State v. Tahair

• Decision Date: 02 March 2001
• Docket Number: No. 00-076.,00-076.
• Citation: 772 A.2d 1079
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Brian E. TAHAIR.

772 A.2d 1079

STATE of Vermont v. Brian E. TAHAIR.

No. 00-076.

Supreme Court of Vermont.

March 2, 2001.

Lauren Bowerman, Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.

Robert Appel, Defender General, and William A. Nelson, Appellate Attorney, Montpelier, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

SKOGLUND, Justice.

Defendant appeals from a conviction, based on a jury verdict, of driving under the influence of intoxicating liquor, in violation of 23 V.S.A. § 1201(a)(2). He contends the trial court committed plain error in instructing the jury that it could infer from defendant's failure to call certain witnesses that their testimony would have been harmful to defendant. We conclude that the so-called "missing witness" instruction has outlived its usefulness in criminal trials, and should be abandoned. We also conclude, however, that its application in this case did not deprive defendant of any substantial rights or unfairly prejudice the jury deliberations. Accordingly, we affirm the judgment.

The record evidence was as follows. On the afternoon of July 6, 1999, Burlington police officers Bean and Ward responded to a domestic assault complaint on Riverside Avenue in front of Corrigan's Auto Repair. Upon their arrival, the officers observed a man and woman, later identified as defendant and Patricia Sartwell, in the general vicinity of a maroon Chevrolet Cavalier registered to defendant. The vehicle's windows were broken, glass was scattered on the ground, and the officers later observed that the key was broken off in the ignition. Officer Bean spoke with Sartwell while Officer Ward met with defendant. Bean observed that Sartwell was crying and had scrapes on her arm. The officer testified that he asked Sartwell what had happened, and she informed him that she had been walking home from work when a vehicle passed which she recognized. Defendant and another woman were in the car. The car stopped about 100 to 200 feet past Sartwell, and a woman got out and fled. Sartwell told the officer that defendant then drove back to where she was standing. Although Sartwell acknowledged that she was angry about the other woman, and that she had smashed defendant's car windows, she also told the officer that she did not want to get defendant in trouble.

Officer Ward testified that, while speaking with defendant, he observed that defendant smelled of alcohol, and that his eyes were dilated.¹ The officer testified that defendant claimed to be a passenger in the car driven by a woman named Susan Olsaver. Defendant told the officer that Olsaver pulled over after passing Sartwell on the road, and left the scene because Sartwell was obviously angry. Defendant then returned to speak with Sartwell, who used a baseball bat to smash his car windows. Defendant did not indicate who drove his car back to Sartwell after Olsaver left.

Officer Bean also spoke with defendant at the scene. According to Bean, defendant initially admitted that he had been driving the Cavalier with a drink in his hand when he passed Sartwell, but later changed his story to indicate that the woman in the car, Olsaver, was the driver. When Bean asked him who drove the car back to Sartwell after Olsaver left, he said, "You figure it out." According to Bean, defendant never identified anyone named "Kevin" as the driver, and never mentioned anyone named "Gerald."

A motorist who was driving on Riverside Avenue at the time testified that she observed a vehicle stopped along the side of the road, and saw a woman with something in her hand smashing out the windows. The motorist also observed a man who was standing near the driver's door of the vehicle walk to the rear of the car, and moments later saw the man and woman facing each other and gesturing as though they were arguing.

The defense claimed at trial that an individual named Kevin Whitcomb was actually driving defendant's vehicle during the events in question, and that defendant was following in a different car driven by one Gerald Barber. Sartwell testified for the defense. She admitted that she saw defendant's car pass, recognized it as defendant's, became angry, and smashed its windows. She denied, however, that defendant was the driver. She indicated instead that she did not know the man who was driving the car, although she recognized him as someone she had seen with defendant. She could not explain where the man went after the police arrived. She acknowledged informing the police at the scene that defendant had driven the car back to talk with her, but claimed that she had lied to them because she was angry with defendant and wanted to get him in trouble.

