ROBERTO MARTINEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Roberto Martinez appealed his convictions for false imprisonment, grand theft, and burglary, arguing that the trial court violated his right to effective assistance of counsel by prohibiting his attorney from arguing that the State's failure to call a codefendant (who was listed as a state witness) created an adverse inference. The court affirmed, holding that no special relationship existed between the codefendant and the State that would warrant such an inference.
The court held that no special relationship existed between the codefendant and the State sufficient to warrant an adverse inference from the State's failure to call the codefendant as a witness. The trial court properly prohibited the argument because the codefendant was not shown to be peculiarly within the State's power to produce in a manner that would distinguish the State's access from the defendant's access.
[1] A party may argue that an adverse inference arises from the opposing party's failure to call a witness if the witness is peculiarly within the party's power to produce an…
[2] The "availability" of a witness to a party must consider practical and physical factors, including the witness's relationship to the party.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The general rule is that an inference adverse to a party based on the party's failure to call a witness is permissible when it is shown that the witness is peculiarly within the party's power to produce and the testimony of the witness would elucidate the transaction.”
Establishes the foundational test for when adverse inferences from failure to call a witness are permissible.
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Join FLexlaw to unlock all legal intelligenceMartinez was convicted of false imprisonment, grand theft, and burglary. A codefendant entered a guilty plea, was listed as a state witness, was broug…
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FERGUSON, Judge.
Defendant appeals his convictions for false imprisonment, grand theft and burglary. He contends that the trial court erred in prohibiting his attorney from arguing to the jury that the State’s unexplained failure to call the codefendant, who was listed as a state witness, created an inference that the codefendant’s testimony would not have been favorable to the State. By precluding the argument, appellant contends, the court infringed upon his right to effective assistance of counsel.
More specifically the argument is that where a codefendant enters a guilty plea, is listed as a state witness, then gives deposition testimony damaging to defendant, the codefendant has a special relationship to the State which diminishes defendant’s access to the witness as compared to the State’s access, so that even though the State chooses not to call the codefendant at trial, defendant is free to argue that the jury may draw negative inferences from the fact that the State refused to call the codefendant.
The general rule is that an inference adverse to a party based on the party’s failure to call a witness is permissible when it is shown that the witness is peculiarly within the party’s power to produce and the testimony of the witness would elucidate the transaction. Kindell v. State, 413 So. 2d 1283, 1288 (Fla. 3d DCA 1982) (Daniel S. Pearson, J., specially concurring) (citing Graves v. United States, 150 U.S. 118, 14 S.Ct. 40, 37 L.Ed. 1021 (1893), and other authorities).
“ ‘Availability’ of a witness to a party must take into account both practical and physical considerations, [cite omitted]. Thus whether a person is to be regarded as peculiarly within the control of one party may depend as much on his relationship to that party as on his physical availability.” United States v. Blakemore, 489 F. 2d 193, 195 (6th Cir.1973).
Such special relationships have been found where (1) the witness was defendant’s daughter, State v. Michaels, 454 So. 2d 560 (Fla.1984), (2) there was a friendship between the party and witness, Simmons v. State, 463 So. 2d 423 (Fla. 3d DCA 1985), (3) the witness was the employer of the defendant, Milton v. United States, 110 F. 2d 556 (D.C.Cir.1940), (4) the witness was a police officer closely associated with the government in developing its case and had an interest in seeing his police work vindicated by defendant’s conviction, United States v. Mahone, 537 F. 2d 922 (7th Cir.), cert. denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976), (5) the witnesses were state employees who were present at alleged suggestive pretrial line-up and were still in state’s employ at time of trial, United States ex rel. Cannon v. Smith, 527 F. 2d 702 (2d Cir.1975), and (6) the witness was an informer associated with government in development of case against defendant and there was no indication at trial of any break in the association, Burgess v. United States, 440 F. 2d 226 (D.C. Cir.1970).
We find in this record only that the codefendant entered a plea to the charges, was listed by the State as a witness, was brought to Miami from a prison elsewhere in the state in the event his testimony was desired by the State, and was deposed by the defendant. No special relationship can be found from these facts which make the codefendant less available to the defendant than to the State. A “special relationship” takes its substance from extraneous circumstances, natural or contractual, which give rise to testimonial predilection favorable to a party. Such special circumstances, suggestive of favoritism to the State, are lacking in this case. An argument could be made that in the natural order of things, absent some inducement to do otherwise, a codefendant whose case has been disposed of by trial or plea could be expected to give testimony favorable to the defendant — which might explain the State’s decision to not call him as its witness.
A second issue, which challenges the sufficiency of the State’s proof as to ownership of the burglarized premises, is affirmed on authority of In the Interest of M.E., 370 So. 2d 795 (Fla.1979) and Adirim v. State, 350 So. 2d 1082 (Fla. 3d DCA 1977), cert. denied, 365 So. 2d 709 (Fla.1978).
Affirmed.
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Citator
Cited By (19 total)
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Terry v. State, 668 So. 2d 954 (Fla. 1996)…560, 562 (Fla.1984), we said that [w]hen such witnesses are equally available to both parties, no inference should be drawn or comments made on the failure of either party to call the witness. We agree with the district court in Martinez v. State, 478 So. 2d 871, 871 (Fla. 3d DCA 1985), review denied, 488 So. 2d 830 (Fla.1986), that an inference adverse to a party based on the party’s failure to call a witness is permissible when it is shown that the witness is peculiarly within the party’s power to produc…
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Haliburton v. State, 561 So. 2d 248 (Fla. 1990)…560, 562 (Fla.1984), we said that [wjhen such witnesses are equally available to both parties, no inference should be drawn or comments made on the failure of either party to call the witness. We agree with the district court in Martinez v. State, 478 So. 2d 871, 871 (Fla. 3d DCA 1985), review denied, 488 So. 2d 830 (Fla.1986), that an inference adverse to a party based on the party’s failure to call a witness is permissible when it is shown that the witness is peculiarly within the party’s power to produc…
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Amos v. State, 618 So. 2d 157 (Fla. 1993)…was never charged with any of the crimes committed by Spencer and Amos. . We note that the cases cited by our colleague in dissent deal with situations where the witness in question was never called by either party. Furthermore, Martinez v. State, 478 So. 2d 871 (Fla. 3d DCA 1985), review denied, 488 So. 2d 830 (Fla.1986), cited in the dissent, supports our position that, in certain situations, comment on a party’s failure to call a witness is permissible. In this instance, the defense called the witness an…1 / 2
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Graves v. United States, 150 U.S. 118 (U.S. 1893)
- United States v. Otha Lee Mahone, 537 F.2d 922 (7th Cir. 1976)
- al. v. United States, 110 F.2d 556 (D.C. Cir. 1940)
- Sellars v. California, 429 U.S. 1025 (U.S. 1976)
- Spates v. Vollero, 429 U.S. 1025 (U.S. 1976)
- In the Interest of M. E., 370 So. 2d 795 (Fla. 1979)
- Cleveland Burgess v. United States, 440 F.2d 226 (D.C. Cir. 1970)
- State v. Michaels, 454 So. 2d 560 (Fla. 1984)
- Kindell v. State, 413 So. 2d 1283 (Fla. 3d DCA 1982)
- Adirim v. State, 350 So. 2d 1082 (Fla. 3d DCA 1977)