Opinion
No. 11–P–1518.
2012-11-14
COMMONWEALTH v. William MAJOR.
By the Court (KAFKER, COHEN & TRAINOR, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, William Major, appeals from his convictions of trafficking in cocaine, in violation of G.L. c. 94C, § 32E( b )(2), and possession of marijuana with intent to distribute, in violation of G.L. c. 94C, § 32C( a ). He argues that the trial judge erred in preventing him from cross-examining a police officer about the whereabouts of a former police officer, Detective Silva, and in declining to give a missing witness instruction concerning Silva. We affirm.
It is undisputed that the Somerville police department lost certain evidence pertaining to the defendant's case, including a digital scale, a box of plastic sandwich bags, and a plastic garbage bag.
The defendant thoroughly established this lapse through cross-examination and argued its significance to the jury. Commonwealth witnesses explained, however, that Silva might have taken the lost evidence to the Malden police department for fingerprinting.
There was, however, ample evidence from multiple witnesses to establish that these items were found along with the cocaine and marijuana that were introduced in evidence.
Detective Capobianco testified that Silva had retired; the Commonwealth did not call Silva as a witness. In closing, defense counsel pointed out that Silva had not appeared to explain the whereabouts of the missing evidence.
The Malden police department was also unable to locate the evidence.
The trial judge sustained the Commonwealth's objection when defense counsel asked Detective Hyde, “Where is [D]etective Silva?” It was within the judge's discretion to so limit the scope of cross-examination, implicitly determining that the location of this tangential witness was immaterial given the ample evidence explaining the existence of the missing items and the sloppy procedures that led to their loss. See Commonwealth v. Miles, 420 Mass. 67, 71–72 (1995). See also Mass. G. Evid. § 611(b)(1) (2012). The defendant neither subpoenaed Silva nor sought a continuance to attempt to locate him. Cf. Commonwealth v. Hamilton, 426 Mass. 67, 70–71 (1997). There was no abuse of discretion, and no prejudice to the defendant.
The defendant also claims error in the judge's refusal to give a missing witness instruction as to Silva. Such an instruction should only be given “in clear cases, and with caution,” Commonwealth v.. Schatvet, 23 Mass.App.Ct. 130, 134 (1986), and in the discretion of the trial judge. See Commonwealth v. Anderson, 411 Mass. 279, 283 (1991); Commonwealth v. Tripolone, 57 Mass.App.Ct. 901, 901 (2003). This case is closely analogous to Tripolone, supra, where two officers had differing recollections concerning evidence that had been lost and the Commonwealth did not produce a third officer who had left the police force. See id. at 902. As in that case, the defendant here made forceful arguments concerning the officers' differing memories and shoddy police practices, and it is purely speculative whether Silva's testimony would have been either significant or helpful to the defendant's case. See id. at 902–903. Moreover, the defendant made no showing either that Silva would be more favorably disposed to the Commonwealth, given the unclear circumstances of his retirement, or that the Commonwealth had “superior knowledge of [his] whereabouts.” Commonwealth v. Ortiz, 67 Mass.App.Ct. 349, 359 (2006). See Commonwealth v. Buonopane, 9 Mass.App.Ct. 651, 658–659 (1980); Commonwealth v. Smith, 49 Mass.App.Ct. 827, 830 n. 5 (2000). There was no error.
Judgments affirmed.