COMMONWEALTH vs. JOSE C. RESENDES.

WARNER, C.J. After trial before a jury of six in a District Court, the defendant was convicted of two counts of assault and battery on a police officer. [Note 1] On appeal, we need only address in detail the defendant's claim of error in the prosecutor's

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argument and the judge's instructions regarding a so-called missing witness.

We briefly sketch the essential and conflicting evidence. The Commonwealth's version of the incident was as follows. Three Taunton police officers responded to a report of a disturbance in a dwelling. Relatives of the defendant informed the police that the defendant had caused damage in the home after an argument and directed them to the third-floor apartment where the defendant lived with his fiancee, Cheryl Ponds. During the course of police inquiry as to the problem, the defendant lunged at one police officer and pushed and punched him to the floor. The defendant hit another officer who came to the aid of the first. The defendant was subdued, placed under arrest, handcuffed and led outside.

According to the defendant and Ponds, the defendant simply refused to answer one of the police officers' questions. It was the officer, who stood nearly six feet tall and weighed about two hundred pounds, who initiated physical contact by pulling the five feet seven inch, one hundred and forty-five pound defendant out of a chair and shoving him. The frightened defendant reflexively pushed the officer back. A second officer jumped on the defendant, and he was handcuffed. As this was happening, an officer raised his billy club as if to hit the defendant between the legs but apparently refrained on Ponds' exclamation. As the police were taking the defendant outside, the officer who initially attacked the defendant pushed him down five cement steps. At the police station, the same officer pulled the handcuffed defendant out of his chair by his ears.

1. Ponds testified during cross-examination that a sister of the defendant (otherwise unidentified) was the only family member present when the police officer threw him down the steps. Over the defendant's objection, the prosecutor was permitted to cross-examine Ponds about the defendant's failure to call his sister as a witness. The prosecutor argued in closing that the witness had not been called because her testimony

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would have been adverse to the defendant. [Note 2] The jury were instructed that they could infer that the absent witness's testimony would have been adverse to the defendant if they determined that (1) the Commonwealth's case was strong, (2) the absent witness would be expected to give important testimony supporting the defendant's innocence, (3) the absent witness was available to the defendant, and (4) the witness's absence was not explained by any of the other circumstances in the case. See Commonwealth v. Zagranski, 408 Mass. 278, 287 (1990). The defendant objected to the prosecutor's closing argument and the giving of the instruction. There was error.

A judge may properly permit the jury to consider a party's failure to call a witness under the following circumstances: "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 (1986). Commonwealth v. Zagranski, supra. Whether the prosecutor was entitled, over objection, to inquire about the defendant's sister as a witness and whether there was sufficient record support for the prosecutor's comment and the judge's instruction on a "missing witness" were questions of law for the judge. Commonwealth v. Schatvet, supra at 135. Commonwealth v. Vasquez, 27 Mass. App. Ct. 655, 658 (1989). Commonwealth v. Sena, 29 Mass. App. Ct. 463, 467 (1990). "Because the inference, when it is made, can have a seriously adverse effect on the noncalling party -- suggesting, as it does, that the party has

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wilfully attempted to withhold or conceal significant evidence -- it should be invited only in clear cases, and with caution." Commonwealth v. Schatvet, supra at 134-135. "This is a delicate area, requiring caution . . . . In the absence . . . of evidence supporting the giving of an absent witness charge, no such charge should be given." Commonwealth v. Zagranski, supra at 287, 288.

Here, the questions of law should have been decided in the negative. Prior to the prosecutor's questions about the missing witness, evidence had been presented strongly suggesting that the defendant and this sister were unfriendly. Ponds had testified that the defendant had argued with his sisters the evening of the disturbance. She also testified that she did not get along with the defendant's sisters and that this had something to do with the disturbance. Ponds herself had been arrested that night in part because of angry comments she made to the sister in question, accusing her of merely standing by while the defendant was thrown down the stairs. [Note 3] The defendant's counsel specifically objected to the prosecutor's cross-examination on the ground of the evidence of hostility.

The judge nevertheless permitted the prosecutor to ask Ponds about the defendant's relationship to his sister, where the sister resided, and whether any attempt had been made to call her as a witness. Ponds answered "no" to the final question. Ponds' single word characterization of the defendant's relationship with his sister as "good" did not obviate the evidence of hostility that had been presented. The defendant subsequently testified that he had argued with his sister on the night in question and had kicked in a gate because he was so angry. Asked, under cross-examination, whether he got along with his sister, he replied, "I try to get along with everybody," then added that he had had arguments with his sister before.

We cannot confidently say that the defendant was not prejudiced by the questioning of Ponds, the prosecutorial

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comment and the instruction on the "missing witness." The defendant's case rested on his assertion that he responded in self-defense to an unjustified attack by a police officer. His claim that the same officer pushed him down the stairs after he was handcuffed described an act which, if believed, would likely add credence to his claim that the officer initiated the earlier violence. Adverse inferences drawn from the defendant's failure to call his sister as a witness could have gone to the heart of his credibility.

2. We comment briefly on other issues which may arise at retrial. (a) The judge should not have given an instruction on the right to resist an unlawful arrest. The trial was properly focused, however, on the assault and battery on a police officer charges. The jury were correctly instructed on the elements of the charges and self-defense. (b) The prosecutor was properly allowed to elicit details of a conversation the police officers had with members of the defendant's family in order to show that the officers had lawfully entered the defendant's apartment, a matter opened up by the defendant. See Commonwealth v. Watson, 377 Mass. 814, 826-831 (1979). (c) We assume that the prosecutor will not stray, intentionally or inadvertently, from the proper bounds of closing argument. See Commonwealth v. Kozec, 399 Mass. 514, 516-520 (1987); Commonwealth v. Thomas, 401 Mass. 109, 115-116 (1987). (d) We also suppose that, if a Tuey-Rodriquez (Commonwealth v. Rodriquez, 364 Mass. 87, 101-103 [1973]) charge is again given, no reference will be made to the possible inconvenience or expense attendant to a new trial.

Judgments reversed.

Verdicts set aside.