text:
    COMMONWEALTH v. Peter V. GRANTSIS.
    16-P-1597
    Appeals Court of Massachusetts.
    Entered: February 13, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Peter V. Grantsis, appeals from a District Court judge's order revoking his probation. He contends that the evidence was insufficient to prove that he had committed any new crimes. We affirm.

Background. On July 14, 2015, the defendant pleaded guilty to assault and battery, G. L. c. 265, § 13A(a ). He was sentenced to six months in the house of correction with the balance suspended for one year of probation. On July 6, 2016, prior to the expiration of his probation term, he was charged with four new offenses: (1) unlawful possession of a theft detection device remover, G. L. c. 266, § 30(b ) ; (2) receiving stolen property, G. L. c. 266, § 60 ; (3) shoplifting by asportation, G. L. c. 266, § 30A ; and (4) violating an abuse prevention order, G. L. c. 209A, § 7. The defendant was subsequently detained pending a probation violation hearing that was held on July 27, 2016.

At the hearing, a probation officer introduced a police report outlining the events underlying the first three new charges. The report, which the judge found to be substantially reliable, was prepared by Hanover police Officer Colin Grady. It explained that on the evening of July 5, 2016, Officer Grady was working a patrol shift at the Hanover Mall. At 6:15 P.M. he was made aware that mall public safety officers were monitoring a couple pushing a baby stroller. He was also advised that the couple had exhibited suspicious behavior in the past. The following then occurred:

"Public Safety Officer William Sanna was watching the couple using the [m]all CCTV. Sanna reported the couple went into Old Navy and Fye. Sanna then watched as the male party ... entered into Walmart. The female ... with the child ... went to their vehicle in the parking lot.
"Sanna watched on CCTV as [the female] entered the vehicle and began to remove clothing items from her hand bag and place them in the vehicle. ... Sanna reported that [the female] and [the child] reentered the mall. I arrived at the vehicle and looked in the rear passenger window. In plain sight I could see a stack of clothes with Old Navy tags on them."

After the couple was caught acting suspiciously in a Victoria's Secret store, they returned to the vehicle and began to drive away. At that time, Officer Grady pulled them over and approached the vehicle. He observed that the female was driving and the male-who turned out to be the defendant-was in the passenger seat. Upon searching the defendant, Officer Grady discovered a pair of pliers and a multi-tool, which "based on [his] training and experience," he knew to be tools used to remove security devices. After both parties were arrested, a search of the vehicle revealed over $250 worth of merchandise from Old Navy and Dick's Sporting Goods, both stores in the mall. Based on these facts, the judge found that the defendant had violated his probation by committing the crimes of shoplifting and receiving stolen property. Following a sentencing hearing, the judge imposed the suspended sentence with credit for time served. This appeal ensued.

Discussion. The defendant argues that the police report was insufficient to prove any of the newly charged crimes and, therefore, the order revoking his probation should be reversed. We disagree. The report was sufficient to establish, as the judge found, that he received stolen property.

The standard of proof at a probation surrender hearing is the less demanding civil standard of preponderance of the evidence. See Commonwealth v. Holmgren, 421 Mass. 224, 227 (1995). Where, as here, the judge's findings are based solely on documentary evidence contained in the record, our review is de novo. See Commonwealth v. Santana, 477 Mass. 610, 616 (2017).

The crime of receiving stolen property requires proof that: (1) the property in question was stolen; (2) the defendant knew that it was stolen; and (3) the defendant knowingly had the stolen property in his possession. See G. L. c. 266, § 60 ; Commonwealth v. Namey, 67 Mass. App. Ct. 94, 97 (2006). All three elements may be established by circumstantial evidence. See Commonwealth v. Cromwell, 53 Mass. App. Ct. 662, 668 (2002). Proof that the defendant actually possessed the stolen goods is not required, rather possession "may be joint and constructive." Namey, supra at 98 n.7. Moreover, "if the defendant's possession of property exhibits 'peculiarities' and 'occur[s] in a context fraught with suspicion,' a [fact finder] may draw inferences that ... the defendant had received and was holding, and knew he was holding, stolen goods." Cromwell, supra, quoting from Commonwealth v. Kirkpatrick, 26 Mass. App. Ct. 595, 596 (1988). The information in the police report was sufficient to establish that the defendant received stolen property by a preponderance of the evidence.

First, there was sufficient circumstantial evidence to establish that the defendant had constructive possession of the stolen merchandise. Constructive possession requires proof that the defendant had "knowledge coupled with the ability and intention to exercise dominion and control." Commonwealth v. Sespedes, 442 Mass. 95, 99 (2004), quoting from Commonwealth v. Brzezinski, 405 mass. 401, 409 (1989). Although "presence in an area where contraband is found 'alone cannot show the requisite knowledge, power, or intention to exercise control ... presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency.' " Brzezinski, supra at 409-410, quoting from Commonwealth v. Albano, 373 Mass. 132, 134 (1977). Here, the defendant was not merely present in the car. The evidence showed that in addition to his presence: (1) at least some of the stolen goods were placed in the vehicle by his associate shortly after they emerged from Old Navy together; (2) he was sitting in close proximity to the goods, which were plainly visible on the back seat; and (3) he possessed two different tools often used to remove retail security devices. A fact finder could infer from these circumstances that the defendant was not only aware of the goods, but also that he had the ability and intent to exercise control over them.

Second, the defendant's possession of the goods was sufficiently "fraught with suspicion" that a fact finder could infer that the goods were stolen, and that the defendant knew it. Cromwell, supra, quoting from Kirkpatrick, supra. The suspicious attending circumstances included the following: at least some of the goods-the clothes from Old Navy-were taken from the mall on the evening of the arrest; those clothes were stowed in the female's hand bag when the couple departed from the store; both the defendant and the female possessed tools often used to remove security devices; and a witness from the mall reported to the police and public safety officers that she had seen the couple engaging in furtive behavior. See Kirkpatrick, supra at 600 ("The inference permitted by possession of recently stolen property is a strong one. It may act as a substitute for direct proof of guilty knowledge"). Combined with the store manager's earlier observation and report that the defendant and his companion "did try to steal merchandise from the store," these peculiarities, considered with the facts listed above, were sufficient to prove by a preponderance of the evidence that the defendant received stolen property. Therefore, the order revoking his probation is affirmed.

Order revoking probation affirmed.

      The police report did not address the abuse prevention order charge.

      The store's manager reported to Officer Sanna that "[the couple] did try to steal merchandise from the store." She further told Officer Grady that she saw the female drop a shirt and its security device, which had been removed, before placing the shirt back on the rack and reattaching the security device.

      Officer Grady also discovered a magnet in the female's hand bag, which he knew to be another tool used to remove security devices.

      The judge memorialized, in the probation hearing finding and disposition form, that she found the defendant in violation of probation based upon the new crimes of "shoplifting" and "receiving stolen property" in an amount greater than $250. Thus, the alleged violation of the terms of an abuse prevention order did not serve as a basis for the judge's finding of a probation violation. Accordingly, the lack of evidence at the hearing of a violation of the abuse prevention order is not relevant to our resolution of the defendant's appellate claim.

      In his brief, the defendant specifies that he "only challenges [the judge's] finding of violation; he does not dispute that it would have been within the judge's discretion to revoke his probation and sentence him to six months in the house of correction if she'd properly found him in violation."

      The defendant does not challenge the judge's finding that the hearsay contained within the police report was substantially reliable, and thus properly admitted. See Commonwealth v. Patton, 458 Mass. 119, 133 (2010).

      The evidence was also sufficient to support a finding, by a preponderance of the evidence, that the defendant had violated the conditions of his probation by shoplifting on a theory of joint venture. See Commonwealth v. Torrealba, 316 Mass. 24, 29 (1944). Even assuming, arguendo, that the evidence was insufficient to sustain this finding, we would nonetheless affirm the order revoking the defendant's probation for the reasons discussed supra. See Rubera v. Commonwealth, 371 Mass. 177, 180-181 (1976) ("Any conduct by a person on probation which constitutes a violation of any of the conditions of his probation may form the basis for the revocation of that probation").


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Hemchand DEODAT.
    16-P-1218
    Appeals Court of Massachusetts.
    Entered: February 13, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial, the defendant, Hemchand Deodat, was convicted of the following: assault by means of a dangerous weapon (knife); assault and battery on a household member; and assault and battery by means of a dangerous weapon (ABDW), to wit a baseball bat. On appeal, the defendant claims error from evidentiary rulings by the judge, namely the admission of opinion evidence as to the commonality of domestic violence victims delaying reporting abuse. The defendant also challenges certain remarks by the prosecutor in her closing. We affirm.

1. Background. We summarize the facts that the jury could have found, reserving some details for discussion of the legal questions before us. At all relevant times, Jane Smith had been engaged to marry the defendant; the couple lived together in a Framingham apartment.

