State v. Taylor

BERDON, J.,

dissenting. This case raises important issues with respect to the continuing validity, in criminal actions, of allowing the state to argue, and the trial court to instruct the jury, that the jury may draw an adverse inference from the defendant’s failure to call a witness pursuant to the rule set forth in Secondino v. New Haven, 147 Conn. 672, 675, 165 A.2d 598 (1960) (Secondino rule).1 I address two issues: (1) whether, *506on an evidentiary basis, the Secondino rule should be abandoned; and (2) whether that rule is constitutional.

I must first point out the importance of the Secondino rule in the context of this case. The defendant, Derrick James Taylor, testified at trial that he was with his girlfriend, Michelle Michalski, at a party from 2 a.m. to 4 a.m. during the time of the shooting of the two victims, which occurred at 2:22 a.m. on August 29,1992. Because the defendant failed to call Michalski as a witness, the state argued and the trial court instructed the jury that, under the Secondino rule, the jury could draw an adverse inference from the defendant’s failure to call her to corroborate his alibi.

The only person to identify the defendant as one of the perpetrators of the crime was Fltzalbert Williams, a state prisoner who was on a weekend furlough. Williams made an in-court identification of the defendant as the person who shot one of the victims, Fernando Aguiar, notwithstanding the following undisputed facts. Williams made his identification from a third floor apartment window located on the side of a building, the front of which faced the scene of the crime, which was a bar located on the opposite side of New Park Avenue in Hartford. Williams stated that there were two perpetrators of the crime, and that one of them (the shorter of the two) had his face covered, whereas the other, whom he identified as the defendant, did not. Williams made the identification despite the conflicting testimony of sixteen year old Helder Aguiar, the second victim, who testified that both perpetrators had their faces covered. Williams admitted on cross-examination that at the October 5,1994 probable cause hearing he had testified that he was not certain whether one of the persons he *507observed on New Park Avenue from his window, which did not face the street, was the defendant. The only other testimony with respect to the identification of the defendant as one of the perpetrators was from Helder Aguiar, who merely testified that the perpetrator who shot him had the same build and wore the same clothing from the waist down as the defendant, observations he made notwithstanding the commotion and fright caused by the shooting.

It is obvious, from the recitation of this identification testimony, that the case against the defendant was paper-thin. Therefore, any adverse inference that the jury was permitted to draw with respect to the defendant’s failure to call Michalski as a witness could have had a significant impact on the verdict.

I

First, in my view, the time has come for this court to discard, on an evidentiary basis, the Secondino rule at least with respect to criminal cases. I have previously questioned the continuing validity of this rule: “The Secondino adverse inference has come under criticism by legal scholars. Professor Colin C. Tait writes: ‘The continuing validity of the “missing witness” rule should be called into question. Not only does it consume an undue proportion of the attention of both appellate courts, its underlying premise has been substantially undermined. The rule originated at a time when parties “vouched” for the veracity of their witnesses so that an opponent dared not call an adverse witness. Since a partial witness would be called only by the favored party, that party’s failure to call the witness, if available, warranted a negative inference. The voucher rule no longer applies in Connecticut. Under Connecticut’s modern rules a party may call an adverse witness, including the opposing party. If an adverse witness is called, the party calling that witness may use leading *508questions to interrogate the witness and, if necessary, to impeach the witness. . . .2 If a witness is available, he is equally available to both sides. If a witness has information favorable to one side, why shouldn’t that side call that witness and bring out that information instead of relying on a negative inference based on ignorance that such a witness might have some unspecified information that might be unfavorable to the other party? See Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044, 1046-1048 (5th Cir. 1990). Moreover, the Secondino rule is costly. It consumes the time of both the court and the parties, and it incurs expense even for parties who do not wish to call a witness, since they must nevertheless pay to have witnesses available to preclude the assertion of an adverse inference.’ C. Tait & J. LaPlante, Connecticut Evidence (Sup. 1994) § 11.5.4, pp. 150-51. Indeed, its misuse in Connecticut is apparent and could have life and death consequences. State v. Ross, 230 Conn. 183, 324-34, 646 A.2d 1318 (1994) (Berdon, J., dissenting) (majority suggested that state is entitled to Secondino adverse inference jury instruction for failure to call psychiatric witness whom defense consulted in capital murder trial notwithstanding attorney-client privilege).” Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 706 n.1, 651 A.2d 1286 (1995) (Berdon, J., concurring and dissenting); see also Hines v. St. Vincent’s Medical Center, 232 Conn. 632, 638 n.9, 657 A.2d 578 (1995). Furthermore, Justice Palmer expressed similar concerns in Hines. See Hines v. St. *509Vincent’s Medical Center, supra, 644-45 (Palmer, J., concurring).

