Opinion
No. 14–P–803.
09-28-2016
COMMONWEALTH v. Jose Manuel Ortiz LOPEZ (and a companion case).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants, Jose Manuel Ortiz Lopez and Luis Diaz Rivera, appeal from their convictions of assault and battery causing serious bodily injury. On appeal, they raise various evidentiary and proof issues pertaining to their trial by jury. For the reasons that follow, we affirm.
The jury acquitted both defendants of mayhem, and the Commonwealth entered a nolle prosequi as to the charges of assault and battery by means of a dangerous weapon causing serious bodily injury.
1. Motion to suppress. The defendants contend the judge erred in denying defendant Rivera's motions to suppress evidence, including Rivera's statements to Detective Andre Gonzalez at the Lawrence police station and the fruits of the search that flowed therefrom. We discern no error.
Lopez did not challenge the suppression order in his brief but filed a separate “Motion to Join In and Adopt Issues Raised by Codefendant.” We allow the motion.
“The Commonwealth bears the burden of proving beyond a reasonable doubt, in the totality of the circumstances, that a defendant's waiver [of his Miranda rights] was voluntary, knowing, and intelligent, and that his statements were voluntary.” Commonwealth v. Auclair, 444 Mass. 348, 353 (2005). In reviewing a judge's decision on “a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error, but conduct an independent review of the judge's ultimate findings and conclusions of law.” Commonwealth v. Washington, 449 Mass. 476, 480 (2007).
Here, prior to speaking with the police, Rivera was read his Miranda warnings by a native Spanish-speaking detective, who translated them line by line from a Miranda rights card. The detective testified that the defendant had indicated his understanding of those rights, and elected to speak with the police. In addition, evidencing Rivera's comprehension, the detective also attested to Rivera's formulation of appropriate responses. Moreover, the defendant's overall demeanor throughout the interview was “fine.”
The detective's observations were corroborated, in part, by the testimony of Lieutenant Brian Columbus, who, while not Spanish-speaking, was in a position to observe Rivera's demeanor and the tone of the conversation between Rivera and the detective.
Furthermore, while the detective was unable to initially recall whether Rivera had displayed any signs of drug or alcohol consumption, he refreshed his memory with a copy of his incident report and attested to the absence of any signs of intoxication. See Commonwealth v. Rodriguez, 425 Mass. 361, 366–367 (1997). The record, therefore, amply supports the judge's findings and conclusion that Rivera knowingly, intelligently, and voluntarily waived his Miranda rights and, further, that his statements were voluntary. See Commonwealth v. LeBlanc, 433 Mass. 549, 554 (2001).
As to voluntariness, the judge concluded: “[N]either defendant was particularly vulnerable to suggestion. They were both competent adults, who appeared sober and in full control of their faculties. The police did not employ coercive tactics; they simply asked questions about the incidents. There were no raised voices or threats. The defendants' wills were not overborne.”
We turn next to the defendants' claim that suppression was nevertheless warranted because police failed to record the interview even though, as the judge found, it was practicable for them to do so. This argument is also unavailing. “The absence of a recording does not require the exclusion of statements, but rather is a factor for the jury to consider when they decide whether the Commonwealth proved the voluntariness of the defendant's statements.” Commonwealth v. Jules, 464 Mass. 478, 487 (2013). Here, the jurors were properly assisted by the judge's charge to the jury pursuant to Commonwealth v. DiGiambattista, 442 Mass. 423, 447–448 (2004), in assessing the voluntariness of Rivera's statement in the absence of a recording. We perceive no error. Moreover, even if we were to assume for purposes of argument that the detectives' failure to record the statement rendered the statement inadmissible at trial, we see no prejudice flowing from its admission, as a later recorded statement by Rivera was nearly identical.
