NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-873
COMMONWEALTH
vs.
BRADLEY J. SCARBROUGH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his conviction, following a jury
trial in Cambridge District Court, of one count of indecent
assault and battery on a person fourteen or older, in violation
of G. L. c. 265, § 13H. The defendant contends that the judge
erred by declining to give a missing witness instruction
relative to the victim. Because we are not persuaded that the
defendant laid a sufficient foundation for a missing witness
instruction, we affirm.
1. Discussion. a. Standard of review. We review the
trial judge's decision to decline a missing witness instruction
for abuse of discretion. See Commonwealth v. Williams, 450
Mass. 894, 901 (2008). Such a decision "will not be reversed
unless the decision was manifestly unreasonable." Commonwealth v. Saletino, 449 Mass. 657, 667 (2007), citing Commonwealth v.
Thomas, 429 Mass. 146, 151 (1999).
b. Missing witness instruction. The proponent of a
missing witness instruction bears the burden of establishing, on
the record, a sufficient foundation for the instruction.
Commonwealth v. Barrett, 97 Mass. App. Ct. 437, 445 (2020). In
deciding whether this foundation has been established, a judge
must consider several factors. These factors "include, without
limitation, the strength of the case against the party against
which the adverse inference is sought to be drawn or, stated
otherwise, the importance of the testimony of the missing
witness to that party; the 'physical availability of the
witness, and the likelihood that he can be produced by summons
or otherwise,' absent a plausible reason for nonproduction;
whether the evidence could be produced from other sources; and
whether the witness is equally available to either party."
Williams, 450 Mass. at 900, quoting Commonwealth v. Franklin,
366 Mass. 284, 293 (1974).
Here, there was conflicting evidence on each of these
factors. Regarding the physical availability of the witness,
the judge was made aware that the Commonwealth had made some --
although not exhaustive -- efforts to obtain the victim's
presence at trial but had not been successful. See Williams,
supra. The Commonwealth also proffered some evidence of other
2 plausible reasons for nonproduction of the witness. For
example, there was evidence that the victim was subject to a
probation revocation at the time of the trial, from which the
judge could have inferred that she would not be sympathetic to
or cooperative with the prosecution in this case. See id. See
also Commonwealth v. Anderson, 411 Mass. 279, 283 (1991)
(Commonwealth's failure to call inmate to testify concerning
altercation at prison permissible where "[l]ogic would dictate
that, because of his status [as an incarcerated person], and the
Commonwealth's role in prosecuting him, [the witness] would be
naturally antagonistic toward the Commonwealth's interests").
There was also ample evidence that the victim was intoxicated at
the time of the event, which could have detracted from the
potential strength and credibility of her testimony. See
Commonwealth v. Broomhead, 67 Mass. App. Ct. 547, 554 (2006)
(missing witness instruction inappropriate where defendant had
plausible reason not to call witness because "both [witnesses]
were under the influence of alcohol on the night in question,
and neither would have been likely to bolster the defendant's
credibility in the eyes of the jury"). Additionally, the judge
could have concluded that the victim's address, which we infer
was provided on the unredacted copies of the ambulance records
3 entered into evidence, was equally available to both parties. 1
See id. at 553.
Even assuming that none of these factors supported the
judge's decision to deny the requested instruction, however, we
conclude that on the strength of the evidence of the victim's
intoxication alone, the judge was within her discretion in
concluding that a missing witness instruction was not required. 2
See Williams, 450 Mass. at 901. The contested issue at trial
was whether the victim consented to the sexual activity, and the
Commonwealth presented compelling evidence that the victim was
too intoxicated to be capable of consent. See Commonwealth v.
Blache, 450 Mass. 583, 591-592 (2008) (lack of consent may be
established by proving beyond reasonable doubt that victim was
"so impaired as to be incapable of consenting"). Contributing
to our conclusion are the following facts, established chiefly
through the testimony of four Commonwealth witnesses, as well as
through admission of the Emergency Medical Services (EMS) Report
into evidence.
