State v. Dawkins

• Decision Date: 17 October 1996
• Docket Number: No. 13543,13543
• Citation: 42 Conn.App. 810,681 A.2d 989
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Scott DAWKINS.

Page 989

681 A.2d 989

42 Conn.App. 810

STATE of Connecticut v. Scott DAWKINS.

No. 13543.

Appellate Court of Connecticut.

Argued Feb. 28, 1996.

Decided Sept. 3, 1996.

Certification Denied Oct. 17, 1996. ^*

Neal Cone, Assistant Public defender, for appellant (defendant).

John A. East III, Deputy Assistant State's Attorney, with whom, on the brief, were James E. Thomas, State's Attorney, and Stephen Preleski, Assistant State's Attorney, for appellee (State).

Before EDWARD Y. O'CONNELL, FOTI and SCHALLER, JJ.

SCHALLER, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), larceny in the second degree in violation of General Statutes § 53a-123(a)(3) and assault in the third degree in violation of General Statutes § 53a-61. The defendant claims that the trial court improperly (1) instructed the jury that an adverse inference could be drawn from the defendant's failure to produce his sister, Mina Dawkins, and her boyfriend, Norman Ramsey, as witnesses, (2) admitted evidence of the defendant's prior larceny convictions for impeachment purposes, and (3) instructed the jury regarding the standard of reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 23, 1993, the victim, Cheryl Michaud, arrived at BJ's Wholesale Club in Hartford at approximately 8:15 p.m. After completing her shopping at approximately 8:48 p.m., she left the store and loaded her purchases into her car. While she was returning her shopping cart, it became stuck in a sewer grate. The defendant approached the victim from the direction of the cart storage area as she attempted to free the cart. The defendant asked the victim if he could use her cart, and she agreed. The defendant asked the victim if she wanted twenty-five cents for the cart deposit, and she declined. The defendant withdrew a small black handgun from his coat pocket, pushed it into the victim's back and told her not to scream or he would shoot her. With the gun pressed against the victim's back, the defendant pushed the victim toward her car and attempted to force her into the car. When the victim refused, the defendant struck her in the back. He then took the victim's wedding band, her engagement ring and $5.75. The defendant walked away into a wooded area next to the parking lot.

I

The defendant first claims that the trial court improperly delivered an adverse missing witness instruction to the jury and improperly allowed the state to present an adverse inference argument. We disagree.

At trial, the defendant attempted to establish an alibi defense. The defendant and Mildred Dawkins, his mother, testified to the following. The defendant lived with his mother, and he had been at home with his mother at the time of the robbery. On the night in question, Mina Dawkins and Ramsey picked up the defendant and his mother between 5 and 6 p.m. and drove them to visit Mildred Dawkins' aunt. They remained at the aunt's house for approximately ninety minutes and returned home with Mina Dawkins and Ramsey sometime between 6:30 and 7:45 p.m. The defendant remained inside the house the rest of the night. Mina Dawkins and Ramsey lived in nearby communities and were "available" at the time of trial. ¹

The defendant did not call either Mina Dawkins or Ramsey as witnesses. The state requested that the trial court give the jury an adverse inference instruction pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), because the defendant had failed to produce these two witnesses in support of his defense. The court gave an adverse inference instruction, as requested by the state, in its charge to the jury. The court, over the defendant's objection, also allowed the state to argue to the jury that the defendant's failure to produce the two witnesses permitted an adverse inference. We conclude that the trial court properly gave the requested charge and that the state, therefore, could argue the inference to the jury.

In Secondino, our Supreme Court stated the conditions under which an adverse inference instruction is appropriate. " 'The 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.' ... There are two requirements for the operation of the rule: The witness must be available, and he must be a witness whom the party would naturally produce.... A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce." (Citations omitted.) Id., at 675, 165 A.2d 598; Hines v. St. Vincent's Medical Center, 232 Conn. 632, 637, 657 A.2d 578 (1995); State v. Grant, 221 Conn. 93, 105-106, 602 A.2d 581 (1992). The Secondino rule applies to criminal prosecutions. State v. Grant, supra, at 105, 602 A.2d 581; State v. Watley, 195 Conn. 485, 488, 488 A.2d 1245 (1985). A trial court's adverse inference instruction will not be disturbed absent an abuse of discretion. State v. Grant, supra, at 106, 602 A.2d 581.

