People v Batista

Court Discusses Whether the Defendant Fulfilled the Requirements for the Judge to give the Jury a Missing Witness Charge Instruction

The defendant was arrested and indicted for driving while intoxicated as a felony DWI, unlicensed operation of a motor vehicle and unlawful possession of marijuana. The charges arose when the defendant drove into a parked car after reversing through an intersection. The accident was witnessed by the owner of damaged car and another person came to call the police. The police officer upon arrival observed that the defendant had bloodshot watery eyes, slurred speech, was unsteady on his feet and had a strong odor of alcohol on his breath. The defendant took a chemical test and registered a .141 blood alcohol content. The defendant also did not have a valid license to operate the motor vehicle and possessed marijuana. A jury convicted the defendant of counts and he appealed. The defendant appealed on the grounds that the court failed to give a missing witness charge and prosecutorial misconduct.

Missing Witness Charge

The Appellate Division of the Supreme Court denied the appeal on this ground because he did not fulfil the three preconditions for the missing witness instruction. The defendant argued that the prosecution only made one witness available for the trial, that is, the complainant. The defendant indicated that there was another person the prosecution could have offered, such as the person who called the police. He further asserted that several other persons could have been called as the neighbors in the community gathered around the defendant’s car so he could not flee the scene. As a result, he contends that he was entitled to a missing witness charge for all the persons who were present after the accident.

According to the People v Savinon, 100 NY2d 192, 196 [2003] the missing witness instruction was to allow a jury to make an unfavorable interference based on a party’s failure to call a witness, who would usually support their version of the events. According to People v Kitching, 78 NY2d 532 where a party asserted that there was an entitlement to a missing witness charge, it must be shown prima facie that the uncalled witness was knowledgeable about a material issue pending in the case, that the witness could be expected to provide testimony favorable to the party who did not called him, and that the witness was available to that party. The opposing party must defeat the request to the missing witness charge by accounting for the witness absence or showing that the charge was not appropriate. The burden of defeating the charge can be met by showing that the witness was not knowledgeable of material facts or that the witness was unavailable. In the instant case the defendant did not show a prima facie entitlement to the missing witness charge. The person who would have been other witness would not have knowledge of the material facts as the complainant was the only person who witnessed the entire accident, while the other persons came after the accident. Additionally, what was witnessed by the other potential witnesses, would have been cumulative to the complainant’s testimony. Further, the defendant did not establish that the witnesses were available or under the control of the People. Both parties had access to the witness who called the police as he was a stranger to both side and was equally available to both sides. Therefore, the defendant was not entitled to the missing witness charge instruction.

Prosecutorial Misconduct

The defendant asserted that there was prosecutorial misconduct after the prosecution questioned the arresting officer about the defendant being silent at the scene of the crime when he was asked questions. The officer testified that the defendant did not answer and was belligerent was he asked him what happened. The DWI defendant requested a mistrial based on the prosecution elicited testimony from the police officer concerning the defendant’s pre-trial silence. The motion was denied and a curative instruction was given to the jury. The court instructed the jury to strike out the evidence of the arresting officer and to consider the evidence as the criminal defendant had a right to remain silent.

The Appellate Division of the Supreme Court denied the defendant’s motion to set aside conviction on this ground it was a harmless error have little or no effect on the jury’s verdict. The defendant had a constitutional right to remain silent at the time of his arrest. However, when the defendant remained silent the officer was merely investigating the scene of the accident as the defendant was not under arrest. The defendant’s inability to answer questions and his aggressive demeanor was evidence of his intoxication. The cases in which the defendant cited were to support the use of silence to impeach his trial testimony but the defendant did not testify. The officer testified about the defendant’s silence and belligerence to show his level of intoxication. Further, the trial judge gave instruction to disregard the evidence as to the officer as the defendant has a right to remain silent. As such, the defendant suffered no harm and there was an overwhelming evidence of guilt at his trial.

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