author: DITKOFF, J.

text:
    COMMONWEALTH v. GEORDI G., a juvenile.
    No. 16-P-1009
    Appeals Court of Massachusetts, Berkshire County..
    Argued April 11, 2018 Decided September 20, 2018
    Kyle Gray Christensen, Assistant District Attorney, for the Commonwealth.
    Robert Hennessy Springfield, for the juvenile.
    Present: Sullivan, Lemire, & Ditkoff, JJ.
   DITKOFF, J.

A school official obtained a delinquency complaint charging the juvenile with, inter alia, two counts of assault and battery based on alleged incidents of pushing a teacher and hip-bumping the principal at his middle school. See G. L. c. 265, § 13A (a ). Over the Commonwealth's objection, a judge of the Juvenile Court dismissed these charges for lack of probable cause. Concluding that the observations of the teacher, the principal, and a school counsellor established probable cause, we vacate the order of dismissal. We also take this opportunity to remind school officials of their obligation, when seeking a delinquency complaint against a student with an individualized education program (IEP), to make the prosecutor aware of the juvenile's special needs in a timely manner.

Background. On December 2, 2015, the twelve year old juvenile was in the gymnasium of his middle school at the end of a basketball game. He refused to follow directions, started swearing at a teacher, and left the gymnasium. The teacher followed and asked him to come back into the gymnasium, but he refused and ran down the hallway into the atrium. When the juvenile was asked to go to the office, he stated that he was "not going to the fucking office" and did not want "to talk to any of those assholes." The teacher tried to calm him down, but he would not calm down or stop swearing loudly. The principal then came into the atrium and also tried to calm him down. The juvenile was breathing heavily, had clenched fists and puckered lips, and was visibly upset. He also punched a cinder block wall that was behind him. The teacher was standing in front of the doors to the hallway, and the juvenile pushed the teacher and went through the doors.

After several minutes, other teachers left their rooms and came into the hallway to try to calm down the juvenile. The principal directed the first teacher to return to her classroom. Nonetheless, the juvenile became more agitated, punched lockers, and stated that he was going to injure people. The principal issued a "soft lockdown," which required the students to stay in their classrooms and to delay transitioning to their next classes. After about ten minutes, the soft lockdown was removed when the group of teachers and the principal were able to convince the juvenile to leave the hallway and to enter the office of the school's adjustment counsellor.

In the counsellor's office, the juvenile was still upset and swearing. He stepped towards the principal in a threatening manner and, standing face-to-face about one foot away, repeatedly asked, "You're fucking scared of a [twelve] year old?" The juvenile then walked to the door, bumping the principal with the side of his body, thus moving him.

On December 3, 2015, the assistant principal of the middle school filed an application under G. L. c. 218, § 35A, for a delinquency complaint, alleging that the juvenile committed two counts of assault and battery (one against a teacher and the other against the principal) and one count of disturbing a school assembly, G. L. c. 272, § 40. The assistant principal made no mention of the juvenile's IEP in the application, and there is no indication that the school otherwise made the prosecutor aware of the juvenile's special needs.

On January 19, 2016, the clerk-magistrate issued a delinquency complaint for all three charges. The juvenile then moved to dismiss the complaint before arraignment. On March 24, 2016, a hearing was held on the motion to dismiss. The judge dismissed the two assault and battery charges for lack of probable cause and arraigned the juvenile on the charge of disturbing a school assembly. The Commonwealth appeals pursuant to Mass. R. Crim. P. 15 (a) (1), as appearing in 422 Mass. 1501 (1996).

Discussion. 1. Probable cause determination. "[W]e review the ... judge's probable cause determination de novo." Commonwealth v. Humberto H., 466 Mass. 562, 566, 998 N.E.2d 1003 (2013), quoting Commonwealth v. Long, 454 Mass. 542, 555, 911 N.E.2d 174 (2009). "[A] motion to dismiss a complaint [for lack of probable cause] 'is decided from the four corners of the complaint application, without evidentiary hearing.' " Id. at 565, 998 N.E.2d 1003, quoting Commonwealth v. Huggins, 84 Mass. App. Ct. 107, 111, 993 N.E.2d 734 (2013). "To establish probable cause, the complaint application must set forth 'reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense.' " Id., quoting Commonwealth v. Roman, 414 Mass. 642, 643, 609 N.E.2d 1217 (1993). To satisfy the probable cause standard, "more than mere suspicion" is required, but the evidence need not be sufficient to warrant a conviction. Commonwealth v. Cartright, 478 Mass. 273, 283, 84 N.E.3d 851 (2017), quoting Commonwealth v. Jewett, 471 Mass. 624, 629, 31 N.E.3d 1079 (2015). Our review of the judge's order of dismissal is confined to the evidence submitted to the clerk-magistrate, see Commonwealth v. Ilya I., 470 Mass. 625, 626, 24 N.E.3d 1048 (2015), which is "viewed in the light most favorable to the Commonwealth." Commonwealth v. Levesque, 436 Mass. 443, 444, 766 N.E.2d 50 (2002).

