Commonwealth v. Wood , 90 Mass. App. Ct. 271 ( 2016 )

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14-P-1389 Appeals Court
COMMONWEALTH vs. JAMES WOOD.
No. 14-P-1389.
Middlesex. October 7, 2015. - September 16, 2016.
Present: Katzmann, Rubin, & Wolohojian, JJ.
Assault by Means of a Dangerous Weapon. Evidence, Illustrative
exhibit, Best and secondary. Practice, Criminal,
Instructions to jury, Argument by prosecutor.
Indictments found and returned in the Superior Court
Department on March 10, 2011.
The cases were tried before Sandra L. Hamlin, J.
Joseph J. Mazza for the defendant.
Jessica Langsam, Assistant District Attorney, for the
Commonwealth.
KATZMANN, J. The defendant appeals from his conviction by
a Superior Court jury of assault and battery by means of a
dangerous weapon causing serious bodily injury (ABDW-SBI). He
challenges the admission in evidence of a compilation of
portions of previously admitted exhibits that had been sequenced
2
and highlighted by the Commonwealth, and the trial judge's
instruction on absence of right or excuse.1 We affirm.
Background. The jury could have found as follows. Around
9:20 P.M. on May 16, 2010, Carlos Serpa arrived at Lawrence
Memorial Hospital suffering from multiple stab wounds: one to
his back, two to his left leg, and one to his left arm. He had
been driven to the hospital in his own vehicle2 by his friend
Michael Diceglie, who had insisted on securing Serpa medical
treatment despite the latter's protestations when he showed up
bleeding at Diceglie's front door. Although neither Serpa nor
Diceglie telephoned 911, hospital personnel notified the police
as required when a patient presents as a victim of a stabbing.
When uniformed officers from the Medford police department
arrived, Serpa -- who was on probation following his release
from prison on a sentence arising from armed robbery convictions
-- told the officers that he was stabbed by an unknown dark-
skinned male in dark clothing, who tried to rob him as he was
getting out of his vehicle in front of Diceglie's apartment on
Myrtle Street in Medford. The officers considered Serpa's
1
The jury also convicted the defendant of conspiracy to
distribute marijuana. He does not appeal that conviction. The
jury found the defendant not guilty of armed assault with intent
to murder and armed assault with intent to rob.
2
When police later inspected Serpa's vehicle, they observed
blood and a bloody shirt on the passenger seat.
3
answers to their questions to be vague and likely not entirely
truthful.
One of the uniformed officers then visited Myrtle Street
and located a blood trail, prompting him to secure the crime
scene and notify detectives. Medford police Detectives Michael
Goulding and Patricia Sullivan arrived at Myrtle Street later
that same evening and began investigating the blood trail.
In the meantime, Serpa had been transferred to
Massachusetts General Hospital (MGH). After leaving the crime
scene on Myrtle Street, Detectives Goulding and Sullivan went to
see Serpa at MGH in the early morning hours of May 17, 2010.
Serpa told the detectives the same story he had told the
uniformed officers at Lawrence Memorial Hospital, that he was
attacked by a dark-skinned male in dark clothing as he was
getting out of his car.
It was quickly apparent that Serpa's story did not add up.
The detectives concluded that the blood trail on Myrtle Street
was not consistent with Serpa's account. Neighborhood canvases
the evening of the incident and in the days that followed
yielded no witnesses who had heard or seen anything unusual that
night, despite Serpa's claims that he had yelled for Diceglie
and banged on his door after the attack. The detectives were
aware that Serpa was wearing a global positioning system (GPS)
4
monitoring device, an ankle bracelet, as a condition of his
probation.
Based on the inconsistencies between the physical evidence
and Serpa's account of the stabbing, Detective Goulding
subpoenaed cellular telephone records from Serpa's cellular
telephone (cell phone) and discovered calls and text messages on
the day of the incident between Serpa and a cell phone number
registered to the defendant. Goulding then obtained a search
warrant for the content of Serpa's text messages. Goulding
discovered that a text message from the defendant's cell phone
was sent to Serpa around 3:30 P.M. on May 17, 2010, offering
Serpa one-half pound of high-quality marijuana on credit. Serpa
quickly lined up a buyer, arranging via text message to resell
that same one-half pound of marijuana to Diceglie, who was not
acquainted with the defendant, at a mark-up.3 For his service in
the transaction, Serpa would pocket $150.
A series of text messages then followed throughout the rest
of the day between the defendant's cell phone and Serpa, and
between Serpa and Diceglie, in which Serpa finalized plans for
both legs of the transaction. Ultimately, arrangements were
made in which the defendant and Serpa would meet near Diceglie's
3
The text message sent from the defendant's cell phone to
Serpa read: "I can give you a half blue on the sleev to help u
some." Serpa's message to Diceglie asked: "u want a half of
blue dream?" The meanings of the text messages were decoded at
trial.
5
Medford apartment around 9 P.M., at which point Serpa and the
defendant would go together to give Diceglie the marijuana and
get their money.
