Commonwealth v. Sean Desalvo.

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
20-P-970
COMMONWEALTH
vs.
SEAN DESALVO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the District Court, the defendant was
convicted of the following eight counts: three counts of
assault and battery on a family or household member, see G. L.
c. 265, § 13M (a), one count of assault by means of a dangerous
weapon, see G. L. c. 265, § 15B (b), two counts of assault and
battery by means of a dangerous weapon, see G. L. c. 265, § 15A
(b), and two counts of threat to commit a crime, see G. L.
c. 275, § 2.1 He now appeals, arguing that the prosecutor
improperly withheld exculpatory evidence and that portions of
1 This was the defendant's second jury trial, the first trial
having ended in a mistrial.
the complainant's medical records should have been redacted.2 We
affirm.
Background. All counts arise out of the defendant's
romantic relationship with the victim. The victim testified at
trial as follows to the details of that relationship. The
defendant and the victim met in 2013 through an online dating
website. They dated for three years. In September of 2016, the
victim decided to end the relationship, finding the defendant to
be overbearing. Nevertheless, the two continued to talk.
Through January of 2017, they spent time together, remained
sexually intimate, and attempted to fix the relationship. The
victim again ended the relationship, after learning through
Facebook that the defendant was engaged to another woman. She
confronted the defendant and decided to block all communication
with him. They had no communication for two weeks.
On February 3, 2017, the victim's sister received a text
from the defendant. He told the sister that he had broken off
his engagement and that he wished to meet the victim for lunch.
That day, the two reconciled at a roast beef store in East
Boston. They drove to the defendant's house afterwards. Once
there, the defendant's mood changed. He began crying, pulled
2 The defendant's appeals of his convictions and of the denial of
his motion for a new trial were consolidated for briefing and
decision.
2
out a pistol, and screamed at the victim, telling her that he
was going to shoot her and then shoot himself. She was able to
calm him down after half an hour.
Two days later, on February 5, 2017, the victim was sitting
on the defendant's bed when the defendant rushed into the
bedroom and punched her in the face, a single time, with a
closed fist, giving her a black eye. Apparently, the defendant
had seen a post by one of the victim's friends and thought the
victim was cheating on him. The defendant told her that if she
went to the cops or left him, he would kill her children.
On March 22, 2017, the defendant grabbed the victim's head
and smashed it against a doorframe five or six times. He yelled
that he hated her and asked if she thought he was a fool. Two
days later, she went to the emergency room because she was
having dizzy spells and nausea.
Between March and October of that year, the beatings became
more frequent. The victim never went to the police or left the
defendant. He told her that he would kill her if she did.
On October 13, 2017, the victim and the defendant were in
bed. Without warning, the defendant jumped on top of her and
headbutted her. Her eye swelled significantly, but she did not
go to the hospital.
A few days later, the defendant and the victim were
listening to music in the living room. The defendant left the
3
room and returned with a gun. He ran over to the victim and
asked her which leg she wanted blown off. He moved the gun to
her chest. He moved it to her head and then to her arm. He
began poking her with the gun, hard. He told her that he was
going to kill her. He pulled the trigger, while pointing the
gun at her head, but no bullets came out. The victim begged for
her life for forty-five minutes before the defendant calmed
down.
The victim testified that three days later, on October 20,
2017, while she was doing laundry, the defendant ran into the
room and started punching her all over her body. He picked up a
baseball bat and threatened to break her arm. He picked up
scissors and told the victim that he wanted to stab her. He
gave her one last punch on the head before leaving the house.
After he left, she called for help and was taken to the
hospital.
Discussion. The defendant's first argument on appeal is
that he deserves a new trial because the prosecutor withheld
exculpatory evidence in violation of Brady v. Maryland, 373 U.S.
83, 87 (1963). The defendant filed a motion for a new trial on
this ground, which the trial judge denied. "To obtain a new
trial on the basis of nondisclosed exculpatory evidence, a
defendant must establish (1) that the evidence [was] in the
possession, custody, or control of the prosecutor or a person
4
subject to the prosecutor's control, (2) that the evidence is
exculpatory, and (3) prejudice" (quotations and citation
omitted). Commonwealth v. Caldwell, 487 Mass. 370, 375 (2021).
