State v. Malave

250 Conn. 722

737 A.2d 442

STATE OF CONNECTICUT v. ALEX MALAVE

(SC 15898)

Supreme Court of Connecticut.

Argued January 12, 1999.

Officially released September 21, 1999.

Callahan, C. J., and Borden, Berdon, Palmer, McDonald, Peters and Ment, JS.¹ Brien P. Horan, with whom, on the brief, were Eric W.G. Dawson and Lisa Gizzi, for the appellant (defendant).

Rita M. Shair, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, Paul J. Ferencek, senior assistant state's attorney, and John Waddock, assistant state's attorney, for the appellee (state).

G. Douglas Nash, chief of legal services, Susan M. Hankins, assistant public defender, and Gerard A. Smyth, chief public defender, filed a brief for the office of the chief public defender as amicus curiae.

Ben A. Solnit, Angela P. Sands, Ann M. Parrent and Jon L. Schoenhorn filed a brief for the Connecticut Civil Liberties Union Foundation et al. as amici curiae.

Opinion

PALMER, J.

After a jury trial, the defendant, Alex Malave, was convicted of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1).² The trial court rendered judgment in accordance with the jury's guilty verdict, and the defendant appealed to the Appellate Court, which affirmed his convictions. State v. Malave, 47 Conn. App. 597, 707 A.2d 307 (1998). We granted the defendant's petition for certification limited to the following issue: "As a matter of policy, should the [missing] witness rule of Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960),³ be abandoned?" State v. Malave, 244 Conn. 913, 713 A.2d 832 (1998). We agree with the defendant that, for reasons of policy, the Secondino rule should be abandoned.⁴ We also conclude, however, that the missing witness instruction given by the trial court in this case was harmless. We, therefore, affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts that the jury reasonably could have found. "On June 12, 1994, Jose Garcia drove his brother, Oswaldo Garcia, to the Latin American Club located on South Colony Street in Meriden. After Jose left, Oswaldo was approached by a man who claimed that Oswaldo had wrongfully intervened in an altercation at the club the night before. After Oswaldo telephoned Jose and asked him to return to the club, a group gathered around Oswaldo. Someone in the group asked Oswaldo if he wanted to `go one on one' with the man who had originally approached him. The defendant threw a beer bottle at Oswaldo, and a fight erupted between Oswaldo and the defendant, who was supported by the other men. During the altercation, a hunting knife that Oswaldo carried fell to the ground. The defendant retrieved the knife and stabbed Oswaldo several times. Jose arrived during the fight and Oswaldo managed to get into Jose's car. Before Jose was able to drive away, the defendant stabbed Jose in the shoulder. During the drive to the hospital, Oswaldo removed the knife from Jose's shoulder and threw it out the window.

"While at the hospital, Oswaldo told police officers that the defendant, whom he had known for several years, was the assailant. Thereafter, Jose and Oswaldo independently identified a photograph of the defendant as being of the assailant. The defendant's picture was selected from an array of photographs that was presented separately to the brothers by police detectives." State v. Malave, supra, 47 Conn. App. 599.

At trial, "[t]he defendant testified that he did not commit the assaults and that he was inside the club playing pool when the fight erupted. He presented testimony in support of his alibi defense from several witnesses, including Maria Castro. The evidence showed that Cindy Castro was in the club with Maria Castro and the defendant.⁵ The state requested a Secondino charge because of the defendant's failure to call Cindy Castro." Id., 607. The trial court overruled the defendant's objection to the state's request, and instructed the jury in relevant part as follows: "In [his] final argument, [the assistant state's attorney] asked you to infer from the fact that the defendant did not bring Cindy Castro into court to testify, that if she did testify her testimony would have been unfavorable to the defendant. Under our law, if a party to a case has failed to call to the stand a witness who is within his power to produce, and who would naturally have been produced by him, you may infer that the testimony of the witness would have been unfavorable to the party failing to call her, and consider that fact in arriving at your decision. You may draw such an inference, but you are not required to draw such an inference. You may draw such an inference only if you determine it is a reasonable and logical inference to be drawn.

