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State v. Tahair3/2/2001
hicle during the events in question, and that defendant was following in a different car driven by one Gerald Barber. Sartwell testified for the defense. She admitted that she saw defendant's car pass, recognized it as defendant's, became angry, and smashed its windows. She denied, however, that defendant was the driver. She indicated instead that she did not know the man who was driving the car, although she recognized him as someone she had seen with defendant. She could not explain where the man went after the police arrived. She acknowledged informing the police at the scene that defendant had driven the car back to talk with her, but claimed that she had lied to them because she was angry with defendant and wanted to get him in trouble.
Defendant testified in his own behalf. He claimed that several days before the incident he had loaned his car to a friend named Kevin Whitcomb. He stated that, on the date in question, he and Whitcomb and Susan Olsaver and another friend named Gerald Barber all left another friend's house in Burlington. According to defendant, he was in a car driven by Barber, and Whitcomb drove off in defendant's car with Olsaver. While driving down Riverside Avenue with Barber, defendant observed Olsaver running up the road. They stopped, and Olsaver informed defendant that Sartwell was upset and was smashing his car windows. Barber then dropped off defendant at his car and left. Shortly thereafter, the police arrived. Defendant claimed that he informed the officers that a friend had been driving his car. He denied ever having told officer Bean that he was the driver. He also testified that he later attempted, without success, to locate Whitcomb and Barber.
At trial, neither the State nor defendant produced Whitcomb, Barber, or Olsaver as a witness. The trial court, on its own initiative, gave a missing witness instruction to the jury. The instruction provided as follows:
There was evidence that there were witnesses to the incident in question who were not called on to testify. These witnesses presumably could have corroborated the other defense witnesses. I instruct you that you may infer from the failure to call the witnesses that the testimony that would have been offered by those witnesses would have in some way been harmful to the defendant's case. However, I would caution you that there are many possible reasons why a particular witness would not be called to trial. The party that didn't call the witness is entitled to explain the reason to you. If you find that there was another explanation for the witness's failure to be called, then I instruct you that you should not make any inference concerning the potential harm or benefit of his or her testimony.
Although defense counsel objected to the instruction at the charge conference, he failed to renew his objection after the instruction was delivered to the jury. Accordingly, we review the claim on appeal for plain error. See State v. Carpenter, __ Vt. __, __, 749 A.2d 1137, 1139 (2000) (where claimed instructional error was not properly preserved after charge, review for plain error was appropriate standard); State v. Wheelock, 158 Vt. 302, 306, 609 A.2d 972, 975 (1992) (failure to object after instruction is given to jury is considered waiver of any error even if substance of objection is made known before jury charge).
For more than one hundred years, this Court-in conformity with most other state and federal courts-has approved a "missing witness" instruction to the effect that the jury "may draw an inference against a party who fails to call a witness whose testimony would apparently be useful to that party." State v. Trombly, 148 Vt. 293, 304, 532 A.2d 963, 970 (1987); see S
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