Opinion
07-P-899
07-27-2015
COMMONWEALTH v. DAMIEN J. LAMB.
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
Following a trial in the Superior Court, the defendant was convicted of murder in the second degree, assault and battery by means of a dangerous weapon, assault and battery, and assault and battery to collect a loan. The defendant appealed from the convictions, and then filed a motion for a new trial. After the motion was denied, the defendant filed a series of motions, including an amended motion for new trial, seeking additional postconviction relief. Those motions were also ultimately unsuccessful. Before us is a consolidated appeal from the defendant's convictions and the order entered December 18, 2013, denying his motion for new trial. We affirm.
The motion judge was the same judge who presided over the defendant's trial.
1. Exclusion of character evidence. At trial, defense counsel attempted to introduce evidence that one of the Commonwealth's key witnesses, Steven Fish, had a reputation in the community for being untruthful. The prosecutor objected, and following a discussion at sidebar, the judge excluded the line of questioning for lack of foundation. Specifically, the judge found that defense counsel had failed to establish that the community in question was large enough to provide a reliable statement about the witness's reputation. Whether such testimony is admissible lies within the discretion of the trial judge. Commonwealth v. Arthur, 31 Mass. App. Ct. 178, 179 n.3 (1991).
The judge did not abuse his discretion where the community in this case involved too limited a group. See Commonwealth v. LaPierre, 10 Mass. App. Ct. 871, 871 (1980) (excluding reputation testimony on the basis that three coworkers was too small a group from which to obtain information); Commonwealth v. Phachansiri, 38 Mass. App. Ct. 100, 109 (1995) (ten to twelve adults deemed too limited a group for reputation testimony). Contrast Commonwealth v. Arthur, supra at 179-181 (reputation evidence should have been allowed where community consisted of fifty to sixty individuals). Moreover, the reputation evidence was cumulative of extensive other evidence that Fish lacked moral character and was untruthful. There was no error.
Defense counsel elicited evidence about Fish's numerous, inconsistent, and frequently changing police statements, as well as his lengthy criminal history, which included convictions of larceny and assault and battery by means of a dangerous weapon and a rape charge.
2. Rebuttal testimony. After the Commonwealth had rested its case, the defendant called several witnesses to testify on behalf of the defense. One of those witnesses was the defendant's girl friend, Jennifer Murray, who testified that the defendant was with her on the night that the murder occurred. After Murray's testimony, the defense rested. The judge then inquired if the Commonwealth intended to offer any rebuttal testimony. The prosecutor offered the testimony of John Carrington, who, based on a recorded jailhouse telephone conversation with the defendant, would rebut Murray's alibi evidence. In the recorded conversation, the defendant admits to fighting the victim at the scene of the crime, and notes that "[t]hey couldn't find [any evidence] on dad's vehicle, or anything else, where it should have been." The defendant objected, arguing that the conversation was not, in fact, rebuttal evidence, but rather an admission that should have been presented in the Commonwealth's case-in-chief. The judge agreed, but, after reflection concluded that it could be admitted "subject to the Court's discretion," as there was no undue surprise to the defendant regarding the nature and existence of the conversation.
The defendant stated, "Because, you know, you get into a fight and you don't know what you touch. I'm like, there's a possibility, but, I'm not thinking it's that strong."
The two go on to speculate about the presence and absence of other physical evidence, based on the state of the Commonwealth's case at that time.
A party who has rested his case-in-chief is entitled, as a matter of right, to present rebuttal evidence to "refute evidence of the other side." Drake v. Goodman, 386 Mass. 88, 92 (1982). See Mass. G. Evid. § 611(d) (2015). Even in cases where the party does not have a guaranteed right of rebuttal, a judge has substantial discretion to permit rebuttal testimony. See Drake v. Goodman, supra at 92; Commonwealth v. Howell, 49 Mass. App. Ct. 42, 50-51 (2000). "[T]he judge, as controller of the trial, has a nearly unreversible discretion to allow it." Commonwealth v. Johnson, 41 Mass. App. Ct. 81, 89 (1996), quoting from Commonwealth v. Guidry, 22 Mass. App. Ct. 907, 909 (1986).
