State v. Williams

• Decision Date: 10 August 1993
• Docket Number: No. 13917,13917
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Bernard WILLIAMS.

Page 402

629 A.2d 402

227 Conn. 101

STATE of Connecticut v. Bernard WILLIAMS.

No. 13917.

Supreme Court of Connecticut.

Argued June 3, 1993.

Decided Aug. 10, 1993.

Robert S. Bello, Sp. Public Defender, with whom, on the brief, was Christopher R. Bello, Stamford, for appellant (defendant).

Leon F. Dalbec, Jr., Asst. State's Atty., with whom, on the brief, were Eugene Callahan, State's Atty., and David I. Cohen, Sr. Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and BORDEN, BERDON, SANTANIELLO and DALY, JJ.

SANTANIELLO, Associate Justice.

The defendant, Bernard Williams, was convicted, after a jury trial, of one count of felony murder in violation of General Statutes § 53a-54c ¹ and sentenced to a term of imprisonment of sixty years. He appeals directly to this court pursuant to General Statutes § 51-199(b)(3). ² On appeal, the defendant claims that the trial court improperly: (1) refused to grant his motion for a new trial based upon the failure adequately to reconstruct the testimony contained in a missing trial transcript; (2) allowed the state to introduce into evidence a videotape of the crime scene; and (3) failed to suppress certain statements made by him to police officers. We affirm.

The jury could reasonably have found the following facts. On the evening of June 6, 1988, the victim, who had parked her car in the Bloomingdale's parking garage in Stamford, had been shopping at Bloomingdale's. At approximately 7 p.m., a shopper returned to the garage and discovered the victim lying facedown in a pool of blood near the open trunk of the victim's car. An autopsy revealed that she had bled to death as a result of five stab wounds about the neck region.

The police secured and searched the crime scene. The victim's recent purchases purse and watch were not found in the immediate area or in her car. The police found a silver colored watchband extension pin near the perimeter of the crime scene. The police took black and white photographs and made a videotape of the crime scene.

The following day, a Bloomingdale's employee found, in one of the boys' dressing rooms, a shopping bag containing the victim's purse and the items purchased by her on the previous evening. Stains on these items contained blood that was consistent with the victim's blood type.

On the evening of the murder, the defendant, on four separate occasions, told acquaintances that: (1) he had done something at Bloomingdale's that he should not have done; (2) he had killed somebody at Bloomingdale's; (3) he had done something to a woman and had gotten money and a watch from her; and (4) he had killed a woman in the parking lot at Bloomingdale's. The defendant also showed two of these acquaintances a watch matching the description of the victim's watch. One acquaintance noted that the side of the watchband was broken where the watchband connected to the face and that there was a red spot on the watch. Several days after the murder, the defendant had a second conversation with one of his acquaintances during which he described the murder in great detail.

I

The defendant first claims that the trial court improperly denied his motion for a new trial that was based upon the failure adequately to reconstruct the testimony contained in a missing trial transcript. We disagree.

On March 15, 1990, the defendant requested a copy of the trial transcript. In the late fall of 1991, the court monitor informed the defendant that two tapes, containing the trial proceedings of the afternoon of October 31, 1989, were missing. The defendant promptly filed a motion for a new trial on the ground that a complete transcript of the trial was unavailable. The missing tapes contained the testimony of witnesses who had been examined concerning the introduction by the state of various exhibits, including a diagram of the parking garage, photographs of the crime scene and a videotape of the crime scene.

On November 15, December 18 and December 20, 1991, the trial court conducted hearings in order to attempt to reconstruct the proceedings that were contained on the missing tapes. At the hearings, the witnesses who had testified on the afternoon of October 31, 1989, testified as to their recollection of the testimony they had given that afternoon. Notes taken by the court, counsel for both parties, the court monitor and other observers of the proceedings also became part of the reconstructed record. ³ Each witness testified that the exhibits that were introduced at the hearings were accurate to the best of his or her recollection and, although each witness could not state with certainty that the exhibits included the entire testimony, each witness could recall nothing that had been omitted. The trial court held that "the record has been sufficiently reconstructed to allow meaningful and effective appellate review" and denied the defendant's motion for a new trial.

