State v. Williamson

• Decision Date: 12 April 1988
• Docket Number: No. 5527,5527
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Anthony WILLIAMSON.

Page 386

540 A.2d 386

14 Conn.App. 108

STATE of Connecticut v. Anthony WILLIAMSON.

No. 5527.

Appellate Court of Connecticut.

Argued Nov. 17, 1987.

Decided April 12, 1988.

Joette Katz, Public Defender, for appellant (defendant).

Harry Weller, Deputy Asst. State's Atty., with whom, on the brief, were Robert Devlin, Asst. State's Atty., and Jack Fischer, Legal Intern, for appellee (State).

Before DUPONT, C.J., and DALY and NORCOTT, JJ.

DUPONT, Chief Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134(a)(4). The defendant claims that the trial court erred (1) in refusing to strike the testimony of the victim because of the state's failure to produce her statements pursuant to Practice Book § 755, ¹ and (2) in refusing to permit the defendant access to specific privileged communications contained in the victim's psychiatric and school records subpoenaed for use in the cross-examination of the victim. The defendant further claims that the state's final argument at trial denied him his constitutional rights to a fair trial and to due process of law. The defendant's first claim of error has merit and, therefore, we find error and remand the case for a new trial.

The jury could reasonably have found the following facts. The fifteen year old victim lived with her mother in an apartment building. On December 27, 1985, sometime during the afternoon hours, the victim left her apartment to go shopping with $50 her mother had given her. Instead of going immediately to shop, the victim went to visit a friend who lived on the third floor of a nearby apartment building. Upon discovering that her friend was not at home, the victim walked back down the stairwell to exit the building. When she had reached the bottom of the stairwell, a man grabbed her from behind and asked her if she had any money, to which the victim responded that she did not. Thereupon, the assailant pulled a gun from a gym bag he was carrying and held it behind the victim's ear. At this time, the victim recognized her assailant as the defendant, whom she had known for approximately ten years. The defendant proceeded to search the victim, whereupon he discovered the $50 in her right jeans pocket. The defendant took the money, slowly backed away from the victim, and told her that if she told anyone about the robbery she would be hurt.

The victim reported the incident to the police on the telephone, but did not tell the police that the robber's name was that of the defendant until a police officer arrived at her home to investigate the incident. A short time later, the victim was transported to the New Haven police headquarters where she gave a taped statement and selected a photograph of the defendant from a book provided by the police.

At trial, the defendant claimed that the victim tried to lure him to a romantic rendezvous at her sister's vacant apartment. The defendant testified that the victim gave him a package of cocaine to bring to the apartment but instead he kept the cocaine. When the victim realized the defendant was not interested in a sexual interlude, she told him that she "knew how to handle it." According to the defendant, the victim was seeking revenge and fabricated the robbery incident.

The defendant first argues that the trial court erred in refusing to strike the victim's testimony because of the state's failure to produce her statements pursuant to Practice Book § 755.

The following facts are relevant to the defendant's claim. The victim first informed the state about the incident when she telephoned the New Haven police department using the 911 emergency number. This call was erased, in accordance with standard police procedure, approximately thirty-eight days after the alleged robbery. Following the 911 call, the victim was brought to the police station where an officer took a taped statement. The victim was asked questions by him, which questions were spoken into a tape recording device. After each question, the officer turned off the machine and waited for the victim's response. He then reactivated the machine and repeated her answer to each question into the tape recorder immediately after her response. No notes were taken during the taping procedure. The officer did not ask the victim to listen to the tape to confirm its accuracy. As was standard police practice, the tape was brought to a stenographer to type and the tape was thereafter destroyed. The officer testified that the policy of erasing tapes changed in December of 1985 while he was on vacation, that he had received a notice upon his return to that effect, but that he did not tell the typist to save the tape after it had been transcribed. The victim was never asked by the police to review the transcript of her statement. The victim first saw the transcript one day before the day of the trial and at trial attested to its accuracy. The defendant moved to strike the victim's testimony due to the destruction of the 911 tape and of her taped statement. The trial court denied the defendant's motion.

The discovery of prosecution witnesses' statements is governed by General Statutes § 54-86b, which provides in pertinent part: "In any criminal prosecution, after a witness called by the prosecution has testified on direct examination, the court shall on motion of the defendant order the prosecution to produce any statement oral or written of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified, and the court shall order said statement to be delivered directly to the defendant for his examination and use." This statutory provision is complemented by Practice Book § 752, which provides that "[a]fter a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, 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 statement relates to the subject matter about which the witness has testified."

The preliminary question that this court must address is whether the 911 tape and the tape recording are encompassed by the disclosure provisions of General Statutes § 54-86b and Practice Book § 752. In order for material to fall within these disclosure provisions, they must qualify as "statements" within the meaning of § 752. The 911 tape and the tape recording qualify as "statements" pursuant to Practice Book § 749(2), which provides that 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 meaning of such oral statement."

There are four remaining requirements in order for the mandates of General Statutes § 54-86b and Practice Book § 752 to apply and thereby compel discovery. ² First, the witness whose prior statements are sought, must have been a witness for the prosecution and must have testified under direct examination. This condition is clearly met in this case. Second, the defendant must make a motion to the trial court for production of the witness' statement. The defendant has satisfied this condition. Third, the statements must relate to the subject matter about which the witness has testified. There is no dispute that this condition is also satisfied. Finally, the statements sought to be produced must be in the possession of the state or its agents. Although the 911 tape and the tape recording have been destroyed, they were originally in the possession of the New Haven police department, agents of the state. The provisions of § 54-86b and § 752, therefore, encompass the 911 tape and the tape recording.

The provisions of General Statutes § 54-86b and Practice Book §§ 748 et seq. are mandatory. State v. Gonzales, 186 Conn. 426, 431-32, 441 A.2d 852 (1982). Statements of potential witnesses which may be required to be produced and made available to the defense in a criminal trial must be preserved. State v. Myers, 193 Conn. 457, 468, 479 A.2d 199 (1984). In this case, it was foreseeable by the state and its agents that the victim's recorded statements would be required to be produced in the event of a trial. The police, therefore, were required to preserve the statements under the mandates of State v Myers, supra. We emphasize that the destruction of the tapes in this case occurred fourteen months after the decision in State v. Myers, supra, a case which was decided in June, 1984. The 911 tape and the victim's recorded statements in this case were made in December, 1985, and destroyed sometime in February, 1986, by the same police department as was involved in Myers. The question, then, that we must decide is whether such destruction was done in bad faith; see, e.g., State v. Santangelo, 205 Conn. 578, 590, 534 A.2d 1175 (1987); State v. Mullings, 202 Conn. 1, 9-10, 519 A.2d 58 (1987); and, if so, whether the defendant was prejudiced from the nondisclosure sufficient to warrant reversal of his conviction. State v. Milum, 197 Conn. 602, 616, 500 A.2d 555 (1985).

The intentional destruction of tapes occurring prior to the decisions in Myers and Milum does not constitute bad faith as long as a verbatim transcript has been preserved. State v. Mullings, supra. The Mullings court articulated the rationale underlying the rule: "Myers could reasonably have been interpreted as excusing the erasure of tapes as long as a verbatim transcript was preserved. In State v. Milum, supra, at 614-17, 500 A.2d 555, however, we reiterated our disapproval of the destruction of discoverable material even though in that case a transcript had been made from the tape which subsequently was erased." State v. Mullings, supra, 202 Conn. at 7, 519 A.2d 58.

The...