STATE v. CAIN, 223 Conn. 731 (1992)

613 A.2d 804

(14407)Supreme Court of Connecticut

PETERS, C. J., CALLAHAN, GLASS, BORDEN and BERDON, Js.

Pursuant to statute (54-86b) and the rules of practice (752), after a witness called by the state has testified on direct examination at trial, the court shall, on motion of the defendant, order the prosecution to produce any statement of the witness in the possession of the state that relates to the subject matter about which the witness has testified. Section 752 applies also to statements in the possession of agents of the state, such as state and local law enforcement officers. Convicted of, inter alia, the crimes of sexual assault in the first degree and burglary in the third degree, the defendant appealed to the Appellate Court claiming, inter alia, that the trial court improperly admitted testimony by the victim regarding a 911 emergency telephone call she had allegedly made to the police after the assault, the tape recording of that call being unavailable as it had been erased pursuant to police department policy. The Appellate Court, having determined that the tape recording of the victim’s call was a “statement” within the meaning of the appropriate rule of practice (749 [2]), concluded that because the erasure of the tape was not done in bad faith, the defendant’s constitutional right to confrontation had not been violated and that any violation of 752 was harmless. In affirming the judgments of the trial court, the Appellate Court also mandated a policy regarding preservation by police departments of tape recordings of emergency telephone calls. The defendant, on the granting of certification, appealed to this court. Because the language of 749(2) is inherently ambiguous as applied to tape recordings of 911 calls, this court determined, after an analysis of the history and purpose of 749(2), that it was not within the intent of the language of that section to cover a tape recording of a 911 emergency telephone call. Such a recording, therefore, is not a “statement” within the meaning of 749(2) or of 54-86b that is subject to preservation and to disclosure. This court could not say that the

Page 732

reliability of verdicts in criminal cases requires a construction of 749(2) that would include tape recordings of 911 emergency telephone calls.

(One justice dissenting)

History and operation of 911 emergency telephone call system, discussed.

Argued June 4, 1992

Decision released August 25, 1992

Informations charging the defendant with one count each of the crimes of sexual assault in the first degree, burglary in the third degree and tampering with a witness and with four counts of the crime of harassment in the second degree, brought to the Superior Court in the judicial district of Ansonia-Milford, geographical area number five, where the informations were consolidated and tried to the jury before Gray, J.; after the court granted the defendant’s motion for acquittal as to the tampering with a witness count and three counts of harassment in the second degree, verdicts and judgments of guilty of one count each of sexual assault in the first degree, burglary in the third degree and harassment in the second degree, from which the defendant filed two appeals to the Appellate Court, where the appeals were consolidated and where the court, Norcott and Heiman, Js., with Daly, J., concurring in part and dissenting in part, affirmed the trial court’s judgments, and the defendant, on the granting of certification, appealed to this court. Affirmed.

The appellant filed a motion for reargument that was denied.

Richard Emanuel, assistant public defender, with whom, on the brief, were G. Douglas Nash, public defender, and Suzanne Zitser and Kent Drager, assistant public defenders, for the appellant (defendant).

Harry Weller, assistant state’s attorney, with whom, on the brief, were Mary Galvin, state’s attorney, and Frank McQuade, supervisory assistant state’s attorney, for the appellee (state).

Max S. Case filed a brief for the city of Milford as amicus curiae.

Page 733

BORDEN, J.

The dispositive issue of this appeal is whether a 911 emergency telephone call is a “statement” within the meaning of Practice Book 749(2).[1]
The defendant, Anthony Cain, appeals, upon our grant of certification, from the judgment of the Appellate Court affirming the trial court’s judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes 53a-70,[2] and burglary in the third degree in violation of General Statutes 53a-103.[3] The defendant claims that the judgment of the Appellate Court should be reversed because the unavailability of the tape recording of the victim’s 911 telephone call and the failure of the trial court to strike the testimony of the victim in light of that unavailability violated the defendant’s rights under

Page 734

Practice Book 752,[4] General Statutes 54-86b,[5] and his federal and state constitutional rights of confrontation.[6]
We hold that a tape recording of a 911 emergency telephone call is not a “statement” within the meaning of either Practice Book 749 or General Statutes 54-86b, and that, therefore, the state was not required by the provisions of the Practice Book to preserve and produce the tape recording in question. Accordingly, we affirm the judgment of the Appellate Court.

