Opinion
19-P-1123
07-25-2022
COMMONWEALTH v. EDUARDO RODRIGUEZ.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant appeals from his convictions of two counts of aggravated rape (subsequent offense), as well as kidnapping and indecent assault and battery on a person fourteen or more years of age. On appeal, he argues that (1) evidence obtained from his global positioning system (GPS) bracelet was inadmissible, (2) certain clothing evidence was inadmissible, (3) the Commonwealth erroneously offered multiple first complaint witnesses, (4) the prosecutor made several errors during her closing argument, and (5) the Commonwealth failed to comply with its discovery obligations concerning any prior false allegations of rape made by the victim. We affirm.
Background.
We recount the facts the jury could have found, reserving certain details for later discussion. On August 22, 2016, at about 1:00 A.M., the victim was walking on the Southwest Corridor in Boston to meet her friends at a nearby hotel when the defendant approached her from behind on a bicycle. The defendant told her that he had a knife and was going to rob her but that she would be all right if she "just cooperated." He then put down his bike, held the victim's hand, told her to pretend that they were a couple, and walked with her until they reached the Carter Playground. He brought her to a corner of the playground, took her money and phone, and raped her. He then found a bottle of sports drink nearby and poured liquid on and inside her and tried to remove his ejaculate. He told the victim to stay on the ground until he was gone, and he ran away toward Davenport Street.
The victim found her friends at the hotel and then went to a hospital, where she was examined by a nurse and interviewed by a police officer and a detective. Through their investigation, the police learned that the defendant was being monitored by a GPS bracelet and was in the Carter Playground area just before the assault, traveling at a speed consistent with riding a bike. The GPS data showed that the defendant had continued riding on a path along the Southwest Corridor until his movement stopped and he then began moving back toward the playground at a speed consistent with walking. He remained stationary in the playground for several minutes, then ran away toward Davenport Street. Using the GPS data, the police obtained video surveillance from several locations that showed that the defendant had changed his clothes after the assault. The police recovered items of clothing from an alleyway where the GPS data showed the defendant had spent more than ten minutes shortly after the assault.
The police also recovered a bike, near where the defendant first approached the victim, that matched the victim's description of the defendant's bike. They recovered a sports drink bottle from the area where the rape occurred, and between there and Davenport Street they recovered the victim's phone. They recovered a damaged GPS bracelet, with the same serial number as the one the defendant had been wearing, in the area where GPS data showed that the bracelet became detached from the defendant's body a few hours after the rape.
The victim picked the defendant out of a photographic array that day. The deoxyribonucleic acid (DNA) in semen recovered from the victim's body matched the DNA recovered from a buccal swab of the defendant to a high degree of statistical significance. At trial, the defendant did not contest having sex with the victim at the playground but asserted through cross-examination and argument that it was a chance encounter and the victim had consented.
Discussion.
1. GPS evidence.
a. Undue prejudice.
The defendant argues that the GPS evidence, including the fact that he wore a GPS bracelet, was more prejudicial than probative and so the judge abused her discretion in admitting it. "We review evidentiary rulings for abuse of discretion." Commonwealth v. Denton, 477 Mass. 248, 250 (2017) . "In weighing the probative value of evidence against any prejudicial effect it might have on a jury, we afford trial judges great latitude and discretion, and we uphold a judge's decision in this area unless it is palpably wrong." Commonwealth v. Sicari, 434 Mass. 732, 752 (2001), cert, denied, 534 U.S. 1142 (2002). Because the defendant objected on this ground in a motion in limine, and again at trial, we ask whether any error was prejudicial. See Commonwealth v. Federico, 425 Mass. 844, 852 (1997).
We will assume in the defendant's favor, without deciding, that the GPS evidence was bad act evidence, because it suggested to the jury that the defendant had previously been accused, if not convicted, of some other crime. The question was thus whether the probative value was merely outweighed (not "substantially" outweighed") by its prejudicial effect. See Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014).
