Opinion
18-P-8
04-05-2019
COMMONWEALTH v. DARREN LABILLIOS.
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
Darren Labillios appeals from his conviction of assault and battery by means of a dangerous weapon causing serious bodily injury. G. L. c. 265, § 15A (c) (i). The defendant contends that (1) hearsay was erroneously admitted in evidence as an excited utterance, (2) he was wrongly denied the right to confront and cross-examine the declarant after she invoked her right against self-incrimination, and (3) the Commonwealth failed to comply with its discovery obligations with respect to the hearsay evidence. He further claims error in the denial of his request for a missing witness instruction, and that his trial counsel was ineffective. We affirm.
Background. The charges in this case arose out of injuries sustained by the defendant's girlfriend during an incident in their home, where they lived with several others. The girlfriend invoked her rights under the Fifth Amendment to the United States Constitution and declined to testify at trial. The Commonwealth's case rested, in part, on a statement made by the girlfriend to their roommates. The defendant moved to exclude the statement on the grounds that it was hearsay, that he was denied his right to confrontation under the Sixth Amendment to the United States Constitution, and that the Commonwealth failed to make timely and complete disclosure.
The motion judge conducted a pretrial voir dire of the roommate who heard the girlfriend's statement. During voir dire, which took place five days before trial, the roommate testified that he heard a commotion, yelling, and crying in an upstairs bedroom. The girlfriend, badly bleeding from her head, came into the kitchen where her roommates had gathered. At roughly the same time, the defendant ran down the stairs and out the back door. The girlfriend was "crying . . . very upset, nervous . . . [and] shaking. She was very disturbed." After entering the kitchen, she said "pretty much right away" that the defendant "tried to kill her." No one called the police, but the roommates took her to the hospital. The motion judge ruled that "the statement qualifies as an excited utterance. As far as my responsibility as the gatekeeper, I am going to admit the excited utterance. Whether it's believable or not believable, that's a question for the fact-finder, for the jury."
The trial testimony varied from the testimony given at the voir dire hearing. When testifying at trial, the roommate stated that a second roommate had responded to the commotion in the defendant's bedroom and "was up there for a while; a few minutes" before the girlfriend came downstairs "a bloody mess" and crying. While still crying and "bleeding all over the place," the girlfriend said that the defendant "tried to kill her. 'He hit me in the head with a mug.'"
The following additional facts were also adduced at trial. The police interviewed the girlfriend and the roommate at the hospital, and later came to the home, where they found a shattered mug and blood in the upstairs bedroom where the incident took place. The roommate had given varying accounts of what the girlfriend had said in the kitchen; the parties stipulated that when the roommate spoke with a prosecutor prior to voir dire, he reported hearing the girlfriend say, "Look what he did to me." On another date, the roommate told a different prosecutor that the girlfriend said, "Look what Darren did to me."
Discussion. 1. Excited utterance. The motion judge admitted the girlfriend's statement over the defendant's objection. "Because the defendant objected to the statement at trial, we review for prejudicial error." Commonwealth v. Imbert, 479 Mass. 575, 579 (2018).
The evidence presented to the motion judge was that the girlfriend emerged from the room she shared with the defendant badly bleeding from her head, crying, shaking, and visibly upset as she stated, "Look what he did to me." See Commonwealth v. Imbert, 479 Mass. 575, 579-580 (2018), citing Commonwealth v. Mulgrave, 472 Mass. 170, 177 (2015) (circumstances attendant to statement considered).
A statement is admissible under the rules of evidence as an excited utterance "if [(1)] there [was] an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer, and [(2)] the declarant's statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought." Id., quoting Commonwealth v. Barbosa, 477 Mass. 658, 672 (2017). The defendant contends that the discrepancy between the witness's testimony at trial that the statement occurred "several minutes" after the incident, rather than "right away" (as the witness testified at voir dire) weighed against its admissibility. We review the motion judge's evidentiary ruling for an abuse of discretion. See Barbosa, supra, quoting Commonwealth v. McLaughlin, 364 Mass. 211, 223 (1973) ("A [motion] judge's determination that an utterance meets the test of admissibility should be given deference and 'only in clear cases . . . of an improper exercise of discretion should [the judge's] ruling be revised'").