"In order to make this inference in this case, you must first find that it is more probable than not that Cindy Castro was available, and second, that she is a witness whom the defendant would naturally produce. Whether the witness is available is a question of fact for you to determine, before you draw an adverse inference from [Cindy Castro's] absence.

"Availability may be determined not only from mere physical presence or accessibility, but also from the usefulness or nature of the expected testimony. Also relevant is whether the witness is in such a relationship with the defendant that it is likely that her presence could be procured. A witness who would naturally be produced by a party is one who is known to that party, and who by reason of her relationship to that party or the issues in the case or both, could reasonably be expected to have peculiar or superior information relevant to the case which, if favorable, the party would have produced. As with the question of availability, it is for you to determine from the evidence presented whether the absent witness' testimony would be relevant to the case, before you draw any adverse inference.

"A party's failure to call as a witness a person who is available, but does not stand in such a relationship to the party or to the issues so that the party would naturally be expected to produce her if her testimony were favorable, is not a basis for an unfavorable inference."

At the conclusion of the trial, the jury rejected the defendant's alibi defense, and convicted him, as charged, of two counts of assault in the first degree.

On appeal to the Appellate Court, the defendant claimed, inter alia, that the Secondino rule should be abandoned.⁶ The Appellate Court refused to consider the merits of the defendant's claim, stating that "it is axiomatic that this court cannot review or reverse Supreme Court precedent."⁷ Id.

On appeal to this court, the defendant posits several reasons in support of his claim that we should abandon the Secondino rule. First, the defendant asserts that the rule has been rendered obsolete because of the advent of modern discovery procedures and our abandonment of the so-called "voucher rule," a common-law rule that, prior to its demise, precluded a party from impeaching his or her own witness. Second, the defendant contends that, because there are many reasons why a party may choose not to call a particular witness, the missing witness rule unfairly highlights only one of those possible reasons, namely, that the witness' testimony would be adverse to that party. Third, the defendant asserts that the Secondino rule places an inordinate burden on the judicial system because it results in longer trials with additional witnesses and gives rise to complicated trial and appellate issues. Finally, the defendant argues that the use of a Secondino instruction in a criminal case is constitutionally suspect because it creates a grave risk of juror misunderstanding regarding the fundamental principle that an accused bears no burden of proving his or her innocence.

The state disputes each of the defendant's arguments, claiming that we should retain the missing witness rule in criminal cases because the principle upon which it is founded is a sound one, as evidenced by its continued use in a majority of federal and state courts. In essence, the state maintains that the rule continues to play an important role in the truth seeking function of the trial process, and may be applied without jeopardizing a criminal defendant's right to a fair trial.

We agree with the defendant that, in light of all of the relevant considerations, the continued use of the Secondino instruction is unwarranted. Nevertheless, the defendant is not entitled to a new trial because he cannot establish that he was harmed as a result of the Secondino instruction in this case.

I

For decades, this court, along with a majority of other state and federal courts, has sanctioned a jury instruction that "[t]he failure of a party to produce as a witness one who [1] is available and [2] ... naturally would be produced permits the inference that such witness, if called, would have exposed facts unfavorable to the party's cause." State v. Brown, 169 Conn. 692, 704, 364 A.2d 186 (1975); see also Graves v. United States, 150 U.S. 118, 121, 14 S. Ct. 40, 37 L. Ed. 1021 (1893) ("[t]he rule even in criminal cases is that if a party has it peculiarly within its power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable"); R. Stier, "Revisiting the Missing Witness Inference—Quieting the Loud Voice from the Empty Chair," 44 Md. L. Rev. 137, 149 n.53 (1985) (citing cases). We adopted the missing witness rule for civil cases more than seventy years ago; Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928); and expressly approved the rule for use in criminal cases nearly twenty-five years ago. State v. Annunziato, 169 Conn. 517, 538-39, 363 A.2d 1011 (1975). In 1998, however, the legislature prohibited the use of...