In deciding to admit the GPS evidence, the judge concluded that it had strong probative value because it showed the defendant's location and path on the night in question and corroborated details of the victim's testimony. Also, even if the defendant did not actively contest the location of the intercourse itself, the GPS evidence indicated that, after the rape, the defendant (1) ran away toward Davenport Street, discarding the victim's phone along the way; (2) spent time in the alleyway where clothes were later recovered, indicating (along with video and physical evidence) that he had changed clothes at a secluded outdoor location; and (3) detached his GPS bracelet (or allowed it to be detached), damaging it, on a street in the area. This was strong evidence of consciousness of guilt. See Commonwealth v. Cassidy, 470 Mass. 201, 217 (2014). That there was also other such evidence -- in the form of the defendant's statement to a family member the next day that his lawyer was going to bring him to Texas -- did not make the GPS-based consciousness of guilt evidence any less probative or preclude the Commonwealth from introducing it.
No doubt there was some risk of prejudice from the evidence that the defendant was wearing a GPS bracelet. But there was no evidence of what the defendant had been accused or convicted of doing that led to the requirement that he wear a bracelet; this was not evidence of a propensity to commit any particular kind of crime. Indeed, the judge twice instructed the jury -- first when the GPS evidence was introduced and again in her final charge -- that they should neither speculate about why he was wearing the bracelet nor draw any inference against him because of it. The jury are presumed to have followed the judge's instructions "to disregard matters withdrawn from their consideration" (citation omitted). Commonwealth v. Helfant, 398 Mass. 214, 228-229 (1986). In these circumstances, we see no abuse of discretion in the judge's decision that the GPS evidence was more probative than prejudicial.
b. Hearsay objection to GPS evidence.
The defendant also argues that the GPS evidence of his location and speed was admitted through impermissible hearsay testimony and violated his confrontation rights. As the defendant did not raise this argument in the trial court, we review for whether any error created a substantial risk of a miscarriage of justice. For the reasons that follow, we conclude that there was no such risk.
The record indicates that, before trial, defense counsel agreed to a proposed stipulation that would become effective if the judge decided to admit any GPS evidence, as she subsequently did. Under the stipulation, the evidence would be admissible through the detective who had "obtained and analyzed the GPS coordinates." The stated purpose of the stipulation was to "reliev[e] the Commonwealth from calling a witness from ELMO and a witness from 3M" to testify regarding the GPS bracelet assigned to the defendant and the accuracy of the records of the bracelet's location on the night in question.
The parties' joint pretrial memorandum listed this as the Commonwealth's "propose[d]" stipulation, inferably because at that time the defendant's motion in limine to exclude any GPS evidence as unduly prejudicial was still pending. At the pretrial hearing, the judge asked whether this and other stipulations were "actual stipulations . . . [t]hat the defendant has agreed to . . . based on [the judge's] rulings on the motion[] in limine." The prosecutor replied in the affirmative, and defense counsel voiced no disagreement or objection.
At trial, the detective identified ELMO as "the entity that is charged with monitoring people on the GPS devices." The record does not explain the reference to 3M (as an equipment manufacturer or otherwise) and 3M was not mentioned at trial.
Once the judge denied the defendant's motion in limine and decided to admit the GPS evidence, the prosecutor reiterated that, by virtue of the stipulation, no one from the probation department, ELMO, or 3M would testify, and that the GPS information would come in through the detective, with "about eight to [ten] questions." The judge asked for confirmation that "the detective[] will show the evidence of where [the GPS bracelet] went" and that this would avoid what occurs "in the typical case[:] you have a probation officer on there saying we put it on him ... we monitored him, and this is where he went." The prosecutor agreed, and defense counsel voiced no disagreement or objection.
The judge agreed that the stipulation "ma[de] some sense" because it would eliminate any need to mention that the probation department was monitoring the defendant and thus reduce the prejudice to the defendant. The prosecutor stated that she had "sent counsel the limited questions that we would seek to ask the detective verbatim essentially, and we can submit those to the Court, as well." Defense counsel did not object or disagree. On this record, although the complete stipulation, as explicated at the motion hearing, was not reduced to writing as the judge wisely suggested, we conclude that it was agreed to by defense counsel, for sound tactical reasons, and was operative.
Although a written stipulation would have been far preferable, the stipulation at issue was one of law as to the admissibility of evidence -- not a stipulation of fact, such as would be covered by Mass. R. Crim. P. 11 (a) (1) (C) (iv), as appearing in 442 Mass. 1509 (2004), or Mass. R. Crim. P. 23, 471 Mass. 1501 (2015). Thus we do not deem it significant that other stipulations in this case, regarding the chains of custody of evidence collected from the victim and the defendant, were reduced to writing, signed by both counsel, read to the jury, and admitted in evidence, whereas the stipulation regarding the GPS evidence was not treated in the same manner.
