By the Court (VUONO, SIKORA & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
At the conclusion of a jury-waived trial, a District Court judge found the defendant, William Alsina, guilty of assault and battery on a public employee in violation of G.L. c. 265, § 13D. The defendant contends (1) that the Commonwealth failed to comply with pretrial discovery orders in violation of due process; and (2) that there was insufficient evidence to support his conviction. For the following reasons, we affirm.
Background. The evidence permitted the judge to find the following facts. On August 30, 2009, Sergeant Brian Schwenk was working in the special management unit at the Old Colony Correctional Center in Bridgewater. At 7:00 A. M., Schwenk served the inmates breakfast. He used his key to open the food slot on the defendant's cell. He approached the slot at an angle, and placed the defendant's breakfast tray on the base of the slot. Thirty minutes later, he returned to retrieve the food tray. Schwenk stood three to four feet from the slot and opened it. As soon as he opened the slot, the defendant threw the tray out at Schwenk. It struck him in the knee. As a result of the contact, food spattered on his pants and boots. Schwenk locked the slot. He saw the defendant sitting on his bed, looking at him, and laughing. Schwenk radioed his supervisor to report the incident. Camera recordings operate in the special management unit. No evidence arose to indicate whether a videotape recording had captured this incident. Prior to trial, on June 28, 2010, a judge ordered the Commonwealth to comply with the automatic discovery provisions of Mass.R.Crim.P. 14(a)(1)(A)(vii), as amended, 444 Mass. 1501 (2005). Specifically, the judge ordered the Commonwealth to produce “video recordings (if any)” by August 2. On October 7, 2010, because the Commonwealth had not produced any recordings or responded to the June 28 order, the judge ordered the Commonwealth to produce any existent “video tapes” by October 15, 2010. The Commonwealth did not respond. Defense counsel made no objection or motion prior to trial.
On the morning of trial, as the judge awaited the arrival of the venire, he inquired, “All right. Any preliminary matters before we bring the jurors out?” Defense counsel reported only that the defendant might need additional time to change into his courtroom clothes. At the conclusion of the trial, the judge found the defendant guilty and sentenced him to two years in a house of correction. The defendant has timely appealed.
Analysis. The defendant argues (1) that the Commonwealth's failure to produce the alleged videotape recording was violative of his due process rights; and (2) that the judge committed an error when he denied the defendant's motion for a required finding of not guilty based on insufficiency of the evidence. In support of his insufficiency argument, the defendant also argues, for the first time on appeal, that in these circumstances a conviction of assault and battery required the Commonwealth to show that the defendant acted recklessly.
1. Commonwealth's failure to obey orders to produce videotape or otherwise respond to those orders.Massachusetts Rules of Criminal Procedure 14(a)(1) requires automatic production of evidence by the Commonwealth to the defendant. Additionally, due process requires that the Commonwealth “disclose to a defendant any material, exculpatory evidence in its possession or control.” Commonwealth v. Williams, 455 Mass. 706, 714 (2010), citing Brady v. Maryland, 373 U.S. 83, 87 (1963). Here, because the defendant did not (1) bring a pretrial motion to compel compliance with orders for discovery; (2) seek an independent subpoena under Mass.R.Crim.P. 17, 378 Mass. 885 (1979); or (3) bring the infraction to the attention of the judge when he inquired about preliminary matters, the defendant effectively waived his entitlement to discovery of any videotape recording of the incident. See Commonwealth v. Rivera, 429 Mass. 620, 623 (1999) (“[A] right that must be claimed is not denied if it is not claimed, and the proceeding in which the claim is not made is, in that respect, wholly free from error”), quoting from Commonwealth v. Amirault, 424 Mass. 618, 641 n.15 (1997).
.Rule 17(a)(1) allows a party to have a summons issued to a person to command production of books, papers, or other objects.
