On July 20, 1999, twenty-four year-old Geoffrey Yalenezian had a job installing solid surface kitchen countertops. He and his friend and co-worker Shayne DeRochea completed a job in Walpole and headed home just before 4:00 p.m. They drove along Route 27 toward Whitman. Yalenezian was driving the 1983 Chevy pickup truck, and DeRochea was in the passenger seat. The weather was warm, and they had the windows open. As they passed through the intersection near the entrance to Route 95, a metallic gold Mitsubishi pulled into Yalenezian's lane and almost hit his truck. Yalenezian swerved to the other side of the lane. Thereafter, the car followed him for a mile or two, tailgating him for much of the way. Yalenezian slowed down and sped up several times, but the car remained within a foot of his bumper. [Tr. 52-61].
They reached an intersection where Route 27 veers off to the right. Yalenezian stopped at a stop sign. The Mitsubishi pulled up next to him. The defendant asked him if he was happy he got in front of him. Yalenezian told the defendant to go fuck himself. He and the defendant exchanged words. Yalenezian went right onto Route 27, and the defendant went straight. [Tr. 62-64]. About two miles down the road, Yalenezian went around a bend and saw the defendant's car waiting at the side of the road. He explained that there is a shortcut that leads back to Route 27 from the road the defendant was on. Yalenezian drove by the defendant and ignored him. As they approached the Route 1A intersection, Yalenezian stopped at the red light in the right hand lane behind two cars. The defendant pulled up to his left behind two other cars. Yalenezian pretended he did not see the defendant. However, the defendant asked him if he was going to tell him to go fuck himself now. Yalenezian again told him to fuck himself. The defendant suggested that they pull over so that they could settle this like men. Yalenezian declined, telling the defendant that he would beat his head in if they did and that there was no need for this. He told the defendant to shut up, drive his fucking car, and leave him alone. [Tr. 64-72].
From his vantage point, Yalenezian could see into the defendant's car. The defendant again asked Yalenezian to tell him to go fuck himself. As Yalenezian again told the defendant to fuck himself, the defendant removed a holstered gun from between the front seat and the console and placed it on his lap. He then removed the gun from the holster and pointed it in Yalenezian's direction. Yalenezian described the gun as a black squared-off handgun that was somewhat smaller than a .9 millimeter. He thought it might be a Glock. He described the holster as black and well worn. He became nervous and backed his truck up as far as he could go. He felt threatened. The defendant was still aiming the gun in his direction, although he did not have a clear shot at him anymore. Yalenezian leaned out the window and said, “You got a fucking gun. You just pulled a fucking gun on me. Do you have any idea what you are doing?” At that point, the light turned green. Yalenezian put the truck in drive and floored it. As he passed the defendant, he again told the defendant to go fuck himself. The defendant said, “I'll go wherever you go” and waved the gun in the air. The defendant followed Yalenezian for about four miles through Stoughton. Yalenezian looked for a police officer at the side of the road but did not see one. [Tr. 72-80, 86-88].
At some point, the defendant disappeared. Yalenezian saw a police officer at the side of the road. He stopped and told the officer what had happened. He went to the Stoughton police station and then to the Sharon police station where he filled out a report. He spoke with Officer Fitzhenry and later talked to Detective Phaneuf on the phone. [Tr. 81-85].
Officer Bradley Fitzhenry of the Sharon Police Department was on duty as a patrol officer on July 20, 1999. At about 4;30 p.m., he received a call to return to the station and take a report of an alleged assault with a gun. He spoke with Geoffrey Yalenezian and prepared a report. He then tried unsuccessfully to contact the defendant. Detective Phaneuf later contacted the defendant's mother and received his pager number. The defendant came into the station at about 11:30 that night. Fitzhenry advised the defendant of his Miranda rights and asked if he knew why he was at the station. The defendant said that he did. Fitzhenry asked the defendant about the incident in Cobb's Corner. The defendant admitted that he had a confrontation with another driver as they were driving on Route 27. He said that one of them had cut the other off and that words were exchanged. The other driver told him to fuck off, and they continued to drive through Sharon. At Cobb's Corner, the defendant pulled up beside the other vehicle and asked the driver if he was going to tell him to fuck off again. The defendant thought the other driver was going to get out of his car, so he placed his hand on his weapon, which was still holstered. The other driver drove off. Fitzhenry asked the defendant if he owned a weapon. The defendant said that he did. [Tr. 136-144].
