Opinion
No. 15–P–1212.
11-22-2016
COMMONWEALTH v. Miguel Velasquez MENDOZA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Boston Municipal Court, the defendant was convicted of assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A(b ). On appeal, the defendant claims that the trial judge abused his discretion in certain evidentiary rulings, and erroneously admitted his confession. He also claims that the prosecutor's closing argument made use of improperly admitted evidence causing him prejudice. We affirm.
Background. We recite the relevant facts as the jury could have found them during trial. On January 4, 2014, the victim, Christopher Johnson, was in the Andrew Square station of the Massachusetts Bay Transportation Authority (MBTA) in South Boston waiting for a bus. The victim used a cane because he has cerebral palsy. Noticing a man about to sit on a bench that had bird droppings on it, the victim advised him not to sit on the bench. As the victim walked away, the man, later identified as the defendant, took the cane from the victim's hand and used it to hit the victim one time across the chest. The victim provided a statement and description of his assailant to the police. The police obtained a still photograph of the suspect from a surveillance video from the Andrew Square station taken on the date of the assault. On January 7, 2014, the police, acting on a tip, located the defendant at an address in Watertown. An officer showed the defendant the photograph from the surveillance video, and the defendant said that he was the person depicted in the photograph. After his arrest, the defendant was given Miranda warnings and then was interviewed by detectives. During that interview, which was audio and video recorded (recorded interview), the defendant admitted that he struck the victim with the cane. At trial, the victim made an in-court identification of the defendant as the man who had struck him with the cane.
Discussion. 1. Evidentiary rulings. The defendant claims that the trial judge erred in allowing the police to testify as to the details of a tip conveying his whereabouts. He also challenges the judge's allowance of limited testimony relating to the surveillance video and the still photograph of the suspect, both of which had been excluded from evidence. We review preserved evidentiary rulings for abuse of discretion, and if so found, whether the defendant was prejudiced. See Commonwealth v. Rosario, 460 Mass. 181, 193 (2011). A "judge's discretionary decision constitutes an abuse of discretion [when] ... the judge made ‘a clear error of judgment in weighing’ the factors relevant to the decision, see Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir.2008) (citation omitted), such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27 (2014).
At trial the Commonwealth attempted to introduce a surveillance video from the Andrew Square station for the date of the attack against the victim. As the prosecutor was unable to lay a proper foundation, the surveillance video was excluded. The trial judge also excluded from evidence a still photograph depicting the suspect that was obtained from that video. The photograph was excluded as a discovery sanction for the Commonwealth's late disclosure. Over the objection of the defendant, the prosecution requested that the police be allowed to testify that, after receiving a tip that the suspect in the Andrew Square station assault could be located in Watertown, the police went to Watertown, located the defendant, and showed him the still photograph, and that the defendant told the police he was the person depicted in the photograph. Ruling on the defendant's objections, the judge crafted a detailed order limiting the testimony by the police as to the surveillance video, still photograph, and tip. Even though the surveillance video and the still photograph were excluded, the judge ruled that the officers could testify that: a still photograph of someone matching the victim's description of his assailant had been taken from surveillance footage of Andrew Square Station on January 4, 2014; as a result of a tip, officers were able to locate the defendant; officers showed the defendant the photograph; and the defendant identified himself to police as the person in the photograph. The judge precluded the officers from testifying as to the content of the surveillance video itself. The defendant contends that the limited testimony was prejudicial in that it negated the effect of the judge's previous orders excluding the evidence. He also claims that the testimony included inadmissible hearsay regarding the specifics of the tip.
The failure to provide discovery pursuant to the automatic discovery rules "may result in application of any sanctions permitted for non-compliance with a court order under [Mass.R.Crim.P .] 14(c)." Mass.R.Crim.P. 14(a)(1)(C), as appearing in 442 Mass. 1520 (2004). Sanctions may include "a further order for discovery," "a continuance," or "such other order as [the court] deems just under the circumstances," Mass.R.Crim.P. 14(c)(1), as appearing in 442 Mass. 1525 (2004), including "exclu[sion of] evidence for noncompliance with a discovery order." Mass.R.Crim.P. 14(c)(2), as appearing in 442 Mass. 1526 (2004). Two principles govern rule 14's sanction provisions. "First, sanctions are remedial in nature. Second, sanctions should be tailored appropriately to cure any prejudice resulting from a party's noncompliance and to ensure a fair trial." Commonwealth v. Carney, 458 Mass. 418, 427 (2010). A judge possesses wide discretion in fashioning the scope of sanctions for discovery violations. Commonwealth v. Daly, 90 Mass.App. 48, 52 (2016).
