People v. Grannum, 175 A.D.2d 686 (1991)

A missing witness charge is warranted when a party fails to call a witness under their control who possesses material, non-cumulative evidence relevant to a critical issue in the case, and the opposing party demonstrates that the witness’s testimony would likely contradict or cast doubt on the proponent’s evidence.

Summary

The defendant was convicted of rape, but the conviction was overturned due to the trial court’s refusal to provide a missing witness charge regarding the complainant’s husband. The Court of Appeals determined that the husband’s testimony was material because it could provide insight into the complainant’s physical condition immediately after the alleged rape, an issue central to determining whether the intercourse was consensual or forced. The conflicting testimonies regarding the complainant’s injuries warranted the charge because the husband’s observations could either corroborate or contradict the existing evidence.

Facts

The defendant admitted to having intercourse with the complainant but claimed it was consensual. A friend of the complainant testified that when the complainant arrived at her home after the incident, she was “high” and excited and spoke about having had sex with the defendant. This friend also observed that the complainant’s lip was swollen, her blouse buttons were missing, and her pants zipper was broken. A police officer who interviewed the complainant several hours later noted more severe injuries, including a swollen and bloodshot eye, a bruised shoulder, and a swollen lip and cheek. The complainant’s husband did not testify at trial regarding his observations of her condition when she returned home the morning after the alleged rape.

Procedural History

The defendant was convicted of rape in the first degree in the trial court. The Appellate Division affirmed the conviction. The Court of Appeals reversed the Appellate Division’s order, vacated the conviction, and ordered a new trial.

Issue(s)

Whether the trial court erred in refusing to give a missing witness charge concerning the complainant’s husband, given his potential knowledge of her physical condition immediately after the alleged rape.

Holding

Yes, because the husband’s testimony was material to a critical issue in the case—the nature and extent of the complainant’s injuries immediately following the alleged rape—and could have contradicted or corroborated existing evidence regarding whether the intercourse was consensual.

Court’s Reasoning

The Court of Appeals reasoned that a missing witness charge is appropriate when the uncalled witness possesses knowledge about a material issue already presented to the jury. Here, the conflicting testimonies regarding the complainant’s injuries made her husband’s observations material. The court highlighted the differences between the friend’s account of the complainant’s condition shortly after the incident and the police officer’s later observations. The court noted that while corroboration is not strictly required in rape prosecutions, the husband’s testimony could have confirmed the People’s evidence of forcible compulsion given the conflicting accounts and impeachment of the complainant. The court also emphasized that the People failed to argue that the husband’s testimony would be cumulative at trial, precluding them from raising that argument on appeal. The court cited People v. Wright, 41 NY2d 172, 176, emphasizing that the defense counsel was entitled to comment on the People’s failure to call the husband as a witness and to receive an appropriate jury charge on his absence. The court stated, “[T]hus, it appeared complainant’s husband was knowledgeable about a material issue in the case: whether the physical injuries sustained by complainant, as observed by Officer Reilly many hours after the alleged rape, were also observed by him when complainant returned home before reporting the crime.” The court emphasized the importance of the husband’s testimony given the complainant’s fear of her husband and his anger towards her association with the defendant, suggesting a potential bias that could influence his observations and testimony. The missing witness rule allows the jury to infer that the uncalled witness’s testimony would not support the party’s version of the facts; the court found that this inference was particularly relevant and appropriate in this case.