Opinion
12-P-188
09-16-2015
COMMONWEALTH v. TIMOTHY R. SHRUHAN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
Following a jury trial in Superior Court, the defendant was convicted of two counts of armed assault in a dwelling and one count each of assault and battery by means of a dangerous weapon, assault by means of a dangerous weapon, and assault and battery. He then filed a motion for a new trial that was denied after an evidentiary hearing. In this consolidated appeal, we affirm the judgments and the order denying the motion for a new trial.
The jury acquitted the defendant of two counts of armed robbery while masked and one count of assault by means of a dangerous weapon.
Direct appeal. The Commonwealth's case was based principally on the eyewitness testimony of Ethan Mueller, who was living at the Plymouth home where the crimes took place. According to Mueller, on September 18, 2009, the defendant and another man (who was never identified) entered the dwelling and assaulted him and his friend Joseph Colonna. Defense counsel conducted a vigorous cross-examination of Mueller, including extensive questioning about various charges that had been brought against him. On appeal, the defendant contends that the judge improperly limited his cross-examination of Mueller with regard to those charges. For example, he claims error in the judge's curtailing inquiry into what Mueller had purchased through his unauthorized use of a credit card. Given how collateral this issue was to the case at hand, we discern no abuse of discretion in the judge's limiting that inquiry (regardless of whether Mueller had, as the defendant argues, waived his privilege under the Fifth Amendment to the United States Constitution). See Commonwealth v. Sandler, 368 Mass. 729, 736-738 (1975) (defendant has no right to inquire into the factual circumstances of a witness's otherwise unrelated criminal charges). See generally, Commonwealth v. Meas, 467 Mass. 434, 449-450 (2014) (where judge does not bar all inquiry into subject area, limitations placed on questioning are subject to an abuse of discretion standard).
The Commonwealth filed drug-related charges against Mueller based on drugs and drug paraphernalia that police found at the Plymouth home the night they investigated the alleged assaults. Those charges had been dismissed by the time of trial in the instant case. The Commonwealth also filed two sets of charges related to credit-card fraud against Mueller; those charges were pending at the time of trial in this case.
The only connection between the credit-card charges and the case before us is that there was a suggestion in Mueller's testimony that he may have used the credit card to replace money that the defendant had stolen from him. We note that the defendant was acquitted of all property-related charges.
For the same reason, there was no error in the judge's denial of the defendant's request to strike all of Mueller's testimony.
In addition, where defense counsel cross-examined Mueller extensively about why the Commonwealth had dismissed the drug charges against him and whether he had any nonprosecution agreement with the Commonwealth, we discern no abuse of discretion in the judge's sustaining the objection to the additional question whether it was Mueller's "understanding that so long as you continue to cooperate with the Dist[rict] Att[orney]'s office and testify in this case that these charges will not be brought back up." See id. at 450, quoting from Commonwealth v. Avalos, 454 Mass. 1, 7 (2000) (judge has discretion to limit questioning that goes to potential bias where the issue "has been sufficiently aired"). Finally, even were we to conclude that the judge should have allowed defense counsel slightly more leeway in his questioning, any error was not of sufficient moment to warrant reversal.
Motion for new trial. 1. Ineffective assistance of counsel. Colonna, the second victim, did not testify at trial. Defense counsel did not request a "missing witness" instruction, and the defendant argued in his motion for a new trial that the failure to request that instruction amounted to ineffective assistance of counsel. As explained below, the judge properly rejected that argument.
Such an instruction would have "permit[ted] the jury, 'if they [thought] reasonable in the circumstances, [to] infer that [Colonna], had he been called, would have given testimony unfavorable to the [Commonwealth].'" Commonwealth v. Saletino, 449 Mass. 657, 668 (2007), quoting from Commonwealth v. Anderson, 411 Mass. 279, 280 n.1 (1991).
