Opinion
13-P-1063
06-02-2015
COMMONWEALTH v. RUFINO RIVERA.
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
After a jury trial, the defendant was convicted of armed robbery and assault and battery by means of a dangerous weapon. He appeals, arguing that he was unfairly prejudiced when the judge did not exclude certain evidence that the Commonwealth disclosed only at the time of trial, thereby unfairly undermining his defense of inadequate police investigation. See Commonwealth v. Bowden, 379 Mass. 472 (1980). The Commonwealth concedes that the discovery was late, but asserts that the delay was "inadvertent, and not done in bad faith." We affirm.
Background. On June 4, 2012, on what was scheduled to be the first day of trial, the prosecutor told the judge that he had that morning received from Holyoke police officers eight photographs of the victim; he had not previously known that they existed. The prosecutor showed the photographs to defense counsel and promised copies. The defendant (and his codefendant) objected to the admission of the photographs, arguing that the late disclosure would undermine the planned defense of inadequate police investigation. The judge denied what he considered to be the defendant's oral motion in limine, reminding the defendant that he would have an opportunity to cross-examine the police officer about taking the photographs. For a number of reasons, the trial was then continued until the next day.
The next morning, the prosecutor told the judge that he had learned of a second item that had not been disclosed to the defendant -- an addendum to the police report by the investigating officer, Detective Kevin Whalen, indicating that Whalen had gone to the location of the robbery to determine if a nearby store surveillance system had captured the incident on video. The store manager told Whelan that the incident had not been captured on the store surveillance recording. After the jury was empaneled, the judge told defense counsel that he would give them "free leeway" to cross-examine the officers in support of a Bowden defense; however, he also stated that the prosecutor would be allowed to ask Whalen about investigating the video surveillance on redirect examination. The defendant, joining the codefendant, objected, but did not request a continuance; co-counsel had earlier objected to a continuance requested by the prosecutor to investigate further the circumstances of the late disclosure of the police report addendum.
On July 15, 2011, the defendant attacked the victim who was getting out of his car outside the C-Town market on Cabot Street in Chicopee. The defendant hit the victim on the back of the head and then held him at knife-point inside the car while the codefendant entered the car and stole the victim's wallet and cell phone. The investigating officer, Detective Whalen, did not go to C-Town market to inquire about the video surveillance until July 27, 2011, because he was on vacation between July 15 and 27. Whalen subsequently amended his initial, July 15 police report to include his actions on July 27; he did not read this portion of the police report during his grand jury testimony, as he had failed to print the amended report to include in the case file.
After empanelment, the prosecutor told the judge that there was a third piece of information not previously disclosed to the defendant regarding identification of the codefendant; the judge excluded that evidence, and that ruling is not part of this appeal.
At trial, the defendant cross-examined Whalen about the amended police report. Co-counsel cross-examined him about taking photographs of the victim's injuries, and the fact that the existence of those photos was not mentioned in the police report, nor were the pictures contained in the case file turned over to the District Attorney's office. Co-counsel also touched on the missing addendum to the initial police report, and the fact that the addendum was not included when Whelan read the police report to the grand jury.
Discussion. The prosecutor is required to disclose items of "mandatory discovery," including all relevant police reports and photographs, prior to the pretrial conference. See Mass.R.Crim.P. 14(a)(1)(A)(vii), as amended, 444 Mass. 1501 (2005). This requirement has the "full force and effect of a court order." Mass.R.Crim.P. 14(a)(1)(C). "When the Commonwealth fails to comply with its discovery mandate, 'the court may make a further order for discovery, grant a continuance, or enter such other order as it deems just under the circumstances." Commonwealth v. Felder, 455 Mass. 359, 367 (2009). Mass.R.Crim.P. 14(c)(1).
"Where there is delay in the disclosure of potentially exculpatory evidence that was part of a defendant's general discovery request, 'we ask whether the prosecution's disclosure was sufficiently timely to allow the defendant "to make effective use of the evidence in preparing and presenting his case."'" Commonwealth v. Molina, 454 Mass. 232, 236 (2009). "Absent a showing of bad faith . . ., we consider the primary issue of prejudice. In measuring prejudice, 'it is the consequences of the delay that matter, not the likely impact of the nondisclosed evidence.'" Commonwealth v. Almeida, 452 Mass. 601, 609-610 (2008), quoting from Commonwealth v. Stote, 433 Mass 19, 23 (2000). "Where a defendant is able to cross-examine a witness extensively, prejudice is 'effectively' removed." Molina, supra. at 237-238.
In this case, "[t]he defendant has not indicated how earlier disclosure of the [photographs and amended police report] would have enabled him to make more effective use of them." Almeida, supra. at 610. In fact, he refused an opportunity to have more time to prepare. It was then "for the jury to determine where the truth lies, for the weight and credibility of the evidence is wholly within their province." Commonwealth v. Angelo Todesca Corp., 446 Mass. 128, 133 (2006), quoting from Commonwealth v. Lao, 443 Mass. 770, 779 (2005).
We see no error.
Judgments affirmed.
By the Court (Katzmann, Hanlon & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 2, 2015.