Opinion
No. 15–P–654.
01-09-2017
COMMONWEALTH v. Jose R. LOPEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted Jose R. Lopez of armed assault with intent to murder Christopher Lopez (Christopher), armed assault with intent to kill Juan Damiron, two counts of assault and battery by means of a dangerous weapon, unlawful possession of a firearm, and unlawful possession of ammunition. On appeal, he claims: (1) a mistrial should have been declared when a key witness signed a plea and cooperation agreement during trial and, for the first time, identified the defendant as the shooter; (2) the judge erred in allowing a witness to identify the defendant from a surveillance video; (3) the evidence was insufficient on the charge of armed assault with intent to murder; and (4) the judge should have instructed the jury on the lesser included offense of armed assault with intent to kill. We affirm.
The defendant and Christopher Lopez are unrelated. We refer to Christopher by his first name to avoid confusion.
Background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979). On April 23, 2013, Damiron waited in his vehicle outside a housing complex at 415 Franklin Street in Springfield, while his companions, Christopher and Joaquin Diaz, entered the complex to engage in a drug transaction. Suddenly, Christopher ran from the complex pursued by a man armed with a silver handgun, who was later identified as the defendant. A firefight ensued with the defendant firing at Christopher and Damiron firing at the defendant from his position in the vehicle. The defendant returned fire at Damiron. Damiron was shot in the thigh, and Christopher sustained a wound when a bullet grazed his face and ear.
The police responded to the area and located Christopher and Damiron. After securing the scene, the police went to Baystate Medical Center (Baystate) where Damiron and Christopher were taken for treatment. The defendant was also at Baystate being treated for a gunshot wound to his leg. When the defendant was interviewed by the police, he said that while in the Franklin Street area, he was shot after he heard gun fire and began running.
The police located the handgun fired by Damiron and nine spent shell casings from the same gun. Several spent bullets, which were not fired from the gun used by Damiron, were recovered from the housing complex, Damiron's car, and Damiron's leg.
Discussion. 1. Motion for mistrial. On the first day of trial, during a recess in the direct examination of the Commonwealth's first witness, the prosecutor disclosed that the district attorney in a neighboring county had reached a plea and cooperation agreement with Damiron that morning. The prosecutor informed defense counsel that, contrary to Damiron's earlier statement, he now would identify the defendant as the shooter. The defendant moved to exclude the testimony, arguing unfair surprise. Following a voir dire of Damiron outside the presence of the jury, the defendant moved for a mistrial based on the Commonwealth's late disclosure of exculpatory evidence, specifically, Damiron's changed testimony and admission that he fired first. The judge allowed Damiron to testify, implicitly denying the motion for mistrial, reasoning that any "prejudice is eradicated" by the impeachment of Damiron based upon his plea and cooperation agreement and prior inconsistent statements. The defendant claims that denial of the motion for mistrial was error. We disagree.
In a case connected to the shooting of the defendant, Damiron faced charges of armed assault with intent to murder, assault and battery by means of a dangerous weapon, and firearms offenses. He also faced additional firearms and drug charges in a separate case.
We review the denial of a motion for mistrial for abuse of discretion. Commonwealth v. Lao, 460 Mass. 12, 19 (2011). "When the ground for ... exclusion of evidence involves late disclosure by the prosecution, without any showing of bad faith on its part (as is the case here), a defendant is required to show material prejudice from the disclosure before a new trial can be considered." Commonwealth v. Hamilton, 426 Mass. 67, 70 (1997). Here, there was no showing of bad faith in the late disclosure. The prosecutor disclosed the cooperation agreement and the anticipated change in the identification testimony as soon as he learned of it. The defendant does not suggest otherwise. Therefore, we consider whether the defendant has shown material prejudice from the late disclosure. See ibid.
Damiron's eyewitness identification was obviously damaging to the defendant's case. But "[t]he defendant must suffer prejudice caused by the consequences of the delay itself, not merely the impact of the substance of the disclosure." Commonwealth v. Caracino, 33 Mass.App.Ct. 787, 793 (1993). It is significant that the defendant did not request a continuance to further prepare for Damiron's testimony. See Commonwealth v. Emerson, 430 Mass. 378, 382 (1999), cert. denied, 529 U.S. 1030 (2000), quoting from Commonwealth v. Baldwin, 385 Mass. 165, 176–177 (1982) ("[D]efense counsel should, when faced with delayed disclosure situations, seek ‘additional time for investigative purposes' "). Indeed, defense counsel was well prepared to confront Damiron as a witness. He engaged in a thorough and forceful cross-examination, impeaching Damiron with the charges and sentences he faced, the benefit he hoped to receive as a result of the plea and cooperation agreement, his prior inconsistent statements regarding his ability to identify the shooter, and his drug use on the day that he was shot. It is difficult to imagine how the cross-examination would have changed had the disclosure been made sooner. See Commonwealth v. Pizzotti, 27 Mass.App.Ct. 376, 381 (1989) (late disclosure of photographs caused no prejudice when timely disclosure would not have altered trial tactics). Simply put, while we are mindful of the challenges presented to trial counsel when witnesses change their testimony at the eleventh hour, in this case, we are not persuaded that the late disclosure of Damiron's identification testimony caused material prejudice to the defendant. The judge did not abuse her discretion in denying the motion for mistrial.
