Opinion
14-P-1798
04-29-2016
COMMONWEALTH v. MARIO RIVERA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Mario Rivera, appeals from his conviction of assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A. The defendant contends that his conviction should be reversed for four reasons.
First, the defendant argues that the Commonwealth's failure to disclose the expert opinion of a blood spatter expert violated his right to due process. Second, the defendant maintains that the judge erred when she failed to give a missing witness instruction. Third, the defendant maintains that the judge erroneously determined that the victim's previous bad act evidence, see Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005), was not admissible. Fourth, the defendant argues that his conviction violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution because there was no manifest necessity when the judge declared a mistrial in the first trial. We affirm.
Background. We summarize the facts as the jury could have found them, in the light most favorable to the Commonwealth, reserving certain details for our analysis of the issues raised on appeal. See Commonwealth v. Companonio, 445 Mass. 39, 42 (2005).
At the time of the incident, Jaime Rivera (Jaime) and his wife, Vilma Chavez (Chavez), had been in a relationship for nine years and lived together, with two children, at 257 Border Street in East Boston. The defendant met Chavez while she was employed as a taxi driver. The defendant and Chavez became very close friends and would see each other frequently. Jaime believed that the defendant and Chavez were involved in a romantic relationship. This belief caused Jaime and Chavez to argue.
Because Jaime Rivera and the defendant, Mario Rivera, share a surname, we will refer to Jaime Rivera by his first name to avoid confusion.
Two weeks before the incident, Jaime called the defendant and they agreed to meet on Condor street. At this meeting, the defendant denied having a romantic relationship with Chavez. Jaime told the defendant to stay away from his family and to not call Chavez anymore. Later that same day, Jaime saw the defendant walking by his house. Jaime told the defendant that, although he did not want any problems with the defendant, he wanted the defendant to stop walking in front of his house. The defendant responded by saying that he could walk where he wanted and that he would "cut [Jaime] with the knife that he was carrying."
On July 5, 2012, around 10:00 P.M., Chavez was getting ready to leave their residence with the children to go to her sister's house. Because Chavez was still recovering from surgery, Jaime decided to go outside and give his wife and children a ride. Jaime drove up the street and did not see his wife and children, but in his driveway he saw the defendant hugging Chavez. Jaime said that his suspicions had been confirmed, causing the defendant to yell at Jaime to get out of his vehicle. When Jaime alighted from the vehicle, the defendant punched him in the face. They separated but continued to argue verbally. Jaime then picked up a traffic cone and threw it at the defendant. This reignited the physical fighting and they both ended up on the ground. The defendant got up, pulled out a knife, and told Jaime that he was going to stab him. The defendant chased Jaime down the street and stabbed him on the right side of his chest.
The defendant's trial strategy was that he acted in self-defense and stabbed Jaime while Jaime was on top of him during the fight, not when Jaime was running away down the street.
Discussion. 1. Delayed disclosure of evidence. The defendant argues that he is entitled to a new trial because the Commonwealth failed to disclose the fact that photos from the crime scene were reviewed by Boston police department criminalist Amy Reynolds (Reynolds) prior to trial. "Where the Commonwealth has delayed in disclosing evidence prior to trial, our principal concern is whether the defendant has been prejudiced by the delay." Commonwealth v. Stote, 433 Mass. 19, 22 (2000). "Absent a showing of bad faith, we consider the primary issue of prejudice." Id. at 23. In measuring prejudice, "it is the consequences of the delay that matter, not the likely impact of the nondisclosed evidence, and we ask whether the prosecution's disclosure was sufficiently timely to allow the defendant 'to make effective use of the evidence in preparing and presenting his case.'" Commonwealth v. Wilson, 381 Mass. 90, 114 (1980), quoting from Commonwealth v. Adrey, 376 Mass. 747, 755 (1978).
We note that the defendant has not made a showing of bad faith on the part of the prosecution. See Stote, supra at 23.
