Opinion
20-P-124
08-06-2021
COMMONWEALTH v. Joseph J. CLANCY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant's first trial, in June 2018, resulted in a mistrial. At a second jury trial, which commenced on March 28, 2019, the defendant was convicted of one count of assault and battery. The defendant argues that: (1) his right to a speedy trial was violated, (2) it was error to deny his motion to dismiss where the photographs of the victim taken by a victim-witness advocate were lost, and (3) his counsel was ineffective. We affirm.
Background. 1. The first trial. At the defendant's first trial, a Commonwealth witness referred to photographs taken by a victim-witness advocate. This was the first time the defense learned of the existence of such photographs. Prior to trial, the Commonwealth failed to disclose these photographs, or the facts of their existence and loss, to the defendant. At the defendant's request, based on the undisclosed photographs, the judge declared a mistrial on June 27, 2018. The defendant subsequently filed a motion to dismiss based on lost or destroyed evidence, which the judge denied on January 7, 2019. Eventually, the prosecution conceded that no later than November 9, 2017, over seven months before the first trial, the prosecutor knew that shortly after the incident, a victim-witness advocate employed by the District Attorney's Office had taken the undisclosed photographs of the victim.
Of course, the victim-witness advocate knew about the photographs when she took them and was subject to the prosecution's discovery obligations. See Mass. R. Crim. P. 14 (a) (1) (A), as amended, 444 Mass. 1501 (2005). It was incumbent on the prosecutor to obtain from the victim-witness advocate and disclose to the defense any discoverable material. See Commonwealth v. Bing Sial Liang, 434 Mass. 131, 136-137 & nn.8 & 10 (2001). Here, that included not only the photographs themselves but also the facts of their existence and loss.
2. Motion to dismiss. On March 20, 2019, the defendant moved to dismiss the charge against him on speedy trial grounds. The court deemed the motion, filed on the eve of the second trial, untimely and took no action.
3. The second trial. The defendant's second trial commenced on March 28, 2019, 609 days after the defendant's arraignment and 272 days after the declaration of a mistrial.
We recite the facts the jury could have found at the second trial. On May 27, 2017, the defendant, the victim's son, argued with the victim and bit her cheek. The defendant's sister called the police, who, upon arriving, interviewed the victim, the defendant, and the defendant's sister, and photographed the victim's face. That same day, and for three days after the incident, the victim also took photographs of her own face and other body parts. The photographs of the victim taken by the police and by the victim were admitted in evidence at trial. The jury found the defendant guilty, and the judge sentenced the defendant to two years in the house of correction.
Discussion. 1. Speedy trial. a. Rule 36. Generally, "a criminal defendant who is not brought to trial within one year of the date of arraignment is presumptively entitled to dismissal of the charges unless the Commonwealth justifies the delay." Commonwealth v. Dirico, 480 Mass. 491, 497 (2018), quoting Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). See Mass. R. Crim. P. 36 (b) (1) (C), as amended, 422 Mass. 1503 (1996). In the case of a retrial, "the trial shall commence within one year after the date the action occasioning the retrial becomes final." Mass. R. Crim. P. 36 (b) (1) (D), as amended, 422 Mass. 1503 (1996). This extended period applies here, as "for purposes of determining whether the statutory deadline has been met, the clock must restart after a mistrial." Commonwealth v. G.F., 479 Mass. 180, 194-195 (2018). See Rintala v. Commonwealth, 473 Mass. 1018, 1019 (2016).
Here, 326 days passed between the defendant's arraignment and first trial and only 274 days passed between the declaration of the mistrial and the defendant's second trial. Accordingly, the defendant has not made a prima facie showing that his speedy trial rights were infringed, and his motion to dismiss on these grounds was properly denied. See G.F., 479 Mass. at 194-195 ; Mass. R. Crim. P. 36 (b) (1) (C) & (D). We are not persuaded by the defendant's argument that, because the Commonwealth caused the mistrial, we should disregard the provisions of rule 36, which make no exceptions for fault.
