Opinion
18-P-229
04-29-2019
COMMONWEALTH v. KARL MAURICE.
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
On November 6, 2016, a jury convicted the defendant on one count of assault stemming from an altercation between the defendant and his girlfriend on the porch of his home in Arlington, which altercation was witnessed by two of the defendant's neighbors. The defendant moved for a new trial, arguing (1) that the Commonwealth failed to produce certain exculpatory evidence, (2) that trial counsel was ineffective for failing to thoroughly investigate the incident and thereon presenting a flawed misidentification defense, and (3) that the prosecutor committed misconduct in his opening and closing statements. The motion for new trial was denied without an evidentiary hearing, and the defendant now appeals the judgment and the order denying his motion for new trial. We affirm.
Background. We summarize the evidence presented at trial and relied upon in the motion for new trial. On the morning of February 7, 2016, Katie Bradley called the police to inform them that her sisters, Molly and Colleen Arnold (Arnold sisters), had witnessed an altercation between a man and a woman on the porch of 218 Broadway Street in Arlington. Within minutes police officers arrived at the scene and interviewed the Arnold sisters.
The officers then went to 218 Broadway and were let in by the defendant's father. Once inside Officer Michael Foley heard yelling and screaming coming from a nearby bedroom. There he discovered the defendant arguing with his girlfriend. The two were separated and interviewed by the responding officers. Officer Foley testified that the defendant told him that he and his girlfriend had been arguing over a lighter, and that the argument began on the porch and had moved inside. The defendant was arrested that day, and on February 9, 2016, a complaint issued charging the defendant with one count of assaulting a family or household member, one count of possession of a controlled substance, and one count of possession of a controlled substance with intent to distribute.
In his affidavit in support of the new trial motion, the defendant denies that he told officer Foley that his argument with the victim began "on the porch." The defendant did not testify at trial.
The controlled substance counts were dismissed prior to trial and the charge of assault and battery against a family or household member was amended to simple assault and battery.
A one-day trial took place on November 7, 2016. The Commonwealth called the Arnold sisters, as well as Officer Foley. The Arnold sisters testified that they were sitting in their car, on the street, when they heard a commotion on the porch of the home across the street, 218 Broadway. They testified that they observed a bearded black male, of average height and weight, repeatedly strike a woman with a closed fist, as many as ten or more times all over the upper half of her body and face. The man and woman thereafter went inside the house. One of the sisters stated that she recognized the man from the neighborhood and that he lived at 218 Broadway. Neither sister, however, identified the defendant as the perpetrator at trial.
The defendant's motion to preclude the Arnold sisters from identifying the defendant was allowed prior to trial. Although the sisters gave a detailed description of the man they saw on the porch, they did not identify him by name or otherwise make an in-court identification.
The defense relied entirely on a mistaken identification theory and called one witness, the defendant's mother, to establish that several other people who lived at 218 Broadway were there at the time of the incident. Neither the victim nor the defendant testified. The defendant was found guilty of assault and battery and sentenced to eighteen months in prison.
In July of 2017 the defendant filed motions for a new trial and for postconviction discovery. The defendant argued that the Commonwealth failed to turn over exculpatory evidence and that trial counsel was ineffective. As to the exculpatory evidence, the defendant raised three contentions: (1) that the Commonwealth failed to turn over two photographs that Officer Foley took of the victim on the day of the incident; (2) that the Commonwealth did not disclose that the Arnold sisters were shown the defendant's booking photo during an interview with police on the day of the incident, and (3) that the Commonwealth failed to disclose a police report indicating that Officer Foley had interviewed the victim on the day before the incident. The motion judge, who was also the trial judge, held a nonevidentiary hearing on October 20, 2017, and thereafter denied the motion.
Discussion. We review the denial of a motion for new trial for a "significant error of law or other abuse of discretion," Commonwealth v. DiBenedetto, 458 Mass. 657, 664 (2011), and will only disturb the decision where it is "manifestly unjust or the trial was infected with prejudicial constitutional error." Commonwealth v. Imbert, 479 Mass. 575, 581 (2018), quoting Commonwealth v. Jenkins, 458 Mass. 791, 803 (2011). Where, as here, the motion judge was also the trial judge, the decision to deny a new trial is afforded special deference. See Commonwealth v. Sullivan, 469 Mass. 340, 351 (2014).
