Commonwealth v. Lopez ( 2014 )

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13-P-750 Appeals Court
COMMONWEALTH vs. MIGUEL LOPEZ.
No. 13-P-750.
Hampden. February 6, 2014. - July 30, 2014.
Present: Cypher, Graham, & Carhart, JJ.
Rape. Assault and Battery. Constitutional Law, Speedy trial.
Evidence, Hospital record, Disclosure of evidence.
Practice, Criminal, Speedy trial, Discovery, Disclosure of
evidence.
Indictments found and returned in the Superior Court
Department on July 27, 2011.
A motion to dismiss was heard by C. Jeffrey Kinder, J., and
the cases were tried before Bertha D. Josephson, J.
David M. Skeels, Committee for Public Counsel Services, for
the defendant.
Deborah D. Ahlstrom, Assistant District Attorney, for the
Commonwealth.
CYPHER, J. The defendant, Miguel Lopez, was convicted by a
jury of rape, G. L. c. 265, § 22(b), and assault and battery,
G. L. c. 265, § 13A(a). He appeals, claiming (1) that he was
2
prejudiced by the lack of a speedy trial and (2) that the
Commonwealth failed to provide mandatory discovery. We affirm.
Background. On July 27, 2011, a Hampden County grand jury
returned indictments against the defendant on the underlying
charges. The defendant was arraigned on August 9, 2011, and
counsel was appointed. On November 15, 2012, the defendant
filed a motion to dismiss on speedy trial grounds, with a
supporting memorandum. After a hearing on the motion five days
later, the judge denied the motion.
A jury trial began on December 11, 2012, after which the
defendant was found guilty on both charges. On December 19,
2012, the defendant was sentenced on the rape conviction to a
term of not more than ten years, and not less than nine years,
to be served at the Massachusetts Correctional Institution at
Cedar Junction. On the assault and battery conviction, the
defendant was sentenced to the Hampden County house of
correction for two and one-half years, the sentence to run
concurrently with the sentence to be served on the rape
conviction.
Facts. A jury could have found the following facts. On
July 11, 2010, the victim, Valerie, 1 was living in an apartment
with her stepdaughter. The defendant lived upstairs in the same
1
A pseudonym.
3
apartment building with his wife, who was out of town at the
time. Valerie knew the defendant because he was a good friend
of Valerie's former boyfriend, Frank, 2 who had recently ended
their relationship. Valerie was also a friend of the
defendant's wife.
At 6:00 A.M. on the morning of July 11, 2010, Valerie
received a telephone call from the defendant, who told Valerie
that Frank had called the defendant and requested that he
retrieve Frank's dog. Valerie told the defendant to have Frank
call her directly, but the defendant told her that he had spoken
to Frank and Frank wanted Valerie to bring the dog upstairs to
the defendant's apartment. Valerie got dressed, took the dog
upstairs, and knocked on the defendant's back door.
The defendant answered the door wearing boxer shorts and a
tank top. Valerie handed the leash to the defendant and then
turned to leave. The defendant grabbed Valerie by the wrist and
dragged her to his bedroom in the front of the apartment.
The defendant forced Valerie onto his bed and, as he held
her wrists in one hand and leaned on her with his chest, he
pulled down her pants and her underwear. The defendant told
Valerie "that he always wanted [her]" and "he didn't care what
[Frank] had to say or do." The defendant forced his penis into
2
A pseudonym.
4
Valerie's vagina. The whole time, Valerie was yelling and
telling him to stop. Valerie tried, but was unable to push the
defendant off of her. Valerie was not sure how long the rape
lasted, but when the defendant ejaculated, he let Valerie go and
she ran back to her apartment.
When Valerie returned to her apartment, she took off all
her clothes and got into the shower. She felt disgusted and was
unable to control her anxiety and her crying. At approximately
6:30 A.M., Valerie's stepdaughter awoke when she heard the back
door slam shut. She went to the bathroom and found Valerie
there, sitting in the bathtub with the shower on, crying. The
stepdaughter tried to calm Valerie down, but she kept crying and
repeating, "I feel disgusted. I didn't want him to. I didn't
want him to." Eventually the stepdaughter got Valerie out of
the bathroom, clothed, and into the stepdaughter's bedroom.
There, Valerie told her stepdaughter what had happened. After
learning about the rape, the stepdaughter called her father who,
in turn, called the police.
Officer Peter Manolakis of the Springfield police
department arrived at the apartment at approximately 7:45 A.M.
and met Valerie and her stepdaughter. The stepdaughter was
sitting on the couch with her arm around Valerie, who the
officer described as distraught. Officer Manolakis called for
an ambulance and then collected the clothes that Valerie had
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been wearing. Valerie received medical attention and biological
evidence was collected with a rape kit.
Peggy Rodriguez, a deoxyribonucleic acid (DNA) analyst at
Orchid Cellmark (Cellmark), a private genetic testing facility,
analyzed the samples from the rape kit and compared the results
with the known DNA profiles. Rodriguez concluded that the
epithelial fraction from the vaginal swab had a mixture that was
consistent with a woman and a man. The sperm fraction from the
vaginal swab contained a mixture from at least three
individuals, including at least one male. Rodriguez identified
the defendant as a contributor 3 and Valerie as a potential
contributor. Frank was excluded as a potential contributor.