The absence of a portion of the trial transcript does not mandate a new trial. A new trial is required only if "the proceedings cannot be sufficiently reconstructed to allow effective appellate review of the claims raised by the defendant." State v. Vitale, 190 Conn. 219, 223, 460 A.2d 961 (1983); see also State v. Stafford 223 Kan. 62, 64, 573 P.2d 970 (1977); Smith v. State, 291 Md. 125, 137, 433 A.2d 1143 (1981); Commonwealth v. Harris, 376 Mass. 74, 77, 379 N.E.2d 1073 (1978); Lopez v. State, 105 Nev. 68, 76, 769 P.2d 1276 (1989); People v. Glass, 43 N.Y.2d 283, 286-87, 401 N.Y.S.2d 189, 372 N.E.2d 24 (1977). Although the state must furnish an indigent defendant with a trial record adequate to allow meaningful review of his claims; Draper v. Washington, 372 U.S. 487, 499, 83 S.Ct. 774, 780, 9 L.Ed.2d 899 (1963); the state is not required to furnish a complete verbatim transcript. Mayer v. Chicago, 404 U.S. 189, 194, 92 S.Ct. 410, 414, 30 L.Ed.2d 372 (1971). Possible substitutes include "[a] statement of facts agreed to by both sides, [or] a full narrative statement based perhaps on the trial judge's minutes taken during trial or on the court reporter's untranscribed notes...." Draper v. Washington, supra, 372 U.S. at 495, 83 S.Ct. at 779.

The sufficiency of a transcript to enable the appellate courts to review the issues on appeal is a matter of fact, because the trial court is in the best position to determine whether the reconstructed record adequately reflects what occurred at the trial. An appellate court should affirm a trial court's finding that the reconstructed record was sufficient unless the appellate court finds that the trial court's determination was "clearly erroneous." United States v. Carrillo, 902 F.2d 1405, 1410 (9th Cir.1990).

In determining whether a reconstructed record is sufficient, the trial court considers various factors, including the nature of the case, the claim of error advanced by the defendant, the availability of witnesses and exhibits from the original trial, the length of time that has passed, the length of the missing portion of the record and whether the defendant is represented by different counsel on appeal. See, e.g., Commonwealth v. Harris, supra, 376 Mass. at 78-79, 379 N.E.2d 1073 (adequate opportunity to reconstruct entire trial transcript because trial was eighteen months earlier, trial judge and both counsel available, all witnesses and exhibits available and summaries of arguments and testimony existed); Lopez v. State, supra (one day's transcript containing the testimony of six witnesses could be adequately reconstructed from notes of two state's attorneys and two courtroom observers even though no notes included any objections by the defendant); People v. King, 160 A.D.2d 531, 532, 554 N.Y.S.2d 517, appeal denied, 76 N.Y.2d 847, 559 N.E.2d 1291, 560 N.Y.S.2d 132 (1990) (reconstructed record of state's case based on notes of trial court and prosecutor's testimony valid even though witnesses were not called to testify at hearing).

In the case presently before this court, the trial court did everything possible to reconstruct the record. The trial court incorporated into the reconstructed record its notes, the log of the courtroom clerk and the notes of the courtroom monitor, the notes of both counsel and the notes of two courtroom observers. In addition, the witnesses who had testified on the afternoon of October 31, 1989, were called to testify as to their recollection of the testimony they had given that afternoon. In its memorandum of decision on the defendant's motion for a new trial, the trial court stated that "this court is satisfied that the record has been sufficiently reconstructed so as to provide the defendant with a near perfect record with which to pursue his appeal." This determination of the trial court was not clearly erroneous.

The defendant, relying on two Wisconsin cases, claims that the reconstructed record must be adequate beyond a reasonable doubt. ⁴ Most jurisdictions, however, require only that the reconstructed record afford the defendant effective appellate review. State v. Vitale, supra; see, e.g., Bell v. State, 296 Ark. 458, 463, 757 S.W.2d 937 (1988) (reconstructed record must be "adequate to inform [court] of what transpired at ... trial"); Cole v. United States, 478 A.2d 277, 280-81 (D.C.App.1984) (record must be sufficient to permit meaningful appellate review); Craig v. State, 510 So.2d 857, 861 (Fla.1987) (reconstruction must be "reasonably accurate"); State v. Stafford, supra, 223 Kan. at 64, 573 P.2d 970 (reconstructed record must afford effective appellate review); Lopez v. State, supra, 105 Nev. at 76, 86, 769 P.2d 1276 (reconstructed record must be adequate for court to perform meaningful appellate review; defendant must demonstrate that reconstructed transcript "is materially less than essentially complete and accurate"); State v. Jonas, 793 P.2d 902, 910 (Utah App.1990) (record must be "functionally adequate for review").

Additionally, most jurisdictions hold that before a...