Although the Commonwealth has an affirmative duty to timely disclose requested exculpatory and material evidence, see Mass.R.Crim.P. 14(a)(1)(A), as amended, 444 Mass. 1501 (2005), the defendant is not entitled to a new trial because he has failed to show that he was prejudiced by the prosecutor's failure to disclose the opinion rendered by Reynolds as it was not exculpatory or material. See Commonwealth v. Janard, 16 Mass. App. Ct. 931, 933 (1983).
We note, however, that it would have been better practice for the prosecutor to disclose this information to defense counsel when she found out before trial.
Reynold's testified, in voir dire, that she would be unable to make an opinion as to the position of the person that blood is coming from, the chronology of the blood drops (i.e. which one was first, second, third, etc.), or where the stabbing took place. Reynolds only concluded, from her brief five-to-ten minute view of the photographs, that the blood drops fell at a ninety-degree angle. The defendant was given every opportunity to elicit exculpatory evidence from Reynolds, but despite diligent effort by trial counsel, Reynolds never offered an exculpatory opinion during her voir dire testimony. Therefore, the defendant has failed to show that he was prejudiced by the delayed disclosure, because the opinion was inconclusive and could not have effectively assisted him in his theory of self-defense or preparing for trial. See Wilson, supra at 114.
The defendant insists that Officer Giraldo's testimony regarding Reynolds's opinion establishes that her opinion was exculpatory. The argument is fundamentally flawed. Officer Giraldo's testimony is inadmissible hearsay, and cannot supplant in any manner the testimony of Reynolds herself on the subject.
There was also eyewitness testimony and video surveillance that corroborated Jaime's account of the stabbing.
2. Missing witness instruction. The defendant maintains that he is entitled to a missing witness instruction because Reynolds did not testify.
"Whether to allow argument and give a missing witness instruction is within the discretion of the trial judge, even when the foundation requirements are met. Commonwealth v. Thomas, 429 Mass. 146, 151 (1999). It is a highly fact-specific decision, and it cannot be insisted on as a matter of right. I[bi]d. 'Because the inference, when it is made, can have a seriously adverse effect on the noncalling party -- suggesting, as it does, that the party has willfully attempted to withhold or conceal significant evidence -- it should be invited only in clear cases, and with caution.' Commonwealth v. Williams, 450 Mass. 894, 900-901 (2008), quoting [from] Commonwealth v. Schatvet, 23 Mass. App. Ct. 130, 134 (1986). If the instruction is given, the court must take care not to negate its effect by instructing the jury not to consider anything beyond the evidence actually introduced at trial. See Commonwealth v. Remedor, 52 Mass. App. Ct. 694, 701 (2001)."Mass. G. Evid. § 1111(b) (2016). "[W]hether to give a missing witness instruction is a decision that must be made on a case-by-case basis, in the discretion of the trial judge . . . [whose] decision will be overturned on appeal only if it was 'manifestly unreasonable.'" Thomas, supra at 151, quoting from Commonwealth v. Graves, 35 Mass. App. Ct. 76, 86 (1993).
It was not manifestly unreasonable for the judge to deny the defendant's request for a missing witness instruction. As stated above, Reynolds' opinion was inconclusive and would not have provided any helpful information to either side, as she could only determine from her brief examination of the photographs that the blood drops fell at a ninety-degree angle. Moreover, defense counsel was able to draw attention to the absence of testimony from Reynolds in his closing argument. See Commonwealth v. Anderson, 411 Mass. 279, 285 (1991) ("[T]he issue of a missing witness can be covered by comment of counsel in final argument, by instruction alone, or by both methods"). We discern no error in the judge's ruling that the defendant was not entitled to a missing witness instruction, as it was not an abuse of discretion, because Reynolds would not have given any significant or exculpatory evidence.
The defendant's closing states, in pertinent part:
"The reality is that video, you can't see what happened and so as you look at it and you see, I'm suggesting let's look at what you can see, where is the blood? Explain how there's a gigantic puddle of blood right there where they fought, right where they fought. And you say, [w]ell, where's the blood spatter expert to explain this to me? Why is that happening? Where is he? And the reality is -- is it wasn't -- what I'm questioning -- [.] Well, I submitted it to a blood spatter expert. And nobody was more surprised by that than me, but, ultimately, what did you learn? Not here. He's not giving you any evidence so that is that? Just more doubt.