The ambit of the judge's broad discretion encompasses the judge's consideration of the length of time between the exciting event and the utterance, and whether the declarant, when making the statement, remained under the influence of the exciting event. See Commonwealth v. Simon, 456 Mass. 280, 295-296 (2010); Commonwealth v. Carter, 54 Mass. App. Ct. 629, 631 (2002). The motion judge determined that the declarant remained under the influence of the exciting event. See Barbosa, 477 Mass. at 672; Commonwealth v. King, 436 Mass. 252, 255 (2002). The difference of several minutes between the voir dire testimony and the trial testimony does not mean that the statement was not a spontaneous exclamation. See Imbert, 479 Mass. at 580, and cases cited. The motion judge's findings regarding the spontaneity of the utterance were adequately supported by the evidence; that is, the girlfriend was badly bleeding from her head, crying, and emotionally distressed as she spoke. See Barbosa, supra; Mulgrave, 472 Mass. 170, 177-179 (2015).
The defendant hypothesizes that the motion judge might not have admitted the excited utterance had the judge known that the statement was made several minutes after the exciting event rather than "right away." The temporal nexus between the statement and the exciting event that produced it is but one factor the judge was required to consider in making that threshold determination. See Barbosa, 477 Mass. at 672-673. The discrepancy was not great. Moreover, the discrepancy between the witness's testimony at trial and at the voir dire hearing impacts "the weight to be given the spontaneous utterance by the finder of fact, not . . . its admissibility." King, 436 Mass. at 256. The judge, in performance of his or her gatekeeping function, may not usurp the fact-finding function of the jury. Id. at 256-257. The evidence was properly admitted as an excited utterance.
2. Right of cross-examination. The defendant further claims that even if the testimony was admissible as an excited utterance, it was error for the trial judge to admit the evidence after the declarant invoked her right against self-incrimination, because her absence violated his right to cross-examine her. In his appellate brief the defendant does not, however, cite to any cases under the confrontation clause of the Sixth Amendment to the United States Constitution, or make any sustained appellate argument that the statements were testimonial under the confrontation clause. To the extent that the defendant attempted to raise the confrontation clause more explicitly at oral argument in this court, arguments made for the first time at oral argument are deemed waived. See Commonwealth v. Richardson, 479 Mass. 344, 357 n.17 (2018); Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1615 (2019). Finally, even if we were to consider the question, statements made to a friend or family member by a visibly distraught declarant in the immediate aftermath of an assault are generally not testimonial. See Commonwealth v. Linton, 456 Mass. 534, 549-550 (2010); Commonwealth v. Nesbitt, 452 Mass. 236, 244-246 (2008); Commonwealth v. Lao, 450 Mass. 215, 223-225 (2007); Commonwealth v. Gonsalves, 445 Mass. 1, 13 (2005); Mass. G. Evid. § 803(2) (2018).
The defendant does cite cases involving challenges to restrictions on cross-examination once a witness has testified. The declarant did not testify, and those cases are inapposite.
The defendant was represented by different counsel on the brief and at oral argument.
3. Delayed disclosure. The defendant contends that the trial judge abused her discretion by allowing the Commonwealth to introduce the excited utterance when the Commonwealth negligently waited until shortly before trial to disclose an incomplete version of the statement that was indispensable to the Commonwealth's case in chief. See Mass. R. Crim. P. 14, as appearing in 442 Mass. 1518 (2004). "A defendant seeking relief as a result of delayed disclosure has the burden of showing that he was prejudiced by the delay. In measuring prejudice, it is the consequences of the delay that matter, not the likely impact of the nondisclosed evidence. When confronted with the Commonwealth's failure to comply with its discovery obligations, a judge is afforded considerable discretion. Where there has been delayed disclosure but no evidence of bad faith, the question becomes whether the defendant had sufficient time to adjust to the disclosure in shaping and preparing his defense." (Citations and quotations omitted.) Commonwealth v. Lavin, 94 Mass. App. Ct. 353, 361 (2018). See Commonwealth v. Carter, 475 Mass. 512, 519 (2016). We review the judge's order "for abuse of discretion or other error of law." Commonwealth v. Carney, 458 Mass. 418, 425 (2010).
