dissenting:
I respectfully dissent. In the first place, as I read the colloquy between court and counsel quoted by the majority, the trial court did not exercise its discretion whether to give the missing witness instruction. The *200court simply denied it automatically as “a dead letter in the District of Columbia ... like a few other areas of the law where we give lip service ... but ... there’s no room for it.” Ante at 196. Consequently, the court limited its exercise of discretion to the question whether defense counsel would be permitted to argue a missing witness inference — without an accompanying instruction — to the jury.
Contrary to the trial court’s perception, the missing witness instruction is not a “dead letter in the District of Columbia.” Ante at 196. See, e.g., Harris v. United States, 602 A.2d 154, 161 (D.C.1992) (en banc); Thomas v. United States, 447 A.2d 52, 57-60 (D.C.1982). Appellant was entitled to a proper exercise of trial court discretion and did not receive it. This case accordingly should be remanded for that purpose, because an appellate court cannot substitute its judgment for an exercise of trial court discretion— unless the trial court would have but one option as a matter of law. See Wright v. United States, 508 A.2d 915, 919-20 (D.C.1986) (citations omitted); see also In re J.D.C., 594 A.2d 70, 75 (D.C.1991) (“trial court abuses its discretion when it rests its conclusions on incorrect legal standards”) (citations omitted). As elaborated below, on this record the court was not so limited.
It is important to be clear: in the exercise of sound discretion a trial court need not give a missing witness instruction even if the prerequisites for it are met; appellant was not entitled to the instruction as a matter of law. See Thomas, 447 A.2d at 58. The record here, however, does not as a matter of law preclude the instruction (as the majority would have it). That is where the majority jumped the track and why a remand is required.
It is clear from Judge GallagheR’s opinion that the majority believes the instruction could not properly have been given whether the court carefully considered appellant’s request or summarily rejected it. My burden here, therefore, is to show not only that the trial court failed to exercise the required discretion — which as indicated above is the case — but also that the record leaves room for an exercise of discretion in favor of such an instruction, the issue to which I now turn.
All parties. agree that, for the court to justify a missing witness instruction, the absent witness must have been “peculiarly available to the party against whom the inference is sought” and in a position to “elucidate[ ] the transaction at issue.” Lawson v. United States, 514 A.2d 787, 789 (D.C.1986). Peculiar availability, moreover, has two components: “physical availability” and “practical availability.” Thomas, 447 A.2d at 57, 58. My colleagues acknowledge that Wesley’s testimony would have elucidated the transaction, see ante at 197, and that Wesley was not physically available to the defense, see ante at 198. There is no dispute, moreover, that Wesley was physically available to the government. Thus, the only question is whether Wesley was “practically available” to the government. See Thomas, 447 A.2d at 58. If he was, a missing witness instruction could have been given; otherwise, not.1
The majority concludes as a matter of law that Wesley was not practically available to the government because he was “practically available to both parties.” Ante at 199. Accordingly, says the majority, he was “not peculiarly available to the government.” Ante at 199. This conclusion is premised on the following language from Thomas:
The party’s ability to produce the witness, or his [or her] reasons for doing so, must be stronger than those of the party seeking an inference in his [or her] favor.
*201Id. This means there will be practical availability only if the witness’s relationship with the party against whom the inference would be drawn is “stronger” than with the other party, and, for that reason, the witness’s testimony would be “expected to be hostile” to the party who seeks the instruction. Dent v. United States, 404 A.2d 165, 170 (D.C.1979); see Thomas, 447 A.2d at 58.
The problem here is that the record does not support the majority’s conclusion, as a matter of law, that Wesley was “practically available to both parties.” Ante at 199. According to the majority’s reading of the complainant’s testimony, Wesley was an “acquaintance” (not a “close ‘friend’”) of complainant and appellant alike. Ante at 199. This reading of the record will not do. Complainant repeatedly — at least three times— referred to Wesley as her “friend.” There is no basis for inferring she meant a “distant,” rather than a “close,” friend. Moreover, although friendship “alone cannot justify the missing witness instruction, at least without further explanation,” Carr v. United States, 531 A.2d 1010, 1014 (D.C.1987), this is not to say that a particular friendship cannot be strong enough to serve as the basis for “practical availability,” especially when the opposing party is not a friend of the witness. Friendship can be a powerful relationship. “[Fjurther explanation,” id., could show that friendship indeed is enough to pass the “practical availability” test — particularly in a case, such as this, where there is no probative evidence that appellant and Wesley were friends.