Nonetheless, we will examine the alleged error under the standard of “substantial risk of a miscarriage of justice.” Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). A substantial risk of a miscarriage of justice materializes upon “serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), quoting from Commonwealth v. Azar, 435 Mass. 675, 687 (2002). The evidence and the case are reviewed as a whole. Ibid. In determining whether an error has materially influenced a guilty finding, we consider: (i) the strength of the Commonwealth's case against the defendant without the incorrectly omitted evidence; (ii) the nature of the error; (iii) whether it is reasonable to conclude that the error materially influenced the verdict; and (iv) whether it can be inferred from the record that counsel's failure to object to the error was not a reasonable tactical decision. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999); Randolph, supra at 298.
The omission of the alleged videotape did not create any detectable substantial risk of a miscarriage of justice. The judge made no error when he proceeded with the trial after the attorneys represented that no preliminary matters required discussion. No evidence indicates that a videotape exists. If it did, we would be forced to speculate entirely about its contents. Therefore, we are unable to conclude that the absence of a putative videotape recording materially influenced the finding of guilt. Trial counsel's waiver leaves the question wholly conjectural.
In order for a defendant to succeed in proving that the Commonwealth failed to turn over exculpatory evidence, as required by Brady v. Maryland, 373 U.S. 83 (1963), he must show (i) that the evidence actually existed, (ii) that the evidence would have tended to exculpate him, and (iii) that the Commonwealth failed to disclose it upon proper request. Commonwealth v. Gilday, 367 Mass. 474, 487 (1975). Commonwealth v. Pisa, 372 Mass. 590, 595 (1977). Commonwealth v. Adams, 374 Mass. 722, 732–733 (1978). Here, the defendant has failed to prove the existence of the evidence, and left the exculpatory character of any evidence unknowable.
2. Sufficiency of the evidence. We examine the evidence “in [the] light most favorable to the prosecution” to determine whether “there was enough evidence that could have satisfied a rational trier of fact of each element [of the crime] beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979). Circumstantial evidence alone may be enough to meet this standard. Commonwealth v. Rojas, 388 Mass. 626, 629 (1983). See Commonwealth v. Platt, 440 Mass. 396, 401 (2003) (“A conviction may be based on circumstantial evidence alone, as long as that evidence is sufficient to find the defendant guilty beyond a reasonable doubt”). The appellate court must resolve all issues of credibility in favor of the Commonwealth. Commonwealth v. James, 424 Mass. 770, 785 (1997). On appeal, the court will not “weigh the supporting evidence [of guilt] against conflicting evidence [or] ... consider the credibility of the witnesses.” Commonwealth v. Semedo, 456 Mass. 1, 8 (2010).
In this case, the judge's assessment of Schwenk's credibility is decisive. Because Schwenk was the only witness, and his testimony was the only evidence introduced at trial, the judge necessarily found him credible. His testimony, once believed, satisfied the Latimore standard.
3. Reckless mentality. A conviction of assault and battery requires evidence of general intent or reckless disregard. Commonwealth v. Ford, 424 Mass. 709, 711 (1997) (“[A]n assault and battery is ‘the intentional and unjustified use of force upon the person of another, however slight’ ”), quoting from Commonwealth v. Burno, 396 Mass. 622, 625 (1986) (assault and battery can be wanton or reckless act that causes injury to a person). In the case of wanton or reckless mentality, “the Commonwealth must prove an injury that interfered with the health or comfort of the victim. It need not have been permanent, but it must have been more than transient and trifling.” Burno, supra at 627.
The defendant argues, for the first time on appeal, that no rational trier of fact could find an assault under the intent formulation of the offense. Consequently, he contends that the Commonwealth must prove that an assault occurred under the reckless mentality theory, and that the Commonwealth must show “bodily injury sufficient to interfere with the victim's health or comfort.” However, the omission of that argument at trial bars its presentation on appeal. See Commonwealth v. Bettencourt, 447 Mass. 631, 633 (2006) (“It has long been our rule that we need not consider an argument that urges reversal of a trial court's ruling when that argument is raised for the first time on appeal”); Commonwealth v. Bibby, 35 Mass.App.Ct. 938, 942 (1993) (“We do not consider on appeal an issue which has not been put to the trial judge”).
If we view defense counsel's reference in closing argument as a submission of the “reckless mentality theory,” then the judge was entitled by the evidence of intent to reject it. The forceful projection of the tray and the defendant's laughing demeanor, as described by Schwenk, permitted the finding of intentional conduct.