Rule 14 of the Massachusetts Rules of Criminal Procedure requires the Commonwealth to disclose exculpatory evidence at or prior to the pretrial conference, to certify that after making a reasonable inquiry all discovery is complete, and to promptly notify the defendant of subsequent material subject to disclosure. See Committee for Pub. Counsel Servs. v. Attorney Gen., 480 Mass. 700, 731-732 (2018); Mass. R. Crim. P. 14 (a) (1) (A) (iii) & (a) (3) & (a) (4), as amended, 444 Mass. 1501 (2005). To the extent that a party fails to comply with its discovery obligations, remedial sanctions may be imposed to cure prejudice and ensure a fair trial. See Carney, 458 Mass. at 427; Commonwealth v. Frith, 458 Mass. 434, 439-440 (2010); Mass. R. Crim. P. 14 (c).
There is no question that the statements made by the defendant's girlfriend to their roommate fell within the Commonwealth's discovery obligations. See Committee for Pub. Counsel Servs., 480 Mass. at 732, citing Commonwealth v. Hill, 432 Mass. 704, 715-716 (2000) ("impeachment evidence is exculpatory"). Nor is there a question that the disclosure of this evidence should have occurred in a timelier manner. Delay alone, however, does not constitute prejudice. See Commonwealth v. Molina, 454 Mass. 232, 236 (2009). The motion judge addressed the delay by conducting a voir dire hearing, at which defense counsel cross-examined the witness and the statement was fully disclosed under oath. The defendant did not request a continuance of the voir dire to investigate the witness or statement. Nor did he contend, following the voir dire, that he would be unable to prepare his cross-examination of the witness in the four days before trial. See Molina, supra at 236-237. The defendant was not forced to improvise at trial to counter surprise evidence due to the late disclosure. See id.; Commonwealth v. O'Neal, 93 Mass. App. Ct. 189, 198-199 (2018). The motion judge acted within the scope of her broad discretion by allowing the admission of the evidence following the voir dire and the defendant's representation that he had sufficient time to adapt to the disclosure in preparing and presenting his defense. See Lavin, 94 Mass. App. Ct. at 361; Mass. R. Crim. P. 14 (c).
Although the defendant claims negligence and recklessness on the part of the Commonwealth, he "does not rebut the Commonwealth's claim that the late disclosure was inadvertent." Commonwealth v. Stote, 433 Mass. 19, 23 (2000). That the witness expanded his statement between speaking with the prosecutor and testifying at voir dire does not establish wrongdoing by the prosecutor. See Commonwealth v. Lay, 63 Mass. App. Ct. 27, 31-32 (2005).
The defendant additionally contends that the Commonwealth's disclosure of the statement was so vague as to constitute a violation under Brady v. Maryland, 373 U.S. 83 (1963). The defendant's reliance on Brady is "not apt, as this is not a case where the evidence remained undisclosed until after trial." Molina, 454 Mass. at 237. See United States v. Agurs, 427 U.S. 97, 103 (1976) (violation of Brady rule "involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense" [emphasis supplied]). The judge correctly viewed this case as one of delayed disclosure and not a violation of Brady.
4. "Missing witness" instruction. The defendant maintains that the judge erroneously denied his request for a "missing witness" instruction relating to the Commonwealth's failure to call as a witness a second roommate who also heard the ongoing assault and subsequent excited utterance. "We review a judge's decision to give or not give a missing witness instruction under the abuse of discretion standard." Commonwealth v. Williams, 450 Mass. 894, 901 (2008).
"A missing witness instruction is appropriate when a party 'has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case,' and the party, without explanation, fails to call the person as a witness." Commonwealth v. Saletino, 449 Mass. 657, 667 (2007), quoting Commonwealth v. Anderson, 411 Mass. 279, 280 (1991). The judge may also consider "'the physical availability of the witness, . . . the likelihood that he can be produced by summons or otherwise,' . . . whether the evidence could be produced from other sources[,] and whether the witness is equally available to either party, although 'there is no hard and fast rule' precluding the inference from the failure to call such a witness." Williams, 450 Mass. at 900, quoting Commonwealth v. Franklin, 366 Mass. 284, 293 (1974). Because the inference suggests that the noncalling party "has wilfully attempted to withhold or conceal significant evidence," it should be used with caution. Williams, supra at 900-901, quoting Commonwealth v. Schatvet, 23 Mass. App. Ct. 130, 134 (1986).