We conclude that the jailhouse telephone recording was properly admitted rebuttal testimony, as a reasonable inference may be drawn from the defendant's statement that he was at the scene of the crime during the same time span that Murray testified he was with her. We agree with the judge that surprise was not an issue, as defense counsel was admittedly aware of the conversation, and the Commonwealth had limited information about the details of Murray's alibi testimony. Nor was there undue prejudice to the defense. On cross-examination, defense counsel effectively responded to the recording by eliciting testimony from Carrington that the two were merely discussing the allegations, the "pluses and minuses" of the Commonwealth's evidence, as they frequently did, based on information Carrington had learned reading the newspapers. Defense counsel also eloquently raised this point in his closing argument. Again, there was no error.
We may "affirm a ruling on grounds different from those relied on by the . . . judge if the correct or preferred basis for affirmance is supported by the record and the findings." Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).
During cross-examination Murray affirmed that she had told the police investigators that they would "have to wait until we go to court" to hear the details of her alibi testimony.
3. Delayed discovery. "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). The prejudice shown must be "material." Ibid., quoting from Commonwealth v. Hamilton, 426 Mass. 67, 70 (1997). A judge possesses considerable discretion in dealing with the issue during trial. See Mass.R.Crim.P. 14(c)(1) & (2), as appearing in 442 Mass. 1518 (2004); Commonwealth v. Baldwin, 385 Mass. 165, 177 (1982).
The trial in this case lasted just short of one month, with two key witnesses testifying that they had aided the defendant in his disposal of the victim's body. In the month prior to trial, and up to five days into the trial, the Commonwealth turned over thousands of pages of documents, and over one hundred hours of recorded telephone calls and interviews to defendant's counsel. The defendant argues that such a voluminous amount of discovery, turned over shortly before and during the trial itself, prevented his counsel from adequately preparing the case. The defendant presented this theory in his first motion for a new trial. Following the denial of that motion, the defendant filed a motion to reconsider and a motion for posttrial discovery of certain recorded telephone conversations that had not previously been turned over to the defense. The judge allowed the motion as to the posttrial discovery request only.
Although defense counsel knew these conversations existed, and had partial summaries and transcripts of them, they were not in possession of the complete recordings.
The defendant did not pursue the issue in further motions for postconviction relief.
Notwithstanding certain mitigating factors, we agree with the judge that the Commonwealth should have responded to discovery requests in a more timely manner. We also agree, however, that the delay did not materially prejudice the defendant. Early in the trial, the defendant filed a motion for a mistrial based on the prejudice caused by the late discovery. After conferring with counsel, and confirming that defense counsel was, in fact, prepared for the witnesses that day and did not need a continuance, the judge denied the motion. During the course of the rest of the trial, defense counsel did not move for a continuance or indicate that he was in any way unprepared. A careful review of the transcript also reveals that defense counsel's cross-examinations during trial were effective, and made use of many of the delayed discovery materials.
The police investigation was ongoing, as the victim's remains were never found. Many witnesses were also facing criminal charges of their own, and made multiple statements to police that evolved over time.
The defendant counters that, had he had the recorded conversations that were turned over posttrial, he could have placed the damaging Carrington testimony in context. Those conversations include many wherein the defendant discusses the Commonwealth's theories and analyzes the state of the evidence. As noted supra, however, defense counsel was able to make those same points in his cross-examination of Carrington and during his closing argument. The ability to use the additional conversations would have offered minimal help, at best. Without prejudice, a new trial is not warranted.
4. Closed courtroom. In an amended motion for a new trial, filed after the denial of his prior motions, the defendant newly alleges that the courtroom was closed to members of his family during jury selection, in violation of his constitutional right to a public trial. See Commonwealth v. Cohen (No. 1), 456 Mass. 94, 106 (2010). After an evidentiary hearing, the judge denied the motion, finding that the defendant's witnesses were not credible and that, based on his own recollections and the credible testimony of court officers employed during the trial, no closure had occurred. As we must defer to the judge's assessments of credibility, we discern no reason to disturb his decision. See Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
Moreover, the issue is waived as it was not raised by the defendant at trial or in his first motion for a new trial. See Commonwealth v. Wall, 469 Mass. 652, 672-673 (2014). Under those circumstances, we review to determine whether any court closure occurred and if so whether it created a substantial risk of a miscarriage of justice. Even assuming that the courtroom was partially closed, given the judge's findings we discern no such risk. See id. at 673, and cases cited.
Judgments affirmed.
Order entered December 18, 2013, denying motion for new trial affirmed.
By the Court (Meade, Hanlon & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 27, 2015.