In any event, under rule 36, those delays that "the defendant acquiesced in, was responsible for, or benefitted from" are excluded from the calculation of time. Commonwealth v. Denehy, 466 Mass. 723, 729 (2014), quoting Spaulding, 411 Mass. at 504. See Mass. R. Crim. P. 36 (b) (2), as amended, 422 Mass. 1503 (1996). In the defendant's case, there were at least 262 days of excludable delay -- leaving at most 338 includable days -- caused by the appointment of new counsel for the defendant, the defendant's motion for funds and motion to continue, trial rescheduling, and court congestion.
b. Constitutional speedy trial claim. The factors to consider in determining whether a defendant's constitutional speedy trial right has been denied are "the length of the delay, the reasons for the delay, the extent of the defendant's assertion of his right to a speedy trial, and the prejudice, if any, to the defendant." Commonwealth v. Edgerly, 390 Mass. 103, 104 (1983), quoting Barker v. Wingo, 407 U.S. 514, 530 (1972). In this case,
"the defendant's constitutional right [to a speedy trial] under the Barker v. Wingo analysis will be protected by considering the factors entitling the defendant to a dismissal under [ rule] 36 (c) ..., that is, if ‘(1) the conduct of the prosecuting attorney in bringing the defendant to trial has been unreasonably lacking in diligence and (2) this conduct on the part of the prosecuting attorney has resulted in prejudice to the defendant’ " (footnote omitted).
Commonwealth v. Lopez, 86 Mass. App. Ct. 100, 104 (2014), quoting Commonwealth v. Willis, 21 Mass. App. Ct. 963, 964 (1986). Here, while the Commonwealth should have timely produced the photographs taken by the victim-witness advocate, the scheduling of the defendant's trial and retrial were prompt, and the defendant does not argue that he was prejudiced by the scheduling of his retrial.
2. Lost photographs. "We will not disturb a judge's decision regarding the proper remedy for the loss of evidence absent a clear abuse of discretion." Commonwealth v. Meas, 467 Mass. 434, 448 (2014), quoting Commonwealth v. Carr, 464 Mass. 855, 870 (2013). For charges to be dismissed due to the loss or destruction of potentially exculpatory evidence, the defendant bears an initial burden to establish a "reasonable possibility, based on concrete evidence rather than a fertile imagination," Commonwealth v. Neal, 392 Mass. 1, 12 (1984), quoting State v. Michener, 25 Or. App. 523, 532 (1976), that the evidence would have been favorable to him and would have prompted a different conclusion from the jury. See Commonwealth v. Ferreira, 481 Mass. 641, 650 (2019).
The motion judge denied the defendant's motion to dismiss based on the lost photographs. We conclude that the defendant has not shown a "reasonable possibility, based on concrete evidence[,]" that the photographs would have been favorable to him, Neal, 392 Mass. at 12, that a third set of photographs would have differed from the photographs taken by the police shortly after the incident, or from photographs taken by the victim herself on the day of the incident and over the next three days. See Meas, 467 Mass. at 448 n.16 ("defense counsel offered only speculation in claiming that the lost [video] footage would have been exculpatory" where two of three video recordings preserved). Cf. Commonwealth v. Tucceri, 412 Mass. 401, 414 (1992) (finding nondisclosed photographs taken by police of defendant's moustache instead of just defendant's wife's testimony would have been "a real factor in the jury's deliberations" because victim and witnesses had testified that attacker was clean-shaven); Commonwealth v. Heath, 89 Mass. App. Ct. 328, 333-334 (2016) (defendant met initial burden that lost booking video was potentially exculpatory where he contended video would show that police officer attacked him rather than that he attacked officer). We discern no abuse of discretion in the judge's decision here.
