Com. v. Melendez

• Decision Date: 03 December 1981
• Citation: 12 Mass.App.Ct. 980,428 N.E.2d 824
• Parties: COMMONWEALTH v. William MELENDEZ.
• Court: Appeals Court of Massachusetts

Page 824

428 N.E.2d 824

12 Mass.App.Ct. 980

COMMONWEALTH v. William MELENDEZ.

Appeals Court of Massachusetts, Hampden.

Argued Oct. 16, 1981.

Decided Dec. 3, 1981.

Patricia A. O'Neill, Boston, for defendant.

William T. Walsh, Jr., Asst. Dist. Atty., for the Commonwealth.

Before PERRETTA, ROSE and DREBEN, JJ.

RESCRIPT.

At his trial on indictments for breaking and entering in the daytime with intent to commit a felony and possession of burglarious implements (i. e. a screwdriver), the defendant testified that at the time of the alleged breaking and entering he was at the apartment of a friend attempting to fix her refrigerator. This alibi, according to the defendant, also explained his possession of a screwdriver which bulged from his jacket at the time of his arrest. The alibi witness did not appear at trial.

Following the sound practice of first obtaining permission to do so, cf. Commonwealth v. Earltop, 372 Mass. 199, 206, 207, 361 N.E.2d 220 (1977) (Hennessey, C. J., concurring), the prosecutor, in closing argument, commented on the absence of the witness, asking, "Why isn't she here?" The defendant claims this comment was prejudicial error and points to the fact that the jury were so concerned about the absence of the witness that during their deliberations, they requested a city directory. The judge properly refused the request. We affirm, as the defendant did not properly preserve the issue of the prosecutor's comment for review and, in any event, the prosecutor's comment was proper in the circumstances of this case.

1. At a bench conference, the prosecutor informed the judge that he wanted to comment on the absence of the alibi witness and that he believed this was proper under the authorities. The judge replied, "I think that's the law." Defense counsel indicated that he had anticipated the prosecutor's request and had, therefore, attempted to have the defendant testify that the latter's brother had stated to the defendant that the witness had refused to come. The judge explained, "(Y)ou still can't bring it in that way," to which counsel replied, "I understand." The judge also pointed out that the defendant could subpoena the witness even if unwilling. Counsel then stated that the witness had not been found. He asked for permission to tell the jury in closing argument that he personally attempted to find her by making a trip to her apartment. The judge ruled that the prosecutor could comment on the absence of the witness and that defense counsel could state in final argument, although "not evidence," that he had tried to find her by looking for her at the address given by the defendant. The defendant did not object to this ruling. Moreover, he did not, at the time of the prosecutor's closing argument, object to the comment (although he made three other objections to the argument), nor did he request any instruction on this issue either before or after the judge's charge, although given the opportunity to do so. The defendant's claim that he, in effect, objected "by presenting argument to establish that (the witness) was unavailable" and by requesting permission to explain defense counsel's personal efforts is without merit.

2. Even had the defendant properly objected, we conclude that the "posture of the case and the state of the evidence before the jury were such that comment by the prosecutor on the defendant's failure to call (the witness) was proper as a matter of State law." Commonwealth v. Niziolek, Mass.Adv.Sh. (1980) 1089, 1096, 404 N.E.2d 643. The case against the defendant was strong. He had been positively identified by two witnesses as the man who had entered the apartment of one of them in the daytime. He was found with a screwdriver bulging from his pocket not long after the break, and he fitted the description given to the police by the two witnesses. Faced with that evidence, the defendant would naturally be expected to call as a witness the friend with whom he claimed he was at the time of the break-in.

The defendant argues that a crucial factor is missing as the availability of the witness has not been established. See Commonwealth v. Niziolek, Mass.Adv.Sh. (1980) at 1094, 404 N.E.2d 643. Availability, however, like the other factors a judge must consider in deciding whether comment is appropriate,...