Detective Goulding was also able to track the defendant's
and Serpa's movements during the relevant time period to
corroborate the planned drug meet. Data from Serpa's GPS ankle
bracelet provided his whereabouts leading up to the stabbing,
and Goulding obtained cell phone tower location data for the
cell phone registered to the defendant for May 16 and May 17.
The defendant's cell phone location data showed that his cell
phone "hit off" towers in the vicinity of Diceglie's apartment
in the minutes before Serpa was stabbed. Although the data
indicated that both the defendant's cell phone and Serpa were in
the area of Myrtle Street that night, deoxyribonucleic acid
(DNA) analysis confirmed that the blood found on the sidewalk,
the steps and interior of Diceglie's apartment, and Serpa's
clothing and his vehicle came only from Serpa.
On June 16, 2010, one month after the incident and with the
stabbing investigation continuing, Detectives Goulding and
Sullivan met with Serpa again. They hoped Serpa could provide
more information concerning the stabbing. Goulding told Serpa
that he knew what had happened that night and that Serpa's story
did not add up, but Goulding did not confront Serpa with any of
the specific information he had gleaned from the cell phone
6
calls, texts, and tower location data, nor did he inform Serpa
that he had collected any of that information. Serpa, however,
stuck to his story, repeating the account of an unknown
assailant that he had provided to the police a month before. As
a result of the investigation, charges ultimately issued against
Serpa and Diceglie for conspiracy to violate the drug laws and
witness intimidation for lying to the police who were
investigating the stabbing, and Serpa was arrested.
In December, 2010, more than six months after the stabbing,
Serpa appeared at court for a probation violation hearing based
on the new conspiracy and witness intimidation charges. Serpa,
who had recently become a father, faced the possibility of a
substantial sentence on the probation violation, in addition to
any potential sentences imposed if he was eventually convicted
on the new charges. At this point, Serpa broke down, cried,
changed his story, and implicated the defendant.
In his testimony at trial, Serpa named the defendant as his
attacker the evening of May 16, 2010. Serpa said that when he
and the defendant arrived in front of Diceglie's apartment in
accordance with their plan to sell the marijuana, they parked on
opposite sides of the one way street. Serpa approached the
defendant's vehicle, explaining that he, Serpa, had to go
upstairs to get the money. The defendant told Serpa that he
would retrieve the marijuana from the back of the vehicle.
7
Serpa backed away from the defendant's driver's side door toward
the vehicle's bumper to allow the defendant access to the back
seat area. The defendant reached into the rear of his vehicle
behind the driver's seat with his back to Serpa, and when he
emerged from the vehicle again, he swung his hand and hit Serpa
on his left triceps with what felt to Serpa like a "punch." It
was only after the second punch to Serpa's back that Serpa saw
that the defendant was holding a knife. The defendant also
stabbed Serpa on the front of his left thigh.
Serpa did not understand what was happening and asked the
defendant, "[W]hat the fuck are you doing?" The defendant
responded, "Where's the fucking money?" Serpa retreated down
the street, and the defendant got into his vehicle and fled.
Serpa then went to Diceglie's apartment building and Diceglie
drove him to the hospital. The entire interaction between Serpa
and the defendant on Myrtle Street lasted approximately two
minutes and the attack was over in five to ten seconds.
Discussion. The defendant raises two challenges to his
ABDW-SBI conviction: (1) that the judge abused her discretion
in admitting in evidence over the defendant's objection a
PowerPoint presentation, denominated Exhibit 42 at trial,
prepared by the Commonwealth that combined portions of various
previously-admitted exhibits, some of which were modified with
highlighting; and (2) that the judge's instruction on lack of
8
right or excuse in the final jury charge essentially directed a
verdict against the defendant on this charge, especially in
combination with comments made by the prosecutor in his closing
argument.
Although Exhibit 42 should not have been admitted as
substantive evidence, for the reasons discussed below we
conclude that the defendant was not prejudiced by its admission.
We discern no error in the jury instruction and thus the
Commonwealth's reference to the instruction in its closing did
not result in a substantial risk of a miscarriage of justice.
1. Exhibit 42. a. Standard of review. Because the
defendant objected to the admission of Exhibit 42, we review
first to determine whether the trial judge abused her discretion
in admitting the exhibit and, if so, whether the defendant was
prejudiced thereby. See Commonwealth v. Rosario, 460 Mass. 181,
193 (2011). We grant "great deference to the judge's exercise
of discretion" and determine whether the judge made a "clear
error of judgment . . . such that the decision falls outside the
range of reasonable alternatives." L.L. v. Commonwealth, 470
Mass. 169, 185 n.27 (2014) (quotation omitted).
b. Admissibility. Exhibit 42 was based on a "PowerPoint"
presentation that the Commonwealth used as a demonstrative to
assist the jury in following some of the testimony of Detective
Goulding, the lead investigator of the stabbing. The PowerPoint
9
presentation was projected on a screen in the court room, but
jurors were also each given an individual printout of at least
some of the PowerPoint slides showing Serpa's text messages.
