State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.
No. 44 The People &c., Respondent, v. Samuel J. Smith, Appellant.
Drew R. DuBrin, for appellant. Daniel Gross, for respondent.
FEINMAN, J.:
In People v Gonzalez (68 NY2d 424 [1986]), we set forth the conditions necessary
to warrant a missing witness charge and a burden-shifting analysis to determine whether
those conditions are met. We hold that the People failed to meet their burden under this
established framework.
-1- -2- No. 44
In May 2013, the victim was struck in the torso by a bullet when a stranger
repeatedly shot at her and her then-boyfriend, James Dees. At trial, the victim testified that
she and Dees were walking in the City of Rochester when Dees called out to the driver of
a gold car. Although it was a hot day, the victim saw a man in the car’s back seat putting
on a pull-over jacket. The driver ignored Dees’s greeting and drove off. As the victim and
Dees continued on their walk, she noticed that a man wearing a green hooded sweatshirt
and a black baseball hat with bright red or orange trim was following them. When the
pursuing man was 15 to 18 feet from them, Dees said that the man had a gun and tried to
push the victim to the ground. The victim did not fall, but turned around and looked at the
man. The victim testified that the man smiled at her, shot her, and then fired several other
shots.
The police found the victim lying face-down in a pool of blood in a driveway. She
was taken to a hospital, where doctors found that she had a significant liver injury and
significant lung lacerations. About two hours after she arrived at the hospital, the victim
was lethargic but able to speak. She told the police that she could not identify the shooter
by name, that he was wearing a blue baseball hat and a green jacket, and that he was
standing approximately five feet from her when he shot her. Defendant Samuel J. Smith
was later arrested for the shooting and charged in an indictment with attempted murder in
the second degree, assault in the first degree, and criminal use of a firearm in the first
degree.
-2- -3- No. 44
At trial, surveillance footage admitted into evidence showed a man wearing a green
hooded sweatshirt and black baseball hat with red trim exit a gold car in the vicinity of the
shooting. A witness who had called 911 to report the shooting testified that he saw a man
walking down the street remove and discard a green sweatshirt in a location where it was
later recovered by the police. The man was then wearing a white tank top. Additional
recordings corroborated testimony from a customer and an employee of a nearby
convenience store that a man in a white tank top tried to give them his black baseball hat
with red trim shortly after the shooting. The victim identified defendant both as the man
who shot her and as the man in the white tank top appearing in the convenience store
surveillance footage. A police investigator also identified defendant as the man in the
convenience store surveillance footage. The other witnesses to the events following the
shooting did not identify defendant.
Dees initially was on the People’s witness list, but he never testified. Defendant
requested a missing witness charge with respect to Dees, arguing that Dees was in the
People’s direct control, had seen the shooter first, and had attempted to push the victim out
of the way before fleeing.1 In response, the People did not dispute their control of Dees,
but contended, without elaboration, that Dees’s testimony would have been cumulative to
that of the victim. Supreme Court denied defendant’s application without stating its
1 Defendant’s request for the missing witness charge immediately followed his motion to dismiss on the ground that the People failed to establish that he intended to injure the victim, as opposed to Dees. -3- -4- No. 44
rationale. The jury found defendant guilty on all three counts of the indictment and the
court imposed sentence.
The Appellate Division affirmed, with two Justices dissenting. After stating that
one seeking a missing witness instruction “has the initial, prima facie burden of showing
that the testimony of the uncalled witness would not be cumulative of the testimony already
given” (162 AD3d 1686, 1687 [4th Dept 2018]), the Court held that Supreme Court did not
abuse its discretion by denying defendant’s request for the charge. The dissenters
disagreed that the proponent of a missing witness charge bears the initial burden with
respect to cumulativeness. The dissenters concluded that Supreme Court erred by denying
the application because the People failed to demonstrate that Dees’s testimony would have
been cumulative. A dissenting Justice granted defendant leave to appeal to this Court (see
32 NY3d 943 [2018]).
“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” (People v Savinon, 100 NY2d 192, 196 [2003]). The instruction
“derives from 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” (Gonzalez, 68 NY2d at 427
[internal quotation marks, citation, and emphasis omitted]). The charge “seeks to dispel
any advantage a party may receive when expected to call a particular witness but for
strategic reasons does not” (Savinon, 100 NY2d at 197). A missing witness charge is
-4- -5- No. 44
appropriate when three conditions are met. “First, the witness’s knowledge must be
material to the trial” (id.). “Second, the witness must be expected to give noncumulative
testimony favorable to the party against whom the charge is sought” (id.). “Third, the
witness must be available to that party” (id.; see Gonzalez, 68 NY2d at 427). “We review
a trial court’s decision whether to grant a missing witness charge on an abuse of discretion
standard” (Savinon, 100 NY2d at 197).
