Opinion
No. 13–P–1684.
06-27-2016
COMMONWEALTH v. Robert A. RODERIQUES, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is the appeal of the defendant Robert A. Roderiques, Jr., who was convicted of assault and battery causing bodily injury on a person sixty years of age or older, and assault and battery by means of a dangerous weapon on a person sixty years of age or older. G.L. c. 265, §§ 13K(b), 15A(a). The defendant filed a timely notice of appeal and then moved for and received a stay of appellate proceedings to allow him to pursue a motion for a new trial. That motion was denied by the trial judge and the defendant subsequently sought leave to file a late notice of appeal of that order, which was allowed. We consolidated the two appeals.
In his direct appeal, the defendant argues that the admission of evidence, and argument by the prosecutor, describing the nature and severity of the victim's injuries and the degree of suffering caused by those injuries amounted to error. Because there was no objection below, we review this claim for whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 17, 20 (1999).
It is an element of the crime of assault and battery causing bodily injury on a person sixty years of age or older that the assault and battery “cause [ ] bodily injury.” G.L. c. 265, § 13K(b), inserted by St.1995, c. 297, § 4. The Commonwealth thus was required to prove as part of its case that the victim suffered bodily injury as a result of the defendant's attack. Bodily injury is defined by the statute as “substantial impairment of the physical condition, including, but not limited to, any burn, fracture of any bone, subdural hematoma, injury to any internal organ, or any injury which occurs as the result of repeated harm to any bodily function or organ, including human skin.” G.L. c. 265, § 13K(a), inserted by St.1995, c. 297, § 4. The testimony and photographs to which the defendant makes objection were all relevant to this element of the offense. The police officer described the injuries he observed when he arrived on the scene and the Commonwealth introduced photographs taken at the scene depicting the injuries; he testified that the victim remained hospitalized two days later, he testified as to how the injuries looked after the victim returned home, and the Commonwealth introduced two photographs depicting those injuries at that time. The victim himself described his injuries in great detail.
Had objection been made to the introduction of these materials we think it would have been within the judge's sound discretion to conclude that none of them was required to be excluded on the ground that the risk of unfair prejudice from its introduction substantially outweighed its probative value. Commonwealth v. Johnson, 473 Mass. 594, 599 (2016). Thus, to the extent this is the argument put forward by the defendant, we find no error and therefore no substantial risk of a miscarriage of justice.
The prosecutor's closing argument included a description of the injuries. He also spoke about the testimony by the victim's wife in urging the jury to find her credible. He said, “Her voice cracked. She got choked up. And tears started to form around her eyes.” He explained that “when somebody is talking about something that really gets to them, that has changed their life, how do you think that is for her? There is constant headaches, and his trouble with his vision, and his teeth. How do you think that is for her, knowing what he was like before and now? Was she able just to do that on cue? I submit to you, no way. What you saw was real in this courtroom when you reach that point. And that's because it happened .”
At the end of his direct testimony, the victim twice said, “I'll never forget him,” referring to the defendant whom he identified as having punched and kicked him in the face. The prosecutor in closing rendered the statement, “I'll never forget him as long as I live, he did it.” This was neither an appeal for sympathy nor a reference to the severity of the injuries or the degree of suffering caused by them.
Having read the closing argument as a whole we do not think that it was an improper attempt to create sympathy for the defendant, even when combined with the challenged evidence. It might be argued that the quoted language concerning the feelings of the victim's wife and her presentation to the jury pointed more toward sympathy for her than to the credibility of her testimony about the defendant having admitted to committing the crime. However, in light of the fact that this passage was couched not as part of the prosecutor's argument for conviction directly, but as a reason to find the wife credible, we do not think that, even if it were error, that the error created a substantial risk of a miscarriage of justice.
In his motion for a new trial, the defendant argued only that he had discovered a new witness, a neighbor across the street, who could have provided exculpatory testimony that would have corroborated the testimony given by defense witnesses, witnesses whose own credibility might have been reasonably questioned because of their relationship with the defendant. The Commonwealth attached to its opposition an affidavit from the purportedly new witness indicating that prior to trial the defendant's own private investigator had found and spoken with her and she had provided him with details of what she saw, but that she was not called as a witness.
In light of this, the motion judge properly denied the motion for a new trial. Not only could the witness have been discovered by due diligence, she was, in fact, discovered by the defendant. See Commonwealth v. Pike, 431 Mass. 212, 218 (2000) (in motion for new trial based on newly discovered evidence, defendant must “show that the evidence was unknown to the defendant or the defendant's counsel ... at the time of trial”). The defendant's argument therefore was unavailing.
Apparently unaware of the judge's ruling, the defendant filed a supplemental memorandum in support of his motion for a new trial asserting that certain differences in the witness's testimony between what the investigator asserted in an affidavit that she had told him, and what she described in her affidavit submitted by the Commonwealth, amounted to newly discovered evidence that warranted a new trial. Even upon learning that his supplemental memorandum was filed after the judge had decided the motion, the defendant did not file a motion for reconsideration or a new motion for a new trial. The judge appropriately took no action with respect to this late-filed supplemental memorandum, and the arguments contained in it and raised here by the defendant are not properly before us on this appeal.
Judgments affirmed.
Order denying motion for new trial affirmed.