These printouts were collected from the jury at the conclusion
of the relevant portion of Goulding's testimony. Defense
counsel also requested that jurors have at least some portions
of the text messages for her cross-examination of Goulding.
When defense counsel finished with the portion of the PowerPoint
presentation containing the text messages, the judge again had
the jury return the printouts returned to the court officer.
As ultimately admitted in evidence, Exhibit 42 is a
compilation of various pages chosen from previously-admitted
exhibits. Specifically, Exhibit 42 incorporates subscriber
information identifying the registered owners of various cell
phone numbers believed to have been used by the defendant,
Serpa, Diceglie, and friends and associates of the defendant; a
condensed version of the content of Serpa's text messages on May
16, 2010, showing exchanges between the defendant's cell phone
and Serpa and between Serpa and Diceglie; call logs from the
cell phone registered to the defendant for a period of time
beginning one week before the stabbing and continuing through
the two days following the stabbing;4 and maps depicting Serpa's
4
Some of the pages from the defendant's cell phone call log
are repeated multiple times in Exhibit 42, ostensibly to
10
movements on the evening of May 16, 2010, based on the tracking
data from his GPS ankle bracelet.
Exhibit 42 was thus a hybrid document, combining aspects of
summary compilation and attorney argument. Some of the
combinations in the exhibit are not, on their own, clearly
intended to reinforce the Commonwealth's arguments. For
example, although the jurors could have cross-referenced cell
phone numbers from the text messages and call logs with
separately admitted subscriber information, it was arguably more
convenient to have all of that information in one place. See
Dyecraftsmen, Inc. v. Feinberg, 359 Mass. 485, 487 (1971)
("[T]ranscription of records present in the court room . . . was
admissible, in the discretion of the judge, as a matter of
convenience").
On the other hand, an examination of the content of Exhibit
42 in the context of the trial reveals its strategic purpose in
the Commonwealth's case against the defendant. The text
messages in Exhibit 42 formed the basis of the narcotics
conspiracy that, in addition to being a separately charged
offense, brought the defendant and Serpa together on Myrtle
Street where the stabbing occurred. The inclusion of Serpa's
GPS ankle bracelet records was an attempt to bolster Serpa's
demonstrate differences in calling patterns before and after the
incident.
11
testimony by confirming movement consistent with his text
messages and his trial testimony. Exhibit 42 also appears
intended to prove that the cell phone number registered to the
defendant was in fact used by the defendant, countering an
argument that the defendant raised at trial. Most importantly,
the sequencing and highlighting of the defendant's cell phone
records demonstrated the abrupt cessation of contact between the
defendant and Serpa after Serpa was stabbed, in contrast to the
continuing communications between the defendant and his other
key contacts, which continued after the stabbing. The
Commonwealth argued that this last point was particularly
probative of the defendant's guilt. We are therefore persuaded
that Exhibit 42, as a whole, was not merely a neutral summary.
It was "more akin to argument than evidence since [it] organizes
the jury's examination of testimony and documents already
admitted in evidence." United States v. Bray, 139 F.3d 1104,
1111 (6th Cir. 1998) (quotation omitted).5
In admitting Exhibit 42 over the defendant's objection, the
trial judge stated: "Well, I've looked at the exhibits that it
reflects, and I think that it would [be] unfair to ask the jury
5
Although denominated as Exhibit 42, the judge's statement
that she was "going to allow this to be marked as an aid to the
jury" is more consistent with language allowing it to be used as
a chalk or other demonstrative aid which is marked for
identification but not introduced into evidence as an exhibit.
See note 9, infra.
12
to go through each page of those exhibits. So I'm going to
allow this to be marked as an aid to the jury, and there's no
indication that it doesn't accurately reflect what the evidence
is." As he did at trial, the defendant raises numerous
challenges to the admissibility of Exhibit 42 on appeal. He
maintains that Exhibit 42 was not properly admitted because it
represents more of an argumentative device than a summary. He
also contends that it was not helpful to the jury to have a
collection of portions of exhibits that had already been
introduced, that such a collection was a needless presentation
of cumulative evidence, and that the exhibit's probative value
was substantially outweighed by the danger of unfair prejudice.
Specifically, the defendant contends that Exhibit 42 improperly
emphasized only a portion of the Commonwealth's case and
distracted the jury from weaknesses in the case because the jury
could have mistakenly believed that Exhibit 42 was additional
evidence, rather than a compilation of previously admitted
evidence.
In determining whether Exhibit 42 was properly admitted,
we look to the case law and the Massachusetts Guide to Evidence
(2016). Because the Federal rules at play in Federal decisions
"clarify[ing] the landscape," United States v. Milkiewicz, 470
F.3d 390, 395 (1st Cir. 2006), are analogous to guidelines at
issue here in the Massachusetts Guide to Evidence, we also find
13
the Federal precedent a useful touchstone.6 See N.E. Physical
Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 365-
366 (2013). Cf. Shuman v. The Stanley Works, 30 Mass. App. Ct.
