Opinion
11-P-1926
12-10-2012
COMMONWEALTH v. JOAN L. WHITE.
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
The defendant appeals from her conviction of operating a motor vehicle while under the influence of alcohol (third offense), arguing that she was prejudiced by the absence of a 'missing witness' instruction. Such an instruction is appropriate only where a party has failed to call as a witness 'a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case.' Commonwealth v. Garcia, 82 Mass. App. Ct. 239, 253 (2012), quoting from Commonwealth v. Saletino, 449 Mass. 657, 667-668 (2007). The decision to give or to withhold the instruction lies in the sound discretion of the trial judge. Garcia, supra at 252.
The Commonwealth's only witness at trial was a police officer who had observed the defendant's erratic driving, pulled her over, administered field sobriety tests, and placed her under arrest. The missing witness instruction was requested with regard to two other officers who had participated in transporting the defendant back to the police station and booking her. There is nothing in the record, including the defendant's offer of proof, to suggest that these two officers would have given testimony of distinct importance to the case. Instead, from all that appears in the record, the officers could have been expected only to give testimony largely cumulative of the evidence already admitted, but less relevant due to the fact that their observations of the defendant were not contemporaneous with her operation of the vehicle. See, e.g., Commonwealth v. Olszewski, 416 Mass. 707, 724 (1993) ('Comment [on the failure to call a witness] is not permissible if it appears that the evidence would be merely cumulative, corroborative of other testimony, or peripheral '). Compare Commonwealth v. Perryman, 55 Mass. App. Ct. 187, 199 (2002) (missing witness instruction appropriate where witness ''could have been expected to offer testimony . . .' that 'could not be duplicated' by any other witness'), quoting from Commonwealth v. Thomas, 429 Mass. 146, 152-153 (1999). In sum, there was no foundation established to show that the Commonwealth would normally have been expected to call the two officers as part of its case-in-chief or that the officers would have given testimony of 'distinct importance' to the case. Absent this foundation, there was no basis for the defendant's request for a missing witness instruction. See Commonwealth v. Spencer, 49 Mass. App. Ct. 383, 387 (2000). Because the defendant would not have been entitled to a missing witness instruction even had she established that the two officers were readily available for the Commonwealth to call as witnesses, the judge did not abuse his discretion when he refused to let defense counsel cross-examine the testifying officer about the other officers' availability. See generally Commonwealth v. Miles, 420 Mass. 67, 71-72 (1995).
The defendant's argument that the officers' testimony 'would have been relevant and material to the Defendant's case' is misplaced. In determining whether to grant a defendant's request for a missing witness instruction, the question is whether the witness's testimony would have been material to the Commonwealth's case. If a witness would reasonably be expected to give testimony favorable to the defendant, that would constitute a legitimate tactical reason for the Commonwealth's failure to call him, precluding the missing witness instruction. See Commonwealth v. Pena, 455 Mass. 1, 17 n.15 (2009). It was within the defendant's power to subpoena the officers if she believed that their testimony would be helpful to her own case.
There is no merit to the defendant's contention that the judge improperly permitted defense counsel to make a missing witness argument during closing and then failed to give the attendant jury instruction. The judge denied the defendant's request for a missing witness instruction and permitted closing argument only 'as to what the evidence was' -- not as to any negative inference that could be drawn from the absence of the two police officers. There was no error.
Therefore the guilty verdict and finding shall stand, and we remand this matter for sentence to be determined and imposed.
Over the Commonwealth's objection, and without any apparent legal justification, the judge declined to impose the minimum mandatory sentence (or any other sentence).
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So ordered.
By the Court (Grasso, Vuono & Milkey, JJ.),