COMMONWEALTH vs. CHARLES S. HAPPNIE.

ARMSTRONG, J. The defendant was convicted of armed robbery [Note 1] in a jury trial made subject to G. L. c. 278,

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Sections 33A-33G. His assignments of error which have been briefed present for our consideration three unrelated contentions which we discuss separately.

1. The Commonwealth produced a witness, Mrs. Schacht, who testified that the night before the robbery the defendant and his wife had stayed at her (Mrs. Schacht's) house and that the defendant had told them his plans for a robbery and had displayed items of apparel to be used in the robbery, including a baseball cap similar to one said by eyewitnesses to have been worn by one of the robbers. Mrs. Schacht further testified that the defendant had returned to her house on the day of the robbery about a half hour after it had occurred, displaying large numbers of notes of small denominations, totaling, he had said, more than $4,000, and had recounted details of the robbery. The next evening the defendant again visited Mrs. Schacht's house and, in the presence of both Mrs. Schacht and the defendant's wife, again discussed the robbery. The defendant did not testify; there was no evidence introduced (nor was any representation made to the judge) concerning the physical whereabouts of the defendant's wife. The prosecutor commented in his closing argument on the failure of the defendant to call his wife as a witness to rebut the testimony of Mrs. Schacht. The judge refused to declare a mistrial but forthwith instructed the jury in effect that if the jury were to find that the defendant's wife was available to be called but was not called, they would be warranted on the evidence before them in drawing an inference

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that her testimony, if produced, would not be favorable to the defendant. The defendant argues that there was no showing that his wife was physically available to testify, and points to a statement in the recent case of Commonwealth v. Franklin, 366 Mass. 284, 293 (1974), "Basic to the inference is the existence of evidence of physical availability of the witness, and the likelihood that he can be produced by summons or otherwise". [Note 2]

"It is settled 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, more likely to be known to him than to the representatives of the government, and he does not call such witnesses, his failure in this respect is fair matter for comment, and is not within the protection of the Constitution. . . . The inference drawn by common sense and approved by the law is that such evidence if presented would be unfavorable to the defendant.' Commonwealth v. Peoples Express Co. 201 Mass. 564, 581 [1909]." Commonwealth v. Domanski, 332 Mass. 66, 70 (1954). Commonwealth v. Finnerty, 148 Mass. 162, 167 (1889). Commonwealth v. Ries, 337 Mass. 565, 585 (1958). Grady v. Collins Transp. Co. Inc. 341 Mass. 502, 505 (1960). Commonwealth v. Franklin, 366 Mass. 284, 292 (1974). This is the general rule to which the constitutional prohibition against the drawing of an adverse inference from the defendant's failure to testify (see Griffin v. California, 380 U.S. 609 [1965]) is an exception. "Whether an inference can be drawn from the failure to call witnesses necessarily depends, as with inferences generally, upon the posture of the particular case and the state of the evidence." Commonwealth v. Franklin, supra, at 292-293, quoting Commonwealth v. O'Rourke, 311 Mass. 213, 222 (1942). Apart from the question of the absent witness' availability, this was a particularly appropriate case in which to allow

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an adverse inference to be drawn against the defendant. The identification evidence against the defendant was at best conflicting; the most damaging evidence against him was the testimony of Mrs. Schacht. Her testimony against him was so strong that, if innocent, he would have been expected to call his wife to contradict Mrs. Schacht's testimony. Commonwealth v. Finnerty, supra, at 167. Grady v. Collins Transp. Co. Inc., supra, at 506, 509. Commonwealth v. Franklin, supra, at 294. The inference was clearly justified, unless the "availability" of the defendant's wife cannot be said to have been established.

Although the Franklin case speaks in terms of the physical availability of the witness as being basic to the inference, that statement must be read in the light of the extensive discussion of the concept of availability in Grady v. Collins Transp. Co. Inc. 341 Mass. 502 (1960), which was clearly not intended to be overruled by the Franklin case and which, to the contrary, is cited as an authority in the Franklin case. [Note 3]

The Supreme Judicial Court, in the Grady case, supra, at 504-505, 506, stated: "The applicable rule includes the requirement that if an inference against a party is based on the absence of a possible witness it must appear that the witness is in the control of the party and available. Commonwealth v. McCabe, 163 Mass. 98, 102-103 [1895]. Heina v. Broadway Fruit Mkt. Inc. 304 Mass. 608, 611 [1939]. Horowitz v. Bokron, 337 Mass. 739, 743-744 [1958]. `Control' in this connection means only that the witness is in such relationship with the party that it is likely that his presence could be procured. Commonwealth v. McCabe, 163 Mass. 98, 102-103 [1895]. The word `available' is sometimes used with a meaning similar to `control'. See . . . McClanahan v. United States, 230 F. 2d 919, 926 (5th Cir. [1956]) (availability is to be determined not from mere physical presence or accessibility for service, but from the

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relationship or the nature of the expected testimony); McCormick, Evidence, Section 249. In recent cases the meaning ascribed to the word is the narrower one of immediate physical availability. See, for example, Thornton v. First Natl. Stores, Inc. 340 Mass. 222, 226 [1960] (that the physician was practising in Dedham at the time is not proof of `actual availability'). There is not, however, an inflexible requirement for every case of proof of such actual availability . . .. Within the limits of the rule the trial judge may allow the inference to be drawn if the evidence shows the probable availability to the party of the absent witnesses, the circumstances emphatically call for their presence if his testimony is to be believed, and no explanation has been offered of their absence."

