Opinion
18-P-1422
01-29-2020
COMMONWEALTH v. Christopher M. MORALES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a consolidated jury trial, the defendant, Christopher M. Morales, was found guilty of breaking and entering during the daytime with intent to commit a felony, larceny from a building, and credit card fraud. See G. L. c. 266, § 18 ; G. L. c. 266, § 20 ; and G. L. c. 266, § 37B (b ). Following a separate jury-waived trial, Morales was found to be a habitual offender as a result of the breaking and entering and larceny convictions. On appeal, Morales contends that the trial judge abused his discretion when he imposed a limited discovery sanction in response to the defendant's claim that the Commonwealth failed to timely produce surveillance videotape footage (video), and that the defendant was materially prejudiced by the late disclosure of the improperly authenticated video. The defendant also asserts that the judge erroneously admitted an out-of-court statement by the cooperating witness, and that testimony regarding the registration of a car was improperly admitted. We affirm.
The jury trial was consolidated on docket numbers 1585CR00699 and 1685CR00220.
Discussion. 1. Late discovery. The prosecutor disclosed the video three days before trial. The video was offered as corroborating evidence of the cooperating witness's testimony that, following her purchase of items with a stolen credit card, she got into a car driven by the defendant, with whom she had committed the offenses. Since the defendant claimed that the cooperating witness acted alone, and that she had falsely implicated him in order to obtain favorable bail and sentencing terms, evidence of a second person in the car was highly material.
The video was not listed on the prosecutor's notice of discovery filed in early 2016, but was referenced in a police report timely provided to the defense. The judge excluded the video because it had not been produced as part of mandatory automatic discovery, but allowed the police officer to testify to what he saw on the video to the extent that his observations were included in the police report. The judge left it to defense counsel to decide whether to use the video for purposes of impeachment. The judge also appeared to allow the police officer to testify that the video showed the cooperating witness getting into the passenger side of the car. The police report did not disclose this fact, and therefore the latter ruling was inconsistent with the sanction imposed. Given the judge's ruling, defense counsel, while reserving her rights, stated that the video should be shown on the Commonwealth's direct examination. The judge saved the defendant's rights. See Commonwealth v. Grady, 474 Mass. 715, 719 (2016).
The judge stated, "Well, as long as [the police officer] testifies consistent with the report that's been turned over, he can do that. He just can't play the video itself."
In response to the judge's inquiry, the prosecutor stated what he needed from the video that was not contained in the still photographs -- "The -- the video it clearly shows the co-defendant walking out of the store, getting into the passenger side of the car and then the car driving off." Defense counsel read the pertinent part of the police report. It is unclear on a cold record whether the judge appreciated the point defense counsel appeared to make, because the judge then stated, "you and your predecessors have known that because it's been in that police report. Those words are in that police report. I watched a video and saw her get into the passenger side of the car, so you knew about that." No objection was interposed to that statement. For present purposes, the preservation issue is immaterial, because we conclude there was no error. See infra.
Rule 14 (a) (1) (A) (vii) of the Massachusetts Rules of Criminal Procedure, as amended, 444 Mass. 1501 (2005), provides for automatic mandatory disclosure by the Commonwealth of (among other things) "police reports, photographs, tangible objects, [and] all intended exhibits." See Commonwealth v. Carney, 458 Mass. 418, 425 (2010). It is uncontested that the Commonwealth failed to timely produce the video, and the judge sought to craft an appropriate sanction. See Mass. R. Crim. P. 14 (c), as appearing in 442 Mass. 1518 (2004). We review for an abuse of discretion. See Carney, supra. See also Commonwealth v. Frith, 458 Mass. 434, 445 (2010).
"Sanctions for noncompliance pursuant to Rule 14 (c) are a mechanism for protecting a defendant's right to a fair trial." Frith, 458 Mass. at 439. The remedy as originally articulated was properly tailored, see id. at 439-440, and was remedial in nature, not punitive. See Carney, 458 Mass. at 427. There was no finding of bad faith on the part of the Commonwealth, thus indicating that less severe sanctions should be invoked. See Commonwealth v. Gonzalez, 437 Mass. 276, 280 (2002). See also Commonwealth v. Dranka, 46 Mass. App. Ct. 38, 42 (1998). We discern no abuse of discretion in the judge's exclusion of the video subject to testimony about its contents consistent with the police report.
In deciding that the police officer would be allowed to testify that the witness got into the passenger seat, however, the judge appeared to rest on an erroneous understanding of the content in the police report, as opposed to the video. The defendant asserts on appeal that this error forced trial counsel to agree to admit the video in full, and prejudiced the defendant, due to the fact that the video placed the cooperating witness in a car driven by another.
There were also still photographs, but the copy of the photograph in the record does not show who or what was in the passenger seat.
