Opinion
Docket No. 2002KN042557.
Decided February 25, 2004.
Charles J. Hynes, District Attorney of Kings County (Amanda Plawner, of counsel) for People. Alden Lewis, for Defendant.
The defendant, Francis Jules, was arrested on July 6th, 2002 and pursuant to a domestic dispute with his spouse, Rachel Jules. The defendant was charged with violating Penal Law Section (hereinafter "PL §") 120.00, Assault in the Third Degree; 110/120.00; Attempted Assault in the Third Degree; 120.14, Menacing in the Second; and 240.26, Harassment in the Second. The defendant was arrested after a 911 call was made by Rachel Jules his spouse of eighteen years. The complaint alleged that the defendant, burned Ms. Jules, on the arm with a hot iron causing second degree burns. On July 29th, 2002, Ms. Jules signed a corroborating affidavit for the case swearing to the allegations contained in the complaint, but declined to cooperate further in the prosecution of the case.
A jury trial commenced on October 15th, 2003. During the trial the jury the heard the testimony of Police Officer Eric Chappell, who responded to the scene; (b) heard the 911 call placed by the victim, Ms. Jules, (c) saw photographs of the victims injuries, an iron-shaped burn wound in her arm, (d) saw the iron used to inflict the victims injuries, and (e) had the victims medical records to consider from her hospital visit the night she sustained said injury. However, Ms. Jules did not appear as a witness to testify at trial.
At the charging conference, before summations, defense counsel requested that the Court give a "missing witness" charge to the jury based on the People's failure to call Ms. Jules as a witness. The court denied the request, but allowed defense counsel to comment on the complainant's absence during summations. On October 17th, 2003, the defendant found guilty of violating P.L. §§ 120.00, 120.14 and 240.26 and the matter was adjourned for sentencing.
On January 7th, 2004, the defendant filed a motion to set aside the verdict pursuant to Criminal Procedure Law Section (hereinafter "C.P.L. §") 330.30 (1) on the grounds that failure to give the missing witness charge was reversible error.
Upon reading the defendant's motion, the People's Answer to Defendant's Motion to Set Aside the Verdict dated February 4th, 2004, the transcripts of the trial, the court documents and all annexed appendices and upon all the proceedings heretofore had herein and after due deliberation, the motion is denied for the reasons set forth below.
Analysis
C.P.L. § 330.30 delineates the grounds upon which a trial judge may set aside a verdict of guilty before a sentence. Defendant moves under CPL 330.30 (1) which provides in pertinent part that:
"At any time after the rendition of a verdict of guilty and before the sentence, the court may upon motion of the defendant, set aside or modify the verdict or any part thereof upon. . . . any ground appearing on the record which, if raised upon appeal from a prospective judge of conviction, would require reversal or modification of judgement as a matter of law by the appellate court."I. The Trial Court has Jurisdiction to Review Defendant's Motion as a Matter of Law
As a preliminary matter, the defendant argues that the court erred as a matter of law in refusing to administer a "missing witness" charge, and therefore, the motion is reviewable by the trial court.
In their Answer to Defendant's Motion, the People state that the authority of the trial court to reverse or modify the verdict is limited. The People assert that a review of the record shows that the jury heard evidence legally sufficient to support the verdict. Specifically, the People state that the jury was presented with evidence supporting every element of the crime, including: (1) testimony from Police Officer Eric Chappell; (2) the 911 call placed by the complaining witness Rachel Jules; (3) photos of the victims injuries, an iron-shaped burn wound to the victims arm; (4) the iron used to inflict the injury; (5) the medical records from the victims hospital visit the night she sustained the injury. The People argue that a viewing of this evidence most favorable to the People establishes every element of the crime. Therefore, a reversal by the appellate division would not be required as a matter of law since the evidence was legally sufficient to support the verdict.
Moreover, the People cite People v. Carter, 63 NY2d 530, 483 N.Y.S.2d 654 (1984) in stating that the trial court does not have the authority to set aside a verdict against the weight of the evidence, nor may it reconsider factual allegations. Finally, the People argue that the defendant's motion does not raise questions of law reviewable by the trial court in his motion.