The relevant facts were stated by the Appellate Court: “From 1985 until December, 1987, the defendant and the victim were romantically involved. In December, 1987, the victim severed her relationship with the defendant. After their breakup, the defendant

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began repeatedly calling the victim at home and at work. On January 23, 1988, the defendant telephoned the victim and threatened her, stating that she would be sorry if she did not get back together with him. The victim filed a complaint with the Milford police department, but did not seek the defendant’s arrest at that time.

“On February 14, 1988, the defendant telephoned the victim at her apartment and asked her to go to lunch with him. She refused his invitation and turned on her answering machine to avoid further calls from him. After the victim showered and got dressed, she noticed that her cat was standing by the door. She opened the door and the defendant forced his way into her apartment, forced her onto the sofa, and sexually assaulted her. The victim then retreated to the bathroom and locked the bathroom door behind her. She stayed in this room until the defendant left the apartment.

“After the defendant left her apartment, the victim called a friend, who advised the victim to call 911. The victim then dialed 911 and reported that she had been sexually assaulted and named the defendant as her assailant. The defendant was arrested and charged with first degree sexual assault and burglary in the third degree, and was released on bond.” State v. Cain, 25 Conn. App. 503, 505-506, 596 A.2d 449 (1991).

On appeal to the Appellate Court, the defendant claimed that the trial court improperly denied his motion to strike the testimony of the victim, because of the state’s failure to produce the tape of her 911 telephone call. Id., 507. The Appellate Court stated the following facts that were necessary for the resolution of that claim: “At trial, the victim testified that when she called her friend after the defendant had left the apartment, she told her, `Tony assaulted me.’ The victim also testified that when she dialed 911 to report

Page 736

the incident, she told the police that the defendant had raped her. When the victim’s friend testified, she stated that when the victim telephoned her immediately after the incident she said, `Tony hit me.’

“Before the trial began, the trial court granted the defendant’s motion for discovery seeking `[c]opies of statements of prosecution witnesses in the possession of the State or its agents, including state and local law enforcement officers, which statements relate to the subject matter about which the witness will testify . . . .’ Although the 911 call was tape-recorded when it was made, this tape was erased thirty days after the incident pursuant to Milford police department policy. Consequently, the state was unable to produce the tape at the time of trial. The defendant contends that the destruction of the 911 tape and the state’s inability to produce it violated his rights under General Statutes 54-86b and Practice Book 752. He also alleges that the 911 tape could have explained the discrepancy between the victim’s testimony and that of her friend, and that its nonproduction violated his right to confrontation as guaranteed under the state and federal constitutions.” Id., 508-509

The Appellate Court held, in accordance with an acknowledgment by the state, that the tape recording of the 911 call was a “statement” within the meaning of Practice Book 749(2). Id., 509. It also held that, since the erasure of the tape had not been done in bad faith; see State v. Williamson, 212 Conn. 6, 16, 562 A.2d 470 (1989) (in context of violation of Practice Book 752, “bad faith” means done with intent to deprive defendant of information); the defendant’s constitutional right of confrontation had not been violated, and that the violation of Practice Book 752 was harmless. State v. Cain, supra, 510-11.

Page 737

The Appellate Court also held, however, that “because . . . the indefinite preservation of 911 tapes can place an unreasonable burden on police departments”; id., 512; henceforth, 911 tapes “are excluded from that portion of Practice Book 752 that states that a defendant may refrain from moving for production of statements until after a state’s witness has testified.” Id. The court mandated that police departments preserve all 911 tapes for one year “from the date of the 911 call.” Id. If within that period a defendant had not requested the preservation of a 911 recording, the police department would be free to erase and reuse the tape; if the defendant had requested the tape’s preservation, erasure of the tape would be a per se violation of Practice Book 751 et seq. and General Statutes 54-86b requiring the trial court to strike the testimony of the witness who had made the 911 call. Id., 513. Recognizing, however, that in some cases there may not have been an arrest within a reasonable time after the 911 call, the court held that if “the police investigation [were] protracted . . . the police shall bear the burden of preserving the tape for one year from the date of arrest.” Id., 513-14.

We granted the defendant’s petition for certification, as supplemented by the state’s response thereto.[7] This appeal followed.

