United States v. Blakemore, 73-1288.

• Decision Date: 13 December 1973
• Docket Number: No. 73-1288.,73-1288.
• Citation: 489 F.2d 193
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Darryl BLAKEMORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

489 F.2d 193 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. William Darryl BLAKEMORE, Defendant-Appellant.

No. 73-1288.

United States Court of Appeals, Sixth Circuit.

Argued October 3, 1973.

Decided December 13, 1973.

Wm. H. Allison, Jr. (Court Appointed), Louisville, Ky., on brief for defendant-appellant.

James H. Barr, Asst. U. S. Atty., for plaintiff-appellee; George J. Long, U. S. Atty., on brief.

Before PHILLIPS, Chief Judge, McCREE and MILLER, Circuit Judges.

WILLIAM E. MILLER, Circuit Judge.

This is an appeal from a criminal conviction in the district court. The defendant-appellant, William Darryl Blakemore, was convicted in the court below on a charge of possessing a sawed-off .12 gauge shotgun in violation of 26 U. S.C. § 5861(d). He was given a five year sentence to run concurrently with a ten year sentence he had received in state court for armed robbery.

The appellant makes a number of contentions on appeal, one of which is that the trial judge erred in allowing the prosecutor to comment in his argument to the jury that the defendant's failure to call four prospective witnesses would give rise to an inference that their testimony would be unfavorable to the defendant. We deem it unnecessary to discuss the other assigned grounds for reversal since in our view this issue is critical.

The appellant and the prosecutor each presented a list of prospective witnesses to the trial judge for his use in conducting the voir dire. The appellant's list contained six names.¹ During the course of the trial, the appellant called one witness from his list to testify. The prosecutor stipulated to the testimony of another defense witness on the list. At the close of the appellant's case, the prosecutor, out of the presence of the jury, asked for a ruling from the court as to whether the government could properly comment in closing argument on the appellant's failure to call four of the prospective defense witnesses to testify. The court ruled, without inquiry as to why the witnesses were not called or as to what their testimony would be, and over the appellant's objection, that such comment was proper.²

Following the court's ruling, the appellant's attorney, making the opening argument consistent with the local practice and apparently in an attempt to lessen the impact of the prosecutor's anticipated comments, advised the jury that he had not called the remaining defense witnesses because the government's case was too weak to convict the appellant. Then the prosecutor, in the closing argument, made the following statement to the jury:

"Ladies and gentlemen, I\'d like to point out to you, at the beginning of the trial the defendant and his counsel, Mr. Allison, indicated he had several witnesses to call, approximately four. Those witnesses were not called. The fact that they were not called would permit you to draw an inference that their testimony of those four individuals was unfavorable to the defendant and that\'s the reason they were not called."

The court gave no instructions to the jury on this point.

An adverse inference is permitted from the failure of a defendant to call witnesses if they are "peculiarly within his power to produce" and if their testimony would "elucidate the transaction." Wynn v. United States, 130 U.S.App.D.C. 60, 397 F.2d 621, 625 (1967). See also United States v. Young, 150 U.S.App.D.C. 98, 463 F.2d 934 (1972); Gass v. United States, 135 U.S.App.D.C. 11, 416 F.2d 767 (1969). Most courts have carefully restricted application of the "uncalled or missing witness" rule to situations where both of these elements are present. E.g. Pennewell v. United States, 122 U.S.App.D. C. 332, 353 F.2d 870 (1965).³ This two part analysis should be strictly applied. It first must be determined if the uncalled witnesses are peculiarly within the control or power of one party. The appellant urges that the four uncalled defense witnesses were not within his "control" because they were equally available to the government. "Availability" of a witness to a party must take into account both practical and physical considerations. Stewart v. United States, 135 U.S.App.D.C. 274, 418 F.2d 1110, 1115 (1969). 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. Milton v. United States, 71 App.D.C. 394, 110 F.2d 556 (1940).⁴ In the present case, all four of the uncalled witnesses were present in the courtroom. The court did not specifically find that there was a special relationship of any kind between the appellant and any of the four prospective defense witnesses. Nor is there in the record any indication of relationship.

In addition to the element of control, it must be found, before an adverse inference may be drawn, that the anticipated testimony of the uncalled witnesses will "elucidate the transaction." The record in this case is barren of any inquiry by the court into the probable testimony of the four uncalled witnesses. As the court did not acquaint itself with the circumstances or conditions which would justify an adverse inference surrounding the failure of the defense to call the four witnesses, and as a specific objection was made by defense counsel to the court's ruling, we think it was error to allow the government to advise the jury that an adverse inference could be drawn. The resulting prejudice from such comments is compounded in this case by the circumstantial nature of the evidence against the appellant. The jury was already required to deal with inferences from the circumstantial evidence on which the government's case was almost entirely based. We are not, therefore, prepared to say that the government's comments on the failure of the defense to call the four witnesses was harmless or innocuous. Indeed, such comments would appear to have been clearly damaging to the defense.⁵

When counsel for either side intends to argue to the jury for an adverse inference to be derived from the absence of witnesses, an advance ruling from the trial court should be sought and obtained, as was done here. The trial court, however, before ruling on the appropriateness of such argument, must make the pertinent inquiries and findings indicated above. Furthermore, if such argument is to be permitted, and the operative facts appear to be in doubt or in dispute, an instruction should be given to the jury defining the conditions under which the inference might properly be drawn. Gass v. United States, 135 U.S.App.D.C. 11, 416 F.2d 767, 775 (1969). By these practices the risk of vitiating the entire trial by improper argument as to the absence of witnesses can be obviated. Although, as stated, the prosecution in this case did ask for and receive a favorable advance ruling from the trial judge before making its comments to the jury, the trial judge unfortunately failed, despite appellant's specific objection, to make the necessary inquiries or determinations to support his ruling permitting the comments to be made.

We therefore reverse appellant's conviction and remand for a new trial.

1 Some of these witnesses...