Court of Appeals
To be used in conjunction with the CPS Criminal Procedure Textbook
Commonwealth Police Service, Inc.
and the Law Office
of Patrick Michael Rogers
v. Zagranski, 408
Supreme Judicial Court of Massachusetts, Hampshire.
James M. Smith,
Judd J. Carhart, Dist. Atty. (Ariane D. Vuono, Asst. Dist. Atty., with him) for Com.
Before LIACOS, C.J., and WILKINS, LYNCH, O'CONNOR and GREANEY, JJ.
The defendant, appealing from his conviction of the murder in the first degree of Michael Molin, challenges several of the trial judge's rulings on the admission of evidence, and further challenges the judge's jury instruction concerning the absence of certain witnesses. There was no reversible error. The defendant refers to G.L. c. 278, § 33E (1988 ed.), but makes no separate argument under it. We have performed our duty under that statute and have determined that there is no reason to disturb the verdict.
The body of the victim, who died of multiple gunshot
wounds, was found in a storage space that the defendant had rented. Personal items of the defendant, including
his shotgun, were also found there. The
defendant and the victim had had dealings concerning the sale to the defendant
of land in
 1. The defendant argues that there was no probable cause to support the issuance of a warrant to search the rented motor vehicle. After the search, a chemist found human blood on the floor and sides of the vehicle's trunk.
The defendant also challenges a subsequent search warrant
that authorized the search of the rented storage space. [408
Affidavits before the magistrate who authorized the
warrant to search the rented motor vehicle stated that a teen-age boy operating
an all-terrain vehicle in the woods in
There was probable cause to believe that the rented
vehicle contained evidence that would bear on the victim's death and the
defendant's involvement. The probability
that blood stains and other physical evidence would be found in the vehicle
supported the issuance of the warrant.
Commonwealth v. Upton,
 2. The judge acted within his discretion in
admitting, for limited purposes, evidence tending to show that, approximately
six weeks before the shooting of the victim, the defendant had told his friend
Neal Dodd that he intended to entice an owner of a hotel in Jamaica to come to
this country and sell his hotel to the defendant, after which the defendant
would kill him. The defendant rightly
concedes that the circumstances[408
The evidence of a common scheme or pattern of conduct was
sufficiently related to the circumstances of the victim's death, in time and
otherwise, to be admissible, in the judge's discretion, not to prove that the
defendant was a bad person, but to prove that the defendant acted pursuant to a
scheme or pattern of conduct he had recently proposed and had pursued in
 3. Over objection, the judge permitted certain
witnesses to testify concerning statements the victim had made to them. On
The attorney who acted for the victim in connection with the proposed sale of the victim's land to the defendant testified concerning conversations he had had with the victim not in the presence of the defendant. The victim told his attorney that the defendant wanted to pay him in cash and that one of the backers of the project did not want the attorney involved in the transaction. Two days later, and four days before his death, the victim told the attorney that he had learned that one of the investors was a prominent local businessman, and that the victim was probably going to make the sale. He asked his attorney to prepare a deed, leaving blank the grantees' names and the amount of the consideration. The attorney also testified that the victim told him two days before his death that the defendant had requested that the mortgage be paid off before the sale of the land. On February 19, the victim told the attorney that there were no problems and agreed that he would only close the transaction at a bank.
All this testimony concerning what the victim had said to
various witnesses, not in the defendant's presence, was hearsay. The Commonwealth seeks to justify its
admission under the state-of-mind exception to the hearsay rule. This exception admits relevant evidence of
the victim's state of mind of [408
None of the victim's statements was admissible under the
state-of-mind exception. Only a few of
the victim's statements concerned his state of mind, such as his intentions as
to future conduct. All the remaining
statements, which concerned past events, were, therefore, inadmissible under
the state-of-mind exception.
 The question thus becomes whether there must be a
retrial because, in a case having overwhelming evidence of the defendant's
guilt, the prosecution unnecessarily overreached and the judge did not prevent
the error. The defendant does not argue
to us that he was prejudiced by the admission of this evidence. (FN3)
An argument that the defendant was [408
In certain circumstances, the erroneous admission of such
evidence might well require a retrial.
Here, however, there was sufficient other evidence of the defendant's
fraudulent and unusual behavior in dealing with the victim that the erroneously
admitted evidence was only cumulative of that other evidence.
4. The judge acted within his discretion in admitting
statements that the defendant's wife made just after State police officers
arrested the defendant in their home on the morning of
Immediately after the defendant admitted the officers to
the kitchen through the back door, they handcuffed him and advised him of his
rights. His wife then entered the
kitchen and, very excitedly, asked what was going on. A State police sergeant answered that her
husband was under arrest for murder. She
then yelled, "Murder? Where is the
 For the purpose of the spontaneous utterance
exception to the hearsay rule, an utterance is spontaneous if it is made under
the influence of an exciting event and before the declarant
has had time to contrive or fabricate the remark, and thus it has sufficient
indicia of reliability.