951, 952-953 (1991) ("We are . . . guided by judicial
interpretation of the parallel Federal rule [of procedure],
absent compelling reasons to the contrary or significant
differences in content").
Section 1006 of the Massachusetts Guide to Evidence
provides:
"Summaries to Prove Content[.] The proponent may use
a summary, chart, or the like to prove the content of
voluminous writings or records that cannot be
conveniently examined in court. The proponent may
make the originals or duplicates available for
examination or copying, or both, by other parties at a
reasonable time and place. And the court may order
the proponent to produce them in court."
Rule 1006 of the Federal Rules of Evidence "creates an exception
to Rule 1002, which requires that originals be used to prove the
content of writings, recordings and photographs. Evidence
admitted under Rule 1006 must be otherwise admissible and
remains subject to the usual objections under the rules of
6
We note that while the Federal Rules of Evidence and the
Massachusetts Guide to Evidence maintain the same numeration,
the Federal Rules of Evidence refer to "Rules" while the
Massachusetts Guide to Evidence refers to "Sections." In
contrast to the Federal Rules of Evidence, however, Mass. G.
Evid. § 102 states: "The provisions contained in this Guide may
be cited by lawyers, parties, and judges, but are not to be
construed as adopted rules of evidence or as changing the
existing law of evidence."
14
evidence and the Constitution." United States v. Milkiewicz,
470 F.3d at 396. "[W]hile in most cases a Rule 1006 chart will
be the only evidence the fact finder will examine concerning a
voluminous set of documents, in other instances the summary may
be admitted in addition to the underlying documents to provide
the jury with easier access to the relevant information." Id.
at 396-397 (citations omitted). Cf. Commonwealth v. Carnes, 457
Mass. 812, 825 (2010) ("Summaries of testimony are admissible,
provided that the underlying records have been admitted in
evidence and that the summaries accurately reflect the
records"). With respect to summaries admitted in evidence,
"care must be taken be taken to insure that [the] summaries
accurately reflect the contents of the underlying documents and
do not function as pedagogical devices that unfairly emphasize
part of the proponent's proof." Welch v. Keene Corp., 31 Mass.
App. Ct. 157, 165-166 (1991), quoting from United States v.
Drougas, 748 F.2d 8, 25 (1st Cir. 1984).7
7
As discussed in the cases, "pedagogical devices" subsumes
argumentative aids. The Sixth Circuit provides a useful
definition of the term "pedagogical device," explaining: "We
understand the term 'pedagogical device' to mean an illustrative
aid such as information presented on a chalkboard, flip chart,
or drawing, and the like, that (1) is used to summarize or
illustrate evidence, such as documents, recordings, or trial
testimony, that has been admitted in evidence; (2) is itself not
admitted into evidence; and (3) may reflect to some extent,
through captions or other organizational devices or
descriptions, the inferences and conclusions drawn from the
underlying evidence by the summary's proponent. This type of
15
We agree with the defendant that Exhibit 42 is not a
"summary, chart, or the like" used "to prove the content of
voluminous writings or records that cannot be conveniently
examined in court" as described in Mass. G. Evid. § 1006. See
Commonwealth v. Guy, 454 Mass. 440, 446 & n.5 (2009)
("notebooks" mirroring and visually summarizing lengthy and
complex DNA testimony could have been admitted within the
judge's discretion); Commonwealth v. Carnes, 457 Mass. at 825-
826. The case before us is not one where the proponent prepared
a freestanding chart to tally the dates, times, and number of
cell phone calls between various parties in order to summarize
extensive, separate underlying business records. Compare ibid.;
United States v. Drougas, 748 F.2d at 26 ("We find that the
charts . . . pictorially summarized over one hundred calls
placed during the period of the conspiracy and were properly
received under Rule 1006"). In Carnes and Drougas, the exhibits
in question were independent creations derived from the "raw
data," Commonwealth v. Carnes, supra at 826, of the previously
admitted records and testimony. Exhibit 42, on the other hand,
combined portions of multiple exhibits and superimposed the
Commonwealth's gloss on some of the previously admitted records
exhibit is more akin to argument than evidence since [it]
organizes the jury's examination of testimony and documents
already admitted in evidence." United States v. Bray, 139 F.3d
at 1111 (quotation omitted).
16
themselves. As we have noted, rather than summarize the
underlying records, the Commonwealth placed certain pages from
individual exhibits alongside pages from other exhibits, and
then altered some of those pages to highlight the portions of
the raw data evidence relevant to the Commonwealth's theory of
the case. The exhibit thus falls outside the scope of
admissible evidence. See Commonwealth v. Welch, 31 Mass. App.
Ct. at 165-166; Mass. G. Evid. § 1006. It was error for the
judge to admit the exhibit.