The majority refuses to reexamine the Secondino rule, claiming it was not raised before the trial court and, because it is merely an evidentiary matter, Golding review3 is not appropriate. I disagree in both instances.4

*510The continuing validity of the Secondino rule was clearly raised at the very time the state requested permission to argue and for the trial court to instruct the jury on the adverse inference. The issue was raised and dismissed by the trial judge as follows:

“The Court: ... Of course, the law as to Secondino instructions — we most recently had a case two weeks ago, Hines v. St. Vincent’s Medical Center, [supra, 232 Conn. 644] where Justice Palmer has opined we ought to dump the rule. I believe there was a case a few months ago where Justice Berdon, who wrote the majority in Hines, but indicated since the issue had not been briefed, this was not the case in which to discuss the continued vitality of the Secondino rule, but I think he dissented in the case a few months ago suggesting that Secondino should be abandoned.

“[State’s Attorney]: I didn’t read that case. I did read Hines v. St. Vincent’s Medical Center, [supra, 232 Conn. *511632] that Your Honor was kind enough to give to both of us. . . .

“The Court: Yes, but I perceive it to be my responsibility to follow the law as expressed by the Supreme Court, whether or not that law may be on the list of possible laws to be changed or possible rules to be changed. Now, you did not wish to call Ms. Michalski?”

The trial court made a definitive ruling that it was bound by the Secondino rule until such time as this court changed it, and that, under the existing rule, this was an appropriate case to allow the state to argue an adverse inference against the defendant for failure to call Michalski as a witness and to instruct the jury on the rule. Indeed, nothing else could have been expected of the attorney for the defendant other than taking a formal exception to the trial court’s ruling. We, however, did away with this archaic rule. See C. Tait & J. LaPlante, Connecticut Evidence (Sup. 1996) § 3.5.9, p. 47. Furthermore, argument with respect to the trial court’s ruling would have been improper. See Practice Book § 850A (“[argument upon such objection or upon any interlocutory question arising during the trial of a case shall not be made by either party unless the court requests it”). Basic fairness, especially under the circumstances of this case, requires the court to review the issue.

II

Even if the defendant failed to object properly to the state’s missing witness argument and the trial court’s instruction on the Secondino rule, the issue is reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989),5 because both the argument and the instruc*512tion in a criminal case violate the defendant’s federal constitutional right of due process. I recognize that this court has summarily ruled in the past that the “giving of a Secondino charge is purely an evidentiary issue and is not a matter of constitutional dimensions.” State v. Anderson, 212 Conn. 31, 41-42, 561 A.2d 897 (1989). In my view, however, those cases were wrongly decided on that issue.

“It is fundamental that any person accused of a crime is presumed innocent unless and until the state has proven his guilt by establishing each essential element of the crime charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 363, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Nelson, 17 Conn. App. 556, 561, 555 A.2d 426 (1989).” State v. Lopez, 38 Conn. App. 434, 444, 662 A.2d 792 (1995), remanded for further proceedings, 239 Conn. 56, 681 A.2d 950 (1996). The reasonable doubt standard “provides concrete substance for the presumption of innocence — that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.’ ” In re Winship, supra, 363. The requirement of proof beyond a reasonable doubt “ ‘protects the fundamental value determination of our society, given voice in Justice Harlan’s concurrence in Winship, that it is far worse to convict an innocent man than to let a guilty man go free.’ ” State v. Gerardi, 237 Conn. 348, 356, 677 A.2d 937 (1996).

