Opinion
10-P-1228
02-17-2012
COMMONWEALTH v. ALEKSANDR VAIDA.
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 November 9, 2007, after a jury trial, the defendant was convicted on one count of armed assault with intent to kill (a lesser included offense of the original charge of armed assault with intent to murder), G. L. c. 265, § 29, two counts of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b), two counts of armed assault in a dwelling, G. L. c. 265, § 18A, and one count of home invasion, G. L. c. 265, § 18C.
The convictions stem from an incident that occurred in Andover during the early morning hours of November 22, 2005, when the defendant climbed through the window of one victim's apartment and attacked her and a second victim with a knife. The defendant also inflicted a nonfatal wound to his own chest before he was taken into custody by responding police officers.
The defendant appeals the convictions and the denial of his motion for a new trial. The defendant argues (1) that his motion to suppress statements he made to the police on the day of the incident was improperly denied by the motion judge; (2) that his motion in limine to prevent the introduction of crime scene photographs was improperly denied by the trial judge; (3) that his motion for a new trial on the grounds that the Commonwealth had withheld exculpatory evidence was improperly denied; and (4) that the cumulative effect of the alleged errors deprived him of a fair trial as required by United States Constitution and the Massachusetts Declaration of Rights. We affirm the judgments.
Discussion. We review the denial of the motion to suppress under the familiar standard. 'We accept the motion judge's findings of fact absent clear error, acknowledging that the weight and credibility of testimony is for the judge hearing the motion, but we review independently the motion judge's ultimate findings and conclusions of law.' Commonwealth v. Pena, 69 Mass. App. Ct. 713, 717 (2007), citing Commonwealth v. Clark, 65 Mass. App. Ct. 39, 43 (2005).
We conclude that the judge did not err in his finding that the defendant's clear waiver of his Miranda rights and his subsequent statements to police were voluntarily, knowingly, and intelligently made. See Commonwealth v. Martinez, 458 Mass. 684, 691 (2011), citing Commonwealth v. Mello, 420 Mass. 375, 383 (1995). 'In determining whether a waiver was made voluntarily, the court must examine the totality of the circumstances surrounding the making of the waiver.' Commonwealth v. Edwards, 420 Mass. 666, 670 (1995), citing Commonwealth v. Medeiros, 395 Mass. 336, 345 (1985). We have reviewed the audio of the recorded statement the defendant gave from his hospital room, and conclude that the judge reasonably found that the defendant appeared calm, lucid, and oriented during his tape recorded interview, and that his manner of speech 'evidenced no apparent dulling of [his] cognitive abilities.' Further, the judge was within his discretion to credit Detective Robitaille's account of the defendant's affect and remarks during the unrecorded statement the defendant gave approximately two hours prior to the recorded one. Further, although special care must be taken to review the issue of voluntariness where the defendant claims to have been under the influence of drugs or alcohol, intoxication alone is insufficent to negate an otherwise voluntary, intelligent, and knowing act. Mello, 420 Mass. at 383. See also Commonwealth v. Liptak, 80 Mass. App. Ct. 76, 80-82 (2011) (consumption of alcohol and administration of pain medication did not render involuntary statements made to police following a motor vehicle accident, where evidence presented at a suppression hearing supported the motion judge's findings that the defendant was nevertheless alert, coherent, and understood questions posed to him). The judge properly applied these principles to his decision.
Miranda v. Arizona, 384 U.S. 436 (1966).
We conclude that the judge properly found that the time period for prompt arraignment was tolled by the defendant's self-inflicted injuries and the time required for his resulting necessary medical treatment. Commonwealth v. Rosario, 422 Mass. 48, 56-57 (1996). See also Commonwealth v. Siny Van Tran, 460 Mass. 535, 560-563 (2011). Additionally, for substantially the reasons stated in the Commonwealth's brief at pages 33-38, the judge properly found that no intentional deprivation of the defendant's rights occurred when he was not offered a telephone call from the hospital room in which the interview took place, where the defendant did not establish that there was a telephone in the room available for his use. See Commonwealth v. Jackson, 447 Mass. 603, 615 (2006); Commonwealth v. Leahy, 445 Mass. 481, 489 (2005). The motion to suppress was properly denied.
We conclude that the trial judge was within his discretion to admit in evidence the twenty-five photographs of the crime scene and the injured victims. That 'photographs may be gruesome or have an inflammatory effect on the jury does not render them inadmissible so long as they possess evidentiary value on a material matter.' Commonwealth v. Olsen, 452 Mass. 284, 294 (2008). Here the photos were relevant, inter alia, to the victims' account of what occurred at the apartment, and we discern no abuse of discretion, prejudicial error, or substantial risk of a miscarriage of justice in their admission. The motion in limine was properly denied.
We further conclude that the defendant's motion for a new trial on the grounds that he was prejudiced by the prosecution's late disclosure of a crime scene video was properly denied. Here, although the prosecution improperly disclosed the tape after it had rested, the defense had not begun to present its case and had ample time to review the contents of the videotape or to request a continuance if it so desired. The judge was within his discretion to find that no prejudice resulted from the delay. See Commonwealth v. Molina, 454 Mass. 232, 236 (2009); Commonwealth v. Wilson, 381 Mass. 90, 114 (1980). The judge also did not abuse his discretion in finding that the defendant identified no convincing exculpatory aspect of the video in his motion for a new trial. If anything, the exclusion of the tape's 360-degree views of the bloodied walls of the apartment benefited the defendant.
Finally, the minimal effect of the late disclosure did not deprive the defendant of a fair trial as required by the United States Constitution and the Massachusetts Declaration of Rights. See Commonwealth v. Martinez, 431 Mass. 168, 179 (2000). Since there was ample time before the defendant presented its case to review the tape, which the judge correctly found had no convincing exculpatory value, and where additional time could have been requested, but was not, no undue prejudice or unfairness resulted.
Order denying motion for new trial affirmed.
Judgments affirmed.
By the Court (Berry, Trainor & Hanlon, JJ.),