Opinion
13-P-882
12-23-2014
COMMONWEALTH v. NKOSI NEWTON.
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 appeals his convictions of assault and battery by means of a dangerous weapon, assault and battery causing serious bodily injury, and unarmed robbery. The defendant argues that the trial court judge abused her discretion in permitting the Commonwealth to impeach the defendant's witness, Sebastian Alonso. Alonso testified that on the night of the beating which formed the basis of the defendant's convictions he was with the defendant, was stopped with him by the police, and told a police officer that the defendant had done nothing wrong. The defendant argues first that the witness could not properly be impeached with his failure subsequently to make exculpatory evidence known to the police or prosecution because such impeachment by prior silence is not appropriate in the face of his testimony that he was not silent at the scene of the crime.
Even if this objection were preserved, it misses the mark. There was no abuse of discretion in allowing the Commonwealth to elicit evidence designed to impeach the witness's statement that he had made this initial report. So long as the proper foundation had been laid, allowing evidence of a failure to take further steps in the face of an unsuccessful attempt to exonerate the defendant at the scene of the crime is within the scope of what is permitted the judge.
The defendant's second argument goes to foundation. A foundation for impeachment by a witness's failure to report information that is exculpatory to the authorities requires the Commonwealth to establish "(1) that the witness knew of the pending charges in sufficient detail to realize that he possessed exculpatory information, (2) that the witness had reason to make the information available, [and] (3) that he was familiar with the means of reporting it to the proper authorities." See Commonwealth v. Issa, 466 Mass. 1, 17-18 (2013).
Having reviewed the transcript, we conclude that the two objections made during the course of impeachment of the defendant's witness were not sufficient to preserve this claim of error because they did not indicate that they were based on a claim of lack of foundation. See Commonwealth v. Bonds, 445 Mass. 821, 828 (2006). We therefore review the defendant's claim for a substantial risk of a miscarriage of justice. Ibid.
Even assuming that an adequate foundation was not laid, something we need not and do not decide, there was no substantial risk of a miscarriage of justice. The marginal effect of this impeachment on the strength of the witness's testimony -- which was contrary to that of several eyewitnesses including a disinterested bystander -- that he and the defendant were stopped by the police while simply observing the goings on, and that he told the police that the defendant had done nothing wrong, is insignificant when weighed against the strength of the government's overwhelming case against the defendant.
Finally, the defendant argues that the evidence was insufficient to convict him. In particular, he focuses upon the limited opportunity witnesses had to see his face during the altercation.
While this is a creative argument, it lacks any force. The defendant was seen by witnesses in the act of committing the crime. The police arrived while the assault was ongoing, saw the defendant engaged in the crime (it was night, but their cruiser's headlights were on), and arrested him at the scene within feet of the beating. He was never out of the officers' sight, and this is not a case in which his arrest or convictions rests upon his identification from memory by any eyewitness.
Judgments affirmed.
By the Court (Green, Rubin & Agnes, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: December 23, 2014.