With respect to the first certified question; see footnote 7, supra; the defendant argues that, first, under the plain language of Practice Book 749(2), a tape

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recording of a 911 telephone call is a “statement,”[8] that second, such tapes are in the possession of the state or its agents, including not only police departments but all municipalities, and third, it is foreseeable that such tapes might be relevant to criminal prosecutions. Therefore, the defendant contends that such tapes must be preserved by the state and produced upon request of the defendant pursuant to Practice Book 752. We disagree.[9]
We conclude, on the contrary, that despite the

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fact that the language of Practice Book 749(2), read literally, would cover the tape recording of a 911 telephone call, it is not within the intent of that language to cover such a tape recording and that, therefore, a tape recording of a 911 telephone call is not a “statement” within the meaning of 749(2) that is subject to preservation and to disclosure pursuant to 752.[10]

We begin with a history and description of the 911 emergency telephone call system in our state.[11]
In 1968, the American Telephone and Telegraph Company (ATT) designated 911 as a nationwide, universal emergency telephone number. Statewide Emergency Communications Study Commission Final Report to the Connecticut General Assembly (1980). After a series of public acts regarding the study and implementation of such a system statewide; see Spec. Acts 1978, No.

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35; Spec. Acts 1979, No. 56; Public Acts 1980, No. 80-360; and Public Acts 1981, No. 81-458; in 1984, the legislature enacted what are now General Statutes 28-25 through 28-29b,[12] requiring, inter alia, that “[e]ach municipality shall, not later than December 31, 1989, establish and operate a public safety answering point which utilizes enhanced 9-1-1 network features.” General Statutes 28-25a (b). Pursuant to these statutes, each municipality maintains, on a twenty-four hour basis, a “public safety answering point.” A “`[p]ublic safety answering point’ means a facility, operated on a twenty-four hour basis, assigned the responsibility of receiving 9-1-1 calls and, as appropriate, directly dispatching emergency response services, or transferring or relaying emergency 9-1-1 calls to other public safety agencies. A public safety answering point is the first point of reception by a public safety agency of a 9-1-1 call and serves the jurisdictions in which it is located or other participating jurisdictions.” General Statutes 28-25 (10). A “`[p]ublic safety agency’ means a functional division of a municipality or the state which provides fire fighting, law enforcement, ambulance, medical or other emergency services.” General Statutes 28-25 (8). Thus, 911 telephone calls consist not only of calls to report crimes, but consist of calls for all emergencies, including fire, ambulance, medical, and any other needed emergency service. Furthermore, such calls are routed, in the first instance, to the “public safety answering point” designated by that municipality, which may or may not be the local police department.

Since the 911 system identifies only the telephone number and geographical location of the source of the incoming call, but not necessarily the location and nature of the need for service, that information can only

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be preserved by writing it down or tape-recording it. Tape-recording is the fastest and most accurate method of logging such calls, and permits the monitor of the call to concentrate on the needs of the caller rather than on writing down the message. The automatic tape-recording of 911 calls also provides a quick and accurate method of retrieving the call in the event of confusion. United States Department of Justice, Bureau of Justice Statistics, The Design and Casting of 911 Systems, A Technical Manual, p. 53. Implicit in this legislative scheme for a telephonic emergency response system is the need for speed and accuracy in the interest of public safety.

Since tape recordings of 911 calls are public records, they are subject to the regulations regarding preservation and disposition of such records promulgated by the public records administrator pursuant to General Statutes 11-8.[13] Administrative and financial burdens

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play a role in the determination of how long such records must be preserved. Therefore, the public records administrator, acting pursuant to the state librarian’s authority, is required, in carrying out his duties under 11-8, to “consult with the attorney general, the probate court administrator and the chief executive officers of the Connecticut Town Clerks Association and the Municipal Finance Officers Association of Connecticut, or their duly appointed representatives.” General Statutes 11-8a. Under current retention schedules, promulgated by the public records administrator, tape recordings of 911 calls must be preserved for thirty days, unless within that period of time a notice of intent to file a claim against a municipality or its employee has been filed with the municipality pursuant to General Statutes 7-101a (d).[14] Public Records Administration,

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Records Retention/Disposition Schedules, Municipalities/Towns, p. 23. Thus, a municipality may ordinarily erase and reuse the tape after thirty days. It is significant that this thirty day period, arrived at after the appropriate consultations pursuant to 11-8a, is five months less than the six month notice of claim period provided under 7-101a (d). The responsible public officials could have mandated that 911 tapes be preserved

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for six months to coincide with 7-101a. Instead, it is apparent that they weighed the financial and administrative burdens of retaining tapes against the risks of liability under 7-101a.

