843 (1983). Where, as here, the defendant has made only a general request for exculpatory material, "his conviction will be constitutionally flawed only 'if the omitted evidence creates a reasonable doubt [as to his guilt] that did not otherwise exist....' United States v. Agurs, supra [427 U.S.], 112 ...." Id., 198, 455 A.2d 843. In this case the loss was not deliberate and occurred after the defendant chose not to inspect the sketch. Furthermore, the copy that was introduced into evidence showed a darker facial shading than that possessed by the defendant and therefore permitted the defendant to emphasize this dissimilarity. Although Taylor testified that the original sketch was lighter in skin tone and that the shading was darker in the copy due to the photocopying process, the defendant was not precluded from offering evidence that photocopying did not produce the result suggested by the state's witnesses. Moreover, the photocopy tended to corroborate Taylor's initial description of his assailant as a dark skinned black male and therefore would seem to have helped rather than hurt the defendant's case. We cannot conclude that the jury could have misinterpreted the photocopy to the defendant's detriment or, in view of all of the other identification evidence presented, that the absence of the original sketch may have changed the result. ¹

II

After Taylor was sworn as a witness for the state the defendant requested that the jury be excused, to which the prosecuting attorney responded in the presence of the jury as follows: "For what purpose? The State at this time is prepared to comply by [sic] an order of a judge of this court relative to the turning over of statements of the witness that has been called to the stand. That's Mr. Frank Taylor and I'm doing so at this time." Thereafter, the defendant, in the absence of the jury, moved for a mistrial on the ground that the remarks of the prosecutor prejudiced the defendant's right to a fair trial. At an earlier stage of the proceedings, the court, Ment, J., had ordered that any statements of a state witness be turned over to the defendant at the time the witness took the stand. Just before Taylor was called to the stand, the defendant requested that Taylor's prior statements be turned over to him while the jury was absent. The trial court sustained the objection of the prosecuting attorney and denied the request. The court also denied the...