It is uncontested that Colonna lived in Staten Island, New York at all relevant times. The Commonwealth included Colonna on its witness list, it made numerous serious efforts to secure his attendance, and on at least one occasion it successfully had the trial date delayed to try to ensure that Colonna would be there. In the end, Colonna did not appear, and the Commonwealth went forward with Mueller as its only eyewitness. As he acknowledged at the evidentiary hearing, defense counsel was aware both that "Colonna was cooperative at the time of the offense with the police" and that the Commonwealth was having "some difficulty securing his attendance" at trial.
These circumstances did not meet the preconditions to allow a missing witness instruction. Even putting aside the question whether, as a practical matter, Colonna could have been "located and brought forward," this is simply not a case where the Commonwealth's failure to call Colonna was "without explanation." Commonwealth v. Saletino, 449 Mass. 657, 667 (2007), quoting from Commonwealth v. Anderson, 411 Mass. 279, 280 n.1 (1991). Nor is there any suggestion anywhere in the record that the Commonwealth was seeking to prevent the jury from hearing what Colonna had to say. Because the defendant would not have been entitled to a missing witness instruction had he requested one, he cannot make out a claim for ineffective assistance. See Commonwealth v. Conceicao, 388 Mass. 255, 264-265 (1983) (failure by defense counsel to request judicial action cannot amount to ineffective assistance where doing so would have been futile).
Without requesting the trial judge's permission, and without any objection from the Commonwealth, defense counsel in fact highlighted Colonna's absence in his closing argument. The manner in which the Supreme Judicial Court described the closing argument in Saletino, supra at 672 n.23, has equal application here:
"The argument in this case was a classic missing witness argument, going well beyond any mere contention that there were gaps in the Commonwealth's case and insufficient evidence to convict beyond a reasonable doubt. Counsel plainly suggested that, by not calling the [absent person] as a witness, the Commonwealth was trying to hide something, and he thus plainly implied that the [person's] testimony would have been unfavorable to the Commonwealth."In this manner, "the defendant got more than he was entitled to in the first place." Id. at 672.
2. Juror misconduct. On the second day of trial, the defendant's nephew came to the court house to bring the defendant a suit. The nephew then stayed to observe a portion of the trial. By chance, one of the jurors happened to know the nephew; when they were in high school, they sat next to each other in math class. As was revealed after the trial had concluded, the juror recognized the nephew in the court room. During the mid-day break, the juror inappropriately sent a text message to the nephew asking why he was there. The nephew explained that he was there to bring his uncle a suit, to which the juror responded, "'Oh, Okay' or words to this effect." The juror later sent the nephew another text message "commenting on the happenstance of seeing each other in court." After the nephew stated on his Facebook page that it had been "a strange day" for him, the juror "liked" the post. No further communications ensued.
The motion judge found that the juror had been exposed to two pieces of extraneous information, namely "(1) the defendant was related to [the juror's] high school classmate; and (2) [the classmate] came to court to supply the defendant with a suit." The judge correctly recognized that the burden thus fell on the Commonwealth to prove beyond a reasonable doubt that the defendant was not prejudiced by the juror's learning this extraneous information. See Commonwealth v. Kincaid, 444 Mass. 381, 386 (2005). The judge found that the Commonwealth met that burden, and the defendant has not demonstrated any clear error in that finding. See id. at 387 ("clearly erroneous" standard applies to appellate review of finding on whether juror's learning of extraneous information resulted in prejudice).
The defendant claims that his nephew's comment about bringing him a suit revealed that he was being held in pretrial custody. We agree with the motion judge's assessment that this claim was "entirely speculative." Moreover, even if the juror had inadvertently learned that the defendant was being detained pending trial, this would not necessarily demonstrate sufficient prejudice. Cf. Commonwealth v. Mosher, 455 Mass. 811, 829-830 (2010) (even if jury had learned that the defendant, who was being tried for murder in the first degree, was in custody, this would not necessarily have created a substantial likelihood of a miscarriage of justice).
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Meade, Wolohojian & Milkey, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 16, 2015.