COMMONWEALTH v. TODD JOHNSON (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Todd Johnson, was convicted by a Superior Court jury of armed and masked robbery, G. L. c. 265, § 17, and kidnapping, G. L. c. 265, § 26. The defendant appeals from his convictions and from the order denying his motion for a new trial. Because the defendant has failed to show prejudice resulting from the Commonwealth's delayed disclosure of a piece of evidence and because the prosecutor's opening statement and closing argument created no substantial risk of a miscarriage of justice, we affirm.

Background. On March 12, 2018, around 4 A.M., a man with a gun approached the general manager of a restaurant in the town of Seekonk (victim) as she was leaving the restaurant. The man was wearing a ski mask, dark clothing, and black sneakers with white soles. He put the gun to the victim's back and took her cell phone, a white Samsung J7 in a black case. The man forced the victim back into the restaurant and then, after she proved unable to open the restaurant's safe, he fled. The victim called 911, and police officers arrived shortly after and began tracking the man towards the neighboring city of East Providence.

In the search, the officers spotted someone under a car in a nearby car dealership lot. This person, the defendant, was wearing black sneakers with white soles and dark clothing but had no ski mask. Officers found a cell phone in the vicinity of the lot where the defendant was found; however, no officer photographed the cell phone where it lay. The cell phone was a white Samsung J7 but had no case.

After the officers took the defendant into custody, they brought the victim to his location, and she identified the defendant as her assailant. The victim also identified the cell phone, which was not turned on, as her cell phone. When officers returned to the area later in the morning, they found a cell phone battery under one of the tires of the car the defendant had been found underneath.

On the scheduled start date of the trial, the defendant moved in limine to exclude the cell phone as evidence, claiming there was inadequate evidence to link the cell phone to the victim.¹ In response, the prosecutor proposed, “we could easily charge up the phone, see if there's anything on that phone that would positively identify that as belonging to the alleged victim.” Asked by the judge if she objected to that proposal, trial counsel said doing so would be “more like a bootstrapping, a cart after the horse type of a thing” and requested a voir dire of the witness to determine whether the victim could identify the cell phone based solely on its appearance when police found it.

The next morning, the prosecutor informed the judge and counsel that police had inserted the battery, charged the cell phone, and discovered that its wallpaper ² was an image of the victim's husband and baby. The prosecutor further provided the victim's explanation for how she initially identified the cell phone, and trial counsel then waived a voir dire of the victim. The judge admitted the cell phone over trial counsel's objection. Trial counsel did not object specifically to the wallpaper.

At trial, the Commonwealth's case included, inter alia, the victim's testimony and surveillance video footage from the restaurant. The defendant testified; his testimony included his explanation that on March 12, 2018, he was found under the car because he had been attempting to steal a tire nearby.

The jury found the defendant guilty of both charges. The trial judge later denied the defendant's motion for a new trial. This consolidated appeal followed.

Discussion. 1. Motion for a new trial. The defendant argues that the judge erred in denying his motion for a new trial because (a) he was prejudiced by the late disclosure of the wallpaper and (b) trial counsel was ineffective because she neither requested a continuance when the prosecutor revealed the wallpaper nor objected to its admission. A motion for a new trial may be granted “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). “In reviewing the denial of a motion for a new trial, we ‘determine whether there has been a significant error of law or other abuse of discretion.’ ” Commonwealth v. Lora, 494 Mass. 235, 244 (2024), quoting Commonwealth v. Rodriguez-Nieves, 487 Mass. 171, 176 (2021).

a. Late discovery. As an initial matter, we assume without deciding that the timing of the wallpaper's disclosure constituted a discovery violation. Because the defendant no longer contends that the violation was committed in bad faith, the question on review is whether the delay in disclosure prejudiced the defendant. See Commonwealth v. Correia, 492 Mass. 220, 225 (2023). “In measuring prejudice, it is the consequences of the delay that matter, not the likely impact of the nondisclosed evidence ․” Id., quoting Commonwealth v. Nolin, 448 Mass. 207, 224 (2007). “Delay alone does not constitute prejudice.” Commonwealth v. Molina, 454 Mass. 232, 236 (2009).

