Commonwealth v. Adrian Thomas.

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

23-P-674

COMMONWEALTH

vs.

ADRIAN THOMAS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Superior Court, a jury found the

defendant, Adrian Thomas, guilty of willful interference with a

criminal investigation, in violation of G. L. c. 268, § 13B, and

perjury alleging motor vehicle theft, in violation of G. L.

c. 268, § 39. On appeal, he argues that his convictions should

be reversed because the prosecutor made improper statements in

his opening statement and closing argument, and because the

judge erred in allowing certain testimony from law enforcement

officials, refusing to give an absent witness instruction, and

denying his motions for required findings of not guilty. We

affirm.
Background. The jury could have found the following facts.

At approximately 5:55 P.M. on April 9, 2021, a crime occurred

involving a white Lexus sedan without license plates. By 6:20

P.M. Springfield police officers stopped the vehicle and

arrested its driver, Jose Estrada. After Estrada was taken to

the booking desk at the police station, he called the defendant

around 8:15 P.M. and told him that he had just "got bagged."

At 6:54 P.M. that same day, the defendant called the police

to report that his Lexus had been stolen. During that call, he

stated that he had parked the car on the street. Two officers,

Adam Madera and Dwayne Lewis, went to the defendant's home, and

the defendant completed a stolen vehicle report. He signed the

report, under the penalty of perjury, at 7:54 P.M. The

defendant also told the officers that he had left the Lexus

running in his driveway, with the keys in the car, while he went

inside his house to use the bathroom, take a shower, eat, and

smoke. The police subsequently confirmed through registry of

motor vehicle records that the Lexus driven by Estrada was

registered to the defendant.

Assigned to investigate both the crime involving the Lexus

and the defendant's stolen vehicle report, Detective Jose Canini

listened to five recorded telephone conversations between

Estrada and the defendant while Estrada was in jail. Estrada

and the defendant maintained a friendly tone throughout all the

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calls, and at one point they each told the other, "I love your

ass, bro." During the calls, the defendant never asked Estrada

why he had taken his car.

On April 19, 2021, Detective Daniel Leon-Resto interviewed

the defendant about the reported theft of his Lexus. The

defendant told Leon-Resto that Estrada took the car without his

permission.

Discussion. 1. The prosecutor's opening statement. The

defendant challenges the prosecutor's opening statement on a

variety of grounds, arguing that it was argumentative,

improperly appealed to the jury's emotions, expressed the

prosecutor's personal views regarding the defendant's guilt and

state of mind, addressed "facts not in evidence," improperly

vouched for police witnesses, and misstated the law. Because

the defendant did not object to the opening statement on those

grounds,1 our review is limited to whether there was any error

and, if so, whether it caused a substantial risk of a

miscarriage of justice. See Commonwealth v. Randolph, 438 Mass.

290, 294-295 (2002).

1 After the opening statement, the defendant moved for a
required finding of not guilty based on the prosecutor's failure
to discuss the elements of each charged offense, and for a
mistrial based on the prosecutor's reference to certain recorded
phone calls. The judge denied both motions.

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We discern no such error. "The proper function of an

opening is to outline in a general way the nature of the case

which the counsel expects to be able to prove or support by

evidence." Commonwealth v. Sylvia, 456 Mass. 182, 188 (2010),

quoting Commonwealth v. Croken, 432 Mass. 266, 268 (2000). The

prosecutor's opening statement did that appropriately here.

After identifying the charges against the defendant, the

prosecutor described how the defendant reported his car being

stolen, how his story changed over time, and how he failed to

ask Estrada why he took the car.

Nor did the prosecutor err by stating that the defendant

and Estrada were "best friends." "A prosecutor's opening

statement may reference anything that he or she reasonably

believes in good faith will be proved by evidence introduced

during the course of the trial." Commonwealth v. Kapaia, 490

Mass. 787, 800 (2022), quoting Commonwealth v. Copeland, 481

Mass. 255, 261 n.5 (2019). "Absent a showing of bad faith or

prejudice . . . the fact that certain evidence fails to

materialize is not a ground for reversal" (citation omitted).

Kapaia, supra, quoting Sylvia, 456 Mass. at 188. Here, the

prosecutor had a good-faith belief that the recorded

conversations would show that the defendant and Estrada had a

close friendship, and saying so was not argumentative or an

appeal to emotion or sympathy.

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2. The prosecutor's closing argument. The defendant also

challenges the prosecutor's closing argument, arguing that he

improperly appealed to the jury's sympathy and emotions, cited

facts not in evidence, vouched for police witnesses, improperly

opined on the defendant's guilt and state of mind, and misstated

the law.2 Again, we are not persuaded. "We consider remarks

made during closing 'in the context of the whole argument, the

evidence admitted at trial, and the judge's instructions to the

jury.'" Commonwealth v. Andre, 484 Mass. 403, 417-418 (2020),

quoting Commonwealth v. Felder, 455 Mass. 359, 368 (2009).

