People v. Ortiz, 84 N.Y.2d 986 (1994)
A missing witness instruction is not warranted when the uncalled witness’s testimony would be merely cumulative of other evidence presented at trial.
Summary
Ortiz was convicted of drug charges stemming from a buy-and-bust operation. He appealed, arguing the trial court erred by denying his request for a missing witness instruction regarding a nontestifying police officer who was present near the scene of the crime. The New York Court of Appeals affirmed the conviction, holding that the trial court did not err in refusing the instruction because the officer’s testimony would have been cumulative, given the testimony of the purchasing undercover officer and the arresting officer who testified on identification. This case highlights the court’s discretion in evaluating whether a missing witness instruction is appropriate based on the potential contribution of the witness’s testimony.
Facts
An undercover officer purchased two vials of cocaine from Ortiz during a buy-and-bust operation in a drug-prone area. The undercover officer’s partner was in an unmarked car nearby. The purchasing officer testified he approached Ortiz after a codefendant yelled “Blue Tops.” Ortiz handed the drugs to the officer in exchange for prerecorded buy money. A back-up team then arrested Ortiz and the codefendant.
Procedural History
Ortiz was convicted at trial. He appealed, arguing the trial court erred in denying his request for a missing witness instruction. The Appellate Division affirmed the judgment of conviction. Ortiz then appealed to the New York Court of Appeals, which granted leave to appeal.
Issue(s)
Whether the trial court committed reversible error by denying the defendant’s request for a missing witness instruction regarding a nontestifying police officer who was present near the scene of the crime.
Holding
No, because it was not unreasonable for the trial court to refuse to give the requested instruction on the ground that the nontestifying undercover officer’s testimony would have added only cumulative evidence.
Court’s Reasoning
The Court of Appeals reasoned that the trial court did not err in denying the missing witness instruction because the nontestifying officer’s testimony would have been cumulative. The purchasing undercover officer and the arresting officer had already testified about the identification aspects of the case. The court emphasized that the trial court weighed the entirety of the People’s proof in making its ruling and did not shift any burdens. The court cited People v. Gonzalez, 68 N.Y.2d 424, 430 and People v. Macana, 84 N.Y.2d 173, 177 in support of its decision. The decision highlights the discretion afforded to the trial court in determining whether a missing witness instruction is warranted. The court determined that the trial court’s decision was well-informed and supportable, based on the record. The court implicitly acknowledged the missing witness rule, which allows a jury to draw an adverse inference when a party fails to call a witness under their control who could offer material testimony, but emphasized that this rule does not apply when the witness’s testimony would be merely cumulative. This reflects a policy consideration that trials should be fair and efficient, and that cumulative evidence should be avoided.