People v. Savinon
| Decision Date | 05 June 2003 |
| Citation | 100 N.Y.2d 192,791 N.E.2d 401,761 N.Y.S.2d 144 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CARLOS SAVINON, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
James Kousouros, Kew Gardens, for appellant.
Robert M. Morgenthau, District Attorney, New York City (Mark Dwyer of counsel), for respondent.
In this prosecution for forcible rape and related crimes, we address the components of the adverse inference instruction dealing with "uncalled" or "missing" witnesses. The precise question presented is whether the trial court improperly granted the People's request for an adverse inference instruction after defendant failed to produce his friend and former employee, the only witness to the crimes charged. We conclude that the court's instruction was proper, and therefore affirm defendant's conviction.
For several months before the alleged attack, defendant and complainant had an intermittent sexual and social relationship. On the night of the episode, defendant and Luis "Flaco" Camacho took complainant to a club in Yonkers. Camacho had been defendant's friend and employee for several months. He saw defendant socially, answered defendant's business phone and acted as his driver. At times Camacho would borrow defendant's Lexus for personal use.
Complainant testified that while at the club, defendant left her alone while he danced and spent time with another woman. Feeling ill and ashamed, complainant asked to leave. Defendant refused, and forcibly pushed her into a chair. Camacho, realizing that complainant was not feeling well, took her outside where they waited for defendant. Eventually defendant left the club and got into the back seat of the car. Camacho was in the driver's seat with complainant next to him as they drove off.
Defendant began making sexual advances toward complainant. She resisted, pleading with defendant to leave her alone. Defendant became angrier and from the back seat continued his physical advances. Complainant protested, but defendant grew more irate and ordered complainant to perform oral sex on him. As complainant tried to fight him off, defendant pulled her into the back seat and raped her. He then demanded that Camacho also rape complainant, but he declined. Camacho stopped the car at a park, and complainant hurried out, looking for help. Defendant brought complainant to another friend who happened to be standing next to a nearby car, and pulled down her pants, leaving her naked. Defendant then walked away, leaving Camacho to take complainant home, warning that he would kill her if she went to the police.
Camacho took complainant home and stayed with her for a few hours that night. After Camacho left, complainant saw a neighbor, to whom she described the attack and displayed her bruises and torn clothing. The next day she visited her priest, who persuaded her to go to the hospital, where authorities interviewed her. Over the ensuing months, complainant and Camacho saw each other socially on a few occasions, but those visits soon ended. They had no contact for more than one year preceding defendant's trial.
After a police investigation, defendant was arrested and indicted for rape and related crimes. At trial, defendant testified and denied the rape. He stated, in substance, that he, complainant and Camacho drove to the park, where he and complainant engaged in consensual sexual intercourse in the back seat, with Camacho nearby. Neither side called Camacho as a witness. The People asked the court for an adverse inference instruction against defendant for having failed to call Camacho. In the ensuing colloquy defendant and the People claimed not to know his whereabouts. Defendant's counsel, however, told the court that after the trial had begun, Camacho responded to defendant's telephonic page and met with defendant and counsel at counsel's office. According to defense counsel, Camacho would refuse to testify if called, for fear that he would be arrested as an illegal alien. At no time, however, did counsel serve him with a subpoena. Counsel told the court he would try to contact Camacho if the prosecution would give him "safe passage" from immigration authorities. No agreement was reached and Camacho was never again contacted. The trial court granted the People's request and gave the adverse inference charge against defendant.
The jury found defendant guilty of rape and sexual abuse in the first degree, the Appellate Division affirmed and a Judge of this Court granted defendant leave to appeal. We affirm.