On January 19, 2015, the defendant woke Smith, ordering her to clean her son's bedroom (her son had just moved out). Smith said to the defendant that it was 2:00 A.M., that she "had to get up for work at [5:00 A.M.]," and that she would clean the room after her shift. She turned back over in bed to sleep. While she was asleep, the defendant hit Smith with a baseball bat. Smith asked the defendant "what was wrong, and why was he doing it." While the defendant was hovering over Smith with the bat in his hand, he told her to "[g]et the fuck up and clean the room right now." Smith retreated to another room in the apartment to avoid being hit again; the defendant pursued her. She tried to run down a staircase to the front door, however, the defendant "pulled [Smith] back by [grabbing her] hair," causing her to fall on the bottom step. He put a knife to her throat. The defendant pulled out "lots of" Smith's hair and threatened to kill her if she did not get back inside the apartment. Smith went to her son's room and soon thereafter fled from the home and ran to a nearby police substation, but it was closed. Smith, who was barefoot and clad only in a nightgown, went home. She approached the defendant and asked him to "try to work things out" while she looked for a place to live. Two days later, using her cellular telephone's camera, Smith took photographs of her injuries. She did not seek medical treatment.

The Commonwealth offered evidence to show that a separate incident of domestic violence had occurred in April, 2015. On that afternoon, upon returning home from work, Smith laid down to rest. She awoke when the defendant struck her with his cane. He told her: "[G]et the fuck up or there's going to be some bloodshed." He demanded that she cook his dinner.

On May 14, 2015, Smith and the defendant traveled to the South Middlesex Opportunity Council (SMOC) to apply for fuel assistance. At SMOC, in the presence of others, the defendant cursed and berated Smith. When Smith "put [her] hands up and said [she could not] take it anymore," SMOC personnel would not let her leave. They had her speak with a domestic violence representative and then with Framingham police Detective Stacey Macaudda. Smith, while crying and shaking, explained that she and the defendant had "agreed" to try to work things out until she found "somewhere" to live, but the abuse had continued.

2. Discussion. a. Opinion evidence. The defendant argues that the Commonwealth should not have been allowed to offer opinion evidence from Detective Macaudda on the issue of Smith's delay in reporting the incidents.

On direct, the Commonwealth briefly apprised the jury of Detective Macaudda's experience and training as an investigator of domestic violence crimes. Then, immediately after the judge and counsel conferred outside the presence of the jury, the detective opined: it is "absolutely common" for victims of domestic violence to report crimes later than they occur. Relying on Commonwealth v. Goetzendanner, 42 Mass. App. Ct. 637, 642 (1997), the defendant argues that this was impermissible expert opinion testimony that ought to have been excluded. In Goetzendanner, we held that "the pattern of behavioral and emotional characteristics common to the victims of battering lies beyond the ken of the ordinary juror and may properly be the subject of expert testimony." Ibid. See Commonwealth v. Morris, 82 Mass. App. Ct. 427, 430 (2012). Here, the Commonwealth had failed to identify the detective as an expert in its pretrial submissions and also had not properly qualified her as such at trial. We assume but do not decide that the admission of the detective's "opinion" was error, notwithstanding other mitigating factors: that the contested opinion evidence was brief, succinct, and followed on the heels of an indiscernible sidebar conference. We hold that, assuming there was error, it "did not influence the jury, or had but very slight effect." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

First, the opinion testimony did not itself bear on any essential elements of the charged crimes. Rather, Smith's unequivocal testimony recounting in detail the defendant's conduct established all essential elements of the offenses for which the jury found guilt. Smith's account of the harm she had suffered at the hands of the defendant was properly admissible in all respects. Indeed, it was supported by photographic proof of Smith's injuries from the January attack.

Second, the challenged testimony was a fleeting reference about domestic violence victims generally, while there was also case-specific testimony about why Smith came forward when she did. When the defendant spoke to her abusively in front of others at SMOC, personnel at SMOC intervened. Only then, after Smith spoke to a domestic violence representative, did she go to the police. She testified: "I was scared. I was upset. I was nervous. I didn't put it in because I didn't want to get him in trouble. I just wanted to work things out. That's all I've been asking."

Third, the Commonwealth did forgo any further witness commentary as to the particular indicia of battered woman's syndrome. Compare Commonwealth v. Morris, supra at 432-433. Cf. Commonwealth v. Gordon, 87 Mass. App. Ct. 322, 333 n.13 (2015) (noting "complex phenomenon" of domestic violence). Nor did the detective repeat the narrative details presented by Smith herself. Moreover, defense counsel did not raise the lack of notice issue but instead ably cross-examined the detective.

Finally, the jury acquitted the defendant on the ABDW count involving a cane. The jury's rejection of this charge demonstrates that any error in the admission of the detective's opinion did not influence their dispassionate appraisal of the evidence. See Commonwealth v. Montez, 450 Mass. 736, 749 (2008).

b. Other evidentiary matters. The defendant also raises what he has described as "minor" errors: that the jury heard testimony that he was not employed, and that Smith had obtained a restraining order against him. Substantially for the same reasons just discussed, there was neither any error nor any piling-on effect vis-à-vis the opinion evidence.

The Commonwealth is " 'entitled to present as full a picture as possible of the events surrounding the incident itself,' as long as the probative value of the evidence presented is not substantially outweighed by any prejudice to the defendant." Commonwealth v. Martinez, 476 Mass. 186, 191 (2017), quoting from Commonwealth v. Hernandez, 473 Mass. 379, 394 (2015). The defendant's employment status was relevant to corroborate that he could be home at the time of the second attack, a time when many would be at work. It also confirmed Smith's testimony that she asked the defendant for income verification at SMOC and that his abuse followed. In no event was the defendant's unemployment used to cast unfair judgment on the defendant's character. We discern no abuse of discretion in the admission of this evidence.

There was also a passing reference by Detective Macaudda that Smith had obtained a restraining order. This brief statement was, amidst the whole trial testimony, inconsequential. The judge's instructions to the jury, delivered at the start of the trial and similarly in his final charge, made it quite plain that "the [criminal] complaint itself is not evidence of the defendant's guilt," and "[t]he fact that a complaint issued against the defendant should not be considered by [them] at all as any evidence of his guilt whatsoever in [their] deliberations." Here, the brief testimonial reference to a restraining order was linked to the criminal complaint, see note 9, supra, but the former was not admitted in evidence nor made mention of at any later time. Contrast Commonwealth v. Foreman, 52 Mass. App. Ct. 510, 513-515 (2001) (restraining order documentation admitted in evidence). We presume that the jury adhered to the judge's instructions. Their verdict strongly suggests as much.

c. Prosecutor's closing. The defendant contends that the prosecutor improperly vouched for Smith's credibility in her closing argument to the jury. The prosecutor stated:

"Now, you heard a lot about how [Smith] didn't-from the defense attorney how [Smith] didn't remember what the knife looked like in May when she reported the incident, but she testified to you today and she told you today what it looked like.
"And while it might [not] make sense that many months down the line how does your memory become better, a lot of times, especially with victims of such violent crimes, things settle down later. It settled down to her. She described the knife to you. She told you she hid all the knives because she was so afraid of the defendant."

Because the defendant did not object to this argument by the prosecutor, we review the alleged error for whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Jones, 471 Mass. 138, 148 (2015). The defendant has a considerable burden to demonstrate that an alleged error, or combination, by the prosecutor in closing argument, caused a substantial risk of a miscarriage of justice. Commonwealth v. Amirault, 424 Mass. 618, 650-651 (1997). "A mere possibility of a different outcome will not satisfy this burden." Id. at 652. We have considered the prosecutor's closing remarks, in the context of the entire case, including the judge's charge. We conclude that no substantial risk of a miscarriage of justice was created.

Judgments affirmed.

      The jury acquitted the defendant of an ABDW charge that involved a cane.

      A pseudonym.

      Before approaching him, Smith took the kitchen knives, put them in a bag, and hid "them" in the snow outside.

      The appellate record includes only the exhibit list, not the photographs admitted in evidence and shown to the jury.

      The discussion was "indiscernible" to the court transcriber.

      On redirect, the detective added that in "many of [her] cases that involve domestic violence, it takes time before somebody has the courage or the strength or the ability to come forward ... [s]o a lot of times [her] cases are reported much after the incident has taken place."

      The defendant also relies on three out-of-State cases: Venalonzo v. People, 388 P.3d 868, 871, 880-881 (Col. 2017) (in case alleging defendant committed sexual assault on child, forensic interviewer offered impermissible expert testimony in guise of lay opinion without notice to defendant; error prejudicial); State v. Gonzalez, 150 N.H. 74, 77-80 (2003) (testimony about victim recantations was expert testimony erroneously admitted as lay testimony; error harmless); State v. Duran, 343 P.3d 207, 210-213 (N.M. 2014) (testimony by one who interviewed child disclosing sexual abuse was expert, not lay, opinion testimony; admission not harmless). These decisions are not controlling but, more importantly, each engages in the analysis we undertake here, i.e., whether the admission of the testimony was harmless. This is a fact-specific inquiry.

      The defendant concedes that neither these errors nor the alleged improper closing argument, discussed infra, would alone warrant a new trial.

      On direct, Detective Macaudda testified: "I conducted an investigation into domestic-violence charges and eventually did take charges out on someone, and I assisted [Smith] in getting a restraining order for protection."


text:
    COMMONWEALTH v. PADRAIC P., a juvenile.
    16-P-1318
    Appeals Court of Massachusetts.
    Entered: February 13, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Juvenile Court, the juvenile was convicted of two counts of rape and one count of indecent assault and battery on a person with an intellectual disability, all as a youthful offender, and was adjudicated delinquent on one count of assault and battery on a person with an intellectual disability. The juvenile appeals, claiming the judge erred by: (1) finding the victim competent; (2) excluding portions of the victim's treatment records; (3) precluding testimony as to the victim's general reputation for truthfulness; (4) excluding evidence of the victim's prior sexual knowledge; (5) failing to properly instruct the jury on serious bodily harm; and (6) failing to enter a required finding of not guilty on the youthful offender portions of the indictments. The juvenile also contends that the prosecutor presented misleading evidence that impaired the integrity of the grand jury proceedings. We affirm.

