Opinion
(13727)
Convicted of the crimes of assault in the first degree, arson in the first degree and attempted murder, the defendant appealed to this court. This court ordered a new trial as to the charges of attempted murder and assault in the first degree and also ordered further proceedings as to the arson charge because the trial court improperly failed to order the production of a certain report prepared by a state police officer. On remand, that court conducted an in camera inspection of the report, and concluded that although the report should have been disclosed, nondisclosure did not prejudice the defendant. Held that the trial court properly found that the failure to disclose did not prejudice the defendant.
Argued September 28, 1990
Decision released May 21, 1991
Substitute information charging the defendant with the crimes of assault in the first degree, arson in the first degree and attempted murder, brought to the Superior Court in the judicial district of Fairfield and tried to the jury before S. Freedman, J.; verdict and judgment of guilty, from which the defendant appealed; this court ordered a new trial with respect to the counts of assault in the first degree and attempted murder and, with respect to the count of arson in the first degree, remanded the matter to the trial court with direction to conduct an in camera examination of a certain police report to determine whether all or any part of it should have been made available to the defendant; on remand, the trial court determined that a portion of the report should have been disclosed but that the defendant was not prejudiced by the nondisclosure. Affirmed.
David J. Burke, special public defender, with whom were Pamela K. Elkow and, on the brief, Peter A. Stroili and Michael A. Fitzpatrick, special public defenders, for the appellant (defendant).
Richard F. Jacobson, assistant state's attorney, with whom, on the brief, were Donald A. Browne, state's attorney, and Gary Nicholson, assistant state's attorney, for the appellee (state).
The defendant, Roy A. King, was convicted of the crimes of attempted murder in violation of General Statutes 53a-49 and 53a-54a (a), assault in the first degree in violation of General Statutes 53a-59 (a)(3) and arson in the first degree in violation of General Statutes 53a-111 (a)(2). In State v. King, 216 Conn. 585, 603-604, 583 A.2d 896 (1990), in which we set forth the relevant facts in detail, we ordered a new trial as to the counts of attempted murder and assault in the first degree. We also ordered further proceedings as to the arson count because we concluded that the trial court improperly had failed to order the production of a report prepared by a state police officer concerning interviews that the officer had conducted with certain inmates and that the trial court had failed to conduct an in camera inspection of that report. Id., 599-600. Specifically, we ordered the trial court to answer three questions concerning the report: (1) whether the report in question was a "statement" under Practice Book 749; (2) if so, whether all of the statement or any portion of it should have been disclosed pursuant to Practice Book 752 and 753; and (3) if all or a portion of the statement should have been disclosed, whether the defendant was prejudiced by the nondisclosure. Id., 599.
On remand, the trial court conducted the required examination and concluded that the report was a "statement" under 749 and that a portion of it should have been disclosed, but that the defendant had not been harmed by his inability to gain access to the undisclosed material. We granted the defendant's motion to file a supplemental brief challenging the trial court's findings, but limited our review to the question of Whether the trial court properly determined that the nondisclosure of the information in the report did not prejudice the defendant.
We have reviewed the defendant's and the state's briefs on this issue and conclude that the trial court properly found that the failure to disclose did not prejudice the defendant. See United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (undisclosed evidence is material only if there is a reasonable probability that the outcome of the proceeding would have been different if the evidence had been disclosed). The defendant, therefore, is not entitled to a retrial on the arson count.