Com. v. Anderson

• Decision Date: 26 November 1991
• Parties: COMMONWEALTH v. Lewis ANDERSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1296

581 N.E.2d 1296

411 Mass. 279

COMMONWEALTH v. Lewis ANDERSON.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Sept. 10, 1991.

Decided Nov. 26, 1991.

Nona E. Walker, Committee for Public Counsel Services, for defendant.

James F. Lang, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

A jury in the Superior Court found the defendant, Lewis Anderson, an inmate at the Massachusetts Correctional Institution at Cedar Junction (M.C.I. Cedar Junction), guilty of assault and battery by means of a dangerous weapon, a "razor shank," on another inmate, Charles Jenkins. Jenkins was not called as a witness for the prosecution at trial. The Appeals Court reversed the defendant's conviction and ordered a new trial because the judge refused to give a "missing witness" instruction with respect to the Commonwealth's failure to call Jenkins to testify. ¹ Commonwealth v. Anderson, 30 Mass.App.Ct. 474, 570 N.E.2d 155 (1991). We granted the Commonwealth's application for further appellate review. We conclude that the defendant was not entitled to the "missing witness" instruction. We also conclude that portions of the prosecutor's summation, which the defendant's appellate counsel now claims were unfair and prejudicial, were in fact proper. Consequently, we affirm the judgment of conviction.

The Commonwealth presented evidence that on December 2, 1989, about 7:45 A.M., a fight broke out in the dining hall of M.C.I. Cedar Junction between the defendant and Jenkins. Correction Officer Michael Tate testified that at the time of the fight he was assigned to the dining hall gas tower ² located about fifteen feet above the dining hall and about twenty-five to thirty feet from where the incident took place. From the tower, Tate could observe the whole dining hall. There were about 225 inmates and five staff people in the dining hall at the time. Tate saw "a verbal argument" between the defendant and Jenkins, but could not hear what was said. Tate saw the defendant gesturing, pointing, and flailing his arms while Jenkins stood with his hands at his side "more or less in a defensive posture." Tate then saw the defendant lunge at Jenkins and saw the defendant "swinging his hands in a sweeping-like motion." Jenkins overpowered the defendant and was on top of the defendant, punching him, when guards arrived and handcuffed both men.

Correction Officer Luiz Cabral testified that he observed the incident involving the defendant and Jenkins from his station at the entrance to the dining hall. Cabral noticed Jenkins sitting down and saw the defendant approach Jenkins and point at him. According to Cabral, "Jenkins then stood up and covered himself. Then ... Jenkins started chasing [the defendant], going from one table to another table, and they ended up fighting on the floor."

Correction Officer Russell Hallett testified that he was called to the dining hall from the east-wing corridor to help deal with the incident. When Hallett arrived he observed that the defendant had a weapon in his hand, and was "moving his hands ... in a slashing way towards [Jenkins]." The defendant dropped the razor shank after the two men were separated.

The Commonwealth also presented evidence that the only visible wounds on the defendant following his altercation with Jenkins were small cuts or abrasions on two of his knuckles. Jenkins had lacerations on both of his elbows, the right and left sides of his lower back, the left side of his chest, and the right side of his neck. Two of the lacerations required suturing.

A former inmate at M.C.I. Cedar Junction testified for the defendant. This inmate indicated that he used to sit at the same table as the defendant every day for meals, while Jenkins would sit at a table beside them. He described Jenkins as about "five eight, five nine" and husky, and the defendant as having a build which was "nothing" compared to Jenkins's. On December 1, 1989, Jenkins and his friends tried to sit at the defendant's table. Jenkins told the defendant that if he did not leave the table he would get hurt. Later that evening, the inmate told the defendant that he had seen Jenkins in the prison with a weapon, that Jenkins and his friends had previously assaulted other inmates, and that, if Jenkins was planning to "make a move" on the defendant, he would not do it alone.

The inmate also testified that, on December 2, Jenkins sat down at the defendant's table in front of defendant's tray and moved the tray. The defendant and Jenkins exchanged words. Jenkins stood up and had his hands in his pockets. According to the inmate, "Jenkins came up with his hands," and the two men started "tussling." The guards arrived shortly thereafter. The inmate had not seen who struck the first blow. The defendant did not testify.

