People v. RodriguezPeople v. Rodriguez
Defendant was convicted, after a jury trial, of the crimes of possession of a weapon as a felony (Penal Law, § 265.05, subd 3, renumbered by L 1974, ch 1041 as § 265.01, subd [1] and §265.02, subd [1]) and criminal possession of a dangerous drug in the sixth degree (former Penal Law, § 220.05). The Appellate Division unanimously affirmed. Defendant, on this appeal to us, argues that the Trial Judge committed reversible errors, both by instructing the jury that it could consider defendant’s failure to call his wife, an eyewitness to the events аt issue, as a witness and in earlier highlighting comments on that fact.
We conclude that there was no error.
A summary of the evidence is helpful to an understanding of the issue. On August 27, 1971, three narcotics officers of the New York City Police Department, preparatory to the exеcution of a warrant authorizing them to conduct a search of defendant’s apartment, were waiting in front of the house in which it was located, when they saw defendant’s car pull up to the curb. The officers spoke to thе driver, who was not the defendant, and two of the officers accompanied him to the apartment, while the third one, Officer McManus, stationed himself in the rear yard, from which he could observe the windows of the apartment. Within minutеs, McManus saw one of the windows open and a paper bag thrown out. He found it contained drugs and a .38 calibre revolver. He quickly ran into the building, where he found his fellow officers still in the hallway outside the apartment door. As MсManus arrived, the defendant opened the door and was placed under arrest. His wife and a family friend, Onida Orengo were in the apartment at the time.
At the trial, Rodriguez’ defense was built around the claim that he was the victim of а “frame-up” and that the officers had stolen $800 from him after entering the apartment on the pretext that they were investigating a hit-and-run accident. He testified that the contraband McManus had retrieved was not his and denied throwing it оut the window.
As defendant was about to leave the stand following the completion of his cross-examination, the Trial Judge, in the presence of the jury, asked him whether his wife was present
Subsequently, upon completion of the main charge, defense counsel, in the presence of the jury, requested a supplemental charge that "the defendant [need] not take the stand, nor need he bring witnesses in his behalf.” The court replied: "The absence of a witness-you want to take exception to what I say, you mаy. The jury may consider the absence of any witness if the witness did have evidence that may have shed light upon material aspects of this case and provided that that witness was in control of the litigant failing to call that witness.”
Ordinarily, a court may not comment upon a defendant’s failure to testify or otherwise to come forward with evidence, but, once a defendant does so, his failure to call an available witness who is under defendant’s control and has information material to the case may be brought to the jurors’ attention for their consideration (People v Leonardo,
Though the rule ordinarily does not apply when a witness is equally accessible to both parties (Richardson, Evidence [10th ed], § 92), it may come into play even then if it appears that such a witness is favorable to one party and hostile to thе other. (See discussion in McCormick, Evidence [2d ed, 1972], § 272, pp 657-658; 2 Wigmore, Evidence [3d ed], § 288.)
In both instances, respected authorities make clear that, so long as comment or instruction on the absence of the witness
The mere fact that an uncalled witness is the spouse of the accused does not alter the situation. For it has been held, in criminal cases (People v Hovey,
The marital privilege historically has developed from the common-law rule which completely disqualified a wife from testifying for or against her husband. She was held to be incompetent to do so for two reasons: first, spouses were considered as an entity and, therefore, deemed to be interested in the outcome of the litigation in which thе other spouse was a direct party; second, it was considered necessary to avoid subjecting domestic tranquility to the disturbance which was thought to flow from the giving of testimony by one spouse against the other. (1 Coke, Commentary upon Littleton [19th ed, 1832], § 6b; 2 Kent’s Commentaries 179; see Bentley v Cooke, 3 Doug [K B Reports] 422.)
The first universal exception to that rule was the application of the doctrine of "necessity”, permitting a spouse to testify where a crime was committed by one spouse against the other. (8 Wigmore, Evidence [McNaughton rev, 1961], op. cit., § 2239.) From this point on, the majority of jurisdictions (Hutchins & Slesinger, Some Observations on the Law of Evidence: Family Relations, 13 Minn L Rev 675; see statutes collected in Note, 38 Va L Rev 359), including New York
Further, this is not a case where a witness is a codefendant (People v Slover,
Defendant’s counsel’s statement to the court that the wife would not be called because she had been arrested on an unrelated burglary charge the day before the defense presented its case and because her nervousness would cause her to be a poor witness did not preclude the supplementary charge. The reasonableness of those explanations were for the' triers of fact and, while the court did not instruct the jury to that effect, there was neither аn exception or request on that account, nor any attempt to offer the explanatory matter before the Judge in any greater detail than described above, or before the jury at all, as a basis for such a charge. While a court, on its own, may determine that the fact that a witness has an extensive record of prior convictions, and will, therefore, be prejudicially vulnerable to damaging impeachment, constitutes a rеasonable explanation, appellant here did not assert that his wife had any prior convictions but only that she had suffered an arrest, which, save for its underlying facts (cf. People v Morrison,
In sum, in not putting his wife on the stand, the defendant chose not tо call a material witness over whom he had control. The rule is that the jury, therefore, was entitled to consider that fact in assessing the strength of the evidence offered by the opposite side, here the People, on the issue which she was in a position to controvert. (Noce v Kaufman,
So far as the questions and comments by the Trial Judge are concerned, though they drew unnecessary attention to the fact that the wife was a witness and would not testify and, therefore, it would have been preferable if they had not taken place, we cannot say, especially in view of the restrained way in which the charge itself was phrased, that the defendant was prejudiced. (Cf. People v Hinton,
Accordingly, the order of the Appellate Division should be affirmed.
Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, and Cooke concur.
Order affirmed.
Notes
. This rule is not changed by our decision in People v Harris (
. Compare the Fеderal rule. Favorable testimony has been admissible since Funk v United States (
. Although one writer suggests that New York permits comment upon assertion of the privilegе (Richardson, Evidence [10th ed], op. cit, § 457, pp 447-448), at least one lower New York court has held to the contrary (People v Afarian,