"The complaint application must include information to support probable cause as to each essential element of the offense." Humberto H., 466 Mass. at 565-566, 998 N.E.2d 1003. The crime of an intentional assault and battery requires proof that the juvenile "touched the victim without having any right or excuse to do so and that the [juvenile's] touching of the victim was intentional." Commonwealth v. Mitchell, 67 Mass. App. Ct. 556, 564, 855 N.E.2d 406 (2006). Furthermore, there must be proof either that the touching was "with such violence that bodily harm is likely to result" (harmful battery), Commonwealth v. Eberhart, 461 Mass. 809, 818, 965 N.E.2d 791 (2012), quoting Commonwealth v. Burke, 390 Mass. 480, 482, 457 N.E.2d 622 (1983), or "occurred without the victim's consent" (offensive battery). Eberhart, supra, quoting Commonwealth v. Hartnett, 72 Mass. App. Ct. 467, 476, 892 N.E.2d 805 (2008). Accord Instruction 6.140 of the Criminal Model Jury Instructions for Use in the District Court (2016). Both the teacher and the principal wrote that the juvenile pushed the teacher after arguing with her. The counsellor wrote that she observed the juvenile address the principal in a threatening manner and then bump him with the juvenile's side. Viewed in the light most favorable to the Commonwealth, these accounts provide a sufficient showing of the elements of intentional, offensive assault and battery to warrant a prudent person in concluding that the juvenile committed assault and battery when he pushed the teacher and hip-bumped the principal.

We are unpersuaded by the argument that the juvenile intended only to leave the rooms and to remove himself and thus did not have the requisite intent to touch the teacher and the principal. Prior to pushing the teacher on his way out of the doors to the hallway, the juvenile was disregarding directions, running away from school staff, and yelling and swearing, continuing to do so even after the teacher and other staff attempted to calm him. Similarly, before bumping into the principal, the juvenile stated that he was going to injure others and then stepped towards the principal in a threatening manner and repeatedly stated, "You're fucking scared of a [twelve] year old?" Although the juvenile may very well have had the primary motivation of removing himself from both situations, based on the circumstances surrounding the incidents, it is a reasonable inference that the juvenile also intended to make contact with the individuals.

2. Prearraignment dismissal based on best interests of the juvenile and in the interests of justice. Relying on the holding in Humberto H., the juvenile contends that, even if the complaint application supports a finding of probable cause, the judge properly exercised her discretion in dismissing the two charges prior to arraignment to protect the best interests of the juvenile and in the interests of justice. We disagree.

The judge based her dismissal on her finding that there was no probable cause to support the charges of assault and battery. Nothing in the judge's decision indicates that she made a discretionary decision that dismissal was in the best interests of the juvenile and in the interests of justice. To the contrary, the judge allowed the charge of disturbing a school assembly to proceed, suggesting that she viewed prosecution to be in the interests of justice.

Case law issued after the events in question will govern this question if the Commonwealth chooses to proceed. In Commonwealth v. Newton N., 478 Mass. 747, 89 N.E.3d 1159 (2018), the Supreme Judicial Court decided that, where a complaint obtained by a police officer is supported by probable cause, a judge cannot dismiss the complaint prior to arraignment even when the judge determines that dismissal before arraignment would serve the best interests of the child and the interests of justice. Id. at 755-757, 89 N.E.3d 1159. This is because, "where a complaint is supported by probable cause, the decision to proceed with the prosecution rests in the broad and exclusive discretion of the prosecutor." Id. at 755, 89 N.E.3d 1159. The courts expect prosecutors to consider carefully "whether to proceed with the arraignment of a juvenile, even where there is probable cause, and consider whether prosecution will serve the best interests of the child and the interests of justice." Id. at 757, 89 N.E.3d 1159.

In Commonwealth v. Orbin O., 478 Mass. 759, 89 N.E.3d 1151 (2018), the Supreme Judicial Court held that, where a delinquency complaint is brought by a civilian, the judge may not dismiss the complaint in the best interests of the juvenile and in the interests of justice if the prosecutor affirmatively adopts the complaint by moving for arraignment. See id. at 760, 89 N.E.3d 1151. Here, as in Orbin O., the application for complaint was sought by an assistant principal, a civilian. Accordingly, going forward, if the Commonwealth moves for arraignment, the judge will lack the authority to dismiss the complaint based on the best interests of the juvenile and in the interests of justice.

