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State v. Sinclair

Court of Appeals of Connecticut

January 30, 1990

STATE of Connecticut
v.
John SINCLAIR.

Argued Oct. 12, 1989.

Barbara Sorrentino, Asst. Public Defender, for appellant (defendant).

John O'Meara, Deputy Asst. State's Atty., with whom were Michael Dearington, State's Atty., and James G. Clark, Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and SPALLONE and LAVERY, JJ.

[20 Conn.App. 587] LAVERY, Judge.

The defendant is appealing from a judgment of conviction, after a jury trial, of burglary in the second degree in violation of General Statutes § 53a-102, and larceny in the fourth degree, in violation of General Statutes § 53a-125. He also appeals from a judgment of conviction, after a trial to the court, of being a persistent serious felony offender in violation of General Statutes § 53a-40(b). The defendant claims that the trial court erred (1) in failing to strike the testimony of a witness whose statement was lost by the police, (2) in failing to declare a mistrial or to give a curative instruction after the state made remarks during closing argument that allegedly shifted the burden of proof to the defendant, (3) in refusing the defendant's

Page 552

request to charge on circumstantial evidence and in giving an inadequate instruction on that issue. The defendant also claims that the state committed prosecutorial misconduct when it argued to the jury certain facts not in evidence. We find no error. [1]

[20 Conn.App. 588] The jury could reasonably have found the following facts. The victim, Penelope Ducker, was a student residing in Morse College, an undergraduate college of Yale University in New Haven. On October 6, 1987, at approximately 9:40 p.m., Ducker left her dormitory room to visit a friend across the hall. When she returned to her room, she saw a man come out of her room carrying her portable stereo. Ducker yelled at the man, who fled down a flight of stairs toward the college courtyard.

Ducker chased the burglar down several flights of stairs. During the chase, the burglar threw down the stereo on the stairs. Ducker stopped and looked out an open window, through which she could see the man she had chased walking nonchalantly away from the building. She yelled from the window, "Stop that guy. He just ripped me off." The man began to run.

Paul Jahnige and David Thompson, two Yale students, heard Ducker's cries and began to chase the man. Ducker also joined the chase. The three eventually caught up with and surrounded the man on a nearby street, Tower Parkway. He asked his pursuers to "give [him] a break." He began running again, then stumbled and fell. Two gold chains belonging to Ducker spilled from his jacket pocket. Jahnige and Thompson then held the man until the police arrived. At trial, the parties stipulated that the man chased by the Yale students and arrested by the police was in fact the defendant.

I

The defendant first claims that the trial court erred in refusing to strike the testimony of the victim because of the state's failure to produce her statement. We disagree.

[20 Conn.App. 589] After the defendant's arrest, the Yale police taperecorded Ducker's statement at the station house. It was the policy of the Yale police to transcribe such recordings and then to store the cassettes in a locked drawer, to which only two officers had a key. [2] When neither officer was available to unlock the drawer, as was the case on the evening in question, the cassette would be left on the desk top above the drawer, to be placed in the drawer when it next could be unlocked. The tapes were usually labeled with a small, adhesive-backed piece of note paper and were not catalogued in any way.

Approximately one week Before the trial began, the state informed the defendant that it could not locate the cassette tape containing Ducker's statement, although it was able to provide a transcript of the recording signed by Ducker. The defendant filed a motion in limine to suppress Ducker's testimony at trial on the ground that the state had failed to comply with the mandatory discovery requirements of General Statutes § 54-86b and Practice Book §§ 748 through 755. The trial court denied the motion.

The discovery of prosecution witnesses' statements is governed by General Statutes § 54-86b, [3] and ...


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