2. Witness voir dire. The defendants next assert that the trial judge abused his discretion and committed reversible error by denying Rivera's request to conduct a voir dire of a witness the Commonwealth intended to call at trial. According to counsel, the witness potentially possessed information relevant to the question of who was the initial aggressor, which both counsel assert was relevant to the defendants' claims of self-defense and defense of another. See Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005) ( Adjutant ). Both counsel lodged an objection to the judge's ruling. Therefore, we review for prejudicial error. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
“[W]here the identity of the first aggressor is in dispute and the victim has a history of violence, ... the trial judge has the discretion to admit evidence of specific acts of prior violent conduct that the victim is reasonably alleged to have initiated, to support the defendant's claim of self-defense.” Adjutant, supra at 664. “[T]he judge must evaluate the proffered evidence's probative value and admit so much of that evidence as is noncumulative and relevant to the defendant's self-defense claim.” Id. at 663. “A defendant who intends to introduce evidence of the victim's specific acts of violence to support a claim that the victim was the first aggressor must provide notice to the court and the Commonwealth of such intent and of the specific evidence he intends to offer.” Id. at 665.
There is no dispute that Rivera's counsel gave no advance notice of a possible Adjutant defense; she raised it for the first time on the morning of the first day of trial. The evidence was newly discovered, as counsel heard about it from another attorney only the night before. However, she could not provide the details of any specific acts of violence. She simply indicated that she was told that the victim beat his girl friend, and the witness could potentially confirm that and provide details. The failure to provide the judge with specific details is fatal to the defendant's claim. See Commonwealth v. Lopez, 474 Mass. 690, 695 (2016) (Lopez ). Counsel is required to “establish when in time the prior acts of violence took place in relation to the [incidents for which the defendant was on trial].” Id. at 696.
Counsel did not seek time to investigate or interview the witness on the basis of this new information. See generally Commonwealth v. Green, 72 Mass.App.Ct. 903, 904 n. 3 (2008), quoting from Smith, Criminal Practice and Procedure § 25.26 (3d ed. 2007) (“A trial judge faced with the problem [newly discovered exculpatory evidence] may consider ... grant[ing] a continuance in order for the defendant to properly use the material”). Rather, Rivera's counsel sought to voir dire the witness prior to trial with the intention of confirming the information she had received and probing the witness for possible Adjutant evidence. On appeal, the defendants cite to no case, nor are we aware of any, entitling them to a witness voir dire for that sole purpose. In effect, counsel sought to depose the witness before trial without the existence of any exceptional circumstances that would warrant a deposition in the interest of justice. See Commonwealth v. Tanso, 411 Mass. 640, 645 (1992) (Mass.R.Crim.P. 35, 378 Mass. 906 [1979] ), allows the testimony of prospective witnesses to be taken prior to trial in “exceptional circumstances” when “the interest of justice” so requires). Accordingly, we conclude that the judge properly denied the defendants' request for a pretrial voir dire of the witness. In addition, because the defendants' proffer regarding a potential Adjutant defense lacked specificity and detail, we also conclude, as did the judge below, that they have failed to demonstrate the relevancy of the proffered evidence to the claims of self-defense and defense of another. Lopez, supra. The judge properly precluded reference to the proffered information both during defense counsels' opening statements and witness examinations. See Commonwealth v. Campbell, 51 Mass.App.Ct. 479, 481–482 (2001).
As a practical matter, counsel could have easily accomplished what she wanted by requesting that the judge allow additional time to meet with the witness. Here, the witness's whereabouts were known to the Commonwealth and the witness was already expected to appear in court to give testimony. Therefore, without much interference or delay to the trial schedule, upon counsel's request, the judge easily could have fashioned a remedy to address the defendant's desire to investigate the possibility of an Adjutant defense.
3. Sufficiency of the evidence. The defendants challenge the sufficiency of the evidence on two grounds. They contend that the Commonwealth failed to prove that Pedro Rivera is the victim of the crime, as is charged in the indictment. They also assert that the Commonwealth failed to prove the absence of self-defense beyond a reasonable doubt. We address each of these challenges in turn.
a. Proof of the victim's identity. The defendants assert that the Commonwealth failed to prove that the victim who had sustained “serious bodily injury” was the Pedro Rivera that was named in the indictment. We disagree.
Here, Bianca Correa, the only percipient witness to the events, testified that the victim was a person she knew by the name “J.P.,” and that he was the boy friend of Jessica Diaz. The victim was also initially identified to the police as someone by the name of J.P. However, subsequent investigation revealed that J.P. was also known as Pedro Rivera.