Defendant testified in his own behalf. He claimed that several days before the incident he had loaned his car to a friend named Kevin Whitcomb. He stated that, on the date in question, he and Whitcomb and Susan Olsaver and another friend named Gerald Barber all left another friend's house in Burlington. According to defendant, he was in a car driven by Barber, and Whitcomb drove off in defendant's car with Olsaver. While driving down Riverside Avenue with Barber, defendant observed Olsaver running up the road. They stopped, and Olsaver informed defendant that Sartwell was upset and was smashing his car windows. Barber then dropped off defendant at his car and left. Shortly thereafter, the police arrived. Defendant claimed that he informed the officers that a friend had been driving his car. He denied ever having told officer Bean that he was the driver. He also testified that he later attempted, without success, to locate Whitcomb and Barber.

At trial, neither the State nor defendant produced Whitcomb, Barber, or Olsaver as a witness. The trial court, on its own initiative, gave a missing witness instruction to the jury. The instruction provided as follows:

There was evidence that there were witnesses to the incident in question who were not called on to testify. These witnesses presumably could have corroborated the other defense witnesses. I instruct you that you may infer from the failure to call the witnesses that the testimony that would have been offered by those witnesses would have in some way been harmful to the defendant's case. However, I would caution you that there are many possible reasons why a particular witness would not be called to trial. The party that didn't call the witness is entitled to explain the reason to you. If you find that there was another explanation for the witness's failure to be called, then I instruct you that you should not make any inference concerning the potential harm or benefit of his or her testimony.

Although defense counsel objected to the instruction at the charge conference, he failed to renew his objection after the instruction was delivered to the jury. Accordingly, we review the claim on appeal for plain error. See State v. Carpenter, 170 Vt. 370, 374, 749 A.2d 1137, 1139 (2000) (where claimed instructional error was not properly preserved after charge, review for plain error was appropriate standard); State v. Wheelock, 158 Vt. 302, 306, 609 A.2d 972, 975 (1992) (failure to object after instruction is given to jury is considered waiver of any error even if substance of objection is made known before jury charge).

For more than one hundred years, this Court—in conformity with most other state and federal courts—has approved a "missing witness" instruction to the effect that the jury "may draw an inference against a party who fails to call a witness whose testimony would apparently be useful to that party." State v. Trombly, 148 Vt. 293, 304, 532 A.2d 963, 970 (1987); see Seward v. Garlin, 33 Vt. 583, 592 (1861) (where "ordinary and natural course" would be to introduce witness's testimony, party's failure to do so leads to "irresistible conclusion ... that he feared at least the witness would not support his other testimony"); State v. Fitzgerald, 68 Vt. 125, 127, 34 A. 429, 429 (1896) (adverse inference may be drawn from failure to produce witness); State v. Smith, 71 Vt. 331, 333-34, 45 A. 219, 220 (1899) (same); Choiniere v. Sulikowski, 126 Vt. 274, 279, 229 A.2d 305, 309 (1967) (same).

The classic formulation of the rule was stated by the United States Supreme Court in Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 37 L.Ed. 1021 (1893), as follows: "The rule even in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable." Although Graves referred to the rule as creating a "presumption," it is generally characterized in more recent case law as authorizing only a permissive inference. See Choiniere, 126 Vt. at 279,229 A.2d at 309; State v. Francis, 669 S.W.2d 85, 88 (Tenn.1984).² Most courts caution, as well, that "[a] missing-witness instruction is only proper if the inference to be drawn is a `natural and reasonable one.'" Trombly, 148 Vt. at 304,532 A.2d at 970 (quoting United States v. Bramble, 680 F.2d 590, 592 (9th Cir.1982)); see also Burgess v. United States, 440 F.2d 226, 237 (D.C.Cir. 1970) (missing witness instruction proper only when it can be said "with reasonable assurance that it would have been natural for a party to have called the absent witness but for some apprehension about his testimony"); Wheatley v. State, 465 A.2d 1110, 1111 (Del.1983) ("A missing-witness inference is permissible only where it would be `natural' for the party to produce the witness if his testimony would be favorable.").

The last several decades have witnessed a growing wariness among courts about the wisdom of the missing witness rule, however, and a number of courts have rejected it outright. See State v. Malave, 250 Conn. 722, 737 A.2d 442, 447 (1999) (concluding...