COMMONWEALTH vs. LLOYD MATTHEWS.

DREBEN, J. Eleven years have elapsed since the date of the

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defendant's convictions, [Note 1] and this is an appeal from the denial of his third motion for a new trial. Even with the lenity expressed in note 2, infra, the defendant has a "heavy" burden to show that because of the claims raised for the first time in his motion, "there is a substantial risk that the outcome of the trial[] would have been different." Commonwealth v. Amirault, 424 Mass. 618 , 651 (1997). The motion judge, who was not the trial judge and who heard no evidence, determined that the issues raised in the defendant's motion were either decided in the defendant's previous appeals or were waived by not having been raised. See Mass.R.Crim.P. 30(c)(2), 378 Mass. 901 (1979); Commonwealth v. Deeran, 397 Mass. 136 , 139 (1986).

The standard for our review is "the same standard . . . that motion judges should use . . . [and the] 'discretionary power to give relief from such a waiver by permitting such issues to be raised for the first time by a motion for a new trial should be exercised only in those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result.'" Commonwealth v. Curtis, 417 Mass. 619 , 626 (1994), quoting from Commonwealth v. Harrington, 379 Mass. 446 , 449 (1980). See also Curtis, supra at 624 n.4. Obviously, with each succeeding motion for a new trial, the community's interest in finality comes more to the fore. [Note 2]

We turn to the issues raised by the defendant.

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1. Relying on Commonwealth v. Sevieri, 21 Mass. App. Ct. 745 (1986), the defendant urges that defense counsel's statement in closing argument, objected to by the prosecutor, together with the judge's response created a substantial risk of a miscarriage of justice. In his closing, defense counsel pointed out that the defendant was not arrested until thirteen days after the victim had identified his photograph at the police station, although his address was known, and that at that late date, without a daily diary, it was difficult for him to reconstruct his whereabouts on the day of the incident (May 15, 1986). Counsel suggested that the defendant was telling the truth because he didn't say that he worked at his stepfather's automobile repair shop every day, but said "I usually do." Counsel asked,

"But how many of you people keep a diary? I ask you, what would you have done if you were confronted as Mr. Matthews was? What would you have done?"

The prosecutor objected on the ground that defense counsel is "putting the jury in the place of the defendant."

The judge responded:

"I think that's somewhat common. The jury frequently puts themselves in the place of the defendant and puts themselves in the place of the victim, to make the decision. That's proper argument."

Defense counsel continued: "I suggest, how many of you have a diary that say [sic] where you were a particular day? I suggest that Mr. Matthews was candid."

There was no error in defense counsel's argument. Unlike the statement in Commonwealth v. Sevieri, 21 Mass. App. Ct. at 753-754 - "[p]ut yourself in that position, when a man's got you by the throat, dragging you into a bedroom" - it was not an appeal to sympathy, but rather an attempt to invoke logic and common sense. Although the judge spoke of jurors putting themselves in the place of the victim, his comments were balanced by suggesting that jurors place themselves also in the position of the defendant. "[I]n light of their over-all impact on

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the jury," see Commonwealth v. Grant, 418 Mass. 76 , 85 (1994), quoting from Commonwealth v. Sellon, 380 Mass. 220 , 231-232 (1980), they, too, were not a prejudicial appeal to sympathy. In any event, they did not create a substantial risk of a miscarriage of justice.

2. The defendant's second claim is more troublesome. At trial, the defendant on direct examination testified that he usually worked at an auto shop owned by his father (stepfather) and that he had worked with his friend Christopher Cross on reconstructing a car during May, 1986. He also testified that his stepfather was in Georgia, that Cross, although he had agreed to testify, was in the Marines, and that he (the defendant) had been incarcerated and had only been informed the day before the trial that the trial would commence the following day.

On cross-examination, the prosecutor asked questions eliciting answers that indicated that neither the stepfather nor Cross was in the courtroom, that the defendant did not have any records (W-2 forms or income tax returns) of his employment at the auto shop, that he did not have a bill of sale or any record that he owned the Lincoln car he allegedly had reconstructed, that he had no records or photographs in court relating to the sale of the Lincoln, and did not know to whom his stepfather had sold it, only that it was to "one of his friends."

In closing, the prosecutor argued:

"Now, in contrast to the honest and decent way that [the victim] projected herself, you have the story of the defendant, Lloyd Matthews, who got up there and told you a very, very vague story about how he allegedly was working at an auto garage.

"He referred to witnesses, John Wornum [stepfather], and Rufus Wornum [stepfather's brother], Chris Cross, people who supposedly worked with him at that garage, all missing witnesses. None of them were here to back up his story, not one.

"No documentation to prove that he worked there, no pay stubs, no income tax records, nothing. All you have is a vague, vague story from [the defendant] that he worked at a vague garage, working on a vague Lincoln, making vague repairs. Nothing to back it up."

The cross-examination and the foregoing closing remarks

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were improper with respect to the missing witnesses. As stated in Commonwealth v. Schatvet, 23 Mass. App. Ct. 130 , 134 (1986), the rule is:

"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."