In Gonzalez, we established the analytical framework for deciding a request for a
missing witness instruction. The proponent initially must demonstrate only three things
via a prompt request for the charge: (1) “that there is an uncalled witness believed to be
knowledgeable about a material issue pending in the case,” (2) “that such witness can be
expected to testify favorably to the opposing party,” and (3) “that such party has failed to
call” the witness to testify (Gonzalez, 68 NY2d at 427). The party opposing the charge can
defeat the initial showing by accounting for the witness’s absence or demonstrating that
the charge would not be appropriate (see id. at 428). “This burden can be met by
demonstrating,” among other things, that “the testimony would be cumulative to other
evidence” (id.). If the party opposing the charge meets its burden by rebutting the prima
facie showing, the proponent retains the ultimate burden to show that the charge would be
appropriate (see id. at 427; Savinon, 100 NY2d at 197). We have repeatedly reiterated
Gonzalez’s specific burden-shifting analysis (see e.g. People v Keen, 94 NY2d 533, 539
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State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.
No. 44 The People &c., Respondent, v. Samuel J. Smith, Appellant.
Drew R. DuBrin, for appellant. Daniel Gross, for respondent.
FEINMAN, J.:
In People v Gonzalez (68 NY2d 424 [1986]), we set forth the conditions necessary
to warrant a missing witness charge and a burden-shifting analysis to determine whether
those conditions are met. We hold that the People failed to meet their burden under this
established framework.
-1- -2- No. 44
In May 2013, the victim was struck in the torso by a bullet when a stranger
repeatedly shot at her and her then-boyfriend, James Dees. At trial, the victim testified that
she and Dees were walking in the City of Rochester when Dees called out to the driver of
a gold car. Although it was a hot day, the victim saw a man in the car’s back seat putting
on a pull-over jacket. The driver ignored Dees’s greeting and drove off. As the victim and
Dees continued on their walk, she noticed that a man wearing a green hooded sweatshirt
and a black baseball hat with bright red or orange trim was following them. When the
pursuing man was 15 to 18 feet from them, Dees said that the man had a gun and tried to
push the victim to the ground. The victim did not fall, but turned around and looked at the
man. The victim testified that the man smiled at her, shot her, and then fired several other
shots.
The police found the victim lying face-down in a pool of blood in a driveway. She
was taken to a hospital, where doctors found that she had a significant liver injury and
significant lung lacerations. About two hours after she arrived at the hospital, the victim
was lethargic but able to speak. She told the police that she could not identify the shooter
by name, that he was wearing a blue baseball hat and a green jacket, and that he was
standing approximately five feet from her when he shot her. Defendant Samuel J. Smith
was later arrested for the shooting and charged in an indictment with attempted murder in
the second degree, assault in the first degree, and criminal use of a firearm in the first
degree.
-2- -3- No. 44
At trial, surveillance footage admitted into evidence showed a man wearing a green
hooded sweatshirt and black baseball hat with red trim exit a gold car in the vicinity of the
shooting. A witness who had called 911 to report the shooting testified that he saw a man
walking down the street remove and discard a green sweatshirt in a location where it was
later recovered by the police. The man was then wearing a white tank top. Additional
recordings corroborated testimony from a customer and an employee of a nearby
convenience store that a man in a white tank top tried to give them his black baseball hat
with red trim shortly after the shooting. The victim identified defendant both as the man
who shot her and as the man in the white tank top appearing in the convenience store
surveillance footage. A police investigator also identified defendant as the man in the
convenience store surveillance footage. The other witnesses to the events following the
shooting did not identify defendant.
