Opinion
No. 11–P–1382.
2012-10-22
COMMONWEALTH v. Tracey YOUNG.
By the Court (BERRY, BROWN & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of unarmed robbery of Brett Keough. On the night in question, the defendant, her brother, and another woman, Linda Henry, visited Keough at his residence in a rooming house. Henry wanted Keough to loan her part of the money that Keough had earned that day doing snow removal work. Keough refused. An assault ensued upon Keough by the three.
At trial, the defendant presented one witness, Thomas Lanigan. Lanigan testified that, just after the robbery, Keough, wearing a blood-stained shirt, came to his room and described the assault by the threesome. At trial, Lanigan testified that Keough had stated that the defendant had put her foot on Keough's chest and was holding him down. However, Lanigan testified that, approximately one week later, Keough told Lanigan that, although the defendant was in the room, she was not involved in the attack. Lanigan acknowledged on cross-examination that he had not contacted the police, even though he knew this information would help the defendant. On appeal, the defendant contends that certain comments made by the prosecutor in closing argument improperly criticized Lanigan's credibility, and thereby impugned the defense. The defendant also argues it was error for the judge to have allowed the introduction of evidence concerning the defendant's default from a pretrial conference, and for the judge to have given a jury instruction on consciousness of guilt. We affirm.
1. The remarks in the prosecutor's closing. “There are many situations ... where the natural response of a person in possession of exculpatory information would be to come forward in order to avoid a mistaken prosecution of a relative or a friend.” Commonwealth v. Brown, 11 Mass.App.Ct. 288, 295 (1981). “When a witness in such circumstances chooses to remain silent rather than provide the police or prosecutors with the exculpatory information, and discloses the information to the prosecution only when called by the defense to testify at trial, it may be a reasonable inference that the exculpatory information is not credible, either because it is a recent contrivance or because the witness is biased toward the defendant.” Commonwealth v. Hart, 455 Mass. 230, 238 (2009). Given such precedent, we see no error in the prosecutor's closing in this respect—indeed, the closing remark tracked that found proper in Hart, supra at 239–242.
The challenged remark in the prosecutor's closing was as follows:
“[Y]ou can consider and determine whether or not Thomas Lanigan is credible. Why is it that suddenly two-and-a-half years later, after, maybe, speaking with the defense investigator a month or so later, why is it that, suddenly, Thomas Lanigan's name comes up days before trial when the police go out and speak to him? I suggest to you that Thomas Lanigan is not credible and should just be outright rejected in terms of what value he has in this particular case.”
2. Consciousness of guilt. With respect to the admission of evidence of the defendant's default and to the consciousness of guilt instruction, we discern no error. A defendant's failure to appear for trial may be admitted as evidence of consciousness of guilt where the Commonwealth shows that the defendant knew of the scheduled court date. See Commonwealth v. Hightower, 400 Mass. 267, 269 (1987). At a final pretrial conference (scheduled for March 10, 2009), the defendant failed to appear. The judge entered a default and issued an arrest warrant. On March 13, 2009, the defendant's default was declared to be solid and her bail was forfeited. The defendant was apprehended months later. At trial, the Commonwealth laid a proper foundation for the defendant's default as consciousness of guilt. Specifically, the Commonwealth introduced as an exhibit a court record including the docket entry that recorded the defendant's default and the issuance of a warrant. Further, Officer Gough testified that he arrested the defendant pursuant to a warrant following the default. As the judge ruled in denying the new trial motion on this issue, there was an adequate foundation for a consciousness of guilt instruction in that the defendant was aware of the court date on which she failed to appear and offered no good explanation for her absence from the court appearance.
Lastly, a judge may properly instruct the jury to consider whether, in light of the circumstances, the defendant's absence from trial indicates consciousness of guilt. See Commonwealth v. Pinto, 45 Mass.App.Ct. 790, 795 (1998).
The defendant and the Commonwealth debate whether there was a defense objection relating to the consciousness of guilt issue both in respect to the evidence and the jury instruction as discussed above. The defendant did not object when the evidence was introduced nor after the jury instructions. The defendant cites a motion in limine hearing and contends her rights were preserved. Even if so, that would not encompass the jury instruction. The comments of defense counsel following the jury charge are less than clear concerning objection and whether the defense was seeking a supplemental or curative instruction. In any event, we need not further dwell on this dispute because we conclude there was no error on either front. Thus, whether the prejudicial error or substantial risk of a miscarriage of justice standard applies, as discussed above, the defendant's claim fails. Moreover, we note that the defendant submitted a request for a jury instruction on consciousness of guilt which, in pertinent part, stated, “ [w]hile you may consider flight as one circumstance tending to show feelings of guilt, and while you may also consider feelings of guilt as evidence tending to show actual guilt, you are not required to do so . Under no circumstances may you presume a defendant's guilt from her flight.” (Emphasis added.)
Judgment affirmed.