Finally, we note that we have found instructive the
tripartite taxonomy of summary evidence that has been
articulated by Federal courts, see, e.g. United States v. Bray,
139 F.3d at 1112, and recognized by the United States Court of
Appeals for the First Circuit in United States v. Milkiewicz,
470 F.3d at 396-398.8 In addition to the (1) primary evidence
summaries which we have already discussed, the taxonomy includes
two types of summary evidence not considered here by the parties
or by the court: (2) pedagogical device summaries or
illustrations (such as chalkboard drawings, graphs,
8
The First Circuit has noted that "[t]he Federal Rules of
Evidence offer multiple options for an attorney who wishes to
summarize complex evidence and bring it to the jury's attention
in the form of a chart. The various rules are not always
mutually exclusive, and so it is unsurprising that confusion
sometimes arises . . . over the appropriate basis for admitting
a particular summary." United States v. Milkiewicz, 470 F.3d at
395.
17
calculations, or listings of data taken from the testimony of
witnesses or documents in evidence) that are intended to
summarize, clarify, or simplify testimonial or other evidence
that has been admitted, but which are not themselves admitted in
evidence as they are used only to aid the presentation and
understanding of the evidence, see Mass. G. Evid. § 611(a)(1);9,10
9
Massachusetts Guide to Evidence § 611(a) recognizes the
trial court's common-law authority to "control" the "mode" of
"presenting evidence." Trial judges have broad discretion to
control the mode and order in which evidence is presented
subject to proper balancing for risk of needless presentation of
cumulative evidence and risk of unfair prejudice. See Mass. G.
Evid. §§ 403, 611(a). Although the Massachusetts Guide to
Evidence does not address the admissibility of "chalks," it is
plain that "[a] judge . . . has considerable, but not
unrestrained, discretion as to the degree to which chalks can be
used." Commonwealth v. Mimless, 53 Mass. App. Ct. 534, 539
(2002), quoting from Commonwealth v. DiFonzo, 31 Mass. App. Ct.
921, 923 (1991). Chalks are not exhibits in evidence. See
Aselbekian v. Massachusetts Turnpike Authy., 341 Mass. 398, 402
(1960) ("The judge, in his discretion, could reasonably have
refused to admit the plan as an exhibit, while permitting it to
be used as a chalk"). A judge's assessment whether a documents
qualifies as a chalk or as an exhibit can change during the
course of a trial. See, e.g., Commonwealth v. Shagoury, 6 Mass.
App. Ct. 584, 593 (1978) (judge did not abuse his discretion in
reducing a sketch first entered as an exhibit to "the status of
a chalk").
10
The First Circuit has observed that while "[t]he lines
between [Fed.R.Evid. 1006 and 611(a)] summary documents are
easily blurred," the latter are more akin to argument in that
they "may reflect to some extent, through captions or other
organizational devices or descriptions, the inferences and
conclusions drawn from the underlying evidence by the summary's
proponent." United States v. Milkiewicz, 470 F.3d at 397-398
(citation omitted). "A summary that is admissible under Rule
1006 -- and is thus most appropriately introduced under that
rule -- could properly be offered under Rule 611(a) if the
supporting material has been admitted into evidence. Likewise,
18
and (3) secondary evidence or hybrid summaries that are a
combination of the first two types of summaries "in that they
are not prepared entirely in compliance with Rule 1006 and yet
are more than mere pedagogical devices designed to simplify and
clarify other evidence in the case. These secondary-evidence
summaries are admitted in evidence not in lieu of the evidence
they summarize but in addition thereto, because in the judgment
of the trial court such summaries so accurately and reliably
summarize complex or difficult evidence that is received in the
case as to materially assist the jurors in better understanding
the evidence. In the unusual instance in which this . . . form
of secondary evidence summary is admitted, the jury should be
instructed that the summary is not independent evidence of its
subject matter, and is only as valid and reliable as the
underlying evidence it summarizes." United States v. Bray, 139
F.3d at 1112.11
a chart that originally was offered as a jury aid to assist with
review of voluminous underlying documents already in evidence --
and which accurately summarizes those documents -- alternatively
could be admitted under Rule 1006 if the court concluded that
the supporting documents could not be examined conveniently in
court. To complicate matters, a court also has discretion under
Rule 703 to provide the jury in some circumstances with the
'facts or data' underlying an expert's opinion, and such
material may be presented in the form of a summary chart."
Ibid.
11
The Sixth Circuit has warned that "a summary containing
elements of argumentation could very well be the functional
equivalent of a mini-summation by the chart's proponent every
19
It does not appear that either of the latter two kinds of
summary evidence could be the basis for admission of Exhibit 42.
While pursuant to the pedagogical device summary or
illustrations category Exhibit 42 could have been marked for
identification and shown to the jury as a chalk or demonstrative
aid, as such it did not qualify as evidence. See note 9, supra;
Vedensky v. Vedensky, 86 Mass. App. Ct. 768, 776 n.10 (2014)
(chalk is not evidence). Nor does it appear that Exhibit 42
would have properly been admitted in evidence under the third
category of admissible secondary evidence or hybrid summaries,
where the evidence was not particularly complex or voluminous.
c. Prejudice. Having concluded that the admission of
Exhibit 42 was error, we now consider whether the defendant was
prejudiced by its admission. An error preserved by objection is
nonprejudicial "if we are sure that the error did not influence
the jury, or had but very slight effect." Commonwealth v.