Detective Lawrence Phaneuf of the Sharon Police Department spoke with Geoffrey Yalenezian on July 20, 1999. He then called the defendant's mother, who told him the defendant was not home. She gave him the defendant's pager number. He paged the defendant and received a return call about ten minutes later. He told the defendant that he had to see him at the station as soon as possible, that it was very important. The defendant said he was at a Paw Sox game and wanted to come in the next day. Phaneuf told him he should come in that night. [Tr. 151-156].
I. The Trial Judge Deprived The Defendant Of A Fair Trial (A) By Refusing To Permit Defense Counsel To Explore Why A Key Witness Failed To Appear At Trial, (B) By Refusing To Permit Defense Counsel To Argue That An Adverse Inference Could Be Drawn From The Failure Of That Witness To Appear, And (C) By Refusing To Instruct The Jury That They Could Draw An Adverse Inference From The Absence Of The Witness
Once it became clear that there was a second person in the alleged victim's vehicle during the incident-Yalenezian's friend Shayne DeRochea-both the defendant and the Commonwealth attempted to secure his presence at trial. However, the Commonwealth's efforts were rather half-hearted, and Yalenezian was less than cooperative, failing to give either side information that would have helped them locate DeRochea. Further, although Yalenezian saw DeRochea the night before the plea hearing and again the night before trial, he apparently made no effort to bring him into court, notwithstanding his promise to do so. Based on these circumstances, the defendant sought to cross-examine Yalenezian on his efforts to secure DeRochea's presence as a witness. He also sought to argue an adverse inference from the absence of the witness, and he requested a missing witness instruction. The judge refused to permit inquiry or argument on the subject. He also declined the requested missing witness instruction, and in fact, he instructed the jury that they could not draw an adverse inference from DeRochea's absence. The judge's handling of the issue deprived the defendant of a fair trial and entitles him to a new trial.
A. Facts Relevant To The Issue
On September 15, 2000, the day of the aborted plea, the defendant's counsel asked for additional time to prepare for trial based on the absence of DeRochea. Counsel explained that since the victim had apparently changed his story and was now claiming that the defendant had aimed the gun at him (which he had not stated in his earlier account to the police), DeRochea's testimony was likely to be particularly important. Counsel described the efforts of his investigator to locate him, as well as Yalenezian's promise to bring him into court. He characterized the situation as a “missing witness issue”. [Tr. 11-12]. The prosecutor then indicated that she had been unable to serve DeRochea, but that Yalenezian “told [her] that he knew that he was going to see him either last night or the night before and had seen him.” [Tr. 12-13]. Yalenezian promised that he would secure a new address and phone number and would pick him up and bring him to court. [Tr. 13]. A month later, the defendant moved to dismiss the case based on the failure of the Commonwealth to provide information on DeRochea and moved for additional discovery, requesting, in part, information on DeRochea. [R. App. 5-27]. The Commonwealth responded that it was unable to locate such information “[d]espite prodigious efforts.” [R. App. 28]. The Commonwealth further indicated in an affidavit that DeRochea had told Yalenezian that he had not seen the gun. [R. App. 29].
At trial, the defendant's counsel attempted to refer to DeRochea's absence in his opening statement, but the judge sustained the Commonwealth's objection. The judge ruled that in the absence of some foundation that DeRochea was available to the Commonwealth, he would not give a missing witness instruction, nor could the defendant cross-examine Yalenezian on the subject. The judge credited the prosecutor's assertion that she had made diligent efforts to locate the witness, although he did allow counsel a voir dire at the appropriate time to attempt to make the required showing. [Tr. 47-50].
