Commonwealth v. Dana R. Santos.

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

25-P-812

COMMONWEALTH

vs.

DANA R. SANTOS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant

was convicted of assault and battery, G. L. c. 265, § 13A (a),

and malicious destruction of property, G. L. c. 266, § 127.1 On

appeal, the defendant argues that the trial judge erred by not

giving a missing witness instruction to the jury after allowing,

over the Commonwealth's objection, the defendant to make a

missing witness argument in closing. We affirm.

1The defendant was found not guilty of threatening to
commit a crime, G. L. c. 275, § 2, and assault and battery by
means of a dangerous weapon, G. L. c. 265, § 15A (b). At the
Commonwealth's request, the trial judge dismissed a charge of
assault and battery on a family or household member subsequent,
G. L. c. 265, § 13M (b).
Background. Based on the evidence at trial, the jury could

have found that in June 2024, the defendant was drinking at a

bar with his girlfriend, the victim; his friend; and a woman who

was not identified at trial. After the bartender told the

defendant that he would not be served any more alcoholic

beverages, the defendant became visibly upset, "disrupt[ed]" the

barstools, and threatened to "shoot people" in the bar. The bar

owner and several bar patrons asked the defendant to leave, and

the patrons began to escort him out of the front door of the

bar. The defendant continued yelling and then punched the front

door, shattering the glass. Some of the people the defendant

was with, including the victim, went outside with him.

The owner of the bar testified that while the defendant was

outside, she saw him hit the victim and push her head into the

broken glass door, which lacerated the victim's head, causing it

to bleed. The patrons eventually separated the victim from the

defendant and restrained him until the police arrived.

The Commonwealth did not call the victim as a witness at

trial. However, the victim was present in the courtroom before

trial, when the defendant tendered a guilty plea, which was

later withdrawn, and she told the Commonwealth that she did not

wish to be heard and asked that the case be dismissed. At the

close of the Commonwealth's case, the trial judge denied the

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defendant's request for a missing witness instruction. Despite

this denial, the defendant still made a missing witness argument

in his closing to the jury, stating that the Commonwealth did

not call the victim "[b]ecause she wouldn't help their case."

The trial judge overruled the Commonwealth's objection to the

defendant's closing argument; the judge did not give a missing

witness instruction to the jury.

Discussion. The defendant argues that because the trial

judge allowed the defendant's missing witness argument to stand

over the Commonwealth's objection, it was error for the trial

judge not to give a missing witness instruction. We are not

persuaded.

"We review a judge's determination that a missing witness

instruction is inappropriate for abuse of discretion."

Commonwealth v. Andrade, 98 Mass. App. Ct. 395, 400 (2020).

"A missing witness instruction is appropriate when 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,' and the
party, without explanation, fails to call the person as a
witness."

Commonwealth v. Saletino, 449 Mass. 657, 667 (2007), quoting

Commonwealth v. Anderson, 411 Mass. 279, 280 n.1 (1991). "Such

an instruction should not be given where the Commonwealth has

legitimate tactical reasons for not calling the witness."

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Saletino, supra at 668. "If the judge determines that a missing

witness adverse inference is not appropriate in a given case,

the jury should not, regardless whether by argument or by an

instruction, be given the option of drawing that inference

. . . ." Id. at 671.

Here, the defendant was not entitled to either a missing

witness instruction or argument because the foundational

requirements for the instruction were not met. Given that the

victim told the Commonwealth in the courtroom that she did not

wish to testify and asked that the charges against the defendant

be dismissed, the Commonwealth had "logical tactical reasons"

for deciding not to call her to testify. Saletino, 449 Mass. at

668 (Commonwealth had "logical tactical reasons" for not calling

informant witness where defense counsel indicated his intent to

impeach witness with prior convictions and judge stated

impeachment evidence would be admissible). See Anderson, 411

Mass. at 282-283 ("if the circumstances, considered by ordinary

logic and experience, suggest a plausible reason for

nonproduction of the witness, the jury should not be advised of

the inference"). Thus, the trial judge properly denied the

defendant's request for a missing witness instruction before

closing arguments.

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Because the foundational requirements for a missing witness

instruction were not met, it was error for the trial judge to

allow defense counsel to make the missing witness argument to

the jury.2 See Saletino, 449 Mass. at 670. But such error was

harmless to the defendant. In being allowed to make the missing

witness argument despite the lack of foundation to do so, "the

defendant got more than he was entitled to in the first place."

Id. at 672.

Judgments affirmed.

By the Court (Henry, Hand &
Allen, JJ.3),

Clerk

Entered: February 6, 2026.

2 In fairness to the trial judge, defense counsel did not
request permission to make the missing witness argument after
the judge denied his request to instruct the jury on the issue.

3 The panelists are listed in order of seniority.

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