Opinion
10-P-655
10-05-2011
COMMONWEALTH v. JOE SIMPSON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from his convictions of armed assault with intent to murder and use of a motor vehicle without authority, the defendant raises various claims of error. We discern no cause to disturb the judgments and address the defendant's various claims in turn.
The defendant raises no issues concerning his conviction of use of a motor vehicle without authority.
1. Alleged Rosario violation. As the motion judge correctly observed, the Rosario rule applies only to statements, and not to physical evidence. See Commonwealth v. Rosario, 422 Mass. 48, 56 (1996). As the Commonwealth further observes, a request for consent to search does not constitute 'interrogation,' and a suspect's grant of consent does not constitute a 'statement,' within the meaning of the Fifth Amendment to the United States Constitution. See, e.g., Commonwealth v. Costa, 65 Mass. App. Ct. 227, 233 & n.8 (2005). At oral argument counsel for the defendant acknowledged that the defendant's argument would require extending the Rosario rule to a setting in which it has not previously been applied; we decline the invitation.
2. Mistrial. The defendant acknowledges that the Commonwealth committed no discovery or other violation in its disclosure, midtrial, of newly discovered information concerning the victim's medical treatment at a New Hampshire hospital on two occasions following the assault. Faced with newly discovered evidence (resulting from the defendant's further investigation conducted on Friday, May 15, 2009, and over the ensuing weekend), the judge had discretion to fashion an appropriate response. See Commonwealth v. Lapka, 13 Mass. App. Ct. 24, 31 (1982). We discern no abuse of that discretion in the judge's denial of the defendant's motion for a mistrial, or in her determination to allow (a) the admission of the medical records in evidence, and (b) defense trial counsel to read to the jury a stipulation that (i) the victim had a history of 'hearing voices and seeing things that are not there,' and (ii) that history both preceded and followed the assault on July 22, 2005. We likewise discern no abuse of discretion in the judge's refusal to allow the defendant to recall the victim (who had left the Commonwealth by the time of the defendant's request) for purposes of further cross-examination concerning her psychiatric history. The defendant's claim of prejudice rests on the speculative assumption that further investigation of the victim's psychiatric history would have yielded information more helpful to the defense than the core information furnished by the records and the stipulation. The combination of the medical records and the stipulation permitted the defendant to make powerful use of the newly discovered information for impeachment purposes, and the defendant took full advantage of that opportunity in his closing. We note that the defendant remains free to bring a new trial motion, under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), and to conduct discovery incident thereto, if he wishes to develop further his contention that additional investigation of the newly discovered evidence would have yielded information helpful to the defense. See Commonwealth v. Delp, 41 Mass. App. Ct. 435, 441 (1996).
Relatedly, we think the judge was within her discretion to conclude that the type of further investigation, and expert analysis, suggested by the defendant would have made a midtrial continuance impractical; to be effective in achieving the defendant's stated objectives any such continuance would likely have required a continuance of longer duration than practicable with an already impaneled and seated jury, or at least the judge could reasonably so have believed.
Any such discovery into the victim's psychiatric records would, of course, be subject to a determination that the defendant is entitled to obtain them. See Commonwealth v. Dwyer, 448 Mass. 122, 145-147 (2006).
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3. Evidence of defendant's threats. There is no merit to the defendant's claim that the judge improperly allowed in evidence testimony and medical records concerning the defendant's threats against the arresting officer as the defendant was being transported to the hospital, for substantially the reasons explained by the Commonwealth in its brief at pages 35-37. As observed by the Commonwealth, it was within the judge's discretion to admit such evidence as relevant to the defendant's state of mind as the investigation of him progressed. We note as well that the judge gave a clear and contemporaneous instruction to the jury, limiting their consideration of the evidence to that purpose.
4. Closing argument. To the extent that the prosecutor's closing argument improperly assigned an approximate number to the blows struck to the victim's head, without evidence to support such an estimate, we consider the detail inconsequential, particularly in light of the judge's timely and specific curative instruction admonishing the jury to disregard it. See Commonwealth v. O'Connell, 432 Mass. 657, 659-660 & n.3 (2000). The remainder of the defendant's concerns, unpreserved by objection at trial, either do not constitute error or, if error, do not give rise to a substantial risk of a miscarriage of justice for substantially the reasons set forth in the Commonwealth's brief at pages 41-43.
5. Jury instructions. The defendant argues that the judge should have instructed the jury on the lesser included offense of armed assault with intent to kill. Such an instruction would have necessitated some evidence of reasonable provocation. Put simply, the evidence did not furnish any basis to support a theory of reasonable provocation; viewed in the light most favorable to the defendant, the evidence at most suggested occasional feeble efforts by the victim to resist the defendant's violent rage, but not actions constituting reasonable provocation. There was no error in the judge's refusal to give the instruction.
There was likewise no error in the judge's refusal to give a 'so-called Bowden (379 Mass. 472 [1980]) instruction,' Commonwealth v. Boateng, 438 Mass. 498, 507 (2003), on alleged inadequacies in the police investigation. As the Commonwealth observes, there is no requirement that a judge give an instruction on alleged deficiencies in the police investigative efforts; 'Bowden simply holds that a judge may not remove the issue from the jury's consideration.' Commonwealth v. O'Brien, 432 Mass. 578, 590 (2000). See Commonwealth v. Perez , 460 Mass. 683, 692 (2011). The defendant was free to advance a theory of inadequate police investigation during his closing, and he did so.
Judgments affirmed.
By the Court (Kafker, Green & Grainger, JJ.),