Opinion
10-P-2101
01-09-2013
COMMONWEALTH v. KENNETH J. SHORT.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
As the defendant correctly observes, the trial judge erred in overruling his objection to the prosecutor's inclusion of a so-called 'missing witness' argument in his closing. See Commonwealth v. Szerlong, 457 Mass. 858, 869 & n.13 (2010).
The Commonwealth's attempt to distinguish Commonwealth v. Szerlong on the basis that the defendant's spouse in that case actually invoked the spousal privilege is unavailing; in explaining its holding, the court pointedly observed that the right to comment on the defendant's failure to call a potential witness requires that the defendant have the power to compel the witness's testimony.
We likewise agree with the defendant that the error was prejudicial. The case hinged on the credibility of the defendant's assertion that he did not intend to remove the faceplate from the store without purchasing it. Rather, he contends that he removed it from the store shelf for the purpose of showing it to his wife (who was with the couple's children in another aisle) and that he then placed it back on the store shelf. Plainly, the defendant's narrative was one that, if true, could easily have been corroborated by his wife, and the prosecutor's comment on her failure to testify served as powerful, albeit improper, impeachment of the defendant's testimony. The judgment is reversed and the verdict is set aside.
So ordered.
By the Court (Green, Graham & Sullivan, JJ.),