State v. Smith
735 S.W.2d 41, 1987 Mo. App. LEXIS 4185 (1987)
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Rule of Law:
A party may not argue an adverse inference from the opposing party's failure to call a witness if that witness is equally available to both parties, such as through a pre-trial deposition, or if the witness's testimony would be merely cumulative to evidence already presented.
Facts:
- On the evening of January 14, 1985, William P. Smith, armed with a gun, entered a Church's Chicken restaurant while his friends Bryant Washington, Wilfred Brooks, and Willie Alexander waited outside.
- Smith robbed the cashier of chicken and money, then rejoined his friends to share the stolen food.
- Shortly thereafter, Smith and his friends went to a nearby Seven-Eleven store, where Smith again entered alone and used a gun to rob the cashier of liquor and money.
- As Smith left the Seven-Eleven, he fired two shots into the store before rejoining his friends.
- The group returned to Deborah Johnson's apartment, where Smith hid the stolen money and they shared the stolen liquor.
- The next evening, January 15, 1985, Smith entered Antone's Liquor Store while his friends waited outside.
- Smith ran out of the store carrying a sack of money and liquor and later told Alexander that he had "hit him in his chest" and "he just fell."
- Inside Antone's, the manager, Earl Vince McCann, was found dead from a gunshot wound to the chest.
- Smith later admitted to Deborah Johnson that he had committed all three robberies and the murder.
Procedural Posture:
- The State of Missouri charged William P. Smith in the trial court with two counts of first degree robbery, two counts of armed criminal action, and one count of second degree murder.
- The trial court granted the State's request to join all five charges, stemming from three separate criminal incidents, into a single trial.
- During the trial, the court sustained the State's objection and prohibited Smith's counsel from arguing that the jury should draw a negative inference from the State's decision not to call two of Smith's accomplices as witnesses.
- A jury found Smith guilty on all counts.
- Smith, as the appellant, appealed his convictions to the Missouri Court of Appeals, Western District, an intermediate appellate court, arguing the trial court erred in its rulings.
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Issue:
Does a trial court abuse its discretion by prohibiting a defendant's counsel from arguing to the jury that it should draw an adverse inference from the State's failure to call witnesses who had been deposed by the defendant and whose testimony would have been cumulative?
Opinions:
Majority - Turnage, Judge
No, the trial court did not abuse its discretion. A party is not entitled to an adverse inference from the opponent's failure to call a witness when that witness is equally available to both parties or when their testimony would be merely cumulative. Here, Smith's counsel had deposed the two uncalled witnesses, Brooks and Washington, making them equally available to the defense. Since Smith was unable to develop favorable testimony from them in depositions, it would be illogical to allow him to argue that their testimony would have aided his case. Furthermore, the State did call Willie Alexander, whose testimony covered the same basic events as Brooks' and Washington's, making their potential testimony cumulative. Forcing the State to present three versions of the same story would disserve judicial economy. The court also held that joining the offenses for one trial was proper because the crimes were of a 'similar character,' and refusing to sever them was not an abuse of discretion as there was no substantial prejudice to Smith.
Analysis:
This case reinforces the principle that the 'missing witness' adverse inference is not a tool to be used when discovery has made a witness's potential testimony known and available to both sides. It solidifies the rule that deposing a witness makes them 'equally available,' effectively neutralizing this common trial tactic. The decision also underscores the broad discretion afforded to trial courts in managing judicial economy, both by limiting cumulative evidence and by favoring the joinder of offenses that are of a 'same or similar character' unless substantial prejudice can be demonstrated.
