Opinion
13-P-569
12-09-2014
COMMONWEALTH v. BRIAN K. PODAVINI.
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, Brian K. Podavini, appeals from his conviction for witness intimidation, pursuant to G. L. c. 268, § 13B, following a jury trial in the Superior Court. He complains that his motion for a required finding of not guilty was erroneously denied, that he was improperly denied access to the victim's mental health records, and that the prosecutor gave improper argument in various respects. We affirm.
The defendant was acquitted at trial of three other counts, namely, kidnapping, and two counts of assault and battery by means of a dangerous weapon.
Although the defendant filed a motion for a new trial, and received a stay of the instant appeal pending resolution of the motion, the stay has since been vacated and he does not challenge the judge's denial, in June, 2013, of his motion.
Sufficiency of the evidence. This court reviews a claim of insufficiency of evidence under the familiar Latimore standard, viewing the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
The governing statute states: "Whoever, directly or indirectly, willfully (a) threatens, or attempts or causes physical injury, emotional injury, economic injury or property damage to . . . (i) a witness or potential witness at any stage of a criminal investigation, grand jury proceeding, trial or other criminal proceeding of any type," is guilty of witness intimidation. G. L. c. 268, § 13B(1)(a)(i), inserted by St. 2006, c. 48, § 3. The statute also prohibits threatening a person who "is or was aware of information . . . that relate[s] to a violation of a criminal statute." G. L. c. 268, § 13B(1)(a)(ii), inserted by St. 2006, c. 48, § 3.
The defendant's contention essentially is that the evidence was insufficient because the Commonwealth failed to prove that he committed the other charged crimes. In other words, he claims, without supporting authority, that he could not be convicted of preventing the victim from reporting crimes when there were no crimes to report. However, the fact that the jury acquitted the defendant of the three remaining counts was irrelevant for purposes of the witness intimidation conviction.
Preventing a person from calling the police to report what amounts to criminal conduct falls within the definition of witness intimidation under G. L. c. 268, § 13B. See Commonwealth v. Belle Isle, 44 Mass. App. Ct. 226, 227-230 (1998). The inquiry is not whether a crime, as defined by a conviction at trial, actually occurred, but whether the defendant interfered with the future communication of information of, or pertaining to, a crime. See Commonwealth v. Burt, 40 Mass. App. Ct. 275, 278 (1996). "It is enough that the jury reasonably conclude from the surrounding circumstances that it was likely that the victim would furnish to an official investigating authority information pertaining to the crime and that the defendant intended to discourage such communication." Commonwealth v. King, 69 Mass. App. Ct. 113, 121 (2007). As mentioned, the defendant has not cited, nor have we located, any cases supporting his argument.
Psychiatrist records. The defendant next argues that, under Commonwealth v. Hanright, 465 Mass. 639 (2013) (Hanright), and Wardius v. Oregon, 412 U.S. 470 (1973), his motion for access to the victim's psychiatrist's records, which was brought under Mass.R.Crim.P. 17(a)(2) and Commonwealth v. Dwyer, 448 Mass. 122 (2006) (Dwyer), was denied in error. His motion was based on an anticipation that the Commonwealth would attempt to introduce evidence that the defendant had raped the victim in the past, and an argument that the records were necessary to show that the victim had a mental illness and was delusional. The defendant also argues that the denial of his discovery request violated his due process and confrontation clause rights because it prevented him from impeaching and challenging the credibility of the victim.
The defendant's proffer is based upon the defendant's statement to his trial counsel that the victim told him that the victim's psychiatrist had deemed him psychotic. Even crediting this statement, the victim apparently only saw the psychiatrist immediately after the alleged rape, when he was (according to the Commonwealth, and not rebutted by the defendant) fifteen years old, nine years before the offenses at bar.
Where "a defendant seeks pretrial inspection of statutorily privileged records of any third party," the protocol set forth in Dwyer, supra, applies. Commonwealth v. Labroad, 466 Mass. 1037, 1038 (2014) (Labroad). Under the Dwyer protocol, the moving party must establish "good cause, satisfied by a showing (1) that the documents are evidentiary and relevant; . . . and (4) that the application is made in good faith and is not intended as a general fishing expedition." Dwyer, supra at 140-141 (quotation and citation omitted). "To satisfy the first of the four requirements, a defendant must make a factual showing that the requested documents have a rational tendency to prove [or disprove] an issue in the case." Labroad, supra (footnote, quotation, and citation omitted).