"Of course, inherent in that analysis is the presupposition that
the exculpatory evidence at issue was actually undisclosed and
is newly discovered." Commonwealth v. Pope, 489 Mass. 790, 798
(2022), quoting Commonwealth v. Caillot, 454 Mass. 245, 261-262
(2009), cert. denied, 559 U.S. 948 (2010).
Prior to sentencing, the prosecutor disclosed that an
impact statement of the victim, a written document describing
several of the defendant's assaults on her, had been in the
Commonwealth's possession prior to trial and had not been
disclosed to the defense. Without question this written
statement of the victim should have been provided to the
defendant pursuant to Mass. R. Crim. P. 14 (a) (1) (A), as
amended, 444 Mass. 1501 (2005). The defendant argues that the
statements are exculpatory because they are inconsistent with
the victim's trial testimony and could have been used to impeach
her credibility. See Commonwealth v. Collins, 470 Mass. 255,
267 (2014) ("The Commonwealth is required to disclose
exculpatory evidence to the defendant, including, as is relevant
here, evidence that would tend to impeach the credibility of a
key prosecution witness").
5
We agree that two isolated portions of the victim's impact
statement could have been used for cross-examination. First, in
the statement, she stated that the defendant punched her
repeatedly in the face on February 5, 2017. In her trial
testimony, she stated clearly that there was only a single
punch. Second, the impact statement did not mention the
assaults on March 22, 2017, and October 13, 2017, which she
described during her testimony. Although this omission from the
statement certainly doesn't prove that the assaults did not
occur, defense counsel could at least have used these
inconsistencies to attack the victim's memory and the
truthfulness of her story. The defendant is therefore correct
that "the Commonwealth possessed but did not disclose
exculpatory evidence at the time of the defendant's trial."
Pope, 489 Mass. at 801.
However, we conclude that the failure to turn over the
victim impact statement was not prejudicial to the defendant.
While there is some disagreement between the parties as to
whether the defendant "need only demonstrate that a substantial
basis exists for claiming prejudice from the nondisclosure," see
Commonwealth v. Tucceri, 412 Mass. 401, 412 (1992), which is the
standard applied "when the defendant has made a specific request
for exculpatory evidence," see Pope, 489 Mass. at 801, the
defendant's claim fails even assuming this "more favorable"
6
standard applies. That is because the defendant's attempts to
use isolated portions of the impact statement to impeach the
victim would certainly have led to the introduction of other
portions of the document. See Commonwealth v. Wright, 444 Mass.
576, 583 (2005) ("[t]he introduction of parts of statements on
cross-examination generally allows detailed examination of the
entire statements on redirect" [citation omitted]). Here, the
Commonwealth would have been allowed to explore the context of
the statement and highlight the reasons why the facts elicited
in a lay witness narrative might differ from those elicited
through the expert handling of an experienced prosecutor.
Attempts to impeach through the victim impact statement would
likely have led to the introduction of a number of statements
quite harmful to the defendant's case. The Commonwealth may
have elicited that she "feared and continued to fear for [her]
life and [her] family's because . . . the defendant . . .
threatened [her] family, saying that he would send [her] eldest
son home in a body bag in pieces and [her] youngest son would be
hanging by his genitals in a tree and skinned alive." Or, the
prosecution may have elicited that the victim was told that she
was "ugly, fat, a terrible parent and that the only way [she]'d
ever be able to leave the defendant['s] . . . house was after he
had beaten [her] to the point of being unrecognizable with a
fire extinguisher." The list goes on. Any use of the impact
7
statement that might have proved beneficial to the defense would
have opened the door to a flood of harmful evidence and would
have done more harm than good for the defendant's case. We
therefore conclude that the trial judge did not abuse his
discretion in denying the defendant's motion for a new trial.