The defendant argues that Mina Dawkins and Ramsey were not alibi witnesses who would naturally be produced because they could not testify that the defendant was in his mother's house at the time of the robbery. Mina Dawkins and Ramsey brought the defendant and his mother home from the aunt's house on the night of the robbery. The defendant's alibi defense relies heavily on his and his mother's testimony and that testimony would have become more credible if other witnesses had corroborated a substantial part of it. The testimony did not relate to an isolated incident, but, instead, involved a series of events related to the facts of the alibi defense. This was an identification case, and the defendant's alibi was crucial. Only Mina Dawkins and Ramsey could corroborate the testimony regarding the defendant's alibi.

"The testimony of several witnesses in support of an alibi defense can hardly be characterized as unimportant or cumulative." State v. Grant, supra, 221 Conn. at 106, 602 A.2d 581. The credibility of the defendant's mother was cast into doubt by her relationship to the defendant. See id. The defendant's failure to call either Mina Dawkins or Ramsey to corroborate, at least in part, both his testimony and that of his mother as to events occurring on the evening of the robbery, especially given the strong and contradictory evidence presented by the state through the testimony of the victim, was a significant circumstance to call to the attention of the jury. See id. The trial court, therefore, did not abuse its discretion in giving the Secondino charge.

If the instruction were deemed improper, the burden of demonstrating its harmfulness would still rest with the defendant. State v. Ross, 230 Conn. 183, 215, 646 A.2d 1318 (1994), cert. denied, --- U.S. ----, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995). The defendant must prove that the trial court improperly instructed the jury and that the instruction probably affected the result of the trial. State v. Buster, 224 Conn. 546, 561, 620 A.2d 110 (1993). The harmfulness of a nonconstitutional error is evaluated on the record as a whole. State v. Ross, supra, at 215, 646 A.2d 1318. "An improper instruction is not automatically harmful merely because it adversely affects a defense." Id.; State v. Cooper, 182 Conn. 207, 212-14, 438 A.2d 418 (1980).

Even if the defendant had demonstrated that the Secondino instruction was improper, he has not demonstrated that it affected the outcome of the trial. First, the defendant's testimony is suspect as self-serving, and the testimony of his mother is suspect due to her familial bias. Second, the victim positively identified the defendant as the robber on three separate occasions, over a one year time period, as the man who had robbed her. Third, the trial court clearly instructed the jury that it was permitted, but not required, to draw an adverse inference. ² Even if the jury determined that the testimony of the missing witnesses was not reasonably and logically connected to the question of whether the defendant was present at the scene of the robbery, it could find the defendant guilty by believing the testimony of the victim over that of the defendant and his mother.

The defendant also claims that the giving of a Secondino instruction in a criminal case where the defendant advances an alibi defense violates his constitutional right to due process. The defendant did not raise this claim at trial, but seeks review on appeal pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We find no merit in this claim. ³

The defendant cannot satisfy the second prong of Golding, that the claim is of constitutional magnitude involving the violation of a fundamental constitutional right. "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). "[O]nce identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed." State v. Golding, supra, 213 Conn. at 241, 567 A.2d 823. A long line of cases addressing the identical argument concerning the violation of a constitutional right by the giving of a Secondino instruction rejects the defendant's argument. See State v. Shashaty, 205 Conn. 39, 43-44, 529 A.2d 1308 (1987), cert. denied, 484 U.S. 1027, 108 S.Ct. 753, 98 L.Ed.2d 766 (1988); State v. Peary, 176 Conn. 170, 182, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S.Ct. 2417, 60 L.Ed.2d 1072 (1979); State v. Annunziato, 169...