State
v.
Bartush

Connecticut Superior Court, Judicial District of Stamford-Norwalk Geographic Area 1 at StamfordMar 29, 2004
2004 Ct. Sup. 5065 (Conn. Super. Ct. 2004)
2004 Ct. Sup. 506536 CLR 749

No. FST 102613

March 29, 2004


MEMORANDUM OF DECISION RE MOTION TO OBTAIN OUT OF STATE DEPOSITION TESTIMONY


The defendant is charged in a single-count information with Manslaughter in the Second Degree, in violation of C.G.S. Sec. 53a-56(a)(1). In its amended information, the State claims that the defendant recklessly caused the death of his wife, Joan Bartush.

Before the court is the Defendant's Motion To Obtain Out of State Deposition Testimony pursuant to Practice Book Sec. 40-44(2). In his motion, the defendant seeks court permission to depose several witnesses who are claimed to reside in the state of New York.

Practice Book Sec. 40-44(2) provides:

In any case involving an offense for which the punishment may be imprisonment for more than one year the judicial authority, upon request of any party, may issue a subpoena for the appearance of any person at a designated time and place to give his or her deposition if such person's testimony may be required at trial and it appears to the judicial authority that such person: . . . (2) [R]esides outside of this state, and his or her presence cannot be compelled under the provisions of General Statutes § 54-82i . . .

The defendant has made no claim or showing that the putative witnesses' presence in Connecticut for trial cannot be compelled under C.G.S. Sec. 54-82i. Subsection (c) of the statute provides a procedure whereby a witness from another state may be made to testify in proceedings in Connecticut. The other state must ". . . by its laws [have] made provisions . . ." for compelling witnesses to testify here. New York has done so in N.Y. Crim. Proc. Law sec. 640.10 (2004). That statute mirrors C.G.S. Sec. 54-82i, and would, if its requirements were satisfied, appear to allow the defendant to compel the presence here of the New York witnesses sought by the defendant.

Even so, the defendant presses the claim that the court may be required to delay or suspend the trial if he is not permitted to take the pre-trial depositions of the witnesses. He theorizes that if he secures the attendance of these witnesses for the first time only at trial, information may unfold which requires a continuance to compel other, additional witnesses or records. That argument is not only hypothetical, but there is no basis in the Practice Book rule for such an exemption from its requirements.

A leading commentator has been quoted as stating that "[n]otwithstanding the evident advantages of a procedure which allows for the discovery of evidence through pre-trial examination of prospective witnesses, the deposition in Connecticut criminal procedure is limited to the preservation rather than the discovery of evidence." A. Spinella, Connecticut Criminal Procedure (1985) pp. 538-39, as cited in State v. Sullivan, 244 Conn. 640, 667, fn.10 (1998) (Berdon, J., dissenting). Practice Book Sec. 40-44, which allows pre-trial depositions in defined circumstances, is an abrogation of the common-law rule that a party in a criminal case had no right to depose a prospective witness, even upon proof that the witness was not likely to be available for trial. State v. Zaporta, 237 Conn. 58, 64 (1996). As such, the rule should be strictly construed. See, e.g. State v. Shockley, 188 Conn. 697, 711 (1982).

For the foregoing reasons, the defendant's motion is denied. So ordered.

KAVANEWSKY, J.