45 Mass. App. Ct. 444 | Mass. App. Ct. | 1998
Eleven years have elapsed since the date of the
The standard for our review is “the same standard . . . that motion judges should use . . . [and the] ‘discretionary power to give relief from such a waiver by permitting such issues to be raised for the first time by a motion for a new trial should be exercised only in those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result.’ ” Commonwealth v. Curtis, 417 Mass. 619, 626 (1994), quoting from Commonwealth v. Harrington, 379 Mass. 446, 449 (1980). See also Curtis, supra at 624 n.4. Obviously, with each succeeding motion for a new trial, the community’s interest in finality comes more to the fore.
We turn to the issues raised by the defendant.
“But how many of you people keep a diary? I ask you, what would you have done if you were confronted as Mr. Matthews was? What would you have done?”
The prosecutor objected on the ground that defense counsel is “putting the jury in the place of the defendant.”
The judge responded:
“I think that’s somewhat common. The jury frequently puts themselves in the place of the defendant and puts themselves in the place of the victim, to make the decision. That’s proper argument.”
Defense counsel continued: “I suggest, how many of you have a diary that say [sic] where you were a particular day? I suggest that Mr. Matthews was candid.”
There was no error in defense counsel’s argument. Unlike the statement in Commonwealth v. Sevieri, 21 Mass. App. Ct. at 753-754 — “[p]ut yourself in that position, when a man’s got you by the throat, dragging you into a bedroom” — it was not an appeal to sympathy, but rather an attempt to invoke logic and common sense. Although the judge spoke of jurors putting themselves in the place of the victim, his comments were balanced by suggesting that jurors place themselves also in the position of the defendant. “[I]n light of their over-all impact on
2. The defendant’s second claim is more troublesome. At trial, the defendant on direct examination testified that he usually worked at an auto shop owned by his father (stepfather) and that he had worked with his friend Christopher Cross on reconstructing a car during May, 1986. He also testified that his stepfather was in Georgia, that Cross, although he had agreed to testify, was in the Marines, and that he (the defendant) had been incarcerated and had only been informed the day before the trial that the trial would commence the following day.
On cross-examination, the prosecutor asked questions eliciting answers that indicated that neither the stepfather nor Cross was in the courtroom, that the defendant did not have any records (W-2 forms or income tax returns) of his employment at the auto shop, that he did not have a bill of sale or any record that he owned the Lincoln car he allegedly had reconstructed, that he had no records or photographs in court relating to the sale of the Lincoln, and did not know to whom his stepfather had sold it, only that it was to “one of his friends.”
In closing, the prosecutor argued:
“Now, in contrast to the honest and decent way that [the victim] projected herself, you have the story of the defendant, Lloyd Matthews, who got up there and told you a very, very vague story about how he allegedly was working at an auto garage.
“He referred to witnesses, John Wornum [stepfather], and Rufus Wornum [stepfather’s brother], Chris Cross, people who supposedly worked with him at that garage, all missing witnesses. None of them were here to back up his story, not one.
“No documentation to prove that he worked there, no pay stubs, no income tax records, nothing. All you have is a vague, vague story from [the defendant] that he worked at a vague garage, working on a vague Lincoln, making vague repairs. Nothing to back it up.”
The cross-examination and the foregoing closing remarks
“Where a party has knowledge of 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, the party would naturally offer that person as a witness. If, then, without explanation, he does not do so, the jury may, if they think reasonable in the circumstances, infer that that person, had he been called, would have given testimony unfavorable to the party.”
See Commonwealth v. Franklin, 366 Mass. 284, 292 (1974). To argue that an inference is to be drawn against the opposing party for failure to call a witness, “the proper practice is first to obtain the permission of the trial judge to do so.” Commonwealth v. Vasquez, 27 Mass. App. Ct. 655, 658 (1989). See Commonwealth v. Melendez, 12 Mass. App. Ct. 980, 980 (1981). See also Commonwealth v. Earltop, 372 Mass. 199, 206-207 (1977) (Hennessey, C.J., concurring). In order to be granted such permission, “the trial judge must rule, as matter of law, that there is a sufficient foundation for such inference in the record.” Commonwealth v. Vasquez, 27 Mass. App. Ct. at 658, citing Commonwealth v. Schatvet, 23 Mass. App. Ct. at 135 (additional citations omitted). “Basic to the inference is the existence of evidence of physical availability of the witness, and the likelihood that he can be produced by summons or otherwise.” Commonwealth v. Franklin, 366 Mass. at 293. In the circumstances where the defendant maintained that he did not have an opportunity to produce the witnesses since he was incarcerated, and had only found out about his trial the previous day, it is highly questionable whether the inference was valid. Moreover, the inference should be invited only in clear cases, and with caution, as the “effect of the comment may be substantial in the jury’s deliberations.” Id. at 294. Commonwealth v. Groce, 25 Mass. App. Ct. 327, 330 (1988).
