State v. Woods
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** STATE OF CONNECTICUT v. KENYATTA WOODS (AC 17664) Landau, Mihalakos and Spallone, Js. Argued November 1, 1999 officially released July 18, 2000 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 SPALLONE, J. The defendant, Kenyatta Woods, appeals from the judgment of conviction, rendered following a jury trial, of assault in the first degree in violation 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 Secondino1 missing witness instruction. We affirm the judgment of the trial court. 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. Subsequent 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 evidentiary rule that is no longer viable in Connecticut. The judgment is affirmed. In this opinion the other judges concurred. 1 Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960).
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