dissenting.
I respectfully dissent. My reason is that the principal opinion, in deciding when one party can argue an adverse inference from the failure of the opposing party to call certain witnesses, does not apply the well established “equally available” test and, instead, applies a theory which I do not believe is workable or justified. Under the principal opinion, a witness is “peculiarly available” if he is in a position to support the proposition advanced by a party: “if a witness can be expected to testify favorably to one party, he is ‘peculiarly available’ to that party.” This broad statement leads to the self-contradictory result of a witness being “peculiarly available” to both parties at the same time.
To illustrate, suppose the fact in issue was whether a defendant displayed a gun. X, a witness, was in a position to observe the defendant’s actions. X is “peculiarly available” to both sides, because he is in a position to support the defendant’s claim that he did not display a gun, if that was the fact, or the state’s position that the defendant did display a gun, if that was the fact (the same could be said, for example, of Cynthia Smith in the case before us with respect to whether there was or was not a party). Suppose that X is not called as a witness by either side. Who gets to argue the adverse inference? The witness is “peculiarly available” to both sides at the same time and the principal opinion’s test becomes completely unmanageable as to who can argue the adverse inference.
The principal opinion concludes that it was both logical and permissible for the prosecutor to argue that defendant’s failure to call those people who he said were at the neighborhood “get-together” created an inference that their testimony would be damaging to the defendant rather than favorable. One is left to wonder, however, why the witnesses, assumed by the prosecutor to be damaging to defendant (and therefore helpful to the state), were not called by the prosecutor. On one hand, the prosecutor is really arguing that the witnesses not called would help the state. On the other hand, he has failed to call them himself.
The principal opinion finds the discussion of availability in State v. Collins, 350 Mo. 291, 165 S.W.2d 647, 649 (1942) consistent with its reasoning. I cannot agree. Collins lists three situations in which a witness may be said to be “peculiarly available” to one party: “when, because of [1] such party’s opportunity for knowledge of or control over the witness, or [2] the community of interest between the two, or [3] the prior statements and declarations of the witness,” make it reasonably probable that the witness would have been called except that the party knew or feared that the testimony would be damaging.
Apparently, the principal opinion found that there was a “community of interest” between defendant and the people he did not call as witnesses such as to make those potential witnesses “more available” to defendant. However, “[t]he question of whether a witness is ‘available’ to one or the other of the contending parties depends upon such matters as ... the relationship borne by the witness to a particular party as the same would reasonably be expected to affect his personal interest in the outcome of the litigation.” Collins, supra at 649; State v. Valentine, 587 S.W.2d 859,864 (Mo. banc 1979).
In State v. Valentine, supra at 864, this court found that a woman (Pat), who was not called to testify for defendant was not
*376“anything more than a social acquaintance. ... Nor was she a ‘peculiarly available’ witness under Collins.... There [was] no evidence of a ‘community of interest’ or a relationship borne by Pat to appellant such as would be expected to affect Pat’s personal interest in the outcome of the trial.”
I think the same conclusion is warranted here with respect to the people not called by defendant.
It is interesting, as well, to look at cases in which the defendant was prevented from arguing the state’s failure to call a witness. In both State v. Ganaway, 556 S.W.2d 67 (Mo.App.1977) and State v. Benson, 574 S.W.2d 440 (Mo.App.1978), the court of appeals upheld the trial court’s issuance of a protective order preventing defense counsel from remarking on the state’s failure to call a police officer as a witness. The Ganaway court, cited with approval in Benson, declared:
“Discovery procedures have changed the concept of a lawsuit from a ‘sporting contest’ to a ‘search for truth.’ An inference of unfavorability has a valid function only to the extent it constitutes a reasonable inference. If, in fact, it is known or is readily discoverable, that the testimony of the witness would be favorable to one side it does not serve justice to presume the contrary. There are circumstances where the inference is permissible, but the original reasons for the rule have been largely eliminated by the availability of discovery to both sides.... The inference is not, after all, a substitute for trial preparation or the truth.”
556 S.W.2d at 70 (emphasis added).
The court concluded by finding that, “Under the circumstances [the arresting officer] was no more available to the State than to defendant and there is nothing in the record upon which to conclude his testimony would have been unfavorable to the State.”
I agree with the above reasoning and I fail to see why it was not applied to the facts here. Can it be contended from the evidence in the record that Cynthia Smith had a relationship to defendant which gave her a personal interest in the outcome of the trial? What is there in the record about Cynthia Smith which automatically allies her with defendant or pits her against the prosecution? I cannot see why she was “peculiarly available” to defendant when the arresting officer in Ganaway was not as to the state. The defendant in a criminal case should at least be accorded the same test of availability as the state was in Gana-way and Benson. Perhaps an even more favorable one. The question arises: Should an inference be permissible against a party who is presumed to be innocent until proven guilty beyond a reasonable doubt, who may remain silent, and who need present no case at all. As a New York appellate court observed:
“[I]t is at least doubtful, that as between a defendant in a criminal case, presumed to be innocent and required to call no witness, and the People, who have the burden of proof beyond a reasonable doubt, the rule of equal availability of witnesses to the commission of a crime has any sensible application.”
People v. Moore, 17 App.Div.2d 57,230 N.Y. S.2d 880, 884, cert. den. 371 U.S. 838, 83 S.Ct. 64, 9 L.Ed.2d 74 (1962).
