State v. Sinclair

• Decision Date: 30 January 1990
• Docket Number: No. 7293,7293
• Citation: 569 A.2d 551,20 Conn.App. 586
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. John SINCLAIR.

Page 551

569 A.2d 551

20 Conn.App. 586

STATE of Connecticut v. John SINCLAIR.

No. 7293.

Appellate Court of Connecticut.

Argued Oct. 12, 1989.

Decided Jan. 30, 1990.

Barbara Sorrentino, Asst. Public Defender, for appellant (defendant).

John O'Meara, Deputy Asst. State's Atty., with whom were Michael Dearington, State's Atty., and James G. Clark, Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and SPALLONE and LAVERY, JJ.

LAVERY, Judge.

The defendant is appealing from a judgment of conviction, after a jury trial, of burglary in the second degree in violation of General Statutes § 53a-102, and larceny in the fourth degree, in violation of General Statutes § 53a-125. He also appeals from a judgment of conviction, after a trial to the court, of being a persistent serious felony offender in violation of General Statutes § 53a-40(b). The defendant claims that the trial court erred (1) in failing to strike the testimony of a witness whose statement was lost by the police, (2) in failing to declare a mistrial or to give a curative instruction after the state made remarks during closing argument that allegedly shifted the burden of proof to the defendant, (3) in refusing the defendant's request to charge on circumstantial evidence and in giving an inadequate instruction on that issue. The defendant also claims that the state committed prosecutorial misconduct when it argued to the jury certain facts not in evidence. We find no error. ¹

The jury could reasonably have found the following facts. The victim, Penelope Ducker, was a student residing in Morse College, an undergraduate college of Yale University in New Haven. On October 6, 1987, at approximately 9:40 p.m., Ducker left her dormitory room to visit a friend across the hall. When she returned to her room, she saw a man come out of her room carrying her portable stereo. Ducker yelled at the man, who fled down a flight of stairs toward the college courtyard.

Ducker chased the burglar down several flights of stairs. During the chase, the burglar threw down the stereo on the stairs. Ducker stopped and looked out an open window, through which she could see the man she had chased walking nonchalantly away from the building. She yelled from the window, "Stop that guy. He just ripped me off." The man began to run.

Paul Jahnige and David Thompson, two Yale students, heard Ducker's cries and began to chase the man. Ducker also joined the chase. The three eventually caught up with and surrounded the man on a nearby street, Tower Parkway. He asked his pursuers to "give [him] a break." He began running again, then stumbled and fell. Two gold chains belonging to Ducker spilled from his jacket pocket. Jahnige and Thompson then held the man until the police arrived. At trial, the parties stipulated that the man chased by the Yale students and arrested by the police was in fact the defendant.

I

The defendant first claims that the trial court erred in refusing to strike the testimony of the victim because of the state's failure to produce her statement. We disagree.

After the defendant's arrest, the Yale police taperecorded Ducker's statement at the station house. It was the policy of the Yale police to transcribe such recordings and then to store the cassettes in a locked drawer, to which only two officers had a key. ² When neither officer was available to unlock the drawer, as was the case on the evening in question, the cassette would be left on the desk top above the drawer, to be placed in the drawer when it next could be unlocked. The tapes were usually labeled with a small, adhesive-backed piece of note paper and were not catalogued in any way.

Approximately one week before the trial began, the state informed the defendant that it could not locate the cassette tape containing Ducker's statement, although it was able to provide a transcript of the recording signed by Ducker. The defendant filed a motion in limine to suppress Ducker's testimony at trial on the ground that the state had failed to comply with the mandatory discovery requirements of General Statutes § 54-86b and Practice Book §§ 748 through 755. The trial court denied the motion.

The discovery of prosecution witnesses' statements is governed by General Statutes § 54-86b, ³ and the statute is complemented by Practice Book § 752. ⁴ It is undisputed that the tape recording of Ducker's statement qualifies as a "statement" within the meaning of § 752. State v. Williamson, 14 Conn.App. 108, 112, 552 A.2d 815, aff'd, 212 Conn. 6, 562 A.2d 470 (1989). For the purposes of § 752, the term "statement" includes a "stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement." Practice Book § 749(2).

