concluding same when government first learns of missing witness at trial
How later courts described this case
- concluding same when government first learns of missing witness at trial
Written by the judges who cited it.
The opinion
FAHY, Senior Circuit Judge
(concurring in part, dissenting in part):
I concur in affirmance of the conviction of appellant Stevenson. As to appellant White, however, I would reverse for a new trial.
The evidence against Stevenson was so strong that the errors to which I shall refer should be deemed harmless as to him. He was quickly arrested with a number of articles taken from the store. White was also promptly arrested, but no stolen article was found in his possession.
The Government did not rely solely upon the testimony given at trial. It was supplemented by two instructions requested by the Government and to which I now refer. One was on flight, the other based on the absence of a possible witness. Instructions of this kind, used to strengthen a case beyond that which resides directly in the evidence, should be sparsely used and carefully composed. Austin v. United States, 134 U.S.App.D.C. 259 , 414 F.2d 1155 , involving instructions on flight, and see Brown v. United States, 134 U.S.App.D.C. 269 , 414 F.2d 1165 , involving instructions under the missing witness rule. In the present case each of the two instructions *928 referred to failed to meet the standards, respectively, of Austin on flight, and Brown on the missing witness rule. In Austin this court disapproved an instruction on flight which was in the same terms as that given in this case; and in Brown we said with respect to a missing witness problem:
Thus before a missing witness instruction can be given against a defendant there must be a showing that the witness was not available to be subpoenaed by the Government. In the recent case of Wynn v. United States, 130 U.S.App.D.C. 60 , 64-65 n. 23, 397 F.2d 621 , 625-626 n. 23 (1967), we reiterated this requirement, noting there the absence of certain critical facts:
“Among the circumstances which do not appear are the extent of appellant’s knowledge of the whereabouts of the witnesses at the time of trial; their then physical amenability to subpoena; and, on the other hand, the Government’s opportunities to itself call them after learning of their identity, either before or during trial. * * * ”
The trial judge should make an inquiry on this point before giving the instruction. See Stewart v. United States, 135 U.S.App.D.C. 274 , 418 F.2d 1110 (decided February 19, 1969).
Brown, supra, 414 F.2d at 1167.
These requirements were not met in this case. No inquiry as thus required was made. I adhere to the position this court has previously taken.
As to White the jury might have doubted both the accuracy of the officer’s identification among the several persons at the scene and, also, the sufficiency of the testimony that any “breaking” could be laid to White, essential to a conviction of burglary. * I cannot say with any confidence that the strength erroneously added to the case against White by the instructions referred to, especially that on flight, did not significantly influence the verdict against him. I refer especially to the instruction on flight because the circumstances of the officers’ unexpected arrival in the vicinity of the group could well have led to White’s flight for reasons other than a consciousness of guilt of conduct later charged to him as criminal. Cooper v. United States, 94 U.S.App.D.C. 343 , 218 F.2d 39 ; Miller v. United States, 116 U.S.App.D.C. 45 , 320 F.2d 767 ; Austin v. United States, supra.
On the whole case, as to White, I consider the errors in the instructions open for review under Rule 52(a), Fed.R. Crim.P.
He was acquitted of the charge of petit larceny.