Commonwealth v. Bradley J. Scarbrough.

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

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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

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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.

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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

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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).

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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.

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