1. Exculpatory evidence. The defendant asserts that three types of exculpatory evidence were not properly disclosed pretrial. We agree that the Commonwealth was required by rule 14 of the Massachusetts Rules of Criminal Procedure to turn over two of those pieces of evidence -- (1) the photographs of the victim's face, and (2) the fact that the Arnold sisters were shown the defendant's booking photo during a police interview. See Mass. R. Crim. P. 14 (a) (1) (A) (vii)-(viii), as amended, 444 Mass. 1501 (2005) ("The prosecution shall disclose to the defense . . . [m]aterial and relevant police reports, photographs, . . . [and] [a] summary of identification procedures"). Nevertheless, in order to merit a new trial the defendant must also show that he was prejudiced by the failed disclosure. See Commonwealth v. Watkins, 473 Mass. 222, 231 (2015). Where the evidence was not specifically requested pretrial, the defendant must demonstrate that the withheld material "would probably have been a real factor in the jury's deliberations." Id., quoting Commonwealth v. Murray, 461 Mass 10, 21 (2011). On review in this court, the question is whether the motion judge abused her discretion in denying the motion for new trial. See Imbert, 479 Mass at 581. We discern no such abuse of discretion.
The Commonwealth does not concede that the photograph showing occurred. The evidence that such a showing occurred consists entirely of an affidavit from the defendant's posttrial counsel. Nevertheless, because there is no finding on the matter we assume, for present purposes, that it occurred.
We note that neither party has cited a case that addresses what prejudice standard to apply where, as here, the undisclosed evidence was subject to mandatory discovery under rule 14, yet the defendant did not specifically request it. Where the undisclosed evidence was specifically requested, the defendant must show a "substantial basis for claiming prejudice." Imbert, 479 Mass. at 582, quoting Watkins, 473 Mass. at 231. We need not decide which standard applies here, however, because even under the standard applicable to "specifically requested" evidence, the motion judge did not abuse her discretion in denying the motion for new trial.
The photographs at issue were taken by police on the day of the incident and show the right side of the victim's face. The photos do not appear to show any bleeding, bruising, or serious injury, but do appear to show the victim crying and in distress. The defendant contends that the photos could have been used to undermine the Commonwealth's evidence that the defendant struck the victim multiple times, and could have been used to impeach Officer Foley. On the other hand, as the motion judge pointed out, the photos also lend support to the Commonwealth's case, because they show the victim in distress shortly after the alleged incident.
We agree that the photographs did not merit a new trial, because they would not have had a significant impact on the jury given the totality of the evidence of guilt. The defendant suggests that the photos undermine the testimony of the Arnold sisters regarding how the victim was struck. Even assuming this to be true, however, the photos cannot overcome the powerful evidence from multiple additional sources that showed that there was in fact an altercation on the porch between the defendant and the victim. Put another way, the Arnold sisters testified as eyewitnesses to the assault; this testimony was corroborated by Officer Foley, who was an eyewitness to the continuing argument only minutes thereafter, and by the defendant's own statement that the argument started on the porch. The question for the jury was whether an assault occurred; we agree that on the facts here the jury's answer to that question would not have been materially impacted had they been shown the photos. See Commonwealth v. Laguer, 448 Mass. 585, 599 (2007) (explaining that "powerful evidence [connecting] the defendant to the crime[] compels the conclusion that the missing evidence would not have influenced the jury").
In addition, we note that the verdict was predicated on a theory of assault by attempted battery -- a theory that did not require the defendant to have touched or physically harmed the victim. See Commonwealth v. Melton, 436 Mass. 291, 295 (2002) (describing elements of attempted battery.)
As to the undisclosed identification procedure, the defendant asserts that had trial counsel known that the Arnold sisters were shown the defendant's booking photograph on the day of the incident, counsel could have moved to limit the sisters' testimony, or could have used the evidence to undermine the sisters' description of the man they observed on the porch. Notably, however, in this case the Arnold sisters did not identify the defendant at trial, but instead gave a description of the assailant. See Imbert, 479 Mass. at 582 (no substantial basis for claiming prejudice in failed disclosure of pretrial photo lineup, where at trial witness only generally described shooter). Moreover, one of the sisters testified that she was familiar with the defendant from seeing him in the neighborhood, and that she knew he lived across the street at 218 Broadway. In those circumstances the photo showing was of marginal impeachment value, as the witness had an independent basis for describing the person she observed. Finally, and in any event, the marginal impeachment value of the undisclosed identification procedure, like the photos of the victim's face, was substantially outweighed by other "powerful evidence that connected the defendant to the crime." Laguer, 448 Mass. at 599.
