STATE v. KETRIC BARNES, SC 18774

Judicial District of Ansonia-Milford

 Criminal; Due Process; Failure to Preserve Evidence; Whether Trial Court Properly Denied the Defendant's Motion to Dismiss for the State's Failure to Produce Lost Audio Recordings of a Sting Operation. On two occasions in March, 2008, the West Haven police department used an informant to conduct two controlled buys of crack cocaine from the defendant.  A police officer fitted the informant with a transmitter so that her conversations during the buys could be monitored.  On the basis of the informant’s two controlled buys, the defendant was arrested and charged with, inter alia, sale of narcotics.  Although recordings of the conversations had been made, the police lost them before trial and before the state and the defendant had the opportunity to listen to them.  The defendant moved to dismiss the charges involving the sale of narcotics on the basis that his state due process rights were violated by the loss of the evidence.  The trial court denied the motion to dismiss, and, subsequently, the defendant was convicted of the charges.  He appealed, claiming the trial court should have dismissed the narcotics charges based on the loss of the recordings.  In rejecting that claim, the Appellate Court (127 Conn. App. 24), applied the balancing factors set out in State v. Asherman, 193 Conn. 695, 724 (1984), cert. denied, 470 U.S. 1050 (1985), weighing the reasons for the unavailability of the evidence against the amount of prejudice to the defendant.  Specifically, the court determined that the recordings were not material, the jury was not likely to misinterpret the missing recordings, and the reason for the nonavailability of the tapes did not involve bad faith on the part of the police or the state.  Also, the court found that the trial court remedied any potential prejudice resulting from the unavailability of the evidence by allowing the defendant unfettered cross-examination of the state's witnesses and allowing him to use, during closing argument, the fact that the tapes were lost in an attempt to raise reasonable doubt in the minds of the jurors.  The court additionally noted that while the trial court permitted the defendant to argue for additional remedies, the defendant never asked for further corrective measures such as an adverse inference instruction or a missing evidence instruction.  The Appellate Court concluded that the defendant's state due process rights were not violated due to the missing tapes and further concluded that the trial court did not abuse its discretion in denying the motion to dismiss.  In this appeal, the Supreme Court will review whether the Appellate Court properly concluded that the trial court acted within its discretion in denying the motion to dismiss.