250 Conn. 722 | Conn. | 1999
Lead Opinion
Opinion
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)
The opinion of the Appellate Court sets forth the following facts that the jury reasonably could have
“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.
“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
“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.
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 modem discovery procedures and our abandonment
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
First, the need for the missing witness rule has been obviated, to a significant degree, by the advent of modem discovery procedures, which have made it easier for both the state and the defendant to ascertain the substance of the testimony of prospective witnesses. For example, each party is entitled to disclosure of the names and addresses of witnesses that the opposing party intends to call in its case-in-chief, along with the
Although we acknowledge that our civil discovery rules are broader than those applicable in criminal
Moreover, the voucher mle, which prohibited a party from impeaching or discrediting his or her own witness except in certain limited circumstances, has been abandoned in this state.
Third, the missing witness rule consumes a significant amount of judicial time and resources in light of the questions that arise, both at trial and on appeal,
Moreover, concern that the inference will be drawn undoubtedly prompts some parties to present witnesses that they otherwise would not call to testify, thereby increasing the length of trials. See, e.g., Russell v. Commonwealth, 216 Va. 833, 836, 223 S.E.2d 877 (1976) (“if [the missing witness inference] is permitted, both the prosecution and defense, against the risk of having the instruction granted at the request of the opposing party, would be required to call all witnesses possibly having some knowledge of the case”); 2 C. McCormick, supra, § 264, p. 186 (“[t]he possibility that the inference may be drawn invites waste of time in calling unnecessary witnesses or in presenting evidence to explain why they were not called”). “In addition to wasted court time, the [missing witness] rule generates wasteful expense to the parties and witnesses. If a party does not wish to call a so-called ‘partial’ witness, to preclude an adverse
Finally, application of the Secondino rule in criminal cases gives rise to constitutional issues not present in civil cases. Indeed, some courts have concluded that a missing witness instruction unconstitutionally diminishes the state’s burden of proving the defendant’s guilt beyond a reasonable doubt by suggesting to the jury that the defendant has some obligation to produce evidence. See, e.g., State v. Brewer, supra, 505 A.2d 777 (“To allow the missing-witness inference in a criminal case is particularly inappropriate since it distorts the allocation of the burden of proving the defendant’s guilt. The defendant is not obligated to present evidence on his own behalf. The inference may have the effect of requiring the defendant to produce evidence to rebut the
For all the aforementioned reasons, we conclude that the time has come to abandon the missing witness rule. We recognize that the rule has firm roots in our common law, and “we are not unmindful of the important role that the doctrine of stare decisis plays in our system of justice. Stare decisis, however, is not an end in itself. . . . Thus, [principles of law which serve one generation well may, by reason of changing conditions, dis-serve a later one. . . . Experience can and often does demonstrate that a rule, once believed sound, needs
Although we abandon the Secondino rule today, we do not prohibit counsel from making appropriate comment, in closing arguments, about the absence of a particular witness, insofar as that witness’ absence may reflect on the weakness of the opposing party’s case.
II
The defendant claims that he is entitled to a new trial in view of our abandonment of the Secondino rule. Specifically, he claims that the Secondino instruction given by the trial court regarding the defendant’s failure to produce Cindy Castro, a potential alibi witness, constituted harmful error. We disagree.
Because the giving of a Secondino instruction does not implicate a defendant’s constitutional rights; see,
First, the evidence presented by the state against the defendant was strong. At the hospital emergency room, Oswaldo Garcia, who knew the defendant, had told the nurses, and later the police, that the defendant had stabbed him. Thereafter, both Oswaldo and the second victim, his brother Jose Garcia, independently identified the defendant as the assailant, selecting his photograph from a photographic array. At trial, both Oswaldo and Jose positively identified the defendant as the perpetrator.
Furthermore, the jury heard detailed testimony regarding the defendant’s alibi defense. Specifically, the defendant himself testified that he was inside the Latin American Club when an argument started in the parking
Finally, the instruction the trial court gave in accordance with Secondino did not require the jury to draw an adverse inference as a result of the defendant’s failure to produce Cindy Castro; rather, the court apprised the jury that it could draw such an inference if it found that each of the Secondino requirements had been met. Moreover, because the defendant elicited such extensive testimony in support of his alibi defense, there is a reasonable basis to presume that the jury attributed the defendant’s failure to produce Cindy Castro not to any concerns about the substance of her testimony, but, rather, to her unavailability
In these circumstances, we perceive no reasonable likelihood that the trial court’s Secondino instruction harmed the defendant. In light of the testimony adduced by the defendant in support of his alibi defense, the jury had a full opportunity to evaluate the defendant’s claim. Moreover, the defendant aggressively cross-examined the two victims, whose versions of the events remained consistent in all material respects. The jury obviously credited the eyewitness testimony of the two victims and rejected the testimony of the defendant and his three alibi witnesses. The defendant has not demonstrated that the jury’s evaluation of that evidence would have been different had the court not given the Secondino instruction.