With this background in mind, we turn to the defendant’s contention that the language of Practice Book 749(2) is clear and unambiguous and thus requires the conclusion that a tape recording of a 911 call is a “statement” within the meaning of that language. The rules of statutory interpretation apply to provisions of the Practice Book. State v. Genotti, 220 Conn. 796, 807, 601 A.2d 1013 (1992). If a statute is clear and unambiguous, there is no room for statutory construction. Mercado v. Commissioner of Income Maintenance, 222 Conn. 69, 74, 607 A.2d 1142 (1992). The rule that unambiguous language requires only strict application to the facts and prohibits resort to other aids to interpretation only applies, however, where the language is absolutely clear and unambiguous; Elections Review Committee of the Eighth Utilities District v. Freedom of Information Commission, 219 Conn. 685, 692, 595 A.2d 313 (1991); and where no inherent ambiguity is disclosed by reference to the facts of the case. Furthermore, even if a statute is considered clear on its face, if a literal interpretation of that statute would lead to unworkable results, resort to other aids to determine legislative intent is appropriate. See, e.g., Fairfield Plumbing Heating Supply Corporation v. Kosa, 220 Conn. 643, 650-51, 600 A.2d 1 (1991).[15] As applied to

Page 745

the facts of this case, we do not regard the language of 749(2) to be so absolutely clear that further interpretation is unnecessary. Moreover, even if we were to conclude that the language of 749(2) is clear, a literal interpretation of that section would lead to an unworkable result, which we seek to avoid.

Practice Book 748 through 755 establish, inter alia, a scheme for the discovery and use by the defendant of statements of witnesses for the state. Insofar as it relates to this case, this scheme hinges on the definition of “statement” in 749(2): “A . . . mechanical, electrical, or other recording . . . which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.” Pursuant to 752, after the direct testimony of a state’s witness the trial court “shall, on the motion of the defendant, order the state to produce any [such] statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.” In order for the state to comply with 752, the state and its agents, including state and local law enforcement agencies, must, therefore, preserve 749(2) “statements” for subsequent disclosure upon

Page 746

request by the defendant. Indeed, we have so held. State v. Myers, 193 Conn. 457, 466, 479 A.2d 199 (1984).

Pursuant to these Practice Book sections, whenever the state or its agents tape-records the words of an individual and that individual subsequently testifies for the state in a criminal trial regarding the subject matter of his tape-recorded words, that tape recording must have been preserved for production to the defendant in that trial pursuant to a request under 752. Thus, if a tape recording is deemed to be a “statement” within the meaning of 749(2), the state or its agents must preserve that tape recording, or a copy thereof, until its production is requested in a criminal trial some time in the future. This means, therefore, that some such tape recordings must be preserved almost indefinitely, since there will be some cases in which the trial may not take place until many years after the tape recording in question was made, either because no arrest was made until years later, or because the defendant had absconded, or for other valid reasons. It also means that whenever the state or any of its agencies, which under the defendant’s reading of 749 and 752 includes all municipalities, tape-records an individual’s words, that tape recording must be preserved on the chance that it will be required to be produced at some time in the future pursuant to a request under 752.

Application of this analysis to the tape-recording of 911 telephone calls leads us to conclude at a minimum that, despite the seemingly clear language of 749(2), it is not absolutely clear that the definition of “statement” was intended to include such a tape recording. Furthermore, even if we were to regard 749(2) as clear, a literal interpretation of that section would lead to an unworkable result. Such a conclusion would mean, as a practical matter, that each municipality would be required by the provisions of the Practice Book to preserve indefinitely tapes of all 911 emergency telephone

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calls, because it would be impossible for the municipality to determine at the instant of each such call whether it would be required to produce the tape-recording at some time in the future. Moreover, since all 911 calls come into one initial public safety answering point and include, not only requests for police services, but calls for fire, ambulance, medical and all other emergency services, and since conceivably any of those calls might be relevant to some subsequent criminal trial, all of those tapes would have to be preserved indefinitely as well.

