People v. Savinon, 100 N.Y.2d 192 (2003)
A “missing witness” instruction, allowing the jury to draw an unfavorable inference from a party’s failure to call a witness, is appropriate where the witness’s knowledge is material, they are expected to give noncumulative testimony favorable to the party, and they are available to that party.
Summary
Savinon was convicted of rape. At trial, the prosecution requested a missing witness instruction because Savinon did not call Camacho, a friend and former employee who was present during the alleged rape. Savinon argued Camacho was unavailable because he feared deportation. The trial court granted the instruction, and the jury convicted Savinon. The New York Court of Appeals affirmed, holding that the trial court did not abuse its discretion in granting the missing witness instruction because Savinon failed to demonstrate that Camacho was truly unavailable and that Camacho’s relationship with Savinon suggested he would be a favorable witness.
Facts
The complainant and Savinon had a relationship prior to the alleged rape. On the night in question, Savinon and Luis “Flaco” Camacho took the complainant to a club. The complainant testified that Savinon left her to dance with another woman. Feeling ill, the complainant asked to leave, but Savinon refused. Camacho then escorted her outside. Later, Savinon, Camacho, and the complainant drove off together. Savinon began making sexual advances toward the complainant, which she resisted. Savinon then raped her in the back seat of the car. Savinon demanded that Camacho also rape the complainant, but Camacho refused. Camacho later took the complainant home. At trial, Savinon testified that the sexual encounter was consensual, with Camacho nearby. Neither side called Camacho as a witness.
Procedural History
Savinon was arrested and indicted for rape and related crimes. At trial, the People requested an adverse inference instruction because Savinon failed to call Camacho as a witness. The trial court granted the request. The jury found Savinon guilty. The Appellate Division affirmed, and a judge of the Court of Appeals granted Savinon leave to appeal. The Court of Appeals affirmed the Appellate Division’s order.
Issue(s)
Whether the trial court improperly granted the People’s request for an adverse inference instruction against Savinon for failing to call Camacho as a witness.
Holding
No, because Camacho’s testimony would have been material, Camacho was likely to be a favorable witness for Savinon, and Savinon failed to establish that Camacho was unavailable.
Court’s Reasoning
The Court of Appeals explained that the “missing witness” instruction allows a jury to draw an unfavorable inference based on a party’s failure to call a witness who would normally be expected to support that party’s version of events. The court cited People v. Gonzalez, stating that the instruction rests on “the commonsense notion that ‘the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.’” The court then outlined the three preconditions for the missing witness instruction, established in Gonzalez: (1) the witness’s knowledge must be material to the trial; (2) the witness must be expected to give noncumulative testimony favorable to the party against whom the charge is sought; and (3) the witness must be available to that party.
The court found that Camacho’s testimony was material and noncumulative. The court then addressed the availability element, noting that a litigant should not be penalized for failing to call a witness who is unavailable. The court stated, “Though a genuine inability to locate a witness will foreclose a missing witness instruction, a witness may be readily accessible and even in the courtroom but still be unavailable within the meaning of the rule.” In this case, the court determined that Savinon failed to demonstrate that Camacho was truly unavailable. The court reasoned that Savinon only communicated Camacho’s disinclination to testify through defense counsel, and counsel failed to subpoena Camacho. As such, the court found that the trial court did not abuse its discretion in determining that Camacho could have been produced if Savinon earnestly wanted him.
Finally, the court addressed the favorability element, noting that control “does not concern physical availability but rather the relationship between the witness and the parties.” The court stated that where there is “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 control element is satisfied. Here, the court found that Savinon and Camacho had been friends and business associates. Therefore, the trial court did not abuse its discretion in determining that the favorability element was met.