Testifying on his own behalf, the defendant said that he
met Valerie as the result of his friendship with Valerie's
former boyfriend, Frank. The defendant claimed that at some
point prior to July, 2010, his relationship with Valerie changed
and they started having an intimate relationship. They would
3
Rodriguez estimated that the probability of the occurrence
of the defendant's genetic profile at thirteen loci was one in
8.033 quintillion unrelated individuals for the black
population; one in 764.4 quadrillion unrelated individuals in
the Caucasian population; one in 4.129 quintillion unrelated
individuals in the southwest Hispanic population; one in 2.645
quintillion unrelated individuals in the southeast Hispanic
population; and one in 3.582 quintillion unrelated individuals
in the general Asian population. Rodriguez produced a chart of
the DNA profiles and explained it to the jury. The DNA chart
was admitted in evidence.
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have sexual relations in Valerie's apartment when Frank was not
around, according to the defendant's testimony. The defendant
said that he and Valerie would have a couple of beers, smoke
some marijuana, and then have sex.
According to the defendant, Valerie came to his apartment
at about 10:00 P.M. on the night of July 10, 2010. They drank a
couple of beers, smoked marijuana, and had consensual
intercourse. Valerie left the defendant's apartment a little
after midnight. But before Valerie left, she and the defendant
got into a "little argument." The defendant was concerned that
Valerie's relationship with his son was inappropriate. The
defendant called Valerie a slut and a whore. Valerie, in
return, called the defendant some bad words.
After an angry exchange of about ten minutes, Valerie left
the defendant's apartment. The defendant denied calling Valerie
about the dog and disputed her claim that she had come to his
apartment at 6:00 A.M. on July, 11, 2010.
1. Speedy trial claims. The defendant argues that the
prosecutor was unreasonably lacking in diligence in bringing the
defendant to trial because he waited over eleven months after
the arraignment date before obtaining a court order for the
victim's medical records, a delay that was extended when the
records were not delivered to court for another five months.
According the defendant, he was prejudiced by this delay because
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he was in custody awaiting trial.
In contrast to the defendant's speedy trial claim that was
presented below and primarily grounded on the case management
provisions found in Mass.R.Crim.P. 36(b), 378 Mass. 909 (1979),
the claim on appeal is pressed solely as a constitutional
violation under the State and Federal Constitutions, 4 and
Mass.R.Crim.P. 36(c), 378 Mass. 912 (1979), the portion of the
rule that encompasses the "fundamental constitutional guarantee"
to a speedy trial. 5 Reporters' Notes to Rule 36(c), Mass. Ann.
Laws Court Rules, Rules of Criminal Procedure, at 1728
(LexisNexis 2013).
"[T]he relevant factors in determining whether a
defendant's [Federal] constitutional right [to a speedy trial]
has been denied, see Barker v. Wingo, 407 U.S. 514, 530 (1972),
are: the length of the delay, the reasons for the delay, the
4
On appeal the defendant claims violations of the
Fourteenth Amendment to the United States Constitution, and art.
11 and art. 12 of the Massachusetts Declaration of Rights. His
motion to dismiss cited the Sixth and Fourteenth Amendments and
art. 11, but it did not cite art. 12.
5
Contrary to the Commonwealth's contention on appeal, the
defendant's claim under Mass.R.Crim.P. 36(c) was preserved below
where he argued in his motion that he was entitled to a
dismissal on grounds that the prosecutor was unreasonably
lacking in diligence in bringing the case to trial and he was
thereby prejudiced; the Commonwealth responded to this claim in
its opposition memorandum; and the motion judge denied the
motion "for the reasons set forth in the Commonwealth's
opposition."
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extent of the defendant's assertion of his right to a speedy
trial, and the prejudice, if any, to the defendant."
Commonwealth v. Willis, 21 Mass. App. Ct. 963, 964 (1986)
(quotations and citation omitted). Here, "the defendant's
constitutional right [to a speedy trial] under the Barker v.
Wingo analysis will be protected by considering the factors
entitling the defendant to a dismissal under [rule] 36(c) . . .,
that is, if '(1) the conduct of the prosecuting attorney in
bringing the defendant to trial has been unreasonably lacking in
diligence and (2) this conduct on the part of the prosecuting
attorney has resulted in prejudice to the defendant'" (footnote
omitted). Ibid.The difficulty with the defendant's claim is that the
sluggishness with which the hospital records were produced had
little bearing on the progress of the case because they were
largely cumulative of the Commonwealth's proof. The independent
evidence of the crime consisted of the victim's testimony that
she had been battered and raped, the first complaint witness who
articulately outlined the victim's distraught demeanor and
description of the crime within thirty minutes of it having
occurred, police testimony confirming the victim's distraught
demeanor, the hospital nurse who explained how evidence is
collected using the rape kit, the testimony of the emergency
room doctor who described the physical examination, and DNA
9
evidence that revealed a match between DNA profile obtained from
the sperm detected in the victim's vagina hours after the crime
and a known sample from the defendant.