While the victim did not testify at trial, the evidence established that he went by several names, including “Pedro Rivera,” “Pedro Rivera Soto,” “Manuel Rivera,” and “J.P.” In addition, the evidence established that on April 22, 2012, the victim was struck multiple times in the face and sustained an injury to his left eye during a fight that occurred at a residence in Lawrence. The following day, April 23, 2012, “Pedro Rivera Soto,” date of birth “11/29/1977,” was treated at a Lawrence hospital for an eye orbital fracture, and on April 24, 2012, Detective Gonzalez visited Pedro Rivera at his residence in Lawrence and photographed him with a swollen left eye. This photograph was admitted into evidence. The medical records also show that “Pedro Rivera,” date of birth “11/29/1977,” underwent surgery in May, 2012, to repair an orbital fracture. Here, the trial evidence and the reasonable inferences that could be drawn therefrom, went well beyond “[m]ere identity of name.” Commonwealth v. Koney, 421 Mass. 295, 302 (1995). The proof established that “J.P.,” who was beat in the face and sustained an eye injury as a result, was also the Pedro Rivera who was treated for serious injury to the eye.
b. Absence of self-defense. “If the evidence warrants a self-defense instruction, [as it did here,] the Commonwealth bears the burden of proving, beyond a reasonable doubt, that the defendant did not act in self-defense, by establishing that at least one of the three factors did not exist (i.e., that the defendant did not have reasonable concern for his safety, that he did not use all reasonable means to avoid physical combat, or that the force that was used was greater than necessary in all the circumstances of the case).” Commonwealth v. King, 460 Mass. 80, 83 (2011), citing Commonwealth v. Glacken, 451 Mass. 163, 167 (2008). Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), we are persuaded that the Commonwealth satisfied its burden.
The evidence established that a fight commenced between the defendants and the victim in a hallway. It rapidly moved into Jessica Diaz's room, where the victim was observed lying on the bed face up. He was “trying to cover himself” with his arms; both defendants were “[o]n top of [the victim].” They were striking the victim in the face as the victim pleaded with them in Spanish to stop, uttering “Jya, jya.” Despite the victim's pleas, the defendants continued to punch the victim “two more times” before they left. Hospital records indicated that the victim had suffered an orbital facture of the left eye wall, which required surgery to repair. The day after the surgery, police observed the victim at his residence with a swollen eye. A picture of the injuries was taken and introduced into evidence. In our view, this evidence was sufficient to permit the jury to conclude beyond a reasonable doubt that “the force that was used was greater than necessary in all the circumstances of the case,” and thus that the defendants had not acted in self-defense. See Commonwealth v. Kamishlian, 21 Mass.App.Ct. 931, 932–933 (1985). The judge properly denied the defendants' motions for required findings of not guilty. Ibid.
Correa, a native Spanish speaker, testified that she understood the Spanish phrase “Jya” to mean “stop” in English.
The jury were free to reject the defense theory that the victim possessed a knife, particularly where the defendants' statements to the police varied on this point.
4. Admission of the codefendant's statement. Lopez claims, for the first time on appeal, that the admission of his codefendant's out-of-court statement deprived him of his constitutional right to confront the witnesses against him. He contends that because Rivera did not testify at trial, he had no opportunity to cross-examine Rivera regarding his accusation that Lopez wore a ring during the incident. Where, as here, the evidence was admitted at the defendant's request, we see no merit to his belated challenge that it was improperly admitted.
At the start of trial, the Commonwealth indicated that it would not be introducing Rivera's statement. Both counsel protested. They argued that they had prepared their defense around the admission of Rivera's statement and would be prejudiced by its omission. Counsel for Lopez stated to the judge that both defendants would be “extremely prejudiced” because they “anticipated both statements coming in, [as] we strategized a joint strategy on how we would proceed with this case.” The judge then inquired, “But are you content to go forward with the case as originally planned with [Rivera's] statement coming in?” Counsel for Lopez responded, “Yes.”
