State v. Wityak

616 A.2d 276, 29 Conn. App. 455, 1992 Conn. App. LEXIS 401, 1992 WL 323015
CourtConnecticut Appellate Court
DecidedNovember 10, 1992
Docket10721
StatusPublished
Cited by5 cases

This text of 616 A.2d 276 (State v. Wityak) 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. Wityak, 616 A.2d 276, 29 Conn. App. 455, 1992 Conn. App. LEXIS 401, 1992 WL 323015 (Colo. Ct. App. 1992).

Opinion

Daly, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (l).1 On appeal, the defendant claims that the trial court improperly admitted into evidence the testimony of state witnesses whose pretrial statements were not disclosed by the state as required under General Statutes § 54-86b2 [457]*457and Practice Book § 752.3 The pretrial statements were not disclosed because the twenty-four hour broadcast tape on which they were recorded was erased according to routine police procedure.

From the evidence presented, the jury could reasonably have found the following facts. On September 10, 1990, at about noon, Francis Keith, the owner of a liquor store located on Main Street in Seymour observed a white Corvette parked across the street in a bank parking lot. Keith saw a male exit the Corvette and stagger across the street toward his establishment. When the male entered Keith’s store, he asked to purchase two cases of beer. Keith recognized the defendant. Because the defendant smelled strongly of urine and slurred his speech, Keith believed the defendant was inebriated. He therefore denied the defendant’s request to purchase some beer. The defendant then exited the premises. After staggering back across the street to his white Corvette, the defendant drove south in the northbound lane of the street.

Keith believed that the defendant might cause an accident and searched for a police officer without success. He noticed Michael Driscoll, the deputy fire marshal of Seymour, exit the restaurant adjacent to the liquor store. Keith approached Driscoll, explained what he had observed, and expressed his concern that the [458]*458defendant might cause an accident. Keith asked Driscoll to contact the police department by the town radio that Driscoll carried with him. Keith then returned to his store. Subsequently, Driscoll walked to his vehicle and used the radio to notify the police dispatcher, Officer Jill DeFelice, of the information that Keith had relayed to him.

Officer John Cronin received a radio dispatch while on patrol at about noon on the same day. The dispatch warned him to be on alert for a white Corvette operated by an intoxicated person. Cronin knew that the defendant owned a white Corvette. Consequently, he went to the defendant’s residence on Brother’s Court to see whether the defendant’s Corvette was there. Upon arrival, he did not see the car in the defendant’s driveway and searched the town in an attempt to locate it. Cronin drove by the defendant’s driveway a number of times without seeing the car and then proceeded to police headquarters.

When Cronin returned to Brother’s Court the Corvette was not at the defendant’s residence. Cronin left Brother’s Court by way of Chamberlain Road, the only outlet. While stopped at the intersection of Chamberlain Road, a dead-end street, and Walnut Street, Cronin saw a white Corvette turn onto Chamberlain Road from Walnut Street. As the Corvette passed his police cruiser, Cronin recognized the defendant as the operator of the Corvette. At that time, Cronin did not observe any erratic driving by the defendant. Cronin momentarily lost sight of the Corvette during the short time he took to turn his cruiser around to pursue the defendant. Cronin testified that throughout his investigation, he probably contacted the dispatcher on his police radio to update the department on his search.

At the defendant’s residence, Cronin saw the Corvette parked in the defendant’s driveway, with the [459]*459defendant standing alongside it. Cronin approached the defendant and asked to speak with him. The defendant’s condition was poor. He was soaked with urine from the chest down, his eyes were glassed over, he appeared confused, and he had great difficulty walking.

Concluding that the defendant was highly inebriated, Cronin arrested him at 1:18 p.m. for operating a motor vehicle while under the influence of intoxicating liquor. The results of the defendant’s breathalizer tests indicated that the defendant had a blood alcohol level of 0.33 percent at the time he was operating his vehicle prior to his arrest.

Before the defendant’s trial commenced, the defendant filed three pretrial motions to preclude the testimony of Keith, Driscoll, and Cronin because the twenty-four hour tape containing the broadcasts by Driscoll and Cronin had been erased, effectively making the state’s compliance with General Statutes § 54-86b and Practice Book § 748 et seq. impossible. The Seymour police department uses twenty-four hour tapes to record 911 calls, nonemergency calls, town radio transmissions, and department radio transmissions. The twenty-four hour tape is changed daily and is stored for one month before being reused. Thus, the recorded statements of Driscoll and Cronin were unavailable because the twenty-four hour tape in question had been reused according to routine procedure on October 10, 1990, one month after this incident took place.

After hearing the testimony of Keith, Driscoll, Cronin, and DeFelice,4 the trial court denied the defendant’s motions to preclude. The court found that Keith’s conversation with Driscoll did not amount to a statement as defined in Practice Book § 7495 because it was [460]*460not a verbatim transcription of Keith’s comments. With respect to the testimony of Driscoll and Cronin, the trial court determined that the erasure of the tape was not executed in bad faith. The court found that the state’s failure to preserve the tape did not prejudice the defendant and that the defendant’s right to confront Driscoll and Cronin would not be impaired. The defendant took exception.

Following the state’s direct examination of the three witnesses, the defendant requested production pursuant to Practice Book § 752 of all notes and statements made by the witnesses claiming that they were statements within the meaning of § 749. Because the broadcast tape had been reused, the statements on the broadcast tape were not available for cross-examination. Accordingly, the defendant moved to strike the testimony of Keith, Driscoll, and Cronin under Practice Book § 755.6 The trial court denied each of these three motions for the same reasons it had denied the motions to preclude. The defendant took exception to each of the trial court’s rulings.

The defendant challenges the trial court’s denial of his motions to preclude and to strike because the trial court improperly determined that (1) Keith’s conversation with Driscoll did not constitute a statement [461]*461under the definition in Practice Book § 749, (2) the broadcasts made by Driscoll and Cronin did not constitute statements under the definition set forth in Practice Book § 749, and (3) the state satisfied its burden of showing nonproduction of the recorded broadcasts to be harmless. We affirm the judgment of the trial court.

The defendant first claims that Keith’s comments in his conversation with Driscoll constituted a statement subject to disclosure under Practice Book § 752. The defendant argues that the call made by Driscoll over the town radio was actually the statement of Keith, and, therefore, the trial court should not have admitted Keith’s testimony because the state failed to disclose the recording of Driscoll’s radio broadcast.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Johnson
786 A.2d 1269 (Connecticut Appellate Court, 2001)
State v. Cepeda
723 A.2d 331 (Connecticut Appellate Court, 1999)
State v. Milner
699 A.2d 1022 (Connecticut Appellate Court, 1997)
State v. Wityak
618 A.2d 529 (Supreme Court of Connecticut, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
616 A.2d 276, 29 Conn. App. 455, 1992 Conn. App. LEXIS 401, 1992 WL 323015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wityak-connappct-1992.