Opinion
21-P-934
10-21-2022
COMMONWEALTH v. JERRY ANITUS.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of armed robbery while masked, G. L. c. 265, § 17, and assault by means of a dangerous weapon, G. L. c. 265, § 15A. The convictions were based on evidence that the defendant robbed a supermarket in Attleboro at gunpoint. Another panel of this court affirmed the judgments of conviction and the order denying the defendant's first motion for new trial in an unpublished decision. See Commonwealth v. Anitus, 96 Mass.App.Ct. 1110 (2019) (Anitus I). In a second motion for new trial, the defendant argued for the first time that the prosecutor engaged in misconduct when he cross-examined the defendant about missing witnesses. According to the defendant, the issue was "significant and obvious," and his first appellate counsel was ineffective for failing to raise it. The motion judge (who was also the trial judge) disagreed, concluding that there was no error in the cross-examination. We affirm.
The defendant's first motion for a new trial claimed that his trial counsel was ineffective for failing to challenge the prosecutor's use of the defendant's telephone records at trial.
The facts regarding the underlying robbery are set forth in Anitus I and we need not repeat them here.
We summarize the relevant facts. The defendant testified at trial and admitted that he went to the supermarket on the night of the robbery with his cousin and two friends to get "munchies." But he denied participating in the robbery. On cross-examination, the prosecutor asked the defendant where his cousin and two friends were. When the defendant acknowledged that they were not present at the trial, the prosecutor asked the defendant, "Do you think it would be important for them to be here to corroborate your story?" The defendant responded that the missing witnesses had no memory of the visit to the supermarket. The question and response drew no objection.
At the charge conference, the judge determined that the evidentiary foundation for the missing witness instruction was inadequate. Accordingly, the prosecutor did not argue that the jury should draw an adverse inference regarding the missing witnesses, and the judge did not give a missing witness instruction.
In his second motion for a new trial, the defendant claimed that even though the prosecutor did not argue to the jury that they should draw a missing witness inference against the defendant, he implied as much in his cross-examination of the defendant. According to the defendant, the prosecutor's cross-examination was "flagrant misconduct" which should have been raised on direct appeal. The judge disagreed, reasoning that the prosecutor had no obligation to seek judicial permission to cross-examine the defendant regarding the missing witnesses, and that if the prosecutor had sought permission, she would have allowed the line of cross-examination.
Discussion.
We review a judge's decision to deny a motion for a new trial "to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). In the normal course, "[w]here a motion for a new trial is based on ineffective assistance of counsel, the defendant bears the burden of proving entitlement to a new trial by showing that the behavior of counsel fell below that of an ordinary, fallible lawyer and that such failing 'likely deprived the defendant of an otherwise available, substantial ground of defence.'" Commonwealth v. Comita, 441 Mass. 86, 90 (2004), quoting Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). However, where, as in this case, the defendant alleges that the failure to preserve an issue stems from ineffective assistance of counsel, we review only for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 295296 (2002). "We afford particular deference to a decision on a motion for a new trial based on claims of ineffective assistance where the motion judge was, as here, the trial judge." Commonwealth v. Martin, 467 Mass. 291, 316 (2014).
It is well established that "[w]here a defendant has knowledge of an available witness whose general disposition toward the defendant is friendly, or at least not hostile, and who could be expected to give testimony of distinct importance to the defendant's case, but the defendant, without explanation, fails to call that witness, the jury may permissibly infer that [the] witness would have given testimony detrimental to the defendant's case." Commonwealth v. Broomhead, 67 Mass.App.Ct. 547, 550 (2006), quoting Commonwealth v. Rollins, 441 Mass. 114, 118 (2004). We have said, however, that because such a negative inference "can have a seriously adverse effect" on the defendant in a criminal case, "it should be invited only in clear cases and with caution." Commonwealth v. Schatvet, 23 Mass.App.Ct. 130, 134 (1986). There must be a sufficient evidentiary foundation before a jury can be asked to draw such a negative inference. Broomhead, supra at 551. To determine if there is a sufficient foundation for a missing witness inference, the judge must assess
"(1) whether the case against the defendant is [so strong that,] faced with the evidence, the defendant would be likely to call the missing witness if innocent; (2) whether the evidence to be given by the missing witness is important, central to the case, or just collateral or cumulative; (3) whether the party who fails to call the witness has superior knowledge of the whereabouts of the witness; and (4) whether the party has a 'plausible reason' for not producing the witness."Id. at 552, quoting Commonwealth v. Ortiz, 61 Mass.App.Ct. 468, 471 (2004).
While a prosecutor should seek judicial permission before arguing to a jury that they should draw an inference against a defendant for failure to call a witness, see Commonwealth v. Vasquez, 27 Mass.App.Ct. 655, 658 (1989), we have never required judicial permission before raising the topic on cross-examination. Indeed, in several cases we have explicitly said that a prosecutor may attempt to lay the necessary foundation for a missing witness instruction through cross-examination of the defendant. See Commonwealth v. MacKenzie, 413 Mass. 498, 515-516 (1992); Commonwealth v. Crawford, 46 Mass.App.Ct. 423, 428 (1999); Commonwealth v. Luna, 46 Mass.App.Ct. 90, 94-95 (1998).
Here, the prosecutor's questions and the defendant's answers on cross-examination confirmed that the missing witnesses included two of the defendant's friends and his cousin, and that the defendant knew how to contact them. The testimony also established that the missing witnesses were in the supermarket with the defendant at or about the time of the robbery. This evidence was relevant to the foundational questions of whether the defendant knew the missing witnesses' whereabouts and whether they might have information important to the case. Thus, there was no error in the judge's conclusion that "the prosecutor had the right to ask the defendant about the whereabouts of [the missing witnesses] in order to establish the right to . . . request a missing witness instruction."
While the prosecutor's question, "Do you think it would be important for them to be here to corroborate your story?" implicitly suggested to the jury that they could draw a negative inference regarding the missing witnesses, we do not agree that it was "flagrant misconduct" that denied the defendant the right to a fair trial. Nor do we see a substantial risk of a miscarriage of justice.
First, the defendant explained to the jury why the witnesses were not present. He testified that he had talked to his friends and his cousin and they had no memory regarding what happened that night. The judge found the explanation to be "eminently reasonable" and concluded that the prosecutor had failed to establish the necessary foundation for a missing witness instruction. As a result, the prosecutor did not argue to the jury that they should draw an inference against the defendant and the judge did not instruct the jury that they could do so.
Second, the judge instructed the jury that questions asked by attorneys are not evidence and that the jury should not speculate about evidence that was not before them. The judge also instructed the jury that the defendant was presumed to be innocent and had no obligation to present any evidence. We presume the jury followed these instructions. Commonwealth v. West, 487 Mass. 794, 804 (2021), citing Commonwealth v. Silva, 482 Mass. 275, 290 (2019).
Finally, the evidence against the defendant was strong. While eyewitnesses to the robbery did not identify the defendant, presumably because he was wearing a mask, the defendant matched the general description of the robber and the defendant's cell phone was recovered from the customer service booth where the robbery occurred. The defendant admitted that he remotely erased the cell phone's memory within an hour of the robbery. And when police attempted to apprehend the defendant two weeks after the robbery, he led them on a high-speed vehicle chase. Considering all of this, we see no substantial risk that justice miscarried.
Order denying second motion for new trial affirmed.
Vuono, Wolohojian & Kinder, JJ.
The panelists are listed in order of seniority.