State v. Williamson

• Decision Date: 04 July 1989
• Docket Number: No. 13510,13510
• Parties: STATE of Connecticut v. Anthony WILLIAMSON.
• Court: Connecticut Supreme Court

Page 470

562 A.2d 470

212 Conn. 6

STATE of Connecticut v. Anthony WILLIAMSON.

No. 13510.

Supreme Court of Connecticut.

Argued March 2, 1989.

Decided July 4, 1989.

Harry Weller, Deputy Asst. State's Atty., with whom, on the brief, was Michael Dearington, State's Atty., for appellant (state).

Joette Katz, former Public Defender, for appellee (defendant).

Before PETERS, C.J., and SHEA, CALLAHAN, GLASS and HULL, JJ.

GLASS, Justice.

This case presents us with no less than our sixth occasion since 1981 to consider whether the New Haven police department's destruction or loss of a witness' statements requires the striking of the witness' testimony in an ensuing criminal trial. See State v. Kelly, 208 Conn. 365, 545 A.2d 1048 (1988); State v. Santangelo, 205 Conn. 578, 534 A.2d 1175 (1987); State v. Mullings, 202 Conn. 1, 519 A.2d 58 (1987); State v. Myers, 193 Conn. 457, 479 A.2d 199 (1984); State v. Shaw, 185 Conn. 372, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S.Ct. 1027, 71 L.Ed.2d 312 (1982); see also State v. Sims, 12 Conn.App. 239, 530 A.2d 1069 (1987), cert. denied, 206 Conn. 801, 535 A.2d 1315 (1988).

The state accused the defendant, Anthony Williamson, of having robbed the victim, Crystal Gray, at gunpoint. General Statutes § 53a-134(a)(4). ¹ Before the trial, the New Haven police erased tape recordings of Gray's initial 911 emergency telephone call to police and her subsequent interview with Detective Whitney Epps. At trial, the defendant moved to strike Gray's testimony, arguing that the destruction of the tapes violated Practice Book § 752 et seq. ² and prejudiced his defense. The trial court denied the defendant's motion. The jury found the defendant guilty as charged, and the trial court sentenced him to fifteen years imprisonment, execution suspended after twelve years, and five years probation. Upon the defendant's appeal, the Appellate Court determined that the trial court should have stricken Gray's testimony, and remanded the case for a new trial. State v. Williamson, 14 Conn.App. 108, 552 A.2d 815 (1988).

We granted the state's petition for certification, limited to the issues: (1) whether the destruction of the tapes so prejudiced the defendant that Gray's testimony should have been stricken; and (2) whether tape recorded 911 emergency telephone calls must be preserved on the chance they might be discoverable under Practice Book § 752. We now affirm the Appellate Court's judgment. Because we hold that the state's non-production of the Epps interview tape required the striking of Gray's testimony, we do not reach the issues pertaining to the 911 telephone call. See SSM Associates Ltd. Partnership v. Plan & Zoning Commission, 211 Conn. 331, 335, 559 A.2d 196 (1989).

The facts are fully set forth in the Appellate Court's opinion. State v. Williamson, supra. In brief, Gray testified at trial that on December 27, 1985, she went to visit a friend at an apartment building on Ashmun Street in New Haven. Her friend was not home. As Gray was leaving the building's lobby, the defendant, whom she had known for ten years, grabbed her from behind by placing his hands on her neck. He held a handgun behind her ear, took $50 from her pants pocket, and slowly backed away, exiting the building through the rear door. The defendant denied committing the robbery. He testified that he had gone to the Ashmun Street building to socialize with a friend, and encountered Gray there. He claimed that Gray had given him a packet of cocaine and had asked him to meet her at another apartment building for a sexual tryst. When the defendant had walked away with the cocaine, showing no interest in her proposal, Gray had told him that she "knew how to handle the situation," and thereafter had fabricated the robbery story to avenge her spurned advances.

After the alleged robbery, Gray telephoned the New Haven police department's 911 emergency number. She testified that she told the person answering, "[C]ould you please send a cop to 192 Ashmun Street ... I just got robbed." The telephone call was tape recorded. Officer Richard Rawling responded to Gray's call and later filed an incident report based on her statements. Rawling transported Gray to the police station, where Whitney Epps interviewed her. In a rather creative procedure, Epps conducted the interview by tape recording each question he asked Gray, shutting the recorder off while she answered, and then reactivating it to repeat her answers himself. ³ Gray testified at trial that Epps also had made written notes during the taped interview. Epps testified, however, that he had not made handwritten notes during the interview.