The judgment of the Appellate Court is affirmed.
In this opinion BORDEN, MCDONALD, PETERS and MENT, Js., concurred.
General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . .
In Secondino v. New Haven Gas Co., supra, 147 Conn. 672, this court stated that “[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.” (Internal quotation marks omitted.) Id., 675. This principle, previously articulated by this court in Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928), and subsequently approved for use in criminal cases; see State v. Daniels, 180 Conn. 101, 109, 429 A.2d 813 (1980); State v. Annunziato, 169 Conn. 517, 536-39, 363 A.2d 1011 (1975); commonly is referred to as the Secondino rule or the missing witness rule. Similarly, the jury charge explaining the rule commonly is referred to as the Secondino instruction or the missing witness instruction. We use these terms interchangeably throughout this opinion.
As we discuss later in this opinion, our legislature recently has barred the use of the Secondino instruction in ail civil actions. Public Acts 1998, No. 98-50 (P.A. 98-50), codified at General Statutes § 52-216c; see footnote 7 of this opinion. Thus, in this appeal, we are asked to reconsider the propriety of such an instruction in criminal cases — an issue that P.A. 98-50 does not address.
The testimony at trial indicated that Cindy Castro and Maria Castro are not related.
The defendant also claimed in the Appellate Court that the trial court improperly: (1) restricted his voir dire examination of prospective jurors; (2) highlighted the criminal records of the defendant and a key defense witness during its instructions to the jury; and (3) failed to instruct the jury that lack of motive should be considered in assessing reasonable doubt. State v. Malave, supra, 47 Conn. App. 598-99. The Appellate Court rejected these claims. These claims are not the subject of this certified appeal.
The Appellate Court further noted that, “[w]hile the defendant is aware that we cannot review this claim, he makes it nonetheless to preserve the record in the event of Supreme Court review.” State v. Malave, supra, 47 Conn. App. 608. The defendant also raised two additional claims in the Appellate Court, challenging the propriety of the trial court’s Secondino instruction in the circumstances of this case. The Appellate Court declined to review one of those claims and rejected the other. Id., 609. We have not certified those two issues and, consequently, they are not before us.
Public Acts 1998, No. 98-50, which is codified at General Statutes § 52-216c, provides: “No court in the trial of a civil action may instruct the jury that an inference unfavorable to any party’s cause may be drawn from the failure of any party to call a witness at such trial. However, counsel for any party to the action shall be entitled to argue to the trier of fact during closing arguments, except where prohibited by section 52-174 of the general statutes, that the jury should draw an adverse inference from another party’s failure to call a witness who has been proven to be available to testify.”
Although the majority of state and federal courts continue to employ the missing witness rule, some jurisdictions have rejected it. See, e.g.,Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044, 1048 (5th Cir. 1990) (rejecting missing witness rule for both civil and criminal cases); State v. Brewer, 505 A.2d 774, 777 (Me. 1985) (rejecting missing witness rule for criminal cases); State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988) (same); Henderson v. State, 367 So. 2d 1366, 1368 (Miss. 1979) (same); Ross v. State, 106 Nev. 924, 927, 803 P.2d 1104 (1990) (same); State v. Jefferson, 116 R.I. 124, 139-40, 353 A.2d 190 (1976) (same); State v. Hammond, 270 S.C. 347, 356, 242 S.E.2d 411 (1978) (rejecting missing witness rule for both criminal and civil cases); Russell v. Commonwealth, 216 Va. 833, 836-37, 223 S.E.2d 877 (1976) (rejecting missing witness rule for criminal cases). In addition to the courts that have abandoned the missing witness rule, other courts have expressed wariness over the rule. See, e.g., International Union v. National Labor Relations Board, 459 F.2d 1329, 1335 (D.C. Cir. 1972) (approving inference but acknowledging that “the unwary [might] conclude that the adverse inference rule is one of those intricate gems of the common law which is riddled with nonsensical exceptions, encrusted with gloss upon gloss, and surrounded by an arcane lore last fully explicated in a three-volume treatise published in the late 19th century”); Carr v. United States, 531 A.2d 1010, 1012 (D.C. 1987) (“[a]lthough the missing witness inference has ancient roots ... we have been chary of its use in criminal prosecutions, primarily because of concern that the inference creates evidence from nonevidence” [citation omitted]); Taylor v. State, 676 N.E.2d 1044, 1046 (Ind. 1997) (“[t]he tendered instruction, commonly referred to as a missing witness instruction, is not generally favored in Indiana”); Crosser v. Dept. of Public Safety, 240 N.W.2d 682, 685 (Iowa 1976) (“The inference should be invoked prudently. Despite the plenitude of cases supporting the inference, caution in allowing it is suggested with increasing frequency.” [Internal quotation marks omitted.]); Commonwealth v. Groce, 25 Mass. App. 327, 330, 517 N.E.2d 1297 (1988) (missing witness inference “should be invited only in clear cases, and with caution”).