We discern no prejudice resulting from the delay. Although the defendant argues that the disclosure of the wallpaper depicting the victim's husband and baby threw trial counsel's planned defense into disarray with little to no time to reformulate it to accommodate the new evidence, he has suggested no reformulation that would have proven more successful. Because the defendant has articulated no alternative, feasible trial strategy available but for the delay in disclosure of the wallpaper,³ he has failed to demonstrate prejudice stemming from the late disclosure. See Commonwealth v. Hardy, 431 Mass. 387, 392 (2000), S.C., 464 Mass. 660, cert. denied, 571 U.S. 903 (2013). Cf. Commonwealth v. Eneh, 76 Mass. App. Ct. 672, 679-682 (2010) (defendant demonstrated prejudice where, but for delayed disclosure, trial counsel could have avoided opening statement that impugned defendant's credibility).

b. Ineffective assistance. Assuming without deciding that trial counsel's conduct fell “measurably below that which might be expected from an ordinary fallible lawyer,” we ask whether counsel's performance “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). That is, we consider whether “better work might have accomplished something material for the defense.” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). The defendant argues that trial counsel could have requested a continuance, but he has not explained how obtaining a continuance would have furthered the defense. See id.

The defendant also argues that trial counsel could have moved to exclude the wallpaper. The trial judge, however, noted that he “was not at all likely to have granted a request to exclude evidence,” citing Commonwealth v. Gonzalez, 437 Mass. 276, 279-280 (2002), cert. denied, 538 U.S. 962 (2003). Where no prejudice stemming from the late disclosure has been shown (as we have discussed), we are not persuaded that such a denial would have been an abuse of discretion. See id. Cf. Commonwealth v. Lavin, 94 Mass. App. Ct. 353, 361 (2018) (noting that judge's exclusion of late-disclosed evidence was “thoughtful solution” where disclosure ultimately undermined opening statement as delivered). Given that the defendant has not suggested any other reason that moving to exclude the evidence of the wallpaper would have furthered the defense, see Commonwealth v. Lally, 473 Mass. 693, 703 n.10 (2016), he has failed to show that any shortcoming in trial counsel's performance prejudiced him, see Satterfield, 373 Mass. at 115 & n.10. The defendant's motion for a new trial was properly denied.

2. Prosecution's opening statement and closing argument. The defendant alleges that certain remarks made by the prosecutor in her opening statement and closing argument inappropriately identified the defendant as the assailant at the restaurant and that in her closing statement, the prosecutor misstated evidence and “injected her opinion of [the defendant's] credibility.” The defendant did not object to these remarks at trial, so to the extent that we discern error, our review is for a substantial risk of a miscarriage of justice. See Commonwealth v. Vazquez, 65 Mass. App. Ct. 305, 312 (2005).

In an opening statement, the prosecutor “is to outline in a general way the nature of the case which the counsel expects to be able to prove or support by evidence.” Commonwealth v. Davis, 487 Mass. 448, 468 (2021), quoting Commonwealth v. Sylvia, 456 Mass. 182, 188 (2010). In a closing argument, “[t]he prosecutor is entitled to argue the evidence and fair inferences to be drawn therefrom.” Commonwealth v. Paradise, 405 Mass. 141, 152 (1989). We evaluate the prosecutor's opening statement and closing argument each in their entirety and in light of both the jury instructions and the evidence introduced at trial. See Commonwealth v. Kapaia, 490 Mass. 787, 794, 801 (2022).

The defendant relies on Davis, 487 Mass. 448, to assert that the prosecutor improperly identified the defendant based on surveillance video footage. But, unlike in Davis, the prosecutor did not urge the jury to identify the defendant through the video footage; rather, we interpret her comments as urging the jury to conclude that the video footage depicted the defendant's actions consistently with the victim's testimony. See id. at 467-469. In the context of the opening and closing, in which the prosecutor repeatedly referred to the assailant as “the defendant” based on the victim's testimony, the prosecutor's sparse usage of the same identifier when referring to the same assailant as seen in the video footage was not improper. See Commonwealth v. Gomez, 495 Mass. 688, 699 (2025) (“facts in evidence and the reasonable inferences drawn from those facts” are proper bases for closing argument).