Dees initially was on the People’s witness list, but he never testified. Defendant
requested a missing witness charge with respect to Dees, arguing that Dees was in the
People’s direct control, had seen the shooter first, and had attempted to push the victim out
of the way before fleeing.1 In response, the People did not dispute their control of Dees,
but contended, without elaboration, that Dees’s testimony would have been cumulative to
that of the victim. Supreme Court denied defendant’s application without stating its
1 Defendant’s request for the missing witness charge immediately followed his motion to dismiss on the ground that the People failed to establish that he intended to injure the victim, as opposed to Dees. -3- -4- No. 44
rationale. The jury found defendant guilty on all three counts of the indictment and the
court imposed sentence.
The Appellate Division affirmed, with two Justices dissenting. After stating that
one seeking a missing witness instruction “has the initial, prima facie burden of showing
that the testimony of the uncalled witness would not be cumulative of the testimony already
given” (162 AD3d 1686, 1687 [4th Dept 2018]), the Court held that Supreme Court did not
abuse its discretion by denying defendant’s request for the charge. The dissenters
disagreed that the proponent of a missing witness charge bears the initial burden with
respect to cumulativeness. The dissenters concluded that Supreme Court erred by denying
the application because the People failed to demonstrate that Dees’s testimony would have
been cumulative. A dissenting Justice granted defendant leave to appeal to this Court (see
32 NY3d 943 [2018]).
“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” (People v Savinon, 100 NY2d 192, 196 [2003]). The instruction
“derives from 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” (Gonzalez, 68 NY2d at 427
[internal quotation marks, citation, and emphasis omitted]). The charge “seeks to dispel
any advantage a party may receive when expected to call a particular witness but for
strategic reasons does not” (Savinon, 100 NY2d at 197). A missing witness charge is
-4- -5- No. 44
appropriate when three conditions are met. “First, the witness’s knowledge must be
material to the trial” (id.). “Second, the witness must be expected to give noncumulative
testimony favorable to the party against whom the charge is sought” (id.). “Third, the
witness must be available to that party” (id.; see Gonzalez, 68 NY2d at 427). “We review
a trial court’s decision whether to grant a missing witness charge on an abuse of discretion
standard” (Savinon, 100 NY2d at 197).
In Gonzalez, we established the analytical framework for deciding a request for a
missing witness instruction. The proponent initially must demonstrate only three things
via a prompt request for the charge: (1) “that there is an uncalled witness believed to be
knowledgeable about a material issue pending in the case,” (2) “that such witness can be
expected to testify favorably to the opposing party,” and (3) “that such party has failed to
call” the witness to testify (Gonzalez, 68 NY2d at 427). The party opposing the charge can
defeat the initial showing by accounting for the witness’s absence or demonstrating that
the charge would not be appropriate (see id. at 428). “This burden can be met by
demonstrating,” among other things, that “the testimony would be cumulative to other
evidence” (id.). If the party opposing the charge meets its burden by rebutting the prima
facie showing, the proponent retains the ultimate burden to show that the charge would be
appropriate (see id. at 427; Savinon, 100 NY2d at 197). We have repeatedly reiterated
Gonzalez’s specific burden-shifting analysis (see e.g. People v Keen, 94 NY2d 533, 539
[2000]; People v Macana, 84 NY2d 173, 177 [1994]; People v Kitching, 78 NY2d 532,
-5- -6- No. 44
536-537 [1991]), but we have never required the proponent of a missing witness charge to
negate cumulativeness to meet the prima facie burden.2
Appellate Division decisions placing the burden of demonstrating cumulativeness
on the charge’s proponent have misapplied this established precedent. We reaffirm again
our longstanding rule established in Gonzalez, and reject any decisions placing the initial
cumulativeness burden on the proponent of a missing witness charge (see e.g. People v
Chestnut, 149 AD3d 772, 773 [2d Dept 2017], lv denied 29 NY3d 1077 [2017]; People v
McBride, 272 AD2d 200, 200 [1st Dept 2000], lv denied 95 NY2d 868 [2000]; People v
Townsley, 240 AD2d 955, 958 [3d Dept 1997], lv denied 90 NY2d 943 [1997],
reconsideration denied 90 NY2d 1014 [1997]).
