Opinion
No. 12–P–274.
2012-12-5
COMMONWEALTH v. Stephen J. CRONIN.
By the Court (COHEN, KATZMANN & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in District Court, the defendant was convicted of operating under the influence of intoxicating liquor, third offense, and negligent operation of a motor vehicle. He now appeals.
1. The defendant asserts that at trial the Commonwealth violated his constitutional rights by improperly impeaching him based on his postarrest silence. See Commonwealth v. Adams, 434 Mass. 805, 811 (2001), citing Doyle v. Ohio, 426 U.S. 610, 619 (1976). On direct examination, contrary to both the police testimony during the Commonwealth's case and any statements that he made to the police on the night of the arrest, the defendant testified that he was not driving the vehicle in question. Instead, the defendant explained that his roommate, Michelle, was the actual driver and that at the time of his arrest, he did not tell the police about Michelle because he knew that she had a number of outstanding warrants. Finally, the defendant explained that at the time of trial, Michelle had moved to Florida and was unreachable. In Commonwealth v. Adams, supra, where the defendant introduced his postarrest silence as part of his trial strategy, the court concluded that the prosecution's use of this evidence did not create a substantial likelihood of a miscarriage of justice. See id. at 813 (“Whatever the specific tactical reason for proceeding in this manner and regardless of its net effect, the fact that it was part of an apparent trial strategy weighs heavily in determining the existence of constitutional unfairness and prejudicial effect”). Similarly, in this case, the defendant testified about his postarrest silence in order to support his defense that he was not driving the vehicle in question. Indeed, it was he, not the Commonwealth, who initially raised the matter of his postarrest silence. Moreover, the defendant hoped to persuade the jury that he had made a rational decision to remain silent in order to protect his friend, who he claimed had criminal exposure. Consequently, it was proper for the prosecutor to cross-examine the defendant as to his postarrest silence because the defendant's explanation for his silence was the basis of his defense. Additionally, during closing arguments, the prosecutor properly focused on the inconsistencies between what the defendant told police at the scene and his trial testimony relating to his pretrial silence as to his subsequent claim that Michelle was the driver of the vehicle. See Commonwealth v. Sherick, 401 Mass. 302, 305 (1987) (“[T]he evidence of the defendant's guilt was not his pretrial silence but his pretrial statements contrasted with his trial testimony. The prosecutor was not trampling on the constitutional right to remain silent; he was performing his proper function of alerting the jury to possible flaws in the defendant's testimony”).
The parties disagree as to the appropriate standard of review that we should apply to consider this claim. However, we need not reach this issue, because we conclude that the prosecution did not commit error and did not improperly impeach the defendant with his postarrest silence.
2. The defendant contends that in its closing argument, the Commonwealth committed error by impermissibly commenting on the defendant's failure to call Michelle as a witness. Since the defendant did not object to this argument at trial, we review for whether the alleged error resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Johnson, 46 Mass.App.Ct. 398, 407 (1999).
In his closing, the prosecutor argued to the jury that they should draw an adverse inference against the defendant and disbelieve his testimony because he failed to produce Michelle as a witness at trial. The defendant correctly contends that prior to making a missing witness argument, the Commonwealth has an obligation to request court approval. Commonwealth v. Saletino, 449 Mass. 657, 671 (2007). While the Commonwealth failed to comply with this basic obligation, we conclude that this error does not create a basis for reversal in this case. Whether it is appropriate for the Commonwealth to make a missing witness argument depends upon the facts of the case. See Commonwealth v. Graves, 35 Mass.App.Ct. 76, 81 (1993). In evaluating the permissibility of such an argument, the judge should consider (1) the strength of the Commonwealth's case, (2) the importance of the missing witness to the defendant's defense, (3) whether the defendant has superior knowledge as to the identity and whereabouts of the witness, and (4) the reasonableness of the defendant's decision not to produce the witness. Id. at 82–83. In this case, all of these factors support the propriety of a missing witness argument: the Commonwealth had a very strong case, the missing witness was essential to the defendant's defense, the defendant had vastly superior knowledge as to the identity and whereabouts of the witness, and the defendant put forth an unreasonable explanation for his failure to produce the witness. Consequently, we conclude that there was a solid basis for the prosecutor to make a missing witness argument, but that he should have requested the judge's permission prior to making this argument to the jury. In any event, there was no substantial risk of a miscarriage of justice.
3. The defendant argues that the prosecutor made eleven misstatements of the evidence during his closing argument in an effort to diminish the defendant's credibility and bolster the Commonwealth's case. While the Commonwealth concedes that the prosecutor made certain misstatements at trial, the defendant did not object to any of these statements. As such, we review for whether the alleged error resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Martinez, 67 Mass.App.Ct. 788, 796 (2006). The prosecutor's comments involved minor mischaracterizations or testimony cumulative of other evidence, and the trial judge instructed the jury that closing arguments are not evidence. To be sure, the prosecutor's careless misstatements unnecessarily created an appellate issue. Ultimately, however, whether viewed individually or cumulatively, the misstatements did not create a substantial risk of a miscarriage of justice.
4. The defendant argues that counsel was ineffective in failing to move to strike Officer Jordan's statement that the defendant was not on the motel guest registry. We disagree. This testimony constituted one brief reference, was not discussed in closing argument, and was peripheral to whether the defendant operated his vehicle under the influence of intoxicating liquor. The defendant was not deprived of a substantial defense. Cf. Commonwealth v. Ortega, 441 Mass. 170, 180 (2004).
Judgments affirmed.