The extent of the administrative and financial burdens that this process would impose cannot be gainsaid.[16]
It would defeat the principal purpose of automatically tape-recording 911 calls, namely, speed and accuracy in the interest of public safety, to require the monitor of such calls to record the nature of each call for future potential use under Practice Book 752. Therefore, as a practical matter all tapes of 911 calls would have to be preserved. As the amicus, the city of Milford, points out, these are, under the current state of the technology, twenty-four hour tapes, one for each day. Thus, every municipality would be required to

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purchase and preserve indefinitely an ever expanding inventory of twenty-four hour tapes, as well as provide for their adequate storage, security, cataloging, inventorying, retrieval and transfer upon later request.

That this would be the result of the strict application of purportedly “unambiguous” language, despite the obvious administrative and financial burdens imposed thereby, counsels strongly that we look further into its intended meaning. Indeed, the defendant’s suggested limitation on 749(2), that it applies only to tape recordings that might foreseeably be relevant to a subsequent criminal prosecution, is itself an implicit acknowledgment that the language of 749(2) cannot be taken literally in all cases, since no such limitation appears in that literal language. As applied to tape recordings of 911 telephone calls, therefore, 749(2) is inherently ambiguous. See In re Jessica M., 217 Conn. 459, 467-68, 586 A.2d 597 (1991) (General Statutes [Rev. to 1989] 45-61f (f)(3) inherently ambiguous when applied to noncustodial parents who must maintain relationship with children through visitation).

We turn, therefore, to an analysis of the history and purpose of 749(2) in order to determine whether that section was intended to apply to 911 tape recordings. See Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991) (legislative history and legislative policy are relevant aids in determining legislative intent). That analysis convinces us that 749(2) was not intended to encompass tape recordings of 911 emergency telephone calls.

Until 1976, our rules of practice contained few provisions governing procedure in criminal cases. Responding to the need for a comprehensive set of such rules, the judicial branch established an Advisory Committee to Revise the Criminal Rules, consisting of representatives of the prosecution, defense and judiciary.

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L. Orland, Connecticut Criminal Practice (1983) pp. vi-xii. The product of that committee, which included what are now Practice Book 748 through 755, was adopted by the judges of the Superior Court effective October 1, 1976.

The definition of “statement” contained in Practice Book 749 was taken from the federal Jencks Act, 18 U.S.C. § 3500.[17] L. Orland, supra, 749, p. 203. The Jencks Act, enacted in 1957, was the prompt congressional response to the decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103
(1957). In Jencks, the United States Supreme Court, “[e]xercising [its] power, in the absence of statutory provision, to prescribe procedures for the administration of justice in the federal courts . . . [had] decided that the defense in a federal criminal prosecution was entitled, under certain circumstances, to obtain, for impeachment purposes, statements which had been made to government agents by government witnesses.” Palermo v. United States, 360 U.S. 343, 345, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959).

One of the principal purposes of the federal Jencks Act was to guard against the risk that “[d]istortion can be a product of selectivity as well as the conscious or inadvertent infusion of the recorder’s opinions or impressions. It is clear from the continuous congressional emphasis on `substantially verbatim recital,’ and `continuous, narrative statements, made by the witness

Page 750

recorded verbatim, or nearly so’ . . . that the legislation was designed to eliminate the danger of distortion and misrepresentation inherent in a report which merely selects portions, albeit accurately, from a lengthy oral recital. Quoting out of context is one of the most frequent and powerful modes of misquotation.” Id., 352.

Aside from this general reference to certain of the inferences to be drawn from the legislative history regarding the scope and purpose of the Jencks Act, we have not discovered any similar discussion regarding the scope and purpose of that part of the definition of “statement” with which this case is concerned, namely, the simultaneous recording of an oral statement of a witness. Senate Report No. 981, which accompanied Senate Bill No. 2377, the Senate version of the proposed legislation, stated that “it is the specific intent of the bill to provide for the production only of written statements previously made by a Government witness in the possession of the United States which are signed by him or otherwise adopted or approved by him, and any transcriptions or recordings of oral statements made by the witness to a Federal law officer . . . .” S. Rep. No. 981, 85th Cong., 1st Sess., reprinted in 1957 U.S. Code Cong. Ad. News 1862. The House of Representatives version, House Bill No. 7915, did not specifically include tape-recorded statements. It referred only to “such reports or statements of the witness in the possession of the United States as are signed by the witness, or otherwise adopted or approved by him as correct . . . .” (Emphasis in original.) H.R. Rep. No. 700, 85th Cong., 1st Sess. (1957), reprinted in III House Miscellaneous Reports on Public Bills 5. Commenting on the difference between the two versions, the joint Senate and House conference report simply stated that “[t]o remove any doubt as to the kinds of statements affected by the bill as agreed to by the

