COMMONWEALTH v. FISHER (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial in the Superior Court, the defendant was convicted of two counts of unarmed robbery.² Subsequently, the Commonwealth disclosed to the defendant a CAD (computer-aided dispatch) sheet from the date of the robbery, an item that the defendant had specifically requested in pretrial discovery. The defendant then filed a motion for new trial based on the Commonwealth's failure to disclose exculpatory evidence. The motion judge, who was also the trial judge, denied the motion without a hearing, and the defendant appealed. We affirm.³

Discussion. “The trial judge upon motion in writing may grant a new trial at any time if it appears that justice may not have been done.” Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). A judge has discretion to rule on a motion for new trial without an additional hearing “if no substantial issue is raised by the motion or affidavits.” Mass. R. Crim. P. 30 (c) (3). The decision to deny a motion for new trial rests within the sound discretion of the trial judge and will not be disturbed unless it is manifestly unjust or the trial was infected with prejudicial constitutional error. Commonwealth v. Imbert, 479 Mass. 575, 581 (2018). Further, special deference is accorded when the motion judge was also the trial judge. Commonwealth v. Forte, 469 Mass. 469, 488 (2014).

Where the basis for the new trial motion is the Commonwealth's failure to disclose exculpatory evidence, the defendant must establish that the evidence was, in fact, exculpatory and that he was prejudiced as a result of the Commonwealth's failure to disclose it. See Commonwealth v. Sullivan, 478 Mass. 369, 380 (2017). Because the defendant had made a specific request for the CAD sheet, he need only demonstrate a substantial basis for claiming prejudice. See Imbert, 479 Mass. at 582. This burden can be met “with record support for the conclusion that the jury would have been influenced by the timely disclosure of the evidence,” or, in other words, that “there is a reasonable possibility that the nondisclosed evidence would have made a difference” (citations omitted). Id.

The defendant contends that the judge abused her discretion in determining that the CAD sheet was not exculpatory and that the Commonwealth's failure to disclose it did not prejudice him. Passing the question whether the CAD sheet constituted exculpatory evidence, we conclude that the defendant failed to establish the requisite prejudice.

The CAD sheet set forth 6:48 p.m. as the time that the 911 call was received, and 6:52 p.m. as the time that officers were dispatched and arrived at the scene.⁴ These were the same times provided by witnesses at trial. Defense counsel seized upon the testimony of one witness who indicated that the defendant had left the area of the robbery prior to 6:48 p.m., which allowed defense counsel to argue that the defendant could not have been the robber. On appeal, the defendant argues that, had he had the CAD sheet at the time of trial, he could have argued in a more forceful way that the robbery definitively occurred at 6:48 p.m., thereby definitively ruling out the defendant as the robber. The absence of the CAD sheet, he argues, prejudiced him in the sense that it allowed the Commonwealth to suggest that all the evidence of time in the case was approximate such that the defendant could not be excluded as the perpetrator.

Contrary to the defendant's claim, the CAD sheet did not provide a substantial basis for claiming prejudice in view of the other evidence of the defendant's guilt. See Imbert, 479 Mass. at 583 (judge must consider strength of case against defendant in determining whether there is substantial basis for prejudice); Commonwealth v. Laguer, 448 Mass. 585, 599 (2007) (considering “powerful evidence that connected the defendant to the crime” in determining whether Commonwealth's failure to disclose specifically requested discovery prejudiced him).

The evidence against the defendant was compelling. Although the defendant's face was partially covered by a bandana and hooded sweatshirt during the robbery, his eyes and nose were visible. One of the robbery victims testified that she recognized the robber as the defendant because he was her neighbor who lived down the street from her, that he had previously been paid by her father to do yard work for the family, and that she had seen him “about two days” before the robbery when she visited her father's office and he was working there. At that time, she had seen the defendant driving a car that was consistent with the car driven by the robber as captured on surveillance footage. She also recognized the robber's voice as that of the defendant, which was “very distinct” and “kind of raspy.” Her first instinct upon seeing the robber was to say, “Hi, Carl” (though she did not say it because he started repeating, “give me the money,” and said he had a gun). Immediately after the robbery, the other robbery victim reported it to 911, stating, “We are pretty sure his name is Carl Fisher.” Surveillance footage also showed the robber wearing clothes that were consistent with clothing later recovered from the defendant's house.

Under the circumstances, there was no reasonable possibility that the CAD sheet, setting forth the times of the 911 call, dispatch, and police response, would have made a difference. See Laguer, 448 Mass. at 594. As the defendant failed to establish that he was prejudiced by the nondisclosure of the CAD sheet, the judge properly denied his motion for new trial.

Judgments affirmed.

Order denying motion for new trial affirmed.

FOOTNOTES

2.   The indictments charged two counts of armed robbery while masked, but on each count the jury returned a guilty verdict on the lesser included offense of unarmed robbery.

3.   Also consolidated before us is the defendant's appeal from the judgments, but he makes no independent argument for reversal on direct appeal.

4.   The police incident report, which the defendant had received in pretrial discovery, also listed “approximately” 6:48 p.m. as the time of the 911 call and 6:52 p.m. as the time officers were dispatched and arrived at the scene.