People v. Keen, 94 N.Y.2d 533 (2000)

A missing witness charge is appropriate when a party fails to call a witness under their control who is knowledgeable about a material issue, and it would be natural to expect the party to call the witness to testify favorably.

Summary

Keith Keen was convicted of second-degree murder. On appeal, he argued that his waiver of his right to be present at sidebar conferences was invalid, that he was wrongly excluded from ex parte conferences with a potential witness, and that the trial court erred in giving a missing witness charge. The New York Court of Appeals affirmed the conviction, holding that Keen’s waiver was valid, his exclusion from the conferences was not improper, and the missing witness charge was properly given because the witness was under Keen’s control and could have been expected to testify favorably for him. The Court emphasized that the defense attorney’s opening statement indicated the witness’s anticipated testimony, reinforcing the expectation that she would be a favorable witness.

Facts

Keith Keen was convicted of murder. Before jury selection, Keen’s attorney waived Keen’s right to be present at sidebar conferences. During the trial, defense counsel requested two ex parte conferences with Charlotte Jordan, Keen’s ex-girlfriend and mother of his child, because he was concerned that she wouldn’t testify. At the first conference, Jordan expressed reluctance. During opening statements, defense counsel told the jury that Jordan would testify that she and Keen were arguing when they heard a gunshot. However, after another ex parte conference, defense counsel requested that Jordan be released from her subpoena. Keen testified that he was with Jordan when he heard the shot. The prosecution requested a “missing witness” charge because Keen did not call Jordan to testify.

Procedural History

The trial court convicted Keen of second-degree murder. The Appellate Division affirmed the conviction, with one justice dissenting. The dissenting justice granted Keen leave to appeal to the New York Court of Appeals.

Issue(s)

1. Whether Keen’s waiver of his right to be present at sidebar conferences was valid.
2. Whether Keen was denied his right to be present at the ex parte conferences with Jordan.
3. Whether the trial court erred in giving a missing witness charge based on Keen’s failure to call Jordan as a witness.

Holding

1. Yes, because the waiver occurred in open court after the trial judge articulated the substance of the right, and neither Keen nor his counsel objected to his absence at sidebar colloquies during the voir dire.
2. No, because the conferences were held at the behest of the defense, the People were excluded, and the conferences involved procedural matters.
3. No, because the People established that Jordan was knowledgeable about a material issue, was available, and could reasonably be inferred to be under Keen’s control, such that it would be expected she would testify favorably for him.

Court’s Reasoning

The Court found that Keen’s waiver of his right to be present at sidebar conferences was valid because it occurred in open court, and neither Keen nor his counsel objected to his absence during voir dire. The Court rejected Keen’s argument that he was denied the right to be present at the ex parte conferences because the conferences were held at the behest of the defense and involved procedural matters. Regarding the missing witness charge, the Court stated, “A missing witness charge is appropriate if it is shown that the party against whom the charge is given had the ability to locate and produce the witness and ‘there was such a relationship, in legal status or on the facts, as to make it natural to expect the party to have called the witness to testify in his favor’.” The Court emphasized the importance of “control” over the witness, stating that a witness under one party’s control is “in a pragmatic sense unavailable to the opposing party.” The court noted that defense counsel’s opening statement indicated Jordan would testify favorably, and Keen failed to rebut the People’s expectation that Jordan was under his control. Thus, the trial court did not err in instructing the jury that an unfavorable inference could be drawn from Keen’s failure to call Jordan. The court emphasized that “the ‘availability’ of a witness is a separate and distinct consideration from that of ‘control’.”