On appeal, the defendant identifies no questions that he was unable to ask the detective but would have asked those other witnesses had the Commonwealth called them to testify. The defendant's brief refers in general terms to the possibility of cross-examination on variations between GPS devices and how they calculate speed, as well as on the need for testing to confirm their accuracy. But the accuracy of the device was stipulated to here. Moreover, where defense counsel, perhaps to avoid distracting from or undercutting his consent defense, never asked the detective about these matters, we decline to assume that the detective would have been unable to address them or that any such inability prejudiced the defendant. On appeal, the defendant seizes on the detective's testimony that, during a particular time period when the defendant did not appear in any surveillance footage, the detective "ha[d] no idea what he did prior other than what we've been told by GPS." We interpret this as indicating that the detective's only information about the defendant's location at that time came from the defendant's GPS data points -- not that she had been told what the defendant's location was by some other person associated with ELMO.
The defendant further maintains that the Commonwealth elicited hearsay testimony from the detective about the defendant's location and speed of travel that exceeded the scope of the stipulation. We are unpersuaded. The detective testified that, as a police officer, she had experience interacting with people being monitored by GPS, and she had some awareness of how the process worked. The stipulation allowed the admission of the GPS records through "the detective who obtained and analyzed the GPS coordinates" (emphasis added), and the defendant offers no reason to doubt that it was this detective who testified at trial.
The detective testified that when she called ELMO, "they indicated there was an individual . . . that was being monitored, that was in Carter Playground just prior to the assault," who had traveled up the Southwest Corridor at a speed commonly associated with biking and was named Eduardo Rodriguez. Although this recounting of statements made by ELMO personnel was hearsay, it was either (1) within the scope of the stipulation or (2) cumulative of evidence that the detective, who under the stipulation had "obtained and analyzed the GPS coordinates" for the defendant's GPS bracelet, could testify to based on those coordinates and her knowledge of GPS monitoring.
The detective's testimony indicated that she had requested and obtained the defendant's "specific points, GPS points, from around midnight until two o'clock in the morning." Asked what she had learned from those "points," she then testified about the location, speed, and direction of the defendant's movements over the next few hours. Nothing in the record shows that this testimony was merely a repetition of what ELMO personnel had told her, rather than based on her own review of the "points." Moreover, the pretrial discussion of the stipulation -- in which discussion the prosecutor represented without objection from defense counsel that the detective would be questioned about the GPS data and that defense counsel had already been provided with the questions -- indicates that substantive questioning of the detective was expected and agreed to.
In his reply brief the defendant further argues that there was insufficient foundation for the detective's GPS testimony. The argument was not made in the defendant's opening brief and thus is waived. See Commonwealth v. Keevan, 400 Mass. 557, 562 n.4 (1987). In any event, the stipulation plainly envisioned that the detective would testify about her analysis of the GPS data.
The detective was also asked whether ELMO was "able to generate any exhibits to show [the defendant's] points in the early morning hours of [the date in question]," and she replied in the affirmative. Two schematic maps that she received from ELMO, showing the direction and inferably the speed of the defendant's movements, were introduced in evidence. The defendant offers no reason to believe that these maps were not among the "GPS records" that the stipulation made admissible without the testimony of any ELMO personnel.
Arrows on the maps are spaced more widely apart at places where either the victim's testimony or video surveillance indicated that the defendant had been riding a bike or running rather than walking.
In sum, the hearsay testimony to which the defendant now objects was either stipulated to be admissible or, to whatever limited extent it exceeded the scope of the stipulation, was cumulative of the detective's testimony based upon her own analysis of admissible GPS data. Therefore, and in view of the tactical benefit the defendant gained from the stipulation, we conclude that any error created no substantial risk of a miscarriage of justice.
