State v. Cain

¶1concurring in part, dissenting in part. I conclude that the trial court should have granted the defendant’s motion to strike the victim’s testimony because the missing 911 statement implicated the defendant's federal constitutional right to confront and cross-examine a critical witness. The majority’s opinion has failed to consider the factors the Connecticut Supreme Court has articulated and applied in similar cases to assess whether the missing 911 statement infringed on the defendant’s confrontation rights. See State v. Belle, 215 Conn. 257, 269-70, 576 A.2d 139 (1990) ; State v. Johnson, 214 Conn. 161, 174-75, 571 A.2d 79 (1990); State v. Williamson, 212 Conn. 6, 22-23, 562 A.2d 470 (1989) (Williamson II); State v. Sanford, 25 Conn. App. 255, 260-61, 594 A.2d 477 (1991) . First, it must be determined whether “the trial court or a reviewing court ha[d] access to the unproduced material.” WilliamsonII, supra, 22. As in Williamson II, neither the trial court nor this court has had access to the victim’s 911 statement because it was destroyed. As in Williamson II, neither the trial court nor this court has had a counterpart transcript of the missing statement, read and adopted by the victim shortly after making her 911 telephone call. Id., 23. Finally, like the Williamson II case, the defendant’s conviction obviously rested on the testimony of the victim, whose pretrial statement was destroyed. Id., 22-23. Given these factors, the defendant’s right to confront and cross-examine the victim was implicated and *527the state should have been held to prove beyond a reasonable doubt that the missing 911 statement was harmless. Id., 23.1

¶2From the evidence adduced at trial, the state could not prove that the missing 911 statement was harmless beyond a reasonable doubt. The defendant’s conviction rested squarely on the victim’s testimony in this case and her testimony contained critical inconsistencies. On direct examination, the victim testified that the first person she called after the incident was her friend. The victim claimed that she told her friend that the defendant had assaulted her. She then testified that after this conversation she called 911 and reported: “I was raped.” During her cross-examination, the victim testified that she told her friend, “[the defendant] raped me,” not “[the defendant] hit me,” as her friend had testified. She then explained that in her prior testimony she had used the word “assaulted” because she was afraid to use the term “rape,” and that she had, in fact, told her friend that she was raped. During recross, the victim reaffirmed the sequence of her telephone calls and that she had reported to the 911 operator that she had been raped. The victim’s friend testified that the victim called and said “[the defendant] hit me,” but she was not certain of the wording, and later testified that it sounded like “[the defendant] hit me.” The state submitted into evidence the victim’s statement to the police on the day she called 911. The statement contained the victim’s accusation that the defendant had raped her on that day.

¶3*528The inconsistencies in the victim’s testimony and in what she said to her friend on the phone are relevant to the issue of what was the victim’s initial complaint to the police on that day. Although the inconsistencies have to do with what the victim told her friend about her complaint, they do indicate that the victim’s call to the police, which immediately followed, was of critical importance. What the victim reported in her 911 statement would either support her accusation of rape or provide the defendant with material for further impeachment because she could have complained of an assault or of the defendant’s striking her. Conceivably, the victim and the defendant could have had consensual intercourse and subsequently had a violent altercation. Simply because there may have been a temporal juxtaposition between the sexual intercourse and an assault does not lead to the inescapable conclusion that a rape occurred.

¶4The trial court’s conclusion that the defendant had not been prejudiced was based on its speculation that the 911 tape contained the victim’s accusation that she had been raped.2 This speculation is unfounded and did not address the inference of inconsistency drawn from both the victim’s and her friend’s testimony. Though her 911 statement may have been brief, as the facts of this case demonstrate, whether the victim reported that she had been struck, assaulted or raped would have been critical evidence for the defendant’s defense and thus implicated his confrontation rights.

¶5The defendant was able thoroughly to cross-examine the witnesses and did expose the jury to the inconsistencies contained in the victim’s testimony and in her conversation with her friend. See Williamson II, supra, *52925-26. This does not ameliorate, however, the prejudice the defendant may have suffered because he did not have available the victim’s 911 statement. See id. Had the jury heard that the victim reported to the police that the defendant had struck her or assaulted her, and not that he had raped her, it might have affected the outcome of this case, at least regarding the counts of sexual assault and burglary. Thus, the trial court should have stricken the victim’s testimony because of the state’s failure to produce the 911 statement and the state’s subsequent failure to prove the defendant had not been prejudiced beyond a reasonable doubt.

¶6As a result of this conclusion, I would reverse the judgment of conviction on the counts of sexual assault and burglary and remand the case for a new trial on those counts. In all other aspects of the majority’s opinion I concur.