The judge later sustained the Commonwealth's objection when counsel attempted to cross-examine Yalenezian as to whether he had spoken to DeRochea. [Tr. 103]. At the voir dire that followed the exchange, Yalenezian testified that he and DeRochea were friends, that they continued working together until September of 1999, that they did not see each other as much thereafter, that he last saw him the night before trial, and that DeRochea was living with his grandmother. [Tr. 104-107]. He further testified that he told DeRochea to call the Sharon Police Department. He also gave the Sharon officers an address and telephone number, although this information was for his mother's house. He believed that she could have reached DeRochea had someone called her. At one point, DeRochea told him he did not see a gun. Yalenezian did not return the defense investigator's phone calls. The District Attorney's office asked him about DeRochea's whereabouts on several occasions, indicating that they were unable to locate him. [Tr. 107-110].
The judge ultimately concluded that the witness was not available to either party and ruled that he would not give a missing witness instruction. He further indicated that he intended to instruct the jurors that they could not draw an adverse inference from the Commonwealth's failure to produce DeRochea as a witness. [Tr. 110-111]. He also refused to permit counsel to cross-examine Yalenezian on what if any effort he made to assist the police in locating the witness. [Tr. 111-112].
In his jury charge, the judge instructed the jurors that they were not to draw an adverse inference from the absence of DeRochea. [Tr. 200-201].
B. By Refusing To Permit The Defendant To Explore This Subject Or Argue An Adverse Inference, And By Refusing To Instruct The Jurors That They Could Draw An Adverse Inference From The Absence Of The Witness, The Court Effectively Prevented The Defendant From Fully Presenting His Theory Of Defense
“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). See Commonwealth v. Pina, 430 Mass. 266, 273-274 (1999); Commonwealth v. Smith, 49 Mass. App. Ct. 827, 829-830 (2000). “The propriety of such comment or instruction is well-established.” Commonwealth v. Smith, 49 Mass. App. Ct. at 830. See Commonwealth v. Zagranski, 408 Mass. 278, 286-287 (1990); Commonwealth v. Sena, 29 Mass. App. Ct. 463, 467 (1990).
In this case, DeRochea was certainly available to the Commonwealth through reasonable effort. See Commonwealth v. Thomas, 429 Mass. 146, 152 (1999); Commonwealth v. Franklin, 366 Mass. 284, 292 (1974); Commonwealth v. Smith, 49 Mass. App. Ct. at 830 (“there is a basis in the evidence to conclude that most of the witnesses in question were available to the Commonwealth”); Commonwealth v. Graves, 35 Mass. App. Ct. 76, 84 (1993). Contrast Commonwealth v. Matthews, 45 Mass. App. Ct. 444, 448 (1998) (adverse inference not warranted where it is highly questionable that claimed missing witness could have been produced at trial). Although the Commonwealth claims to have made “prodigious” efforts to locate the witness, the Commonwealth offered no affidavit or other evidence describing such efforts, and it is not clear that the Commonwealth made more than a half-hearted attempt to locate him. For example, the Commonwealth does not appear to have contacted DeRochea's mother even though Yalenezian provided the police with her address and phone number.
DeRochea could also have been produced as a witness through reasonable efforts by Yalenezian. Although Yalenezian claimed not to know exactly where he was living, he saw him both the night before the plea hearing and the night before trial. He could certainly have brought him to court or at least obtained a current address and phone number. The fact that Yalenezian was a witness and not technically a party does not help the Commonwealth. The Commonwealth counted on Yalenezian to secure DeRochea's presence as a witness at trial, and to the extent that the Commonwealth relied on him to do so, his lack of effort should be attributed to the prosecution.
“[T]here is no indication [the witness was] 'hostilely disposed' to the prosecution.” Id. Compare Commonwealth v. Thomas, 429 Mass. at 151. Contrast Commonwealth v. Alves, 50 Mass. App. Ct. 796, 804 (2001). Indeed, he was friendly toward Yalenezian. There was also no reason given for his failure to appear, which is particularly significant in view of Yalenezian's promise to produce him as a witness at trial. Compare Commonwealth v. Smith, 49 Mass. App. Ct. at 830-831 (“no explanation was advanced, nor was one apparent, reasonably supporting the nonproduction of any witness”). Contrast Commonwealth v. Alves, 50 Mass. App. Ct. at 804-805 (evidence of witness's fragile emotional state and heart condition offered to explain her failure to resume the witness stand).