One of the important factors in determining whether there is
In Groce, supra, a case upon which the defendant relies, the prosecutor was allowed to comment on the defendant’s failure to call witnesses and we reversed the defendant’s conviction. There, however, the comment was made over the defendant’s objection and, unlike the case at bar, the judge instructed the jury that they could draw an adverse inference from the witnesses’ absence. 25 Mass. App. Ct. at 329. In addition, another instruction was erroneous, and this court concluded that the instructions, “at least when considered in combination,” were not harmless. Id. at 328.
In this case, the defendant must show much more than that the error was not harmless. He must sustain the burden of demonstrating that this is the “extraordinary case[] where, upon sober reflection, [unless a new trial is granted] it appears that a miscarriage of justice might . . . result.” Commonwealth v. Curtis, 417 Mass. at 626, quoting from Commonwealth v. Harrington, 379 Mass. at 449.
Although the case against the defendant rested exclusively on the victim-eyewitness’s identification, the evidence was powerful. See Commonwealth v. Groce, 25 Mass. App. Ct. at 329. The victim selected the defendant’s picture from a large array of photographs,
The rules as to when adverse inferences may be drawn from the failure to produce evidence are less clear than those applicable to missing witnesses. See, e.g., Liacos, Massachusetts Evidence § 5.11, at 254 (6th ed. 1994); 2 Wigmore, Evidence § 291(3), at 221-229 (Chadbourn rev. ed. 1979). There was here no error, let alone a substantial risk of a miscarriage of justice, in the prosecutor’s cross-examining the defendant and commenting about the lack of record evidence of the defendant’s alleged employment.
3. The defendant also complains about trial counsel’s “contradictory” or inconsistent defenses in arguing both mistaken identity and that the attack never occurred. This argument, while not exactly in the form raised in the defendant’s second motion for a new trial and in his habeas corpus petition, is sufficiently close to those raised in the prior proceedings that we consider the claims disposed of by those cases. While we are not bound by the reasoning of the First Circuit, we are persuaded by it. See Matthews v. Rakiey, 54 F.3d 908, 917-918 (1st Cir. 1995).
In sum, we conclude that the motion judge did not err in denying the defendant’s third motion for a new trial.
Order denying motion for new trial affirmed.
The defendant was convicted of indecent assault and battery on a person fourteen or more; armed assault in a dwelling house with intent to commit a felony, to wit: larceny in a building; and forcible rape of a child under sixteen.
The.defendant ably argues that his second motion for a new trial which was filed pro se did not raise the issues now presented because he was in a section of M.C.I., Cedar Junction, which did not allow him to have access to sufficient legal materials. He faults appellate counsel who filed the first motion for a new trial (which, was consolidated with his direct appeal), and claims that that counsel was ineffective in not raising the issues he now raises. In view of these arguments, and because “we cannot rid ourselves by process alone of the possibility of error and of grave and lingering injustice,” Commonwealth v. Amirault, 424 Mass, at 637, we will treat the new issues raised in this motion as if they were raised in a first postappeal motion for a new trial. See Commonwealth v. Hallet, ATI Mass. 552, 554 (1998). For purposes of this case, we assume but do not decide that, as asserted in his affidavit accompanying his motion for a new trial, the defendant’s access to legal materials was insufficient and that he thereby avoids waiver of these issues by his failure to raise them in his second (and pro se) motion for a new trial. To decide the question of sufficient access would require a factual determination.
Any issues raised in the defendant’s previous motions for a new trial or in his appeal are, of course, barred by the prior adjudications. The defendant not
There was also no instruction by the judge, and none was asked for, charging the jury not to draw the inference unless they were persuaded of the truth of the inference beyond a reasonable doubt. See Commonwealth v. Niziolek,
The detective testified that there were six hundred or seven hundred photographs; the victim indicated that there were approximately one hundred.
It is not clear that the defendant’s argument concerning records was made before the motion judge. It was contained in an amended motion for a new trial. Although included in the defendant’s record appendix, there is no indication on the docket that the amendment was allowed.
Commonwealth v. Matthews, 28 Mass. App. Ct. 1105 (1989).