The "missing witness" instruction allows a jury to draw an unfavorable inference based on a party's failure to call a witness who would normally be expected to support that party's version of events (see 1 CJI[NY] 8.55, at 451-453). As we stated in People v Gonzalez (68 NY2d 424, 427 [1986]), the instruction rests on "the commonsense notion that `the nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party's cause'" (quoting 2 Wigmore, Evidence § 285, at 192 [Chadbourn rev ed 1979] [emphasis deleted]; see also Graves v United States, 150 US 118, 121 [1893]
; People v Hovey, 92 NY 554, 559 [1883]).1
The rule is best understood by recognizing that the inquiry must be undertaken from the standpoint of the honest litigant. Thus, when a party truthfully presents a version of events, a factfinder would expect that party's friend or ally (if knowledgeable) to confirm it. If a witness that valuable does not appear to support the party's side—and if there is no good reason for the witness's absence—it is only natural to suppose (or as the law has it, infer) that the witness cannot honestly help the party.
To that end, Gonzalez established three preconditions for the missing witness instruction.2 First, the witness's knowledge must be material to the trial. Second, the witness must be expected to give noncumulative testimony favorable to the party against whom the charge is sought. This has been referred to as the "control" element, which requires the court to evaluate the relationship between the witness and the party to whom the witness is expected to be faithful. Third, the witness must be available to that party. We review a trial court's decision whether to grant a missing witness charge on an abuse of discretion standard (see People v Macana, 84 NY2d 173, 179-180 [1994]
).
Here, under any version of the events, Camacho was a key witness. Undisputedly, his testimony would have been material and noncumulative (see People v Paulin, 70 NY2d 685 [1987]
). This case therefore turns on the availability and control elements of the rule.
The People contend that Camacho was available to defendant based on the meeting he had with the defense during trial, and was under defendant's control by virtue of the business and personal relationship between the two. Defendant counters by asserting that Camacho's purported refusal to testify rendered him "unavailable," and that his relationship with complainant cut against any favoritism he would have had for defendant. We take up these issues in turn.
The missing witness instruction seeks to dispel any advantage a party may receive when expected to call a particular witness but for strategic reasons does not. It follows that a litigant should not be penalized for failing to call a witness who is unavailable. As we noted in Gonzalez (68 NY2d at 428), "it would be unfair as well as illogical to allow a jury to draw an adverse inference from the failure of the party to call a witness when the party is unable to do so."3
But as one might put it in the colloquial, there is unavailable and there is unavailable. "Availability" is often a question of degree.4 At one extreme a witness is unavailable if dead, missing or incapacitated. At the other extreme, a witness who is at hand, ready, willing and able to testify, is most obviously available. Difficult cases fall somewhere in between, and trial courts must examine claims of unavailability to determine their merit.
Though a genuine inability to locate a witness will foreclose a missing witness instruction, a witness may be readily accessible and even in the courtroom but still be unavailable within the meaning of the rule. Thus, a witness who on Fifth Amendment grounds refuses to testify will be considered "unavailable" although the witness's presence is known and apparent (see People v Macana, 84 NY2d at 177-178
; People v Thomas, 68 NY2d 194, 197 [1986]; People v Rodriguez, 38 NY2d 95, 100 [1975]).5 An accomplice (whether charged as such or not) who can be expected to invoke a privilege would similarly be unavailable.6 Under circumstances that obvious, the court can refuse to give the missing witness instruction even though the accomplice is not produced.7
Here, Camacho's disinclination (communicated only through defense counsel) was due to his alleged fear of deportation. We need not decide when and whether concerns of this kind are enough to render a witness unavailable.8 If such claims are ever to be accepted they are best presented directly to a court rather than through an intermediary. The court would then be in a position to examine the bona fides and weigh the arguments for and against a missing witness instruction.
Defendant was on trial for uncommonly heinous crimes. He testified that complainant's accusation was a lie. If (as defendant swore) his version was true, his friend Camacho was the only person in the world who could rescue him from the prospect of a lengthy prison term. Under these circumstances one would expect an accused to go to Herculean lengths to get Camacho before the jury. Surely those efforts would include a subpoena if not a material witness order. Coun...
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