In order for the provisions of Practice Book § 752 and General Statutes § 54-86b to apply, however, four additional requirements must be met. State v. Williamson, supra, 14 Conn.App. 113, 552 A.2d 815. "First, the witness whose prior statements are sought, must have been a witness for the prosecution and must have testified under direct examination." Id. Although the defendant moved to suppress Ducker's testimony before trial began, it was clear at the time the motion was argued that Ducker would be a key witness for the prosecution. ⁵ "Second, the defendant must make a motion to the trial court for production of the witness' statement." Id. In this case, the state informed the defendant before trial that the tape was lost. A motion for production under these circumstances, when the outcome is preordained, "would simply set judicial wheels unnecessarily spinning...." Chomko v. Patmon, 20 Conn.App. 159, 163, 565 A.2d 250 (1989). The defendant's pretrial motion to suppress served the intended function of bringing the destruction or loss of the evidence to the trial court's attention. As to the third and fourth requirements, namely, that the statement "must relate to the subject matter about which the witness has testified" and that it "must be in the possession of the state or its agents"; State v. Williamson, supra; there is no dispute. The provisions of § 54-86b and § 752, therefore, encompass the tape recording of Duckers' statement. State v. Williamson, supra.

"It is beyond dispute that the state cannot avoid the discovery provisions of Practice Book § 752 by destroying discoverable material in its possession before the defendant moves for production.... The provisions of §§ 752 and 755 ... 'are mandatory.' " (Citation omitted.) State v. Williamson, 212 Conn. 6, 13, 562 A.2d 470 (1989). Because the " ' "[s]uppression of relevant, material and otherwise admissible evidence is a severe sanction which should not be invoked lightly" ' "; id., at 15, 562 A.2d 470; no § 755 sanction is warranted if the nonproduction of the statement in violation of § 752 was not in bad faith; id., at 14, 562 A.2d 470; and is harmless. Id., at 13, 562 A.2d 470. We turn first to the issue of whether the nonproduction of the statement was in bad faith.

Although the defendant does not dispute that the loss of the tape was unintentional, he argues that the routine disregard and negligence shown in the police's handling of the tapes is tantamount to bad faith. It is true that, although the Yale police department's general policy was to keep such tapes in a locked drawer, the execution of this policy during the time in question could be characterized as slipshod. The tapes were not catalogued, were poorly labeled, and often were not immediately placed in the drawer but left on the desk where, should the flimsy label fall off, they might be mistaken for blank tapes and reused. In short, although the department policy was to preserve the tapes, in reality the procedures to implement that policy left open a fair possibility that discoverable material might be negligently lost or destroyed. ⁶ Although we disagree with the defendant's contention that the routine mishandling of these tapes was tantamount to bad faith, we will bear in mind this aspect of the state's culpability in the loss of the tape as we weigh the defendant's showing of prejudice, to which we next turn our attention.

" 'In the absence of bad faith we employ a balancing test to determine whether sanctions should be imposed for the state's failure to produce the tape....' State v. Santangelo, [205 Conn. 578, 587-88, 534 A.2d 1175 (1987) ]." State v. Williamson, supra, 212 Conn. at 14, 562 A.2d 470. The test weighs the state's culpability in failing to produce the tape against any resulting prejudice to the defendant. Id. Because access to the statements of state witnesses is not a constitutional right, the burden of showing prejudice rests on the defendant when the state has not deliberately destroyed the evidence in question. Id., at 17, 562 A.2d 470.

The defendant claims that the loss of the tape prejudiced him by denying him a tool with which to impeach Ducker's testimony at trial. He argues that this disability was aggravated by the fact that Ducker was the only eyewitness to the crime itself and was unable to make an in-court identification. He further claims that Ducker's description of the defendant's clothes conflicted with that given by other eyewitnesses.

We are not persuaded that the defendant's case was prejudiced by the loss of the tape. First, the defendant was provided with a transcription of the recording that was reviewed and signed by Ducker only three days after the crime. The defendant used the transcription to cross-examine Ducker. Second, the defendant's cross-examination of Ducker failed to reveal any critical inconsistencies between her trial testimony and her transcribed statement. Cf. State v. Williamson, supra, at 25, 562 A.2d 470 (several critical inconsistencies between witness' transcribed statement and witness' recollection of what she actually...