Commonwealth v. Jose J. Rodriguez.

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
21-P-1064
COMMONWEALTH
vs.
JOSE J. RODRIGUEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of assault
and battery causing serious bodily injury, which was a lesser
included offense of the originally indicted charge of assault
and battery by means of a dangerous weapon causing serious
bodily injury. On appeal, he raises a variety of claims which
lack merit, and we accordingly affirm his conviction.
1. Gang affiliation and bias. The defendant claims the
judge erred by foreclosing inquiry of a witness regarding her
gang affiliation to establish her potential bias.1 The defendant
maintains that this restriction on his cross-examination
violated his right to confrontation. We disagree.
1 The defendant raised the issue in a motion in limine, which the
judge denied. Although the motion sought leave to impeach both
the victim and the witness, the victim did not testify and,
thus, there is no remaining claim relative to him.
"The Sixth Amendment to the United States Constitution and
art. 12 of the Massachusetts Declaration of Rights entitle a
defendant to cross-examine prosecution witnesses for bias or
prejudice." Commonwealth v. Chicas, 481 Mass. 316, 320 (2019).
A judge may not "bar all inquiry into the subject" when the
defendant makes a "plausible showing" of "alleged bias."
Commonwealth v. Moorer, 431 Mass. 544, 547 (2000), quoting
Commonwealth v. Bui, 419 Mass. 392, 400-401, cert. denied, 516
U.S. 861 (1995). Absent a plausible showing of bias, "the judge
may restrict or entirely exclude the inquiry." Chicas, supra.Indeed, a judge may limit cross-examination based on concerns
of, among others, "prejudice, confusion of the issues, the
witness's safety, or interrogation that is repetitive or only
marginally relevant." Commonwealth v. Johnson, 431 Mass. 535,
540 (2000).
Here, the defendant failed to make a plausible showing of
bias relative to the witness and gang activity. The defendant
offered mere speculation about the witness's claimed gang ties,
through a nine year old Federal Bureau of Investigation press
release, which purported to show that she had been arrested for
a drug offense along with members of the "Latin Kings" gang.
The defendant also offered another press release which indicated
that the victim's son had pleaded guilty in connection with a
Federal prosecution of the "Latin Kings" in New Bedford.
2
The proffered basis for the witness's potential bias was
attenuated and grounded in speculation. Moreover, as in Bui,
419 Mass. at 401, the connection between the witness and the
"Latin Kings" was too removed and "tenuous" to show that the
witness would lie while on the stand because of the connection.
Finally, there was no evidence or suggestion that the victim was
aware of the witness's claimed gang ties. It was not an abuse
of discretion for the judge to foreclose the inquiry regarding
claimed gang affiliation.
2. Jury instructions. The defendant claims, for the first
time on appeal, that the judge invaded the province of the jury
when he instructed them that if they determined that the
Commonwealth had not proved the greater offense, then the
Commonwealth had proved the lesser included offense. We
disagree.
"Our review of claimed jury instruction errors requires us
to 'evaluate the instruction as whole, looking for the
interpretation a reasonable juror would place on the judge's
words.'" Commonwealth v. Coutu, 88 Mass. App. Ct, 686, 698
(2015), quoting Commonwealth v. Trapp, 423 Mass. 356, 361, cert.
denied, 519 U.S. 1045 (1996). "We do not consider bits and
pieces of the instruction in isolation." Commonwealth v. Young,
461 Mass. 198, 207 (2012).
3
As part of his claim, the defendant sets out three
instructions on lesser included offenses. The one that is
relevant here, and upon which the defendant was convicted, is
the following:
"If the Commonwealth has proved beyond a reasonable doubt
all the other requirements through the charge of assault
and battery with a dangerous weapon causing serious bodily
injury but has not proved that the defendant touched [the
victim] with a dangerous weapon, then the Commonwealth has
proved the lesser included offense of assault and battery
causing serious bodily injury."
According to the defendant, this instruction was "muddled
and confusing," included facts found by the judge and his
opinion, and "compelled the jury to find guilt." The
defendant's claim, however, requires us to read bits and pieces
of the instruction out of context, and to ignore what the judge
actually instructed. We decline the invitation.
