State v. Malave

BERDON, J.,

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 *744 authorized to infer that the testimony of an absent witness would have been unfavorable to the accused. 1 See, e.g., State v. Taylor, 239 Conn. 481, 507 , 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121 , 117 S. Ct. 2515 , 138 L. Ed. 2d 1017 (1997) (Berdon, J., dissenting) (“the time has come for this court to discard . . . the Secondino rule”); Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690 , 706 n.1, 651 A.2d 1286 (1995) (Berdon, J., dissenting) (critical of Secondino); State v. Ross, 230 Conn. 183, 329 , 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165 , 115 S. Ct. 1133 , 130 L. Ed. 2d 1095 (1995) (Berdon, J., dissenting in part, on Secondino issue); see also C. Tait & J. LaPlante, Connecticut Evidence (Sup. 1999) § 11.5.4, pp. 219-20 (critical of Secondino). I write separately because I do not agree with the majority’s conclusion that the Secondino instruction in the present case was harmless.

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. 2 Worse, the majority gave its blessing to the trial court’s admonition that the jury should “[l]isten carefully to [the Secondino instruction]. It’s not a very usual or an easy concept.” (Emphasis in original.) Id., 332 (Berdon, J., dissenting). Because the court found no fault with the Secondino instruction in *745 Ross , the defendant in that case faces the death penalty in the wake of the new dispositional trial that this court ordered.

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 *746 defendant’s fingerprints were nowhere to be found. 3 Notwithstanding the absolute absence of physical evidence, the jury convicted the defendant. It is apparent to me that the Secondino instruction “likely . . . affected [this] verdict.” Id.

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 *747 abiding witnesses, the trial court encouraged the jury to kick the legs out from under the defendant’s alibi. 4

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,.