Com. v. Bryer

• Decision Date: 10 July 1986
• Citation: 494 N.E.2d 1335,398 Mass. 9
• Parties: COMMONWEALTH v. James A. BRYER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1335

494 N.E.2d 1335

398 Mass. 9

COMMONWEALTH v. James A. BRYER.

Supreme Judicial Court of Massachusetts Bristol.

Argued March 5, 1986.

Decided July 10, 1986.

Bernadette L. Sabra, Dana A. Curhan, Asst. Dist. Attys. for the Commonwealth.

Hugh Samson, Boston, for defendant.

Before HENNESSEY, C.J., and WILKINS, LYNCH and O'CONNOR, JJ.

Practice, Criminal, Comment by prosecutor, Continuance,

Instructions to jury. Evidence, Failure to

produce witness. Motor Vehicle,

Operating under the influence.

LYNCH, Justice.

The defendant, James A. Bryer, was tried and convicted of operating a motor vehicle while under the influence of intoxicating liquor and of operating a motor vehicle negligently so that the lives and safety of the public might be endangered. G.L. c. 90, § 24(1)(a), (2)(a). He appealed, and we took the case on our own motion. ¹ We consider whether (1) the defendant was deprived of a fair trial by the prosecutor's references to the defendant's failure to call a witness; (2) the judge erred in denying the defendant's request for a continuance to procure a witness; and (3) whether the judge's instructions to the jury on the standards governing the charge of operating under the influence created a substantial risk of a miscarriage of justice. We affirm.

On December 20, 1980, Officer Gary Flood of the North Attleborough police department stopped a dark-colored Oldsmobile automobile which was being operated by the defendant and which had been speeding and swaying across the road. ² The officer observed that the defendant had trouble with his balance as he stepped from the automobile; he was belligerent; there was a strong odor of alcohol on his breath; his eyes were red and glassy; and the officer concluded that the defendant was under the influence of alcohol. With assistance from another officer, the defendant was taken to the police station. The assisting officer and an officer at the police station corroborated the conclusion that the defendant was under the influence of alcohol.

The sole issue at trial was whether the defendant was under the influence of alcohol. ³ The defendant testified that he is six feet tall and that he weighed about 215 to 220 pounds at the time of the arrest. He testified that between 9 P.M. and midnight on December 19, 1980, he was at his apartment in East Providence, Rhode Island. He stated that while at home he had two drinks--each a Scotch whisky on the rocks. His roommate, Michael Stevens, who did not testify, was with him, according to the defendant's testimony, for about half an hour in that period. Around midnight, the defendant left for a bar in Taunton. He stated that he ordered one drink at that bar--another Scotch on the rocks--but only drank half of it. Stevens was at the bar, but they spent less than ten minutes together. About 12:30 A.M., the defendant left to go to his office and was stopped on the way.

1. The prosecutor's remarks on the failure to call a witness. During cross-examination of the defendant, the prosecutor asked several questions regarding the defendant's roommate, Michael Stevens. Although the prosecutor asked two questions regarding Stevens' failure to appear as a witness which were successfully objected to, the judge ultimately allowed the prosecutor to establish that the defendant never asked Stevens to testify. There was no error in allowing the prosecutor to pursue this line of inquiry.

Contrary to the defendant's assertion in his brief, the Commonwealth presented a strong case against the defendant on the sole issue of his sobriety. Three officers testified that the defendant was intoxicated and documented the various facts upon which they relied to reach this conclusion. A review of the record shows that the testimony was credible, and jointly corroborative in both conclusion and detail. The defendant chose to take the stand and his defense consisted of the assertion that he had only two and one-half Scotches over a three and one half-hour period. The jury was to infer that a six-foot man of substantially over two hundred pounds could hold this amount of liquor. The defendant pitted his credibility against the credibility of the officers.

