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State v. Durham7/26/1999
n opposing party's failure to call an available and material witness whose testimony would ordinarily be expected to favor that party. State v. Philpott, 882 S.W.2d 394, 407 (Tenn. Crim. App. 1994). However, before the missing witness rule can be invoked, the record must show that (1) the witness had knowledge of material facts; (2) a relationship existed between the witness and the party that would naturally incline the witness to favor the party; and (3) the missing witness was available to the process of the court for trial. Delk, 590 S.W.2d at 440. See also State v. Bigbee, 885 S.W.2d 797, 804 (Tenn. 1994). Moreover, when a party intends to argue the missing witness inference, the party should inform the court at the earliest opportunity so that an evidentiary hearing, if necessary, can be held to establish whether the prerequisites set forth in Delk have been met. State v. Francis, 669 S.W.2d 85, 90 (Tenn. 1984); Philpott, 882 S.W.2d at 407 n. 27.
Initially, there is no evidence in the record that the State informed the trial court of its intention to argue the missing witness inference. Rather, the record reflects that the prosecutor made the following statements in rebutting the appellant's closing argument:
"Sherry has been -- who set this thing perhaps in motion, at least in Mrs. Durham's mind, after she became angry when she and her mother quarreled and her mother slapped her. She said, Well, you better watch mother, she's no angel. Was she called by the defense to say, Mother was having an affair because I knew about it?"
The appellant immediately objected to the prosecutor's argument. However, the trial court observed that defense counsel had argued to the jury that the appellant reasonably believed his wife was having an affair. The trial court then concluded that Ms. Whaley's testimony would have been relevant to this issue and overruled the objection. The trial court made no other findings concerning the Delk criteria.
First, we agree with the trial court that a primary issue at trial was whether the appellant was "in a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner" at the time of the shooting. Tenn. Code. Ann. § 39-13-211 (1997). Additionally, the record supports a Conclusion that Ms. Whaley possessed knowledge of facts material to this issue. Certainly, the record suggests that she could have testified concerning any inflammatory statements she had made to the appellant prior to the murder and also concerning the appellant's agitation over his wife's alleged infidelity during the days immediately preceding the murder.
However, we also note that the State suggested to the jury in its closing argument that the appellant should have called his daughter to testify concerning her knowledge of any affair. We agree with the appellant that, to the extent Ms. Whaley declined to share her knowledge with the appellant, her knowledge of an affair was irrelevant. The appellant testified that, following her vague accusation that Mrs. Durham was "no angel," Ms. Whaley refused to share with the appellant any knowledge she possessed concerning her mother's activities.
In any event, the record does not reflect the remaining Delk criteria. Although Ms. Whaley is the appellant's daughter, a relationship that would perhaps naturally incline her to favor the appellant, the appellant testified at trial that Ms. Whaley was particularly close to her mother. Indeed, while she did not testify for the State, the record reflects that the State subpoenaed Ms. Whaley as a witness. We have previously observed that, under Delk, "it must not be likely that the witness will be as favorab
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