Opinion
CV164069960S
08-17-2017
Phillip Friend v. Commissioner of Correction
UNPUBLISHED OPINION
MEMORANDUM OF DECISION MOTION TO ADMIT DEPOSITION TESTIMONY (#146) MOTION IN LIMINE
Robin L. Wilson, J.
The petitioner seeks to introduce the deposition testimony of David Bawarsky pursuant to § 8-6(3) of the Connecticut Code of Evidence. Section 8-6 of the Connecticut Code of Evidence provides in relevant part: " The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: . . . (3) Statement against civil interest. A trustworthy statement that, at the time of its making, was against the declarant's pecuniary or proprietary interest, or that so far tended to subject the declarant to civil liability that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true. In determining the trustworthiness of such a statement the court shall consider whether safeguards reasonably equivalent to the oath taken by a witness and the test of cross-examination exist." (Emphasis added.) The proponent of the hearsay statement has the burden of demonstrating that the witness is unavailable. State v. Aillon, 202 Conn. 385, 390-91, 521 A.2d 555 (1987).
The threshold issue is whether David Bawarsky is unavailable, or more specifically, whether the petitioner has demonstrated that he is unavailable. The most common forms of unavailability, as adopted by our Supreme Court from rule 804(a) of the Federal Rules of Evidence in State v. Frye, 182 Conn. 476, 481, 438 A.2d 735 (1980) are: (1) the court has determined that the witness has a testimonial privilege; (2) the witness persists in refusing to testify despite a court order to do so; (3) the witness has a lack of memory; (4) the witness is unable to be present or testify because of death or existing physical or mental illness or infirmity; and (5) the witness is absent from the hearing and the proponent of his statement has been unable to procure his attendance . . . [or testimony] by process or other reasonable means ." (Emphasis in original; internal quotation marks omitted.) Id.
The availability of a witness is a fact-bound determination and " [i]n light of the fact-bound nature of the inquiry, [t]he trial court has broad discretion in determining whether the proponent has shown a declarant to be unavailable. A trial court's determination of the unavailability of a witness will be overturned only if there has been a clear abuse of discretion." (Citations omitted; internal quotation marks omitted.) State v. Schiappa, 248 Conn. 132, 141, 728 A.2d 466, cert. Denied, 528 U.S. 862, 120 S.Ct. 152, 145 L.Ed.2d 129 (1999). " [D]ue diligence to procure the attendance of the absent witness [is] . . . an essential . . . predicate of unavailability . . . To take advantage of the hearsay exceptions requiring unavailability, the proponent must show a good faith, genuine effort to procure the declarant's attendance by process or other reasonable means . . . This showing necessarily requires substantial diligence. In determining whether the proponent of the declaration has satisfied this burden of making reasonable efforts, the court must consider what steps were taken to secure the presence of the witness and the timing of efforts to procure the declarant's attendance . . . A proponent's burden is to demonstrate diligent and reasonable effort, not to do everything conceivable, to secure the witness' presence." (Internal quotation marks omitted.) State v. Morquecho, 138 Conn.App. 841, 860, 54 A.3d 609 (2012).
In the present case, the petitioner seeks to admit the deposition testimony of David Bawarsky which was given on November 18, 2009, in a case brought by Webster Bank against the petitioner to collect on his defaulted loan. David Bawarsky is the son of Henry Bawarsky, the now deceased owner of Standard Beef, and was appointed president of Standard Beef in 2008. Standard Beef is the company from which the petitioner was accused of stealing money, and ultimately convicted on August 13, 2013, of embezzlement. David Bawarsky did not testify at the underlying criminal trial. The petitioner claims that Bawarsky is unavailable because he resides in Florida, outside subpoena power, and that taking his deposition in the present matter would be unreasonable. The petitioner, however, has provided the court with no evidence, affidavits or otherwise, of his efforts to secure Bawarsky's attendance or testimony or of his unavailability. The mere assertions by petitioner's counsel in the motion that Bawarsky is unavailable because he lives in Florida or of the unreasonableness of obtaining his testimony through a deposition for the present matter are insufficient to support a claim of unavailability. See State v. Aillon, supra, 202 Conn. 391. Moreover, it appears that the parties were scheduled to depose Bawarsky last spring and that plane tickets were purchased, however the petitioner later cancelled said deposition.
Whether other processes or methods, such as taking the witness' deposition, are reasonable under the circumstances, is a matter of discretion for the court. Schaffer v. Lindy, 8 Conn.App. 96, 102, 511 A.2d 1022 (1986). The circumstances in the present case are as follows: the petitioner is not unfamiliar with this witness, although Bawarsky did not testify at the criminal trial, the importance of testimony was not unknown, and the deposition took place years before both the criminal trial and the present habeas action. See Maio v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV-10-6012176-S (May 14, 2014, Wilson, J.) (finding that witnesses not unavailable where proponents of testimony had ample opportunity to depose them because they knew of their existence and importance of their testimony for some time prior to trial). The court concludes that the petitioner has failed to demonstrate that David Bawarsky is unavailable. Therefore the court will not find that Barwarsky is unavailable.
