People v. Kitching, 78 N.Y.2d 532 (1991)
A defendant is entitled to a missing witness charge if they make a prima facie showing that the uncalled witness possessed knowledge on a critical issue and the People fail to account for the witness’s absence or demonstrate the charge is inappropriate.
Summary
The New York Court of Appeals affirmed the Appellate Division’s order, holding that the trial court erred in refusing to give a “missing witness” charge. The defendant had demonstrated that an uncalled police officer possessed knowledge about whether the defendant sold drugs, a critical issue in the case. The prosecution failed to show that the witness lacked requisite knowledge, that the knowledge was immaterial, or that the testimony would be cumulative. The Court of Appeals also noted that the People’s argument regarding the untimeliness of the request was not preserved for review as it was not raised at trial.
Facts
The defendant was accused of selling drugs. A police officer was present and observed the alleged transaction. This officer was not called as a witness by the prosecution at trial. The defendant requested a “missing witness” charge, arguing the officer could provide relevant testimony about the identity of the drug seller.
Procedural History
The trial court refused to give the missing witness charge. The defendant was convicted. The Appellate Division reversed the conviction, finding the refusal to give the charge was reversible error. The People appealed to the New York Court of Appeals.
Issue(s)
Whether the trial court erred in refusing to give a missing witness charge when the defendant made a prima facie showing that the uncalled witness possessed knowledge on a critical issue in the case.
Holding
Yes, because the defendant made a prima facie showing that the uncalled witness possessed knowledge on the critical issue, and the People failed to account for the witness’s absence or demonstrate that the charge would be inappropriate.
Court’s Reasoning
The Court of Appeals relied on its prior decision in People v. Gonzalez, 68 NY2d 424, which established the framework for determining entitlement to a missing witness charge. The Court reiterated that the defendant bears the initial burden of making a prima facie showing of entitlement. Once this showing is made, “the court must give the charge unless the People either ‘account for the witness’ absence or otherwise demonstrate that the charge would not be appropriate’ (id., at 428).”
The Court found that the defendant met this burden by demonstrating the uncalled officer was in a position to observe the transaction and determine whether the defendant was the drug seller. The burden then shifted to the People to demonstrate why the charge was inappropriate.
The People could have defeated the request by showing that the missing witness did not have the requisite knowledge, that the issues about which he had knowledge were not material or relevant, or that the testimony would have been cumulative. However, the People failed to advance any of these arguments at trial. The Court explicitly stated, “Here, the evidence showed that the uncalled officer was in a position to observe the transaction and to determine whether defendant was the drug seller.”
The Court also addressed the People’s argument, raised for the first time on appeal, that the defendant’s request was untimely. The Court held that this argument was not preserved for review because it was not raised at trial. The Court cited precedent that issues not raised at trial are not preserved for appellate review (People v Tabarez, 69 NY2d 663; People v Villani, 59 NY2d 781, 783-784).
This case serves as a reminder to prosecutors to address missing witness charge requests directly and comprehensively at trial. Failing to do so can result in reversible error and a new trial for the defendant. For defense attorneys, this case highlights the importance of making a clear record regarding the potential testimony of the missing witness and preserving objections to the court’s ruling.