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The Facts that a Witness Had Given a Statement to the Police and Was on the People’s Witness List Did Not Demonstrate the People Had Control Over the Witness—Request for Missing Witness Charge Properly Denied

The Second Department determined Supreme Court properly denied defendant’s request for a missing witness charge for the defendant’s roommate, who had witnessed the shooting and had given a statement to the police during the initial investigation.  The facts that the roommate had given a statement and was placed on the People’s witness list did not demonstrate control over the witness. Without evidence of such control (for example, a material witness order) a missing witness charge is not appropriate:

…[T]he roommate was not under the People’s control at the time of trial by virtue of having provided a statement to the police during the initial investigation stage of the case. In addition, control cannot be found from the People’s placement of the roommate on their witness list, as their wish for his testimony is not indicia of having control over him. There was no material witness order. Indeed, the record contains no evidence that the People’s relationship with the defendant’s roommate gave them any more control over him at trial than the defendant may have had himself.  People v Roseboro, 2015 NY Slip Op 03192, 2nd Dept 4-15-15

 

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Request for Missing-Witness Jury Instruction Should Have Been Granted—Prosecutor’s Statement that the Witness Would Exercise His Fifth Amendment Privilege Against Self-Incrimination Not Enough to Demonstrate Witness’ Unavailability

The Fourth Department granted defendant a new trial because the defense request for a missing witness jury instruction was denied.  The witness, who had testified before the grand jury,  was the only eyewitness to the relevant events.  The prosecutor argued the witness was unavailable because he would assert his Fifth Amendment privilege against self-incrimination.  The Fourth Department determined the witness’ unavailablity was not sufficiently established:

Contrary to the People’s contention, they failed to establish that the eyewitness was unavailable. Although the People correctly note that “a witness who on Fifth Amendment grounds refuses to testify will be considered unavailable’ although the witness’s presence is known and apparent” …, the People failed to establish that the eyewitness was unavailable on that ground. An uncharged accomplice may be considered unavailable in certain circumstances …, but the statements made by the prosecutor were not sufficient to establish that the eyewitness was an accomplice or that he faced any criminal liability for his actions … . The People’s further contention that the prosecutor could not call the eyewitness inasmuch “as his attorney will have him plead the Fifth Amendment” is not supported by evidence in the record before us. It is well settled that a trial court “should . . . be reasonably sure that the witness will in fact invoke the privilege, and where there is doubt the witness should be brought before the court and asked the relevant questions” … . Here, the prosecutor did not call the eyewitness and there was no communication from the eyewitness’s attorney; thus, “there was no verification that [the eyewitness] would plead the Fifth Amendment on the stand” … . The People’s “bare allegation that the witness in question apparently’ would assert [his] Fifth Amendment privilege, in light of the attendant circumstances, did not render that witness unavailable” … . People v Fuqua, 2014 NY Slip Op 07784, 4th Dept 11-14-14

 

Judge’s Refusal to Grant a One-Day Adjournment to Allow Defendant to Present a Witness (After the Judge Granted the People’s Request for a Missing-Witness Jury Instruction) Was Reversible Error

The First Department reversed defendant’s conviction because the judge refused to grant defendant a one-day adjournment to bring in a witness after granting the People’s request for a missing-witness jury instruction:

Having granted the People’s request for the [missing witness] instruction, the court should have granted defendant a short adjournment. A missing witness issue “must be raised as soon as practicable so that the court can appropriately exercise its discretion and the parties can tailor their trial strategy”… . Here, the moving party raised the issue after defendant’s testimony, when the issue became apparent. The court should have then accorded the nonmoving party the opportunity to avoid the missing witness charge by calling the witness. Although defendant was willing to call the witness, the court effectively rendered the witness unavailable, thus negating the availability requirement for a missing witness charge.

The court apparently denied the adjournment on the ground that defendant should have anticipated the missing witness issue. However, an adjournment to the next day would have been reasonable under the circumstances. People v Manzi, 2014 NY Slip Op 00280, 1st Dept 1-16-14

 

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

 

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