35 Mass.App.Ct. 76 (1993), 92-P-479, Commonwealth v. Graves

Docket Nº:92-P-479.
Citation:35 Mass.App.Ct. 76, 616 N.E.2d 817
Party Name:COMMONWEALTH v. Harold W. GRAVES.
Case Date:July 30, 1993
Court:Appeals Court of Massachusetts

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35 Mass.App.Ct. 76 (1993)

616 N.E.2d 817



Harold W. GRAVES.

No. 92-P-479.

Appeals Court of Massachusetts, Bristol.

July 30, 1993

Further Appellate Review Denied Sept. 8, 1993.

Argued Feb. 4, 1993.

[616 N.E.2d 818] Carol A. Donovan, Committee for Public Counsel Services, Boston, for the defendant.

Elspeth B. Cypher, Asst. Dist. Atty., for Com.



On the morning of November 2, 1988, a fifteen year old girl told Taunton police that an acquaintance, Harold Graves, had, from the early hours of that morning

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until sometime after 7:00 A.M., repeatedly raped her in her sister's apartment. She said that during her ordeal Graves had threatened her with a knife and choked her with his hands and a gold chain she wore around her neck. Graves was informed of her accusation from a friend's telephone call later that afternoon. Although at trial he testified that he had never raped the girl or been in her Taunton apartment that day, but rather had been with friends in his own apartment building in Attleboro from around 9:00 P.M., November 1, until 1:00 or [616 N.E.2d 819] 1:30 A.M., November 2, Graves rejected advice that he turn himself in to the police in order to rebut the accusation. Instead, using an alias and dyeing his hair, he evaded police and a bench warrant for several months thereafter. On December 14, 1988, he was indicted for rape of a child by force, aggravated rape, and assault with a dangerous weapon (a knife). In April, 1989, he was picked up on the bench warrant.

Following a five-day trial in July, 1990, a jury found Graves guilty of rape of a child by force and of aggravated rape but returned a verdict of not guilty on the charge of assault with a dangerous weapon. The trial judge then effectively allowed the defendant's outstanding motion for a required finding of not guilty by dismissing the charge of aggravated rape, on the ground that it was inconsistent with the not guilty verdict as to assault with a dangerous weapon.

Graves contends on appeal that he is entitled to a new trial because (1) the judge committed error in instructing the jury that they could draw inferences unfavorable to him from his failure to call any of the witnesses he claimed could corroborate his alibi; and (2) the judge erroneously permitted the victim to read to the jury the entire contents of her five-page handwritten statement to the police. The Commonwealth has cross-appealed, arguing that the judge should not have allowed Graves's motion for a required finding of not guilty as to aggravated rape because the jury's verdict on that charge was not inconsistent with the not guilty verdict as to assault

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with a dangerous weapon. 1 We find no error in Graves's conviction on the indictment for rape of a child but reverse the judge's order dismissing the aggravated rape charge as erroneous in light of the sufficiency of the evidence and his instructions to the jury.

1. Graves's principal assignment of error. Graves's major appellate issue arises out of his having taken the stand on his own behalf on the fifth day of trial, in response to a strong prosecution case against him. That case was based upon a positive identification of him as the perpetrator by the victim, independent testimony placing him at the scene of the crime, consistent fresh complaint corroboration immediately after the incident, medical evidence confirming the fact of recent sexual intercourse, and police testimony and photographic evidence depicting the physical injuries to the victim. Graves asserted, however, that he was not at the victim's sister's Taunton apartment on the evening in question, but rather was socializing with upstairs neighbors in his Attleboro apartment building until 1:00 or 1:30 A.M. He identified at least five individuals who were with him during that period:

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Doc, Doc's wife, 2 Joe Laherty, Dave Laherty, and Patty Laherty. None of those individuals was called to testify on his behalf; nor had Graves mentioned their existence prior to his testimony, despite the fact that the prosecution had filed a pretrial motion on October 17, 1989, pursuant to Mass.R.Crim.P. [616 N.E.2d 820] 14(b)(1)(A), 378 Mass. 876-877 (1979), which was allowed, for disclosure of any alibi defense and identification of any alibi witnesses.

During cross-examination, the prosecutor questioned Graves regarding the whereabouts of the five persons he claimed to have been with on the evening of the incident. Graves stated that Joe, Dave, and Patty Laherty had moved to California about five months before trial but he did not know where. Doc and Doc's wife had also supposedly moved, to unknown locations, about the same time. 3 Graves admitted that he had done nothing to attempt to summons any of the five individuals, either for his originally scheduled trial in December, 1989, or for the subsequent actual trial in July, 1990. 4

The prosecutor devoted but a small portion of her closing argument to suggesting the lack of credibility in Graves's story, as much on account of his prior convictions for forgery, larceny, and breaking and entering in the nighttime (which he had acknowledged during his cross-examination) as his failure to have provided or even contacted the five supposed

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alibi witnesses on his behalf. 5 The judge subsequently instructed the jury that, if they were satisfied a proper basis existed, they could draw an inference adverse to Graves from his failure to have called the potential alibi witnesses, namely that their testimony would not have been favorable to him. 6 Graves's counsel objected to that instruction on the ground

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that the prosecution had not established a proper foundation for [616 N.E.2d 821] a "missing witness" instruction. We conclude that there was no error.

2. Propriety of the "missing witness" instruction. "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." Commonwealth v. Schatvet, 23 Mass.App.Ct. 130, 134, 499 N.E.2d 1208 (1986). Although whether to give such an instruction is, in the last analysis, a matter for the trial judge's discretion, see Commonwealth v. Franklin, 366 Mass. 284, 294, 318 N.E.2d 469 (1974); Commonwealth v. Figueroa, 413 Mass. 193, 199, 595 N.E.2d 779 (1992), he nonetheless "must [first] rule, as matter of law, that there is a sufficient foundation for such inference in the record." Commonwealth v. Vasquez, 27 Mass.App.Ct. 655, 658, 542 N.E.2d 296 (1989), citing Commonwealth v. Schatvet, 23 Mass.App.Ct. at 135, 499 N.E.2d 1208.

Each case, however, must be decided on its own facts. Commonwealth v. Franklin, 366 Mass. at 292-293, 318 N.E.2d 469. There is no hard and fast rule as to the appropriateness of a "missing witness" instruction; it "necessarily depends, as with inferences generally, upon the posture of the particular case and the state of the evidence." Commonwealth v. O'Rourke, 311 Mass. 213, 222, 40 N.E.2d 883 (1942). 7 Here, the judge implicitly ruled that

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the necessary foundation existed for the instruction, a ruling which was amply supported by the evidence. No abuse of discretion occurred because the record reveals the presence of the most significant factors discussed in the cases as pertinent considerations for determining to give such an instruction. 8

First, the Commonwealth's case against Graves was strong. See Commonwealth v. Franklin, 366 Mass. at 293, 318 N.E.2d 469. He was unequivocally identified as the rapist by the victim, who had known him for five years. Graves conceded that he had no explanation why she might lie about her accusation. He was placed at the scene of the crime by the unrebutted eyewitness testimony of the victim's brother, who contemporaneously observed the physical injuries to her neck inflicted by Graves's choking her during the sexual assault. Those physical injuries were shortly thereafter observed and photographed, and later testified to, by the police. The victim...

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