People v. Paulin
| Decision Date | 09 July 1987 |
| Citation | 70 N.Y.2d 685,518 N.Y.S.2d 790,512 N.E.2d 312 |
| Parties | , 512 N.E.2d 312 The PEOPLE of the State of New York, Respondent, v. Kevin PAULIN, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division, 115 A.D.2d 1019, 496 N.Y.S.2d 595, should be reversed, defendant's conviction of rape in the first degree vacated, and a new trial ordered.
The trial court erred in refusing to give a missing witness charge addressing the inference that could be drawn from the People's failure to call complainant's common-law husband to testify concerning her physical condition, as observed by him, when she returned home the morning after the alleged rape.
The proponent of a missing witness charge must make a prima facie showing that, among other things, the uncalled witness is knowledgeable about a material issue as to which evidence is already before the jury (see, People v. Gonzalez, 68 N.Y.2d 424, 427, 509 N.Y.S.2d 796, 502 N.E.2d 583). In this case, defendant admitted that he had intercourse with complainant but claimed the intercourse was consensual. His claim was supported by significant differences in the testimony concerning the nature and scope of complainant's injuries as observed by a witness seeing her immediately after the incident with defendant and as observed by Police Officer Reilly as he saw her several hours later. A friend of complainant's, to whose home she purportedly fled immediately after the alleged incident, testified that complainant arrived at her home "high" and excited, and talked about having had sex with defendant. This witness further stated that she observed that complainant's lip was swollen, the buttons of her blouse were gone, and her pants zipper was broken--all of which can be consistent with consensual sexual relations. This description varied markedly from that of Officer Reilly, however, who noted that when he interviewed complainant the next day her right eye was swollen, bloodshot and half closed, her left shoulder was bruised, and her lip and cheek swollen. Thus, 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 complai...
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...572, 128 N.E.3d 649 ). Under these circumstances, a missing witness instruction was required (see id. ; People v. Paulin , 70 N.Y.2d 685, 686-687, 518 N.Y.S.2d 790, 512 N.E.2d 312 [1987] ).The error is not harmless. Although the DNA evidence conclusively established the occurrence of sexual......
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