" ‘A defendant seeking relief as a result of delayed disclosure has the burden of showing that he was prejudiced by the delay.’ Commonwealth v. Brien, 67 Mass. App. Ct. 309, 310 (2006). ‘In measuring prejudice, it is the consequences of the delay that matter, not the likely impact of the nondisclosed evidence.’ Commonwealth v. Almeida, 452 Mass. 601, 609 (2008), quoting Commonwealth v. Stote, 433 Mass. 19, 23 (2000)." Commonwealth v. Lavin, 94 Mass. App. Ct. 353, 361 (2018). Here, the defendant has not articulated any prejudice occasioned by the delay, as opposed to the evidence itself. The video was provided in advance of trial, albeit on short notice. No request for a continuance was made. The defense remained the same -- that the defendant was not involved in the offenses, and that the cooperating witness had fabricated her testimony. The video did not show who was in the driver's seat. Defense counsel mounted a highly focused cross-examination of the witness, who was forced to admit that she had lied to the police on several occasions, and delivered a well-crafted closing argument honing in on the witness's motive to fabricate. The delay in the disclosure of the video cannot be said to have had an impact on the defense.
At oral argument appellate counsel suggested that some further investigation might have been done, but in the absence of a motion for new trial demonstrating that trial counsel would have done so and that further efforts would have produced relevant evidence warranting a new trial, there is no basis to conclude that the delay caused prejudice.
2. Authentication. The defendant maintains for the first time on appeal that the video should not have been admitted because it was not authenticated. A video may be authenticated by "an eyewitness [who] testif[ies] that the video is a fair and accurate representation of what he saw on the day in question." Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 586-587 (2017), citing Commonwealth v. Pytou Heang, 458 Mass. 827, 855 (2011). The cooperating witness testified that the video depicted her and was an accurate representation. The video was properly authenticated.
3. Prior consistent statement. In his opening statement, the prosecutor stated that the cooperating witness had made admissions to the police, and proceeded to outline what the witness admitted to the police. After defense counsel completed her opening statement, she objected to the prosecutor's reference to a prior consistent statement, and moved for a mistrial. The motion for mistrial was denied, and the judge ruled at trial that any such statements would be admissible as prior consistent statements.
At trial, the prosecutor did not directly elicit any testimony from the cooperating witness or the police concerning what she had told them. At the end of her direct testimony, however, the witness testified that the defendant "wasn't very happy" that she had turned herself in because "[h]e didn't want [her] to do it." The prosecutor asked her what she had told the defendant. She replied, "I just told him that I told [the police] everything and that I'm sorry, and I was going to jail." When asked for his response, she said, "He[ ] tr[ied] to convince me not to say anything, not to testify." After the jury left the room for a break, the defendant objected on the ground that this was an inadmissible prior consistent statement.
"A witness's prior statement that is consistent with that witness's trial testimony is usually inadmissible .... However, the use of prior consistent statements to rehabilitate a witness is permissible when a court finds that a party has claimed that a witness's in-court testimony is the result of recent contrivance or bias, so long as the prior consistent statement was made before the witness had a motive to fabricate or the occurrence of an event indicating a bias" (citations and quotations omitted). Commonwealth v. Morales, 483 Mass. 676, 678 (2019).
We agree with the defendant that the statement was not properly admitted as a prior consistent statement, because the cooperating witness had a motive to fabricate both at the time she made it, and before she went to the police. The video depicting her had been posted to social media before she went to the police, and before she became a cooperating witness. The motive to fabricate arose once she became aware that she was a (yet to be identified) suspect.
The statement was nonetheless admissible as a predicate to an adoptive admission. "That exception applies to any statement made in the presence of the defendant to which the defendant's response -- whether by oral declaration, by gesture, or by revealing silence -- objectively denotes the defendant's acceptance of the statement. Statements to which a defendant orally replies lie within the core of this hearsay exception. Such statements are admissible to lend ‘meaning and effect’ to the defendant's replies." Commonwealth v. Babbitt, 430 Mass. 700, 705 (2000), quoting Commonwealth v. Kenney, 12 Met. 235, 237 (1847). The defendant's admonition not to testify, made in response to the witness's statement that she had told the police "everything," constituted an adoptive admission. The witness's statement was necessary to place his response in context.
"An appellate court is free to affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings." Commonwealth v. Barreto, 483 Mass. 716, 721 n.6 (2019), quoting Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).
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4. Registration of the car. The cooperating witness testified, without objection, that the car driven by the defendant was registered to his mother. This was inadmissible hearsay. See Commonwealth v. Randall, 50 Mass. App. Ct. 26, 28 (2000). However, the car registration was not an issue in the case. At most, the testimony went to the witness's understanding as to ownership of the car. As noted, the witness's motive to lie was a fertile source of cross-examination. Moreover, the judge twice instructed the jury that they should consider whether the witness was telling the truth. The jury either believed her or they did not. On this record, the testimony did not create a substantial risk of a miscarriage of justice. See generally Commonwealth v. Alphas, 430 Mass. 8, 13-14 (1999).
Judgments entered on docket numbers 1585CR00699 and 1685CR00220 affirmed.