The defendant also argues that the prosecutor's closing argument misstated certain facts and introduced an unsupported inference. In relevant part, the prosecutor (1) said that the defendant and the assailant had the “[s]ame body size,” “[s]ame clothing,” and “exact same sneakers”; (2) asked a rhetorical question about “the odds that a man who looks exactly like the perpetrator, wearing the exact same clothing,” in the vicinity of the victim's phone and its battery “happened to be at the wrong place at the wrong time”; and (3) suggested to the jury that “clearly the defendant ditched the mask during his pursuit.” “The prosecutor was entitled to offer a response to defense counsel's closing argument,” Commonwealth v. Bresilla, 470 Mass. 422, 438 (2015), and her remarks each serve to counter points made in trial counsel's closing argument. Indeed, in context of the entire closing, the challenged remarks were underpinned by details that established the similarity between the defendant's and the assailant's height and clothing. While hyperbolic, the prosecutor's comments were “the type of rhetorical flourish that the jury could put in perspective.” Commonwealth v. Jenkins, 458 Mass. 791, 798 (2011). See Commonwealth v. Brum, 492 Mass. 581, 602 (2023), quoting Commonwealth v. Lyons, 426 Mass. 466, 472 (1998) (in closing argument, “prosecutor may ․ make remarks that amount to ‘enthusiastic rhetoric, strong advocacy, and excusable hyperbole’ ”).

Lastly, the defendant challenges remarks from the prosecutor's closing argument concerning the credibility of the defendant's testimony: for example, that the defendant's explanation for the case “makes absolutely no sense and you should not believe a word of it.” Although the prosecutor could have made her point using more moderate rhetoric, “a prosecutor may argue that the defendant is not credible,” and we do not conclude that her remarks “amounted to improper personal comment on the defendant's credibility.” Commonwealth v. Ayoub, 77 Mass. App. Ct. 563, 567-568 (2010). The prosecutor's comments painted the defendant's explanation and the inferences required to support it as lacking common sense; she did not excoriate the defendant as a liar beyond the bounds of pointing out the weaknesses in his testimony. Contrast id. at 567 (prosecutor's comments that defendant's testimony was “very wild unbelievable story” and “preposterous” were not improper), with Commonwealth v. Niemic, 483 Mass. 571, 594 (2019) (prosecutor repeatedly stating his own opinion that defense witnesses “lied” was improper), and Commonwealth v. Fahey, 99 Mass. App. Ct. 304, 312-313 (2021) (prosecutor's remarks that “name-call[ed]” defendant and “excessively mock[ed]” defendant's case were improper).

Taken in full context -- especially given the judge's instructions that the lawyers’ arguments are not evidence, see Commonwealth v. Mattei, 90 Mass. App. Ct. 577, 584 (2016), and the lack of objection at trial, see Brum, 492 Mass. at 602 -- we conclude that the prosecutor's remarks in her opening statement and closing argument did not create a substantial risk of a miscarriage of justice.

Judgments affirmed.

Order denying motion for new trial affirmed.

FOOTNOTES

1.   We infer that up to that point, neither the prosecution nor defense counsel had seen the phone with its power on.

2.   At trial, the prosecutor referred to the image discovered as a “screensaver.”

3.   The defendant argued for the first time at oral argument that trial counsel could have considered seeking a plea deal. We need not address issues raised for the first time at oral argument, see Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019), but nonetheless note that there is no evidence in the record to suggest that a favorable plea offer was forthcoming from the Commonwealth.Additionally, to the extent that the defendant suggests that earlier disclosure of the wallpaper would have allowed trial counsel to object to its admission, such an objection would have been futile, as we discuss below.