Background. The jury could have found the following facts. The victim, whom we shall call Andrew, is a cognitively impaired man with an IQ score of forty-four. As a result of his intellectual disability, Andrew is like "a young child ... stuck in a young man's body." In 2004, he became a client of the Department of Developmental Services (DDS). In July, 2011, he was placed in adult foster care. Nearly two years later, in September, 2013, Andrew disclosed to his mother that the juvenile, the grandson of Andrew's foster parents, was sexually abusing him.

When Andrew first moved to the foster home, he was twenty-four years of age and the juvenile was fifteen years of age. While his foster parents were at work, Andrew was entrusted to the care of the juvenile. The abuse started soon thereafter. Andrew, who described the conduct as "exercise," told his mother that he and the juvenile "exercised" in the basement, the juvenile's bedroom, the laundry room bathroom, and the back porch. The juvenile would take off Andrew's clothing, without his permission, and would make him perform oral sex. The juvenile also penetrated Andrew anally on multiple occasions. During one such incident, the juvenile grabbed Andrew's legs and dragged him off the bed to the floor. Andrew did not report what was happening because he was afraid that he would get in trouble.

Discussion. 1. Andrew's competency. The juvenile challenges the trial judge's determination, following a voir dire hearing, that Andrew was competent to testify. He also claims that the judge erred in denying his motion for an independent evaluation of Andrew pursuant to G. L. c. 123, § 19.

The determination of competency is a factual one and is "peculiarly within the trial judge's discretion." Commonwealth v. Jiminez, 10 Mass. App. Ct. 441, 443 (1980). In determining the competency of a witness, the judge conducts a two-prong test: "(1) whether the witness has the general ability or capacity to observe, remember, and give expression to that which [he] ha[s] seen, heard, or experienced; and (2) whether [the witness] has understanding sufficient to comprehend the difference between truth and falsehood, the wickedness of the latter and the obligation and duty to tell the truth, and, in a general way, belief that failure to perform the obligation will result in punishment." Commonwealth v. Trowbridge, 419 Mass. 750, 754-755 (1995) (quotation omitted). See G. L. c. 233, § 20. "A judge's determination of competency is discretionary and will seldom be faulted on appellate review," except where "the judge applies an incorrect legal standard." Trowbridge, supra at 755.

Here the judge did not abuse her discretion in finding that Andrew was competent to testify. She not only heard Andrew and observed his demeanor during the competency hearing and the trial, but also gave the juvenile wide latitude to present additional witnesses during the voir dire hearing. Based on Andrew's testimony, the judge determined that he understood the difference between the truth and a lie, and was generally able to perceive events. Because the trial judge has considerable discretion and was in the best position to assess Andrew's competency, we will not disturb her finding. See Commonwealth v. Tang, 66 Mass. App. Ct. 53, 63 (2006).

Similarly, the judge's denial of the juvenile's request for an independent evaluation of Andrew pursuant to G. L. c. 123, § 19, was not an abuse of discretion. See Trowbridge, supra at 755. An independent examination is necessary only where there is a "compelling need" and the examination "will produce substantial evidence bearing on the witness's testimonial capacity." See Commonwealth v. Gibbons, 378 Mass. 766, 773 (1979). The judge's decision was not "a clear error of judgment ... such that the decision fell outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (quotation omitted).

2. Exclusion of Andrew's treatment records. Prior to trial, the juvenile filed a motion in limine to admit Andrew's treatment records from various programs he attended, which was allowed in part. After a review of the records, the judge ordered that records related to specific instances of hallucination or storytelling were admissible. The juvenile contends that such a limitation was arbitrary and violated his confrontation right where the case rested entirely on the credibility of Andrew. We disagree.

We review the judge's decision to determine whether she abused her discretion. Commonwealth v. Sharpe, 454 Mass. 135, 143 (2009). The judge examined each record individually to determine whether it should be admitted or excluded. She distinguished between statements in the record that were about treatment and generalized statements or notations without context. Contrast Commonwealth v. Polk, 462 Mass. 23, 28-29 (2012) (defendant purported to offer expert testimony to give context to treatment records). After careful examination, she excluded those records that were vague, lacked context, and contained "conclusory statements without further information about the basis for the statements," as their "probative value ... was substantially outweighed by the danger of unfair prejudice." See Commonwealth v. Dwyer, 448 Mass. 122, 129 (2006).

The judge acted within her discretion in her careful and deliberate ruling, which ensured that the juvenile could present substantial evidence regarding Andrew's credibility while excluding vague evidence that would have confused the jury. Moreover, the juvenile suffered no prejudice. Indeed, a significant portion of Andrew's otherwise privileged mental health records were admitted, and the juvenile was allowed to cross-examine Andrew and others based on the records.

3. Evidence of Andrew's reputation for truthfulness. The juvenile contends that it was error for the judge to preclude testimony of Andrew's case manager regarding his knowledge of Andrew's general reputation for truthfulness. We review to determine whether the judge abused her discretion. Commonwealth v. LaPierre, 10 Mass. App. Ct. 871, 871 (1980). Following a voir dire hearing, the judge properly precluded this evidence as the witness lacked a sufficient basis to characterize Andrew's reputation for honesty, and the testimony did not establish a sufficiently numerous group from which to draw a conclusion about Andrew's reputation. "A judge has discretion to exclude evidence of reputation if [she] determines that it is based on the opinions of too limited a group." Commonwealth v. Gomes, 11 Mass. App. Ct. 933, 933 (1981). Moreover, judges must be particularly cautious in admitting character evidence when, as is the case here, they are faced with a mentally impaired victim. See Commonwealth v. Despres, 70 Mass. App. Ct. 645, 650-651 (2007). The judge did not abuse her discretion.

4. Evidence of Andrew's prior sexual knowledge. The juvenile next claims that the judge erred in excluding evidence of Andrew's prior sexual knowledge, specifically his knowledge and practice of masturbation. He contends that if Andrew understood and enjoyed sexual gratification, evidence of his prior sexual knowledge would allow the jury to infer that Andrew consented to the rapes. General Laws c. 233, § 21B, seeks to avoid putting a victim's sexual practices on trial in an effort to discredit his claims of abuse. See Commonwealth v. Fitzgerald, 412 Mass. 516, 523 (1992). Where specific instances of sexual conduct are proffered for a permissible purpose, a judge must still determine whether the evidence's weight and relevance outweigh its prejudicial effect. See Commonwealth v. Parent, 465 Mass. 395, 405 (2013).

Here, the judge allowed the juvenile to ask Andrew and his mother about a conversation the two of them had several months prior to the first complaint. The judge did, however, exclude evidence of Andrew's masturbation practices. Andrew's knowledge of masturbation does not equate with his understanding of anal or oral intercourse. This is particularly true where consent was not an issue on appeal. Contrast Commonwealth v. Reid, 400 Mass. 534, 541-542 (1987) (evidence of masturbation meant to explain physical feature of child victim). The judge did not abuse her discretion where evidence of masturbation would have resulted in the "harassment and ... humiliation" of Andrew. Commonwealth v. Joyce, 382 Mass. 222, 228 (1981) (quotation omitted).

5. Jury instructions. The juvenile argues that the judge erred in instructing the jury on the third element of the youthful offender indictments-the threat or infliction of serious bodily harm. The juvenile requested that the judge instruct the jury that serious bodily harm is permanent disfigurement, loss or impairment of a bodily function, or a substantial risk of death. Instead the judge instructed the jury as follows:

"The term serious bodily harm is not specifically defined in the youthful offender statute. It is not the inherent nature of the alleged crime that you should consider in making this determination, but rather the specific facts of the case before you. In determining what constitutes the infliction or threat of serious bodily harm, the courts have held that sexual penetration alone does not in every circumstance create a threat of serious bodily harm. The act of penetration under certain-certain circumstances can be sufficient evidence of threat or inflictions of serious bodily harm based on the invasive nature of penetration. In making a determination whether the Commonwealth has proved this element beyond a reasonable doubt, you may consider factors such as whether the juvenile defendant held a position of authority over the complainant such as in the case of a parent or a teacher, etcetera, or whether there is an age difference between the juvenile defendant and the complainant, and ... the vulnerability of the complaining witness."

Because the issue was properly preserved, we review to determine whether there was error, and if so whether it was prejudicial. Commonwealth v. Wolfe, 478 Mass. 142, 144 (2017). No such error exists here.

While the statute itself does not define serious bodily harm, there are no cases that require the type of instruction or stringent definition that the juvenile sought. Instead, the Supreme Judicial Court has looked to the totality of the circumstances, based on the ordinary understanding of the serious bodily harm, to determine whether the element is satisfied. See, e.g., Commonwealth v. Clint C., 430 Mass. 219, 226 (1999) (serious bodily harm element satisfied based on juvenile's position of authority over victim, age difference, and invasive nature of the sexual act); Commonwealth v. Washington W., 462 Mass 204, 210 (2012) (serious bodily harm satisfied where juvenile pushed victim to ground to be penetrated). We have done so as well. See Commonwealth v. Todd, 87 Mass. App. Ct. 780, 784 (2015) (authority of juvenile over victim can be considered when assessing threat of serious bodily harm). Here, the juvenile, who was Andrew's caretaker, took advantage of the fact that Andrew was child-like and vulnerable particularly where Andrew did not appear to understand that he was being sexually assaulted. The trial judge properly instructed the jury.