Graham, 431 Mass. 282, 288 (2000), quoting from Commonwealth v.
Flebotte, 417 Mass. 348, 353 (1994). Where all of the material
in Exhibit 42 was previously admitted in evidence and the
limited duplication, sequencing, and highlighting of the
exhibits by the Commonwealth added little to the Commonwealth's
case and detracted little from the defendant's theory at trial,
time the jurors look at it during their deliberations." United
States v. Bray, 139 F.3d at 1110.
20
we conclude that, even without a limiting instruction, Exhibit
42 exerted little or no effect on the outcome.
Although we are concerned about the risks of "mini-
summation," see United States v. Bray, 139 F.3d at 1110, posed
by hybrid exhibits that duplicate, resequence, and annotate
previously admitted exhibits, the risks posed by Exhibit 42 were
minimal. That is, to the extent the compilation and
highlighting of exhibits was argument, it was not particularly
powerful. Moreover, it was not damaging to the defendant.
At trial, the defendant himself pointed to Serpa's text
messages because the story told therein of the defendant trying
to help Serpa by extending him drugs on credit with no
expectation of immediate payment that evening was inconsistent
with the defendant demanding money and then stabbing Serpa.
Thus, corroboration of Serpa's movements consistent with the
text messages and cell phone calls arranging the "meeting" was
hardly prejudicial.
If the repetition and sequencing of Serpa's GPS ankle
bracelet records were intended to bolster Serpa's credibility to
confirm that he was where he said he was on the day he was
stabbed, they were hardly damaging to the defendant's case,
given that the defendant had no reason to dispute Serpa's
veracity in this regard and those records did nothing additional
to substantiate Serpa's belated identification of the defendant
21
as his attacker.12 Nor is it likely that anything in Exhibit 42
distracted the jury from the multiplicity of reasons they had
been given to discredit Serpa, including, inter alia, his
inconsistent accounts of the stabbing, his prior convictions,
the shorter sentence he received in exchange for his
cooperation, and the conflict between his trial testimony and
the blood pattern that detectives discovered on Myrtle Street.13
To the extent that Exhibit 42 emphasized the evidence
showing that the defendant himself used the cell phone
registered in his name on the day in question, it was tantamount
to repetition of an open secret that the defendant emphasized
throughout his closing argument. Although the defendant was
ostensibly reluctant at trial to explicitly admit that he was
responsible for the texts messages and cell phone calls
attributed to him for purposes of the narcotics charge, he was
willing for the jury to accept that he was going to meet Serpa
to conclude a drug transaction for purposes of the ABDW-SBI
12
Moreover, duplication of Serpa's GPS ankle bracelet may
have helped the defendant by reminding the jury of Serpa's
probation status and, hence, his criminal past.
13
The defendant contends that admission of Exhibit 42 was
prejudicial because the duplication of evidence regarding the
intended drug deal obscured the weakness in the Commonwealth's
case, which was based on Serpa's implausible account of an
unprovoked attack that was inconsistent with a drug transaction
on credit and with Serpa's initial statements to the police.
22
charge.14 Thus, the defendant was not prejudiced by anything in
Exhibit 42 that simply reinforced a point on which he was
relying as well.
The demonstration that contact between Serpa and the
defendant stopped after May 16, 2010, is the only fact
reinforced by Exhibit 42 that the defendant was not himself
prepared to concede. But the inference itself was fair game
from the underlying evidence and had already been suggested,
without objection, during Detective Goulding's testimony. This
was so subtle a point that the jurors might have misperceived
its significance if not for the reinforcement in Exhibit 42. It
is doubtful that any additional emphasis on that point in
Exhibit 42 had any impact on the verdict.
In addition to focusing on what the Commonwealth might have
hoped Exhibit 42 would accomplish, to assess its impact on the
verdict we also point out what Exhibit 42 could not do. Putting
aside the defendant's arguments on the use of his cell phone,
14
Consider the following statements in the defendant's
closing argument: "If you believe that that was James Wood on
the phone, James Wood is trying to help out Carlos Serpa, giving
him a half a pound of marijuana, not asking for any money up
front. . . . And they make arrangements to meet, he and
whoever's on the Wood phone. And if you want to believe that
story that it was James Wood, they meet . . . ." "If you are to
believe Carlos Serpa's story on December 9th, why -- why would
James Wood stab him? He's meeting him to help him. He's
meeting him to give him drugs, without asking for any money."
"But I suggest that even if you say, okay, it had to be James
Wood on the phone that night, it still makes no sense."
23
the defense at trial was essentially that the defendant had no
motive to attack Serpa and that Serpa's account of the attack
could not be trusted. Exhibit 42 did no more to address those
holes in the Commonwealth's case than the individual underlying
exhibits and testimony that the jury heard when they had copies
of some of the PowerPoint slides during Goulding's testimony.