We also reject the defendant's argument that he was prejudiced by the nondisclosure of a police report indicating that Officer Foley had interviewed the victim on the day before the incident. The report itself is not exculpatory; indeed, it is difficult to understand how it would have benefited the defense. In any event, the defendant argues that he could have used the report as evidence of bias to impeach Officer Foley, but undisclosed evidence that merely tends to impeach a witness does not ordinarily warrant a new trial. See Commonwealth v. Schand, 420 Mass. 783, 788-791 (1995) (new trial not warranted because undisclosed police reports were not exculpatory).
2. Ineffective assistance of counsel. Next, the defendant argues that trial counsel was ineffective for failing to interview the victim and to call her as a witness at trial, and for failing to uncover an alleged feud between the defendant's brother and the Arnold sisters. The motion judge did not address the ineffective assistance claim below and so we treat it as implicitly denied. See Commonwealth v. Dubois, 451 Mass. 20, 29 (2008). A new trial is warranted only where counsel's conduct falls "measurably below that which might be expected from an ordinary fallible lawyer," and where counsel's misstep "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Millien, 474 Mass. 417, 430 (2016), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). A defense is "substantial" where there is "serious doubt whether the jury verdict would have been the same had the defense been presented." Millien, supra at 432. We are not persuaded that the defendant was deprived of a substantial defense and see no abuse of discretion in the motion judge's denial.
The defendant has not provided an affidavit from the victim, and indeed there is no affidavit evidence stating that defense counsel did not interview her. Moreover, there is no evidence that had she testified, the victim would have testified favorably to the defense. As the motion judge noted, the victim was present in the court room on the first day of trial. Trial counsel's affidavit does not address why the victim was not called, and there is no basis for finding ineffective assistance as to this issue.
We also reject the defendant's argument that trial counsel failed to uncover an alleged feud between the defendant's brother and the family of the Arnold sisters, and thereby failed to fully develop the best theory of the case. This argument's premise appears to be that evidence of the feud could have been used to suggest that the Arnold sisters fabricated their testimony of the assault. Here, there was too much corroborating evidence indicating that an incident between the defendant and the victim in fact occurred on the porch of 218 Broadway, for trial counsel credibly to pursue such a theory. See Commonwealth v. Holliday, 450 Mass. 794, 811-812 (2008) (no ineffective assistance for failure to pursue third-party culprit defense where defendant admitted to being at scene and eyewitness identified defendant as shooter).
3. Opening and closing arguments. Finally, the defendant argues that he was prejudiced by the prosecutor's opening and closing statements. Again, we discern no error. The Commonwealth's assertion during opening statements that the witnesses would testify that they "saw [the defendant] striking [the victim]" was not improper, even though no specific identification was expected, or occurred, at trial. The Arnold sisters testified as eyewitnesses and gave a description of the assailant. The jury could have matched the description to the defendant. Prosecutors are permitted to state in their opening what they expect to prove. See Commonwealth v. Stegemann, 68 Mass. App. Ct. 292, 305 (2007). Moreover, there was no objection, and the jury were instructed that argument is not evidence.
The defendant also takes issue with the prosecutor's attempt to dismiss the defense's misidentification theory as a "sleight of hand" or a "magic trick." In summation a prosecutor may comment on particular aspects of the defendant's closing argument, such as attempts to confuse the jury, and may "address a particular point . . . as a sham . . . [although] he may not characterize the entire defense as such." Commonwealth v. Lewis, 465 Mass. 119, 130 (2013). See Commonwealth v. Cohen, 412 Mass. 375, 387-388 (1992). Given the evidence at trial, the prosecutor's characterizations were acceptable to highlight a missing link in the defendant's argument -- specifically, that witnesses saw someone assault a woman on the porch and that the defendant admitted to arguing on the porch, yet defense counsel argued the defendant was not the assailant.
The defendant also argues that an evidentiary hearing on his motion for new trial was warranted. We disagree. The decision to hold an evidentiary hearing is within the motion judge's discretion, and is unnecessary where the motion and affidavits do not raise an issue that requires fact finding to resolve. See Commonwealth v. Rebello, 450 Mass. 118, 130 (2007).
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Meade, Agnes & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 29, 2019.