Com. v. Broomhead

855 N.E.2d 413

67 Mass. App. Ct. 547

COMMONWEALTH v. Kevin S. BROOMHEAD.

No. 05-P-312.

Appeals Court of Massachusetts, Plymouth.

Argued March 15, 2006.

Decided October 13, 2006.

COPYRIGHT MATERIAL OMITTED

Lisa M. Sheehan for the defendant.

Audrey Anderson Kachour, Assistant District Attorney, for the Commonwealth.

Present: ARMSTRONG, C.J., BECK, & TRAINOR, JJ.

BECK, J.

On April 24, 2002, the defendant, Kevin S. Broomhead, was arrested for operating under the influence of liquor, second offense. See G.L. c. 90, § 24(1)(a)(1). In his first trial, on June 5, 2003, the jury were unable to reach a unanimous verdict. When he was tried for a second time, on August 20, 2003, the jury were again unable to come to a unanimous verdict. In his third trial, on December 18 and 19, 2003, the jury found the defendant guilty. The defendant appeals. He argues that various prosecutorial errors created a substantial risk of a miscarriage of justice. We agree and therefore reverse.¹

Factual background. We recite the facts in the light most favorable to the Commonwealth. At the time of the alleged offense at issue here, the defendant lived in Middleborough with two of his brothers and his parents. On the evening of April 24, 2002, he arrived home sometime between 10:00 and 10:30 P.M. He took a shower and ate dinner. About 11:30 P.M., the telephone rang. The caller was his brother, asking for a ride home from a friend's house because he was too drunk to drive. The defendant got dressed and drove to the friend's house to pick up his brother and another friend. When the defendant arrived, his brother and the friend "didn't want to leave right away," so he drank two small glasses of beer. He stayed about an hour and then left with his brother and his brother's friend. The defendant was driving his blue pickup truck and towing a trailer that contained his tools.

Officer Angelo Lapanna of the Middleborough police department saw the defendant's pickup truck and trailer traveling between fifty-seven and sixty miles per hour southbound on Route 28 in Middleborough. While following the truck, Lapanna observed the truck slowly drift across the fog line and drive onto the right shoulder of the road four times. He also saw the truck cross the center line of the road into the northbound lane two times.

After stopping the truck, Lapanna approached the driver's side window and asked the defendant, who was driving, for his license and registration. The defendant had trouble producing his license, fumbling with different cards in his wallet, repeatedly going over the same cards, and dropping his credit card before locating his license. Lapanna smelled a strong odor of alcohol in the truck, and noticed that the defendant's eyes were glassy. The officer asked the defendant if he had been drinking and the defendant responded that he had drunk a few beers at his friend's house.

Lapanna asked the defendant if he had any medical conditions that the officer should be aware of. The defendant responded that he had a metal plate in his foot or leg that sometimes affected his balance. Lapanna then administered three field sobriety tests. The defendant failed the one-leg stand test, the nine-step walk and turn test, and the alphabet test. Lapanna concluded that the defendant was under the influence of alcohol and arrested him.

During his closing argument in the third trial, the prosecutor stated:

"Lastly, credibility. The defendant tells you that he goes to pick up his brother. He's got his brother in the car, and he's got the third individual Bob Allen. They are all in the car. They were with him when he leaves that party or wherever they were until the time he gets stopped. They were there during the arrest procedures. They were there during the field sobriety tests. Where are they today? I will submit to you this is an important day in the life of [the defendant], and where are they today? They were there for everything. They are not here today."

After the jury in the third trial had begun deliberations, they sent the following question to the judge: "What happens if we cannot be unanimous on a guilty verdict?" Without specifically answering the question, the judge told the jury that because it was so late in the day (4:25 P.M. on December 18, 2003), he was sending them home and asking them to return the next day to continue deliberating. The jury found the defendant guilty on the following day, December 19, 2003. The parties agree that the December 19, 2003, proceedings were not on the tape provided to the transcriber, and there is no transcript of that day's proceedings.

Discussion. The defendant asserts, for the first time on appeal, that the prosecutor's failure to seek the judge's approval before making the missing witness argument, along with several other alleged errors, individually and cumulatively, constitute a substantial risk of a miscarriage of justice. See Commonwealth v. Gaudette, 441 Mass. 762, 765-766, 808 N.E.2d 798 (2004). We hold that the prosecutor's failure to obtain permission to comment on a missing witness, coupled with the judge's failure to take corrective action, constituted a substantial risk of a miscarriage of justice.