Thus, if Exhibit 42 was intended as a "roadmap[] to conviction"
to the ABDW-SBI charge, United States v. Best, 939 F.2d 425, 428
(7th Cir. 1991), it was not sufficient to get the jurors
materially closer to that destination than (i) the implicit
concessions made by the defendant that essentially acknowledge
the planned drug transaction and (ii) the clear import of the
underlying exhibits and testimony on their own.
For all of the foregoing reasons, after "review of the
entire trial," Commonwealth v. Barbosa, 463 Mass. 116, 124
(2012), we conclude that the defendant was not prejudiced by the
admission of Exhibit 42.
2. Absence of right or excuse. The defendant also
challenges the judge's jury charge on the ABDW-SBI offense in
which the judge instructed the jury as a matter of law that
there was no right or excuse for the defendant to have touched
Serpa. Specifically, he contends that comments by the
prosecutor in closing argument anticipating the instruction
combined with the instruction itself to direct a verdict against
24
him. The relevant portions of the Commonwealth's closing and
the judge's instructions and are set out in the margin.15
a. Standard of review. The defendant did not object to
the instruction on right or excuse at the charge conference or
after the jury were charged. The defendant also failed to raise
any objection to the Commonwealth's closing argument.
Accordingly, the defendant has failed to preserve his claim of
error, and our review is limited to the substantial risk of a
miscarriage of justice standard. See Commonwealth v. Randolph,
438 Mass. 290, 294-295 (2002).
b. Jury instruction. The defendant contends that the
judge's instruction on lack of right or excuse was erroneous.
15
In his closing argument, the prosecutor stated:
"When [the defendant] gets out of the car and goes into the
back seat, he's decided I'm getting my money, I'm not
giving him anything, and I'm going to kill him. And your
evidence of it is Carlos Serpa is unarmed. And the judge
is actually going to instruct you on that. In this case,
you will be instructed that there is no evidence of excuse
or justification for this assault, none. You don't have to
speculate why, in terms of whether there's an excuse or
justification, because you're being told there isn't one.
He just stabbed him. And how many times do you need to
stab an unarmed man to get your point across, if your
intent isn't to kill him?"
In her instructions, the judge stated:
"Now, the first element, that the defendant touched the
person of Carlos Serpa, however slightly, without having
any right or excuse for doing so, I instruct to a matter of
law that in this case there is no right or excuse for doing
so, and so you're not to consider that in any way."
25
We disagree. The essence of the defendant's trial strategy was
to deny that he was Serpa's attacker and to sow reasonable doubt
by exploiting Serpa's credibility problems and the
inconsistencies between and within Serpa's varying accounts of
the attack. The defendant understandably did not attempt to
elicit any evidence of self-defense or of a right or excuse for
the alleged battery. Consistent with this approach, the
defendant's trial counsel informed the judge that she did not
intend to argue self-defense in closing and therefore had no
objection to the Commonwealth's motion to preclude such argument
and to instruct the jury on the lack of right or excuse with
respect to the ABDW-SBI indictment. See Commonwealth v. Conley,
34 Mass. App. Ct. 50, 58 (1993) (noting that where the defendant
claimed that an attack never happened, "[a] self-defense
instruction would be contrary to his defense"). In these
circumstances, we have held that "it was proper for the judge
. . . to give the instruction concerning the lack of evidence as
to right and excuse." Ibid.
The defendant suggests that an instruction stating that
there was no evidence of right or excuse in this case might have
been acceptable but that in instructing the jury that, as a
matter of law, the defendant had no right or excuse for touching
Serpa and that the jury were not to consider that in any way,
the judge went too far. We do not see a meaningful difference
26
in the distinction the defendant seeks to tease from the trial
judge's wording. "The method and extent of a jury charge is
within the discretion of the trial judge." Commonwealth v.
Carrion, 407 Mass. 263, 269 (1990). "We do not require that
judges use particular words, but only that they convey the
relevant legal concepts properly." Commonwealth v. Kelly, 470
Mass. 682, 697 (2015). The judge's instruction here properly
conveyed the applicable legal concept that, consistent with the
defendant's theory at trial, this was not a case where there was
any evidence that the defendant had an excuse to touch Serpa.
See Commonwealth v. Reed, 427 Mass. 100, 103 (1998).
The defendant raises numerous additional challenges to the
instruction, all of which lack merit. He contends that the
instruction deprived him of defenses based on a reasonable fear
for his safety. Again, such a defense would have been
completely inconsistent with the defendant's theory of the case.
See Commonwealth v. Tevlin, 433 Mass. 305, 318 (2001) ("The
theory on which a case is tried will not be ignored on appeal").
The defendant also suggests that the instruction undermined his
argument that an unidentified third party was responsible for
the attack by suggesting to the jury that no one had a right or
excuse to attack Serpa. By its terms, however, the instruction
only applied to the question of the defendant's right or excuse
to touch Serpa. The instruction was silent on the question
27
whether anyone else might have had a right or excuse to touch
Serpa and, crucially, left to the jury the question whether the
Commonwealth has proved beyond a reasonable doubt that it was
the defendant who committed the battery. The instructions as a
whole made it clear that the defendant was presumed innocent
until and unless the jury unanimously decided that the
Commonwealth had proved that the defendant was guilty of each
and every element of a particular charge beyond a reasonable
doubt. "The legal adequacy of a particular instruction to the
jury can only be judged in the context of the whole charge, and
not on the basis of limited or isolated portions of it. This is
because it is impossible to gauge the over-all impact on a
reasonable juror of any one piece parsed out of an instruction
without examining the entire charge in which it was delivered."
