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State v. Johnson

Supreme Court of Connecticut

March 6, 1990

STATE of Connecticut
v.
Douglas JOHNSON.

Argued Dec. 13, 1989.

Page 80

[214 Conn. 162] Suzanne Zitser, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Harry Weller, Asst. State's Atty., with whom, on the brief, was Michael Dearington, State's Atty., for appellee (state).

Before PETERS, C.J., and SHEA, COVELLO, HULL and SANTANIELLO, JJ.

HULL, Justice.

A jury found the defendant, Douglas Johnson, guilty of murder in violation of General Statutes § 53a-54a(a), [1] arson in the first degree in violation of General Statutes § 53a-111(a)(1), [2] and larceny [214 Conn. 163] in the sixth degree in violation of General Statutes §§ 53a-119 and 53a-125b(a). [3] The trial court thereupon sentenced him to a total effective sentence of eighty-five years and ninety days incarceration. On appeal from this judgment, the defendant claims that the trial court erred in: (1) admitting into evidence the testimony of five state's witnesses whose taped statements had been destroyed by the investigating police department prior to the commencement of trial; and (2) including in its charge language that had the effect of diluting the state's burden of proving guilt beyond a reasonable doubt. We find no error.

The jury could reasonably have found the following facts. On the night of March 6, 1987, the defendant and his cousin, Edward Lambert, were having drinks at the Yale Bowl Cafe in New Haven. While there, they observed an altercation between a man, later identified as Charles Strickland, and a woman, later identified as Kelly Allen Meyer. The defendant intervened to break up the fight and ultimately escorted Strickland out of the bar. The defendant thereafter returned to the Yale Bowl Cafe and remained in the bar for one or two hours Before leaving. During that time, the defendant spoke with Meyer and ultimately left the bar arm-in-arm with her at approximately 2 a.m.

Lambert, who left the bar with Meyer and the defendant, drove them to Meyer's apartment building located two blocks from the Yale Bowl Cafe. When they arrived at the apartment building, the defendant and Meyer got out of the car and the defendant indicated to Lambert[214 Conn. 164] that he would walk home. Consequently, Lambert drove away. The defendant and Meyer then entered Meyer's apartment and went into her bedroom. At some point thereafter, the defendant repeatedly stabbed Meyer with a barbeque fork and strangled her with an antenna wire. Subsequent to Meyer's death from these wounds, the defendant set fire to her room.

The defendant fled the scene on foot, taking with him Meyer's purse and the barbeque fork. He either dropped or discarded some of the contents of the purse on the street as he fled in the direction of his home. He attempted to conceal the barbeque fork and the other items from Meyer's purse in a storm drain also located along a path between Meyer's apartment and his home. The defendant was arrested on April 6, 1987.

Since certain procedural facts are significant to this appeal, we will detail those facts prior to discussing the substance of the defendant's claims of error. During

Page 81

the investigation into the crimes for which the defendant was tried, statements were given to the New Haven police by Margo Hudson, Willie Kirkland, Brian Simmons, Virginia Hagberg, and Eloise Lambert. The police tape recorded these statements and then erased the recordings subsequent to their transcription. Faced with the fact that the destruction of the tapes would render impossible the state's compliance with General Statutes § 54-86b [4] and Practice Book § 752 et [214 Conn. 165] seq., [5] the state filed a motion in limine prior to the commencement of trial. The state requested in this motion that an "evidentiary hearing be held concerning the destruction by the police department of tapes of statements by critical state witnesses" and that "a ruling [be made] as to the admissibility of trial testimony of such witnesses."

A hearing was held on May 3, 5 and 6, 1988, during which testimony was heard from the individuals who had given the tape recorded statements that had been destroyed and from the police officers who were involved in the recording and/or destruction of those tapes. The testimony concerned the making of the tape recorded statements, the adoption of the typed transcriptions of the statements by each witness, and the destruction of the tapes. After hearing the testimony, the trial court made its ruling on the admissibility of the witnesses' testimony at trial. [6] The court first determined[214 Conn. 166] that the tapes had been destroyed in "bad faith," but that there was no basis to conclude that the "erasure ... was maliciously motivated or directed at this defendant in particular." Accordingly, the trial court shifted the burden to the state to establish that the defendant had not been prejudiced by the destruction and absence of the tape recorded statements. The court then concluded that while it was difficult to evaluate prejudice without the trial testimony of each witness, it was satisfied that the state had, at this preliminary stage, met its burden of proving that the defendant had not been prejudiced. The court expressed its willingness, however, to reconsider its ruling after the trial testimony of each witness, based on the state of the record at the completion of

Page 82

each witness' testimony. The defendant was thus encouraged to file either a motion to strike or a motion for a mistrial after the testimony of any witness whose statements could not be produced by the state as required by General Statutes § 54-86b and Practice Book § 752. As a result of the trial court's ruling on its motion in limine, the state called each of the five witnesses to testify at trial. [7]

[214 Conn. 167] I

The defendant first claims error in the trial court's admission into evidence of the testimony of these five witnesses. Relying on General Statutes § 54-86b and Practice Book §§ 752 and 755, the defendant contends that the admission of this testimony constitutes reversible error in that: (A) a per se rule of reversal is appropriate when a witness, whose tape recorded statement was intentionally destroyed, is permitted to testify at trial; or in the alternative (B) the destruction of the tapes so prejudiced the defendant that the state's nonproduction of them cannot be rendered harmless. We conclude that under the facts here presented, reversal of the defendant's conviction is not required.

A

We first address the defendant's claim that the trial court's admission into evidence of the testimony of the witnesses whose tape recorded statements had been destroyed by the investigating police department requires the application by this court of a per se rule of reversal. The defendant implores us to invoke our supervisory powers; Practice Book § 4183; [8] in order [214 Conn. 168] to effectuate the provisions of General ...


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