A “statement” is defined as: “(1) A written statement made by a person and signed or otherwise adopted or approved by such person; or
“(2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.” Practice Book § 40-15.
We note that the defendant is exempt from disclosing any statements in his or her possession that were made by the defendant himself or herself; Practice Book § 40-13 (b); and the state also is exempt from providing the defendant with certain types of statements. See, e.g., Practice Book § 40-14 (2).
As we stated in abandoning the voucher rule: “Historically, the rationale behind the rule was first, that the party by calling the witness to testify vouches for the trustworthiness of the witness, and second, that the power to impeach is the power to coerce the witness to testify as desired, under the implied threat of blasting the character of the witness if the witness does not. . . . These reasons have become discredited and are generally thought no longer to justify the restrictions imposed on the parties. . . . For example, the United States Supreme Court has declared: Whatever validity the voucher rule may have once enjoyed ... it bears little present relationship to the realities of the criminal process. It might have been logical for the early common law to require a party to vouch for the credibility of witnesses he brought before the jury to affirm his veracity. Having selected them especially for that purpose, the party might reasonably be expected to stand firmly behind their testimony. But in modem criminal trials, [parties] are rarely able to select their witnesses: they must take them where they find them. Chambers v. Mississippi, 410 U.S. 284, 296, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973).” (Citations omitted; internal quotation marks omitted.) State v. Graham, 200 Conn. 9, 16, 509 A.2d 493 (1986).
Moreover, a witness who is “available” in the sense that he or she could be subpoenaed, is equally available to both parties. See Hines v. St. Vincent’s Medical Center, supra, 232 Conn. 643 (Borden, J., concurring).
Furthermore, the jury often is unaware of the other reasons why a party may have decided not to call the missing witness. In such cases, there is an enhanced risk that the jury will draw an adverse inference in circumstances that do not, in fact, warrant it. See, e.g., United States v. Sblendorio, 830 F.2d 1382, 1394 (7th Cir. 1987), cert. denied, 484 U.S. 1068, 108 S. Ct. 1034, 98 L. Ed. 2d 998 (1988) (“Unless the jury knows exactly why a party did not call a witness, it cannot fully evaluate the meaning of the witness’ absence. The reasons for not calling witnesses are so many and so complex— from a desire to avoid carrying coals to Newcastle to concern about the witness’s appearance and demeanor to concern about the content of the testimony to a belief that the witness would invoke the privilege against self-incrimination — that a full exploration could take the trial far afield.”).
The statement of purpose of the legislation abolishing the missing witness rule in civil cases was “[t]o overrule the decision of the Connecticut Supreme Court in Secondino v. New Haven Gas Co., [supra, 147 Conn. 672] and its progeny which results in longer trials with additional witnesses.” (Emphasis added.) House Bill No. 5584, 1998 Sess. (statement of purpose). Moreover, as Robert Adelman, the president of the Connecticut Trial Lawyers Association, the primary proponent of the legislation, stated in his testimony before the judiciary committee: "This Bill, if passed, would shorten civil trials by reducing the number of witnesses called.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 6, 1998 Sess., p. 1716. “[The Secondino rule] has put trial lawyers in the position where we must call witnesses we do not need, just to avoid the adverse inference. This lengthens trials. In addition, it has created a huge amount of appellate litigation about the proper application of the rule.” Id., p. 1720, remarks of Adelman.
Of course, the state may not comment, either directly or indirectly, on the failure of the defendant to testify. E.g., Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965).
It may be true, of course, that the implicit point of such argument would be to attempt to persuade the jury to infer that the witness, if produced, likely would have provided testimony adverse to the opposing party. We also acknowledge that, under Public Acts 1998, No. 98-50, counsel in civil
These witnesses, however, provided somewhat conflicting testimony with respect to when the defendant left the club.
The defendant’s investigator testified that she had attempted to reach Cindy Castro by telephone on the eve of trial for the purpose of serving her with a subpoena, but that the investigator had been informed by the person answering the telephone that Cindy Castro was out of town. The state, however, elicited testimony from the investigator indicating that she had not sought vigorously to locate Cindy Castro.