3. Prearraignment dismissal based on failure to provide mitigating evidence. The juvenile contends that the dismissal may be upheld on the ground that the assistant principal was obligated pursuant to Commonwealth v. O'Dell, 392 Mass. 445, 466 N.E.2d 828 (1984), to inform the clerk-magistrate of the juvenile's IEP, and that this failure justified dismissal of the two charges before arraignment. Under O'Dell, a defendant may move to dismiss a grand jury indictment on the ground that "the integrity of the grand jury proceeding was impaired by an unfair and misleading presentation to the grand jury." Id. at 446-447, 466 N.E.2d 828. "To justify dismissal of an indictment, a defendant must show that 'inaccurate or deceptive evidence was given to the grand jury knowingly and in order to obtain an indictment and that the evidence probably influenced the grand jury's determination.' " Levesque, 436 Mass. at 456, 766 N.E.2d 50, quoting Commonwealth v. Drumgold, 423 Mass. 230, 238, 668 N.E.2d 300 (1996). Although there is no general duty to provide all exculpatory evidence to a grand jury, see Commonwealth v. Carr, 464 Mass. 855, 868, 986 N.E.2d 380 (2013), a motion to dismiss may lie where "evidence was withheld in a manner that distorts the meaning of the evidence admitted, or if the exculpatory evidence was so powerful it would have severely undermined the credibility of an important witness or likely have led the grand jury not to indict." Commonwealth v. Rakes, 478 Mass. 22, 30, 82 N.E.3d 403 (2017). The rationale in O'Dell has never been applied to private complaints or in the prearraignment context.

We pretermit the question whether O'Dell applies to private complaints or may be raised prearraignment, as the juvenile's argument fails for the more fundamental reason: a motion to dismiss under O'Dell lies where the withheld evidence, if known by the finder of probable cause, would likely have resulted in a finding of no probable cause. See Rakes, 478 Mass. at 32, 82 N.E.3d 403 (rejecting O'Dell claim where "[t]he appropriately admitted evidence was more than sufficient to demonstrate probable cause"); Commonwealth v. Hunt, 84 Mass. App. Ct. 643, 659, 999 N.E.2d 1104 (2013), quoting Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982) (reversing order dismissing on O'Dell grounds where proper evidence "was sufficient 'to establish the identity of the accused ... and probable cause to arrest [them]' "). Accord Commonwealth v. Wermers, 61 Mass. App. Ct. 182, 188, 808 N.E.2d 326 (2004). The juvenile's IEP, although potentially relevant both at trial and at disposition, could not defeat probable cause. See Newton N., 478 Mass. at 752, 89 N.E.3d 1159 ("questions of criminal responsibility and mental impairment are not relevant considerations in determining probable cause").

Nonetheless, the school had a statutory duty, pursuant to the Federal Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (2012) (IDEA), to disclose information relating to the IEP to the prosecutor in order for the Commonwealth to make a reasoned, informed decision whether to move forward with the prosecution. "The IDEA is a complex Federal grant program intended to 'ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.' " Commonwealth v. Nathaniel N., 54 Mass. App. Ct. 200, 202, 764 N.E.2d 883 (2002), quoting 20 U.S.C. § 1400(d)(1)(A) (Supp. 1999). The IDEA sets forth "substantive and procedural rights designed to ensure achievement of the statutory goals," Nathaniel N., supra, providing Federal funding for States that meet certain conditions. See Kelly K. v. Framingham, 36 Mass. App. Ct. 483, 484, 633 N.E.2d 414 (1994).

Under 20 U.S.C. § 1415(k)(6)(B)(2012), "[a]n agency reporting a crime committed by a child with a disability shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime." Few courts have thus far addressed the requirements of § 1415(k)(6)(B), such as when and to what "appropriate authorities" the records must be provided. In Nathaniel N., 54 Mass. App. Ct. at 206, 764 N.E.2d 883, we concluded that a delay in providing such records did not, without more, create "one of those rare cases that warrants overriding a District Attorney's authority to decide whether to prosecute a case."

