State of Connecticut v. Christopher DiMeo (2010)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR APPOINTMENT OF A COMMISSION TO TAKE THE DEPOSITION OF A NON-RESIDENT WITNESS (# 42)

This is a criminal case in which the defendant, Christopher DiMeo, is accused of capital felony and related charges arising out of a robbery at a jewelry store in Fairfield where the two shopkeepers were shot and killed.   In the present motion, the defendant seeks the appointment of a commissioner to take the depositions of ten out-of-state witnesses-all of whom are in New York. The defendant asserts that the reason he needs to take the depositions is that each of the ten named witnesses have refused defense requests to be interviewed.   The defendant further seeks an order that the state not be permitted to attend the depositions because the deponents will be questioned about privileged matters.   For the reasons set forth below, the motion must be denied.

Discussion

At common law, 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 at trial.  State v. Zaporta, 237 Conn. 58, 64 (1996).  Practice Book § 40-44 has abrogated the common law rule and permits depositions in criminal cases in four circumstances:  (1) where a physical infirmity will prevent the witness from testifying, (2) where the witness' presence cannot be compelled by an out-of-state subpoena pursuant to General Statutes § 54-82i, (3) where the witness is otherwise unavailable, and (4) where an expert witness has not filed a report.   None of these circumstances are applicable in this case.

At the hearing on this motion, the defense acknowledged that the witnesses could likely be compelled to appear at trial pursuant to an out-of-state subpoena.   This is no doubt true, since they all are from New York and New York and Connecticut have reciprocal statutes that recognize and enforce the subpoenas of each state.   See N.Y.Crim. Proc. Law § 640.10. What the defense seeks is a means to compel a confidential interview with these apparently uncooperative witnesses to determine what they would say if they were called to testify.   Our rules do not contemplate depositions for that purpose.

The defendant's reliance on the general deposition provisions of General Statutes §§ 52-148a and 52-148c together with Practice Book § 13-28 do not require a different result.   All of those provisions are inapplicable to criminal proceedings but rather are expressly limited to civil actions or probate proceedings.

The motion is denied.

So Ordered at Bridgeport, Connecticut this 8th day of October, 2010.

Robert J. Devlin, Jr., Judge

Devlin, Robert J., J.