A contrary rule, requiring the proponent to negate cumulativeness in the first
instance, would undermine the framework established in Gonzalez. As we explained in
Kitching, “[t]o require the party requesting a missing witness charge to furnish details
which could only be obtained from the very witness the opposing party has failed to
produce . . . would vitiate the rule that we established in Gonzalez” (78 NY2d at 538). The
proponent of the charge typically lacks the information necessary to know what the
uncalled witness would have said and, thus, whether the testimony would have been
cumulative. The party opposing the charge is in a superior position to demonstrate that the
2 We reject the People’s argument that our decision in People v Edwards (14 NY3d 733 [2010]) is to the contrary. Edwards did not place the initial burden concerning cumulativeness on the party seeking the charge, nor did we suggest that we were altering Gonzalez’s longstanding rule.
-6- -7- No. 44
uncalled witness’s testimony would be cumulative. The opposing party therefore
appropriately bears the initial burden with respect to cumulativeness.
We conclude that defendant met his limited initial burden demonstrating prima facie
entitlement to the missing witness charge (see id. at 537).3 First, defendant established that
Dees likely was knowledgeable about a material issue pending in the case, the identity of
the man who shot the victim. Indeed, the People’s evidence established that Dees was the
only eyewitness to the shooting other than the victim. The materiality of the identification
issue in this case was not in dispute. Defendant also met the second prong of the initial
burden. Defendant asserted that Dees was under the People’s direct control, implying that
he would be expected to testify favorably to the People. Moreover, the trial court was
aware that Dees initially was listed on the People’s witness list, indicating that he
cooperated to some extent with the People in the prosecution of the man that allegedly shot
his then-girlfriend and, as defendant argued in his motion to dismiss, seemed intent on
harming Dees himself. Finally, it is undisputed that the People failed to call Dees to testify.
Given that defendant, as the proponent of the missing witness charge, met his initial
burden, the People were required to rebut that showing by establishing why the charge was
inappropriate. They failed to do so. The People simply asserted, without explanation, that
Dees’s testimony on the issue of identification would be cumulative because “there is
3 Some portion of the argument concerning the request for the missing witness charge occurred at an off-the-record conference. We reiterate that, “[i]n order to allow for effective judicial review, it is imperative that all discussions regarding” a request for such a charge “be clearly set forth on the record so that the respective positions of each party are readily discernible” (Gonzalez, 68 NY2d at 428). -7- -8- No. 44
absolutely no indication that [Dees] would be able to provide anything that wasn’t provided
by [the victim].” This conclusory argument was insufficient to satisfy the People’s burden
in response to defendant’s prima facie showing (see People v Vasquez, 76 NY2d 722, 724
[1990]). Further, the People’s argument was not supported by the record. Dees’s testimony
would not have been “trivial or cumulative”; due to inconsistencies in the victim’s
descriptions of the incident and what the shooter was wearing, the issue of identification
was “in sharp dispute . . . and the testimony of the only additional person who was present
[during the shooting] might have made the difference” (People v Rodriguez, 38 NY2d 95,
101 [1975]; see Gonzalez, 68 NY2d at 430). As noted above, Dees called out to the person
he believed to be the driver when he first saw the car, indicating that he might have been
familiar with at least one person involved in the events preceding the shooting. By contrast,
the victim stated at trial that, although she knew of the person Dees believed to be the
driver, she did not know him personally. Further, Dees saw the shooter before the victim
and presumably had a better basis for an identification. Dees’s testimony may have
“contradicted or added to” the victim’s disputed identification testimony (People v
Almodovar, 62 NY2d 126, 133 [1984]). Because the People failed to rebut defendant’s
prima facie showing of entitlement to the missing witness charge, Supreme Court abused
its discretion by declining to give the charge (see People v Erts, 73 NY2d 872, 874 [1988];
Gonzalez, 68 NY2d at 431).
Finally, the error cannot be classified as harmless because the evidence against
defendant in this case was not overwhelming (see People v Sage, 23 NY3d 16, 29 [2014];
-8- -9- No. 44
People v Crimmins, 36 NY2d 230, 241 [1975]). Accordingly, the Appellate Division order
should be reversed and a new trial ordered.
* * * * * * * * * * * * * * * * *
Order reversed and a new trial ordered. Opinion by Judge Feinman. Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia and Wilson concur.
Decided June 6, 2019
-9-