Fontaine v. Coyle

• Citation: 174 Conn. 204,384 A.2d 616
• Court: Connecticut Supreme Court
• Decision Date: 24 January 1978
• Parties: Paul G. FONTAINE v. Eugene COYLE et al.

Page 616

384 A.2d 616

174 Conn. 204

Paul G. FONTAINE v. Eugene COYLE et al.

Supreme Court of Connecticut.

Argued Nov. 9, 1977.

Decided Jan. 24, 1978.

Ira B. Grudberg, New Haven, for appellant (plaintiff).

James F. Meenan, Asst. Corp. Counsel, Waterbury, with whom, on the brief, was William J. Sullivan, Corp. Counsel, Waterbury, for appellees (defendants).

Before HOUSE, C. J., and LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JJ.

HOUSE, Chief Justice.

This case arose from the circumstances surrounding the arrest of the plaintiff by two Waterbury police officers. The plaintiff sought damages from the two officers and the city of Waterbury, claiming that the arresting officers had negligently used excessive force in making the arrest, causing physical injury to the plaintiff. The trial resulted in a verdict for the defendants and the plaintiff has appealed from the judgment and has assigned error in the court's denial of his motion to set aside the verdict.

The sole issue raised on the appeal concerns one portion of the court's charge to the jury, and reference to certain facts in the case is necessary to place that issue in context. There was a conflict in the testimony, but there was evidence from which the jury could have found that prior to his arrest the plaintiff had been at a bar in Waterbury with William McNellis, Albert Langlais and Ronald Blake. The four men left the bar to go to a restaurant in Waterville, Blake riding as a passenger in the plaintiff's car, and McNellis and Langlais following in another car. En route to the restaurant, the plaintiff's car was pursued by the police, shots were fired and the car was stopped. The officers testified that the plaintiff was verbally abusive, shoved one of them, physically threatened and attacked them, and grabbed the gun of one of the officers. The officers also testified that, in the course of a struggle over the weapon, the plaintiff was struck on the head, but they denied kicking or otherwise striking the plaintiff. At the trial, Langlais testified about the incident. He supported the plaintiff's testimony about the plaintiff having been struck on the head and pummeled by the police officers, and he testified that when he and McNellis arrived on the scene McNellis went to help the plaintiff and he, being afraid, left in McNellis' car. The police officers testified that McNellis charged into them and a scuffle ensued at which time McNellis was also subdued and arrested. Neither Blake nor McNellis testified at the trial. The plaintiff testified that he had not seen Blake for approximately five years and had no idea where he was and that McNellis was out of the state. On cross-examination, the plaintiff admitted that he knew that McNellis was in the federal penitentiary in Atlanta, Georgia, and that he had visited McNellis there within the prior two weeks. It also appears that in answer to a motion for interrogatories filed by the defendants before the trial, William McNellis was listed by plaintiff's counsel as a witness for the plaintiff.

During the course of its lengthy charge, the court included what has come to be known as the "Secondino charge," by reason of its use discussed in the case of Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598, and our many subsequent discussions of that charge. See, for example, Shea v. Tousignant, 172 Conn. 54, 58, 372 A.2d 151; Zack v. Guzauskas, 171 Conn. 98, 102, 368 A.2d 193; Maciejewska v. Lombard Bros., Inc., 171 Conn. 35, 43, 368 A.2d 206; Doran v. Wolk, 170 Conn. 226, 229, 365 A.2d 1190; State v. Brown, 169 Conn. 692, 704, 364 A.2d 186; State v. Annunziato, 169 Conn. 517, 536, 363 A.2d 1011; and Bell v. Bihary, 168 Conn. 269, 271, 362 A.2d 963.

Because the correctness of this portion of the charge in the circumstances of the case is the sole issue on the appeal, we quote it in full. ¹ The plaintiff took exception to the charge as follows: "I would take exception to your Honor giving of the Secondino Charge concerning the witness McNellis who, testimony indicated, is in the state of Georgia in the Federal Penitentiary there. It is my claim that the possibility of spending large sums of money and going out of the state to take such a deposition is not equal to the term 'available' as set forth in the Secondino Charge and under those circumstances the jury should either have been charged it would be my claim that the charge should not have been given at all because the evidence showed that he was unavailable but at the very least the jury should have been given the right to find that his being in Georgia made him unavailable."

Assuming that, under the circumstances, the defendants were entitled to a Secondino charge, we conclude that there is, nevertheless, merit to the plaintiff's claim that the court erred in telling the jury that McNellis, "as far as this court is concerned, is available, not necessarily in person, but by deposition." It is true that the court thereafter instructed the jury that "if you believe that William McNellis was one who would naturally have been produced to testify in this particular case, and if you believe he was available by virtue of the testimony that has been brought out here," then they had a right to draw an inference that his testimony would have been unfavorable to the plaintiff. It is also probably true that it was the court's intention merely to inform the jury that the fact of McNellis' imprisonment did not, as a matter of law, render him unavailable as a witness, since his testimony could have been presented by deposition even if he could not be personally present at the trial. Nevertheless, whether McNellis was an available witness and whether he was one that the plaintiff would naturally have produced were questions of fact for the jury to determine as conditions precedent to drawing any adverse inference from his absence. His availability as a witness was a fact to be shown by the defendants as the parties to be benefited by the inference; Maciejewska v. Lombard Bros., Inc., supra; Doran v. Wolk, supra, 170 Conn. 229-30, 365 A.2d 1190; and the question of his availability should have been left for the jury to decide without the court's observation that "as far as this court is concerned" McNellis was available.

Although this decision is dispositive of the merits of this appeal, the circumstances of this case prompt us to comment on the increasing frequency with which appeals involving the questionable use of the Secondino charge have come before us. The principles inherent in the charge are sound but it is not every case in which a possible witness is not presented that a charge on the adverse inference rule is justified or permissible. If a jury finds that the witness' testimony would not be material or substantial to the case, they are not permitted to draw an adverse inference from his absence from the trial. Bell v. Bihary, supra, 168 Conn. 272, 362 A.2d 963. As we noted in State v. Brown, supra, 169 Conn. 705, 364 A.2d 194: "A possible witness whose testimony is for any reason comparatively unimportant, cumulative or inferior to what has been offered should be dispensed with on the general ground of expense and inconvenience, without anticipation that an inference may be invoked. 2 Wigmore . . . (Evidence (3d Ed.)) § 287." In the circumstances of that case, we added: "In the absence of a special showing, there is nothing 'peculiar or superior' about the testimony to be expected from analysts who participate in the...