The record does not establish the date the victim-witness advocate took photographs. In briefing before the motion judge, the Commonwealth presumes it was the day the victim obtained a restraining order, and that date is not identified. In its appellee brief, the Commonwealth states the date was one day after the last of the victim's photographs, which she took on the day of the incident and over the next three days.
3. Ineffective assistance of counsel. For a verdict to be set aside due to ineffective assistance of counsel, the behavior of counsel must have fallen "measurably below that which might be expected from an ordinary fallible lawyer" and "deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). However, strategic decisions are not grounds for an ineffective assistance claim unless the strategy was "manifestly unreasonable." Commonwealth v. McCormick, 48 Mass. App. Ct. 106, 108 (1999), quoting Commonwealth v. White, 266, 273 (1991). We address the defendant's arguments in turn.
The defendant argues that his counsel was ineffective because she vouched for Commonwealth witnesses. Our review of the transcript reveals that when counsel commented on the unbiased nature of the police testimony, she did so to make the argument that the police investigated inadequately and that their reports were not comprehensive. Counsel also credited some statements from the Commonwealth's other witnesses, but only where crediting the statements served to discredit the victim. See Saferian, 366 Mass. at 96 ; McCormick, 48 Mass. App. Ct. at 108-109. Moreover, the trial judge instructed the jury not to substitute the closing arguments for evidence and we presume that the jury followed those instructions. See Commonwealth v. Imbert, 479 Mass. 575, 587 (2018).
Second, the defendant argues counsel was ineffective because she failed to challenge the admissibility of the photographs taken by the victim. The record demonstrates that the defendant did move prior to the second trial to exclude the photographs taken by the victim and the motion was denied.
Third, as for not seeking a continuance to locate Sean Williams, Williams did not see the events in question. Moreover, any friction between the defendant and his sister was aired at trial.
Williams was the defendant's sister's husband and a capias issued for him the morning of the second trial.
Fourth, the defendant moved for the declaration of a mistrial after the first trial, therefore there were no grounds for a double jeopardy claim. See Commonwealth v. Taylor, 486 Mass. 469, 483 (2020), quoting Evans v. Michigan, 568 U.S. 313, 326 (2013) ("when a defendant persuades the court to declare a mistrial, jeopardy continues and retrial is generally allowed").
Fifth, defense counsel was not ineffective for not objecting when the victim testified that the defendant "is a violent person." In context, the victim's unsolicited statement was offered to explain why the victim's boyfriend failed to intervene in the assault. See Commonwealth v. Butler, 445 Mass. 568, 575 (2005). The prosecutor's reference to this statement in closing without this context was improper but did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Silanskas, 433 Mass. 678, 702 (2001). The central focus of the case was whether an adult child bit his own mother on the face. See Commonwealth v. Azar, 435 Mass. 675, 687 (2002), quoting Commonwealth v. LeFave, 430 Mass. 169, 174 (1999) (evaluation of error under substantial risk standard requires court to determine "if we have a serious doubt whether the result of the trial might have been different had the error not been made").
Sixth, the defendant argues that the prosecutor stated in closing without evidentiary support that "bite marks appear on people in different ways" and referred to the medical providers as experts. In reviewing these claims, we bear in mind that "[r]emarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). Prosecutors may ask jurors to rely on their life experience; the remark was not improper. Commonwealth v. Salazar, 481 Mass. 105, 117 (2018) ("It is well established that it is proper to ask a jury to rely on their common sense and life experience in assessing evidence and credibility"). The remark was a permissible response to defense counsel's argument that given the lack of teeth and puncture marks, the victim's injury could not be a bite mark. A prosecutor is entitled to respond to an argument made by the defense at closing. See Commonwealth v. Smith, 404 Mass. 1, 7 (1989). Statements regarding the diagnosis and treatment of the injury to the victim's face were properly before the jury as contained within hospital records. See G. L. c. 233, §§ 79, 79G.
Judgment affirmed.