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State v. Tahair3/2/2001
ment or instruction on the absence of the witness is unaccompanied by [comment] on the accused's personal failure to testify, no constitutional right is infringed"), we do agree that the constitutional argument supports the conclusion that, as a matter of sound judicial policy, the instruction is no longer warranted in criminal cases. See Malave, 737 A.2d at 451 (acknowledging that constitutional argument supports conclusion that, "as a policy matter," the instruction should be abandoned).
In sum, we hold that the missing witness instruction should no longer be given in criminal cases. Accordingly, we conclude that the trial court erred in so instructing here. The facts do not present, and therefore we do not decide, the related question of whether counsel-as opposed to the court-may comment upon an opposing party's failure to call a witness, nor do we consider whether the missing witness instruction remains viable in a civil proceeding.
Although we conclude that the missing witness instruction should no longer be given in criminal cases, we do not believe that the charge to the jury in this case warrants a new trial. As noted, defendant did not preserve his objection to the charge. Accordingly, we review only for plain error, which exists "only in exceptional circumstances where a failure to recognize error would result in a miscarriage of justice, or where there is glaring error so grave and serious that it strikes at the very heart of the defendant's constitutional rights." State v. Pelican, 160 Vt. 536, 538, 632 A.2d 24, 26 (1993). "The error must not only affect substantial rights, but also have an unfair prejudicial impact on the jury's deliberations." Carpenter, __ Vt. at __, 749 A.2d at 1140.
The record here demonstrates that there was ample evidence to support the jury's verdict without any reliance on the missing witness permissive inference. Indeed, the evidence against defendant was compelling. Officer Bean testified that Sartwell identified defendant as the driver at the scene. Sartwell readily acknowledged, as well, that she had identified defendant as the driver in her statement to the officer. In addition, officer Bean testified that defendant himself admitted driving the car at the scene, and only subsequently changed his story to claim that Susan Olsaver was the driver. He could not explain, however, who drove the car after Olsaver left, telling the officer, "You figure it out." Neither of the investigating officers recalled either Sartwell or defendant identifying a male named "Kevin" as the driver. A passing motorist identified only two persons at the scene, a man and a woman, whom she described as arguing. The defense theory, in contrast, was riddled with inconsistencies; there was no adequate explanation for their failure to mention either Kevin Whitcomb or Gerald Barber to the officers at the time of the incident, and Sartwell acknowledged on the stand that she and defendant had been dating at the time of the incident, and were still together at the time of trial. Thus, her belated claim that defendant was not the driver was implausible and unpersuasive. We thus perceive no miscarriage of justice in the verdict. See id. at __, 749 A.2d at 1140 (no plain error demonstrated where jury did not need to rely on permissive inference of intoxication in view of other credible evidence supporting verdict).
Moreover, as noted, the missing witness instruction did not impermissibly shift the burden of proof to defendant. The jury was allowed, but was not required, to infer that the absent witness's testimony would be harmful. The court also correctly instructed the jury on the State's burden of proof, explaining that the burden "remains on the state throughout
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