Opinion
No. 14–P–1984.
07-05-2016
COMMONWEALTH v. Olupegede M. ODUSINA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the judgments after his convictions in the Dorchester Division of the Boston Municipal Court Department of assault and battery and larceny over $250, arguing that the trial judge erroneously denied his motions to exclude the victim's medical records and for a missing witness instruction. We affirm.
Background. Based upon the evidence at trial, the jury could have found the following facts. The victim and the defendant began dating around the summer of 2011. On January 4, 2013, a few days after the victim had ended the relationship, the defendant telephoned and asked the victim to meet him at the Emerald Lounge in Boston. They met for a brief time, and then the defendant left. Later, he telephoned the victim and asked to pick her up. He returned to the Emerald Lounge and the victim got into his car.
The defendant was angry with the victim. He ordered her to give him her cellular telephone, her credit cards, and her driver's license, but the victim refused and jumped out of the vehicle when the defendant stopped at a red light. The defendant chased the victim and brought her back to the car, where he slapped her in the face. The victim then gave the defendant her cellular telephone, her bank card, and her driver's license. The defendant continued to hit the victim as he drove her to his home.
When they arrived, the defendant pulled the victim into his apartment and continued to hit her in the face. He kicked her in the body with his shoes on, then he dragged her by her hands across the floor and into the bedroom. The defendant told the victim to take off her pants and she did, while the defendant continued to yell at and hit her. She pretended that she had to use the bathroom and the defendant followed her in, then hit her again. The victim was curled up naked on the floor when the defendant's roommate came home, whereupon the defendant calmed down and acted as if nothing was happening. The victim begged the defendant's roommate to take her home, and when she got there, she told her mother what had happened. The next day, she telephoned the police.
The defendant's trial took place in June of 2013. In April of that year, based upon the victim's testimony during the defendant's probation surrender hearing in an unrelated case, defense counsel moved for discovery of any medical records regarding treatment of the victim at Massachusetts Eye and Ear Infirmary. The trial judge ordered the Commonwealth to provide any such discovery to the defendant by May 23, 2013. On June 17, 2013, two days before the scheduled trial date, the Commonwealth reported that it had just learned that medical records existed. A judge other than the trial judge (motion judge) signed an order for production, and the records were provided to the defendant the next day. On the scheduled trial date, the Commonwealth requested a continuance in order to locate a witness. Over the defendant's objection, the motion judge granted a short continuance and asked defense counsel to pick a new trial date. Defense counsel selected June 25, 2013.
On that date, the defendant moved in limine to exclude the victim's medical records as a sanction for the Commonwealth's failure to obtain and to provide them earlier. Defense counsel argued that disclosure of the records one day before the scheduled trial date and seven days before the actual trial date prejudiced the defense because no experts were available to testify on such short notice. The Commonwealth noted in response that it was defense counsel who had chosen a new trial date within the week. The trial judge did not see any prejudice to the defense by not being able to have an expert testify that the medical records were inconsistent with the victim's account, stating that she did not “think [the defendant] need[ed] an expert to testify—to make that point to a jury of people who have lived life.” The trial judge offered the defendant a continuance, which he rejected, but she declined to exclude the records.
The defense at trial was that the assault never happened, and that the victim was seeking revenge for the defendant's infidelity. Defense counsel requested a missing witness instruction based upon the fact that the Commonwealth did not call the victim's mother as a witness, even though the victim testified that the mother was present and observed the victim's injuries when she returned from the defendant's apartment. The trial judge denied the request without comment and noted the defendant's objection.
Discussion. The defendant's first claim, that the trial judge erroneously denied his request for a missing witness instruction, bears little discussion. Such an instruction “should be provided ‘only in clear cases, and with caution.’ “ Commonwealth v. Saletino, 449 Mass. 657, 668 (2007), quoting from Commonwealth v.. Figueroa, 413 Mass. 193, 199 (1992), S.C., 422 Mass. 72 (1996). Here, the defendant offered nothing to demonstrate that the victim's mother was available and not hostile to the Commonwealth, or that her testimony regarding the victim's injuries and demeanor upon returning from the defendant's apartment would not have been cumulative of testimony from the police officer who took the victim's report the following day. Commonwealth v. Beltrandi, 89 Mass.App.Ct. 196, 202 n. 9 (2016). The Commonwealth could have concluded that testimony from the officer, to whom the victim was a stranger, would provide stronger corroboration of the victim's version of events than would testimony on the same subject from the victim's mother, whom the jury might assume to be biased. In such circumstances, “the jury should not be advised of the inference.” Commonwealth v. Anderson, 411 Mass. 279, 283 (1991). As defense counsel aptly noted while arguing against a continuance, “the Commonwealth [could] present [its] case with the alleged victim alone,” and we see nothing “manifestly unreasonable” in the judge's decision, Commonwealth v. Saletino, supra at 667.
Nor did the judge abuse her “considerable discretion” when she denied the defendant's motion to exclude the victim's medical records. Commonwealth v. Hamilton, 426 Mass. 67, 70 (1997). The judge's authority under Mass.R.Crim.P. 14, as appearing in 442 Mass. 1518 (2004), was “limited to orders that are remedial in nature, aimed at curing any prejudice caused by the violation of a discovery obligation and ensuring a fair trial,” Commonwealth v. Carney, 458 Mass. 418, 428 (2010), and we agree with her that the defendant failed “to show material prejudice” from his inability to call an expert who would testify that the victim's medical records reflect injuries that could have come from anywhere, Hamilton, supra. Such testimony certainly is “within the common knowledge or common experience” of the jury, and the defendant has not shown how “the testimony [would have] assist[ed] the trier of fact in determining” whether the victim's injuries resulted from actions she attributed to the defendant. Commonwealth v. Miranda, 441 Mass. 783, 793 (2004), quoting from Commonwealth v. Francis, 390 Mass. 89, 98 (1983). “It is an indication that prejudice was negated when the defendant's trial counsel stated that she was ready for trial after the [first] continuance” and when she declined the judge's offer of another, Hamilton, supra at 71, and we think that the judge “adequately handled the problem created by the prosecution's inadvertent late disclosure” of the medical records, Commonwealth v. Marrero, 436 Mass. 488, 497 (2002).
Judgments affirmed.