The substantial risk analysis considers, among other factors, "whether the error is sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error, and whether it can be inferred from the record that counsel's failure to object was not simply a reasonable tactical decision" (quotation and citation omitted). Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
2. Clothing evidence.
The defendant argues that if the GPS evidence was improperly admitted, so were the items of clothing recovered from an alleyway, because absent the GPS evidence there was nothing to connect the defendant with that clothing. Because we have concluded that the GPS evidence was properly admitted, we reject the defendant's challenge to the clothing evidence.
3. First complaint.
The defendant argues that the testimony of two police officers and one of the victim's friends violated the first complaint doctrine. In sexual assault cases, the first complaint doctrine limits the testimony surrounding a victim's disclosure of the assault to others. See Commonwealth v. King, 445 Mass. 217 (2005), cert, denied, 546 U.S. 1216 (2006). Apart from the victim, only one witness may testify in the prosecution's case-in-chief as to the details of the sexual assault and the circumstances surrounding the first complaint. Id. at 242-243. Limiting the Commonwealth to a single first complaint witness prevents "any prejudicial 'piling on' of such witnesses." Id. at 245.
Importantly for present purposes, "[e]vidence of a subsequent complaint is not admissible simply because a separate evidentiary rule applies (e.g., the statement is not hearsay, or it falls within an exception to the hearsay rule)" (citation and quotation omitted). Commonwealth v. Dargon, 457 Mass. 387, 399 (2010). "If independently admissible evidence, other than that specifically and properly designated as first complaint testimony, serves no purpose other than to repeat the fact of a complaint and thereby corroborate the complainant's accusations, it is inadmissible. However, if that evidence does serve a purpose separate and apart from the first complaint doctrine, the judge may admit it after careful balancing of the testimony's probative and prejudicial value" (quotations and citations omitted) . Id. at 399-400.
a. Police officers' testimony.
An officer testified that he went to the hospital in response to a reported "sexual assault" and spoke with the "victim," who gave him "a description of the person who had done this to her" and said that the "crime scene" was at the Carter Playground. A detective then testified that she had gone to the hospital and spoken to the "victim" of the "assault," who had repeated some of the above information and added that the assailant was on a bicycle and the assault occurred between 12:30 A.M. and 1:30 A.M. The defendant argues that this constituted multiple complaint testimony that unfairly enhanced the victim's credibility. The defendant did not object, so we review for whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 845-846 (2010) .
The Commonwealth argues primarily that the officers' testimony was independently admissible in order to give "context" for the police investigation. The Commonwealth cites no case, however, holding that a sexual assault victim's hearsay statements to police are admissible merely because they help explain why the police investigated as they did. Even under the related rubric of out-of-court statements to police admitted to show the "state of police knowledge," "[d]isclosure of the substance of the conversation ordinarily is not required, and should be curtailed because of its prejudicial potential." Commonwealth v. Rosario, 430 Mass. 505, 509 (1999). See Mass. G. Evid. § 801(c) note (2022). "For this reason a statement that an officer acted 'upon information received,' or 'as a consequence of a conversation,' or words to that effect --without further detail -- satisfy the purpose of explaining police conduct" (citation omitted). Rosario, supra at 510. Here, the officers' testimony as to the victim's statements went well beyond that, and it was admitted without any limiting instruction. It thus risked serving primarily to "repeat the fact[s] of [the] complaint and thereby corroborate the complainant's accusations." Dargon, 457 Mass. at 399.
At oral argument the Commonwealth further suggested that parts of the officers' testimony about the victim's statements were independently admissible either as identification evidence or to provide a foundation for the admission of physical evidence. If by "identification evidence" the Commonwealth means evidence excluded from the definition of hearsay by Mass. G. Evid. § 801(d)(1)(C) (2022), we are not persuaded. In the challenged statements to the officers, the victim did not "identif[y] a person as someone [the victim] perceived earlier," Id., but merely provided a description of her assailant. Cf. McCoy, 456 Mass. at 847 (where detective was not first complaint witness, his testimony regarding victim's description of assailant was inadmissible under first complaint doctrine). As for laying a foundation, the Commonwealth fails to specify which of the victim's statements to the officers were necessary for that purpose, or why the statements were not inadmissible hearsay.
