Commonwealth v. Luis Dejesus. ( 2024 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-531
COMMONWEALTH
vs.
LUIS DEJESUS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The only issue raised by the defendant in this appeal is
whether the trial judge should have granted his motions for a
mistrial based on the fact that the defendant was too afraid to
testify because of comments made by a witness outside the
courtroom. Finding no error, we affirm.
During the defendant's jury trial, the defendant's trial
counsel informed the trial judge that, outside the courthouse, a
witness in the case had yelled at the defendant, "I hope you go
to jail, you bitch ass nigger"1 and "I hope they smoke you."
1Following Commonwealth v. Rodriguez, 101 Mass. App. Ct.
439, 440 n.3 (2022), "[w]e use the epithet in full once for
clarity, and to ensure that the topic is searchable in legal
databases."
Defense counsel also reported that a court officer had seen this
interaction and brought the defendant inside the courthouse for
the defendant's safety. Counsel further informed the judge
about another incident in which the same witness said that he
was waiting in court "to see that MF go to jail." This
statement was overheard by another attorney. Defense counsel
did not move for a mistrial on these occasions.
On the fourth day of trial, defense counsel moved for a
mistrial and stated that the defendant had wanted to testify at
the trial, but because of these prior statements of the
witnesses, he was now too afraid to do so. Counsel informed the
judge that, after court the prior day, defense counsel had to
escort the defendant to his car because the defendant was
afraid.
The trial judge informed defense counsel that more security
was called in because of the interaction between the defendant
and the witness. Additionally, the trial judge sought
suggestions from defense counsel as to what could be done to
allay the defendant's concerns. Trial counsel stated that he
didn't think there was anything that the judge could do, but
"time will." The judge denied the defendant's motion for a
mistrial.
We review the denial of a motion for a mistrial for an
abuse of discretion. Commonwealth v. Doughty, 491 Mass. 788,
2
796 (2023). A judge's decision constitutes an abuse of
discretion where the judge made "a clear error of judgment in
weighing the factors relevant to the decision . . . such that
the decision falls outside the range of reasonable
alternatives." Id., quoting L.L. v. Commonwealth, 470 Mass.
169, 185 n.27 (2014).
There is no dispute regarding defense counsel's
representations about the encounters between the witnesses and
the defendant.2 Although the defendant has filed no affidavit
nor filed a motion for new trial, we accept the argument that
the defendant was afraid to testify because of the witness's
statements. Nonetheless, the defendant waived his right to
testify in his own behalf. A defendant's fear in testifying
does not justify the granting of a motion for a mistrial. "A
hard choice is not the same as no choice." Commonwealth v.
Weichell, 446 Mass. 785, 801 (2006), quoting United States v.
Martinez-Salazar, 528 U.S. 304, 315 (2000).
A judge has the responsibility to control trial proceedings
and we defer to judges on the actions that need to be taken to
ensure a fair trial. See Commonwealth v. Scionti, 81 Mass. App.
2 The defendant argues that this Court should remand the
matter for an evidentiary hearing to have witnesses testify
regarding the statements made to the defendant. As stated, the
Commonwealth never disputed any of the facts and we assume, for
purposes of the appeal, that all the statements are true and
that the defendant was truly in fear because of them.
3
Ct. 266, 276 (2012). See also Commonwealth v. Fernandes, 478
Mass. 725, 733 (2018). The judge did all she could to make sure
the defendant received a fair trial. She ensured that extra
court officers were present in the courtroom and sternly
reprimanded the witness who made direct statements at the
defendant. Lastly, she asked defense counsel if there was
anything else he could think of to assuage the defendant's fear.
Here, defense counsel's statement that more time would help
with the defendant's fear is speculative. There is nothing to
suggest that if the motion for new trial had been granted and a
new trial took place in days, weeks, or even months, that
anything would change. The witnesses were necessary for the
Commonwealth and would be called to testify in the future. The
animosity between the witnesses and the defendant would not
necessarily dissipate with time.
The judge did not abuse her discretion in denying the
defendant's motions for a mistrial.
Judgment affirmed.
By the Court (Meade, Walsh &
D'Angelo, JJ.3),
Clerk
Entered: August 19, 2024.
3 The panelists are listed in order of seniority.
4