Furthermore, it is well established that “[a]n instruction that dilutes the state’s burden, or places a burden on the defendant to prove his innocence, is unconstitutional. Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. *5132450, 61 L. Ed. 2d 39 (1979).” State v. Reddick, 197 Conn. 115, 131-32, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). In my view, the Secondino rule unconstitutionally diminishes the state’s burden of proving the defendant’s guilt beyond a reasonable doubt. It is incomprehensible to me that, although the defendant bear’s no burden and need not present evidence or call witnesses, it is permissible for the trial judge to instruct the jury, or for the state to comment, that the jury may draw an unfavorable inference on the defendant’s failure to produce a witness.

Other jurisdictions have come to the conclusion that it is constitutionally impermissible in criminal cases to draw an adverse inference from a defendant’s failure to call a witness. See State v. Brewer, 505 A.2d 774, 777 (Me. 1985) (“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 inference. If he fails to do so, the missing-witness inference allows the state to create ‘evidence’ from the defendant’s failure to produce evidence. Such a result is impermissible.”); State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197 (1974) (per curiam) (“such comment might suggest to the jury that defendant has some duty to produce witnesses or that he bears some burden of proof’); Ross v. State, 106 Nev. 924, 927, 803 P.2d 1104 (1990) (“[Missing witness argument] can be viewed as impermissibly shifting the burden of proof to the defense. . . . Such shifting is improper because it suggests to the jury that it was the defendant’s burden to produce proof by explaining the absence of witnesses or evidence.” [Citation omitted; internal quotation marks omitted.]); State v. Leyba, 89 N.M. 28, *51429, 546 P.2d 876 (1976) (concluding that prosecutor’s remarks with respect to missing witness inference “suggest that a defendant has some duty to produce witnesses or has some burden of proof’); State v. Jefferson, 116 R.I. 124, 139-40, 353 A.2d 190 (1976) (“[w]e now believe that the Minnesota court’s concern about the jury’s possible mistaken belief that a defendant has a duty to prove his innocence is well taken”); State v. Posey, 269 S.C. 500, 503, 238 S.E.2d 176 (1977) (“An accused has the right to rely entirely upon [the] presumption of innocence and the weakness in the State’s case against him. He would clearly be deprived of that right if an adverse inference is permitted to be indulged against him because of its exercise.”); Russell v. Commonwealth, 216 Va. 833, 837, 223 S.E.2d 877 (1976) (“[Missing witness instructions] would run head on into the presumption of innocence to which every accused is entitled and upon which juries are universally instructed. The burden is upon the prosecution to prove its case against the accused. The defense need not prove anything; it may rely upon the presumption of the innocence. To tell a jury that the failure of the defense to call a material witness raises an adverse presumption against the accused is to weaken, if not neutralize, the presumption of innocence which, if given its full strength, might be sufficient to tip the scales in favor of acquittal.”); see also Commonwealth v. Schatvet, 23 Mass. App. 130, 135, 499 N.E.2d 1208 (1986) (“[Circumspection ... is especially called for where the inference would run against a defendant in a criminal prosecution, for the inference may come uncomfortably close to invading constitutional rights”). Indeed, the Fifth Circuit Court of Appeals pointed out that “we do not approve of comments reflecting on the lack of evidence presented by a defendant in a criminal case .... Such a course of action by the prosecutor is a parlous one at best, of necessity sailing close to implying *515that the defendant is obligated to produce evidence of his innocence.” United States v. Iredia, 866 F.2d 114, 118 (5th Cir.), cert. denied, 492 U.S. 921, 109 S. Ct. 3250, 106 L. Ed. 2d 596 (1989).

I would hold that the state is not permitted to argue to the jury that it may draw an adverse inference from the defendant’s failure to call a witness or to produce evidence, nor may the trial court instruct the jury that it may draw such an inference, whether construed as raising evidentiary or constitutional concerns. In short, for at least criminal matters, we should abandon the Secondino rule. I would, therefore, reverse the conviction and remand this case for a new trial.

Accordingly, I respectfully dissent.

See Secondino v. New Haven Gas Co., supra, 147 Conn. 675 (“[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”). For the purposes of this dissent, the “Secondino rule,” where the context *506permits, refers not only to the jury instruction on the permissive adverse inference for failure to call a witness, but also to the state’s argument to the jury on the adverse inference.