Simply enough, the judge explained that the consequence of
the jury finding all the elements of assault and battery causing
serious bodily injury, but not finding that the defendant
employed a dangerous weapon, was that the defendant was guilty
of the lesser included offense. This was a correct statement of
the law. The judge subsequently instructed the jury to "not
misinterpret any of [the] instructions as suggesting any opinion
on what the facts of the case are or what [the jury's] verdict
should be." When the judge's jury instructions are viewed as a
whole, no reasonable juror could have improperly interpreted it
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as the defendant now suggests. As there was no error, there was
no risk that justice miscarried.
3. Missing witness instruction. The defendant also claims
that the judge erred by declining to give a missing witness
instruction relative to the victim. The judge noted the
defendant's objection on the matter. In this posture, we review
for prejudicial error. There was none.
"The decision to provide a missing witness instruction to
the jury is 'within the discretion of the trial judge, and will
not be reversed unless the decision was manifestly
unreasonable.'" Commonwealth v. Figueroa, 79 Mass. App. Ct.
389, 400 (2011), quoting Commonwealth v. Saletino, 449 Mass.
657, 667 (2007). "A missing witness instruction is appropriate
when a party 'has knowledge of a person who can be located and
brought forward, who is friendly to, or at least not hostilely
disposed toward, the party, and who can be expected to give
testimony of distinct importance to the case,' and the party,
without explanation, fails to call the person as a witness."
Figueroa, supra, quoting Saletino, supra.Here, the prosecutor informed the judge that the police had
difficulty locating the victim throughout the pendency of the
case. They searched for him at his last known address, left a
summons for his appearance, and sought to determine if he was
incarcerated. The prosecutor also voiced a concern that the
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victim might assert a Fifth Amendment to the United States
Constitution privilege if he were called to testify and
indicated to the judge that the victim had been hostile towards
the Commonwealth's prosecution throughout the case. Under these
circumstances, the judge's refusal to give a missing witness
instruction was not manifestly unreasonable.
4. Bowden instruction. The defendant also claims that the
judge abused his discretion by refusing to instruct the jury
that they could draw a negative inference against the
Commonwealth based on inadequacies in the police investigation.
See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). We
disagree.
Bowden's only mandate is that a judge may not prevent a
defendant from arguing a defense based on the inadequacy of the
police investigation. See id. Trial judges are not required to
give Bowden instructions. See Commonwealth v. Lao, 460 Mass.
12, 23 (2011); Commonwealth v. Daye, 411 Mass. 719, 740-741
(1992).
Here, while the judge declined to give the requested
instruction, he expressly told defense counsel that he was free
to argue the matter to the jury, which defense counsel later
did. There was neither error, nor an abuse of discretion.
5. Prosecutor's closing argument. Next, the defendant
claims that the prosecutor's closing argument, in which she
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posed a variety of rhetorical questions, improperly shifted the
burden of proof to the defendant, and exploited the defendant's
decision not to testify. The defendant also claims that the
prosecutor's closing argument made an improper appeal to
sympathy. Both claims were preserved by objections, but neither
has merit.2
The defendant's first claim focuses on the following
portion of the prosecutor's argument:
"If [the defendant is] so concerned about his personal
safety, death or [that] serious bodily injury is imminent,
wouldn't he just get in his car and go.
. . .
"Is it reasonable that if this defendant was in fear of
death or serious bodily injury, he wouldn't just get into
his car and go. No. He pulls a knife and then
surreptitiously, he doesn't brandish it and say, oh, get
away from me and I'm afraid and run to my car."
Because the defendant preserved his claims by timely objections,
we must review for prejudice. An error is nonprejudicial only
if we are "sure that the error did not influence the jury, or
2 In an argument heading and in a single introductory sentence,
the defendant also states that the judge's denial of his motion
for a mistrial was an abuse of discretion, but he fails to make
an argument to that effect in his brief. In that posture, the
claim is waived. See Mass. R. A. P. 16 (a) (9), as appearing in
481 Mass. 1628 (2019). However, given our resolution of the
closing argument claims, the judge did not abuse his discretion
in denying the request for a mistrial or to otherwise cure the
prosecutor's argument.