6. Sufficiency of the evidence. When reviewing the denial of a motion for a required finding of not guilty, "we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). "The inferences that support a conviction 'need only be reasonable and possible; [they] need not be necessary or inescapable.' " Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), quoting from Commonwealth v. Woods, 466 Mass. 707, 713, cert. denied, 134 S. Ct. 2855 (2014). Over the course of two years, the juvenile repeatedly raped Andrew orally and anally. During one assault, the juvenile dragged Andrew off the bed to the floor. While the judge found that this fact alone was insufficient to prove the youthful offender portion of the assault and battery indictment, it does not preclude its consideration with respect to the rape indictments. See N.M. v. Commonwealth, 478 Mass. 89, 95-96 (2017). There was no error in the judge's determination that there was sufficient evidence for the jury to find that the juvenile's conduct created the threat of serious bodily harm.

7. Misleading the grand jury. The crux of the juvenile's contention on this issue centers around the theory that the Commonwealth excluded records and presented testimony that as a whole improperly vouched for Andrew's credibility, thereby misleading the grand jury in order to secure indictments. This argument is without merit.

A "defendant bears a heavy burden to show impairment of the grand jury proceeding." Commonwealth v. LaVelle, 414 Mass. 146, 150 (1993). Dismissal of an indictment based on such impairment requires proof that "(1) the Commonwealth knowingly or recklessly presented false or deceptive evidence to the grand jury; (2) the evidence was presented for the purpose of obtaining an indictment; and (3) the evidence probably influenced the grand jury's decision to indict." Commonwealth v. Silva, 455 Mass. 503, 509 (2009). The juvenile's claim fails on all three elements.

A witness from DDS testified that, from her review of the records, she did not think that Andrew had a history of lying or a tendency to exaggerate. To the extent that this evidence was later determined to be inaccurate, there was no intent on the part of the prosecutor to mislead the grand jury for purposes of securing an indictment. See Commonwealth v. Champagne, 399 Mass. 80, 84 (1987). Indeed, exculpatory records that presumably would have undermined the credibility of the witness were secured after the juvenile filed his so-called Dwyer motions and therefore were not within the prosecutor's possession at the time of the grand jury proceedings. Additionally, the Commonwealth had no reason to know, as the juvenile's trial counsel acknowledged, about a 2008 police report which indicated that a police officer thought that Andrew could not distinguish between reality or fantasy. In fact, the Commonwealth repeatedly drew the grand jury's attention to Andrew's lies and inconsistent statements, even though the Commonwealth is "not required to present all possibly exculpatory evidence to a grand jury." Commonwealth v. Connor, 392 Mass. 838, 854 (1984). Accordingly, there is nothing in the record, taken as a whole, to suggest that the Commonwealth presented evidence to the jury "with the intention of obtaining an indictment," or that the grand jury otherwise "would not have indicted the defendant." Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986). To the contrary, the grand jury had the opportunity to evaluate Andrew's testimony and compare it to the testimony of other witnesses. The motion was properly denied.

Judgments affirmed.

Adjudication of delinquency affirmed.

      The juvenile was indicted as a youthful offender for three counts of rape, one count of indecent assault and battery on a person with an intellectual disability, and one count of assault and battery on a person with an intellectual disability. At the close of the Commonwealth's case, the juvenile moved for required findings of not guilty on all counts. The judge allowed the motion as to one count of rape (finger in the anus) and the youthful offender portion of the assault and battery indictment.

      We decline the juvenile's invitation to adopt a heightened standard of competency in assessing a witness's ability to perceive.

      The juvenile conflates competency and credibility. The fact that Andrew may have had difficulty differentiating between reality and fantasy goes to credibility, which is solely for the fact finder to assess and was squarely placed before the jury. See Commonwealth v. Figueroa, 413 Mass. 193, 203 (1992) ("[W]here the complaining witness is suffering from mental impairment... evidence of how that impairment might affect [his] capacity to perceive, remember and articulate the alleged events ... can be used to impeach [his] credibility").

      The judge excluded records where a nurse or staff simply checked off boxes that were labeled "hallucination" or "delusions" without further explanation. By contrast, she admitted statements in which either Andrew or his mother indicated that Andrew saw things that were not there or admitted to making up stories. A sample of these statements, admitted at trial, include: "[Andrew] told his SW that he has been seeing UFOs but then stated he doesn't know what a UFO is"; "[Andrew] arrived [at] program [with] multiple complaints re: van drivers and sev. other participants ... also admits 'I know I make up stories.' "

      During oral argument the juvenile's attorney noted that consent was not an issue on appeal.

      This is the definition for serious bodily injury (but not serious bodily harm) for a number of unrelated criminal statutes. See, e.g., G. L. c. 265, § 13A ; G. L. c. 265, § 13K(a ) ; G. L. c. 265, § 13L ; G. L. c. 265, § 15A(d ) ; G. L. c. 269, § 14(a ). Numerous other statutes use different definitions of serious bodily injury. See, e.g., G. L. c. 18C, § 1 ; G. L. c. 21L, § 1 ; G. L. c. 119, § 21. Many other statutes (including some criminal statutes) use the term without definition. See, e.g., G. L. c. 19C, § 5 ; G. L. c. 112, § 129A(c )(2), (3) ; G. L. c. 112, § 135 ; G. L. c. 112, § 135A ; G. L. c. 123, § 36B(1) ; G. L. c. 233, § 23F ; G. L. c. 265, § 22(a ) ; G. L. c. 266, § 102A ½ (b ) ; G. L. c. 277, § 39 ; G. L. c. 279, § 69(a ).

      Trial counsel acknowledged that he obtained the report postindictment, pursuant to a public records request and affirmed that he was not alleging that the Commonwealth had knowledge of the report's existence.


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    COMMONWEALTH v. Francisco PORTILLO.
    17-P-348
    Appeals Court of Massachusetts.
    Entered: February 13, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Francisco Portillo, appeals from the denial of his motion for a new trial in District Court. In his motion he sought to withdraw his 2008 admission to sufficient facts based on a claim that plea counsel failed to advise him of the immigration consequences of his plea. See generally Padilla v. Kentucky, 559 U.S. 356 (2010). We affirm.

Background. On July 23, 2008, the defendant admitted to sufficient facts with respect to a three-count criminal complaint charging open and gross lewdness, possession of a Class B substance, and possession of a Class D substance. The plea judge accepted the plea and continued the case without a finding for eighteen months. The complaint was ultimately dismissed on January 25, 2010.

More than six years later, in July, 2016, the defendant filed a motion for a new trial alleging that plea counsel had rendered ineffective assistance by failing to explain that his admission to sufficient facts would subject him to mandatory removal from the United States. After an evidentiary hearing, the motion judge (who was not the plea judge) denied the motion with the following margin endorsement: "After hearing, and based upon the testimony at the hearing and the submissions in writing of the parties, motion DENIED."

Discussion. As a threshold matter, we address the defendant's contention that he is entitled to reversal because the motion judge did not prepare written findings of fact. He correctly observes that under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), "[t]he judge must make findings of fact necessary to resolve the defendant's allegations of error of law in a motion for a new trial." Commonwealth v. Torres, 469 Mass. 398, 403 (2014). However, "[a] judge's failure to make findings required by rule 30(b) is 'not fatal ... where the ultimate conclusion is clearly evident from the record,' Commonwealth v. Lanoue, 392 Mass. 583, 586 n.2 (1984), or where we are satisfied that 'on review of the whole case manifest injustice would [not] result,' Commonwealth v. Preston, 393 Mass. 318, 322 n.4 (1984)." Ibid. See Commonwealth v. Tirrell, 382 Mass. 502, 510 n.10 (1981) ("Although failure to make specific findings appears to contravene [ rule] 30 [b], remand is unnecessary in this case. The record as a whole supports the judge's conclusion").

As presented to the motion judge, the defendant's claim boiled down to two issues: whether the defendant had shown that counsel failed to give him adequate advice with respect to the immigration consequences of his plea, and whether he would have placed particular emphasis on those consequences in deciding whether to admit to sufficient facts. To be entitled to relief, the defendant needed to prevail on both of these issues. See Commonwealth v. Henry, 88 Mass. App. Ct. 446, 452 (2015) ; Commonwealth v. Lys, 91 Mass. App. Ct. 718, 720 (2017). The judge's ruling, "based upon the testimony at the hearing," where the defendant was the only witness, necessarily implies that the judge determined that the defendant had failed to carry his burden with respect to one or both of these issues. Accordingly, we consider whether the record supports the judge's conclusion, and "whether the judge abused [her] discretion or committed a significant error of law" in denying the motion. Commonwealth v. Cotto, 471 Mass. 97, 105 (2015).

Performance prong. To prevail on the performance prong of his ineffective assistance claim, the defendant was required to demonstrate that plea counsel failed to inform him, "in language that the client could comprehend," of the dire consequences of his plea. Commonwealth v. DeJesus, 468 Mass. 174, 181 (2014). See Henry, supra at 454. In this regard, the only evidence the defendant presented was his own affidavit, in which he averred that his attorney "knew I was a green card holder but never told me that I could be automatically deported by admitting to sufficient facts and getting a continuance without a finding." During cross-examination, the defendant stated that he did not remember his conversations with police officers at the time of his arrest and did not remember admitting anything during plea proceedings.

