No Need to Request Missing Witness Charge to Argue Absence of Witness to Jury

The Court of Appeals, in a full-fledged opinion by Judge Smith, determined the trial court erred in ruling defense counsel could not argue to the jury that a witness should have been called by the People because defense counsel did not request a missing witness charge (the error was, however, deemed harmless).  The complainant’s statement did not mention an anal penetration which was the subject of trial evidence. When asked why the incident was not mentioned in the statement, the complainant said the police officer taking the statement told her no judge would believe that happened.  The officer did not testify.  The Court of Appeals wrote:

In his summation, defense counsel argued that this part of the complainant’s testimony was incredible. “We’ve changed as a society,” he argued. “No police officer is going to come up there and say, ‘Oh, no one is going to believe you, this was your boyfriend.’ That’s not where we are today.” That part of his argument drew no objection. But the prosecutor did object when counsel added: “And if that’s, in fact, what that police officer said, then where was he, where was that police officer on the stand to say: You know what, I didn’t write it down. I didn’t think she was telling me the truth. He didn’t testify to that.” The trial court sustained the objection and directed the jury to disregard counsel’s comment. Counsel tried again to make the missing witness argument, with the same result.

After summations, defendant moved for a mistrial on the basis of this ruling. The court denied the motion, saying that counsel should have asked for a missing witness instruction if he wanted to make a missing witness argument… .

The courts below clearly erred in holding that defense counsel’s missing witness argument was improper. The trial court’s theory, that a request for a missing witness instruction is a prerequisite to a missing witness argument is, as the Appellate Division recognized, flatly contrary to what we said in Williams (5 NY3d at 734). The Appellate Division affirmed on the alternative grounds that the officer’s testimony may have been cumulative and defendant failed to make an offer of proof. This approach may have been impermissible under People v LaFontaine (92 NY2d 470 [1998]) and People v Concepcion (17 NY3d 192 [2011]).

Just before making the missing witness argument, counsel had attacked as incredible the complainant’s uncorroborated testimony as to what the officer said to her; confirmation of that testimony from the officer would not have been cumulative ….. And counsel had no obligation to make an offer of proof as a predicate for a missing witness argument. It is a premise of such an argument, as it is of a missing witness instruction, that the witness is in the control of the party that failed to call him … A party making such an argument, like one requesting such an instruction, “can hardly know what [the] witness knows or what the witness would say if called” … .  People v Thomas, No 108, CtApp, 6-4-13