State v. Williams

Shea, J.,

concurring. I disagree with the portion of the majority opinion that holds the trial court to have exercised its discretion reasonably in restraining the defendant. The opinion appears to recognize that the record must demonstrate the necessity for the use of shackles upon a defendant during trial in order to supersede his common law “right to appear in court free from physical restraints.” On the first day of jury selection when the court denied the defendant’s request for removal of his leg irons the record indicates merely that the two correctional officers had no opinion about the need for restraints upon the defendant. It was not until two hours later, after a second request to be unbound was denied, that the defendant showed some lack of cooperation by electing to absent himself from the courtroom because of the court’s groundless refusal to respect his right to appear in court without restraints. I would find error in the denial of these two requests of the defendant for removal of his shackles since the record is devoid of any basis to support the action of the trial court. Evidence of subsequent irascibility on the part of the defendant, apparently precipitated by these erroneous rulings, can hardly be relied upon to justify them. In view of the elaborate precautions adopted by the trial court, however, to conceal from the jury the fact that the defendant was being held in irons during the early portion of his trial, I would find this error to be harmless, as it could not conceivably have affected the outcome.

*17I also disagree with the portion of the opinion that relies upon the boiler-plate instruction that “the quality, not the quantity, of testimony . . . controls” in determining that “the trial court correctly eradicated the possible drawing of ... an unfavorable inference” from the remark of the state’s attorney during argument about the failure of the defendant to produce one of his witnesses. If such a commonplace instruction could remove the prejudice emanating from an improper recital of the principle allowing an unfavorable inference to be drawn from failure to produce a witness; Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960); it would be a rare case where the erroneous invocation of that principle could result in a reversal. Although problems involving Secondino have been frequently presented to this court, the intimation of the majority opinion that erroneous applications of the principle may be cured by the standard bromide about quality vis-a-vis quantity of testimony is unprecedented. See, e.g., State v. Daniels, 180 Conn. 101, 109-14, 429 A.2d 813 (1980); State v. Kinsey, 173 Conn. 344, 351, 377 A.2d 1095 (1977); Doran v. Wolk, 170 Conn. 226, 229-31, 365 A.2d 1190 (1976); Queen v. Gagliola, 162 Conn. 164, 168-69, 292 A.2d 890 (1972).

I would find that the prosecutor’s brief reference to another witness the defendant intended to bring to the trial was harmless because the jury had already been informed of this witness by defense counsel. Whether or not the state’s attorney would have gone farther and argued the Secondino principle if he had not been interrupted by the defendant’s objection, the only remark the jury heard merely repeated what had already been learned from the defendant and was, therefore, not prejudicial.

Accordingly, I agree with the result.