The issue whether the court erred in refusing to give a missing witness charge is a matter of law and could be basis for a reversal by the Appellate Division. See, People v. Brown, 2004 WL 258210 (N.Y.A.D. 4th Dept.) (case reversed on law for failure to give a missing witness jury instruction); People v. Congilaro, 159 A.D.2d 775, 552 N.Y.S.2d 775 (1990) (N.Y.A.D. 4th Dept.).
Moreover, in this case, the fact that the Ms. Jules did not testify was material, not incidental. Ms. Jules was the complaining witness in this action and the only person, other than the defendant with personal knowledge of the alleged acts. Specifically, the People's evidence as to the element of intent was solely circumstantial, and based on the nature of the injuries. The defendant, who was the only witness to the incident who testified, claimed the burning was non-intentional.
While the jury rejected the defendant's testimony that the injury was accidental, a missing witness charge could have had a material impact on the jury's deliberation of the element of intent. Thus, if the defendant had been entitled to a missing witness charge, then under the circumstance of this case, it would have been reversible error to deny the request for the charge.
II. The Trial Court Did Not Err in Refusing to Grant the Defendant with a "Missing Witness" Charge to the Jury
When a party fails to call a witness who has material knowledge about a case, the trial court may instruct a jury that such failure permits the trier of fact to draw an adverse inference against the non-producing party. However, mere failure to produce a witness at trial is insufficient to justify the charge. People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796 (1986); People v. Savinon, 100 N.Y.2d 192, 761 N.Y.S.2d 144 (2003).
There are three factors required for a court to administer a "missing witness" charge to a jury. These factors are: (1) the witness' knowledge must be material to the trial; (2) the witness must be in the "control of the party against whom the charge is being sought; and, (3) the witness must be available to that party. People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796 (1986).
In this instance, it is clear that the complainant had knowledge of a material issue in dispute; specifically, whether the defendant burned Ms. Jules intentionally or accidentally. Furthermore, it is not disputed that Ms. Jules was physically available to be called by the People. Therefore, the case hinges on whether the Ms. Jules was under the control of the People.
As applied to the missing witness doctrine, the term `control' does not have its common meaning, but is a term of art involving the relationship between the witness and the parties. People v. Modeste, 764 N.Y.S.2d 561, 1 Misc.3d 315 (2003). `Control' means favorable to or under the influence of one party and hostile to another. Gonzalez, at 429; see also, Prince-Richardson on Evidence, § 3-140 [11th Edition, Farrell]. To be considered to be under a party's control the witness must be one who would be expected to give testimony favorable to that party, if able to do so. `Availability' is a separate consideration from control and refers simply to the party's ability to locate and produce a witness. Modeste at 563.
The People concede that a complainant in a criminal case is generally considered to be under the control of the People and would tend to give testimony favorable to the prosecution. However, they argue that where there are allegations of domestic violence, as herein, the victim's status as the complainant is not dispositive of the issue of whether she is under the control of the People. Alternatively, the People argue that the victim was available to both parties, and therefore a missing witness instruction would be improper. The basis of the missing witness charge is that, where a party fails to produce a material witness with whom they have a close and positive relationship, the logical inference is that the party did not produce such witness because their testimony would in fact be unfavorable to the party. This rationale is based on the relationship that exists between those parties.
Generally, it is presumed that a complainant in a criminal action has common interest with the People in prosecuting the case and is hostile to the defendant; thus, the complainant is within the People's `control.' However, in domestic violence cases, it cannot be presumed that the complainant has such common interest with the People in prosecuting the defendant or that the complainant is hostile to the defendant. This is particularly true in jurisdictions such as Kings County that have been in the vanguard of prosecuting cases of domestic violence even when the victim refuses to cooperate.
The refusal of many victims of domestic violence to testify is well documented and is a product of a mixture of emotional, economic, familial, cultural reasons, not easily penetrated by the outsiders, including the People. Many victims of domestic violence do not testify out of fear of the alleged batterer or familial pressure. Also in many cases, victims of domestic violence refuse to testify because they seek to maintain a relationship with the alleged batterer.