We nonetheless conclude that the admission of this testimony created no substantial risk of a miscarriage of justice, based on the factors identified in Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). See supra note 8. Defense counsel used the officers' testimony (anticipated or admitted) to attack the victim's credibility during his opening statement; on cross-examination of the victim; on cross-examination of the detective; and three times during his closing argument. See McCoy, 456 Mass. at 850-851 (no substantial risk of a miscarriage of justice where "[t]he main issue in [the] trial was the credibility of the victim, and the defense capitalized on inconsistencies in her testimony during the cross-examination") . Given the defense's strategic use of the officers' testimony, and in light of the strength of the Commonwealth's case, we do not have "a serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).
b. Victim's friend's testimony.
The defendant also argues that it was improper for the victim's friend to testify, without objection, that she learned "something had happened" to the victim. Unlike the police officers, however, the friend testified not to what the victim told her, but to what the first complaint witness told her. Although this might have given some minor boost to the victim's credibility -- by showing that the first complaint witness thought the complaint credible enough to warrant saying something to her friend -- the friend's testimony did not state that the victim herself had said anything to the first complaint witness. Nor did the friend convey any of the details of the victim's complaint. Any error in the admission of this testimony created no substantial risk of a miscarriage of justice.
4. Closing argument.
The defendant claims three errors in the prosecutor's closing argument. We consider them in turn.
a. Burden shifting.
First, the defendant argues that the prosecutor improperly shifted the burden of proof to the defendant by asking the jury a set of eleven rhetorical questions, of which the following are examples:
By one count, there were twelve such questions; the difference is not material.
"If this were a consensual encounter between two individuals, why would he pour Gatorade in her vagina? Why would he scrape out his semen? If this were consensual, why would he tell her not to leave until he is out of sight? Why would she stay in the park until she's sure that he's gone?"
The prosecutor then offered at least a partial answer to her own questions: "I suggest to you that he did all of those things so that he wouldn't get caught because he knew he had committed crimes." The defendant objected to the rhetorical questions, so we review to determine whether it was prejudicial error. See Commonwealth v. Garcia, 75 Mass.App.Ct. 901, 901 (2009). "That is, 'if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.'" Id., quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
"A prosecutor cannot comment on a defendant's failure to contradict testimony and cannot make statements that shift the burden of proof from the Commonwealth to the defendant." Commonwealth v. Nelson, 468 Mass. 1, 12 (2014), quoting Commonwealth v. Amirault, 404 Mass. 221, 240 (1989). Therefore, "rhetorical questions should not be used in closing argument where they could be perceived by the jury as shifting the Commonwealth's burden of proof to the defendant." Commonwealth v. Habarek, 402 Mass. 105, 111 (1988), S.C., 421 Mass. 1005 (1995). However, "[a] prosecutor is entitled to emphasize the strong points of the Commonwealth's case and the weaknesses of the defendant's case, even though [she] may, in so doing, prompt some collateral or passing reflection on the fact that the defendant declined to testify." Nelson, 468 Mass. at 12, quoting Commonwealth v. Feroli, 407 Mass. 405, 409 (1990) . To determine whether the prosecutor improperly shifted the burden of proof, we consider "whether the challenged remark[s], when viewed 'in the context of the entire argument,' [are] 'directed more at the general weakness of [the defendant's] defense than toward the defendant's own failure to testify.'" Id., quoting Commonwealth v. Storey, 378 Mass. 312, 324 (1979), cert, denied, 446 U.S. 995 (1980).
Here, viewed in the context of the entire argument, the prosecutor's rhetorical questions were aimed at undercutting the defendant's claim that the encounter with the victim was consensual. The prosecutor was not commenting on the defendant's failure to testify and answer the posed questions, but instead was arguing that there was only one plausible response to the questions: that their premise ("[i]f this were consensual") was inconsistent with the facts. Therefore, the questions did not improperly shift the burden of proof to the defendant.
b. Vouching.
Second, the defendant contends that the prosecutor improperly vouched for the victim's credibility by arguing the following:
"[The defendant] wanted to make sure [the victim] never knew his name. He didn't want the police to find out about this crime. He didn't want anyone to know but now we all do. We know that this man Eduardo Rodriguez is guilty. We ask you to find him guilty of all of the crimes with which he's charged. You know what he did. [The victim] knows
what he did, and he knew what he did, and that's why he spent so much time trying to hide it."
The defendant objected, so we review for prejudicial error. See Garcia, 75 Mass.App.Ct. at 901.
