Opinion
(AC 17664)
Convicted of the crimes of assault in the first degree, carrying a pistol without a permit and risk of injury to a child, the defendant appealed to this court claiming that the trial court improperly declined to give a Secondino missing witness instruction. Held that the Supreme Court having abandoned the missing witness rule in State v. Malave ( 250 Conn. 722), the defendant was not entitled to such an instruction under any circumstances; accordingly, the judgment of the trial court was affirmed.
Argued November 1, 1999
Officially released July 18, 2000
Substitute information charging the defendant with the crimes of assault in the first degree, conspiracy to commit assault in the first degree, commission of a class A, B or C felony with a firearm, carrying a pistol without a permit and risk of injury to a child, brought to the Superior Court in the judicial district of New Haven, and tried to the jury before Licari, J.; verdict and judgment of guilty of assault in the first degree, carrying a pistol without a permit and risk of injury to a child, from which the defendant appealed to this court. Affirmed.
Eugene P. Falco, for the appellant (defendant).
Ronald G. Weller, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and James Dinnan, senior assistant state's attorney, for the appellee (state).
Opinion
The defendant, Kenyatta Woods, appeals from the judgment of conviction, rendered fol-lowing a jury trial, of assault in the first degree in viola-tion of General Statutes §§ 53a-59 (a)(1) and 53a-8, carrying a pistol without a permit in violation of General Statutes § 29-35 and risk of injury to a child in violation of General Statutes § 53-21 (1). The defendant claims that the trial court improperly declined to deliver a Secondino missing witness instruction. We affirm the judgment of the trial court.
Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960).
The sole issue on appeal is whether the trial court improperly refused to instruct the jury, pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960), that it could draw an adverse inference from the state's failure to call a witness. Subse-quent to the trial court's decision in the present case, but prior to oral argument in the Appellate Court, our Supreme Court decided State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999), cert. denied, U.S., 120 S.Ct. 1195, 145 L.Ed.2d 1099 (2000).
In Malave, our Supreme Court revisited the rule that allowed a jury to draw an adverse inference from the failure of a party to call a particular witness and concluded that "the time has come to abandon the missing witness rule." Id., 738. The Malave decision applies retroactively to this case. State v. Quinones, 56 Conn. App. 529, 533, 745 A.2d 191 (2000).
The trial court here declined to give the Secondino missing witness instruction. In view of Malave, we need not analyze whether that decision was correct because the defendant was not entitled to the instruction under any circumstances. See State v. Bailey, 56 Conn. App. 760, 762, 746 A.2d 194 (2000). Malave also renders it unnecessary for us to recite the facts of this case. Such recitation would serve no useful purpose because the only claim raised by the defendant concerns an eviden-tiary rule that is no longer viable in Connecticut.