Opinion
13-P-1179
11-26-2014
COMMONWEALTH v. JAROD J. CALIXTO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jarod J. Calixto, appeals from a conviction by a jury of threatening to commit a crime in violation of G. L. c. 275, § 2. He argues essentially that the trial judge erred by allowing the Commonwealth to introduce the defendant's statements made during a telephone call to the victim and overheard by a police officer.
The defendant claims that the Commonwealth did not disclose the details of the threat he purportedly made until the morning of the trial and that he was therefore unable to properly prepare for trial. On this basis the defendant filed a motion in limine on the day of trial requesting exclusion of "any statements allegedly made by the defendant at any time other than those memorialized in the report(s) provided by the Commonwealth." The judge denied the motion. At trial, the defendant did not object to the testimony about the statements; therefore our review is to limited to whether there was error that created a substantial risk of a miscarriage of justice. See Commonwealth v. Pires, 453 Mass. 66, 74 (2009).
The trial judge denied the defendant's request to exclude the statements on the ground that adequate notice of the evidence had been given to the defendant. In discovery, the defendant had received a police report that referred to threatening text messages the defendant had sent to the victim as well as to the threatening telephone call the officer overheard. The defendant also received a supplemental report detailing the contents of the threatening text messages. On the morning of the trial, the prosecutor spoke with the victim and learned the content of the threat made during the telephone call. The prosecutor promptly relayed the details to defense counsel. The judge concluded that the defendant had sufficient notice of the telephone call threat and that exclusion of the victim's testimony concerning the content of the threat was not appropriate. The defendant did not request a continuance or seek another remedy for late disclosure.
The text messages ultimately were not introduced at trial.
There is a broad range of sanctions available under Mass.R.Crim.P. 14(c), as appearing in 442 Mass. 1518 (2004), the trial judge has wide discretion in this area, Commonwealth v. Baldwin, 385 Mass. 165, 177 (1982), and we have generally held that the trial judge is in the best position to consider the issue and fashion an appropriate remedy, Commonwealth v. Giontzis, 47 Mass. App. Ct. 450, 459-460 (1999). We think that the trial judge properly exercised her discretion here.
While the defendant is correct that the challenged evidence was material to the outcome of the trial, this is the only one of the five usual analytical factors that favors him. See id. at 460. First, the Commonwealth only learned of the specific content of the telephone call threat on the morning of trial and promptly informed the defendant. There was no bad faith. See Commonwealth v. Chappee, 397 Mass. 508, 518 (1986). Second, the threat was substantially the same as those that the defendant had sent through text messages and which had already been disclosed. See the arguments and authorities in the Commonwealth's brief at pages 12 through 14. Thus, the defendant was not surprised. See Commonwealth v. Giontzis, supra. Third, defense counsel, upon learning that his motion to exclude the statements had been denied, did not seek a continuance or other relief. See Commonwealth v. Richenburg, 401 Mass. 663, 671 (1988). See also Commonwealth v. Baldwin, supra at 176.
Finally, the defendant has not demonstrated prejudice. Generally, where an undisclosed statement is inculpatory, it is unlikely that the defendant would be able to prepare and present his case in such a manner as to create a reasonable doubt that would not otherwise exist. Commonwealth v. Lapka, 13 Mass. App. Ct. 24, 30 (1982). Here, the defendant has not shown what he would have done differently had he learned of the contents of the telephone call threat earlier. See Commonwealth v. Hardy, 431 Mass. 387, 392 (2000). See also the authorities cited in the Commonwealth's brief at page 19.
The judge did not abuse her discretion by admitting the evidence, and there was no error creating a substantial risk of a miscarriage of justice.
Judgment affirmed.
By the Court (Cypher, Grainger & Maldonado, JJ.),
Clerk Entered: November 26, 2014.