Moreover, DeRochea would “be expected to give testimony of distinct importance to the case.” Commonwealth v. Schatvet, 23 Mass. App. Ct. at 134. Compare Commonwealth v. Smith, 49 Mass. App. Ct. at 830-831. Contrast Commonwealth v. Spencer, 49 Mass. App. Ct. 383, 387-388 (2000) (negative inference from failure to call witness not warranted where his testimony would have been merely cumulative of that of two other witnesses and was not of distinct importance to the case); Commonwealth v. Schatvet, 23 Mass. App. Ct. at 135-136 (testimony from absent witnesses would have been nugatory or cumulative). He was the only known eyewitness to the confrontation other than the defendant and Yalenezian. Contrast Commonwealth v. Vasquez, 27 Mass. App. Ct. 655, 659 (1989) (claimed missing witness was not an eyewitness and would not be expected to offer evidence crucial to the Commonwealth's case).
The judge doubted that DeRochea could provide relevant information since, according to Yalenezian, DeRochea claimed not to have seen the gun. However, the fact that DeRochea did not see a gun would support the defendant's contention that he merely placed his hand on the holstered weapon as it sat on his lap and did not point it at Yalenezian. DeRochea's testimony would also establish which of the participants was the aggressor and whether the alleged victim had attempted to get out of the car, as the defendant claimed in his statement to the police.
As trial counsel argued, Yalenezian's failure to assist the parties or to produce DeRochea as a witness strongly suggests that he did not want him to appear at trial. If true, it would indeed support an inference that DeRochea's testimony would have contradicted Yalenezian's version of the events. At the very least, the defendant should have been permitted to cross-examine Yalenezian on this subject. See Commonwealth v. Graves, 35 Mass. App. Ct. at 84 (Commonwealth cross-examined defendant as to his failure to take steps to locate and summons witnesses into court). Ultimately, the judge should have ruled, as matter of law, that there was a sufficient foundation for the inference in the record and should have so instructed the jurors. Commonwealth v. Smith, 49 Mass. App. Ct. at 830; Commonwealth v. Matthews, 45 Mass. App. Ct. at 448.
Although an adverse inference based on the failure to produce a witness may seriously undermine a party's case, “the cases supporting the need for judicial caution in permitting an adverse inference are inapposite when the inference is to run against the Commonwealth.” Commonwealth v. Smith, 49 Mass. App. Ct. at 831. Exclusion of such evidence and inferences impinge on the defendant's constitutional rights. Specifically, the right of an accused to present his version of the facts “is guaranteed not only by the Sixth and Fourteenth Amendments to the Federal Constitution, but also by art. 12 of the Massachusetts Declaration of Rights.” Commonwealth v. Louraine, 390 Mass. 28, 33-34 (1983). See Crane v. Kentucky, 476 U.S. 683, 690-691 (1986); Washington v. Texas, 388 U.S. 14, 19 (1967); Chambers v. Mississippi, 410 U.S. 284, 302-303 (1973).
In the instant case, by excluding this line of inquiry and the reasonable inferences drawn therefrom, the judge inhibited the jury's search for truth and violated his constitutional right to present his theory of defense. Commonwealth v. Matthews, 49 Mass. App. Ct. 365, 367 (2000). The defendant is entitled to a new trial. Commonwealth v. Smith, 49 Mass. App. Ct. at 830-831.
II. The Prosecutor Created A Substantial Risk Of A Miscarriage Of Justice By Vouching For The Truthfulness Of Its Key Witness And By Implicitly Commenting On The Defendant's Failure To Testify At Trial
During her closing statement, the prosecutor made the following comments regarding the credibility of Yalenezian:
There was reference that Mr. Yalenezian lied about key points. He never lied. He never came up here and lied to you. He was very open, he was direct.
[Tr. 195]. She went on to argue:
There's no evidence whatsoever to contradict what Mr. Yalenezian said to you today. There's no reason whatsoever not to believe him.
