Commonwealth v. Wood

• Decision Date: 16 September 2016
• Docket Number: No. 14–P–1389.,14–P–1389.
• Parties: COMMONWEALTH v. James WOOD.
• Court: Appeals Court of Massachusetts

90 Mass.App.Ct. 271

58 N.E.3d 1056

COMMONWEALTH

v.James WOOD.

No. 14–P–1389.

Appeals Court of Massachusetts, Middlesex.

Argued Oct. 7, 2015.

Decided Sept. 16, 2016.

Joseph J. Mazza, Waltham, for the defendant.

Jessica Langsam, Assistant District Attorney, for the Commonwealth.

Present: KATZMANN, RUBIN, & WOLOHOJIAN, JJ.

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 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. At 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 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) 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 at 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 Medford apartment at 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 also was 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 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 recently had 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. 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 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, 950 N.E.2d 407 (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, 20 N.E.3d 930 (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...