While the Commonwealth is allowed "to argue 'forcefully for the

defendant's conviction,' closing arguments must be limited to

facts in evidence and the fair inferences that may be drawn from

those facts." Commonwealth v. Rutherford, 476 Mass. 639, 643

(2017), quoting Commonwealth v. Wilson, 427 Mass. 336, 350

(1998). The prosecutor's argument here "did not cross the line

2 At trial, the defendant objected to the prosecutor's
closing argument only on the grounds that it exceeded the time
limit set by the judge, confused the jury, called for
speculation, shifted the burden to the defendant, and stated
facts not in evidence. He did not propose a curative
instruction. The Commonwealth argues that because the defendant
did not object to the closing argument on certain grounds raised
in his appeal, our review on those issues is limited to
determining whether any error created a substantial risk of a
miscarriage of justice. See Commonwealth v. Sanders, 101 Mass.
App. Ct. 503, 511 (2022). Because we conclude there was no
error, we need not decide which standard of review applies to
each claim raised by the defendant.

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between fair and improper argument." Commonwealth v. Lyons, 426

Mass. 466, 472 (1998). In particular, his remarks regarding the

defendant's friendship with Estrada, the defendant's

inconsistent and implausible statements to the police, and his

motivation for reporting misleading information were all based

on facts in evidence or reasonable inferences drawn therefrom.

Rather than appeal to emotion, the prosecutor encouraged the

jury to use their common sense and life experience in assessing

the evidence.

3. Admission of witness testimony. The defendant argues

that the judge erred in allowing certain testimony from law

enforcement officials Madera, Detective Joseph Levesque, Leon-

Resto, Canini, and Sergeant William Kennedy. On appeal, "[w]e

review a judge's evidentiary rulings for an abuse of

discretion." Andre, 484 Mass. at 414. "We will conclude that

there has been an abuse of discretion only if the judge has

'made "a clear error of judgment in weighing" the factors

relevant to the decision, . . . such that the decision falls

outside the range of reasonable alternatives.'" Commonwealth v.

Hammond, 477 Mass. 499, 505 (2017), quoting L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

There was no abuse of discretion here. The defendant

claims that Madera and Canini gave improper expert testimony by

stating that the defendant did not ask Estrada where his car was

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in their recorded phone conversations. Contrary to the

defendant's argument, Madera and Canini did not have to be

"voice experts" to testify that they recognized the defendant's

voice on the recordings. See Commonwealth v. Mezzanotti, 26

Mass. App. Ct. 522, 527 (1988). Further, although the defendant

argues that Madera "could not testify to all the calls" that

were recorded, the judge expressly limited the prosecutor's

question to "as far as what" Madera "was able to hear" from the

recorded calls. Canini, by contrast, testified that he listened

to all of the recorded conversations, and even though not all of

those conversations were played to the jury, the defendant does

not cite any authority that prohibits a witness with firsthand

knowledge from testifying that the participants to a series of

conversations did not discuss a particular issue.

There is no support in the record for the defendant's

contention that Levesque "offered extensive testimony about

Estrada's crimes" which "linked the criminality of Estrada to

[the] defendant." At a pretrial conference, the prosecutor

stated that Estrada had pleaded guilty to driving the Lexus

while unknown individuals committed a drive-by shooting. The

judge ruled that although this crime could be "referenced in

general" at the defendant's trial, "no references to the

shooting" would be allowed. The parties complied with the

judge's ruling. Furthermore, during Levesque's testimony the

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judge instructed the jury that even though there would be "some

discussion about a crime that might have involved" the

defendant's car, he was "not charged with that crime" and the

jury could not "consider that crime in any way against" him.

The judge repeated this admonition in her final jury charge.

We also reject the defendant's argument that the testimony

of Leon-Resto amounted to "a generalization of [the] defendant's

guilt," where the judge sustained objections to certain of the

prosecutor's questions regarding how the defendant knew Estrada.

The objected-to questions were open-ended, and after the judge

sustained the objections, Leon-Resto acknowledged his limited

knowledge on this issue. Finally, where the defendant does not

identify any error that occurred during Kennedy's testimony

regarding the jail's system for recording inmate telephone

calls, any challenge to his testimony is unavailing. See Mass.

R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).

4. Failure to give a missing witness instruction. The

defendant contends that the judge erred in refusing to give an

absent witness instruction regarding Estrada. We review a

judge's decision not to give a missing witness instruction under

the abuse of discretion standard. See Commonwealth v. Williams,

450 Mass. 894, 901 (2008).

"The decision whether to provide a missing witness

instruction to the jury is within the discretion of the trial

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judge, and will not be reversed unless the decision was

manifestly unreasonable." Commonwealth v. Saletino, 449 Mass.

657, 667 (2007). 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. Anderson, 411 Mass. 279, 280 n.1 (1991), quoting

Commonwealth v. Schatvet, 23 Mass. App. Ct. 130, 134 (1986).

The proponent of a missing witness instruction bears the burden

of establishing, on the record, a sufficient foundation for the

instruction. See Commonwealth v. Barrett, 97 Mass. App. Ct.

437, 445 (2020).