[Tr. 196]. On the same page, she repeated the point:
I'd suggest if you look at all the credible evidence, and there's no evidence to, no evidence whatsoever contradicting what Mr. Yalenezian said, you'll find the defendant guilty.
[Tr. 196]. In the first of the above passages, the prosecutor effectively vouched for the credibility of its key witness. The latter two passages implicitly comment on the failure of the defendant to testify in his defense. Where the credibility of the victim versus the defendant were key issues at trial, the prosecutor's improper remarks may very well have made a difference in the outcome of the case. The errors deprived the defendant of a fair trial and created a substantial risk of a miscarriage of justice.
A. Improper Vouching
A prosecutor may properly argue that the facts and circumstances before the jurors establish that a witness is credible. See Commonwealth v. Rivera, 52 Mass. App. Ct. 321, 325 (2001). However, “a prosecutor is not permitted to comment on his or her personal belief in the credibility of a witness.” Commonwealth v. Mayne, 38 Mass. App. Ct. 282, 286 (1995). See Commonwealth v. Allison, 434 Mass. 670, 685 (2001); Commonwealth v. Stone, 366 Mass. 506, 516 (1974).
In this case, the prosecutor effectively expressed her opinion that the witness had told the truth. [Tr. 195]. It was not simply an argument that the witness should be believed. Contrast Commonwealth v. Raymond, 424 Mass. 382, 391-392 (1997). Her comments also suggested to the jury that she had special knowledge by which she could verify the that the witness was telling the truth. See Commonwealth v. Hardy, 431 Mass. 387, 397 (2000). The prosecutor's error went to the heart of the case. The witness was the Commonwealth's key witness, and he had been severely impeached.
While the judge instructed the jurors that arguments of counsel are not evidence [Tr. 35-36, 182], he did not give a specific curative instruction, nor did he instruct the jurors generally “that lawyers are not allowed to express their opinions and beliefs on any issue in the case and they were to disregard any such references.” Commonwealth v. Mayne, 38 Mass. App. Ct. at 286. In view of the closeness of the case against the defendant, and where the judge failed to give the “carefully focused instructions” which the situation required, the improper remarks may have tipped the balance in favor of the Commonwealth. Commonwealth v. Loguidice, 420 Mass. at 456; Commonwealth v. Olszewski, 416 Mass. 707, 727 (1993). They created a substantial risk of a miscarriage of justice, and the defendant is entitled to a new trial. Compare Commonwealth v. Lamrini, 392 Mass. 427, 434-435 (1984).
B. Failure To Testify
Compounding the error noted above, the comments on the absence of any evidence contradicting Yalenezian's testimony clearly suggested to the jury that they could draw an adverse inference from the failure of the defendant to testify on his own behalf.
References to facts or testimony as uncontradicted are improper where as here the defendant himself is the only one who can contradict the evidence. Commonwealth v. Silanskas, 433 Mass. 678, 700 (2001). In this case, the prosecutor was not simply referring to undisputed facts. Contrast Id.; Commonwealth v. Rosado, 408 Mass. 561, 571 (1990). Rather, he was specifically commenting on the failure of the defendant to produce evidence contradicting the testimony of its key witness. In effect, the prosecutor shifted the burden of proof to the defendant. See Id.
Although the judge subsequently instructed the jurors not to draw an adverse inference from the defendant's failure to testify [Tr. 208], the prosecutor's message was unmistakable and difficult to ignore. The error created a substantial risk of a miscarriage of justice and entitles the defendant to a new trial.
III. Conclusion
Based on the authorities cited and the reasons aforesaid, the defendant requests that the judgment be reversed and that he be granted a new trial.
Respectfully submitted,
Peter Natale
By his attorneys,
Dana Alan Curhan
B.B.O. # 544250
101 Arch Street
Suite 305
Boston, Massachusetts 02110
(617) 261-3800
Martin K. Leppo, Esq.
B.B.O. # 294480
Leppo and Leppo
Fifteen South Main Street
Randolph, MA 02368
(781) 961-3344
Assisting on the brief:
Sarah Smegal, Legal Intern