At the conclusion of the evidence, the defendant's trial counsel submitted written requests for instructions. These included requests for instructions on self-defense and an instruction to the effect that the jury could infer that, if Jenkins had been called, his testimony would be unfavorable to the Commonwealth. The judge indicated that he was going "to cover [the defendant's] requests." Both the prosecutor and the trial counsel made no reference in their closing arguments to the absence of Jenkins as a witness. The judge's charge included a full explanation of self-defense but did not include a "missing witness" instruction. After the charge, the defendant's trial counsel called the judge's attention to the omission. The judge refused to give the requested instruction because trial counsel had not referred to Jenkins's absence in her closing argument.

1. We have said that "[w]hether an inference can be drawn from the failure to call witnesses necessarily depends ... 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). See generally P.J. Liacos, Massachusetts Evidence 283-284 (5th ed. 1981). Because the inference permitted to be drawn with respect to a missing witness "can have a seriously adverse effect on the noncalling party--suggesting, as it does, that the party has wilfully attempted to withhold or conceal significant evidence--it should be invited only in clear cases, and with caution." Commonwealth v. Schatvet, supra, 23 Mass.App.Ct. at 134, 499 N.E.2d 1208. See Commonwealth v. Zagranski, 408 Mass. 278, 287, 558 N.E.2d 933 (1990) ("This is a delicate area, requiring caution"). When it appears that the witness may be as favorable to one party as the other, no inference is warranted. Commonwealth v. Schatvet, supra, 23 Mass.App.Ct. at 134 n. 8, 499 N.E.2d 1208. Further, if the circumstances, considered by ordinary logic and experience, suggest a plausible reason for nonproduction of the witness, the jury should not be advised of the inference. Id. at 135 n. 11, 499 N.E.2d 1208. In the last analysis, the trial judge has discretion to refuse to give the instruction, see Commonwealth v. Franklin, 366 Mass. 284, 294, 318 N.E.2d 469 (1974); United States v. Cotter, 60 F.2d 689, 692 (2d Cir.), cert. denied, 287 U.S. 666, 53 S.Ct. 291, 77 L.Ed. 575 (1932), and, conversely, a party who wishes the instruction cannot require it of right. See 2 C.A. Wright, Federal Practice and Procedure § 489 (2d ed. 1982).

It is by no means apparent that Jenkins should be considered a witness who would be friendly to the Commonwealth. After prosecution by the Commonwealth he had been convicted of a crime or crimes which had resulted in his incarceration in a maximum security State prison. Logic would dictate that, because of his status, and the Commonwealth's role in prosecuting him, Jenkins would be naturally antagonistic toward the Commonwealth's interests. Further, testimony by Jenkins for the prosecution could expose him to danger by reason of the informal prison code that condemns prisoners who cooperate with the authorities against other prisoners. ³ These considerations cut against characterizing the case for permitting the inference as "clear," and indicate that Jenkins would likely be hostile to both sides of the case (or at least not entirely favorably disposed to assist the prosecution).

There are other pertinent considerations. The Commonwealth could make out its case by the testimony of the correction officers which has been summarized above. Putting Jenkins on the witness stand posed the risk that the jury might have learned that Jenkins was serving a sentence at M.C.I. Cedar Junction for murder. ⁴ Bringing that fact to light might have weakened the Commonwealth's case, in spite of whatever testimony on the assault that Jenkins might have provided, and increased the chance that the jury might have been diverted from an objective analysis of the issues by consideration of Jenkins's criminal record and background. The prosecution obviously sought to place before the jury its strongest case, as free as possible from the consideration of collateral issues, because a conviction would help deter unnecessary violence by inmates in State penal institutions against each other. In deciding not to use Jenkins as a witness, the prosecutor may have felt that the defendant's claim of self-defense lacked substance and, consequently, chose not to risk assisting that claim by unnecessary testimony. ⁵ We have said, when urging caution in the area of giving a "missing witness" instruction, that "[a] witness may be withheld because of his prior criminal record, or because he is susceptible to cross-examination on collateral issues, or for other tactical reasons." Commonwealth v. Franklin, supra. These observations have application here and afford additional reasons why, on this record, the nonproduction of Jenkins does not persuasively justify resort to the "missing witness" principle. ⁶ As was stated in Commonwealth v. Schatvet, supra, 23 Mass.App.Ct. at 136, 499...