Was defense counsel’s remark harmless error?

Attorneys representing a Rochester man convicted of sexually assaulting his girlfriend claim they were prevented by the trial court from presenting their strongest defense.

Janet C. Somes, an assistant Monroe County public defender, argued before the Court of Appeals last week that the trial defender should have been able to mention in closing arguments that the prosecutor did not call a police officer witness whose testimony may have refuted the girlfriend’s allegation against Chester J. Thomas.

Thomas, 34, was convicted of first-degree criminal sex act for allegedly forcing his girlfriend to have anal intercourse with him by threatening her with a box cutter and later beating her with a chain.

At Thomas’ 2007 trial, defense counsel Andre A. Vitale, another assistant public defender, contended the claims were fabricated and not included in the original statement Thomas’ girlfriend gave to police because the rape did not happen.

The complainant, according to court documents, had testified that she did not include the allegations in her first statement because she said a police officer told her a judge would never believe her because she was involved in “an intimate relationship” with Thomas.

The trial prosecutor, Grace M. Carducci, did not call the officer to testify. When Vitale mentioned he should have been called, Carducci’s objection was sustained by Monroe County Court Judge Ellen M. Yacknin.

Vitale moved for a mistrial, arguing the court improperly prevented him from discussing the inferences that should have been drawn from the prosecutor’s failure to call the officer, Korey McNees. Judge Yacknin denied the motion, saying Vitale could mention the officer’s absence, but not any inferences that could be drawn from it because defense had not requested a missing witness instruction.

The Appellate Division, Fourth Department, in its June 10, 2011 decision, unanimously affirmed Thomas’ conviction, saying the officer would merely have confirmed the victim’s story.

During Court of Appeals arguments April 30, Somes argued Vitale was entitled to draw an inference from the officer’s absence, but Judge Yacknin told the jury to strike his comments from the record.

“What’s the reasonable possibility that all of this affected the outcome?” Chief Judge Jonathan Lippman asked. “The evidence is pretty overwhelming here. Wouldn’t you agree?”

Somes, who is seeking a new trial for Thomas, disagreed and countered Thomas’ strongest argument was kept from the jury.

“If the strongest argument you have is very, very weak, it could still be harmless error,” Judge Robert S. Smith said.

Somes said there was a lot of missing evidence that one would normally expect if the complainant was telling the truth, and that the strongest piece of evidence was that no officer would have told the complainant a judge would not believe her.

Somes agreed there was evidence that something happened, but how it happened could have been discounted and said the jury could have agreed there was no force.

Judge Smith mentioned that Thomas had a history of abuse and protection order violations, including one in connection with the current case, People v. Thomas (No. 108). He also mentioned the complainant was beaten and a bite mark on her back matched Thomas’ DNA, questioning whether a jury would find the sex was consensual.

“I don’t know what the jury would have found,” Somes said. “These two had a volatile relationship. They beat up each other. They charged each other with crimes. She stabbed him at some point. She tried to stab him at another point. So, how her injuries were sustained, the jury might have had some skepticism about whether or not her testimony was accurate and truthful.”

Assistant District Attorney Geoffrey A. Kaeuper, representing the people on appeal, argued if there was an error, it was harmless.

“You don’t really have any doubt that the ground that the judge did articulate was wrong?” Judge Smith asked.

“I think that the judge is wrong in saying that if you don’t ask for the missing witness charge, you can’t argue it under any circumstances,” Kaeuper replied, adding that he thought the Appellate Division ruled on the correct grounds.

Kaeuper also said Judge Yacknin was correct in sustaining Carducci’s objections and that it should have been sustained on the ground that Vitale was asking the jury to speculate and come to a conclusion that was not fairly inferable from evidence.

“What’s so unfair about the conclusion?” Judge Smith asked. “I mean, you really think that the police officer’s going to come in and say, ‘oh yeah, that’s exactly what I told her. I said you’re a woman in a relationship, no one would ever believe you were raped.’ You really think that it’s likely the officer was going to say that?”

Kaeuper agreed it would be “a very strange thing” to say, but that he would presume the officer would tell the truth. He argued an adverse inference would have been on the assumption the officer would contradict the woman’s testimony.

“I think the point is to say that that witness would so naturally be called by the other side, that the fact that they didn’t call that witness means you can infer they wouldn’t have said something helpful to them,” Kaeuper said. “And here, it wasn’t at all natural for the people to call this witness.”

Judge Smith questioned why the officer was not called.

“There’s a police officer, who’s certainly under your control, who isn’t called,” he said. “Isn’t that a huge gaping hole in the case?”

Kaeuper said the people could establish there was no recent fabrication, independent of the officer. He also said the woman reported the rape and threats to a doctor who did testify about her comments.

“If the people didn’t want to produce the officer, then don’t they have to live with the fact that that’s going to be commented on to the jury?” Judge Victoria A. Graffeo asked.

Kaeuper countered there was physical evidence and that any claims of recent fabrication could have been rebutted. He also said the woman’s statement was not very believable.

On rebuttal, Somes said the people should not have been surprised by the request for an adverse inference and that McNees should have been called when defense counsel was arguing about whether what the woman said the officer told her could come in or not.

A video of the argument was posted Monday to the Court of Appeals website (www.courts.state.ny.us/ctapps) where it is available for viewing.

Thomas was sentenced to 13 years in prison and is housed at the Auburn Correctional Facility in Cayuga County.