The judge did not abuse her discretion in denying the

defendant's request for an instruction here. See Saletino, 449

Mass. at 667-668. The prosecutor gave plausible reasons for not

calling Estrada as a witness, explaining that Estrada and the

defendant were "very, very good friends"; it would have been

difficult for Estrada to testify without mentioning his

involvement in the shooting (which the judge had excluded from

evidence); and the prosecutor did not expect "somebody who [he]

had prosecuted to come in here and testify favorably for the

Commonwealth." We agree that, under the circumstances, it is

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unlikely that Estrada would have been "friendly to, or at least

not hostilely disposed toward," the Commonwealth. Anderson, 411

Mass. at 280 n.1. See id. at 283 (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").

Furthermore, as the prosecutor pointed out, the defendant had

the same power to subpoena Estrada as a witness, but declined to

do so. See Williams, 450 Mass. at 900. "[W]here a witness is

equally available to both sides of a dispute, no inference

should be drawn against either side for failing to call the

witness." Commonwealth v. Figueroa, 413 Mass. 193, 199 (1992),

quoting Commonwealth v. Cobb, 397 Mass. 105, 108 (1986).

5. Motion for a required finding of not guilty. The

defendant also appears to challenge the judge's denial of his

motions for a required finding of not guilty.3 "When reviewing

the denial of a motion for a required finding of not guilty, 'we

consider the evidence introduced at trial in the light most

favorable to the Commonwealth, and determine whether a rational

3 To the extent that the defendant instead challenges the
nature of the prosecutor's argument in opposition to his motion,
that is not a cognizable claim for relief on appeal.

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trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.'" Commonwealth v. Ross, 92

Mass. App. Ct. 377, 378 (2017), quoting Commonwealth v. Oberle,

476 Mass. 539, 547 (2017). The relevant question is whether the

evidence would permit the trier of fact to find guilt, "not

whether the evidence requires such a finding." Commonwealth v.

Brown, 401 Mass. 745, 747 (1988).

There was sufficient evidence to allow the jury to find the

defendant guilty of perjury alleging motor vehicle theft.

General Laws c. 268, § 39, makes it unlawful to knowingly make

"a false written statement on a form bearing notice that false

statements made therein are punishable under the penalty of

perjury, to a police officer, police department or the registry

of motor vehicles alleging the theft or conversion of a motor

vehicle." Here, the defendant signed the stolen vehicle report

under oath on April 9, 2021. The report stated that "the

following described Motor Vehicle was stolen in the City/Town of

Springfield," and that "[f]alse statements made on this form are

punishable under the penalty of perjury." See Commonwealth v.

Kelly, 69 Mass. App. Ct. 751, 753-754 (2007) (defendant's

"signature on the stolen motor vehicle report constitutes the

'written statement' element of the statute"). The jury could

have also found that the defendant knew that the report was

false when he signed it. His accounts of where and how he left

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his Lexus were "equivocal and conflicting." See Commonwealth v.

Platt, 440 Mass. 396, 402-403 (2003). While he did not mention

Estrada at the time he signed the report, he claimed to Leon-

Resto ten days later that Estrada took the Lexus without his

permission. After Estrada was arrested for the crime involving

the Lexus, the defendant had several recorded conversations with

Estrada but never asked why Estrada took his car. These facts

support the inference that the defendant knew his car had not

been stolen and made a false stolen vehicle report in order to

distance himself from the crime Estrada committed.

There was also sufficient evidence to allow the jury to

find the defendant guilty of willful interference with a

criminal investigation. As relevant here, G. L. c. 268, § 13B,

makes it criminal to willfully mislead an investigator or an

attorney directly or indirectly with the intent to interfere,

impede, or obstruct a criminal investigation or criminal

proceeding of any type. See Commonwealth v. Mendez, 104 Mass.

App. Ct. 341, 346-347 (2024); Commonwealth v. Fortuna, 80 Mass.

App. Ct. 45, 51 (2011). Viewing the evidence in the light most

favorable to the Commonwealth, the jury could have reasonably

found that the defendant misled the police when he falsely

reported that his Lexus had been stolen, and that his lie

impeded or interfered with one or more criminal investigations.

See Mendez, supra at 347, quoting Commonwealth v. Occhiuto, 88

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Mass. App. Ct. 489, 503 (2015) (G. L. c. 268, § 13B, prohibits

conduct that impedes or interferes with "any investigation or

proceeding that may result in criminal-type sanctions," and "the

investigation need not have been commenced at the time of the

defendant's statements, nor need it be pending"). Although the

police had stopped Estrada by the time the defendant signed his

report, they had not yet confirmed that the Lexus Estrada drove

was registered to the defendant. The defendant's false report

could have reasonably impeded the police's investigation into

the shooting by providing inconsistent information in how the

Lexus came to be used in the crime, or by misleading

investigators into the defendant's own role, if any, in that

crime.4

Judgments affirmed.

By the Court (Neyman, Singh &
Toone, JJ.5),

Clerk

Entered: November 6, 2024.

4 The defendant also argues that even if no one error,
standing alone, is sufficient to warrant the reversal of his
convictions, reversal is nonetheless warranted due to cumulative
error and a pattern of prosecutorial misconduct. Given our
conclusions on the underlying alleged errors, there was no
cumulative error.

5 The panelists are listed in order of seniority.

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