Martinez v. State, 83-2372

• Decision Date: 20 November 1985
• Docket Number: No. 83-2372,83-2372
• Citation: 10 Fla. L. Weekly 2611,478 So.2d 871
• Parties: 10 Fla. L. Weekly 2611 Roberto MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 871

478 So.2d 871

10 Fla. L. Weekly 2611

Roberto MARTINEZ, Appellant, v. The STATE of Florida, Appellee.

No. 83-2372.

District Court of Appeal of Florida,

Third District.

Nov. 20, 1985.

Rehearing Denied Dec. 10, 1985.

Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.

Before NESBITT, DANIEL S. PEARSON, and FERGUSON, JJ.

FERGUSON, Judge.

Defendant appeals his convictions for false imprisonment, grand theft and burglary. He contends that the trial court erred in prohibiting his attorney from arguing to the jury that the State's unexplained failure to call the codefendant, who was listed as a state witness, created an inference that the codefendant's testimony would not have been favorable to the State. By precluding the argument, appellant contends, the court infringed upon his right to effective assistance of counsel.

More specifically the argument is that where a codefendant enters a guilty plea, is listed as a state witness, then gives deposition testimony damaging to defendant, the codefendant has a special relationship to the State which diminishes defendant's access to the witness as compared to the State's access, so that even though the State chooses not to call the codefendant at trial, defendant is free to argue that the jury may draw negative inferences from the fact that the State refused to call the codefendant.

The general rule is that an inference adverse to a party based on the party's failure to call a witness is permissible when it is shown that the witness is peculiarly within the party's power to produce and the testimony of the witness would elucidate the transaction. Kindell v. State, 413 So.2d 1283, 1288 (Fla. 3d DCA 1982) (Daniel S. Pearson, J., specially concurring) (citing Graves v. United States, 150 U.S. 118, 14 S.Ct. 40, 37 L.Ed. 1021 (1893), and other authorities).

" 'Availability' of a witness to a party must take into account both practical and physical considerations. [cite omitted]. Thus whether a person is to be regarded as peculiarly within the control of one party may depend as much on his relationship to that party as on his physical availability." United States v. Blakemore, 489 F.2d 193, 195 (6th Cir.1973).

Such special relationships have been found where (1) the witness was defendant's daughter, State v. Michaels, 454 So.2d 560 (Fla.1984), (2) there was a friendship between the party and witness, Simmons v. State, 463 So.2d 423 (Fla. 3d DCA 1985), (3) the witness was the employer of the defendant, Milton v. United States, 110 F.2d 556 (D.C.Cir.1940), (4) the witness was a police officer closely associated with the government in developing its case and had an interest in seeing his police work vindicated by defendant's conviction, United States v. Mahone, 537 F.2d 922 (7th Cir.), cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976), (5) the witnesses were state employees who were present at alleged suggestive pretrial line-up and were still in state's employ at time of trial, United States ex rel. Cannon v. Smith, 527 F.2d 702 (2d Cir.1975), and (6) the witness was an informer...