COMMONWEALTH v. ROSALES (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District Court jury convicted the defendant, Javier E. Rosales, of assault and battery on a family or household member, in violation of G. L. c. 265, § 13M (a). On appeal, the defendant argues that (1) the judge erred in allowing the Commonwealth to introduce evidence that had not been timely disclosed to the defendant, and (2) the prosecutor made improper remarks to the jury during closing argument. Concluding that the defendant has failed to show prejudice from the late disclosure, and that the prosecutor's remarks during closing were not error, we affirm.

Background. On August 17, 2019, the defendant and his wife, the victim, got into a physical fight after she told him she wanted a divorce. After the altercation, both parties went to the police station and gave conflicting accounts of what had occurred, each blaming the other party. The defendant gave his statement through a police officer acting as an interpreter, and the victim gave her statement to a different officer. Photographs were taken of the defendant's injuries. No report mentioned that any officer saw any injuries to the victim. Based on the interviews, the defendant was arrested and charged with assault and battery on a family or household member.

Discussion. 1. Late discovery. At trial, the Commonwealth called the police officer who acted as an interpreter to testify. On questioning of the prosecutor, the officer stated that he had seen “bruises on [the] arms” of the victim while she was at the police station giving her statement. Defense counsel objected to the testimony and asked to be heard at sidebar. Defense counsel informed the judge that “this is the first we're hearing about this observation of injuries by this officer.” The prosecutor confirmed that the information was not in any report. When asked by the judge when she first learned of the evidence, the prosecutor responded that she had heard it from the officer the previous day and that the officer had not told her about the bruises before that. During further discussion at sidebar, the prosecutor stated, “If you would prefer that to be stricken from evidence, that's fine.” Defense counsel made no comment on the prosecutor's suggestion. The judge allowed a recess so that defense counsel could assess what action he wanted the judge to take with respect to the newly-disclosed evidence. After the recess, defense counsel only asked that the judge rule on the objection. The judge stated:

“The officer who is serving as an interpreter, and he made an observation which could be categorized as inculpatory, and Defendant's learning about it during the trial. There's no indication, or there's been indication to the contrary it was never in any report or part of any formal statement․ Well, I can say I glean no hint from the witness or the Commonwealth that anything improper was done. It would have been I think ideal if the Commonwealth had notified Defendant of this evidence last night, but the discovery rules don't necessarily parallel what's ideal.”

The judge overruled the objection.

The defendant now argues that it was clear that the prosecutor knew of the surprise testimony because initially the officer was only listed as a rebuttal witness. He also argues that the judge erred in overruling the objection, and as a result he was prejudiced by the late discovery.

“[I]n cases involving the delayed disclosure of material evidence, the defendant is required to make some showing of prejudice.”² Commonwealth v. Donovan, 395 Mass. 20, 24 (1985). To be prejudicial, the defendant “must suffer prejudice caused by the consequences of the delay itself, not merely the impact of the substance of the disclosure.” Commonwealth v. Caracino, 33 Mass. App. Ct. 787, 793 (1993). Here, defense counsel did not request a continuance or additional time to prepare for cross-examination after the evidence was disclosed, nor has the defendant explained how any delay would have assisted in his defense. See Commonwealth v. Hamilton, 426 Mass. 67, 71 (1997). See also Commonwealth v. Lavin, 94 Mass. App. Ct. 353, 361 (2018) (“defendant seeking relief as a result of delayed disclosure has the burden of showing that he was prejudiced by the delay”). The defendant has also not suggested anything he would have done differently if he had known about the officer's testimony the night before.

Furthermore, defense counsel did not ask that the judge strike the testimony, an option proposed by the prosecutor, and he effectively cross-examined the officer about not including information about the bruises in a police report and not informing the Commonwealth of the bruises until just before trial. See Commonwealth v. Baldwin, 385 Mass. 165, 176 (1982). This cross-examination called into question the credibility of the interpreting officer, and was “effective in highlighting the discrepancies” of the officer's testimony. Id. “Thus, any error in allowing the testimony ․ was overcome by the benefits received in cross-examination, and [any] error in admitting this testimony did not prejudice the defendant's case.” Commonwealth v. McCoy, 456 Mass. 838, 852 (2010).

2. Statements in closing argument. During her closing argument, the prosecutor made two statements that the defendant challenges on appeal. The first statement the defendant objects to is “These photos are not reasonable doubt. What Defense counsel is doing, what the Defendant is doing is distraction because I have proved my case.” Because defense counsel objected to this statement at trial, we review for prejudicial error. Commonwealth v. Alemany, 488 Mass 499, 511 (2021).

The defendant argues that the prosecutor's statement was an improper expression of opinion. Remarks made during closing arguments are reviewed “in the context of the whole opening or closing, as well as the entire case.” Alemany, 488 Mass. at 511. A prosecutor may “argu[e] forcefully for a conviction based on ․ inferences that may reasonably be drawn from the evidence.” Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). Here, this is precisely what the prosecutor was doing. She was countering the defendant's argument about the photographs the officers took of his injuries, not improperly expressing an opinion.³ Thus, there was no error in overruling the objection.

The second challenged statement is “[the defendant] had ․ since August to [change his story]. He's listened to [the victim]. He doesn't have to testify.” Because the defendant did not object to this statement at trial, we review to determine whether there was an error that created a substantial risk of a miscarriage of justice. See Commonwealth v. AdonSoto, 475 Mass. 497, 504 (2016). Here, the prosecutor was pointing out the differences between the defendant's testimony at trial and his statement given in the police report.⁴ Reviewed in the context of the whole closing argument, Alemany, 488 Mass. at 511, there was no error.

Judgment affirmed.

FOOTNOTES

2.   Deciding as we do, we need not decide whether the prosecutor was obligated to inform defense counsel of this evidence. Certainly it would have been the better practice; as the judge noted the prosecutor should have informed defense counsel as soon as she learned that the officer would testify that he saw bruising on the victim. See Commonwealth v. Gilbert, 377 Mass. 887, 893 (1979).

3.   In response to the objection to this statement, the prosecutor stated: “It was just part of the argument there. It's criticizing their argument. It's already in. The photos weren't what they were represented to be and that was the use of the word distraction.”

4.   The prosecutor's statement in context was:“But what it comes down to, ladies and gentlemen, is what makes sense. What [the victim] told you makes sense. What the Defendant did, did not, because he's changing his story. He's changing his story from that day he went to the police station to now before you ladies and gentlemen. He has had his since August to do so. He's listened to [the victim]. He doesn't have to testify. It's my job to present this case and prove beyond a reasonable doubt, but I have, ladies and gentlemen.”