The defendant's second argument is that portions of the
victim's medical records that were introduced at trial should
have been redacted. Specifically, the defendant argues that the
medical records improperly included references to an "assault,"
see Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998),
perpetrated by the victim's "boyfriend," see Commonwealth v.
Dwyer, 448 Mass. 122, 138 (2006). Trial counsel did not request
these redactions, so we must determine whether there is an error
that creates a substantial risk of a miscarriage of justice.
See Commonwealth v. Belcher, 446 Mass. 693, 696 (2006).3
This claim was not included in the defendant's motion for a
new trial, and the defendant has not offered an affidavit from
3 In the alternative, the defendant claims that trial counsel was
ineffective for failing to seek these redactions. "[W]hen a
defendant alleges that his failure to preserve an issue for
appeal stems from ineffective assistance of counsel, as this
defendant has, we do not evaluate the ineffectiveness claim
separately. If we determine that an error has been committed,
we ask whether it gives rise to a substantial risk of a
miscarriage of justice -- ineffectiveness is presumed if the
attorney's omission created a substantial risk, and disregarded
if it did not." Commonwealth v. Randolph, 438 Mass. 290, 296
(2002).
8
trial counsel. For aught that appears, trial counsel's failure
to redact the medical records may have been a tactical decision.
See Commonwealth v. Dargon, 457 Mass. 387, 397 (2010) (in
reviewing for substantial risk of miscarriage of justice, court
considers whether counsel's failure to raise claim earlier was
reasonable tactical decision).
Trial counsel did bring a motion to redact the records, and
portions of them were redacted. But he did not seek to redact
the portions to which the defendant now points. Trial counsel's
theory was that the victim fabricated the allegations so that
she could keep the defendant as her boyfriend. Counsel argued
in opening statement that the victim "fabricates these
allegations . . . to get [the defendant] arrested, or to punish
him because [she wants] to be with [him], and if [she] can't
have [him], this is what's going to happen." That theory may
explain trial counsel's decision to leave portions of the
medical record referencing "assault" and "boyfriend" intact.
The fact that the victim chose to tell medical professionals
that her boyfriend was the cause of the injuries -- rather than
choosing to protect his identity and blame the injuries on a
different cause -- was consistent with trial counsel's theory
that the allegations were an attempt to punish the defendant.
Trial counsel may have concluded that the medical records,
9
scrubbed of "assault" and "boyfriend," would have been of little
help to trial counsel's theory of motive.
The failure to seek redaction of these portions of the
medical records may also have been part of a deliberate strategy
to elicit inconsistencies between the medical records and the
victim's claim of assault. In trial counsel's opening
statement, he told the jury that when the victim was "examined,
she tells them I've been assaulted. It's a past assault." He
told the jury "to take a look at these medical records . . .
look at the diagnosis. The medical records will tell you
there's no objective signs of trauma." In trial counsel's
closing argument, he recited portions from the medical record:
"Patient presented to ER stating she got in a fight with the
boyfriend two days ago, got punched in the head and had her hair
pulled." He pointed out that the victim failed to mention the
incident where, the victim alleged, the defendant banged her
head on a doorframe. Trial counsel compared the victim's
reported statements, that she noted "her boyfriend put a gun to
her head and chest," to the hospital's conclusion that she has
"old ecchymosis over the right eye," emphasizing that "Mass
General Hospital said this is not new bruising; this is old."
Trial counsel's attempt to discredit the victim's statements by
comparing them with inconsistent medical diagnoses may have been
a reasonable tactical decision. Therefore, on this record, we
10
find no substantial risk of a miscarriage of justice. For the
same reason, we also reject on this record the defendant's claim
that trial counsel's failure to redact the medical record
constituted ineffective assistance of counsel. See Commonwealth
v. Ogden O., 448 Mass. 798, 806 (2007) ("A strategic or tactical
decision by counsel will not be considered ineffective
assistance unless that decision was 'manifestly unreasonable'
when made").
Judgments affirmed.
Order denying motion for new
trial affirmed.
By the Court (Rubin,
Massing & D'Angelo, JJ.4),
Clerk
Entered: March 24, 2023.
4 The panelists are listed in order of seniority.
11