Based on the paucity of the evidence concerning the advice that plea counsel gave, or did not give, as well as the defendant's inability to recall the events surrounding his admission to sufficient facts, the motion judge would have been warranted in finding that the defendant had failed to meet his burden of proving that plea counsel gave him deficient advice concerning the immigration consequences of the plea.

Prejudice prong. Even if plea counsel had failed to explain the consequences of the defendant's plea, "[a] showing that plea counsel's advice was constitutionally deficient does not alone entitle the defendant to relief, however; the defendant must also demonstrate prejudice." Commonwealth v. Cano, 87 Mass. App. Ct. 238, 246 (2015). In the context of a Padilla claim, "[t]he defendant has three avenues for satisfying this requirement." Henry, supra at 455. He can show (1) that he had a viable defense to the charges, (2) a reasonable probability of negotiating a plea bargain that would not have exposed him to immigration consequences, or (3) "the presence of 'special circumstances' that support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty." Ibid., quoting from Commonwealth v. Clarke, 460 Mass. 30, 47-48 (2011). At the motion hearing, as on appeal, the defendant pressed only a special circumstances argument.

To demonstrate special circumstances, the defendant stated in his affidavit (dated December 15, 2015) that he came to the United States from El Salvador in 1997, that he had been a lawful permanent resident since 2006, and that his mother is a United States citizen and his father is a lawful permanent resident. He testified that he had a seven year old child in 2008. In argument, motion counsel represented (without any evidentiary support) that the child is still here and that the defendant currently has a "United States citizen girlfriend," who was his girl friend at the time of the plea, and that "they are now engaged."

The defendant offered only generalizations about his family's immigration and citizenship status in December, 2015. He offered almost no evidence concerning the calculus he confronted when he decided to admit to sufficient facts in 2008. See DeJesus, supra at 184 (noting that in assessing plea offer, "a noncitizen defendant confronts a very different calculus than that confronting a United States citizen"). The motion judge was warranted in concluding that the defendant failed to show that in 2008 he would have placed particular emphasis on immigration consequences.

At the time of the hearing on the defendant's motion, the showing required to prevail on a Padilla claim was well established. Nonetheless, the defendant's proof on both aspects of his claim was insubstantial. We discern no abuse of discretion in the judge's denial of the motion.

Order denying motion for a new trial affirmed.

      This case is unlike Commonwealth v. Mercado, 474 Mass. 80, 82-83 (2016), where, in the absence of findings, the appellate court could not be certain whether the judge had denied the motion for a new trial on the merits based on credibility assessments or based on the erroneous legal conclusion that Padilla did not apply retroactively to the defendant's guilty plea.

      The defendant did not produce an affidavit of plea counsel, the absence of which, "without an explanation why such an affidavit could not be obtained[,] is a negative factor" in assessing his claim. Lys, 91 Mass. App. Ct. at 722. At the time of the motion hearing, plea counsel had been suspended from the practice of law. The defendant's motion counsel represented that he was unable to reach plea counsel because his telephone had been disconnected. We need not decide whether this was an adequate explanation, as the motion judge's conclusion is well supported even without weighing this factor against the defendant.


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    COMMONWEALTH v. Byron SOLIS.
    17-P-231
    Appeals Court of Massachusetts.
    Entered: February 12, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from the denial of his motion to withdraw his plea without a hearing. He raises two arguments on appeal. First, he argues that his motion raised a substantial issue of ineffective assistance of plea counsel such that it should not have been denied without an evidentiary hearing. Second, he argues that there is a reasonable probability that a reasonable person in his circumstances would have gone to trial had plea counsel given constitutionally effective advice concerning the immigration consequences of a plea. We affirm.

We treat a motion to withdraw a plea the same as we would a motion for new trial, reviewing "whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Sylvester, 476 Mass. 1, 5 (2016), quoting from Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015). "Particular deference is to be paid to the rulings of a motion judge who [,as here,] served as the [plea] judge." Id. at 6, quoting from Commonwealth v. Scott, 467 Mass. 336, 344 (2014). "A judge may make the ruling based solely on the affidavits and must hold an evidentiary hearing only if the affidavits or the motion itself raises a 'substantial issue' that is supported by a 'substantial evidentiary showing.' " Sylvester, supra, quoting from Scott, supra. A defendant who claims ineffective assistance of counsel must establish that (1) the "behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer" and, (2) as a result, the defendant was deprived "of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

The defendant argues plea counsel was ineffective because counsel did not advise him that his plea could affect his future ability to seek discretionary relief from deportation. At the outset, we note two important facts. First, this is not a case where plea counsel gave no immigration advice at all or where the immigration consequences were clear. Contrast Padilla v. Kentucky, 559 U.S. 356 (2010). Instead, plea counsel averred that, although he had no specific recollection of the defendant's case, it was his practice at the time to read the entire immigration warning from the plea form to his clients. Second, at the time of his plea in 2001, the defendant was not entitled to discretionary relief under 8 U.S.C. § 1229b(b) (2012), about which relief, he now contends (fifteen years later), he was not advised. To qualify for discretionary relief under 8 U.S.C. § 1229b(b), a person must "establish that: (1) he has been physically present in the United States for a continuous period of not less than ten years; (2) he has not been convicted of certain enumerated crimes; ... (3) his removal would result in exceptional and extremely unusual hardship to a qualifying family member[,]" and (4) he has "'been a person of good moral character' during the ten years immediately preceding his application." Da Silva Neto v. Holder, 680 F.3d 25, 28, 28 & n.4 (1st Cir. 2012), quoting from 8 U.S.C. § 1229b(b)(1)(B). At the time of his plea, the defendant did not meet these requirements. He had been in the United States only two years. And he does not contend, let alone show, that his removal from the country in 2001 would have resulted in an extremely unusual hardship to a qualifying family member.

Even were we to accept the defendant's proposition that plea counsel had an obligation to give immigration advice concerning a discretionary defense to deportation to which the defendant was not then entitled and for which he may or may not have qualified in the future, the defendant failed to show that (1) there was a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial," and (2) "a decision to reject the plea bargain would have been rational under the circumstances." Commonwealth v. Mercado, 474 Mass. 80, 83 (2016), quoting from Commonwealth v. Clarke, 460 Mass. 30, 47 (2011). "To prove the latter proposition, the defendant bears the substantial burden of showing that (1) he had an 'available, substantial ground of defence' that would have been pursued if he had been correctly advised of the dire immigration consequences attendant to accepting the plea bargain; (2) there is a reasonable probability that a different plea bargain (absent such consequences) could have been negotiated at the time; or (3) the presence of 'special circumstances' that support the conclusion that he placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty." Clarke, supra at 47-48 (quotation and footnote omitted). The judge concluded that the defendant had failed to meet his burden, a conclusion that was well within her discretion.

First, although the defendant contends he had a substantial ground of defense to the malicious destruction of property charge because he was too intoxicated to form the requisite intent, the sole evidence of the defendant's intoxication was his own affidavit, which the judge was free to "reject as not credible," as she implicitly did here. Commonwealth v. Grant, 426 Mass. 667, 673 (1998).

Next, the judge could conclude (as she did) that a different plea bargain could not have been negotiated at the time. The only more favorable disposition the defendant could have received was a dismissal and, given that the Commonwealth was seeking a guilty finding, the judge was entitled to find it is unlikely the Commonwealth would have agreed to dismiss the charges. "Most importantly, no one was in a better position than the motion judge, who was also the plea judge, to know [a different disposition was not possible]." Commonwealth v. Lastowski, 478 Mass. 572, 577 (2018).

Finally, as the judge found, the defendant failed to prove any special circumstances existed at the time of the plea. At that time, the defendant had been in the country for only two years and lived with his girl friend. Contrast Commonwealth v. DeJesus, 468 Mass. 174, 184 (2014) (special circumstances existed where a defendant "had been in the country since he was eleven years old, his family was in Boston, and he had maintained steady employment in the Boston area"); Commonwealth v. Lavrinenko, 473 Mass. at 57 (defendant's status as a refugee is a special circumstance).

For the reasons set forth above, we conclude that the motion judge did not abuse her discretion in denying the motion.

Order denying motion to vacate plea affirmed.

      The defendant styled his motion as one to vacate his conviction, but it is more accurate to characterize it as a motion to withdraw his plea; that is accordingly how we refer to it in this decision. In 2001, the defendant was charged with disturbing the peace, G. L. c. 272, § 53, and malicious destruction of property over $250, G. L. c. 266, § 127. He pleaded to sufficient facts, and the charges were continued without a finding for one year with unsupervised probation, at the conclusion of which they were dismissed.

      The specific language was, "I understand that if I am not a citizen of the United States, the acceptance by this court of my plea of guilty, plea of nolo contendere, or admission to sufficient facts may have consequences of deportation, exclusion from admission to the United States, or denial of naturalization ...." We recognize that the attorney's obligation to advise his client is distinct from that of the judge, and we do not mean to imply that reading the plea form alone is sufficient to satisfy the attorney's obligation.