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conferees, a new paragraph `e’ was added to the proposed section 3500 of title 18 of the United States Code expressly defining the term `statement.'” Conf. Rep. No. 1271, 85th Cong., 1st Sess., reprinted in 1957 U.S. Code Cong. Ad. News 1870.

We draw several conclusions from this history. First, since the source of Practice Book 749(2) is the rule-making authority of the judges of the Superior Court governing the practice and procedure of criminal trials, it is unlikely that they intended that definition of “statement” to include tape recordings of 911 emergency telephone calls. Although in some instances a violation of Practice Book 752 might give rise to a violation of the defendant’s constitutional right of confrontation; State v. Johnson, 214 Conn. 161, 173, 571 A.2d 79
(1990); Practice Book 748 through 755 were promulgated pursuant to that rule-making authority, rather than pursuant to the command of either the federal or state constitution.

Earlier in this opinion, in the context of determining that the language of 749(2) is inherently ambiguous as applied to tape recordings of 911 calls, we outlined the severe administrative and financial burdens that would flow from such an application. See footnote 16, supra, and accompanying text. In the same context, we also discussed the state’s legislative and administrative response to the problem of preserving and maintaining such tapes for lengthy periods of time, namely, that under current schedules promulgated by the public records administrator pursuant to General Statutes 11-8, municipalities ordinarily need only preserve such tapes for thirty days. The same considerations apply in determining whether 749(2) was intended by the judges of the Superior Court to apply to tape recordings of 911 calls.

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Since such an application would involve severe financial and administrative burdens on municipalities, we should be cautious about reading judicial language that is employed in the rule-making capacity of the judges so as to impose those burdens. Although the exercise of the judicial rule-making authority will often result in some administrative and financial cost to the parties to litigation, it does not ordinarily involve the imposition of severe burdens on the political entities of our state that, in and of themselves, are not parties to that litigation. Furthermore, there is no indication that, in exercising their authority, either the advisory committee or the rules committee of the judges heard from the public entities that would be most affected by application of 749(2) to tape recordings of 911 calls, namely, the 169 municipalities of this state. It is unlikely that the promulgators of 749(2) considered it to be within their competence and purview, without inquiring into the inherent administrative and financial costs thereof, to make substantive judgments about the advisability of indefinitely preserving all tape recordings of all telephone calls for the entire range of such emergency services. This is particularly true where to do so would involve such serious burdens on the municipalities maintaining that telephonic system.

Thus, when we are asked to read ambiguous rule-making language so as to yield such an unworkable result, we should require a clear indication of judicial intent to do so. There is no such indication in the language or history of 749(2). It is highly unlikely, therefore, that 749(2) was ever intended to encompass tape recordings of 911 calls, as those calls are made and received pursuant to our statewide, legislatively mandated 911 system.

Second, the definition contained in 749(2) derives directly from the Jencks Act. The thrust of the definition of “statement” under that act was to guard against

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the risk of quotation out of context from a “lengthy oral recital.” Palermo v. United States, supra. To the extent that the federal definition, as it emerged from the congressional conference, adopted and refined the Senate’s version, which referred to tape recorded as well as written statements, there is no indication that it was intended to encompass the kind of short, speedy call for emergency assistance that ordinarily characterizes a 911 emergency telephone call.[18]

Finally, 749(2) was adopted by the judges in 1976 and was, at that time, taken directly from the Jencks Act definition adopted by the Congress in 1957. The 911 designation for emergency telephone calls was not designated by ATT until 1968, however, and the telephonic system currently in place was not legislatively mandated until 1984 and not implemented, in accordance with that mandate, until 1989. This time sequence further convinces us that, when, in 1976, the advisory committee drafted and the judges adopted the language of 749(2), they did not contemplate that it would be applied in 1992 to a complex telephonic system that did not exist in 1976 and that, by legislative mandate, inextricably links, not only local law enforcement agencies, but fire, ambulance, medical and other emergency services as well.