B
Residual Hearsay Exception
The petitioner argues in the alternative that if the deposition testimony is not admissible under § 8-6(3) of the Connecticut Code of Evidence, that it is admissible under the residual hearsay exception, Conn. Code Evid. § 8-9. Section 8-9 of the Connecticut Code of Evidence provides: " A statement that is not admissible under any of the foregoing exceptions is admissible if the court determines that (1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by equivalent guarantees of trustworthiness and reliability that are essential to other evidence admitted under the traditional exceptions to the hearsay rule." " [T]he residual hearsay exceptions [should be] applied in the rarest of cases . . ." (Internal quotation marks omitted.) State v. Bennett, 324 Conn. 744, 762, 155 A.3d 188 (2017). " [A] court's conclusion as to whether certain hearsay statements bear the requisite indicia of trustworthiness and reliability necessary for admission under the residual exception to the hearsay rule is reviewed for an abuse of discretion." (Internal quotation marks omitted.) Id.
" The requirement of reasonable necessity is met when, unless the hearsay statement is admitted, the facts it contains may be lost, either because the declarant is dead or otherwise unavailable, or because the assertion is of such a nature that evidence of the same value cannot be obtained from the same or other sources . . . The party moving for admission of a statement of an unavailable witness has the burden of proving the declarant's unavailability." (Citation omitted; emphasis in original; internal quotation marks omitted.) In re Tayler F., 296 Conn. 524, 537, 995 A.2d 611 (2010). " [T]he second prong, reliability, is met in a variety of situations, one of which is when the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed . . . At minimum, the statement must independently bear adequate indicia of reliability to afford the trier of fact a satisfactory basis for evaluating [its] truth . . ." (Internal quotation marks omitted.) Ferris v. Faford, 93 Conn.App. 679, 686, 890 A.2d 602 (2006). Additionally, our courts " have considered factors such as the length of time between the event to which the statement relates and the making of the statement; . . . the declarant's motive to tell the truth or falsify; . . . and the declarant's availability for cross-examination at trial." (Citations omitted; internal quotation marks omitted.) State v. Sullivan, Superior Court, judicial district of Hartford, Docket No. CR-01-106675, (March 11, 2005, Sheldon, J.); see also State v. Oquendo, 223 Conn. 635, 667, 613 A.2d 1300 (1992).
In State v. Sullivan, supra, Superior Court, Docket No. CR-01-106675, the court rejected the state's argument that there was no duty to use due diligence, noting that " our courts have long held that there can be no reasonable necessity to admit an absent declarant's statement as residual hearsay unless the proponent of the statement proves that the declarant is unavailable, and that, in turn, has been held to require a showing that he used due diligence to procure the defendant's attendance at trial. State v. Summerville, 13 Conn.App. 175, 180, 535 A.2d 818 (1988) . . .
" Hence, failure to demonstrate the use of such due diligence to prevent the loss of facts contained in the witness' proffered statement, including good-faith efforts to depose the declarant about those facts once it was learned that she might be unavailable to testify at trial, makes the proffered statement inadmissible." (Citations omitted; internal quotation marks omitted.) State v. Sullivan, supra, Superior Court, Docket No. CR-01-106675. The court found that the proffered statements were not admissible under the residual hearsay exception because " the State [had] not . . . met its burden of proving that its efforts to preserve [the witness'] testimony for later use of trial were reasonable . . ." Id. Although there was evidence that the state attempted to depose the witness shortly before her death, the court lacked a sufficient basis for determining whether that effort was reasonable. Id. The court, however, discussed factors that would have an impact, such as how long the state knew of the illness and its potential impact. Id. " If [the witness'] final illness came upon her suddenly . . . the State can certainly not be faulted for not attempting to depose her earlier and failing to depose her immediately after its motion was filed. If, however, [the witness'] final illness came upon her gradually . . . then its belated effort to preserve her testimony might not have been a reasonable effort . . ." Id.
The scenario described by the court in State v. Sullivan, actually occurred in Ferris v. Faford, where a witness became unavailable to testify at trial because she had suffered a stroke that left her partially paralyzed. Ferris v. Faford, supra, 93 Conn.App. 684. The trial court had admitted an affidavit that the witness had executed before her stroke into evidence, finding that there was reasonable necessity because she was unavailable due to a medical condition, there was no other evidence to determine the whereabouts of a missing will, and it was trustworthy because it was taken under oath and there was no evidence of a motive to lie. Id., 687. The defendants argued that it should not have been admitted because the proponent failed to exercise due diligence by failing to take the witness' deposition. Id. The Appellate Court rejected the argument, noting that the witness was healthy at the time she signed the affidavit and the evidence established that the stroke was unexpected. Id., 688. " Although it was possible to take [the witness'] deposition sometime after she signed the affidavit . . . and before her stroke . . . the commissioner reasonably expected that she would be able to depose [the witness] at a later time or that [the witness] would be available to testify at the time of trial." (Emphasis in original.) Id.