Professor Tait also points out the following with respect to civil cases: “In addition, Connecticut permits widespread discovery so that all parties know, and may depose, all relevant witnesses before trial. Thus, each party should in fact know which witnesses are favorable to which side. That being so, why should a party not be required to call any witness favorable to his cause?” C. Tait & J. LaPlante, Connecticut Evidence (Sup. 1994) § 11.5.4, p. 151. Although I have indicated that even in a civil case the trial court should not instruct the jury that it may draw an adverse inference for failure to call a witness, I would leave for another day whether that prohibition should be extended to summation arguments before a civil jury.

State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); see footnote 5.

Regardless of the question of whether the Secondino rule should be abandoned, this case vividly points out that the rule that the instruction is applicable even when the witness is equally available to both parties is wrong.

In this case, Michalski had given the police a statement favorable to the state, in which she stated: “We got to the Latin Kings party about 8:30 p.m. ... I was dancing with the girls and moving around so [the defendant] might have gone out without my noticing ” In fact, not only was Michalski listed as a state’s witness and under the state’s subpoena to testily, she was actually present in the courtroom during the trial. Nevertheless, the state decided not to call Michalski. In this respect, the following colloquy took place between the state’s attorney and the trial judge:

“The Court: . . . Now, you did not wish to call Ms. Michalski?

“[State’s Attorney]: Yes, Your Honor. I made the determination without ever having spoken to her that based upon the statement that I had, the other material — that statement being I guess capable of various determination because she does say in there that it could — because she was dancing with girls at (he party, it could be that the defendant could have left without her knowing it, but she doesn’t give a time frame on that, and so that based upon that, and the fact that she had come with — been brought by the defendant’s father, so that I think — and I think I may have alluded to that, at least by intonation in my comment before — I can’t find that she is someone that I would trust in order to call as a witness myself, so I made that decision not to.”

In dictum, wo have stated that even when the witness is equally available to both parties, the Secondino instruction is proper as long as the requirements are satisfied. Hines v. St. Vincent’s Medical Center, supra, 232 Conn. 637 n.8; see also id., 640-44 (Borden, J., concurring); id., 644 (Palmer, J., concurring). I now specifically disavow that dicta. In cases in which a witness is equally available to both parties, there is no logical basis for allowing an inference to be drawn from one party’s failure to call that witness when the other party could have just as easily called that same witness. This is especially so because we have abandoned the voucher rule — that is, the common law rule that one could not impeach the credibility of his own witness. See State v. Graham, 200 Conn. 9, 17, 509 A.2d 493 (1986).

In fact, for this very reason, other jurisdictions have prohibited drawing an inference from the failure to call a witness equally available to both *510parties. See, e.g., United States v. Anchondo-Sandoval, 910 F.2d 1234, 1238 (5th Cir. 1990) (“[t]he well-settled rule in this Circuit is that drawing any inference from a party’s failure to call a witness equally available to both sides is impermissible”); Bethune v. State, 542 So. 2d 332, 334 (Ala. Crim. App. 1989) (“ ‘ [i]t is the settled law in this state that no unfavorable inference can be drawn, and no unfavorable argument to a jury made, by counsel against a party to a cause because of the failure to call a witness to testify, when that witness is accessible to both parties, and can be introduced by and examined by either party’ ”); State v. Chunn, 784 S.W.2d 228, 230 (Mo. App. 1989) (“[i]t is impermissible to draw an adverse inference if the missing witness is equally available to both parties”); State v. Ramos, 121 N.H. 863, 869, 435 A.2d 1122 (1981) (holding missing witness instruction inapplicable “where the witness is equally available [or unavailable] to both sides”); see also United States v. Cook, 771 F.2d 378, 383 (8th Cir. 1985) (“such a presumption is to be cautiously applied and where the witness was apparently available to both parties, [we seriously doubt whether] any presumption should flow from the failure of either party to call such witness” [citation omitted; internal quotation marks omitted]). Indeed, more than twenty years ago this court was correct when it held that a defendant was not entitled to an adverse inference instruction when a witness was available to both parties. See State v. Brown, 169 Conn. 692, 705, 364 A.2d 186 (1975) (“[w]hen a witness is equally available to both parties no inference unfavorable to either may be drawn”).

Under State v. Golding, supra, 213 Conn. 239-40, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the *512violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.”