Commonwealth v. Carrion, 407 Mass. at 270 (citations omitted).
For the same reasons, the instruction did not remove the
question of Serpa's credibility from the jury. Nor did the
instruction somehow bolster Serpa's credibility. The jury were
instructed that they were the sole and exclusive judges of the
facts, that they alone were to determine the weight, effect, and
value of the evidence as well as the credibility and
believability of each and every witness, that they must
consider, measure, evaluate, and carefully weigh all of the
testimony of all witnesses, and that they could believe all of
28
what a witness said, some of what a witness said, or none of
what a witness said. The instructions specifically invited
jurors to consider a witness's motive for testifying, how
probable or improbable the testimony was, and the effect of
prior inconsistent statements on credibility. The judge also
explicitly instructed the jurors that they could consider
evidence of Serpa's prior convictions and his probation status
for purposes of deciding whether to believe his testimony and
how much weight to give it. Where Serpa's credibility was a
live issue, there is no basis to believe that jurors
misconstrued the judge's proper instruction on absence of right
or excuse as an endorsement of Serpa. Moreover, the judge also
told the jurors that none of what she told them about the law
was to be taken as any indication of how they should determine
the issues of fact in the case, adding: "If you believe the
Court has expressed or, in any way, indicated an opinion about
the facts, you should disregard it." See Commonwealth v.
Kelly, 470 Mass. at 697 ("We evaluate jury instructions as a
whole and interpret them as would a reasonable juror"). There
was no error and thus no substantial risk of a miscarriage of
justice. See Commonwealth v. Randolph, 438 Mass. at 298;
Commonwealth v. Kelly, supra at 698.
c. Closing argument. We agree that the prosecutor's
incorporation of the anticipated jury instruction in his closing
29
argument was inartful, note 15, supra, and that insofar as his
argument could be construed as stating that the jury would be
instructed that the defendant had assaulted Serpa, this was
impermissible. However, we conclude that any error did not give
rise to a substantial risk of a miscarriage of justice.
As discussed above, the judge's actual instruction on
absence of right or excuse that followed closing arguments was
proper. Moreover, the judge instructed the jury that they had
to find each element beyond a reasonable doubt. See
Commonwealth v. Dagley, 442 Mass. 713, 725 (2004) ("That the
judge's final instruction did not include any express correction
of the prosecutor's mischaracterization does not mean that the
instruction was inadequate to cure any confusion caused by that
mischaracterization"). Cf. Commonwealth v. Montez, 450 Mass.
736, 748 (2008) ("Although not dispositive of the issue, the
absence of [an objection on this precise point and the absence
of a request for a curative instruction] from experienced
counsel is some indication that the . . . substance of the now
challenged aspects of the prosecutor's argument were not
unfairly prejudicial" [citation omitted]).16
16
The defendant's failure to object is particularly
problematic where the challenged comments in the prosecutor's
closing argument related to an anticipated jury instruction and
so would have been susceptible to a curative instruction from
the judge during the final charge if she deemed it necessary.
30
In general, the Commonwealth's closing argument was
dedicated to reviewing the evidence of the cell phone call logs,
the GPS ankle bracelet records, and the defendant's cell phone
tower data, and to showing the jury how that evidence supported
Serpa's trial testimony. The prosecutor made a particular point
of trying to show that Serpa could not have concocted the story
to conform to the evidence and to explain the apparent
inconsistencies between the blood trail and Serpa's trial
testimony. In addition, the prosecutor tried to explain to the
jury why the defendant might have attacked Serpa, explaining
that because of the defendant's unfamiliarity with street-level
narcotics transactions, he found himself in the unenviable
position of meeting Serpa, a convicted armed robber, after dark
in unfamiliar territory. The prosecutor characterized the
stabbing as the defendant's foolish reaction to finding himself
in this predicament. All of this argument was designed to
persuade the jury that the defendant committed the attack and
would have been unnecessary had the jury been instructed as a
matter of law that the defendant had stabbed Serpa.
Thus, "in the context of the entire closing, and the manner
in which the case was prosecuted," Commonwealth v. Gray, 465
Mass. 330, 341 (2012), the prosecutor's incorporation of the
anticipated instruction on absence of right or excuse would not
have confused the jury about the fundamental question before
31
them, which was whether the defendant was in fact the assailant
who stabbed Serpa. See Commonwealth v. Cass, 12 Mass. App. Ct.
928, 929-930 (1981). We are therefore satisfied that any error
did not "materially influence[]" the verdict and that the
defendant was not prejudiced. Commonwealth v. Randolph, 438
Mass. at 298.
Judgments affirmed.