1. Missing witness comment. The general principles concerning a missing witness instruction or comment are clear. "Where a defendant has knowledge of an available witness whose general disposition toward the defendant is friendly, or at least not hostile, and who could be expected to give testimony of distinct importance to the defendant's case, but the defendant, without explanation, fails to call that witness, the jury may permissibly infer that that witness would have given testimony detrimental to the defendant's case." Commonwealth v. Rollins, 441 Mass. 114, 118, 803 N.E.2d 1256 (2004), quoting from Commonwealth v. Thomas, 429 Mass. 146, 150-151, 706 N.E.2d 669 (1999). "Such an inference can have `a seriously adverse effect on the noncalling party.'" Commonwealth v. Ortiz, 61 Mass.App.Ct. 468, 471, 811 N.E.2d 518 (2004), quoting from Commonwealth v. Schatvet, 23 Mass.App.Ct. 130, 134, 499 N.E.2d 1208 (1986). "The jury should, therefore, be invited to draw an adverse inference against a party where a witness has not been called `only in clear cases, and with caution.'" Ibid. Our cases are particularly "sensitive to references to a defendant's failure to adduce evidence on his behalf because of the necessity to avoid shifting the burden of proof to the defendant." Commonwealth v. Bryer, 398 Mass. 9, 12, 494 N.E.2d 1335 (1986). See Commonwealth v. DelValle, 443 Mass. 782, 795, 824 N.E.2d 830 (2005); Commonwealth v. Ortiz, 61 Mass.App.Ct. at 471, 811 N.E.2d 518.

At issue in this case is whether the prosecutor's comments in his closing argument regarding the two missing witnesses, absent permission from the judge to make such comments, gave rise to a substantial risk of a miscarriage of justice. We have stated that "if counsel plans to argue to the jury that an inference may 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, 542 N.E.2d 296 (1989). See Commonwealth v. Evans, 42 Mass.App.Ct. 618, 623, 679 N.E.2d 229 (1997). Nonetheless, a "prosecutor's reference — without having obtained a prior favorable ruling from the judge — to the defendant's failure to call [a witness] does not itself ordinarily create a basis for reversal; it merely creates the risk that the attorney will be interrupted by the judge who may then give an unfavorable instruction to the jury." Commonwealth v. Caldwell, 36 Mass.App.Ct. 570, 582, 634 N.E.2d 124 (1994), S.C., 418 Mass. 777, 641 N.E.2d 1054 (1994). See Commonwealth v. Vasquez, 27 Mass.App.Ct. at 657-658, 542 N.E.2d 296; Commonwealth v. Smith, 49 Mass.App.Ct. 827, 830, 733 N.E.2d 159 n. 4 (2000). "The judge, as a matter of discretion, may wait until the conclusion of the argument to give such correction." Ibid. See Commonwealth v. Vasquez, 27 Mass.App.Ct. at 657-658, 542 N.E.2d 296 & n. 4.

In cases where the prosecutor has commented on a defendant's missing witness without first obtaining permission to do so from the trial judge, and where the judge has not interrupted the prosecutor, we have on occasion concluded that "[b]y permitting the missing witness argument, the judge implicitly concluded that the foundational requisites had been met." Commonwealth v. Smith, 49 Mass.App.Ct. at 830, 733 N.E.2d 159. See Commonwealth v. Caldwell, 36 Mass.App.Ct. at 582, 634 N.E.2d 124.

Nevertheless, the main line of cases has emphasized that "[b]efore allowing a prosecutor to argue that an adverse inference is warranted, a judge must make a ruling, `as matter of law, that there is a sufficient foundation for such inference in the record.'" Commonwealth v. Ortiz, 61 Mass. App.Ct. at 471, 811 N.E.2d 518, quoting from Commonwealth v. Alves, 50 Mass. App.Ct. 796, 802, 741 N.E.2d 473 (2001). See Commonwealth v. DelValle, 443 Mass. at 794-795, 824 N.E.2d 830 (suggesting error, albeit harmless, due to strength of Commonwealth's case, where prosecutor's direct examination of witness may have unfairly invited jury to draw improper conclusions from defendant's failure to call witnesses and prosecutor had failed to obtain permission to comment from judge).

Because a judge must make a ruling that the Commonwealth has laid a proper foundation for a missing witness inference, we should be hesitant to conclude that a judge's failure to make such a ruling implies that there was such a foundation in the record. To do so could encourage loose practice and undermine the principle that missing witness arguments should not be made except by express leave of the court. In this case, the prosecutor's failure to obtain permission from the judge, coupled with the judge's failure to interrupt the prosecutor's closing argument, make a ruling that...