Com. v. Thomas

Page 669

706 N.E.2d 669

429 Mass. 146

COMMONWEALTH v. Hassan THOMAS.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Jan. 5, 1999.

Decided March 5, 1999.

Willie J. Davis, Boston, for the defendant.

Amanda Lovell, Assistant District Attorney (Robert N. Tochka, Assistant District Attorney, with her) for the Commonwealth.

Present: WILKINS, C.J., ABRAMS, GREANEY, FRIED, & IRELAND, JJ.

FRIED, J.

The defendant, Hassan Thomas, was convicted of murder in the first degree by reason of deliberate premeditation for the shooting death of Moses Grant. He appeals from the judgment of the Superior Court. We affirm the judgment of conviction.

I

On February 19, 1996, just before 2 P.M., Moses Grant was driving his aunt's vehicle on Stanwood Street in the Grove Hall (Roxbury) section of Boston, when he stopped the vehicle to speak with two acquaintances, Jason Bly and Curtis Mikell. Both young men got into the vehicle, and Grant proceeded to drive in the direction of Blue Hill Avenue. Moments later, Mikell saw a man in a green coat in the street ahead of the vehicle and stated, "That looks like Biscuit." At about the same time, Mikell and Bly each witnessed the man in the green coat reach behind his back and pull out a gun. Mikell told everyone to duck and told Grant to put the car in reverse. Grant, however, continued to drive toward Blue Hill Avenue as the occupants of the car ducked down in their seats. As the vehicle passed the man in the green coat, he fired one shot through the rear left window of the vehicle, striking Grant in the back of the head. Grant then lost control of the vehicle and it crashed into a fence. Immediately after the shooting, Mikell and Bly got out of the vehicle. Mikell began to run down the street because he was afraid he would be shot too, but, after taking only a few steps, he returned to check on Grant. Mikell told Bly to talk to Grant, who was bleeding and moaning, while he called the police. Bly stayed with Grant until the police arrived.

At trial, both Bly and Mikell testified that they were certain that the man in the green coat, whom Mikell had identified as "Biscuit," was the defendant, Hassan Thomas. Both Mikell and Bly were acquainted with the defendant prior to the shooting. Immediately after the shooting, however, neither Mikell nor Bly identified the defendant to the police as the shooter. Mikell did not immediately speak to the police at all, but went to the nearby house of an adult friend, Raymond Caldwell, to whom he identified the defendant as the person who had shot Grant. Bly spoke to the police at the scene, giving a physical description of the shooter, but did not name the defendant. Bly also went to Caldwell's home after leaving the scene, but did not identify the defendant to Caldwell.

Another eyewitness to the shooting, Lanice Mikell, Curtis Mikell's uncle, testified that he saw the defendant in the street, and had begun to cross the street with his hand outstretched to greet the defendant, when he saw the defendant pull a gun from behind his back and fire at an approaching vehicle. Lanice testified that, as he crossed the street toward the defendant, the defendant was watching the vehicle approach and did not look toward Lanice or respond to his greeting, and that the defendant ran down the street after the shooting occurred. Lanice then saw his nephew, Curtis, get out of the vehicle. He shouted to Curtis, demanding to know what he was doing on Stanwood Street, and told him to go home. Curtis responded that he could not leave because his friend had been shot. Lanice testified that he did not speak to the police on the day of the shooting, but immediately went to his brother's house and remained there for two weeks because he was afraid to leave.

After leaving Caldwell's home, Curtis Mikell returned to his own home, where he told his aunt, Janice Hatcher, what he had seen. He mentioned the identity of the shooter and the fact that Lanice Mikell had been present at the shooting. That same evening, the victim's uncle, Willie Grant, a Boston police detective who was acquainted with Curtis's family, came to Curtis's home and urged him to tell the police what he had seen. Curtis then went to the police station with Detective Grant and made a statement identifying the defendant as the shooter. He did not, however, inform the police that Lanice had witnessed the shooting, because Lanice did not want his name associated with the incident.

Later that evening, Sergeant O'Leary and Detective Martel of the Boston police department went to the defendant's home and spoke with the defendant in his bedroom, where they arrested him. After being taken to the police station and informed of his Miranda rights, the defendant told the police that he had been away from home from noon until approximately 2 P.M. that day. He then changed his mind, saying he had returned home at 1 P.M., and then stated that he did not remember what time he had returned home.