To the extent the hospital records were relevant, they were
primarily of assistance to the defense. Trial counsel used the
records to elicit from the hospital nurse that the victim had
been proscribed Prozac, Albuterol, and Percocet, as well as
testimony from the emergency room doctor that there was
absolutely no physical indication of trauma, tearing, or even
redness, in any part of the victim's genital area. That the
records were exculpatory is bolstered by counsel's agreement to
their admission.
Although it is certainly true that the Commonwealth
included the need to obtain the medical records as among its
reasons for requesting a continuance on July 17, 2012, about
eleven months after the arraignment date, the continuance was
not objected to by the defendant. Moreover, unlike the
situation presented in Commonwealth v. Balliro, 385 Mass. 618(1982), in which the prosecutor's delay prevented the trial from
going forward, the Commonwealth did not need the medical records
to try the defendant. See id. at 621-623 (although the
Commonwealth had known for several weeks that no charge based on
the operation of a motor vehicle while under the influence of
alcohol could be proved, it waited until the day of trial to
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correct the error). In these circumstances, there is no
evidence that the delay in obtaining the hospital records
evinces proof that the prosecutor was unreasonably lacking in
diligence in bringing the defendant to trial.
2. Mandatory discovery claim. The defendant next argues
that his convictions should be vacated and the case dismissed
because the Commonwealth failed to disclose an electronic mail
message (e-mail) exchange between the Cellmark analyst, her
technical reviewer, and the State police crime laboratory (State
lab). According to the defendant, the e-mail exchange reveals
that the Cellmark analyst changed her report after communicating
her original analysis to the State lab. Both the original and
the revised reports were provided to the defendant prior to
trial.
The defendant is correct that the prosecution had a duty to
provide the defense with "statements of persons the party
intends to call as witnesses" prior to the pretrial conference.
Mass.R.Crim.P. 14(a)(1)(A), as amended, 444 Mass. 1501 (2005).
The mandatory disclosure includes all relevant evidence in the
custody of "persons who have participated in investigating or
evaluating the case and either regularly report to the
prosecutor's office or have done so in the case." Ibid. See
Commonwealth v. Martin, 427 Mass. 816, 824 (1998). In
Commonwealth v. Martin, supra at 817, the trial judge granted
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the defendant a new trial because of the "effect of the
Commonwealth's failure to timely disclose . . . evidence [to
defense counsel] combined with defense counsel's failure to
present a competent rebuttal of the prosecution's case." The
case before us does not present a similar circumstance causing
prejudice to the defendant because, as the Commonwealth points
out, the two Cellmark reports were provided to defense counsel
as required. The original report (dated November 30, 2011)
stated: "The DNA profile obtained from the sperm fraction of
the vaginal swabs is a mixture of at least three individuals,
including at least one unknown male." The revised report (dated
December 21, 2011) stated: "The DNA profile obtained from the
sperm fraction of the vaginal swabs is a mixture of at least
three individuals, including at least one male." Whether the
third person was male or female, or whether that person's
identity was "unknown," is inconsequential since the defendant
was consistently identified in both reports as having
contributed to the mixture, identity was not an issue at trial,
and, as the defendant's brief notes, the victim's medical
records indicate that she had reported having consensual sexual
intercourse eighty-four hours before the rape.
The substance of the e-mail communication between Cellmark
and the State lab therefore cannot be considered exculpatory
under the facts of this case. Furthermore, withholding such e-
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mails was not prejudicial because those e-mails would not have
any tendency to prove the defense's theory that the sexual
contact was consensual. The defendant testified at trial that
he had an ongoing sexual relationship with the victim and that
he had consensual sexual intercourse with the victim on the
evening of July 10, 2010. The victim testified that she never
had consensual sexual intercourse with the defendant and that
the defendant had raped her on the morning of July 11, 2010.
The fact that sexual contact had occurred between the defendant
and the victim was not in dispute at trial and neither was the
credibility or competency of the Cellmark DNA analysis. The
jury had only to decide the issue of consent. Neither the
evidence showing the DNA of a third party, nor the medical
records containing information about the victim's consensual
sexual activity hours before the rape, aids the defense theory
that the contact was consensual.
In Commonwealth v. Jewett, 442 Mass. 356, 360 (2004), the
defendant argued that the prosecutor improperly deprived the
jury of material evidence. In affirming the defendant's
convictions of rape and other charges, the Supreme Judicial
Court held that the evidence showing the presence of old sperm
on the victim, even if admissible, "could not have [been]
considered as new, material, or helpful in any way, much less
potentially 'dispositive' as the defendant claim[ed]." Id. at
13
362. There, as here, the defendant claimed that the sexual
conduct was consensual and ongoing. The court reasoned that
"the allegedly exculpatory documents cannot be said to be
material to his defense . . . that he and the victim had sexual
intercourse prior to the night" of the rape. Ibid. Similarly,
the e-mail communication in the case before us was neither
material nor prejudicial.
Conclusion. We reject the defendant's arguments and affirm
his convictions on the charges of rape and assault and battery.
Judgments affirmed.