See Commonwealth v. Franklin, 366 Mass. 284 , 292 (1974). To argue that an inference is to be drawn against the opposing party for failure to call a witness, "the proper practice is first to obtain the permission of the trial judge to do so." Commonwealth v. Vasquez, 27 Mass. App. Ct. 655 , 658 (1989). See Commonwealth v. Melendez, 12 Mass. App. Ct. 980 , 980 (1981). See also Commonwealth v. Earltop, 372 Mass. 199 , 206-207 (1977) (Hennessey, C.J., concurring). In order to be granted such permission, "the trial judge must rule, as matter of law, that there is a sufficient foundation for such inference in the record." Commonwealth v. Vasquez, 27 Mass. App. Ct. at 658, citing Commonwealth v. Schatvet, 23 Mass. App. Ct. at 135 (additional citations omitted). "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." Commonwealth v. Franklin, 366 Mass. at 293. In the circumstances where the defendant maintained that he did not have an opportunity to produce the witnesses since he was incarcerated, and had only found out about his trial the previous day, it is highly questionable whether the inference was valid. Moreover, the inference should be invited only in clear cases, and with caution, as the "effect of the comment may be substantial in the jury's deliberations." Id. at 294. Commonwealth v. Groce, 25 Mass. App. Ct. 327 , 330 (1988). [Note 3]

One of the important factors in determining whether there is

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a clear case for suggesting the inference by the prosecutor is "whether, if the defendant's testimony was truthful, [his stepfather or Cross] would have been able to give testimony important and helpful to his case so that he would in the normal course have been expected to call them as witnesses." Ibid. The answer is probably in the negative in this case. If the defendant could not remember definitively that he was at the auto shop, it is unlikely that the other witnesses would have remembered. See id. at 331.

In Groce, supra, a case upon which the defendant relies, the prosecutor was allowed to comment on the defendant's failure to call witnesses and we reversed the defendant's conviction. There, however, the comment was made over the defendant's objection and, unlike the case at bar, the judge instructed the jury that they could draw an adverse inference from the witnesses' absence. 25 Mass. App. Ct. at 329. In addition, another instruction was erroneous, and this court concluded that the instructions, "at least when considered in combination," were not harmless. Id. at 328.

In this case, the defendant must show much more than that the error was not harmless. He must sustain the burden of demonstrating that this is the "extraordinary case[] where, upon sober reflection, [unless a new trial is granted] it appears that a miscarriage of justice might . . . result." Commonwealth v. Curtis, 417 Mass. at 626, quoting from Commonwealth v. Harrington, 379 Mass. at 449.

Although the case against the defendant rested exclusively on the victim-eyewitness's identification, the evidence was powerful. See Commonwealth v. Groce, 25 Mass. App. Ct. at 329. The victim selected the defendant's picture from a large array of photographs, [Note 4] observed the person who traumatized her in broad daylight, described her assailant to the police, identified him within hours of the incident, and spontaneously exclaimed certainty upon recognizing the defendant's picture. See ibid. She also identified him from his unannounced and upsetting appearance at her home several days after the incident. In view of the strength and certainty of her identification, and the defendant's admission on cross-examination that he was "not

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specifically testifying as to where [he was] on the morning of May 15, 1986," we do not consider the unfortunate comments of the prosecutor concerning absent witnesses to have created a substantial risk that the outcome of the trial would have been different.

The rules as to when adverse inferences may be drawn from the failure to produce evidence are less clear than those applicable to missing witnesses. See, e.g., Liacos, Massachusetts Evidence s. 5.11, at 254 (6th ed. 1994); 2 Wigmore, Evidence s. 291(3), at 221-229 (Chadbourn rev. ed. 1979). There was here no error, let alone a substantial risk of a miscarriage of justice, in the prosecutor's cross-examining the defendant and commenting about the lack of record evidence of the defendant's alleged employment. [Note 5] In Commonwealth v. Silva, 401 Mass. 318 , 327-328 (1987), the Supreme Judicial Court indicated it was proper to cross-examine a defendant as to whether he could substantiate an alleged encounter with a person whom the defendant (a police officer) claimed "wanted to get him" (the defendant). It was permissible to ask the defendant if he knew that he could get police records to corroborate the alleged "contact in an official capacity" with that person. Ibid. Cf. Commonwealth v. Ramey, 368 Mass. 109 , 111-113 (1975). The court also noted that the prosecutor's comments during summation regarding the defendant's failure to corroborate the grudge against him were warranted. Commonwealth v. Silva, supra at 329 n.12. The challenge to the cross-examination and comments in the case at bar are governed and disposed of by Commonwealth v. Silva.

3. The defendant also complains about trial counsel's "contradictory" or inconsistent defenses in arguing both mistaken identity and that the attack never occurred. This argument, while not exactly in the form raised in the defendant's second motion for a new trial and in his habeas corpus petition, is sufficiently close to those raised in the prior proceedings that we consider the claims disposed of by those cases. While we are not bound by the reasoning of the First Circuit, we are persuaded by it. See Matthews v. Rakiey, 54 F.3d 908, 917-918 (1st Cir. 1995).

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The remaining argument of the defendant is that the judge in his instructions left the jury with the impression that the case was entirely about credibility and that either the defendant or the complainant was lying. This argument, however, was made in his consolidated appeal from his convictions and the denial of his first motion for a new trial. As we there stated, "the defendant claims: (1) that the court's failure to instruct the jury sua sponte on the possibility of honest but mistaken identification created a substantial risk of a miscarriage of justice." [Note 6] We disposed of that argument, pointing out, inter alia, that the judge instructed the jury at the beginning of trial that the witnesses might be honestly mistaken rather than untruthful.

In sum, we conclude that the motion judge did not err in denying the defendant's third motion for a new trial.

Order denying motion for new trial affirmed.