State v. Conroy

¶1concurring. I agree with the court’s opinion except for the Catch-22 that has been created by relying upon the failure of the defendant to prove the unavailability of Lawrence Munko as a ground for excluding his hearsay statements against penal interest and, next, upon the failure to establish Munko’s availability as a prerequisite to a request for a ‘missing witness’ charge. Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). It defies logic to presume that Munko was available and unavailable at the same time, as if we could have it both ways. Courts ought not to indulge in such convenient fictions.

¶2*634I concur with the court’s disposition of the claim for admission of the statements against penal interest because of the failure to show that Munko was not available to testify. With respect to the claim of admissibility of the statements as a basis for requesting a Secondinocharge, (1) no such ground of admissibility was raised at trial as required by Practice Book § 288;1 (2) since an essential prerequisite for the penal interest exception to the hearsay rule was not established, the evidence was inadmissible for any purpose; and (3) even if responses to the questions relating to Munko’s involvement in this crime had been permitted, the circumstance of his complicity, which they might have elicited, would not indicate that his relationship to the state was such that the state could naturally have been expected to produce his testimony. Contrary to the position taken in a footnote of the opinion,2 that “Munko was a witness whom the state would naturally have been expected to call,” his status as a possible accomplice would not warrant a charge that an unfavorable inference should be drawn because of the failure of the state to produce him. Unless an accomplice has turned state’s evidence by implicating a defendant, the state can hardly be expected to call him as a witness. It would be closer to reality to draw an adverse inference against the defendant for failing to produce a witness who conceivably might have exculpated him.

¶3Accordingly, I agree with the result.