      "The applicant cannot demonstrate good moral character if he was convicted of a [crime involving moral turpitude] during that ten-year period." Da Silva Neto, supra at 28. The Court of Appeals for the First Circuit has determined that the crime of malicious destruction of property over $250 is a crime involving moral turpitude. Id. at 33.

      The defendant makes no argument regarding an available defense to the charge of disturbing the peace.

      The defendant also argues that it was error for the motion judge to adopt the Commonwealth's proposed findings of fact and rulings of law verbatim. Although, as we have often stated, it is better practice not to adopt wholesale proposed findings and analysis offered by a party, it is not necessarily error to do so. Here, the motion judge also was the plea judge, and her findings were fully supported by the record.


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    COMMONWEALTH v. Vladimir MARCELLUS.
    16-P-559
    Appeals Court of Massachusetts.
    Entered: February 12, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from his conviction, after a jury trial, of operating a motor vehicle while under the influence of alcohol, G. L. c. 90, § 24(1)(a )(1). His sole argument on appeal is that his motion to suppress was erroneously denied. We affirm.

When reviewing a motion to suppress, we ordinarily "accept the judge's subsidiary findings of fact absent clear error." Commonwealth v. Tyree, 455 Mass. 676, 682, (2010), citing Commonwealth v. Colon, 449 Mass. 207, 214, cert. denied, 552 U.S. 1079 (2007). Here, however, the judge made no explicit findings. Instead, he denied the motion to suppress in a margin endorsement, noting only "well-being" as the reason for the decision. We understand this notation to mean that the judge concluded that any seizure or search was justified under the community caretaking doctrine. But the judge should have made subsidiary findings to support this ultimate conclusion. In certain circumstances, the absence of subsidiary findings of fact will necessitate a remand for findings. See Commonwealth v. Isaiah I., 448 Mass. 334, 337-338 (2007). The defendant does not argue that a remand is necessary here. Nor, after carefully reviewing the defendant's arguments and the record, do we think remand is necessary. As set out further below, the material facts are undisputed and the judge credited the witness through whom they were introduced. Perhaps more importantly, the defendant's arguments turn on questions of law subject to our de novo review.

With that background in mind, we summarize the undisputed facts as testified to by the initial responding officer (deputy sheriff), whose testimony the judge's decision implicitly credited. A deputy sheriff driving down Washington Street in Norwell at approximately 1:15 A.M. noticed a car pulled off to the side of the road with its hazard lights flashing. The car was not entirely outside the white fog line and was impeding the travel lane. The defendant was outside the car slumped over by the front left tire. The deputy sheriff assumed there was mechanical trouble with the car and pulled alongside to assist. The defendant did not respond to either of the deputy sheriff's two inquiries as to whether everything was ok. The deputy sheriff approached, helped the defendant to his feet, and then "had to literally hold him up." The defendant was "uneasy on his feet" and nonresponsive. The deputy sheriff formed the opinion that the defendant was intoxicated. He asked the defendant for his license and called for backup, which arrived within minutes.

Although the deputy sheriff believed that he had the authority to arrest the defendant and also intended that the defendant not leave, he did not orally communicate these matters to the defendant. Nonetheless, the defendant contends that the deputy sheriff effectuated an unauthorized warrantless arrest no later than when he asked for, and obtained, the defendant's license. Accepting arguendo that a reasonable person in the defendant's shoes would not have felt free to leave at that juncture, see Commonwealth v. Lyles, 453 Mass. 811, 815-816 (2009), we nonetheless disagree that the deputy sheriff was without authority to stop the defendant in the circumstances.

Commonwealth v. Howe, 405 Mass. 332, 334 (1989), established that a deputy sheriff is authorized to make a warrantless arrest of a person for operating a motor vehicle while under the influence of alcohol that is committed in his presence or view and "is still continuing at the time of the arrest or only interrupted, so that the offence and the arrest form parts of one transaction." Howe, supra at 334. The defendant argues that because the deputy sheriff did not observe the defendant operate the vehicle, he was not authorized to stop him. We are not persuaded. The deputy sheriff observed the intoxicated defendant next to the car, which was pulled over by the side of the road. As indicated by the hazard lights and the car's location by the side of the road, the car appeared to be paused only temporarily while en route. Thus, although the deputy sheriff did not observe the defendant driving, it was enough that he observed that the defendant had only paused his car while on his route. See Commonwealth v. Uski, 263 Mass. 22, 24 (1928) (definition of operation). "It has long been recognized that 'a vehicle may be operated when standing still.' " Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 320 (1994), quoting from Commonwealth v. Clarke, 254 Mass. 566, 568 (1926).

For similar reasons, the stop was justified by reasonable suspicion "based on specific, articulable facts and reasonable inferences therefrom, that an occupant of the [car] had committed, was committing, or was about to commit a crime." Commonwealth v. Alvarado, 423 Mass. 266, 268 (1996). Based on his observations, the fact of the defendant's intoxication was a matter within the deputy sheriff's realm of common knowledge requiring no particular specialized knowledge. See Commonwealth v. Wall, 469 Mass. 652, 671 (2014), quoting from Commonwealth v. Taylor, 263 Mass. 356, 362 (1928) ("The 'effects of liquor upon the mind and actions of men are well known to everybody' "). Moreover, the defendant's operation of the vehicle was a matter readily inferred from the circumstances.

Judgment affirmed.


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    COMMONWEALTH v. Ilya ZINOV.
    16-P-1566
    Appeals Court of Massachusetts.
    Entered: February 15, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial in the Superior Court, the defendant, Ilya Zinov, was convicted of armed assault with intent to murder, G. L. c. 265, § 18(b ), aggravated assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(c )(i), carrying a firearm without a license, G. L. c. 269, § 10(a ), and possessing a firearm during the commission of a felony, G. L. c. 265, § 18B. After a jury-waived trial, he was also convicted under the armed career criminal statute, G. L. c. 269, § 10G(a ). He filed a timely notice of appeal. For the reasons discussed below, we affirm.

Background. On the evening at issue, prior to the shooting that formed the basis for the charges in this case, the victim, John Lopes, was involved in a dispute in the parking lot of Ying's Restaurant in Hyannis. During an argument with his then-girl friend, the victim heard a group of people laughing, and "angrily" approached them. The victim stood face to face with a member of the group, whom he had "[b]riefly" seen before and whom he identified at trial as the defendant, and said, "[w]hat are you laughing at? Like you think something's funny?" The defendant replied, "[n]o, I was just laughing how you was yelling at that bitch." The victim responded, "[t]hat's not no bitch. That's my woman." The victim's friends approached and asked what was going on. The victim said, "[n]othing. I'm handling it myself." One of the other individuals at the scene said, "[n]othing's going on," to which the defendant retorted, "[y]ou got that," and walked away. The victim described his own demeanor during the interaction, which lasted "maybe two minutes," as "hostile" and "aggressive."

Later that night, the victim's friend, Jeff Merrifield, was approached by a different group of people, in the same parking lot. An argument concerning Merrifield's apparent sale of phony Percocets ensued. The victim testified at trial that he "didn't want anything bad to happen," and tried to "mediate the problem." After some "yelling back and forth," everyone walked away.

Yet later that same night, the victim's girl friend asked the victim to change a flat tire on her motor vehicle. The victim looked in the trunk of the vehicle for a jack, which he could not locate. As he walked from the trunk to the driver's side window, he saw the defendant walking towards him. As the victim leaned into the window and spoke to his girl friend, he "started getting shot." The victim ran and, as he did so, saw five to seven flashes from the barrel of a small gun, which the defendant was shooting. The victim ran toward a nearby automobile dealership where he was ultimately approached by a taxi driver who eventually put him into the cab. The victim had the driver return to the parking lot where they picked up his girl friend. The driver then transported them to the hospital. The victim was covered in blood and suffered gunshot wounds to the back, neck, and arm.

The victim's testimony was corroborated in part by the taxi driver, his girl friend, and other witnesses, as well as by exhibits including his medical records. However, he was the only person who identified the defendant as the shooter at trial. The defense centered on the existence of dual and distinct motives for the shooting; the victim's credibility and inconsistent statements to the police; the victim's cooperation agreement with law enforcement; and the victim's failure to identify the defendant to the police until approximately eighteen months after the shooting, and while in custody after his subsequent arrest.

Discussion. 1. Closing argument. The defendant contends that the prosecutor made baseless assertions in his closing argument, which warrant a new trial. Specifically, he claims that there was no evidence indicating that the defendant thought of himself as a "tough guy," or that he wanted to "save fac[e]" in the "community," and thus the prosecutor's statements to that effect constituted impermissible and prejudicial commentary relating to the defendant's alleged bad character. We disagree.

Defense counsel's closing argument repeatedly emphasized the "drug ripoff" as the motive for the shooting. For example, he argued as follows:

"The idea that this happened over a drug ripoff involving $8,000 in fake Percocets -no, that's a theory that everybody seems to buy, and then it changes. And what's the motive now? And this isn't funny because somebody's life is on the line here. But they want you to believe that somehow this incident-because [the victim] tells them that it occurred-because the man laughed at him, and then he bumped him, pumped him, did something."

Defense counsel also queried:

"I mean you are supposed to believe that this incident occurred somehow because [the victim] was laughed at? And then somebody came back and shot him? Versus there was a drug rip off?"