As a threshold matter, the defendant has not preserved this issue. At the motion hearing, the defendant's trial counsel unequivocally stated that she only sought the victim's psychiatrist's records in the event that the judge ruled that testimony concerning the prior alleged rape was admissible. Because the judge disallowed such testimony, the defendant's request for the records was, in effect, withdrawn. With this in mind, our review does not reveal a substantial risk of a miscarriage of justice.
Even had this issue been properly preserved, the defendant failed to demonstrate the threshold relevancy showing under Dwyer. The defendant's principal claim of relevancy of the mental health records is that they were needed to form a fuller picture concerning the alleged prior rape. However, the judge did not permit the Commonwealth to introduce that the nature of the prior bad act was rape, and there was no reference to the alleged rape at trial. Therefore, the records were immaterial for that purpose.
To the extent that the defendant argued below or now argues that the records were relevant to establish a motive or bias to lie, this argument is likewise unavailing. The defendant opposed the Commonwealth's motion to introduce evidence concerning the alleged rape and, thus, was in no position to seek the records on the ground that the alleged rape provided the victim with a motive to lie about the instant crimes. In other words, the defendant cannot now plausibly claim that he would have introduced the rape allegation evidence, including information from the victim's mental health records, to impeach the victim.
Moreover, if the defendant's claim can be viewed as contending that, assuming the victim's records confirmed a diagnosis of psychosis, they somehow had a bearing on the victim's capacity to perceive or remember the instant crimes accurately, he failed to demonstrate an abuse of discretion by the judge. See Commonwealth v. Caine, 366 Mass. 366, 369 (1974) (It is for the trial judge to determine whether records show a "mental impairment . . . [that] may be the subject of proper impeachment if it is shown that such [a] factor[] affect[s] the witness's capacity to perceive, remember, and articulate correctly"). Given that the crime at issue in this case apparently occurred nine years after the victim sought mental health treatment, the possibility that the victim suffered from a mental illness years earlier is too remote a basis on which to permit inquiry into the records.
Moreover, since the records related to the earlier alleged crime, the instant crime could not have been recorded in the records being sought. Contrast Labroad, 466 Mass. at 1039.
In addition, the defendant's reliance on Hanright is misplaced. There, the court construed Mass.R.Crim.P. 14(b)(2)(B), as amended, 463 Mass. 1501 (2012) (concerning an examination of the defendant where the defendant's mental condition will be raised by the defense's expert witness), Hanright, 465 Mass. at 649, a wholly distinct provision from Mass.R.Crim.P. 17(a)(2), 378 Mass. 886 (1979), the provision under which the defendant sought the records here. Likewise, his reliance on Wardius v. Oregon, 412 U.S. 470, is misplaced because the holding there was narrow and inapposite to the facts in the instant case. Although the Court emphasized that discovery is a two-way street, it did so in the context of the facts before it. See id. at 475-479.
Closing argument. Last, the defendant argues that the prosecutor made several improper comments during closing argument. The defendant, represented by different counsel on appeal, concedes that none of the allegedly improper comments brought objection by trial counsel, but argues that those comments, individually and cumulatively, created a substantial risk of a miscarriage of justice. We disagree.
(1) Consciousness of guilt. The defendant argues that the prosecutor's argument, as follows, improperly implied consciousness of guilt where the evidence did not support it:
"Given the fact that [the defendant] had already smashed the cellphone so [the victim] couldn't call the police, is it reasonable to think that [the defendant] may have thought the police were already notified? They went back to his house. He wasn't there. They went to his mother's house. He's not home. They went to his house multiple times. Although his car was in the driveway, he was never there."While the Commonwealth concedes this to be a slight exaggeration of the inference of consciousness of guilt, no substantial risk of a miscarriage of justice is seen to be created. The evidence clearly established the defendant's guilt as to witness intimidation, and the judge twice instructed the jury that closing arguments did not constitute evidence. The defendant's reliance on Commonwealth v. Haraldstad, 16 Mass. App. Ct. 565, 570 (1983) (holding that "[i]t is error to instruct a jury on consciousness of guilt based on facts without reasonable support in the record"), is unwarranted. Here, an instruction on consciousness of guilt was neither requested nor given, but an inference of consciousness of guilt was reasonable, nonetheless, in light of testimony that police went to the defendant's apartment three times after the incident, and he was absent each time. See Commonwealth v. Carita, 356 Mass. 132, 140 (1969).
The defendant here does not challenge any testimony, only the prosecutor's characterization of the testimony in closing argument.
