with whom Callahan and Covello, Js., join, concurring. Although I agree with the remainder of the majority opinion, as well as the conclusion reached upholding the defendant’s conviction, I disagree with Part I B, which imposes on the state the *276burden of proving that the erasure of the tape recordings of the witnesses’ statements was probably harmless. I continue to believe that, in this instance of an intentional but not malicious destruction of evidence,1 as in other instances of prosecutorial failure to disclose evidence that may be exculpatory, the defendant should bear the burden of proving harmfulness by showing that the outcome of the trial would probably have been different if the missing evidence had been made available. Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 337, 102 L. Ed. 2d 281 (1988), reh. denied, 488 U.S. 1051, 109 S. Ct. 885, 102 L. Ed. 2d 1007 (1989); United States v. Bagley, 473 U.S. 667, 681-82, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); State v. Johnson, 214 Conn. 161, 180-81, 571 A.2d 79 (1990) (Shea, J., concurring); State v. Williamson, 212 Conn. 6, 29-30, 562 A.2d 470 (1989) (Shea, J., dissenting).
The failure of the police to preserve the tape recordings in this case violated no constitutional right of the *277defendant because the duty to disclose the prior statements of the witnesses for the state is based wholly upon General Statutes § 54-86b and Practice Book § 752. There is no reason to allocate the burden of proving prejudice for this nondisclosure of possibly significant evidence in a manner different from that in other instances of failure by the state to disclose relevant evidence, when no constitutional right is transgressed.
I concur in the judgment.
The majority opinion characterizes the destruction of the tape recordings of the witnesses’ statements as “deliberate” several times and refers in footnote 11 to a situation in which “the state deliberately destroys those tapes in direct violation of the rule of law as established by statute, our rules of practice and this court . . . . ” The only evidence concerning the circumstances under which the tape recordings were destroyed was furnished by Detective Robert Coffey, who testified that at the time of their destruction in 1986 the New Haven police department had no firm policy regarding the preservation of tapes, but that it was customary to erase them for reuse after they had been transcribed, except in “major” cases, an undefined category. It was not until April, 1988, that he became aware of a departmental policy to preserve all recordings of witnesses’ statements. Although it is undisputed that Coffey intentionally erased the tapes in order to make them available for reuse, there is no evidence that his actions were “characterized by or resulting from unhurried, careful, thorough and cool calculation and consideration of effects and consequences, ” as the word “deliberate” implies. (Emphasis added.) Webster’s Third New International Dictionary. The defendant does not claim that Coffey was aware of the rule of law established by our decision in State v. Milum, 197 Conn. 602, 615-18, 500 A.2d 555 (1985), requiring preservation of a tape recording after it has been transcribed.