The trial court, however, permitted no exploration of the relationship between the complainant and Wesley, on the one hand, and between appellant and Wesley, on the other. When defense counsel asked for the missing witness instruction, she told the judge:
We’ve never heard of this person [Wesley] until yesterday [during trial]. We don’t get a last name. The government’s complaining witness says that this is a friend of hers who lives around the corner from her who witnessed the whole thing and she saw him two days ago.
The trial court then cut off further consideration of the instruction. Despite the complainant’s own testimony that she and Wesley were friends, and despite the fact that the complainant, given Wesley’s physical availability, had a better chance than appellant of learning in advance of trial what Wesley’s testimony would be — but chose not to call him to the stand — the trial court replied:
“Okay. I don’t think [appellant’s proffer] puts the peculiarity within the power of the United States to produce- I’m not going to give the instruction.”
I do not understand how the majority, in view of the court’s abrupt termination of the discussion, can reach a conclusive analysis, since the defense never had an opportunity to complete its proffer and elicit a discretionary ruling. The majority infers too much from the record unsupported by trial court findings that reflect a proper judicial mindset — an attitude that takes the defense proffer seriously, recognizing that the requested instruction is alive and well.
In particular, the majority draws an impermissible inference about a relationship between appellant and Wesley. The government asked the judge whether it could counter appellant’s missing witness argument by telling the jury that Wesley “was known by [appellant] as well.” The judge answered yes and cut off defense counsel’s response. The most that can be inferred from the record, however, by reference to Wesley’s allegedly pointing out appellant to complainant in the alley as a drug dealer and approaching appellant on complainant’s behalf, see ante at 195, is that Wesley knew appellant was a drug dealer. This testimony does not imply that Wesley knew appellant, let alone that Wesley and appellant were friends. The government’s request and the court’s reply were plainly wrong, absent additional evidence about appellant’s and Wesley’s relationship (if any). There is no record basis for concluding that Wesley was as practically available to appellant as to the government.
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In sum, the trial court did not exercise discretion, as required, in denying appellant’s *202request for a missing witness instruction, and there is no record basis for concluding that the court would have had to deny the instruction as a matter of law. Nor was the error harmless. All agree that Wesley could have elucidated the transaction since he witnessed the entire incident. In this credibility contest, a missing witness instruction from the court is more powerful than a missing witness argument by defense counsel — especially in a case such as this in which the jury, showing skepticism, acquitted appellant of the more serious assault charges (knife, stone, brick).
To reiterate: a trial judge will not necessarily abuse his or her discretion by denying a missing witness instruction even when the prerequisites for it are met, see Thomas, 447 A.2d at 58, since there often is a danger in creating evidence out of non-evidence. Thus, appellant’s request for this standard instruction ultimately may not be honored on this record; I make no emphatic merits argument on appellant’s behalf. My concern is that the trial court summarily rejected a nonfrivolous, and arguably meritorious, request that appellant was entitled to have considered seriously and thoughtfully. I do not believe appellant received his due from the trial court, and I do not believe this court on appeal should do work that in the first instance is a trial court, not appellate court, responsibility informed in part by demeanor evidence. See Wright, 508 A.2d at 919-20.
I therefore would remand the case for a proper exercise of discretion further exploring defense counsel’s missing witness proffer. If the court were to rule, after exercising proper discretion, that the instruction should not have been given, the conviction should stand affirmed subject to appellant’s right of appeal. If the court were to rule otherwise, an order should be entered awarding a new trial.
. In response to this dissent, Judge Gallagher argues that the court did, in fact, exercise discretion whether to give a missing witness instruction when the court eventually said: "That’s why I’m finding that it’s not peculiarly within the power of the government to have produced this witness.” Ante at 197. The court, however, did not say whether it had premised this finding on "physical” or "practical” unavailability and thus may have clearly erred, since the majority agrees that Wesley was physically available to the government but not to the defense. Accordingly, this statement does not reflect an informed exercise of discretion. Furthermore, because the court was discussing defense counsel’s proposed missing witness jury argument, not a jury instruction, this "peculiarly” available finding cannot assuredly be said to relate to a missing witness analysis responsive to appellant’s request for an instruction.