The defendant's reliance on Commonwealth v. Vaughn, 32 Mass.App.Ct. 435 (1992), is misplaced. There the nondisclosure involved a last minute change in a police officer's description of the number of footprints at the crime scene, a fact which directly undercut the defendant's alibi defense. Id. at 439. It appeared that the prosecutor was aware of the new evidence, but failed to disclose it before eliciting the damaging testimony at trial. Id. at 440. This "sucker punch" and the materiality of the evidence distinguishes Vaughn from the case before us. Id. at 440 n. 5.
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2. Identification testimony. Video surveillance of the shooting was admitted as an exhibit at trial and played for the jury. Ana Alicea Santos, Diaz's mother and a resident of the housing complex where the shooting occurred, testified at trial and identified the defendant on the video. On appeal, the defendant challenges the admission of Santos's identification testimony. Because the issue was preserved by objection at trial, we review for prejudicial error. See Commonwealth v. Vacher, 469 Mass. 425, 441–442 (2014).
"The general rule is that a witness's opinion concerning the identity of a person depicted in a surveillance photograph is admissible if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury. Put another way, such testimony is admissible ... when the witness possesses sufficiently relevant familiarity with the defendant that the jury cannot also possess."
Id. at 441 (quotations and citations omitted). To determine whether a witness's identification testimony is admissible, we consider the following factors: "[1] the condition of the surveillance pictures, [2] the familiarity of the witness with the person's appearance at the time the picture was taken, and [3] whether the person was disguised or has since altered his appearance ." Commonwealth v. Pleas, 49 Mass.App.Ct. 321, 326 (2000).
First, we have viewed the recordings and they "are neither ‘so unmistakably clear or so hopelessly obscure that the witness is no better-suited than the jury to make the identification.’ " Id. at 325, quoting from United States v. Jackman, 48 F.3d 1, 5 (1st Cir.1995). Second, Santos testified that the defendant was her son's cousin and that she had known the defendant since he was a child, such that she immediately recognized him when she saw the recording. The defendant's argument that he and Santos had no ongoing relationship and that Santos had not seen him recently goes to the weight of the identification, not its admissibility. Third, the judge, who had reviewed the recording and observed the defendant in the court room, found that there had been a change in the defendant's appearance since the shooting, a conclusion deserving of deference. See Commonwealth v. Durand, 457 Mass. 574, 596 (2010). Considering all of these factors, we discern no error in the admission of Santos's identification of the defendant.
3. Sufficiency. The defendant claims that the evidence was insufficient for the jury to convict him of armed assault with intent to murder Christopher. We disagree. Armed assault with intent to murder requires proof of three elements beyond a reasonable doubt: (1) the defendant committed an assault, (2) the defendant was armed with a dangerous weapon, and (3) the defendant acted with "a specific intent to kill that equates with malice." Commonwealth v. Vick, 454 Mass. 418, 428 (2009). "Malice necessarily exists when specific intent to kill is proved and there is no evidence of justification, excuse, or mitigation." Ibid., quoting from Commonwealth v. Johnston, 446 Mass. 555, 558 (2006). Here, there was evidence that the defendant chased Christopher on foot, was armed with a gun, and fired at Christopher as he fled. There was also evidence that Christopher suffered a bullet wound to his face and ear. Whatever provocation might have occurred inside the apartment, it had subsided by the time Christopher fled and the defendant fired at him. Considering all of this evidence under the familiar Latimore standard, a rational juror could find beyond a reasonable doubt that by shooting at Christopher as he fled, the defendant committed an armed assault with intent to murder.
4. Jury instruction. The defendant requested that the judge instruct the jury on the lesser included offense of armed assault with intent to kill in connection with both the shots fired at Christopher, count one, and the shots fired at Damiron, count two. Armed assault with intent to kill is a lesser included offense of armed assault with intent to murder. Commonwealth v. Vick, supra at 428. Mitigation, "such as heat of passion induced by reasonable provocation, sudden combat, or excessive force in self-defense," reduces armed assault with intent to murder to the lesser included offense of armed assault with intent to kill. Id. at 429, quoting from Commonwealth v. Johnston, supra at 558.
As to count two, the prosecutor conceded that there was evidence of mitigation and agreed that an instruction on the lesser included offense should be given. As to count one, the shooting of Christopher, the judge stated:
"I didn't hear any evidence of mitigating circumstances with respect to Mr. Christopher Lopez. There was no evidence as to—who knows what happened in that apartment and all we have is the evidence consisting of this videotape with the defendant chasing somebody who has been identified as Christopher Lopez. So I am not going to instruct with respect to that."
We think this reasoning was sound, even viewing the evidence in the light most favorable to the defendant. See Commonwealth v. Acevedo, 446 Mass. 435, 442–443 (2006). The defendant's argument that Christopher was the first aggressor and that he fired shots at the defendant inside the apartment lacked evidentiary support. Moreover, as set forth above, even assuming provocation in the apartment, such mitigation does not justify chasing and shooting at Christopher as he fled. In short, because we agree that the evidence, even viewed in the light most favorable to the defendant, does not provide "a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offense," we discern no error. Commonwealth v. Porro, 458 Mass. 526, 536 (2010), quoting from Commonwealth v. Donlan, 436 Mass. 329, 335 (2002).
Judgments affirmed.