COMMONWEALTH v. ROSADO SERRANO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of two counts of distributing a class B substance, G. L. c. 94C, § 32A (a), and one count of assault by means of a dangerous weapon, G. L. c. 265, § 15B (b).² In this, his direct appeal, the defendant argues that the judge erred in not giving his requested instruction regarding witnesses who had an agreement to cooperate with the government. We affirm.

The charges stemmed from two controlled drug purchases made by a cooperating informant from the defendant. The informant testified at trial. During the charge conference, the defendant requested the following proposed jury instruction:

“In this case you heard the testimony of Steven Jones and you heard that he provided assistance to the police pursuant to a cooperation agreement. You should examine that witness's testimony and evidence that he provided to other testifying witnesses in this case with particular care. In evaluating his credibility, along with all other factors I already mentioned, you may consider that agreement and any hopes that he may have had about receiving advantages from the Commonwealth. You must determine whether the witness's testimony ․ has been affected by his interest in the outcome of the case [and] any benefits that he has received or hopes to receive.”

The Commonwealth opposed the requested instruction, pointing out that -- although the informant was paid for his participation in the controlled purchases -- there was no agreement between the informant and the Commonwealth. The judge declined to give the requested instruction, noting the defendant's objection for the record.

The judge then instructed the jury, in pertinent part:

“In deciding whether to believe a witness and how much importance to give a witness's testimony, you must look at all the evidence, drawing on your common sense and your experience of life. Often it may not be what a witness says, but how he says it that might give you a clue whether or not to accept his version of an event as believable.

“You may consider a witness's appearance and demeanor on the witness stand, his frankness or lack of frankness in testifying, whether the testimony is reasonable or unreasonable, probable or improbable. You may take into account how good an opportunity he had to observe the facts about which he testifies, the degree of intelligence he shows, whether his memory seems accurate. You may also consider his motive for testifying, whether he displays any bias in testifying, and whether or not he has any interest in the outcome of the case.”

The defendant lodged no objection to the instructions after they were given.

Discussion. The defendant argues that the judge erred in declining to give his requested written instruction and that the error infringed on his rights to due process and a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. We note that the defendant did not raise these constitutional issues in the trial court. Nonetheless, he argues that these issues have been preserved for appellate review, and the Commonwealth does not argue waiver. For our purposes, therefore, we accept (but do not decide) that the issue has been properly preserved. “In general, our cases have held that if a party brings to the judge's attention a specific written request for instruction, and the judge denies the request or gives an instruction inconsistent with the requested one, we consider the issue preserved, and the party need not object a second time after the instructions are given. See, e.g., Commonwealth v. Prater, 431 Mass. 86, 97 (2000); Commonwealth v. James, 424 Mass. 770, 786 n.25 (1997); Commonwealth v. Biancardi, 421 Mass. 251, 253–254 (1995). See also Mass. R. Crim. P. 24 (b), 378 Mass. 895 (1979).” Commonwealth v. White, 452 Mass. 133, 138 (2008).

Viewed as a whole, the judge's instruction covered the essence of the defendant's proposed instruction with two notable exceptions. First, the judge did not refer to the informant as acting “pursuant to a cooperation agreement” with the police or that the informant may expect advantages as a result of that agreement or from the outcome of the case. Second, the judge did not instruct the jury to assess the informant's testimony with heightened care.

As to the first of these, the facts did not support giving the defendant's requested language. There was no evidence of a cooperation agreement between the informant and the police, nor had the informant been led to believe that he would receive any benefit in exchange for his testimony, or based on the outcome of the case.

As to the second, the “heightened care” instruction has been called for only in cases where the facts showed or suggested some kind of agreement relating to the informant's testimony. Here, as we have already noted, there was no such agreement and, therefore, this case stands in contrast with Commonwealth v. Miranda, 458 Mass. 100 (2010), cert. denied, 565 U.S. 1013 (2011), S.C., 484 Mass. 799, cert denied, ––– U.S. –––– (2020) (reward program), Commonwealth v. Luna, 410 Mass. 131 (1991) (finder's fee), and Commonwealth v. Hughes, 82 Mass. App. Ct. 21 (2012) (fee arrangement with government), upon which the defendant relies.

Finally, even were we to assume the defendant was entitled to the instruction he proposed, we discern no prejudice flowing from the difference between the instruction he sought and the one that was given. See Commonwealth v. Santiago, 485 Mass. 416, 429 (2020) (instructions are reviewed in their entirety and “over-all impact” on jury). The judge instructed the jury regarding the various factors they could consider in evaluating the informant's credibility, including his motivation for testifying and whether he had any interest in the outcome of the case. Moreover, the jury would have understood the judge's credibility instruction to relate to trial counsel's forceful and focused argument that the informant's testimony should be discredited given that he had been paid for his assistance in the controlled buys, and because the informant would expect some benefit regarding his unrelated open charges.

Judgments affirmed.

FOOTNOTES

2.   The jury acquitted the defendant of a second charge of assault by means of a dangerous weapon.