In re JESUS C. [*]
Argued Jan. 17, 1990.
Mary Miller Haselkamp, Deputy Asst. Public Defender, with whom was Temmy Ann Pieszak, Asst. Public Defender, for appellant (defendant).
[21 Conn.App. 646] Mitchell S. Brody, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., John O'Meara, Deputy Asst. State's Atty., Bernard D. Kennedy, Deputy Asst. State's Attorney, and Harry Weller, Assistant State's Atty., for appellee (state).
Before BORDEN, DALY and EDWARD Y. O'CONNELL, JJ.
EDWARD Y. O'CONNELL, Judge.
The defendant appeals from the judgment of adjudication as a youthful offender, pursuant to General Statutes § 54-76g, by virtue of his commission of the crime of using a motor vehicle without the owner's permission in violation of General Statutes § 53a-119b. He claims that the trial court erred (1) in refusing to strike the testimony of two police officers, (2) in admitting a police report into evidence, and (3) in denying the defendant's motion to recuse. We find error.
The following facts are relevant to this appeal. On September 27, 1988, New Haven police officer Sal Rivera noticed three individuals in or around a parked car. Rivera observed that their attention was focused on the car's steering column. Shortly thereafter, the three individuals became aware of Rivera's presence and took flight, running down the street and between some buildings. Suspecting that the car might be stolen, Rivera gave chase on foot. During the pursuit, he used his portable police radio to transmit a description of the individuals and what had just transpired.
Rivera's broadcast was heard by Officer Anthony DeLucia, who was in a patrol car about two blocks from the scene. Just after hearing the report, DeLucia saw three individuals run across the street in front of him. DeLucia radioed that he had Rivera's subjects in sight, and then left his car to pursue them on foot. He soon located the defendant in the kitchen of a nearby home. Rivera arrived a few moments later, identified the [21 Conn.App. 647] defendant as one of the persons who had run from him, and placed him under arrest. A second suspect was found hiding under the stairs in the basement, but the third was never found.
The defendant's first claim is that the trial court erred in refusing to strike the testimony of Rivera and DeLucia because of the state's failure to produce the tapes of the officers' radio broadcasts. This
claim arises in the following context. Shortly after entering a plea of not guilty, the defendant filed a discovery request seeking, inter alia, copies of all witness statements relevant to his case. Following each officer's trial testimony, the defendant moved, pursuant to Practice Book § 752,  for the production of the broadcast tapes on the grounds that they were statements within the meaning of Practice Book § 749.  The recordings were unavailable, however, because the New Haven police department had erased and reused the tapes thirty-seven days after the defendant's arrest and a few days prior to the defendant's pretrial request. The trial court denied the defendant's motion to strike.
This is not the first occasion where, on appeal, Connecticut courts have been required to consider the implications[21 Conn.App. 648] of the New Haven police department's failure to preserve tapes of witness statements. See, e.g., State v. Johnson, 214 Conn. 161, 571 A.2d 79 (1990); State v. Kelly, 208 Conn. 365, 545 A.2d 1048 (1988); State v. Santangelo, 205 Conn. 578, 534 A.2d 1175 (1987); State v. Mullings, 202 Conn. 1, 519 A.2d 58 (1987); State v. Myers, 193 Conn. 457, 479 A.2d 199 (1984); State v. Shaw, 185 Conn. 372, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S.Ct. 1027, 71 L.Ed.2d 312 (1982); State v. Williamson, 14 Conn.App. 108, 552 A.2d 815, aff'd., 212 Conn. 6, 562 A.2d 470 (1989); State v. Sims, 12 Conn.App. 239, 530 A.2d 1069 (1987), cert. denied, 206 Conn. 801, 535 A.2d 1315 (1988). It is settled that the state cannot avoid its obligations under the rules of practice governing discovery by destroying discoverable material prior to a defendant's motion for production, and, in appropriate circumstances, the affected testimony may be struck as a sanction for such destruction. Practice Book § 755. State v. Williamson, 212 Conn. 6, 13, 562 A.2d 470 (1989). Sanctions will not be imposed, however, if the court finds that the nonproduction of a statement is harmless. State v. Williamson, supra, 212 Conn. 6, 13, 562 A.2d 470.
In State v. Sims, supra, we held that police broadcast tapes were "statements" within the terms of our rules of practice. Id., 12 Conn.App. at 248-49, 530 A.2d 1069. In that case, as here, the recordings had been destroyed by the reuse of the tapes prior to the request for disclosure. Id. We held there that the erasure did not require that the testimony be stricken, although we expressed serious reservations about the New Haven police department's failure to comply with judicial directives to discontinue routine erasure of tape-recorded material. Id., at 249, 530 A.2d 1069.
Sims was followed by our decision in State v. Williamson, supra, 14 Conn.App. 108, 552 A.2d 815. In Williamson, this court reiterated that recordings such as the one in Sims had to be preserved because they related "to the investigation,[21 Conn.App. 649] apprehension, and prosecution of suspects of a crime...." Id., 118C n. 9, 552 A.2d 815.  Since the recordings were not produced, the affected testimony had to be stricken. Id., 109, 552 A.2d 815.
At oral argument in this case the state argued that police broadcast tapes do not come within the ambit of our decision in ...