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had but very slight effect" (citation omitted). Commonwealth v.
Flebotte, 417 Mass. 348, 353 (1994).
Contrary to the defendant's claim, the prosecutor's
argument was a request for the jury to evaluate the defendant's
conduct as it was depicted on the surveillance video. As the
judge noted when he overruled the objection and denied the
request for a mistrial, the prosecutor was arguing the reasons
why the jury should reject the self-defense claim. See
Commonwealth v. Williams, 450 Mass. 879, 888-889 (2008). That
was the context of the argument. See Commonwealth v. Allison,
434 Mass. 670, 687 (2001). The prosecutor neither commented on
the defendant not testifying, nor shifted the burden of proof.
The defendant also claims that it was improper for the
prosecutor to argue that the defendant nearly "chopped . . .
off" the victim's ear as that was not supported by the evidence,
and because that was an improper appeal to sympathy. We
disagree. The evidence showed that the victim suffered a five-
centimeter laceration to his right ear, and a piece of his ear
was missing, which left him deformed. The prosecutor's argument
was based on a fair inference from the evidence, and it was not
an appeal to sympathy. See Commonwealth v. Rutherford, 476
Mass. 639, 644 (2017) ("jury are presumed to understand that
prosecutor is advocate, and statements that are [e]nthusiastic
rhetoric, strong advocacy, and excusable hyperbole" do not
8
require reversal [quotation and citation omitted]). Because
there was no error, there was no improper influence on the jury.
6. Impeachment evidence. Finally, the defendant claims
that the judge abused his discretion by allowing the
Commonwealth's motion in limine to permit, if the defendant
chose to testify, impeachment of him with his prior conviction
for threatening to commit a crime. We disagree.
Under G. L. c. 233, § 21, a defendant's prior convictions
may be used to impeach his credibility but not "for the purpose
of establishing the defendant's bad character or propensity to
commit the crime charged." Commonwealth v. Daley, 439 Mass.
558, 563 (2003). We review to determine whether the judge
abused his discretion.3 See Commonwealth v. Little, 453 Mass.
766, 772 (2009). In making that assessment, we consider various
factors, including whether the required balancing test was
conducted, and whether the prior convictions are "substantially
similar" to the crimes for which the defendant is on trial. Id.
at 773. It is "difficult, if not impossible, to show an abuse
of discretion" where the earlier and current crimes are not
substantially similar. Commonwealth v. Brown, 451 Mass. 200,
3 An abuse of discretion occurs where the judge makes "a clear
error of judgment in weighing factors relevant to the decision,
such that the decision falls outside the range of reasonable
alternatives" (quotation and citation omitted). L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
9
203 (2008), quoting Commonwealth v. Drumgold, 423 Mass. 230, 250
(1996).
Here, the Commonwealth's motion in limine offered two
certified prior convictions for impeachment. The first was for
threatening to commit a crime, and the second was for assault.
At the hearing, the judge carefully employed the correct legal
standard. Among other things, he probed the factors of
timeliness4 and similarity. The defendant agreed that both prior
convictions were timely but argued that they were too similar.
As he does on appeal, the defendant argued that even though he
was not on trial for making threats, it was alleged that he
threatened to kill everyone inside and outside the store where
the assault of the victim occurred. After performing a proper
balancing of probative value and prejudicial effect, the judge
exercised his discretion and agreed that the assault was too
similar to the crime for which the defendant was on trial but
ruled that the threats conviction could be fodder for
impeachment.5 There was no abuse of discretion as the judge's
4 Pursuant to G. L. c. 233, § 21, witnesses may be impeached with
prior convictions, subject to strict timing limitations -- five
years for a misdemeanor and ten years for a felony.
5 The defendant also claims that "[i]ntroduction of the prior
conviction for [a]ssault would have painted [the defendant] as a
bad person with a propensity toward violence." However, the
judge did not permit the use of the assault conviction because
it was too similar to the crime being tried.
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decision fell comfortably inside the range of reasonable
alternatives. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014).
Judgment affirmed.
By the Court (Meade,
Desmond & Hand, JJ.6),
Clerk
Entered: February 28, 2023.
6 The panelists are listed in order of seniority.
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