 The judge was more than warranted in deciding that the utterance was spontaneous. The declarant had just been told in the kitchen of her home that her husband was under arrest for murder. There is a strong basis for concluding that her sudden reaction was reliable and not contrived. At this time, the police had not discovered the victim's body in the storage area. A reasonable inference from her remarks is that the defendant had admitted to his wife that he had killed the victim and had hidden the body. The evidence was relevant, and the defendant does not argue otherwise.
As we have said, the spontaneous utterance exception to
the hearsay rule has a further component.
Our cases have not discussed this aspect of the rule in detail. The spontaneous utterance must qualify,
characterize, and explain the underlying event that prompted the excited
At trial and before us, the defendant has argued that the murder was the underlying event and that the wife's statements did not qualify, characterize, or explain the murder. We reject the premise of the defendant's argument. The underlying event was not the murder. It was the declarant's discovery of her handcuffed husband under arrest for murder in the kitchen of her home. The excitement of that underlying event produced her spontaneous exclamations. The remarks of the defendant's wife tended to characterize and explain her perception of the arrest. In her view, the arrest was unwarranted because she believed the police had not discovered the victim's body.
 5. The judge instructed the jury, at the Commonwealth's request and over the defendant's objection, concerning the possibility that they might properly draw an inference from the failure of the defendant to call certain persons as witnesses. The judge described the conditions under which a jury properly could infer that, if they had testified, absent persons would have given testimony unfavorable to a party. No such conditions existed in this case, and thus the charge was given in error.
There was evidence that the defendant at various times
had referred to investors from
The general principles governing the propriety of a
comment by counsel, or an instruction by a judge, on the failure of a party to
call a witness are discussed in Commonwealth v. Cobb, 397 Mass. 105,
108-109, 489 N.E.2d 1246 (1986);
Commonwealth v. Franklin, 366 Mass. 284, 292-294, 318 N.E.2d 469
(1974); Grady v. Collins Transp. Co., Inc., 341 Mass. 502, 504-506, 170 N.E.2d
725 (1960); Commonwealth v. Domanski, 332 Mass. 66, 69-71, 123 N.E.2d 368
(1954); and Commonwealth v. Schatvet, 23 Mass.App.Ct. 130, 134, 499 N.E.2d 1208 (1986). [408
This is a delicate area, requiring caution. A jury may unfairly be led to draw improper
conclusions from the failure of a defendant to call a witness. See Commonwealth v. Franklin, supra,
366 Mass. at 294, 318 N.E.2d 469;
Commonwealth v. Domanski, supra, 332 Mass.
at 70-71, 123 N.E.2d 368, citing Commonwealth v. Finnerty,
148 Mass. 162, 167, 19 N.E. 215 (1889);
Commonwealth v. Schatvet, supra, 23 Mass.App.Ct. at 134-135, 499
N.E.2d 1208. The Schatvet
opinion suggests that drawing an inference might come close, in certain
circumstances, to invading a defendant's constitutional rights.
The judge instructed the jury that they could properly draw an inference against the defendant from his failure to call a witness if (1) the Commonwealth's case is strong, (2) the absent witness would be expected to aid the defendant, (3) the absent witness was available to testify for the defendant, and (4) the witness's absence was not explained in the circumstances of the case. The crucial question here, as in many other cases involving this issue, is whether the evidence would have permitted a finding that there was a person that the defendant did not call as a witness as to whom the inference might be appropriate.
The absence from the record of any demonstration that a
potential witness was available to testify has led to reversals of convictions
when an absent witness argument was made to the jury or such a jury instruction
The instruction concerning absent witnesses should not
have been given because the evidence did not provide the necessary foundation
for it. On
By giving the instruction, the judge implicitly suggested
that there was evidence that would warrant a finding that the potential
witnesses were available to the defendant.
He did, however, tell the jury to draw no inference against the
defendant from the failure to call a witness unless they should find that the
witness was available. If the jury followed
the judge's instruction, and disregarded the implication, inherent in the very
giving of that instruction, that there was evidence of availability, the jury
drew no inference against the defendant.
In the absence, however, of evidence supporting the giving of an absent
witness charge, no such charge should be given.
 The giving of the instruction does not require reversal of the conviction. We can confidently say that, in light of the overwhelming evidence against the defendant, he was not prejudiced by this error. The evidence against the defendant was so overwhelming that the error is insignificant. There was evidence that the defendant planned the murder to acquire the victim's land at no cost; there were negotiations concerning the land sale between the defendant and the victim; the defendant obtained from the victim an executed deed to the land conveying the property to him and then the victim disappeared; the defendant was seen in woods in Amherststanding [408 Mass. 289] over the victim's bloody body, holding a shotgun; the body was found in a storage space that the defendant had recently rented, along with the defendant's shotgun (with the defendant's fingerprint on it) and other property of the defendant; the defendant admitted to one friend that he had committed the murder; he sought from another friend assistance in getting rid of the body and the gun, and, finally, following his arrest and after being advised of his rights, he made an admission ("I guess this means Michael showed up dead").