The defendant had the right not to take the stand in his defense and "to remain passive, and to insist that the Commonwealth prove its case beyond a reasonable doubt without explanation or denial by him." Commonwealth v. Madeiros, 255 Mass. 304, 307, 151 N.E. 297 (1926). See Commonwealth v. Powers, 9 Mass.App.Ct. 771, 774, 404 N.E.2d 1260 (1980). In taking the stand, however, the defendant opened the issue of his credibility and was subject to scrutiny on that ground. We are 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. See Commonwealth v. Perkins, 6 Mass.App.Ct. 964, 965, 384 N.E.2d 215 (1979). However, we recognize that "where incriminating evidence has been introduced by the Commonwealth and explanations consistent with his innocence could be produced by the defendant through witnesses other than himself, his failure in this respect may be deemed by the judge to be a fair matter for comment." Commonwealth v. Franklin, 366 Mass. 284, 293-294, 318 N.E.2d 469 (1974). See Commonwealth v. Cobb, 397 Mass. 105, 108-109, 489 N.E.2d 1246 (1986); Commonwealth v. Niziolek, 380 Mass. 513, 519, 404 N.E.2d 643 (1980). We have required that the strength of the case against the defendant should be considered and reference to or instruction regarding the failure to produce witnesses should not be allowed "unless the evidence against him is so strong that, if innocent, he would be expected to call them." Commonwealth v. Finnerty, 148 Mass. 162, 167, 19 N.E. 215 (1889). See Commonwealth v. Niziolek, supra, 380 Mass. at 519-520, 404 N.E.2d 643. Jurors are free, in such circumstances, to infer that an absent witness would have testified unfavorably. Commonwealth v. Franklin, supra, 366 Mass. at 294, 318 N.E.2d 469.

The defendant contends that Commonwealth v. Franklin permits prosecutorial comment only where the missing witness is one "who could clarify or support [the defendant's] version of the facts." Id. at 292, 318 N.E.2d 469. The defendant notes that the prosecutor elicited the fact that Stevens was with the defendant for only half an hour at the defendant's home and for only ten minutes at the bar. From this the defendant argues that the issue at trial was how much the defendant drank over the three and one-half hour period prior to arrest and that Stevens had no knowledge as to that total period. This, however, is not a case where the witness could have said nothing corroborative of the defendant's story. Stevens presumably could have corroborated the defendant's testimony regarding the time they spent together that evening, could have testified as to his perceptions of the defendant's state of intoxication at the bar, and could have testified as to any other facts which would have been consistent with the defendant's testimony regarding his consumption of alcohol at home. The fact that Stevens could not have fully corroborated the defendant's story if it were true does not bar prosecutorial comment or inquiry on these lines, since the defendant would be expected to call for even partial corroboration of his story in a battle over credibility in the face of the Commonwealth's strong case. We find no error in the judge's rulings, or in the prosecutor's comment. We note that the defendant does not argue that Stevens was equally available to the prosecution. Even where that argument has been made we have permitted an inference to be drawn against the defendant where the posture of the case is such that the defendant would be naturally expected to call the witness. Commonwealth v. Niziolek, supra 380 Mass. at 519, 404 N.E.2d 643; Commonwealth v. Franklin, supra, 366 Mass. at 293, 318 N.E.2d 469.

2. The out-of-State witness. The defendant argues that the judge abused his discretion in refusing to grant a continuance to allow a proper summons to issue to Dr. Bryan Quinn, a prospective defense witness. We find no abuse of discretion.

It is not relevant, for the purposes of this case, whether the proper procedure for summoning the out-of-State witness, Dr. Quinn, was followed because what is at issue is whether the judge abused his discretion in denying the continuance on June 5, 1981, in the face of the fact that the witness was not present. There was ample justification for the denial of the continuance on the day of trial, even assuming that failure to summon the witness properly was no fault of the defendant.

The procedural history reveals that trial was delayed several times prior to June 5, 1981. After trial counsel was appointed on January 16, 1981, the case was continued for conference on January 29, 1981. The defendant defaulted on that day and a warrant issued. He arrived later in the day and the default was removed and the warrant dismissed. A conference was scheduled for February 6, 1981. The case was scheduled for trial on March 16, 1981, but was put over until April 28, 1981, at the defendant's request. Once again, the defendant defaulted on April 28, 1981, and a warrant issued. The defendant appeared later in the day--the default was removed and the warrant dismissed. Trial was rescheduled for June 4, 1981, but was held over for June 5, 1981. On June 1, 1981, the defendant had filed a motion to summon a witness under Mass.R.Crim. P. 17(b), 378 Mass. 886 (1979), which was allowed. The motion was not accompanied by any affidavits and contained only the bare assertion that "the presence of said witness is necessary to an adequate defense." At a hearing on motions before trial on June 5, 1981, the defendant's attorney represented that Dr. Quinn would come in as an expert witness and "would testify that he was treating the defendant for back problems and the other problems...