State v. Whitaker
| Decision Date | 10 February 1987 |
| Citation | 202 Conn. 259,520 A.2d 1018 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Darryl WHITAKER. |
Richard F. Jacobson, Asst. State's Atty., with whom, on brief, were Donald A. Browne, State's Atty., and Henry J. Lyons II, Asst. State's Atty., for appellee (State).
Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and CIOFFI, JJ.
The defendant, Darryl Whitaker, was found guilty by a jury of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A), attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a(a), sexual assault in the first degree in violation of General Statutes § 53a-70(a), robbery in the first degree in violation of General Statutes § 53a-134(a)(1), and assault in the first degree in violation of General Statutes § 53a-59(a)(1). He was sentenced to consecutive terms of twenty-five years on the charge of kidnapping, twenty years on the charge of attempted murder, twenty years on the charge of sexual assault, ten years on the charge of robbery, and a concurrent term of ten years on the charge of assault, for a total effective sentence of seventy-five years.
On appeal, the defendant contends that the trial court erred (1) in summarily quashing a subpoena, (2) in ordering the defendant to produce statements of certain alibi witnesses, and (3) in imposing a total effective sentence greater than that which could be imposed for murder. Though finding no error on the third issue, we agree that the trial court erred in quashing the subpoena and in ordering the production of the witnesses' statements. We therefore reverse this case and remand it for a new trial.
A review of the evidence adduced at trial reveals that on February 8, 1983, at about 2:30 p.m., the victim left her apartment and walked to a bus stop in front of Central High School in Bridgeport. She intended to take a bus downtown to pay an electric bill and carried $120 in her purse for that purpose. While she was awaiting the bus, a light-skinned black man approached her and asked where she was heading. The man was directly facing her when he asked the question, and was wearing a green army coat, gray dress pants and a beige and blue sock hat. When she replied "downtown," the man said he had a gun in his pocket, and if she screamed or tried to run away he would shoot her. He displayed what looked like a gun, ordered her to walk a short distance with him and told her he would take her money and let her go. The victim offered her pocketbook to the man, telling him to "[t]ake it and just go." The man then grabbed her arm and dragged her across the school parking lot, through a hole in a fence and down a hill. Several times he threatened her and displayed what appeared to be a gun.
The man took the money in the victim's purse and ordered her to take off her clothes. When she refused and started to cry, he told her to "shut up." He then struck her in the mouth, removed her coat and pants, and pushed her to the ground as she struggled. He then sexually assaulted her. After the sexual assault, he told her that he could not release her because she could identify him. He began to strangle her, first with his hands and then with a piece of wire which he had removed from his pocket. Eventually, the victim lost consciousness. She awakened to find herself under the steps of the school's stadium, her face lying in a pool of blood. She could not see out of one eye and injuries to her entire face caused her great pain. She managed to crawl to the school's parking lot, where a passerby summoned an ambulance. It was later determined that the victim had been beaten in the face with two boulders. Testimony heard by the jury also revealed that as a result of the injuries, she had required extensive surgery on her jaw and eye.
While confined to a hospital undergoing intensive care, the victim was shown a number of police photographs. The victim identified one of the photographs, a picture of the defendant, as portraying her assailant. On February 9, 1983, the police searched the defendant's home pursuant to a warrant and seized some wire, a hat, coat and pants resembling those described by the victim, and a replica of a .45 Colt automatic.
We will first address the defendant's claim of error wherein he asserts that the trial court erred in ordering the production of certain statements made by defense witnesses to his investigator. This issue arose at trial while the defendant was presenting evidence of an alibi defense. The defendant testified that on the afternoon of February 8, 1983, he had boarded city bus No. 12 at the Trumbull Shopping Park at about 2:35 p.m. About ten to fifteen minutes later, he claims, he got off the bus and walked to his home in Bridgeport. According to the defendant, he remained at home for the rest of the afternoon.
Various defense witnesses were called to verify the defendant's explanation of his whereabouts on the afternoon in question. One witness, Marion Johnson, testified that she was a friend of the mother of the defendant's girlfriend. She claimed that she had seen the defendant on bus No. 12 at approximately 2:40 p.m. on February 8, 1983. According to Johnson, the defendant got off the bus near his home in Bridgeport. On recross-examination, she was asked whether she had given a written statement to anyone from the office of the defendant's attorney. Defense counsel objected, and a hearing occurred outside the presence of the jury. The state argued that it was entitled to such a statement if it existed. The defendant maintained that neither the Practice Book nor the federal or state constitution requires a defendant to produce such statements. The court overruled the objection and ordered the defendant to produce the witness's statement. Apparently these statements did not contain any relevant evidence to impeach the witness, as the remainder of the cross-examination was uneventful.
When the same situation occurred during the testimony of another witness, however, the statement that the defendant was ordered to produce did in fact contain relevant impeaching information. Delores Jackson, the driver of bus No. 12, testified that the defendant was on board her bus when it departed from the Trumbull Shopping Park at about 2:30 p.m. on February 8, 1983. She stated that he got off the bus about five to six minutes later near Old Towne Road in Bridgeport. Jackson was asked on cross-examination if she had given a statement to anyone regarding this subject. When she replied that she had spoken to a defense investigator and that he had tape recorded her statement, the prosecutor requested access to the tape. The defendant objected again and argued that the statement did not have to be produced. His objection was overruled. The trial court ordered production of the tape, stating to defense counsel 1
The tape recorded conversation between the investigator and Jackson revealed that Jackson had been shown a picture of the defendant and that she had been unable to identify the male in the photograph as the person she had seen on her bus. The state confronted Jackson with this fact on cross-examination. Although Jackson later positively identified the defendant in court as the man on the bus, the state pointed out that the statement made to the investigator was taken shortly after the incident in question. Moreover, during his closing argument, the prosecutor again referred to Jackson's failure to identify the defendant's photograph.
The defendant contends that the trial court's order violated the Practice Book, article first, § 8, of the Connecticut constitution, 2 the state and federal guarantees of effective assistance of counsel, and the work product doctrine. He claims that this sort of mutual discovery in criminal cases has never been allowed in Connecticut and that traditionally, the state does not have the power "to probe the files of defense counsel." See State v. Cocheo, 1 Conn.Cir.Ct. 610, 614, 24 Conn.Supp. 377, 381, 190 A.2d 916 (1963). We agree with the defendant that the trial court should not have ordered the production of the statements of either witness. Our holding is based on the general structure of the Practice Book's discovery provisions and on specific language contained in §§ 752 and 763. We find it unnecessary, therefore, to decide whether the court's ruling also violated the state and federal constitutions or the work product doctrine.
Chapter 26 of our Practice Book regulates discovery in criminal proceedings. Sections 740 through 747 relate specifically to disclosure of information by the prosecution. Under these provisions, the defendant is allowed access to a wide range of information in the possession of the state. Certain types of information are discoverable by the defendant as a matter of right; see Practice Book § 741; other types are discoverable at the trial court's discretion; see Practice Book §§ 743, 744; and some material is simply not discoverable under the rules at all. See Practice Book § 746. Under one provision, entitled "Additional Disclosure," the court may order disclosure to the defendant of other information not covered by the rules as the interests of justice may require. See Practice Book § 745.
The rules governing disclosure of statements of a witness are found in §§ 751 through 755. After a state's witness has testified on direct examination, § 752 provides that on the defendant's motion the court "shall ... order the state to produce any statement of the witness in the possession of the state or its agents ... which ... relates...
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