The conclusion that 749(2) does not include a tape recording of a 911 emergency telephone call does not mean, as the defendant suggests, that the rights of defendants to fair trials will be severely impaired. In the eight years beginning with State v. Myers, 193 Conn. 457, 479 A.2d 199 (1984), when we first considered

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the effect of an erased 911 tape recording, pursuant to the state’s concession in that case that the tape recording was a 749(2) “statement,” neither this court nor the Appellate Court has found the erasure of any such tape recording to have been harmful to the defendant.[19] See State v. Williamson, 212 Conn. 6, 562 A.2d 470 (1989); State v. Santangelo, 205 Conn. 578, 534 A.2d 1175 (1987); State v. Pollitt, 205 Conn. 61, 530 A.2d 155 (1987); State v. Sanford, 25 Conn. App. 255, 594 A.2d 477, cert. denied, 220 Conn. 912, 597 A.2d 338 (1991); State v. Dedrick, 24 Conn. App. 518, 589 A.2d 1241 (1991); State v. Coriano, 12 Conn. App. 196, 530 A.2d 197, cert. denied, 205 Conn. 810, 532 A.2d 77 (1987). Thus, on the basis of our experience to date, we cannot say that the reliability of verdicts in criminal cases requires a construction of 749(2) that would include tape recordings of 911 emergency telephone calls.

We emphasize that we do not decide in this case whether, upon a timely motion of the defendant and the requisite showing of good cause, Practice Book 745[20] would permit the court to order the state to preserve and produce a 911 tape that had not yet been

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erased. Nor do we decide whether the erasure of the tape recording of a 911 call might, under appropriate factual circumstances, constitute a violation of a defendant’s constitutional rights under the due process rubric of destruction of potentially exculpatory evidence. See, e.g., State v. Cerilli, 222 Conn. 556, 578
n. 15, 610 A.2d 1130 (1992); State v. Brosnan, 221 Conn. 788, 812, 608 A.2d 49 (1992). We leave those questions to cases that properly present them. We decide only that Practice Book 749(2) and 752 do not require such preservation and production.

The judgment is affirmed.

In this opinion PETERS, C.J., CALLAHAN and GLASS, Js., concurred.

BERDON, J., dissenting.

“A basic tenet of statutory construction is that when a statute [or Practice Book rule] is clear and unambiguous, there is no room for construction.” (Internal quotation marks omitted.) State v. Genotti, 220 Conn. 796, 807, 601 A.2d 1013
(1992). The majority, however, has effectively amended General Statutes 54-86b[1] and Practice Book 749(2)[2]
by introducing a new principle that unambiguous language

Page 756

requires strict application only where the language is “absolutely clear and unambiguous . . . and where no inherent ambiguity is disclosed by reference to the facts of the case.” (Emphasis in original.) In other words, this court may, at any time, conclude that some language is not absolutely clear and rewrite either the rule or the statute.[3] Unfortunately, this is often done. See, e.g., Jones v. Mansfield Training School, 220 Conn. 721, 726-27, 601 A.2d 507 (1992).[4]

Even applying the majority’s new tenet of construction, I fail to see what is not “absolutely” clear about

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the 911 tape being a “statement.” Indeed, the majority never explains what is not absolutely clear about it. Section 749 provides, in part, that a “statement” is a “stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.” The tape of the victim’s 911 call clearly falls within the Practice Book edict that the state produce any “statement” of a prosecution witness to the defense.

Likewise, 54-86b has clear reference to the recordings of a witness on a 911 tape. Section 54-86b provides that the state shall produce a “statement oral or written.” Reason and logic provide that an “oral” statement encompasses a recording of a telephone conversation. A 911 emergency telephone call from the victim, which was made on the day of the crime and which allegedly described the type of crime and provided the identity of the assailant, must surely be such an oral statement.

The majority does not rely only on the fact that 749(2) is not “absolutely clear and unambiguous.” They also create another new rule. According to the majority, even if the language to be construed is clear “on its face,” this court will avoid enforcing it if “a literal interpretation . . . would lead to unworkable results . . . .” The trouble with this is twofold.