In response, near the outset of his closing, the prosecutor argued as follows:

"This isn't a case about Percocets... This is a case about [the defendant's] self-image as a tough guy. He was shown up in the community. And what did he do? He came back later when [the victim] was in front of him all by himself and he shot him. Why did he shoot him? Because he got shown up. That's why he shot him.".

The prosecutor later said, "[t]his is about [the defendant] saving face. This is about [the defendant] finding [the victim] with nobody around and making [the victim] pay for showing him up." And finally, at the end of his argument, the prosecutor said, "this case is about [the defendant] and his self-image as a tough guy. He was shown up in public by [the victim] in front of someone he was with, in front of a group of people earlier in the evening."

At the conclusion of the Commonwealth's closing, defense counsel objected to various remarks made by the prosecutor. Although the objection was not a model of clarity, it was sufficiently specific to preserve this issue on appeal. See Commonwealth v. Awad, 47 Mass. App. Ct. 139, 143 n.2 (1999). As the issue was preserved, we review for prejudicial error. Under this standard, we must determine whether we can say "with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994) (quotation omitted). We consider the prosecutor's remarks "in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Nelson, 468 Mass. 1, 10 (2014) (quotation omitted).

Placed in context, the prosecutor's statements constituted an inartful response to the argument by defense counsel, but not grounds for reversal. It would have been preferable for the prosecutor to avoid the "tough guy" label and to suggest that the evidence showed that the defendant reacted to being shown-up in front of his companions, instead of using the term "community." That notwithstanding, a reasonable juror would have understood that the prosecutor was contrasting the two potential motives for the shooting and drawing inferences based on the evidence, rather than, as the defendant contends, sharing some sort of private knowledge with them. "[E]nthusiastic rhetoric, strong advocacy, and excusable hyperbole are not grounds for reversal," Commonwealth v. Wilson, 427 Mass. 336, 350 (1998) (quotation omitted), and this case falls into that category.

Even if we assume, arguendo, that the prosecutor's remarks crossed the line into error, we are confident that the error did not influence the jury. See Commonwealth v. McCoy, 59 Mass. App. Ct. 284, 290 (2003). Indeed, the challenged statements comprised only a slight portion of the prosecutor's comprehensive closing argument, which covered seventeen pages of the trial transcript. Moreover, throughout trial, the jury were repeatedly apprised of the competing motives for the shooting; they knew of the victim's cooperation agreement, prior convictions, and purported motive to curry favor with the police; and they were presented with a full and fair picture of the events at issue. See Wilson, supra (jurors are "presumed to have a certain measure of sophistication in sorting out excessive claims on both sides").

Finally, the judge instructed the jury three times that closing arguments are not evidence, and reminded them that they "shouldn't consider anything that [the attorneys] say during the course of their closing arguments as evidence because the evidence has been declared closed by the Court." The instructions were thorough and accurate, and we presume the jury followed them. See Commonwealth v. Cortez, 438 Mass. 123, 130 (2002).

2. Grand jury evidence. The defendant also contends that the motion judge erred in denying his motion to dismiss the indictment because the prosecutor withheld exculpatory evidence from the grand jury. The defendant claims that the grand jury were not aware of the existence of the cooperation agreement between the Commonwealth and the victim. Under that agreement, the victim would cooperate "relative to incidents occurring on or about January 6, 2011, involving the firing of a firearm, injuries sustained by [the victim] and the identity of the person who fired said firearm ... and the following individual: [the defendant]," in exchange for a reduction in charges from trafficking in cocaine to possession of cocaine. According to the defendant, the omission of any evidence of the cooperation agreement was exacerbated by the introduction of a recording of a police interview with the victim, in which he stated, "[n]o promises or threats have been made, and no pressure or force of any kind has been made against me."

We agree with the motion judge's conclusion that "the grand jurors heard reasonably trustworthy information that on January 6, 2011, the defendant shot [the victim] and that probable cause exists to charge the defendant." Accordingly, we think it unlikely that these failures of disclosure and representations to the grand jury "would have affected the grand jury's decision to indict." Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986), quoting from Commonwealth v. McGahee, 393 Mass. 743, 747 (1985). We further note that the grand jury were apprised that the defendant's bail was reduced following his July 24, 2012, recorded statement to the police, which was played for them and entered into evidence as an exhibit. Ultimately, we agree with the judge that the record does not reflect that the Commonwealth made a deceptive presentation of evidence to the grand jury. Even assuming, arguendo, that the record did so reflect, we cannot say that such evidence was presented with the intention of obtaining an indictment. See Mayfield, supra. See also Commonwealth v. Hyde, 88 Mass. App. Ct. 761, 773-774 (2015). The judge did not err in denying the motion to dismiss.

Judgments affirmed.

Order denying motion for new trial affirmed.

      We allowed the defendant's motion to stay his appeal to enable him to bring a motion for a new trial. That motion was denied by the trial court. The defendant filed a second notice of appeal and these appeals were consolidated.

      At the time of trial, the victim and his "ex-girlfriend" were no longer dating.

      Although the victim did not identify the defendant to the police until many months after the shooting, he testified that two weeks to a month after he left the hospital, he looked at pictures on his computer and recognized the defendant as the person with whom he had argued in the parking lot and as the shooter. The victim further testified that he did not seek out the police and reveal the defendant as the shooter because he feared further consequences and "didn't want any more harm to be done to [him] and [his] family."

      The cooperation agreement was executed two days after the victim made the recorded statement.


text:
    COMMONWEALTH v. Richard PANEPINTO.
    16-P-878
    Appeals Court of Massachusetts.
    Entered: February 8, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   In January of 2012, the defendant shot his fifteen year old son in the stomach and then shot himself. Both survived. At trial the defendant conceded that he had shot his son but claimed that he was not criminally responsible because of a mental disease or defect. Rejecting that theory, the jury convicted the defendant of two counts of armed assault with intent to murder, aggravated assault and battery by means of a dangerous weapon, and various firearms charges. He appeals, arguing that the judge abused his discretion by allowing a lay witness to give expert opinion testimony, and that the prosecutor made statements in his closing argument that shifted the burden of proof to the defense. We affirm.

1. Lay witness testimony. One of the Commonwealth's witnesses was emergency medical technician Christopher Ebert, who was in the ambulance with the defendant as he was being transported to the hospital. During direct examination the prosecutor asked Ebert whether he was "familiar with the term alert and oriented times three." Ebert replied that it means "[a] person [who] is alert to time, place and event" and, to make that determination, an emergency medical technician asks three questions-"their name, where they are and what's going on." He then testified that the defendant was "alert and oriented times three" after the shooting because he was able to respond to the three questions by stating "his name, where he was and eventually the event that happened that night."

The defendant contends that the judge should not have allowed Ebert, a lay witness, to testify that the defendant was "alert and oriented times three" because that testimony amounted to expert opinion. We disagree. An expert opinion is one based on "scientific, technical, or other specialized knowledge that will assist the jury in understanding a fact in issue." Commonwealth v. Canty, 466 Mass. 535, 541 (2013). See Mass. G. Evid. § 702 (2017). A lay opinion, in contrast, is one that "lies within the realm of common experience." Canty, 466 Mass. at 542. A lay opinion is admissible if it is "(a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness's testimony or in determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge." Id. at 541, quoting from Mass. G. Evid. § 701 (2013). Furthermore, "[t]he rule that [lay] witnesses in describing conduct should tell what they saw and heard does not foreclose the use of words of summary description." Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 647 (1961). Accord Canty, 466 Mass. at 544.

Here, Ebert's testimony that the defendant was "alert and oriented times three" was proper lay opinion, and not expert opinion. It does not take any scientific, technical, or specialized knowledge to determine whether a person knows his name, where he is, or what is happening at the time. Cf. id. at 541-542 (lay witness may testify as to defendant's level of intoxication). The phrase "alert and oriented times three" is simply shorthand or a "summary description" of a person's ability to answer these three basic questions. Kane, 341 Mass. at 647. The judge did not abuse his discretion in admitting this testimony.

Moreover, even were we to assume error, it was not prejudicial. Although the defendant argues that the testimony went to the ultimate issue at trial-whether the defendant was criminally responsible-Ebert acknowledged on cross-examination that the three questions were "not designed for the purpose of doing a full mental health screen" and would not allow him "to make that kind of assessment." In addition, the references to "alert and oriented times three" were fleeting and dwarfed by other evidence that went squarely to the issue of whether the defendant suffered from a mental disease or defect rendering him not criminally responsible. The prosecutor also did not refer to Ebert's testimony in his closing argument. In these circumstances "we conclude, with fair assurance, that the jury's judgment was not substantially swayed by [any] error." Canty, 466 Mass. at 545.

2. Burden shifting. The defendant next argues that the prosecutor engaged in improper burden shifting when he asked the defendant's expert witness, Dr. Robert Mendoza, if he interviewed the defendant, spoke with his family and friends, or reviewed the police reports. Because the defendant did not object to this questioning at trial, we review his challenge to determine whether there was error and, if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). We discern no error. During direct examination Mendoza testified generally about the standard for criminal responsibility, the process for conducting a criminal-responsibility evaluation, and the symptoms exhibited by people who have certain mental illnesses or brain injuries. In response, the prosecutor sought to elicit on cross-examination that Mendoza had no information particular to this case on which he could form an opinion as to the defendant's criminal responsibility. The prosecutor's questions were entirely appropriate and did not constitute burden shifting. Cf. Commonwealth v. Miranda, 458 Mass. 100, 116 (2010) (prosecutor is allowed "to respond to arguments raised by the defense").