Nonetheless, it is beyond cavil that the IDEA "recognizes that such records would be relevant for placement and dispositional purposes." Id. at 205, 764 N.E.2d 883. The purpose of § 1415(k)(6)(B) is to provide such records to help determine whether a crime has been committed by a student that warrants prosecution and what disposition would be appropriate if such a crime were proven. Decisions regarding whether to prosecute a particular case are within the discretion of the prosecuting authorities of the Commonwealth. See Victory Distribs., Inc. v. Ayer Div. of the Dist. Court Dep't, 435 Mass. 136, 143, 755 N.E.2d 273 (2001). Accordingly, it is necessary that the prosecutor, as the appropriate authority, have access to this information in time to exercise this discretion in an informed manner.

Prosecutors have the authority to nol pros a complaint issued under G. L. c. 218, § 35A, before arraignment. See Carroll, petitioner, 453 Mass. 1006, 1006, 900 N.E.2d 851 (2009). This discretionary function is an important prosecutorial duty, particularly in juvenile cases, and one that school authorities need to protect by providing the prosecutor with access to information that weighs on the prosecutor's determination. "[S]ound judgment must be applied in deciding whether a child's misbehavior that is legally within the ambit of the criminal law is so serious that it should be treated as a delinquency complaint in Juvenile Court, rather than as a disciplinary matter that is best resolved within a school, family, or clinical mental health setting." Orbin O., 478 Mass. at 766, 89 N.E.3d 1151. Upon reviewing the juvenile's records, which may cast doubt on the juvenile's responsibilities for his actions or present significant mitigating factors, the prosecutor is in a better position to make an appropriate decision about whether proceeding with arraignment is in the best interests of the juvenile and is consistent with the interests of justice. See Newton N., 478 Mass. at 757, 89 N.E.3d 1159. Accordingly, we remind school officials that, when seeking a delinquency complaint against a juvenile with an IEP, the school officials should make sure that the prosecutor has knowledge of the relevant information in time to make an informed decision whether to arraign the juvenile.

In this case, the Commonwealth is now aware of the existence of the IEP and is able to seek other information from the school. We trust that the Commonwealth will carefully consider this information before proceeding further. Guided by this information, it is now within the prosecutor's sound discretion whether to move for arraignment in this case or to consider other alternatives.

Conclusion. The order allowing the motion to dismiss the two assault and battery charges is vacated and the charges are reinstated.

So ordered.

      These allegations are those stated in the application for the criminal complaint. See Commonwealth v. Valentin V., 83 Mass. App. Ct. 202, 203 & n.1, 982 N.E.2d 544 (2013). They remain unproven.

      Arraignment was originally scheduled for January 28, 2016, but was rescheduled without objection from the Commonwealth.

      With the Commonwealth's apparent consent, the juvenile ultimately received a disposition of pretrial probation on the charge of disturbing a school assembly. After he successfully completed the term of probation, the Commonwealth dismissed the charge. The Legislature has since amended G. L. c. 272, § 40, so that it cannot be used to prosecute a juvenile student for conduct at school. See St. 2018, c. 69, § 159.

      Although the judge references the lack of bodily injury to the teacher and the principal in finding no probable cause, bodily injury is not a necessary element for an intentional assault and battery. See Commonwealth v. Porro, 458 Mass. 526, 529, 939 N.E.2d 1157 (2010).

      Previously 20 U.S.C. § 1415(k)(9)(B) (2000).


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. William H. CROMBIE.
    17-P-917
    Appeals Court of Massachusetts.
    Entered: October 5, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   After a jury trial in the District Court, the defendant, William H. Crombie, was convicted of operating a motor vehicle while under the influence of intoxicating liquor. G. L. c. 90, § 24 (1) (a ) (1). On appeal, the defendant claims that the trial judge erred in (1) failing to instruct the jury that the police officer's testimony was lay testimony rather than expert testimony and (2) permitting testimony, without expert foundation, of two particular field sobriety tests (FST), and (3) that the cumulative effect of the errors requires reversal. We affirm.

Discussion. 1. Jury instruction. The defendant argues that the judge should have, sua sponte, instructed the jury that Officer Patrick Leahy's testimony regarding the defendant's performance on the field sobriety tests was lay rather than expert testimony. Because the defendant did not object to the judge's instructions, we must determine whether there was an error and, if so, whether the error created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). We discern no error.

"Trial judges are accorded considerable discretion in framing jury instructions, both in determining the precise phraseology used and the appropriate degree of elaboration." Commonwealth v. Newell, 55 Mass. App. Ct. 119, 131 (2002). The judge instructed the jury to "rely on your own experience and common sense about the effects of alcohol," and to "consider any believable evidence about the defendant's alleged consumption of alcohol, as well as the defendant's appearance, condition and behavior at the time." She also repeatedly instructed the jury that they were "the sole and exclusive judges of the facts."