When ascertaining evidence, lack thereof is always, and forever will be, held against the Commonwealth. Lack of evidence is doubt."
3. Adjutant evidence. The defendant contends that the judge abused her discretion when she excluded the defendant's proffer of specific prior bad acts of the victim. See Adjutant, 443 Mass. at 664-665. "'[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,' regardless whether the defendant knew of the victim's prior violent acts." Commonwealth v. Chambers, 465 Mass. 520, 527 (2013), quoting from Adjutant, supra at 664. "[S]uch evidence 'may be admitted as tending to prove that the victim and not the defendant was likely to have been the "first aggressor"' because it may show 'that the victim acted in conformance with his character for violence.'" Chambers, supra, quoting from Adjutant, supra.
The defendant argues that, although it was decided after the instant case, Chambers applies retroactively to broaden the meaning of 'first aggressor.' See Chambers, supra at 530 ("Adjutant evidence is as relevant to the issue of who initiated the use or threat of deadly force as it is to the issue of who initiated an earlier nondeadly assault, and such evidence may be admitted to assist the jury where either issue is in dispute, because the resolution of both issues may assist the jury in deciding whether the prosecution has met its burden of proving that the defendant did not act in self-defense"). Even so, the judge did not abuse her discretion by denying the defendant's proffered Adjutant evidence. See Adjutant, supra at 666 (judge retains discretion to determine whether probative value of evidence of prior violence outweighs prejudicial effect). The judge ruled that the prior bad acts were too remote in time, different in kind, and did not assist the jury with the issue of first aggressor. See Commonwealth v. Gaynor, 73 Mass. App. Ct. 71, 75-76 (2008). Importantly, the judge further explained her reasoning by stating:
The defendant's proffered bad act evidence included: (1) a 2002 charge of assault and battery incident involving an ex-girlfriend; (2) A 2003 charge of assault and battery; (3) a 2004 charge of assault and battery involving an ex-girlfriend; (4) a 2005 charge of operating under the influence.
"So I am not aware of a case that applies Adjutant to what happens in the middle of an altercation, but even if [the defendant's] theory is one for consideration and if, in fact, an appellate court would look at what happens during the middle of an altercation according to the defendant's version of events as one that proper Adjutant admissible evidence should be considered by the court, I still would exercise my discretion and make the same ruling."This ruling by the judge implicitly considers the meaning of 'first-aggressor' as expanded by Chambers even though it was decided after the judge made her ruling. Accordingly, the judge did not abuse her discretion when she excluded the defendant's proffer of Adjutant evidence.
4. Mistrial. The defendant argues that the jury deadlock in the first trial does not constitute a manifest necessity because the judge did not "fully investigate" the concerns raised in the foreperson's note during deliberations. Here, however, the judge held a voir dire of the juror subject to the foreperson's note and the judge sufficiently addressed the issues that the foreperson brought to light in the note. The judge then asked the jury, after seven days of deliberations and a prior Tuey-Rodriquez charge, if they had reached a permanent impasse. The foreperson returned a note stating that they had reached a permanent impasse, and that continued deliberations would be unfruitful. The judge then correctly declared a mistrial, which was based on a manifest necessity. See Fuentes v. Commonwealth, 448 Mass. 1017, 1018 (2007), quoting from Commonwealth v. Ellis, 432 Mass. 746, 751 (2000) ("The 'prototypical example' of a manifest necessity for a judge to declare a mistrial is a deadlocked jury").
See Commonwealth v. Tuey, 8 Cush. 1, 2-3 (1851), and Commonwealth v. Rodriquez, 364 Mass. 87, 99-102 (1973).
Judgment affirmed.
By the Court (Green, Trainor & Milkey, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 29, 2016.