State v. Shashaty

• Citation: 205 Conn. 39,529 A.2d 1308
• Decision Date: 18 August 1987
• Docket Number: No. 13061,13061
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Timothy C. SHASHATY.

Page 1308

529 A.2d 1308

205 Conn. 39

STATE of Connecticut v. Timothy C. SHASHATY.

No. 13061.

Supreme Court of Connecticut.

Argued June 4, 1987.

Decided Aug. 18, 1987.

John R. Williams, New Haven, for appellant (defendant).

Steven M. Sellers, Asst. State's Atty., with whom, on brief, were John J. Kelly, State's Atty., and James G. Clark, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN and COVELLO, JJ.

SHEA, Associate Justice.

The Appellate Court upheld the judgment of the trial court rendered in accordance with a jury verdict finding the defendant guilty of the crimes of sexual assault in the first degree, in violation of General Statutes § 53a-70(a), and unlawful restraint in the first degree, in violation of General Statutes § 53a-95(a). State v. Shashaty, 8 Conn.App. 387, 513 A.2d 172 (1986). The Appellate Court ruled that the trial court had committed harmless error in (1) giving the jury an unwarranted "missing witness" instruction, and (2) permitting the state to introduce evidence of the defendant's silence prior to his arrest but after receiving Miranda warnings. Having certified this appeal, we affirm the judgment of the Appellate Court.

Although the facts that the jury could reasonably have found are set forth in State v. Shashaty, supra, we summarize those pertinent to the issues in this appeal. On March 6, 1983, the victim, an eighteen year old high school girl, attended a party at a friend's home in Milford. The defendant, Timothy C. Shashaty, who had never met the victim before, also attended the party. At about 9 p.m. the defendant borrowed a car and drove the victim to a store to purchase cigarettes, at which time the two engaged in "just small talk." Later in the evening, at about 11 p.m., after the victim had fought with another guest over the disappearance of the victim's purse, the defendant spoke with the victim, who had locked herself in the bathroom, for about ten minutes. When the victim went back downstairs, the two spoke again for about thirty minutes, during which time the defendant "tried to kiss [her] a few times." After resisting the defendant's advances, the victim, sometime between 12:30 and 1 a.m., left the party and began to walk home.

The defendant followed the victim and caught up with her on Gulf Street. When the victim rebuffed the defendant's demand that she walk with him, the defendant lifted her onto his shoulders and started walking down the street. In response to the victim's screams, the defendant stated, "If I put you down, you have to let me hold your hand and walk with you." The victim acceded to the defendant's demand, and the two walked hand-in-hand for a while. When the victim eventually indicated that, in order to go home, she had to turn left, the defendant picked her up once again and, ignoring her screams, carried her toward the right. The defendant took the victim across New Haven Avenue to the yard of a house, dropped her to the ground, partially removed her pants, and forced her to have sexual relations with him.

Four days later, on March 10, 1983, two Milford police officers drove to the defendant's home and "informed him that his name had come up in an investigation." One of the officers, William Graham, asked the defendant whether he would agree to meet at the police station later in the day to discuss the matter. The defendant agreed and went to the station that afternoon. At the subsequent interview, Graham initially told the defendant that "he was not under arrest and he could leave any time. He was free to go." The defendant then gave an oral statement accounting for his time on the night of the assault. Prior to signing the typewritten transcript of that account, the defendant was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 467-79, 86 S.Ct. 1602, 1624-30, 16 L.Ed.2d 694 (1966), and then signed a standard waiver form.

In his written statement of March 10, 1983, the defendant denied any involvement in the sexual assault. He stated that he had left the party at about 1 a.m. with his girlfriend, and two other guests. The defendant stated that the four had departed in a car, and that he had been taken directly home and had gone straight to bed.

The defendant was arrested on March 23, 1983, after being formally charged in a two count information with the crimes of sexual assault in the first degree and unlawful restraint in the first degree. At the trial, the three persons with whom the defendant, in his March 10, 1983 statement, said that he had been driven home, testified that he had remained at the party after they had departed. The party hostess testified similarly. The defendant, testifying in his own behalf, stated that he had hitchhiked home after leaving the party and that someone named Mark had picked him up and driven him home. The defendant was convicted of the crimes charged and sentenced to a total term of six years. From the Appellate Court judgment affirming the judgment of the trial court, the defendant has brought the present appeal.