Counsel for Lopez made a reasoned tactical decision here to be tried together with Rivera, and to proceed on a joint theory of self-defense and defense of another. Rivera's statement was critical to Lopez's theory of self-defense, as neither he nor Rivera testified at trial and, thus, the evidence establishing the defendants' joint self-defense theory principally came from Rivera's out-of-court statement to the police. It was Rivera who, in his confession to the police, indicated that the victim took the first swing and, further, that the victim grabbed a knife, which Lopez was able to dislodge from him. Lopez's statement, by contrast, did not further a self-defense theory. In his statement to the police, Lopez, although confessing to hitting the victim, did not suggest that the victim either struck first or pulled a knife. Lopez's defense depended on the admission of Rivera's statement. He cannot now complain about the admission of evidence that he insisted on.
We also see no merit to Lopez's claim that without Rivera's statement there would be no evidence of his having caused serious bodily injury to the victim. He and Rivera were observed repeatedly striking the victim in the face. The jury reasonably could have inferred from this evidence that the injury to the victim's eye was caused by these repeated blows to the face even in the absence of the evidence that Lopez wore a ring. See Commonwealth v. Marinho, 464 Mass. 115, 119–120 (2013) (“The Commonwealth may establish causation in an assault and battery case by proving beyond a reasonable doubt that the defendant either directly caused or ‘directly and substantially set in motion a chain of events that produced’ the serious injury in a natural and continuous sequence”). Contrary to Lopez's assertion, the jury were not required to determine which of the two defendants' actions actually caused the victim's injury, as the jury did not find that they had acted in self-defense. Rather, it was permissible for the jury to find here that the concurrent actions of both Lopez and Rivera caused the victim's injuries. See id. at 120 n. 5.
In his final charge, the judge instructed the jury that “if you find that a portion of the defendant's actions were taken in self-defense or defense of another, then you must consider which actions caused the serious bodily injury.”
5. Prosecutor's closing argument. Finally, the defendants contend that the prosecutor's closing argument impermissibly shifted the evidentiary burden to the defendants. “Because the defendant[s] seasonably objected, we review to determine whether the prosecutor's comment caused prejudicial error.” Commonwealth v. Omonira, 59 Mass.App.Ct. 200, 205 (2003).
“[A] prosecutor shifts the burden of proof when, for example, he or she calls the jury's attention to the defendant's failure to call a witness or witnesses, or when the prosecutor offers ‘direct comment on a defendant's failure to contradict testimony.’ “ Commonwealth v. Tu Trinh, 458 Mass. 776, 787 (2011), quoting from Commonwealth v. Miranda, 458 Mass. 100, 117 (2010). Prior to closing argument, the judge read the parties' stipulation to the jury, which provided that both the victim and Jessica Diaz “declined to return from Florida to testify in this matter” and that the Commonwealth had decided not to require their appearance at trial. In closing, the prosecutor argued:
“You are the fact-finders in this case. You're not mind-readers, which is what [defense counsel] would have you do when you're speculating about why [the victim] isn't here, about why Jessica Diaz isn't here, about what the reasons are that they're not here. They're not just off in Florida; they have an address in Florida; that's where they live.”
Considering the “context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury,” we conclude that this was a proper commentary, which did not shift the burden of proof onto the defendants. Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). The prosecutor's remark was an appropriate response to counsel's argument that Jessica Diaz and the victim declined to testify “because they didn't want to perpetuate any ... lies.” See Commonwealth v. Rogers, 43 Mass.App.Ct. 782, 785 (1997) (“A prosecutor may properly respond to defense counsel's closing argument to the extent necessary to correct an erroneous impression created by defense counsel”). The judge instructed the jury in both his preliminary instructions and in his final charge that the defendants are presumed innocent and, further, that the Commonwealth must prove each element of the crime beyond a reasonable doubt. The judge also gave the missing witness instruction requested by the defendants, stating to the jury that “you may but are not required to infer from the fact that the Commonwealth did not call [the victim] and Jessica Diaz, that had either of them testified he or she would have given testimony that would have not been favorable to the Commonwealth's case.” The jury are presumed to follow such instructions. See Commonwealth v.. Jackson, 384 Mass. 572, 579 (1981). There was no error.
Judgments affirmed.