(2) Absence of evidence in medical records. Here, the defendant contends that the prosecutor improperly affirmatively argued the absence of evidence, in the following passage:
"One thing you are not going to find in any of [the victim's] medical records from the doctor, nurse, from medical personnel, that the [d]efendant [sic] was high. There is nothing that says he's hard to understand. There is nothing to say that he was not clear. . . . The doctors had an opportunity to check whether or not there was any unsteady gait, if he was stumbling around. The doctors had
an opportunity to check if his words were slurred. They weren't. The doctors would have noted it."The defendant argues that because there was "no medical testimony, let alone testimony about hospital protocol" entered at trial, the prosecutor's comments amounted to mere speculation. The Commonwealth argues that the prosecutor's statement was fair comment on the victim's medical records.
Here, even if the medical records, which contained no clear indication (to a layperson) that the victim was intoxicated, served as an improper evidentiary basis for this statement, there was no resulting prejudice, let alone a substantial risk of a miscarriage of justice. Police testimony indicated that on the night of the crime the victim was not intoxicated to the point that his behavior or memory was brought into question; the prosecutor's argument that the victim was not as intoxicated as the defendant suggested, even if drawn from an improper source, was not prejudicial.
We note that the prosecutor erroneously stated that the "defendant" was not high; therefore, any prejudicial impact was presumably lessened by the prosecutor's misstatement.
A responding officer testified that the victim gave no indication that he was under the influence of alcohol.
(3) Burden-shifting. The prosecutor must not misstate the Commonwealth's burden of proof, or adversely implicate the defendant's fundamental right to be presumed innocent. Commonwealth v. Thomas, 401 Mass. 109, 113 (1987) (Thomas). Additionally, "[a] prosecutor must limit comment in closing statement to the evidence and fair inferences that can be drawn from the evidence." Commonwealth v. Kelly, 417 Mass. 266, 270 (1994). In Thomas, supra, the prosecutor improperly stated that the jury must "find [the defendant] not guilty if you find that he is truly innocent," and "in order to find the defendant not guilty, you have to disbelieve [multiple witnesses]." However, the court concluded that these statements did not create a substantial risk of a miscarriage of justice because "there was no substantial risk that the jury misunderstood the Commonwealth's burden of proof." Ibid.
There are three specific statements that the defendant challenges on appeal, none of which we consider improper, as they neither misstated the Commonwealth's burden of proof, nor argued inferences not fairly drawn from the evidence. First, the prosecutor argued that the fact that the victim testified that the defendant did not hit him as hard as he could have, with the baseball bat, indicated that the victim was telling the truth. The prosecutor's argument did not suggest or imply that the jury must find the defendant not guilty only if it believes that the victim was lying.
Next, the prosecutor stated, "Common sense, your life experience, is this someone who would be able to create that scenario for no apparent reason, to set up someone he calls his friend, to set up someone that he has partied with multiple times who literally the night before he gave a birthday present to?" We view this in context simply as an attempt to rebut the defendant's argument in closing that the victim was not credible.
Finally, the prosecutor argued, "Why would [the victim] say [the defendant's cousin] was there if he was making up something to frame [the defendant]? If this whole story was a figment of his imagination, why would he say that? Why would he put somebody else there who could be easily verified?" This argument properly suggested that, if the victim was fabricating the allegations, he would not have indicated that there was a third person present for the events. See Thomas, supra at 116 ("[I]t is certainly proper for counsel to argue from the evidence why a witness should be believed").
Even if we were to determine that the comments were improper, we fail to discern that they, standing alone or cumulatively, created a substantial risk of a miscarriage of justice. The judge gave a lengthy reasonable doubt instruction, and repeatedly reminded the jury that this was the standard. The judge also instructed the jury that the parties' closing arguments did not constitute evidence. Nor does it appear that the defendant was prejudiced, since, as previously noted, the jury acquitted the defendant of three of the four counts.
(4) Search warrant. The defendant contends that the prosecutor improperly argued that the police legally could not have obtained a search warrant to search the defendant's apartment. He avers this to be a mischaracterization of an officer's testimony that the officer did not search the defendant's apartment only because he could not corroborate the victim's testimony. We discern no merit to the defendant's argument because the defendant emphasized this testimony in his closing argument to indicate that the officer did not believe the victim's allegations. Rather than a minimization, the prosecutor stated, in turn, that no search warrant was applied for because "[w]e need something more than somebody saying it happened," and "legally they could not [obtain a search warrant] because they did not have [corroborating] information." While the remark about a search warrant was better left unsaid, we fail to discern how the defendant was prejudiced.
Judgment affirmed.
By the Court (Cypher, Fecteau, & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 9, 2014.