Where a victim reuses to testify out of desire to maintain a relationship with accused or out of fear of the accused, it is not logical or fair to infer that the People did not call the victim because the victims testimony would have contradicted the theory or evidence of their case. As a result, the relationship between the People and the domestic violence victim falls short from what is presumed by the missing witness doctrine. See, People v. Hernandez, 256 A.D.2d 218, 19, 682 N.Y.S.2d 27 (1998); People v. Rizos, 226 A.D.2d 323, 324, 642 N.Y.S.2d 229, 230 (N.Y.A.D. 1st Dept. 1996).
Because the term `control' refers to the relationship between the witness and the parties, the logic behind the missing witness doctrine fails in a domestic violence case because victims of domestic violence cannot be automatically presumed to be willing to give testimony favorable to the People. See, People v. Modeste, 764 N.Y.S.2d 561, 1 Misc.3d 315 (2003).
Here, the defendant made no showing that the complainant had a common interest with the People such that she would be expected to testify on the People's behalf. The People stated on the record that the complainant refused to cooperate with the prosecution of the defendant. There was no showing that Ms. Jules had the type of relationship or commonality of interest with the People to allow the presumption that she was in their control. As such, giving a missing witness charge would be improper.
Furthermore, in criminal cases it is generally improper for the People to call a witness to the stand when they know that the witness would refuse to testify. The reason for this rule is that in the absence of evidence that the defendant procured the witness' refusal to testify by threats or intimidation, the refusal has no probative value and invites unwarranted and potentially prejudicial speculation." New York Law of Domestic Violence, Elkins Fosbinder, Sec. 1:84 p 241, citing People v. Berg, 59 N.Y.2d 294, 300-301, 464 N.Y.S.2d 703, (1983) (Meyer, J. dissent).
Once a witness has communicated the intent not to testify, the court must determine whether any interest of the State in calling the witness outweighs the possible prejudice to defendant resulting from the unwarranted inference that may be drawn by the jury from the witness's refusal to testify. People v. Berg Camillo, 59 N.Y.2d 294, 298, 464 N.Y.S.2d 703 citing United States v. Vandetti, 623 F2d 1144, 1149.
Here, the People indicated that the complainant refused to cooperate with the prosecution of the defendant and testify. It would be improper to give a missing witness charge as to a witness the People may well have been precluded from calling because of her refusal to testify. Alternatively, the People argue that the victim was available to both parties, and therefore a missing witness instruction would be improper. However, the Court of Appeals of New York held, in People v. Gonzalez, 509 N.Y.S.2d 796, 68 N.Y.2d 424 (1986) that the fact the a witness is equally available to both sides, standing alone, is insufficient to defeat a request for a missing witness charge. Where the witness is available to both sides and can be said to be in the `control' of both sides then a missing witness charge may be denied. See, Id. In this case the People made no showing that the complainant was in the defendant's control.
III. The Court Did Not Instruct Defense Counsel Not to Comment of Claimants Unavailability During Summation
Rules governing the propriety of prosecutorial comments during summation are independent from those relating to a missing witness charge. Therefore, even where a missing witness charge is not appropriate, defense may comment during summantion on the People's failure to call a witness. People v. Modeste, 764 N.Y.S.2d 561, 565, 1 Misc.3d 315, 318 (2003).
Defense counsel asserts an additional ground for reversal that the court improperly directed him not to comment on Ms. Jules failure to testify. However, a reading of the transcript shows that, on the contrary, not only did the court allow defense counsel to comment on the complainant's failure to testify, but defense counsel actually did comment on the complainant's absence during his summation.
IV. Defendant's § 30.30 Motion Is Denied with Leave
Lastly, the defendant moves to dismiss the action pursuant to C.P.L. § 30.30 on the ground that the People failed to prosecute the case within the time allowed by the speedy trial statute.
The defendant previously moved to dismiss pursuant to C.P.L. § 30.30 and that motion was denied by Hon. Richard Allman in a decision dated August 11th, 2003. Defendant may not seek to reargue Judge Allman's decision through a motion pursuant to C.P.L. § 330.30. If the defendant seeks to reargue the C.P.L. § 30.30 issue, he must move to reargue before Judge Allman.
This opinion shall constitute the decision and order of this Court.