The terms "availability," or "probable availability," or "control" (which, as the Franklin case, supra, at 293, points out, is often used to express the same thought) are words of art. They refer not to proof of actual physical whereabouts, but rather to the likelihood that the party against whom the inference is to be drawn would be able to procure the missing witness' physical presence in court. Commonwealth v. McCabe, 163 Mass. 98, 102 (1895). This is the sense in which the Franklin case uses the expression "physical availability". It is synonymous with the expression "probable availability" used in Grady v. Collins Transp. Co. Inc. 341 Mass. 502, 506 (1960), and Commonwealth v. Smith, 342 Mass. 180, 187 (1961). This is made clear from the statement in the Franklin case, immediately following the reference to "physical availability": "Additionally, the judge may consider whether the defendant has superior knowledge of the identity of the witness and his whereabouts". 366 Mass. at 293.

Whether the inference is warranted depends in the last analysis on common sense. The jury were entitled to draw the common sense inference that, in a situation where the only grievously damaging testimony against the defendant could be contradicted by the defendant's wife, the defendant's relationship to his wife was such that he would be likely to know her whereabouts, and that if her testimony

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could help him, he would be able to procure her presence in court. Commonwealth v. McCabe, supra, at 102. We conclude that the prosecutor's comment was not improper and that there was no error in the judge's instruction to the jury that they might draw an inference adverse to the defendant from his failure to produce his wife as a witness or to offer some explanation for her absence. [Note 4]

2. None of the eye-witnesses who testified to the description of the unmasked participant mentioned anything unusual about his hands. [Note 5] Just before counsel for the defendant rested, he requested that the judge permit the defendant to exhibit to the jury a tattoo on his right hand. The judge refused on the grounds that the defendant was unwilling to take the stand to give oral testimony subject to cross-examination and that there was no showing that the defendant had the tattoo at the time of the crime. The judge's ruling was correct for the reasons he stated. If the evidence offered should be considered purely physical or demonstrative, rather than testimonial, in nature (see Schmerber v. California, 384 U.S. 757 [1966]), it was properly rejected as irrelevant, as no foundation had been laid through, for example, testimony that the tattoo was on the defendant's hand at the time of the robbery eleven months before the trial. Brown v. United States, 356 F. 2d 230, 233-234 (10th Cir. 1966). If we should take the view that the hand could supply its own foundation and constitute evidence of the condition of the hand at the time of the robbery, then the

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display of the hand would clearly have had a testimonial component and constituted an election by the defendant to testify. One who so elects is "liable to cross-examination on all matters relevant to the crime with which he is charged, and he may be impeached or discredited like other witnesses." Commonwealth v. West, 357 Mass. 245, 249 (1970). Because the defendant was unwilling to subject himself to cross-examination, the offer was properly refused. The same result was reached in People v. Wong, 35 Cal. App. 3d 812, 835 (1973), which presented the same problem.

3. For the purpose of impeaching the credibility of the bank manager, who identified the defendant at trial as the unmasked participant, the defendant attempted to introduce in evidence a police journal report of the robbery which contained a description of the unmasked robber varying from that given by the bank manager. [Note 6]

The journal entry was not admissible as evidence of a prior inconsistent statement of the bank manager; the entry was not shown to have reflected a statement by him at all. It was not admissible as an entry made in the regular course of business (G. L. c. 233, Section 78) or as an official written statement, if for no other reason than that it was multiple-level (or "totem-pole") hearsay. Kelly v. O'Neil, 1 Mass. App. Ct. 313, 316-317 (1973). It was not a public record. Town Crier, Inc. v. Chief of Police of Weston, 361 Mass. 682 (1972). It was not admissible for the purpose of showing the state of police knowledge; unlike Commonwealth v. Miller, 361 Mass. 644, 658-659 (1972), an entrapment case cited by the defendant, the state of police knowledge was not relevant. In addition we note that "[a]n exception to the exclusion of evidence cannot be sustained

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by showing that the evidence was admissible upon a ground neither obvious nor actually taken." Rothwell v. First Natl. Bank, 286 Mass. 417, 422 (1934). See H. H. Hawkins & Sons Co. v. Robie, 338 Mass. 61, 66 (1958). There was no error in the judge's exclusion of the police journal.

Judgment affirmed.