A prosecutor may not express "a personal belief in the credibility of a witness" or indicate that the prosecutor possesses "knowledge independent of the evidence before the jury." Commonwealth v. Wilson, 427 Mass. 336, 352 (1998) . Here, the prosecutor did neither of these things. Her repeated use of the term "we," although potentially an improper attempt to align the Commonwealth with the jury, see Commonwealth v. Burts, 68 Mass.App.Ct. 684, 688-689 (2007),[11] was a reference not to her own knowledge but to the knowledge of jury as well as others, such as the defendant, the victim, and the police. See Commonwealth v. Jenkins, 458 Mass. 791, 797 (2011).
c. Facts not in evidence.
Third, the defendant argues that the prosecutor relied on facts not in evidence when she argued that the defendant "had already scoped out the area" of the rape before he met the victim. The defendant did not object, so we review for whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Kozec, 399 Mass. 514, 518 n.8 (1987). Defense counsel's lack of objection is some indication that the prosecutor's comments were not unfairly prejudicial. See Commonwealth v. Toro, 395 Mass. 354, 360 (1985).
A closing argument should not misstate evidence or refer to facts not in evidence, see Kozec, 399 Mass. at 516, but it may urge fair inferences drawn from the evidence, see Commonwealth v. Hoffer, 375 Mass. 369, 378 (1978) . "An inference, if not forbidden by some rule of law, need only be reasonable and possible; it need not be necessary or inescapable." Commonwealth v. Beckett, 373 Mass. 329, 341 (1977).
Here, the argument that the defendant had scoped out the area was a reasonable inference based on the evidence. The GPS evidence showed that the defendant rode his bike to Carter Playground about ten minutes before he was with the victim, rode away from the playground until he encountered the victim, and then walked back to the playground with the victim. Although it was not the only possible explanation for the defendant's actions, the prosecutor's argument that the defendant scoped out the area before he met the victim was reasonable and possible, and therefore permissible. Thus, the prosecutor did not rely on facts not in evidence.
5. Commonwealth's discovery obligations.
Lastly, the defendant argues that the Commonwealth, after being ordered on the defendant's pretrial discovery motion to disclose any prior false claims of rape made by the victim, failed to fully discharge its obligation to search for such claims. Specifically, the defendant contends that because the victim, at the time of the rape, was in the process of moving from Somerville to Boston, the assistant district attorney should have made inquiry of the Somerville police -- not merely the Boston police and the district attorney's own records, as occurred here. Because the defendant failed to preserve this issue, we review for whether any error created a substantial risk of a miscarriage of justice.
The defendant acknowledges that the issue is "primarily important as guidance for the Superior Court in the event this case is retried"; he does not argue that the issue furnishes a basis for us to order a new trial. But we have concluded supra that none of the defendant's other claims of error requires a new trial. Moreover, the defendant has not briefed the issue sufficiently to persuade us that the district attorney for the Suffolk district was required to make inquiry of a police department located in another prosecutorial district and that had no apparent involvement in the investigation, evaluation, or prosecution of this case. Therefore, we see no need to address the issue further.
The defendant also argues that the prosecutor's suggestion that the defendant "knew the back corner back behind the bleachers had no means of egress," was not a reasonable inference because the Commonwealth did not claim to be able to pinpoint exactly where the defendant had been in Carter Playground, much less that he went to the "back corner back behind the bleachers." We think the GPS evidence, together with the victim's testimony about the area where the assault occurred and the photo of the area where the Gatorade bottle was found, allowed this inference. Further, even if making that point was error, it created no substantial risk of a miscarriage of justice.
Judgments affirmed.
The defendant's argument as to the scope of the prosecutor's obligations relies on Commonwealth v. Sullivan, 478 Mass. 369, 380 (2017), which in turn relies upon Commonwealth v. Martin, 427 Mass. 816, 823-824 (1998) . Martin, supra at 824, states that "[a] prosecutor's obligations extend to information in possession of a person who has participated in the investigation or evaluation of the case and has reported to the prosecutor's office concerning the case." See Commonwealth v. Pope, 489 Mass. 790, 798 (2022). Nothing in the record indicates that the Somerville police did so here.
[11] The defendant does not make any such argument on appeal.