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State v. Tahair3/2/2001
On Appeal from District Court of Vermont, Unit No. 2, Chittenden Circuit November Term, 2000 Michael S. Kupersmith, J.
Defendant appeals from a conviction, based on a jury verdict, of driving under the influence of intoxicating liquor, in violation of 23 V.S.A. § 1201(a)(2). He contends the trial court committed plain error in instructing the jury that it could infer from defendant's failure to call certain witnesses that their testimony would have been harmful to defendant. We conclude that the so-called "missing witness" instruction has outlived its usefulness in criminal trials, and should be abandoned. We also conclude, however, that its application in this case did not deprive defendant of any substantial rights or unfairly prejudice the jury deliberations. Accordingly, we affirm the judgment.
The record evidence was as follows. On the afternoon of July 6, 1999, Burlington police officers Bean and Ward responded to a domestic assault complaint on Riverside Avenue in front of Corrigan's Auto Repair. Upon their arrival, the officers observed a man and woman, later identified as defendant and Patricia Sartwell, in the general vicinity of a maroon Chevrolet Corsica registered to defendant. The vehicle's windows were broken, glass was scattered on the ground, and the officers later observed that the key was broken off in the ignition.
Officer Bean spoke with Sartwell while Officer Ward met with defendant. Bean observed that Sartwell was crying and had scrapes on her arm. The officer testified that he asked Sartwell what had happened, and she informed him that she had been walking home from work when a vehicle passed which she recognized. Defendant and another woman were in the car. The car stopped about 100 to 200 feet past Sartwell, and a woman got out and fled. Sartwell told the officer that defendant then drove back to where she was standing. Although Sartwell acknowledged that she was angry about the other woman, and that she had smashed defendant's car windows, she also told the officer that she did not want to get defendant in trouble.
Officer Ward testified that, while speaking with defendant, he observed that defendant smelled of alcohol, and that his eyes were dilated. The officer testified that defendant claimed to be a passenger in the car driven by a woman named Susan Olsaver. Defendant told the officer that Olsaver pulled over after passing Sartwell on the road, and left the scene because Sartwell was obviously angry. Defendant then returned to speak with Sartwell, who used a baseball bat to smash his car windows. Defendant did not indicate who drove his car back to Sartwell after Olsaver left.
Officer Bean also spoke with defendant at the scene. According to Bean, defendant initially admitted that he had been driving the Cavalier with a drink in his hand when he passed Sartwell, but later changed his story to indicate that the woman in the car, Olsaver, was the driver. When Bean asked him who drove the car back to Sartwell after Olsaver left, he said, "You figure it out." According to Bean, defendant never identified anyone named "Kevin" as the driver, and never mentioned anyone named "Gerald."
A motorist who was driving on Riverside Avenue at the time testified that she observed a vehicle stopped along the side of the road, and saw a woman with something in her hand smashing out the windows. The motorist also observed a man who was standing near the driver's door of the vehicle walk to the rear of the car, and moments later saw the man and woman facing each other and gesturing as though they were arguing.
The defense claimed at trial that an individual named Kevin Whitcomb was actually driving defendant's ve
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