People v. Keen
| Decision Date | 13 April 2000 |
| Citation | 707 N.Y.S.2d 380,94 N.Y.2d 533,728 N.E.2d 979 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KEITH KEEN, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Office of the Appellate Defender, New York City (Julia P. Kuan and Richard M. Greenberg of counsel), for appellant.
Robert M. Morgenthau, District Attorney of New York County, New York City (Carol A. Remer-Smith and Mark Dwyer of counsel), for respondent.
Defendant Keith Keen was convicted following a jury trial of murder in the second degree and related charges stemming from a shooting in a nightclub in New York City.
Prior to voir dire, the trial court asked defense counsel if defendant was waiving his right to be present at sidebar:
Thereafter, neither defense counsel nor defendant objected when members of the panel were brought before the bench during the three days of voir dire.
Shortly before opening statements, defense counsel requested that the Trial Judge issue a material witness order for Charlotte Jordan, defendant's ex-girlfriend and the mother of his child. Defense counsel considered Jordan a "crucial" witness and was concerned that she would not appear to testify. According to defense counsel, Jordan was with defendant at the time of the shooting.
When Jordan arrived at court, the Trial Judge conducted an ex parte conference at defense counsel's request at which neither defendant nor the prosecution was present. During the conference, Jordan expressed her reluctance to testify. The Trial Judge explained to Jordan that she had been subpoenaed by defense counsel and emphasized the significance of the responsibility. The court noted that defense counsel had indicated that she had important testimony. Jordan then briefly explained her recollection of the events in question. When defense counsel told Jordan that she was to return to testify at a later date, she assured both him and the court that she would "definitely be back." The People requested a copy of the transcript of the conference. The court denied the request, but indicated that if Jordan testified, the transcript would be turned over.
During opening statements, defense counsel told the jury that defendant was with Jordan at the time of the shooting and that defendant and Jordan were having an argument. Counsel noted that Jordan and defendant were standing outside the dance hall area of the nightclub, near the hallway where the shooting took place. Notwithstanding Jordan's expressed reluctance to testify, counsel told the jury, "Charlotte will be here and she will testify that at that point while they were arguing they heard pop, a pop that sounded very much like a gun shot."
After the prosecution presented its case, defense counsel requested another ex parte conference with the Judge, Jordan and her stepfather. Once again, both defendant and the People were absent from the conference. Defense counsel noted that at the last ex parte conference, Jordan seemed nervous about testifying; counsel suspected that "the reason that she was so hesitant and upset was because she felt if she got on the witness stand and said what she said to my investigators and myself that she would be committing perjury." Jordan confirmed defense counsel's statements and counsel thereafter requested that the court release Jordan from the subpoena and seal the records of the ex parte application until the trial was over. The court granted both requests.
Defendant then took the stand and testified that he was living with Jordan and their infant son at the time of the shooting and that at the time they had a "very good relationship." Defendant stated that on the night of the shooting, he was in the hall of the nightclub arguing with Jordan when he saw some patrons trying to push their way into the nightclub and heard a shot. He testified that he grabbed Jordan and pushed her into the dance hall area of the nightclub.
Following the completion of testimony, the People requested a "missing witness" charge based on defendant's failure to call Jordan to testify, arguing that "she was in the courtroom twice," and that she was "someone who would be called by the defense," adding that she was the mother of defendant's child. Defense counsel objected on the grounds that Jordan was not within the "exclusive control" of defendant and that the People knew where she was. When the trial court indicated that it would grant the People's request, defense counsel again argued that the People could have called Jordan to testify. The court granted the requested charge and instructed the jury as follows:
Defendant's conviction was affirmed by the Appellate Division, with one Justice dissenting. The dissent at the Appellate Division concluded that the missing witness charge was error because Jordan was a hostile witness for defendant and therefore was not under his control. The dissent relied primarily upon Jordan's statements at the first conference (252 AD2d 278, 284). It did not take into account the opening statement made by defendant's attorney immediately after that conference. The dissenting Justice granted defendant leave to appeal to this Court.
On appeal, defendant asserts that his purported Antommarchi (People v Antommarchi, 80 NY2d 247
) waiver is invalid because there is no record proof that he had authorized his lawyer to waive that right. Defendant further argues that he was denied his fundamental right to be present at the two ex parte conferences his counsel conducted with his former girlfriend. He finally contends that the trial court erred in giving a missing witness charge allowing the jury to draw an unfavorable inference from his failure to call his former girlfriend as a witness.
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...is not appropriate when the witness's testimony would merely corroborate the testimony of other witnesses. People v. Keen, 94 N.Y.2d 533, 539, 707 N.Y.S.2d 380, 728 N.E.2d 979 (2000). The People contend that Caramelli's testimony would not have added anything to O'Rourke's testimony and the......
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