Finally, I would add that there are other reasons that witnesses are not called other than that the substance of their testimony would be unfavorable. They may not be available, as was contended to be the case with Faye, who defendant testified was in California. They may, for whatever reason, plead the fifth amendment, as did Joe Gregory (in a prior trial of defendant) although Gregory was not charged with any crime and, according to the alleged victim, aided her. They may not be desirable witnesses because of their appearance or demeanor, or because they have a criminal record which would tend to impeach their credibility. And yet the principal opinion would let the non-production of a witness be used by the state as a positive inference against defendant, although the state had also refused to call the witness despite whatever information could be had through *377discovery. Such an inference against the defendant gives the prosecutor a license to invite the jury to speculate as to evidence not before it. This is never permissible. I would reverse and remand for a new trial.
BARDGETT, Judge,dissenting.
I respectfully dissent and concur in the dissenting opinion of Seiler, J., and file this opinion because of additional matters I believe bear on the problem.
There is nothing in this record to indicate that the prosecutor regarded the other people at defendant’s house to be “peculiarly available” to defendant or that he intended to tell the jury that defendant’s failure to call them as witnesses meant they would deny that there was a party, if called. The first time the matter appears is during closing argument — after all the evidence is in. There is no relationship between those persons and the defendant from which one might think the defendant had control over them or which might indicate a basis for adverse comment. There was, therefore, no opportunity for the defendant to produce any evidence as to why he wouldn’t or couldn’t call them as witnesses and, consequently, any argument as to why they were not called would be objectionable as beyond the scope of the evidence.
As sometimes happens during argument in a case, the defense attorney, after objecting, told the court that two of the witnesses, Johnson and Smith, had also been charged and Gregory had refused to testify in an earlier trial on self-incrimination grounds. The prosecutor did not dispute this statement, and the state in its brief admits Johnson and Smith had been charged with the same crime — rape—at defendant’s house that same night. When this kind of information comes to the court, as it did here, it is ordinarily accepted as true if the other side does not take exception to it. A circuit judge would, in some instances, ask the other attorney — prosecuting attorney — if the statement were correct and expect a truthful answer. In this case it seems clear to me that the judge and the prosecutor knew that what the defense attorney said was true — that two of the people, Johnson and Smith, were also charged and Gregory had refused to testify on self-incrimination grounds. Johnson had been tried and convicted in August 1978, some seven months before the instant trial. That conviction was reversed and remanded for a new trial in March 1980. State v. Johnson, 595 S.W.2d 774 (Mo.App.1980).
Although it is correct to say that there was no evidence in this trial that Johnson, Smith, and Gregory refused to testify at this trial, it is equally true that the record here does demonstrate that two, Johnson and Smith, had been charged and Gregory had refused to testify at an earlier trial of this defendant. That is certainly sufficient to demonstrate that none of them was about to testify in this trial whether called by the state or the defense.
Nor is there any basis for assuming there is a “community of interest” between Johnson, Smith, Gregory and the defendant. The interest of individual defendants in criminal cases such as this is to avoid conviction and that is individual — not communal — in nature. We do not know what the evidence in State v. Johnson, supra, was outside of that which is reported in the opinion, but it is apparent this defendant did not testify in that case. Query: When Johnson is retried, will the state be allowed to argue an unfavorable inference against him if this defendant is not called in from the penitentiary to testify as a defense witness? If called, the prosecution could cross-examine as to his conviction in this case, which, when viewed by a jury in the context of the whole case obviously will operate against Johnson but cannot be legally considered as evidence of Johnson’s guilt. The point is that it is simply unreasonable and unrealistic to premise an adverse inference from a defendant’s failure to call another defendant as a witness or one who has already refused to testify on self-incrimination grounds.
The availability of an adverse inference for a party’s failure to call a particular witness or group of witnesses ought to be reserved for exceptional situations where *378justice simply requires it. In my opinion we ought not to so expand the adverse inference use so as to make it more expedient to not call a witness, so as to use the adverse comment, than to call the witness before the jury so the jury would know what his testimony actually is instead of guessing, by inference, what it might be. And where, as here, the obvious probability is that the three men would not testify at all, it seems to me to be essentially unfair to permit the adverse inference, because neither party really had the power to get their testimony before the jury.
The broadening of the inference rule as permitted by the principal opinion permits an adverse inference to go against the defendant for failure to call specific witnesses as to a specific item (party or no party) even though judges and lawyers all know the defendant could not realistically call any of the three men as witnesses anyway. This, I view as a penalty for failure to do something — call certain witnesses — that the law does not require a defendant in a criminal case to do. The defendant is simply not required to prove his innocence.
Given the above-stated situation, no judge would expect the state or the defendant to call Johnson or Smith as witnesses because, being charged, and Johnson having been convicted with his case on appeal would, most assuredly, refuse to testify on self-incrimination grounds. These two witnesses were, therefore, equally unavailable to the parties. Gregory, having earlier refused, was also equally unavailable. The women were, in my opinion, equally available.
This is a classic case for rebuttal evidence. The prosecutrix said there was no party and the other women were not there. Defendant says there was a party and the other women were there. If the state is correct and the witnesses would say there was no party, then why didn’t the state call them in rebuttal? At least the case could have been decided on evidence that was admitted rather than on evidence that was not admitted — the inference.
Additionally, I believe the defendant’s constitutional rights under both the Missouri and United States constitutions to “confront his accusers face to face” and to cross-examine witnesses have been denied. This happens because the prosecutor is allowed to tell the jury they can decide whether or not there was a party on the adverse inference basis and the inference becomes evidence for the state but the defendant was not afforded the opportunity to cross examine its source — the absent witnesses.
In my opinion our system of justice loses credibility and becomes more prone to error when important aspects of criminal cases are decided by playing the inference game instead of calling the witness who, according to the inference concept, would testify to facts favorable to the state.
I dissent.