First, the majority’s reliance on Fairfield Plumbing Heating Supply Corporation, v. Kosa, 220 Conn. 643, 650-51, 600 A.2d 1 (1991), as precedent is misplaced. The court in Kosa construed an ambiguous statute and merely held the following: “[C]ompelling principles of statutory construction . . . require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results . . . . We must avoid

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a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve.” (Citations omitted; internal quotation marks omitted.) Id. Of course, “[w]e have consistently held that if a statute is clear and unambiguous, there is no room for construction.” Murray v. Lopes, 205 Conn. 27, 33, 529 A.2d 1302 (1987). Second, and more important, there is nothing to indicate that preserving 911 tapes is “unworkable.” There may be some costs involved, but they are insignificant.[5] This is especially so if a reasonable limitation is placed upon preserving the tapes, for example one year, as the Appellate Court suggested.

Indeed, the majority of the Appellate Court points out that the “state acknowledges that the 911 tape is a statement within the meaning of Practice Book 749(2) . . . .” State v. Cain, 25 Conn. App. 503, 509, 596 A.2d 449 (1991).

Practice Book 752 and General Statutes 54-86b
provides that after a state witness testifies on direct, upon motion made by the defendant, the court shall order the state to provide to the defense any prior statement made by that witness. Section 54-86b further provides: “If the prosecution fails to comply with the order of the court [to provide to the defense any prior statement made by a state witness,] the court shall strike from the record the testimony of the witness and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.” Accordingly, the testimony of the victim should have been stricken.

Moreover, the failure to provide the defense with the tape of the victim’s 911 call implicates the defendant’s

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right to confrontation under the state and federal constitutions. “We have recognized that, under certain circumstances, the state’s failure to produce material to which the defendant is entitled under General Statutes 54-86b and Practice Book 752 may adversely affect a defendant’s ability to cross-examine a state’s witness and thereby infringe upon his constitutional right of confrontation. State v. Johnson, [214 Conn. 161, 173-74, 571 A.2d 79 (1990)]. In such a case, [an appellate] court would be warranted in strictly applying the harmless error doctrine to require the state to prove harmlessness beyond a reasonable doubt. Id.; State v. Williamson, [212 Conn. 6, 22-23, 562 A.2d 470 (1989)]. In determining the effect of the state’s nonproduction on the defendant’s opportunity to cross-examine, we have considered such factors as the trial or reviewing court’s access to the unproduced material, the declarant’s adoption of a counterpart transcript within a short time after making the statement, and the extent to which the defendant’s conviction rested on the testimony of the witness whose pretrial statement had been destroyed. See State v. Johnson, supra, 174-75 (the fact that the witness reviewed and signed within three days a typed transcription of his statement and the fact that the defendant’s conviction did not rest solely on the testimony of that witness were major factors in applying the more probable than not standard to the harmless error inquiry); State v. Williamson, supra (the fact that the victim-witness did not review the transcription of her most detailed statement for seven months and that the defendant’s conviction rested solely on the testimony of the victim-witness were major factors in determining that the stricter standard of proof would not have been unwarranted).” State v. Belle, 215 Conn. 257, 269-70, 576 A.2d 139 (1991).

Applying the factors set forth in Belle to this case, it is apparent that the statements made by the victim

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and recorded on the 911 tape were not accessible to the trial or appellate courts and were not transcribed. More importantly, the defendant’s conviction rested squarely on the testimony of the victim. Accordingly, I agree with the well reasoned dissent of Judge Daly in the Appellate Court that “the defendant’s right to confront and cross-examine the victim was implicated and the state should have been held to prove beyond a reasonable doubt that the [nonproduction of the] missing 911 statement was harmless.” State v. Cain, supra, 527-28.

“From the evidence adduced at trial, the state could not prove that the [nonproduction of 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[-examination], 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

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on the day she called 911. The statement contained the victim’s accusation that the defendant had raped her on that day.” Id., 527.

The credibility of the victim was on the line and it was a critical issue in the case. Under the circumstances, even if we apply a standard that the state need prove only that it was more probable than not that the state’s nonproduction was harmless; State v. Johnson, supra, 175; a reversal is required. Although we are unable to determine what was on the 911 tape, its production would have given the defendant the opportunity to prove that what happened was not, in fact, a sexual assault. In short, I am bewildered by the majority opinion.

Accordingly, I dissent.