Although the petitioner in the present case appears to now focus on the language, " the assertion is of such a nature that evidence of the same value cannot be obtained from the same or similar sources, " just as the petitioner failed to present evidence of David Bawarsky's unavailability, he has failed to establish that he exercised due diligence in trying to procure David to testify at the present trial or to preserve the testimony, such as by deposing David. Moreover, if David is not unavailable, then evidence of the same can be obtained from the same source. In Ferris, the evidence with regards to the missing will would have been lost if the affidavit was not admitted; Ferris v. Faford, supra, 93 Conn.App. 684-87; but here, that is not the case. The evidence will not be lost because David is available to testify.
The petitioner argues that David is unavailable because it would be unreasonable to depose him, as the cost of deposing David, who resides in Florida, outweighs the evidence they would obtain in doing so. The petitioner's reliance on Schaffer v. Lindy, however, is misplaced, because the situation there is distinguishable from the circumstances in the present case. In Schaffer, the court found that the proponent of a hearsay statement was unable to procure the testimony of the witness by " process or other reasonable means, " because a deposition was unreasonable in light of the circumstances. Schaffer v. Lindy, supra, 8 Conn.App. 102-03. The Appellate Court upheld this determination holding: " The trial court, considering the facts of the incarceration of the witness in another state, the civil nature of the case, the amount of damage at issue in this controversy, and the effort, time and cost involved in taking the deposition of a person incarcerated in a prison located in another state, could reasonably have concluded that [the witness] was 'unavailable' for the purpose of allowing his sworn statement into evidence." Id. In the present case, however, David, although living in another state, is not incarcerated. Moreover, although this habeas proceeding is civil in nature, the stakes are much higher than a person seeking damages for stolen property. The petitioner, who has filed the present habeas petition, is seeking to be released from prison because he claims that his constitutional rights were violated in the underlying criminal trial and is therefore being illegally confined and deprived of his liberty. Therefore, taking the deposition of a foreign witness is not unreasonable in light of the nature of the claims presented in this case.
The applicability of the residual exception in the present case appears to hinge on the first prong, reasonable necessity. Indeed, the petitioner argues that the deposition transcript is reasonably necessary because David Bawarsky is the best source of truth regarding his reasons for ejecting the petitioner from Standard Beef and is unavailable to testify because he is outside the subpoena authority of the court. As previously discussed, the petitioner has presented no evidence that David Bawarsky is unavailable. Accordingly, the court finds that the declarant is not unavailable for purposes of the statement against civil interest exception. Conn. Code Evid. § 8-6(3). Therefore, the deposition testimony is not admissible under the residual exception because there is no reasonable necessity for the testimony as the declarant is not otherwise unavailable . Additionally, the statements the petitioner seeks to admit by way of the deposition transcripts can be obtained from the same source, David Bawarsky. The declarant is not otherwise unavailable nor is the assertion of such a nature that evidence of the same value cannot be obtained from the same or other sources. See Conn. Code Evid. § 8-9.
II
Respondent
The state approaches its motion to preclude the deposition testimony with the presumption that the petitioner would seek to admit it under the former testimony hearsay exception. Conn. Code Evid. § 8-6(1). The petitioner, however, does not make this argument in his motion. In fact, it appears that he concedes that this exception does not apply, writing " this testimony is almost admissible as the prior sworn testimony under Conn. Code of Evidence § 8-6(1), except for the fact that the state was not an actual party to the proceeding . . ." This would appear to be referring to the second prong of the exception which requires the party against whom the testimony is offered have had an opportunity to develop it in the prior hearing. Conn. Code Evid. § 8-6(1)(B).
Although the petitioner argues for admission under a different exception, both require the unavailability of the declarant. Thus, the state's arguments with regards to this requirement are relevant. The state argues that David Bawarsky is not unavailable because the petitioner knows where he resides in Florida, as the parties were scheduled to depose him last spring, but made no efforts to procure his attendance at trial and, additionally, cancelled the deposition for reasons not known to the state. The state therefore argues that the petitioner had the opportunity to depose Bawarsky but failed to do so and, thus, should not be allowed to admit the prior testimony. Additionally, the state's arguments for why the declarant is unavailable are similar to the circumstances that existed in Maio v. New Haven, supra, Superior Court, Docket No. CV-10-6012176-S.
Accordingly, the petitioner's motion to admit portions of David Bawarsky's deposition for substantive purposes is denied and the state's motion in limine to preclude said testimony is granted.