State v. Dawkins

O’CONNELL, J.,

concurring. I disagree with the majority’s conclusion that the trial court did not abuse its discretion in giving a Secondino instruction. In my opinion, the instruction was not warranted because Mina Dawkins and Norman Ramsey were not witnesses whom the defendant would naturally produce.

The defendant raised an alibi defense at trial. An alibi “places the defendant at the relevant time of the crime in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party.” (Emphasis added.) Black’s Law Dictionary (6th Ed. 1990). A defendant asserting an alibi defense is therefore naturally expected to produce those witnesses with “peculiar or superior information” which is favorable to his whereabouts at the time of the crime. See Hines v. St. Vincent’s Medical Center, 232 Conn. 632, 637, 657 A.2d 578 (1995). A defendant is not, however, naturally expected to produce witnesses whose testimony will be “comparatively unimportant” to his defense. See State v. Williams, 20 Conn. App. 263, 266, 565 A.2d 1365 (1989).

In this case, the defendant and his mother testified in support of the defendant’s alibi defense. See part I of the majority opinion. Mina Dawkins and Ramsey could not testify to the defendant’s whereabouts at the time the crime was committed. Instead, they would have testified that they dropped off the defendant and his mother at her house earlier that evening. As the state argued at trial and during its closing, this testimony was irrelevant to the defendant’s alibi defense because, *823even if Mina Dawkins and Ramsey had testified truthfully as to the time they dropped off the defendant and his mother, the defendant would still have had ample time to reach the crime scene after being returned home. The state, however, was permitted to argue both that the testimony of Mina Dawkins and Ramsey was irrelevant to the alibi defense and that the jury could simultaneously draw an adverse inference from the defendant’s failure to produce these witnesses.

The crime was committed long after Mina Dawkins and Ramsey returned the defendant and his mother to her house. Although “[t]he testimony of several witnesses in support of an alibi defense can hardly be characterized as unimportant or cumulative”; State v. Grant, 221 Conn. 93, 106, 602 A.2d 581 (1992); Mina Dawkins and Ramsey are not witnesses who could have testified to the defendant’s whereabouts at the time of the crime. They would have been able only to bolster Mildred Dawkins’ credibility by corroborating her version of events two hours before the crime. Unlike the majority, I cannot conclude that this testimony was part of “a series of events related to the facts of the alibi defense” so as to make it material.

The state contends that the testimony was material because it would have bolstered the credibility of Mildred Dawkins, thereby “inferentially” enhancing the credibility of the defendant’s alibi defense. Once Mildred Dawkins testified in support of the defendant’s alibi defense, the jury, as the finder of fact, was free to believe or disbelieve her.

Under the majority’s analysis, a defendant will be required to bolster the general credibility of his alibi witness or suffer the consequences of a Secondino instruction. In my opinion, this is contrary to Connecticut law, which “follows the federal rules of evidence in that the credibility of a witness cannot be supported *824until after it has been attacked. . . . ‘Where a witness has not been impeached, it is not in general permissible to support his testimony by other evidence, corroborative in its nature, which bears on the credibility of the witness rather than on the issues in the cause ....’” (Citations omitted.) State v. Suckley, 26 Conn. App. 65, 72, 597 A.2d 1285, cert. denied, 221 Conn. 901, 600 A.2d 1028 (1991).

Although I would have concluded that the giving of a Secondino instruction was an abuse of discretion, the defendant has not sustained his burden of proving that the instruction affected the outcome of the trial. I therefore concur in the judgment.