In light of all this evidence, much of it from disinterested citizens or friends of the defendant, the likelihood that the judge's error in giving an absent witness instruction had a prejudicial impact on the jury is less than miniscule.
 6. The judge did not abuse his discretion in
admitting physical evidence, including some of the victim's bloodstained
clothing and three post-mortem photographs of his body. The clothing was only marginally relevant
because it is obvious that a person shot as the victim was would have blood
stains on his clothing. Cf. Commonwealth v. Repoza, 382
The defendant concedes that two of the three photographs
he challenged could have aided the jury's understanding of the pathologist's
"Fairness to a defendant in a criminal case requires
the rule that the commission by him of an independent crime cannot ordinarily
be shown as evidence tending to show the commission of the crime charged. (Citations omitted.) It does not follow that, because the
defendant committed a similar offence on another occasion, he committed the
crime for which he is being tried. And
there is the danger that, because a defendant appears to be a bad man capable
of, and likely to commit, such a crime as that charged, a jury might be led to
dispense with proof beyond a reasonable doubt that he did actually commit the
crime charged. Moreover, it is not fair
that a defendant in the course of a trial should be called upon to defend
himself against accusations not set forth in the indictment." Commonwealth v. Stone, 321
The first exception, in my view, does not apply to this case. There was nothing unique about the method, shooting, by which the victim was killed, nor was there evidence concerning the method by which the defendant may have intended to kill the Jamaican hotel owner. The court, however, also relies on the second, "common scheme," exception to conclude that evidence of the defendant's earlier expressed intention to commit a substantially similar, but nevertheless totally independent, crime against a different victim was properly admitted to show the defendant's malice. The evidence of the defendant's earlier state of mind may have been at least marginally probative of the defendant's later intention, but the two independent events were not segments of a larger [408 Mass. 291] ongoing scheme. Indeed, to the extent that the evidence concerning the defendant's earlier statement that he intended to lure the hotel owner to this country so he could buy his hotel and then kill him said anything about the defendant's intention toward the victim, it did so only by portraying the defendant as the kind of a man who would be apt to possess the mentality required for the homicide with which he was charged. That is precisely what the original other crime evidence rule prevented for the reasons expressed in Commonwealth v. Stone, supra, and set forth at the outset of this opinion.
I recognize that today's decision with respect to the admissibility of other crime evidence is consistent with the court's decisions in Commonwealth v. Helfant, 398 Mass. 214, 224-229, 496 N.E.2d 433 (1986), and Commonwealth v. King, 387 Mass. 464, 469-473, 441 N.E.2d 248 (1982), cases in which I dissented and which I continue to think were wrongly decided. For that reason, and also because the admissible evidence of guilt in this case was overwhelming, I concur in the court's decision. However, I write separately to repeat my opposition to the court's virtual abandonment of a sound rule grounded in fairness. I write with the hope that one day the court will reverse the "sharp retrogression in its sensitivity to the unfairness of admitting in a criminal case evidence of a defendant's prior bad acts," see Commonwealth v. Helfant, supra, 398 Mass. at 238, 496 N.E.2d 433 (O'Connor, J., dissenting), except in the rare circumstances accommodated in our pre-Helfant and King cases.
(FN1.) Dodd testified that in the first week in January, 1988, the defendant told him "he was going to try and get a hotel, and he was going to send a letter to the owner of a hotel in Jamaica, and he was going to invite the man down to talk business and get the hotel, and then, after he had gotten the hotel signed over to him, he was going to shoot the man, then dispose of the body." The defendant had shown Dodd a letter that he had written to a Jamaican hotel owner. A copy of such a letter and several tour brochures, found in the defendant's house, were introduced in evidence.
Dodd also testified that the defendant had called him on February 9 and had told him that he had been introduced to a man who wanted to sell one hundred acres of land and that he planned to kill the man and bury the body after the title passed. The following week the defendant showed Dodd the land and discussed his plan again. Dodd told the defendant he did not want to be involved and advised him to call it off. On the evening of the victim's death, the defendant called Dodd and said, "It's done."
(FN2.) The defendant objected to the admission of the evidence and generally to the judge's instruction concerning that evidence. He did not object to specific portions of this charge.
(FN3.) The judge told the jury that, only if the victim's state of mind was communicated to the defendant could they "consider [state-of-mind] evidence to be probative of the defendant's motive." Because there was no evidence of any such communication, the jury should have disregarded any state-of-mind evidence, and one could conclude consequently that the defendant was not prejudiced by the admission of the victim's statements. We question, however, whether the jury knew what the judge meant by state-of-mind evidence. Furthermore, because the judge gave the instruction as he did, the jury would have been warranted in concluding that the judge thought that there was evidence that, if believed, tended to show that the victim's state of mind had been communicated to the defendant.
(FN4.) We add that, as the defendant was led away, he was told of the charge and said, "I guess this means Michael showed up dead." The police had not mentioned the name Michael Molin to the defendant.