Here the judge worked diligently to fashion an appropriate sanction to address the discovery violation by the Commonwealth and its inability to lay a proper foundation to admit the surveillance video. The judge limited police testimony about the circumstances that led them to find the defendant on January 7, 2014, and the specifics of the subsequent interaction between the defendant and police. We find no abuse of discretion in allowing that testimony. The scope of the sanction allowed the Commonwealth to elicit a narrative of events while avoiding potential issues presented by hearsay, identification, and items excluded from evidence.
Further, the judge made no error in allowing the hearsay testimony. Its purpose was to allow the police to explain how they came about encountering the defendant in Watertown and what ensued during that encounter. "The prosecution may introduce ‘carefully circumscribed extrajudicial statements in criminal trials to explain the state of police knowledge.’ " Commonwealth v. McLaughlin, 79 Mass.App.Ct. 670, 679 (2011), quoting from Commonwealth v. Rosario, 430 Mass. 505, 508 (1999).
Although portions of the hearsay evidence raised by the defendant on appeal were not objected to at trial, where we have found no error in admitting that evidence, there is no need to review for a substantial miscarriage of justice.
2. Confession. For the first time on appeal, the defendant contends that the judge erred in admitting his postarrest statement to the police in which he admitted striking the victim with the cane. Specifically the defendant argues that the judge erroneously found that he waived his Miranda rights. Because the defendant did not raise this claim at trial we consider it waived, and accordingly it will be reviewed to determine whether there was error, and if so, whether such error created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294–295 (2002).
Here, the defendant had filed a pretrial motion to suppress his statements in which he essentially claimed that he did not receive Miranda warnings prior to making his initial statements to police when he was first apprehended in Watertown. That motion addressed the "failure to mirandize the Defendant prior to being ‘interviewed’ by officers," and did not claim that the defendant did not waive his Miranda rights. "A pretrial motion shall state the grounds on which it is based and shall include ... all reasons, defenses, or objections then available, which shall be set forth with particularity.... Grounds not stated which reasonably could have been known at the time a motion is filed shall be deemed to have been waived." Mass.R.Crim.P. 13(a)(2), as appearing in 442 Mass. 1516 (2004). Further, an appellate court need not consider arguments regarding a motion to suppress that were not raised in the lower court. See Commonwealth v. Bettencourt, 447 Mass. 631, 633 (2006).
As to his statements made to police during a recorded interview after being transported to the station, at trial the defendant agreed to the admission of a redacted version of his recorded interview, stating that he agreed with the trial judge's findings that the defendant made a voluntary waiver of his Miranda rights. The trial judge's findings were based on his viewing of the recorded interview, wherein Miranda warnings were given in Spanish and the remainder of the interview conducted in English. Also, the defendant signed a Spanish-language Miranda waiver form that contained his consent to audio and video record the interview. On this record, we see no error.
Additionally, the defendant claims on appeal, as he did at trial, that the form containing his Miranda waiver and consent to record the interview was improperly admitted. We review the judge's ruling for abuse of discretion. See Rosario, 460 Mass. at 193.
"Generally, determinations as to the admissibility of evidence lie ‘within the sound discretion of the trial judge.’ " Commonwealth v. Bins, 465 Mass. 348, 364 (2013), quoting from Commonwealth v. Jones, 464 Mass. 16, 19–20 (2012). The defendant did not allege a deficiency in the content of the Miranda rights or that his waiver was invalid. His objection went to the authentication of the document, claiming that the witness, through whom the document was being offered, was not the one who had provided the Miranda rights to the defendant. The defendant also claimed that the Spanish-language Miranda waiver needed to be translated in English. Here, the untranslated form had no independent evidentiary value to the jury. The jury heard, without objection, testimony that the defendant received his Miranda rights, waived those rights, and agreed to speak with the police. There was no error in the admission of that form.
3. Remaining claims. To the extent we do not address the defendant's other arguments, relating to the police officers' identification of the defendant and the prosecutor's closing argument, they "have not been overlooked. [In light of our rulings,] [w]e find nothing in them that requires discussion." Department of Rev. v. Ryan R., 62 Mass.App.Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.