1 To the extent that the defendant suggests that his probation conditions -- specifically, the requirement that the defendant have no contact with the victim -- prohibited defense counsel from using legal process to obtain her presence as a witness at trial, he has provided no legal support for his position. 2 We are mindful that after the defendant requested a missing
witness instruction, the trial judge stated, "I don't think [the Commonwealth's case is] strong enough without [the victim]." However, after a careful review of the record, we take a different view.
4 Bystanders testified that during the incident, the victim
appeared to be "very intoxicated." The victim's head was
"tilting back," as if she could not keep it straight, and her
"eyes were rolling back." The victim's body movements were
"slowed" and "delayed," and her eyes were "glazed." She did not
"seem in full control," or even conscious.
Once officers arrived on scene, they separated the parties.
They observed that the victim "was hunched over, swaying back
and forth, and was having trouble to stay awake." She appeared
"disoriented, under the influence of something. She was kind of
nodding off, swaying, had trouble keeping her eyes open, you
know."
When officers attempted to speak with the victim, they
noticed that her speech was "very slurred" and "unintelligible."
It took the victim "two to three minutes" to answer three basic
questions, including, "Where are you? How old are you? And
what's today's date?" During the entire ten-minute conversation
with officers, the victim was only able to keep her eyes open
for "[a] minute or so." There was also a "heavy odor of
alcoholic beverage coming from her breath."
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-873
COMMONWEALTH
vs.
BRADLEY J. SCARBROUGH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his conviction, following a jury
trial in Cambridge District Court, of one count of indecent
assault and battery on a person fourteen or older, in violation
of G. L. c. 265, § 13H. The defendant contends that the judge
erred by declining to give a missing witness instruction
relative to the victim. Because we are not persuaded that the
defendant laid a sufficient foundation for a missing witness
instruction, we affirm.
1. Discussion. a. Standard of review. We review the
trial judge's decision to decline a missing witness instruction
for abuse of discretion. See Commonwealth v. Williams, 450
Mass. 894, 901 (2008). Such a decision "will not be reversed
unless the decision was manifestly unreasonable." Commonwealth v. Saletino, 449 Mass. 657, 667 (2007), citing Commonwealth v.
Thomas, 429 Mass. 146, 151 (1999).
b. Missing witness instruction. The proponent of a
missing witness instruction bears the burden of establishing, on
the record, a sufficient foundation for the instruction.
Commonwealth v. Barrett, 97 Mass. App. Ct. 437, 445 (2020). In
deciding whether this foundation has been established, a judge
must consider several factors. These factors "include, without
limitation, the strength of the case against the party against
which the adverse inference is sought to be drawn or, stated
otherwise, the importance of the testimony of the missing
witness to that party; the 'physical availability of the
witness, and the likelihood that he can be produced by summons
or otherwise,' absent a plausible reason for nonproduction;
whether the evidence could be produced from other sources; and
whether the witness is equally available to either party."
Williams, 450 Mass. at 900, quoting Commonwealth v. Franklin,
366 Mass. 284, 293 (1974).
Here, there was conflicting evidence on each of these
factors. Regarding the physical availability of the witness,
the judge was made aware that the Commonwealth had made some --
although not exhaustive -- efforts to obtain the victim's
presence at trial but had not been successful. See Williams,
supra. The Commonwealth also proffered some evidence of other
2 plausible reasons for nonproduction of the witness. For
example, there was evidence that the victim was subject to a
probation revocation at the time of the trial, from which the
judge could have inferred that she would not be sympathetic to
or cooperative with the prosecution in this case. See id. See
also Commonwealth v. Anderson, 411 Mass. 279, 283 (1991)
(Commonwealth's failure to call inmate to testify concerning
altercation at prison permissible where "[l]ogic would dictate
that, because of his status [as an incarcerated person], and the
Commonwealth's role in prosecuting him, [the witness] would be
naturally antagonistic toward the Commonwealth's interests").
There was also ample evidence that the victim was intoxicated at
the time of the event, which could have detracted from the
potential strength and credibility of her testimony. See
Commonwealth v. Broomhead, 67 Mass. App. Ct. 547, 554 (2006)
(missing witness instruction inappropriate where defendant had
plausible reason not to call witness because "both [witnesses]
were under the influence of alcohol on the night in question,
and neither would have been likely to bolster the defendant's
credibility in the eyes of the jury"). Additionally, the judge
could have concluded that the victim's address, which we infer
was provided on the unredacted copies of the ambulance records
3 entered into evidence, was equally available to both parties. 1
See id. at 553.