At trial, the defendant's mother and grandmother each testified on his behalf. His mother testified that he had returned home around 1 P.M. on the afternoon of the shooting. She saw him go to the basement and did not see him leave until she paged him later that afternoon after she heard that Grant had been shot, and he came up from the basement. The defendant's grandmother testified that she was also in the house when the defendant returned home sometime between 12:30 and 1:30 P.M. Both testified that Ellison Joseph, a friend of the defendant's mother, was in the kitchen of the apartment at the time the defendant entered the house.

II

The defendant's primary argument on appeal is that his right to due process was violated by a missing witness instruction ¹ given to the jury and by a remark, made during the prosecutor's closing statement, referring to the defendant's failure to call Ellison Joseph as a witness. This remark by the prosecutor and the corresponding jury instruction were not improper.

In his opening statement, defense counsel told the jury that they would hear from several witnesses who would testify that the defendant had been at home at the time the murder occurred. One of these individuals, he told the jury, was Ellison Joseph. Defense counsel stated: "[T]here will be testimony from a Mr. Ellison Joseph.... Mr. Joseph is a friend of the defendant's mother. [H]e too was present when the defendant came in. Now he does not know what time the defendant came in either but he can tell you that he left there sometime around one or shortly thereafter and that the defendant was there when he left." Despite this statement, the defendant did not call Joseph to testify during the trial. The defendant relied instead on the testimony of his mother and grandmother, who were also at the defendant's home around the time of the murder.

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. See Commonwealth v. Keniston, 423 Mass. 304, 314, 667 N.E.2d 1127 (1996), quoting Commonwealth v. Schatvet, 23 Mass.App.Ct. 130, 134, 499 N.E.2d 1208 (1986). The strength of the case against the defendant, whether the defendant would be expected to call the witness if the defendant were innocent, and the importance of the witness's likely testimony to the defense are important considerations in determining whether an adverse inference based on the defendant's failure to call a certain witness is appropriate. See Commonwealth v. Olszewski, 416 Mass. 707, 724, 625 N.E.2d 529 (1993), cert. denied, 513 U.S. 835, 115 S.Ct. 113, 130 L.Ed.2d 60 (1994). Where a witness's testimony would have been merely cumulative or unimportant, there is no basis for such an inference. See Keniston, supra at 314, 667 N.E.2d 1127; Schatvet, supra at 134, 499 N.E.2d 1208.

Whether the adverse inference is permissible depends on the facts of each case, see Commonwealth v. Richardson, 429 Mass. 182, 183, 706 N.E.2d 664 (1999); Commonwealth v. Franklin, 366 Mass. 284, 292, 318 N.E.2d 469 (1974) ("[n]o case purports to state those conditions required as a minimum before the inference is permissible"), and whether to give a missing witness instruction is a decision that must be made on a case-by-case basis, in the discretion of the trial judge. See Commonwealth v. Graves, 35 Mass.App.Ct. 76, 81, 616 N.E.2d 817 (1993). That decision will be overturned on appeal only if it was "manifestly unreasonable." Id. at 86, 616 N.E.2d 817.

In this case, the judge did not abuse his discretion in permitting the Commonwealth to comment on the defendant's failure to call Ellison Joseph as a witness and in providing a missing witness instruction to the jury. The record reflects that Ellison Joseph was known to the defendant and was available to testify at trial. He was present at or outside the courthouse on at least two of the days of trial, and defense counsel stated to the judge that he had spoken with Joseph at the courthouse on at least one of those days. Joseph's availability to the defense favors the permissibility of the prosecutor's comments. See Commonwealth v. Niziolek, 380 Mass. 513, 518, 404 N.E.2d 643 (1980). Moreover, the defendant had "superior knowledge of the identity of the witness[ ] and [his] whereabouts." Graves, supra at 83, 616 N.E.2d 817. This knowledge is another "important factor" favoring the permissibility of the missing witness inference. Id. The fact that the Commonwealth itself could have called Joseph as a witness does not render the adverse inference impermissible, because the defendant was more closely acquainted with Joseph and would "be naturally expected to call" Joseph in light of...