People v. Rodriguez, 38 N.Y.2d 95 (1975)

When a defendant fails to call a witness under their control who possesses material information about the case, the jury may consider this absence when assessing the strength of the opposing party’s evidence, provided there is no testimonial privilege that prevents the witness from testifying.

Summary

Rodriguez was convicted of weapon and drug possession. At trial, the judge commented on Rodriguez’s failure to call his wife, an eyewitness, to testify. The defense argued this was reversible error. The New York Court of Appeals affirmed the conviction, holding that because Rodriguez presented a defense and his wife’s testimony wasn’t privileged (due to a third party being present), the jury could consider her absence when evaluating the evidence. The court emphasized that this consideration doesn’t infringe on constitutional rights when the defendant has presented their own evidence and the witness is under their control.

Facts

On August 27, 1971, police officers were waiting to execute a search warrant on Rodriguez’s apartment. They observed Rodriguez’s car arrive. An officer, stationed outside the apartment, saw someone throw a bag out the window containing drugs and a revolver. The officers then entered the apartment and arrested Rodriguez. His wife and a friend, Onida Orengo, were present at the time. At trial, Rodriguez claimed the officers framed him and stole money. He denied throwing anything out of the window.

Procedural History

Rodriguez was convicted in a jury trial. The Appellate Division unanimously affirmed the conviction. Rodriguez then appealed to the New York Court of Appeals, arguing that the trial judge erred by instructing the jury on his failure to call his wife as a witness.

Issue(s)

Whether the trial court committed reversible error by instructing the jury that it could consider Rodriguez’s failure to call his wife, an eyewitness to the events, as a witness, and in earlier highlighting comments on that fact.

Holding

No, because Rodriguez presented affirmative proof, his wife was under his control, her testimony was material, and her testimony was not subject to a testimonial privilege.

Court’s Reasoning

The Court of Appeals reasoned that while a court generally cannot comment on a defendant’s failure to testify or present evidence, once a defendant does so, the failure to call an available witness under their control with material information can be brought to the jury’s attention. The court cited People v Leonardo, 199 NY 432, 436. The court noted this rule usually doesn’t apply when a witness is equally accessible to both parties, but can apply if the witness is favorable to one party and hostile to the other. The court stated that “the mere fact that an uncalled witness is the spouse of the accused does not alter the situation.” The marital privilege, designed to protect confidential communications arising from the marital relationship, didn’t apply here because a third party, Ms. Orengo, was present. Citing People v. Melski, 10 NY2d 78, the court specified that New York’s privilege is triggered where the testimony concerns a “confidential communication” “which would not have been made but for the absolute confidence in, and induced by, the marital relationship.” The court emphasized that the wife’s testimony wasn’t trivial and the issues were sharply disputed; her testimony could have made a difference. The court found that the jury was entitled to consider the fact that Rodriguez chose not to call a material witness under his control in assessing the strength of the evidence offered by the People.