Criminal – Missing witness instruction

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Where a defendant was convicted by a jury of assault and battery on a family or household member, the conviction must be vacated based on the cumulative prejudicial effect of multiple errors, including the trial judge’s improper missing witness instruction and the prosecutor’s mischaracterization of the medical records.

“Around 7 P.M. on June 28, 2022, police responded to a 911 call for a disturbance. The caller told the 911 operator that his mother’s boyfriend had attacked his mother. The mother was subsequently identified as M.P., the boyfriend as the defendant, and the caller as M.P.’s son. …

“We begin our discussion with the errors that stemmed from (1) the fact that M.P. was unavailable to testify because she asserted her marital privilege and (2) the fact that neither party called the son. The defendant argues that the judge committed two errors in the circumstances presented: (1) she invited the prosecutor to make an improper burden-shifting argument and (2) she then gave a missing witness instruction permitting the jury to draw an adverse inference against the defendant based on his failure to call M.P. and her son. We agree with the defendant that, as the Commonwealth concedes, the judge erred by giving a missing witness instruction and conclude that, despite the strength of the Commonwealth’s evidence, that error created a substantial risk of a miscarriage of justice when considered in combination with other errors, including the unwarranted invitation to the prosecutor to make an improper argument, which the prosecutor did. …

“First, the judge invited the prosecutor ‘to argue that [M.P. and her son] were just as accessible to [the defense] as they were to the Commonwealth.’ The prosecutor accepted the invitation and argued that ‘the defense also could have called [M.P. or her son] and he did not.’ This was an improper burden-shifting argument. ‘A prosecutor cannot … make statements that shift the burden of proof from the Commonwealth to the defendant.’ …

“Second, the judge gave an improper missing witness instruction. Again, assuming, arguendo, that defense counsel made a missing witness argument based on the Commonwealth’s failure to call M.P. and her son, the proper course of action would have been for the judge to instruct the jury to disregard it. …

“As we have noted, the Commonwealth concedes that the judge erred in giving a missing witness instruction based on the defendant’s failure to call M.P. or her son. We agree. M.P. had asserted her marital privilege. Therefore, she was unavailable to both parties. …

“As to M.P.’s son, the defendant had a reasonable basis for not calling him as a witness. The defense could draw a fair, and indeed obvious, inference that the son would be biased in favor of his mother and against the defendant. …

“Although defense counsel objected to the prosecutor’s burden-shifting argument, he did not object to the judge’s missing witness instruction. As explained below, because the prosecutor also misstated the evidence, and the defense lodged a timely objection to that error, we will consider the cumulative prejudicial effect of both of the prosecutor’s errors under the prejudicial error standard. …

“The prosecutor erroneously asserted that M.P.’s medical records, which were admitted in evidence as ‘trial exhibit 1,’ referenced injuries to her ‘back and stomach.’ …

“First, the error ‘went to the heart of the case’ (citation omitted). … The central issue was whether the defendant struck M.P. One of the responding police officers testified he saw the defendant ‘lightly punch’ M.P. in the back. Thus, evidence of a back injury in the medical records would have corroborated the officer’s testimony. …

“Second, even after the defendant objected to the prosecutor’s error, and the judge acknowledged it was error, the judge did not give a specific curative instruction. …

“Considering the two errors collectively, we conclude that it is ‘possibl[e]’ that they ‘made a difference in the jury’s conclusions’ (citation omitted). … The prosecutor’s misstatement of the evidence impeached the defendant’s credibility, and the judge gave only a general instruction that closing arguments are not evidence, despite knowledge of the misstatement. Moreover, the judge erroneously authorized the prosecutor to argue that the defendant could have called M.P. and her son and then erroneously authorized the jury to infer that the defendant did not call M.P. and her son because their testimony would have been unfavorable to the defendant. … In sum, this is one of those rare cases in which the cumulative prejudicial effect of multiple errors creates a possibility of a different outcome, notwithstanding strong evidence of guilt. …

“On the charge of assault and battery on a family or household member, the judgment is vacated. So much of the verdict on that charge as finds the defendant guilty of the lesser included offense of assault and battery is set aside, and the defendant may be retried on that portion of the charge if the Commonwealth so chooses; on the remaining portion of the charge (‘on a family or household member’), a verdict shall enter for the defendant.”

Commonwealth v. Lessage (Lawyers Weekly No. 81-126-25) (19 pages) (Docket No. 24-P-932) (Sept. 5, 2025).

Click here to read the full text of the opinion.