Commonwealth v. Berrocales

• Citation: 982 N.E.2d 1224,83 Mass.App.Ct. 1113
• Decision Date: 15 February 2013
• Docket Number: No. 12–P–12.,12–P–12.
• Parties: COMMONWEALTH v. Darry BERROCALES.
• Court: Appeals Court of Massachusetts

83 Mass.App.Ct. 1113

982 N.E.2d 1224

COMMONWEALTH

v.Darry BERROCALES.

No. 12–P–12.

Appeals Court of Massachusetts.

February 15, 2013.

OPINION TEXT STARTS HEREBy the Court (CYPHER, RUBIN & WOLOHOJIAN, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A jury convicted the defendant of two counts of assault by means of a dangerous weapon, G.L.c. 265 § 15B( b ), and one count of resisting arrest, G.L.c. 268 § 32B.¹ His direct appeal from those convictions has been consolidated with his appeal from the denial of his motion for new trial. For the reasons that follow, we affirm the judgments and the order denying the motion for new trial.

Missing evidence instruction. The defendant argues that he was entitled to a missing evidence instruction given the absence of booking photographs. Although taking photographs was part of the police department's ordinary practice, and the police report had a notation regarding photos, the judge, crediting the police officer's testimony, determined that the defendant had not met his burden of showing that the photos had ever existed. See Commonwealth v. Olszewski, 416 Mass 707, 714–715 (1993). Based on that finding, the judge denied the defendant's request for a missing evidence instruction. Even were we to assume that the defendant was entitled to the instruction, we discern no prejudice from the judge's refusal to give it. See Commonwealth v. Greenberg, 34 Mass.App.Ct. 197, 203–204 (1993). The judge permitted the defendant to argue all negative inference from the lack of photographs, and defense counsel made good use of the point in closing. Moreover, the judge gave a missing evidence instruction with respect to the erased booking videotape, which permitted the jurors to draw the same negative inference regarding the defendant's injuries as they would have from the photographs. Finally, this is not a case where the defendant had to rely on negative inferences alone to establish that he had been injured: the medical records confirmed that he had been injured. Detective Soler's testimony. The judge did not abuse his discretion by denying the defendant's motion for a mistrial after Detective Soler testified that the defendant's car was known to the police through a “prior investigation.” See Commonwealth v. Roby, 462 Mass. 398, 413 (2012)(standard of review). Defense counsel elicited the testimony on cross-examination, see Commonwealth v. Dean, 21 Mass.App.Ct. 175, 181 (1985), and the comment was fleeting, Commonwealth v. Perez, 405 Mass. 339, 344–345 & n. 8 (1989). For the same reasons, the judge did not abuse his discretion when he did not sua sponte give the jury a limiting instruction regarding the same testimony.

Newly-discovered evidence. The defendant moved for a new trial after acquiring documents reflecting complaints by other citizens against some of the officers involved in his arrest. The complaints concerned other incidents not involved in this case. The defendant's sole basis for his motion was that the evidence would have been admissible under Commonwealth v. Adjutant, 443 Mass. 649, 650 (2005), to show that the officers had been the first aggressors. This argument, however,...