Even assuming that none of these factors supported the
judge's decision to deny the requested instruction, however, we
conclude that on the strength of the evidence of the victim's
intoxication alone, the judge was within her discretion in
concluding that a missing witness instruction was not required. 2
See Williams, 450 Mass. at 901. The contested issue at trial
was whether the victim consented to the sexual activity, and the
Commonwealth presented compelling evidence that the victim was
too intoxicated to be capable of consent. See Commonwealth v.
Blache, 450 Mass. 583, 591-592 (2008) (lack of consent may be
established by proving beyond reasonable doubt that victim was
"so impaired as to be incapable of consenting"). Contributing
to our conclusion are the following facts, established chiefly
through the testimony of four Commonwealth witnesses, as well as
through admission of the Emergency Medical Services (EMS) Report
into evidence.
1 To the extent that the defendant suggests that his probation conditions -- specifically, the requirement that the defendant have no contact with the victim -- prohibited defense counsel from using legal process to obtain her presence as a witness at trial, he has provided no legal support for his position. 2 We are mindful that after the defendant requested a missing
witness instruction, the trial judge stated, "I don't think [the Commonwealth's case is] strong enough without [the victim]." However, after a careful review of the record, we take a different view.
4 Bystanders testified that during the incident, the victim
appeared to be "very intoxicated." The victim's head was
"tilting back," as if she could not keep it straight, and her
"eyes were rolling back." The victim's body movements were
"slowed" and "delayed," and her eyes were "glazed." She did not
"seem in full control," or even conscious.
Once officers arrived on scene, they separated the parties.
They observed that the victim "was hunched over, swaying back
and forth, and was having trouble to stay awake." She appeared
"disoriented, under the influence of something. She was kind of
nodding off, swaying, had trouble keeping her eyes open, you
know."
When officers attempted to speak with the victim, they
noticed that her speech was "very slurred" and "unintelligible."
It took the victim "two to three minutes" to answer three basic
questions, including, "Where are you? How old are you? And
what's today's date?" During the entire ten-minute conversation
with officers, the victim was only able to keep her eyes open
for "[a] minute or so." There was also a "heavy odor of
alcoholic beverage coming from her breath."
Officers also described the victim as having "trouble
sitting on her own." When asked if she could stand, the victim
"attempted to do so, [and] she quickly fell," so officers
requested an ambulance. Once the ambulance arrived, the
5 officers "tried to escort [the victim] to the stretcher, [and]
she tried to stand, but physically couldn't." When the victim
tried to walk to the stretcher, she "almost fell down without
[police] assistance." Officers ended up having to "basically
carry her to the stretcher." Once the victim was on the
stretcher, "she was able to wake up and say that she didn't want
to go, and then fell -- then passed out."
In addition to the above testimony, defense counsel
introduced an EMS incident report into evidence, which contained
elements that strengthened the Commonwealth's case. For
instance, the report indicated that EMS's primary impression of
the victim was that she suffered from "[a]lcohol
[i]ntoxication." The report noted that "[t]here was an empty
bottle of wine next to the [victim] that [she] confirmed she
drank," and that the victim "was unable to self ambulate."
Finally, the incident report states that the victim was unable
to provide her signature because she was "[i]ntoxicated."
Under these circumstances, where the Commonwealth presented
overwhelming evidence that the victim was "so impaired as to be
incapable of consenting," the judge did not abuse her discretion
by refusing to give a missing witness instruction. See Blache,
473 Mass. at 591-592. See also Commonwealth v. Jansen, 459
Mass. 21, 30-31 (2011); Commonwealth v. Chilcoff, 103 Mass. App.
Ct. 48, 55 (2023).
6 2. Conclusion. Defendant's conviction of one count of
indecent assault and battery on a person fourteen or older, in
violation of G. L. c. 265, § 13H, is affirmed.
Judgment affirmed.
By the Court (Green, C.J., Hand & Hodgens, JJ. 3),
Clerk
Entered: November 1, 2023.
3 The panelists are listed in order of seniority.