State v. Sanford

594 A.2d 477, 25 Conn. App. 255, 1991 Conn. App. LEXIS 256
CourtConnecticut Appellate Court
DecidedJuly 16, 1991
Docket9141
StatusPublished
Cited by6 cases

This text of 594 A.2d 477 (State v. Sanford) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Sanford, 594 A.2d 477, 25 Conn. App. 255, 1991 Conn. App. LEXIS 256 (Colo. Ct. App. 1991).

Opinion

Daly, J.

The defendant appeals from the judgment of conviction, rendered 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 improperly admitted a witness’ testimony because of the destruction of a 911 telephone taped statement reporting the crime. We affirm the judgment of the trial court.

[256]*256The jury could reasonably have found the following facts. On November 12, 1988, at approximately 5:15 p.m., the defendant entered the Hit or Miss clothing store located at 2300 Dixwell Avenue in Hamden. He approached the manager of the store, Wendy Blake, and told her to go to the register and give him all the money. He also warned Blake that he had a gun and if necessary he would use it. As Blake gave the defendant the money in the register, she noticed that he opened his jacket and placed his left hand over what appeared to be a gun. During the course of these events, another employee, Lynn Seinsheimer, was standing near the cash register. Seinsheimer clearly witnessed these events and thereafter was able to identify the defendant. After the defendant fled with the money, Blake called 911 to report the robbery to the Hamden police. The defendant was subsequently arrested, charged with robbery in the first degree and convicted.

The defendant claims that the trial court should have granted his motion to strike the testimony of one of the victims because the state failed to produce the 911 tape recording of Blake’s call to the Hamden police, pursuant to Practice Book § 7521 and General Statutes § 54-86b.2 The following facts are pertinent to this claim.

[257]*257The defendant filed a motion for discovery on February 28, 1989, seeking copies of the prosecution witnesses’ statements in the possession of the state, which was granted on March 13, 1989. The defendant also filed a motion for the preservation and production of any taped statements made by the state’s witnesses including any call originally reporting the incident on February 28, 1989, pursuant to State v. Williamson, 14 Conn. App. 108, 552 A.2d 815 (1988) (Williamson I), aff’d, 212 Conn. 6, 562 A.2d 470 (1989) (Williamson II). On February 15,1989, the state notified the Ham-den police department to preserve the statements made on the 911 tape. During the trial, the state revealed that the 911 tape of the original report of the incident was erased according to Hamden police department policy. The 911 tape was erased approximately thirty days after the date of use, indicating that Blake’s statement was destroyed on or about December 12, 1988.

Subsequently, the defendant’s motion to strike the testimony of Blake was denied. On the basis of several facts, the trial court found that the destruction of the 911 tape was not done in bad faith. First, the trial court found that Blake did not provide a description of the defendant when Blake reported the robbery, but that the actual source of the description on the dispatch card, acknowledging the 911 call from Blake, was Officer John Cappiello of the Hamden police department during his initial investigation. The court also noted that the description on the dispatch card was similar to the description given by Blake when testifying at [258]*258trial. Thus, the trial court held that the nonproduction was harmless. The defendant took exception to the trial court’s ruling.

Under this court’s decision in Williamson I, supra, 911 tape recordings of witnesses’ statements must be preserved and given to the defendant upon appropriate request.3 In this appeal, the state asks this court to establish a public policy exception for 911 statements from the requirements of Practice Book § 752 et seq. and General Statutes § 54-86b. We reject the state’s request and continue to follow our precedent.

The record discloses that this case involves an intentional destruction of the 911 tape in accordance with the Hamden police department’s policy. This was done in clear violation of our decision in Williamson I, supra, which requires the preservation of 911 statements and was released on April 12, 1988, some eight months before the destruction of the 911 tape in this case. The defendant requests that we find this intentional destruction constituted “constructive bad faith” due to the Hamden police department’s failure to establish standards in accordance with Williamson I to preserve [259]*259a witness’ 911 statement. Although this court does not approve of the disregard of our decision in Williamson I, the destruction by the Hamden police department of the 911 statement in this case has not risen to a level that would warrant a constructive finding of bad faith.4 The Connecticut Supreme Court has established that bad faith “[i]n the context of [Practice Book] § 752 violation . . . connotes a deliberate act done with intent to deprive the defense of information.” Williamson II, supra, 16. Absent this, there may not be a finding of bad faith; State v. Belle, 215 Conn. 257, 265 n.8, 576 A.2d 139 (1990) (citing Williamson II, supra); and we find no evidence in the record to support such a conclusion.

Because the state did not act with bad faith, the court must next weigh “ ‘ “ ‘the culpability of the state for its failure to make disclosable material available . . . against any resulting prejudice to the defendant . . . .’ ” ’ ” (Citations omitted.) State v. Belle, supra, 268. The intentional destruction of the 911 statement in this case properly places the burden on the state to establish the harmlessness of its violation. Id.; State v. Johnson, 214 Conn. 161, 172, 571 A.2d 79 (1990). Whether the state must establish harmlessness beyond a reasonable doubt or by the lesser “more probable than not” standard, depends on the extent to which the missing 911 tape impaired the defendant’s constitutional right to confront and cross-examine witnesses. State v. Belle, supra, 269-70; State v. Johnson, supra, 173-74.

In evaluating whether the state’s failure to produce the victim’s 911 statements reporting the robbery [260]*260infringed on the defendant’s confrontation rights, we look to several factors developed by our Supreme Court. See State v. Belle, supra, 269-70; State v. Johnson, supra, 174-75; Williamson II, supra, 22-23. First, it must be determined whether “the trial court or a reviewing court had access to the unproduced material.” WilliamsonII, supra, 22. As in Williamson II, the trial court in this case did not have access to the 911 tape that was destroyed by the police. Id., 23. The dispatch card is not a transcript of what Blake actually said during the 911 call. As in Williamson II, the declarant in this case did not “read and [adopt] a counterpart transcript within a short time after making the statement.” Id.

The critical factor distinguishing this case from Williamson II is that this defendant’s conviction did not rest solely on the testimony of the witness whose pretrial statement had been destroyed. See State v. Johnson,

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Bluebook (online)
594 A.2d 477, 25 Conn. App. 255, 1991 Conn. App. LEXIS 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sanford-connappct-1991.