The defendant also argues that the prosecutor engaged in burden shifting during his closing argument. Specifically, the defendant challenges the following passages:

"Was there any neurological or psychological examination conducted on [the defendant] afterwards? Dr. Mendoza talked a whole lot about what needs to be done to make any sort of definitive diagnosis of a neurological disease or condition that compels you to fail to be able to behave yourself, right? Any of that done in this case?"
"Didn't [Dr. Mendoza] tell you that an interview with the defendant is of paramount importance in conjunction with interviewing family and friends? Vitally important right?"

Because the defendant objected to these statements at trial, we review for prejudicial error. See Commonwealth v. Bresilla, 470 Mass. 422, 437 (2015).

Viewing the statements in the context of the entire argument, we conclude, as did the judge, that they did not cross the line into burden shifting. After making the statements, the prosecutor immediately went on to assert: "That's what the Commonwealth produced for you. A case study, right? About what happened." He then reviewed the extensive evidence of the defendant's medical history and his behavior leading up to and following the shooting. When placed in context, therefore, the remarks were "merely [a] comment on the evidence put before the jury, not a reflection on the absence of evidence." Commonwealth v. Francis, 450 Mass. 132, 141 (2007). See id. at 141-142 (prosecutor did not engage in burden shifting by asserting "that there was no real evidence of the defendant's mental illness" where remarks, in context, "referred to the evidence the defendant did produce").

Furthermore, the judge proceeded to give thorough instructions on the law of criminal responsibility, making clear that the burden of proof rests with the Commonwealth to "prove beyond a reasonable doubt that the defendant was criminally responsible at the time the alleged crime was committed. The burden is not on the defendant to prove a lack of criminal responsibility." We presume that the jury followed these instructions. See id. at 143.

Judgments affirmed.

      The parties disagree as to whether the defendant preserved his objection, but the disagreement is not material to our analysis. Our conclusion is the same whether we review for prejudicial error or a substantial risk of a miscarriage of justice.

      In contrast, Ebert's testimony went not to the defendant's sanity, but to the voluntariness of the statements he made on the night of the shooting.

      Because the prosecutor's statements were grounded in the evidence presented, this case is distinguishable from Commonwealth v. Hiotes, 58 Mass. App. Ct. 255, 258-259 (2003), on which the defendant relies.


text:
    Thomas C. PAPPAS v. DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee.
    16-P-1323
    Appeals Court of Massachusetts.
    Entered: February 8, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Of the Indymac Indx Mortgage Loan Trust 2007-FLX5, Mortgage Pass-Through Certificates, Series 2007-FLX5 Under the Pooling and Servicing Agreement dated June 1, 2007.

   Plaintiff Thomas C. Pappas appeals from a Land Court judgment dismissing his complaint challenging the validity of a foreclosure sale at which defendant Deutsche Bank National Trust Company (bank), the foreclosing bank, purchased the property for itself. The plaintiff's single-count quiet title action claimed that the foreclosure sale was void because the assignment of the mortgage to the bank did not comply with the requirements of the pooling and servicing agreement governing the loan. Applying settled law, the judge allowed the bank's motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). On appeal, the plaintiff abandons the only argument raised below and asserts a new claim that the "Notice of Sale" was defective. We affirm.

The contention that the bank did not comply with the requirements of the pooling and servicing agreement governing the loan was the sole basis of the plaintiff's complaint and the sole issue addressed in the plaintiff's opposition to the bank's motion to dismiss the complaint. The motion judge, citing well-settled law, ruled that (1) the Mortgage Electronic Registration Systems, Inc., acting as a nominee of the lender or its assigns or successors, may validly assign a mortgage it holds as nominee, see Shea v. Federal Natl. Mort. Assn. 87 Mass. App. Ct. 901, 903 (2015), (2) the assignment was valid on its face, see Bank of N.Y. Mellon Corp. v. Wain, 85 Mass. App. Ct. 498, 503 (2014), and (3) the plaintiff has no standing to raise issues concerning potential latent defects in the assignment process. Id. at 502-504. As the plaintiff makes no argument in his brief concerning the stated basis by the judge for her ruling, his appeal on this issue is waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

For the first time on appeal, the plaintiff claims that there was a defect in the notice of sale. This is a wholly new theory to support his claim that the foreclosure was void. The notice issue was neither raised in the complaint or in the opposition to the motion to dismiss, nor was leave sought below to amend the complaint to add the claim below. It is well settled that "[w]e will refuse to consider 'as a basis for reviewing [a] ... judge's rulings, arguments inspired by the loss in the trial court and urged for the first time on appeal.' " Porter v. Treasurer & Collector of Taxes of Worcester, 385 Mass. 335, 338 n.5 (1982), quoting from Drury v. Abdallah, 9 Mass. App. Ct. 865, 867 (1980). The plaintiff, noting the general rule, argues that because the foreclosure deed was mentioned in the complaint, and because the notice of sale was attached to the foreclosure deed (neither of which were attached to the complaint), this panel should reach the issue in its de novo review of the motion to dismiss. We disagree. Since the new theory is raised for the first time on appeal, we will not consider it.

Judgment affirmed.


text:
    COMMONWEALTH v. Isaias RODRIGUEZ.
    17-P-223
    Appeals Court of Massachusetts.
    Entered: February 8, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Isaias Rodriguez, appeals from the order denying his sixth motion for a new trial. We affirm.

Discussion. "We review the denial of a motion for new trial 'only to determine whether there has been a significant error of law or other abuse of discretion.' " Commonwealth v. Indrisano, 87 Mass. App. Ct. 709, 719 (2015), quoting from Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006). Moreover, we extend "special deference" where, as here, the judge acting on the motion was also the trial judge. Commonwealth v. Rosario, 460 Mass. 181, 195 (2011), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

1. Newly discovered evidence. The defendant claims that the judge abused his discretion in denying the defendant's motion because newly discovered evidence-specifically, a building permit application demonstrating that the addition to the defendant's house, where the victim testified he first sexually assaulted her, had not been completed at the time-casts real doubt on his convictions.

"A defendant seeking a new trial on the ground of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction." Rosario, supra, quoting from Grace, supra at 305. To qualify as "newly discovered," the evidence must have been " 'unknown to the defendant or trial counsel and not reasonably discoverable at the time of trial' or at an earlier motion for a new trial." Commonwealth v. Ellis, 475 Mass. 459, 472 (2016), quoting from Commonwealth v. Cowels, 470 Mass. 607, 616 (2015). Newly discovered evidence casts real doubt on a conviction if it "would probably have been a real factor in the jury's deliberations." Ellis, supra at 477, quoting from Cowels, supra.

"We need not reach the issue of whether the evidence is 'newly discovered,' however, since it plainly was waived." Cowels, supra at 617. See Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001). "A finding of waiver does not end the analysis, however. All claims, waived or not, must be considered." Commonwealth v. Randolph, 438 Mass. 290, 293 (2002). Where a claim is waived, the judge's decision will not be reversed unless the defendant demonstrates the existence of an error that creates a substantial risk of a miscarriage of justice. Id. at 294. There was no error.

The defendant himself signed the building permit application in 1993. With reasonable diligence, he or his attorney could have obtained a copy for use at his trial in 2002 or in any of his previous five new trial motions. It does not qualify as "newly discovered" evidence.

Furthermore, while the building permit suggests that construction could not have commenced until 1993, it does not provide a completion date. If the permit had been admitted at trial, the jury could have reasonably concluded that construction was completed in 1993 and that the assault occurred later that year. Moreover, the evidence would have been relevant only to impeach the victim's testimony. "Newly discovered evidence that tends merely to impeach the credibility of a witness will not ordinarily warrant a new trial." Commonwealth v. Ortiz, 393 Mass. 523, 537-538 (1984). And even if the jury concluded that the victim was mistaken about the timing of the first sexual assault, it was only the first instance of years of sexual abuse by the defendant. Thus, the building permit application would not have "been a real factor in the jury's deliberations." Ellis, supra.

2. Integrity of the grand jury proceedings. The defendant also claims that the Commonwealth impaired the integrity of the grand jury by withholding the building permit application. Like his claim of newly discovered evidence, this claim is waived and we review any error under the miscarriage of justice standard.

The defendant bears the burden of demonstrating that the integrity of the grand jury process was impaired. See Commonwealth v. Clemmey, 447 Mass. 121, 130-131 (2006). He must show not only that the false or deceptive evidence would "have been significant in the view of the grand jury," but also that the prosecutor presented the evidence "with knowledge that it was false or deceptive." Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986). The defendant has not carried this burden because he has failed to show that the Commonwealth had knowledge or possession of the building permit. See Commonwealth v. Tucceri, 412 Mass. 401, 407 (1992) (prosecutor's duty "extends only to exculpatory evidence in the prosecutor's possession or in the possession of the police who participated in the investigation and presentation of the case").

3. Claim of perjured testimony. Finally, the defendant claims he is entitled to a new trial because the victim lied about the timing of the assault in the addition and that she and her boy friend lied about the number of times he had visited her bedroom. This court has addressed the defendant's claims regarding witness credibility in at least two of his prior appeals. The current version of the claim is waived, and it does not suggest a substantial risk of a miscarriage of justice.

Order denying sixth motion for new trial affirmed.