State v. Woodard, 9778

• Decision Date: 16 June 1992
• Docket Number: No. 9778,9778
• Citation: 609 A.2d 1027,27 Conn.App. 786
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Marvin WOODARD.

Page 1027

609 A.2d 1027

27 Conn.App. 786

STATE of Connecticut v. Marvin WOODARD.

No. 9778.

Appellate Court of Connecticut.

Argued Feb. 11, 1992.

Decided June 16, 1992.

Laura W. Ray, with whom were William H. Bright, Jr., and, on the brief, William H. Narwold, for appellant (defendant).

Timothy J. Sugrue, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty. and James G. Clark, Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and LANDAU and HEIMAN, JJ.

DUPONT, Chief Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree in violation of General Statutes § 53a-61, burglary in the first degree in violation of General Statutes § 53a-101(a)(2), and kidnapping in the second degree in violation of General Statutes § 53a-94. The defendant claims that the trial court (1) improperly instructed the jury on circumstantial evidence, and (2) should have excluded the testimony of a witness after it was revealed that the New Haven police department had destroyed a tape recording of her telephone call to the police department. We affirm the judgment of the trial court.

On the evening of September 25, 1989, the defendant was in his apartment, which he shared with Alvin Bittle and Theresa Miller. The defendant became irritated because his girl friend, Ida Huckabee, was not at her apartment. The defendant told Miller that he was going to beat Ida and that he was ready to "do a jail bit." Armed with a knife, the defendant then left his apartment and went to the apartment of Cynthia Huckabee, Ida's sister.

Ida Huckabee was at her sister's apartment with her nephew and a former boyfriend. When the defendant arrived at Cynthia's apartment, he began kicking and banging on the front door. Ida told the defendant that he could not come in. The defendant eventually forced his way into the apartment, damaging the door and breaking a window. The defendant went into the basement in search of Ida, who was hiding there. The defendant and Ida were arguing when Cynthia arrived at the apartment. She went to the basement where she saw the defendant beating Ida. Although Ida resisted, the defendant pulled her out of the basement and punched her when he got her upstairs. The defendant waved his knife at Cynthia in a menacing way. Cynthia observed that Ida was bleeding from the mouth.

The defendant pulled Ida out of Cynthia's apartment by her shirt. Ida had no shoes on and did not appear to want to go with the defendant. She asked Cynthia to help her.

After the defendant and Ida left Cynthia's apartment, the police arrived. Cynthia accompanied them to the defendant's apartment but they could not find Ida or the defendant. Cynthia did not see Ida again that night. The police told Cynthia to contact them if she learned of the defendant's whereabouts.

The defendant later brought Ida to his apartment. Miller and Bittle were there. Miller observed that Ida's mouth was bleeding and that there was blood on her clothing. According to Miller, Ida wanted an ambulance but the defendant would not permit it. Ida laid down on a mattress in Bittle's room where she cried and said "Don't hit me no more."

In the afternoon of September 26, Cynthia learned that the defendant and Ida were in the defendant's apartment. Cynthia telephoned the police and met them when they arrived. The defendant was apprehended in the apartment after having attempted to climb out a back window. Ida was in obvious pain, appeared to have an injury to her ribs, and had difficulty breathing and speaking. Later medical examination revealed that Ida had suffered contusions to the right side of the head and the lower right ribs and swelling above the right ear.

At trial, the defendant called Ida as his only witness. She admitted that she and the defendant fought in the basement of Cynthia's apartment, that the defendant grabbed her and held her to prevent her movement, that the defendant hit her and gave her a bloody nose, and that he kicked her and dragged her upstairs. She also admitted that she told other people that she hid in the basement to escape the defendant and that she was beaten by the defendant. Ida also testified that she told the defendant to enter the apartment through a window, that she did not hide in the basement, that she did not ask Cynthia for help, that she left the apartment with the defendant of her own free will, and that the pain in her head was not the result of the assault.

I

The defendant claims that the trial court improperly instructed the jury on circumstantial evidence. ¹ The defendant contends that we must reverse the conviction because the trial court never told the jury that facts to be inferred from circumstantial evidence must be proved beyond a reasonable doubt and because the trial court's example of the permissible use of circumstantial evidence allowed the jury to infer facts under a burden of proof not rising to proof beyond a reasonable doubt. The defendant also argues that the challenged instruction allowed the jury to look to the evidence presented by the defendant to ascertain whether an inference sought by the state had been disproved by him.

The defendant's challenge to the instruction on circumstantial evidence is raised for the first time on appeal. He seeks our review of this claim pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). He can prevail on a claim of constitutional error not preserved at trial if he can show that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial. State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823.

In its instruction, the trial court told the jury to "[k]eep in mind that facts essential to the ultimate inference of guilt must be proved beyond a reasonable doubt." The defendant's argument on appeal requires a reading of the charge as though it lacked this critical language. Read in its entirety the challenged instruction correctly stated our law and did not dilute the state's burden of proof or place an improper burden on the defendant. See State v. Price, 205 Conn. 616, 622, 534 A.2d 1196 (1987); see also State v. Williams, 220 Conn. 385, 399, 599 A.2d 1053 (1991); State v. Willis, 24 Conn.App. 678, 681-83, 591 A.2d 445, cert. granted, 220 Conn. 907, 597 A.2d 339 (1991). It therefore properly guided the jury in its consideration of the evidence, and failed to satisfy the third prong of Golding. Thus, the defendant cannot prevail on this claim.

II

The defendant next claims that the trial court should have excluded the testimony of Cynthia Huckabee because the New Haven police department erased the tape recording of her September 26, 1989 telephone call to the police. We will not review this claim, however, because the defendant did not properly preserve the claim for appellate review.

On September 14, 1990, the defendant filed a motion to exclude Cynthia's testimony, alleging that the police had intentionally destroyed a recorded statement she made on September 25, 1989. Prior to this motion, the defendant had made a motion to preserve evidence that was granted on November 1, 1989. An evidentiary hearing was held during the course of the trial to determine whether Cynthia's testimony should be excluded. On the basis of Cynthia's testimony that she made no phone call to the police on September 25, the defendant conceded that his motion to exclude her testimony for failure to preserve the recording of a phone call made on that date had no viability. The defendant then pursued his motion on the basis of Cynthia's testimony that she telephoned police on the afternoon of September 26, 1989 and the testimony of Lieutenant Stephen Jankowski that the telephone number Cynthia called was a tape recorded line.

The state represented to the court that it first learned that Cynthia had telephoned the police on September 26 when she testified to that fact at the evidentiary hearing. On the basis of the police reports available to it, which reports placed the crime as occurring on September 25, 1989, at 11:45 p.m., the state had requested that the New Haven police department preserve any tape from September 25. The police complied with the state's request and preserved the tape from September 25. An examination of this tape revealed that it contained nothing pertaining to this case. Neither the state nor the defendant knew that a pertinent phone call had been made on September 26. The state did not seek to preserve the tape from September 26. The tape of calls made on September 26 was erased and reused by the New Haven police approximately forty-five days later. ²

The trial court found the following facts regarding the September 26 tape: a tape recording was made of the phone call; whatever statements of substance made by the witness concerning the conduct of the defendant were made...