While "the degree of [the judge's] discretion is reduced when the missing witness instruction requested would be adverse to the Commonwealth, '[t]he absence of constitutional concerns underlying the call for caution . . . does not, of itself, remove the matter from the judge's discretion' [footnote omitted]." Saletino, 449 Mass. at 667, quoting Commonwealth v. Smith, 49 Mass. App. Ct. 827, 831-832 (2000).
Here, the testifying roommate stated that a second roommate also heard the assault and the excited utterance. The Commonwealth subpoenaed the second witness, who did not appear, reportedly because "he has to work. . . . [He has] another baby on the way and he said he just can't miss work." The testimony was cumulative, see Commonwealth v. Tripolone, 57 Mass. App. Ct. 901, 901 (2003), and "ordinary logic and experience[] furnish a plausible reason" for the witness's failure to appear. Schatvet, 23 Mass. App. Ct. at 135 n.11, quoting 2 Wigmore, Evidence § 290 (Chadbourn rev. 1979). The Commonwealth made reasonable efforts to secure his presence, and should not have been made to "suffer[] a jury inference that [it was] wrongly withholding damaging evidence." Id. at 136. Although the trial judge denied the defendant's request for a missing witness instruction, she allowed defense counsel to comment on the witness's absence in summation, an opportunity the defendant used to suggest that the missing witness, and not the defendant, was the culprit. See Williams, 450 Mass. at 901 n.4 ("a missing witness instruction is not required when counsel is permitted to ask the jury to draw an adverse inference from the failure to call an available witness"). The judge did not, therefore, abuse her discretion in denying the defendant's request for a missing witness instruction. See id.; Saletino, 449 Mass. at 667.
5. Ineffective assistance of counsel. The defendant claims that trial counsel was ineffective for failing to pursue a theory of self-defense by calling or properly summonsing witnesses who would have testified to his girlfriend's prior violent acts. To prevail on a claim of ineffective assistance of counsel, the defendant must show that the performance of counsel fell "'measurably below that which would be expected of an ordinary fallible lawyer,' and deprived him of 'an otherwise available, substantial ground of defence.'" Commonwealth v. Davis, 481 Mass. 210, 222 (2019), quoting Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974). Our review of this claim, raised in the defendant's direct appeal, is limited to what is contained in the trial record, and relief may be afforded only "when the factual basis of the claim appears indisputably on the trial record." Commonwealth v. Gorham, 472 Mass. 112, 116 n.4 (2015), quoting Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). See Davis, supra.
"The preferred method for raising claims of ineffective assistance of trial counsel is through a motion for a new trial." Davis, supra.
Viewed as a strategic or tactical decision, defense counsel's failure to introduce evidence of the girlfriend's prior acts was not manifestly unreasonable. See Gorham, 472 Mass. at 118 ("A strategic decision by an attorney constitutes error only if it was manifestly unreasonable when made"). Defense counsel moved in limine to admit evidence of the girlfriend's prior acts of violence to support the defendant's claim that she was the initial aggressor. See Commonwealth v. Adjutant, 443 Mass. 649, 660 (2005). Although the trial judge might have admitted the evidence -- and permitted the Commonwealth rebuttal with evidence of the defendant's own prior acts -- trial counsel conferred with the defendant, who declined to testify and develop the facts necessary to support the defense, and withdrew his motion to offer Adjutant evidence. "On this record, the defendant's claim of ineffective assistance is not indisputable." Davis, 481 Mass. at 223.
The defendant also contends that defense counsel was ineffective for failing to move to strike the excited utterance and stipulating to inconsistent statements made by the defendant's roommate. Defense counsel's stipulation to the witness's inconsistent statements, if anything, inured to the defendant's benefit, supporting his strategic or tactical decision to highlight the unreliability of the witness. And because, as addressed above, the testimony was properly admitted in evidence, counsel was not ineffective for declining to make a futile motion to strike it from the record. See Commonwealth v. Gambora, 457 Mass. 715, 731 n.24 (2010).
Judgment affirmed.
By the Court (Rubin, Sullivan & Neyman, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 5, 2019.