Concurrence in Part
concurring and dissenting. I am pleased that my colleagues in the majority have finally decided to join my long-standing opposition to the Secondino rule, pursuant to which the jury in a criminal trial is
Although it took this court five years after I first criticized Secondino to discard the rule, the mischief it has caused is frightening. In State v. Ross, supra, 230 Conn. 324, for instance, I dissented from the majority’s approval of a Secondino instruction authorizing the jury to draw an adverse inference from the fact that the defendant did not call as witnesses two of the four psychiatrists who examined him in order to evaluate his insanity defense.
Speaking through then Chief Justice Peters, the Ross court justified the Secondino charge on the following grounds: “[T]he Secondino charge serves important evidentiary interests. In contradistinction to an invocation of privilege, the Secondino inference derives from the maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted. . . . State v. Shashaty, 205 Conn. 39, 44, 529 A.2d 1308 (1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 753, 98 L. Ed. 2d 766 (1988). Permitting consideration of all relevant evidence that bears a reasonable assurance of reliability advances the truth finding function of the jury.” State v. Ross, supra, 230 Conn. 214-15.
Fortunately, my colleagues in the majority now recognize the injustice of permitting the jury to base a conviction upon inferences extracted from the imagined testimony of an absent witness. Unfortunately, this belated recognition comes too late for defendants such as Michael Ross. Nevertheless, at least the court has today laid the groundwork to prevent similar injustices from occurring in the future.
That said, I dissent from the majority’s determination that the Secondino instruction in the present case inflicted no harm upon the defendant. I am well aware that “the defendant must show that the [Secondino] charge was likely to have affected the verdict.” State v. Shashaty, supra, 205 Conn. 44. It is apparent to me that the defendant has satisfied this burden.
First, there was not a shred of forensic evidence that connected the defendant to the crime. The knife used in the assault did not belong to the defendant, and the
Second, several alibi witnesses unequivocally testified that the defendant did not commit the assault with which he was charged. The trial court essentially instructed the jury that it could infer that the testimony of another witness — whom the defendant did not call— would have cast doubt upon the defendant’s alibi. The harm that inheres in this instruction is self-evident. The trial court authorized the jury to discredit the testimony of the defendant’s alibi witnesses, based on nothing more substantial than the fact that another witness had failed to testify. In short, the trial court encouraged the jury to reject the defendant’s alibi. If this kind of encouragement from the trial court is “harmless,” then I must not understand the meaning of that word.
In addition, one of the witnesses who identified the defendant as the assailant was a convicted felon. In contrast, two of the defendant’s three alibi witnesses had no criminal records whatsoever, let alone felony records. At trial, the state conceded that credibility was “really probably the key issue or the essential focus . . . .” By instructing the jury that it could draw selective inferences in order to credit the testimony of a convicted felon and discredit the testimony of two law
The majority’s approach to cases such as the present one resembles a game with arbitrary rules and vertiginous stakes. The game is played something like this. To the trial court and to prosecutors, the majority says — with a conspiratorial wink — “you shouldn’t have done that.” To the defendant, the majority says “the trial court made a mistake, but — we’re sorry — the mistake was harmless.” As for the interests of justice, the majority says nothing at all.
Accordingly, I dissent.
See Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960).
Significantly, this court has held that the attorney-client privilege bars the state from calling such experts as witnesses. See State v. Toste, 178 Conn. 626, 628, 424 A.2d 293 (1979) (reversible error to allow state to call psychologist who examined defendant at request of defendant’s attorney).
More specifically, the assailant touched a knife and a beer bottle, and the defendant’s fingerprints were not found on either of these two items. Nor were the defendant’s fingerprints found in the victim’s car, which the assailant also touched.
The majority emphasizes the following remarks that defense counsel made at closing argument: (1) that an investigator unsuccessfully attempted to locate and subpoena the missing witness; and (2) that the missing witness’ testimony would have been cumulative. What did the majority expect defense counsel to say? More to the point, I am bewildered by the majority’s apparent belief that the jury would elevate the argument of defense counsel over a subsequent instruction administered by the court,.
Concurrence Opinion
concurring. I concur with the result reached in the majority opinion. I write separately, however, because I do not think it is either necessary or desirable to require a party who intends to mention during closing argument the failure of an adversary to call a witness to notify the court and the opposing party in advance. It seems to me that it is always a proper argument to point out a lack of evidence and, as long as the jury is not asked to draw an inference, it is fair comment to bring to the jury’s attention the absence of a witness to support the opposition’s theory of the case.