I

The defendant first claims that the Appellate Court erred in ruling that the unwarranted "missing witness" instruction given by the trial court constituted harmless error. The trial court charged the jury as follows: "It is the law of the state that the failure of a party to call a witness or witnesses who are within its power to produce entitles you, the jury, to infer that the testimony of such witness or witnesses would be unfavorable to that party.

"In this case, the defendant testified that, after leaving the party ... he hitchhiked and received a ride from a person whose first name he knew to be Mark. Consistent with the rule I have just stated, you may consider the failure of the defendant to call this person."

The missing witness instruction is commonly known as the "Secondino charge," by virtue of this court's holding in Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). The Secondino court reiterated the rule that " '[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.' " Id., 675, 165 A.2d 598; Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928). "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." Secondino v. New Haven Gas Co., supra; see State v. Roma, 199 Conn. 110, 120, 505 A.2d 717 (1986); State v. Hart, 198 Conn. 424, 428, 503 A.2d 588 (1986).

The state concedes that the Secondino charge given by the trial court in the present case was both unwarranted and incorrect as a matter of law. First, the state offered no evidence in support of the instruction to show that the missing witness, Mark, was available. See State v. Boyd, 178 Conn. 600, 605, 424 A.2d 279 (1979); State v. Long, 171 Conn. 18, 21, 368 A.2d 199 (1976). Second, the instruction as delivered did not adequately apprise the jury of both prongs of the Secondino rule. See Secondino v. New Haven Gas Co., supra, 147 Conn. at 676-77, 165 A.2d 598. To require a reversal, however, error must be harmful. Id. 677, 165 A.2d 598.

The Appellate Court reasoned that, "[b]ecause the defendant's claim of error involves only an evidentiary matter, and not the violation of a constitutional right, the burden of proving the harmfulness of the charge rests upon the defendant." State v. Shashaty, supra, 8 Conn.App. at 391-92, 513 A.2d 172. In this appeal the defendant suggests that the Secondino charge, "even if otherwise proper under local rules of evidence," implicates constitutional rights because "it violates the presumption of innocence and shifts the burden of proof from the prosecution to the defendant." This court, however, has held to the contrary. See State v. Annunziato, 169 Conn. 517, 538, 363 A.2d 1011 (1975); see also 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). We have recognized, moreover, that the evidentiary basis for the Secondino inference derives from the maxim that " 'all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted.' " Ezzo v. Geremiah, supra, quoting Blatch v. Archer, 1 Cowper 63, 65 (1774) (Lord Mansfield); see also Throckmorton v. Chapman, 65 Conn. 441, 454, 32 A. 930 (1895). Accordingly, we agree with the Appellate Court that, because the erroneous instruction engenders a claim arising under state law and does not involve any constitutional right, the defendant bears the burden of proving harmful error. See State v. Silva, 201 Conn. 244, 250, 513 A.2d 1202 (1986); State v. Conroy, 194 Conn. 623, 627, 484 A.2d 448 (1984).

In order to meet his burden of proving that the unwarranted Secondino charge constituted harmful error, the defendant must show that the charge was likely to have affected the verdict. State v. Brown, 187 Conn. 602, 611, 447 A.2d 734 (1982); State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976). This he has not done. The state's case against the defendant was a strong one. See generally State v. Gonzalez, 197 Conn. 677, 682-83, 500 A.2d 1330 (1985). The victim positively identified the defendant as her attacker. Further, the condition of the clothing worn by the victim the evening of March 6, 1983, which the state introduced into evidence, tended to corroborate the victim's version of the facts. Her sweater and slacks were stained with soil and grass, and traces of sperm were found on her underwear. Additionally, the credibility of the defendant had already been significantly damaged when he admitted, while being cross-examined, that his statements to the police on March 10, 1983, had been lies. In the light of...