Opinion
(5257)
Argued June 2, 1987
Decision released June 30, 1987
Information charging the defendant with the crimes of possession of cocaine with intent to sell and possession of cocaine, brought to the Superior Court in the judicial district of Fairfield and tried to the jury before Maiocco, J.; verdict of guilty of the crime of possession of cocaine with intent to sell; thereafter, the defendant was charged by supplemental information with the crime of being a subsequent narcotics offender, and was presented to the court on a plea of nolo contendere; judgment of guilty of possession of cocaine with intent to sell and of being a subsequent narcotics offender, from which the defendant appealed to this court. No error.
William R. Schipul, assistant public defender, with whom, on the brief, was William Holden, public defender, for the appellant (defendant).
Richard F. Jacobson, assistant state's attorney, with whom, on the brief, were Donald A. Browne, state's attorney, and John Smriga, assistant state's attorney, for the appellee (state).
The sole issue of this case is whether the trial court erred in failing to instruct the jury that an adverse inference could be drawn from the state's failure to produce five witnesses. The failure of a party to produce a witness who is available and who would naturally be produced, permits an inference that the evidence which that witness would have given would be unfavorable to that party. State v. Miles, 195 Conn. 552, 556, 489 A.2d 373 (1985); Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960).
Any testimony of the witnesses which the defendant claims the state should have produced would have been cumulative, inferior, or relatively unimportant and the defendant, therefore, was not entitled to such an instruction. State v. Miles, supra. None of the witnesses had peculiar or superior material information. See Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 190, 510 A.2d 972 (1986).