COMMONWEALTH v. FELICI (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant, Mario Felici, was convicted of strangulation, assault and battery, and threatening to commit a crime. After a subsequent jury-waived trial, the defendant was also found guilty of being a habitual offender. The central issue on appeal is whether the judge erred in excluding late-disclosed evidence, and whether defense counsel rendered ineffective assistance in failing to timely disclose the proffered evidence.² We affirm.

Background. On October 12, 2016, Karen Emerson, the fifty-nine year old victim, contacted her friend, Bernice Felici (Bernice), to ask whether she would attend the adoration service that evening at the Christ King Church in Ludlow.³ During the telephone call, the victim could hear Bernice's son, the defendant, yelling in the background, “I hate you, Karen. You're a bitch.” The victim had met the defendant, had heard him speak on prior occasions, and recognized his voice. The victim hung up the telephone. She later called Bernice again, and heard the defendant state, “Ma, hang up that phone. Hang up the phone, Ma. Hang up.” The victim's husband, Thomas, overheard one of the telephone calls between the victim and Bernice, and heard the defendant state, “Karen, I hate you, and leave my mother alone.” Thomas had likewise met and spoken with the defendant, and was also familiar with his voice.

Thomas drove the victim to the church, but did not attend the service with her. While the victim prayed alone in the chapel, the defendant entered the room. He wore a gray hooded sweatshirt and jogging suit that the victim had seen him wear on prior occasions. Although the hood covered the defendant's head, part of his face including his eyes was visible. The defendant approached the victim from behind, choked her for several seconds, told her not to call his mother, and threatened to kill her if she called their home again. The defendant left the chapel, but returned within seconds, placed his hands around her neck again, choked her again, and struck her on the head.

After the defendant left the chapel a second time, the victim contacted the police. Officers arrived, and took a statement from the victim. The first officer to respond testified that the victim was distraught, frantic, crying, and that “her neck appeared to be red.” While officers spoke to her at the chapel, she identified the defendant as the assailant. A security video inside the chapel captured the entire incident. The video was admitted in evidence as an exhibit.⁴

Discussion. Investigator testimony. In the middle of trial, defense counsel advised that he intended to call an investigator, David Tetrault, to testify, inter alia, that after reviewing the police reports, the security video, and the church itself, he estimated that the person who committed the assault was approximately five feet six inches tall, while the defendant was five feet ten and one-half inches tall. The Commonwealth objected because the defendant had not provided such reciprocal discovery and had not notified the Commonwealth of the existence of this purported evidence. The judge asked defense counsel to explain the basis for the admission of such evidence. Following the defendant's proffer, the judge took a recess and then excluded the evidence. The judge ruled that the defense had failed to disclose the evidence, and that it was “fundamentally unfair to the Commonwealth to foist this at the 11th hour. It's essentially discovery ambush.”

We agree that the failure to disclose the proffered testimony constituted a discovery violation. See Mass. R. Crim. P. 14 (a) (1) (B), as amended, 444 Mass. 1501 (2005). “Trial judges possess wide discretion to determine appropriate sanctions for discovery violations.” Commonwealth v. Daly, 90 Mass. App. Ct. 48, 52 (2016). When faced with a discovery violation by a defendant, “it [is] incumbent on the judge to fashion an appropriate remedy.” Commonwealth v. Reynolds, 429 Mass. 388, 398 (1999). “The judge must balance enforcement of the discovery rules against the defendant's right to present a defense.” Daly, supra. A judge has discretion to exclude such testimony, but only after consideration of the following factors: “(1) the prevention of unfair surprise; (2) evidence of bad faith in violation of the discovery order; (3) prejudice to the other party caused by the admission of the late disclosed evidence; (4) the effectiveness of less severe sanctions, and (5) the materiality of the evidence to the case.” Id., citing Reynolds, supra. See Commonwealth v. Durning, 406 Mass. 485, 494-496 (1990).

Here, the judge found unfair surprise and prejudice to the Commonwealth. His comments regarding trial by “ambush” further suggest a finding of bad faith. We further note that defense counsel's proffer was neither clear nor persuasive. It was unclear whether the defense sought to introduce the evidence as expert testimony or lay opinion testimony. Moreover, defense counsel did not specify the manner in which the investigator took measurements or analyzed evidence. He also did not explain the basis for any of the investigator's calculations. On the record before us, the proffer was speculative and we cannot say that such evidence was material to the case.⁵

For similar reasons, we cannot say on this record that defense counsel rendered ineffective assistance. In view of the vague proffer, and the questionable admissibility of what appears to be a form of opinion evidence, we cannot determine, on this record, that the defendant was deprived “of an otherwise available, substantial ground of defense.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).⁶

The remaining issues raised by the defendant warrant limited discussion. At trial, the defendant sought to introduce evidence of the victim's reputation for lack of truthfulness. The voir dire testimony of the pastor of Christ King Church failed to establish the requisite bases for the introduction of such evidence. See generally Commonwealth v. LaPierre, 10 Mass. App. Ct. 871, 871 (1980). Contrast Commonwealth v. Arthur, 31 Mass. App. Ct. 178, 179 (1991). Accordingly, the judge did not abuse his discretion in declining to admit the proffered evidence.

Likewise, the defendant's claim that the Commonwealth's closing argument constituted “prosecutorial misconduct” is unavailing. The defendant did not object to this portion of the Commonwealth's closing argument, and we thus review to determine whether any alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

The defendant's argument focuses on the prosecutor's reference to testimony from the defendant's investigator and comments suggesting that the defendant was the only possible assailant. Even assuming, arguendo, that the prosecutor should not have made the challenged statements, including, for example, that the evidence “point[s] to only one person, one person, and one person alone: [the defendant],” the alleged errors did not create a substantial risk of a miscarriage of justice. Viewed in context of the entire closing argument, the evidence at trial, and the judge's instructions to the jury, the now-challenged references were not “sufficiently significant in the context of the trial to make plausible an inference that the [verdict] might have been otherwise but for the error.” Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986). See Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). The prosecutor's closing argument was grounded in the evidence presented at trial, the Commonwealth's case was strong, and the judge's clear and repeated instructions that closing arguments are not evidence, mitigated any risk of prejudice to the defendant.

Judgments affirmed.

FOOTNOTES

2.   We address additional issues raised by the defendant in the discussion, infra.

3.   The victim and Bernice Felici “used to be good friends,” and often attended the midnight adoration service together.

4.   This panel has viewed a copy of the video exhibit that was entered in evidence at trial. There is no dispute that the video depicts a violent attack upon the victim.

5.   The judge did not explicitly articulate why a less severe sanction would not have been effective. Although the judge's findings regarding trial by ambush and fundamental unfairness may tend to suggest that he implicitly made such a finding, the better approach is to specify the applicability and significance of each of the five “Durning factors” in the context of the particular case. See generally Durning, 406 Mass. at 494-496.

6.   “The preferred method for raising claims of ineffective assistance of trial counsel is through a motion for a new trial.” Commonwealth v. Davis, 481 Mass. 210, 222 (2019), citing Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). Here, the defendant raises his ineffective assistance arguments on direct appeal and not through a posttrial motion. “Relief may be afforded on such a claim ‘when the factual basis of the claim appears indisputably on the trial record.’ ” Commonwealth v. Gorham, 472 Mass. 112, 116 n.4 (2015), quoting Zinser, supra at 811. On the record before us, “the defendant's claim of ineffective assistance is not indisputable.” Davis, supra at 223. Without a motion for a new trial supported by an affidavit from trial counsel, we have no basis on which to assess the credibility and plausibility of his contentions, and we cannot discern the basis for admitting the proffered testimony.