After completing the interview, Epps gave the tape recorded statement to a police department stenographer. The stenographer transcribed the recording on paper and then erased the tape. According to Epps, although he knew that department policy recently had changed to require the preservation of such tape recordings, he had neglected to tell the stenographer to save the recording. As a consequence, neither the police nor Gray ever compared the transcript with the original tape recording. Further, the police did not ask her to look at the transcript during the seven months between the incident and the trial. When Gray finally did review the transcript on the first day of trial, she testified that it was accurate.

New Haven police arrested the defendant in February, 1986, and charged him with first degree robbery. In March, 1986, the trial court granted the defendant's motion to preserve evidence. By that time, however, neither tape could be produced, since the police had also erased the 911 recording approximately thirty-eight days after the alleged robbery, in accordance with police department routine. At trial, the defendant moved under Practice Book § 755 to strike Gray's testimony because of the destruction of the tapes. The trial court denied the motion, finding that the police had no "intention to thwart justice or to violate any rights of the defendant" in destroying the tapes. The trial court also found that the defendant had not been prejudiced because he had had adequate opportunity to expose inconsistencies between Gray's trial testimony and other statements she had made during the investigation. The defendant had also used the transcript of the Epps recording to challenge Gray's testimony.

On the defendant's appeal, the Appellate Court reversed, reasoning that, because the New Haven police department had intentionally and not inadvertently destroyed the tapes after publication of our decision in State v. Milum, 197 Conn. 602, 616, 500 A.2d 555 (1985), the "destruction exhibited bad faith." State v. Williamson, supra, 14 Conn.App. at 117, 552 A.2d 815. The court then held that, because the police had acted in bad faith, "the only relevant question becomes what prejudice, if any, the defendant suffered...." Id., at 117-18, 552 A.2d 815. The court also held that, although the defendant ordinarily must establish that he was prejudiced by the nonproduction of discoverable material; see State v. Palmer, 206 Conn. 40, 57, 536 A.2d 936 (1988); the burden of proof on the issue of prejudice shifted to the state because the tapes had been destroyed in bad faith. See United States v. Bufalino, 576 F.2d 446, 449 (2d Cir.), cert. denied, 439 U.S. 928, 99 S.Ct. 314, 58 L.Ed.2d 321 (1978). Finding that it was undisputed that Gray's "version of events varied each time she relayed it," the court ruled that the defendant's impeachment of Gray's testimony with prior statements given in other interviews with the police, as well as with the transcript of the Epps recording, did not render harmless the nonproduction of the two tapes. It therefore concluded that the trial court erred in failing to strike Gray's testimony. State v. Williamson, supra, 14 Conn.App. at 117-18C, 552 A.2d 815.

On certification, the state concedes that the defendant had the right to production of the Epps interview tape under Practice Book § 752. It claims, however, that its nonproduction of the tape was harmless. It asserts that the "verbatim" transcript of the Epps recording and other information enabled the defendant to expose "numerous inconsistencies" in Gray's testimony sufficient to satisfy the impeachment rationale of § 752, but not so great as to undermine the jury's verdict. Accordingly, in the state's view the Appellate Court erred in overturning the trial court's conclusion that the defendant did not suffer such prejudice as to require striking Gray's testimony. The state also claims that the Appellate Court erred in holding that the tape recording of the 911 emergency phone call should have been preserved for possible discovery under § 752. As an alternative ground for upholding the Appellate Court's decision, the defendant claims that Practice Book § 755 sanctions should be automatic once bad faith is established, a claim that the Appellate Court rejected. State v. Williamson, supra, at 118 n. 6, 552 A.2d 815.

I

We first address the defendant's claim that Gray's testimony should have been stricken automatically because the New Haven police had acted in "bad faith" in erasing her tape recorded statements. The state concedes on certification that its nonproduction of the Epps recording constituted "bad faith." It claims, however, that the conduct of the New Haven police was not so egregious as to require an automatic § 755 sanction. The state argues that this court instead must balance the state's culpability against the defendant's prejudice. See State v. Shaw, supra, 185 Conn. at 386, 441 A.2d 561. We agree.

Practice Book § 752 provides that, after a state's witness has testified on direct examination, the trial court must, on the defendant's motion, "order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which ... relates to the subject...