State v. Montgomery

¶49

(concurring) — I concur with the holding of the majority but write separately on the application of the missing witness doctrine. Specifically, I would hold that allowing the missing witness instruction in regard to Virgil Montgomery’s 14-year-old grandson was not error. 13

J.M. Johnson, J.

¶50 The jury instruction at issue reads as follows:

If a party does not produce the testimony of a witness who is within the control of or peculiarly available to that party and is [sic] a matter of reasonable probability, it appears naturally in the interest of the party to produce the witness, and if the party fails to satisfactorily explain why it has not called the witness, you may infer that the testimony that the witness would have given would have been unfavorable to the party, if you believe such inference is warranted under all the circumstances of the case.

Verbatim Report of Proceedings at 227; see also 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 5.20, at 130 (2d ed. 1994).

¶51 We review a trial court’s choice of jury instructions for abuse of discretion. State v. Lucky, 128 Wn.2d 727, 731 , *603 912 P.2d 483 (1996), overruled on other grounds by State v. Berlin, 133 Wn.2d 541 , 947 P.2d 700 (1997). While the majority recognizes this deferential standard, it fails to apply it. The record shows that the judge listened to counsel’s extensive argument on the missing witness doctrine, read this court’s decision in Blair, 14 and after much thought, decided to allow the instruction.

¶52 “The majority of jurisdictions permit the missing witness inference in criminal cases where the defense fails to call logical witnesses.” Blair, 117 Wn.2d at 486 (listing cases from other jurisdictions upholding the missing witness instruction). The missing witness instruction may be given when four criteria are met: (1) the potential testimony must be material and not cumulative, (2) the missing witness must be particularly under the defendant’s control rather than equally available to both parties, (3) the missing witness’s absence must not be adequately explained, and (4) the inference must not infringe upon a criminal defendant’s right to silence or shift the burden of proof. Id. at 488-91; majority at 598-99.

¶53 Montgomery’s failure to call his grandson as a witness satisfied these criteria. The majority declares that his grandson’s potential testimony “can hardly be described as ‘key’ testimony.” Majority at 599.1 disagree. Montgomery provided innocent explanations for each of the items he purchased: the hydrogen peroxide was for a dog’s injured leg, the acetone was to remove floor tiles in the family home, the cold medicine was for his son and him, and the matches were for his son’s cigarettes and for the home wood stove.

¶54 Montgomery testified his grandson could corroborate his innocent explanations for each item. Montgomery lived in a trailer with his son and grandson. His grandson could have testified about the turned up floor tiles, the wood stove, the injured dog, the smoking habits of his father, and even the two different types of cold medicine.

*604 ¶55 This testimony would not have been cumulative. Montgomery’s daughter did not live in the home. Thus, she did not testify about the turned up tiles, the wood stove, the smoking habits of her brother, or the two types of cold medicine. She testified only about the dog’s injured paw. 15

¶56 Montgomery’s grandson was particularly available to Montgomery.

“For a witness to be ‘available’ to one party to an action, there must have been such a community of interest between the party and the witness, or the party must have so superior an opportunity for knowledge of a witness, as in ordinary experience would have made it reasonably probable that the witness would have been called to testify for such party except for the fact that his testimony would have been damaging.”

Blair, 117 Wn.2d at 490 (quoting State v. Davis, 73 Wn.2d 271, 277 , 438 P.2d 185 (1968)). Montgomery and his grandson had “such a community of interest.” They are close relatives. See Alan Stephens, Annotation, Adverse Presumption or Inference Based on Party’s Failure To Produce or Examine Family Member Other Than Spouse — Modern Cases, 80 A.L.R.4th 337 , § 2[a], at 343 (1990) (“Family relationships are generally considered a significant factor rendering a witness available to a party for purposes of the missing witness rule . . . .”). 16 They lived together, and Montgomery was responsible for his minor grandson’s care.

¶57 Montgomery’s grandson’s absence was also not adequately explained. Although attending school is undoubtedly important, when your grandfather could be imprisoned *605 for up to 10 years for a crime he did not commit, 17 it seems unreasonable not to miss a day of school to testify.

¶58 Lastly, the burden of proof was not improperly shifted. Reference to a defendant’s failure to produce a witness is not an impermissible shifting of the burden of proof. Blair, 117 Wn.2d at 491. Here, both the trial court and the prosecutor instructed that it was the responsibility of the State to prove each element of the crime charged beyond a reasonable doubt and that Montgomery had no burden of proof. See State v. Lord, 117 Wn.2d 829, 861 , 822 P.2d 177 (1991) (“jury is presumed to have heeded the instructions of the court”). 18

¶59 As a final note, and most important, I believe the majority underestimates the ability of juries. “‘Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.’ ” People v. Carey, 41 Cal. 4th 109, 130 , 158 P.3d 743 , 59 Cal. Rptr. 3d 172 (2007) (internal quotation marks omitted) (quoting People v. Lewis, 26 Cal. 4th 334, 390 , 28 P.3d 34 , 110 Cal. Rptr. 2d 272 (2001)). Two phrases in the “missing witness” jury instruction stand out: “may infer” and “if. . . such inference is warranted under all circumstances of the case.” (Emphasis added.) The instruction did not require jurors to infer unfavorable testimony. It merely allowed them to do so if, after hearing all of the evidence, it was warranted.

¶60 Montgomery claimed his grandson could have corroborated his explanations for four or five of the drug ingredients he innocently purchased. His grandson did not testify, and his absence was not adequately explained. Allowing the missing witness instruction was not an abuse of discretion. I concur with the majority’s reversal of these convictions.

Fairhurst, J., concurs with J.M. Johnson, J.

I agree with the majority that it was error to permit the missing witness instruction in regard to Montgomery’s landlord. Although the prosecution did not learn of Montgomery’s agreement with his landlord until trial, the landlord was not under Montgomery’s control, as was his grandson who lived with him. Additionally, the prosecution first claimed in its closing argument that the landlord was missing, leaving Montgomery no opportunity to explain his absence.

State v. Blair, 117 Wn.2d 479, 486 , 816 P.2d 718 (1991).

Although the majority states that Montgomery’s daughter testified that the trailer was in bad repair, her only testimony regarding the trailer was that the dog cut its leg on the tin skirting surrounding the trailer. She made no mention of the general condition of the trailer or the turned up floor tiles inside the trailer.

Although the majority notes that “[o]ther states have approached the issue with particular care when the missing witness is a close family member,” (majority at 600), “in cases involving the accused’s failure to present testimony from a family member other than a spouse, the missing witness inference has been approved about twice as often as not.” Stephens, supra, § 2[a], at 344.

See RCW 69.50.440.

The jury instruction obviously did not infringe upon Montgomery’s right to silence because he waived this right and testified at trial.