NY Court of Appeals affirms attempted murder conviction

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The New York State Court of Appeals has affirmed an attempted murder conviction and rejected a defense argument that the judge should have given the jury a missing witness instruction.

Defendant Kham Khiamdavanh was convicted in December 2021, before Oneida County Court Judge Robert Bauer, of attempted second-degree murder, first-degree assault, and second-degree criminal possession of a weapon.

The charges stem from a road rage incident at a traffic signal in Utica, where Khiamdavanh shot and permanently paralyzed the victim.

Khiamdavanh asserted a justification defense.

Khiamdavanh, his son, the victim, and one of the two other men travelling in the victim’s car testified at the trial. Because the prosecution did not call the third man travelling in the victim’s car to testify, Khiamdavanh requested a missing witness instruction.

Bauer denied the request for a missing witness instruction on the ground that the missing witness’s testimony would have been cumulative. Khiamdavanh’s appellate attorney argued that the denial was an abuse of discretion.

The Appellate Division of state Supreme Court, Fourth Department, affirmed the conviction and Khiamdavanh appealed to the Court of Appeals.

“We hold that the court did not abuse its discretion in denying defendant’s request,” the Court of Appeals panel wrote.

The missing witness instruction allows a jury to draw an unfavorable inference based on a party’s failure to call a witness who would normally be expected to support that party’s version of events, according to the decision.

The charge seeks to dispel any advantage a party may receive when expected to call a particular witness but for strategic reasons does not.

The proponent of a missing witness charge must first “promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call him to testify,” the court wrote.

Once the proponent has satisfied that initial burden, the burden shifts to the opponent to account for the witness’ absence or otherwise demonstrate that the charge would not be appropriate, according to the court.

The opposing party may establish that the missing witness charge would be inappropriate because the missing witness’s testimony would be cumulative.

If the opponent successfully rebuts the proponent’s prima facie showing, the proponent retains the ultimate burden to show the charge would be appropriate, the court wrote.

The only issue on appeal is whether County Court abused its discretion in determining that the missing witness’s testimony would have been cumulative, the court ruled.

“The People met their burden to show that the missing witness’s testimony would have been cumulative by specifically directing the court to the trial testimony and the supporting deposition of the missing witness, which offered a reasonable expectation of how the witness would testify by recounting the witness’s observations of the charged conduct,” the panel ruled.

The defense failed to point to any deficiencies in the missing witness’s deposition, inconsistencies with the testimony of the other witnesses, or evidence in the record or elsewhere that might establish noncumulative testimony the missing witness might give, the court found.

Because defendant requested the missing witness charge after the close of evidence, the court evaluated the request with knowledge of all evidence in the record, including four witnesses’ trial testimony and video evidence depicting the encounter from different angles, recorded by two different sources, the court noted.

“Under these circumstances, defendant failed to meet his ultimate burden to show the charge would be appropriate, and the trial court did not abuse its discretion in denying the charge request,” the court ruled.

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