State v. Malave

In State v. Malave, 250 Conn. 722, 739, 737 A.2d 442 (1999) the Court acknowledged two lines of cases that articulate the standard of review for harmless error. "One line of cases states that the defendant must establish that it is more probable than not that the erroneous action of the court affected the result. . . . Another line of cases states that the defendant must establish that the trial court error caused him substantial prejudice." Id. The court in Malave declined to resolve whether there was a functional difference between the two standards because it concluded that the defendant had failed to meet his burden under either standard in light of the "strong evidence" against him. State v. Malave, supra, 250 Conn. 741. In that case, the victim knew the defendant, identified him as the assailant to hospital personnel shortly after the crime and selected his photograph from a photographic display. A second victim also identified the defendant as the assailant at trial. The Court held that "we do not prohibit counsel from making appropriate comment, in closing arguments, about the absence of a particular witness, insofar as that witness' absence may reflect on the weakness of the opposing party's case. . . . Such comment is allowed as long as counsel does not directly exhort the jury to draw an adverse inference by virtue of the witness' absence . . . ." Id., 739. The Court held that it did not intend to "prohibit counsel from making appropriate comment, in closing arguments, about the absence of a particular witness, insofar as that witness' absence may reflect on the weakness of the opposing party's case." State v. Malave, supra, 250 Conn. at 739. Comments in closing argument that do "not directly exhort the jury to draw an adverse inference by virtue of the witness' absence" do not necessarily fall under the ambit of Secondino, and, accordingly, are not forbidden by Malave. Id. The court further stated that "of course, the trial court retains wide latitude to permit or preclude such a comment, and may, in its discretion, allow a party to adduce additional evidence relative to the missing witness issue." Id., 250 Conn. at 740.