Here, Leahy's testimony did not indicate that he possessed or used scientific or technical knowledge in determining the defendant's level of intoxication, but simply that he learned about the administration of field sobriety tests while at the police academy. Moreover, Leahy's testimony stayed within the boundaries of lay testimony, as he opined on the defendant's level of intoxication, not the defendant's operation of a motor vehicle while under the influence of intoxicating liquor. Cf. Commonwealth v. Canty, 466 Mass. 535, 542 (2013). The judge repeatedly instructed the jury to rely on their own common knowledge in order to deduce the defendant's level of intoxication, and there was no error. "A lay juror understands that intoxication leads to diminished balance, coordination, and mental acuity from common experience and knowledge." Commonwealth v. Sands, 424 Mass. 184, 188 (1997).

Even if the judge's failure to give such an instruction sua sponte was error, it did not result in a substantial risk of a miscarriage of justice given the considerable other evidence of the defendant's impaired ability to operate a motor vehicle. Leahy testified that he observed the defendant drive the wrong way down a one-way street and that the defendant's vehicle nearly hit Leahy's police cruiser. Leahy also testified that the defendant smelled strongly of alcohol, slurred his words, and had difficulty following instructions. When Leahy requested the defendant's registration, the defendant handed Leahy a store receipt. In addition, Leahy made observations during the FSTs, including that the defendant could not walk in a straight line and had difficulty with balance.

2. Challenge to certain FSTs without expert foundation. Leahy testified that he asked the defendant to state the month and year of his birth. The defendant stated the month, date, and year of his birth. Leahy testified that he then asked the defendant to recite the alphabet, without singing, from the letter D to the letter U. When the defendant did not understand the instructions, Leahy demonstrated what he wanted and the defendant was not able to understand.

The defendant argues that these two FSTs were "not ordinary field sobriety tests" and, therefore, required expert foundation under Daubert-Lanigan. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Commonwealth v. Lanigan, 419 Mass. 15 (1994). The defendant likens both FSTs at issue to a Horizontal Gaze Nystagmus (HGN) test, which is a scientific test requiring the Commonwealth to lay an evidentiary foundation because it "is not within the common experience of jurors." Sands, 424 Mass. at 188.

The defendant did not object to Leahy's testimony concerning the defendant's month and year of birth. In addition, the parties disagree as to whether the defendant preserved an objection to the modified alphabet FST. If there is an error, we must determine whether that error carried a substantial risk of a miscarriage of justice. Alphas, 430 Mass. at 13. We conclude there was no error in allowing testimony about either of these FSTs.

A person's ability to state just the month and year of their birth is within the common understanding of jurors. Similarly, the alphabet test used here, while modified, is still a rote exercise and within the common experience of jurors. The difference between the two FSTs at issue here and the HGN test does not lie in their respective difficulties, but rather in a lay person's ability to analyze the results. Leahy's deviation from standard practices in administering the FSTs does not affect the admissibility of the evidence. See Commonwealth v. Schutte, 52 Mass. App. Ct. 796, 801 (2001), quoting Commonwealth v. Vaidulas, 433 Mass. 247, 254 (2001) ("Any failure to adhere to training standards ... 'b[ore] on the weight of his testimony' "). To the extent the two FSTs might have required use of thought, the roadside questioning of a motorist detained during a routine traffic stop does not constitute custodial interrogation for purposes of the Miranda rule. See Pennsylvania v. Bruder, 488 U.S. 9, 10-11 (1988) ; Berkemer v. McCarty, 468 U.S. 420, 436-442 (1984). As the Supreme Judicial Court explained in Vanhouton v. Commonwealth, 424 Mass. 327, 332 n.9, cert. denied sub nom. Van Houten v. Massachusetts, 522 U.S. 834 (1997), the motorist is not in custody and there is no violation of his right against self-incrimination because the motorist's responses are not the product of governmental compulsion.

Judgment affirmed.

      Nothing in this decision should be read to endorse the officer's use of either of these FSTs. Our search of all the appellate decisions in Massachusetts revealed sparse use of the modified alphabet test and no case reporting the use of the month and year of birth inquiry. As this appeal illustrates, deviation may complicate rather than elucidate. Moreover, given that it is common to be "nervous during even a mundane encounter with police" (quotation omitted), Commonwealth v. Sheridan, 470 Mass. 752, 758-759 (2015), a motorist's difficulty performing a modified rote exercise may not be indicative of intoxication.

      Given our conclusions herein, there was no cumulative error.


text:
    COMMONWEALTH v. Raheem B. GARRETT.
    17-P-943
    Appeals Court of Massachusetts.
    Entered: October 5, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant, Raheem Garrett, appeals from the denial, without an evidentiary hearing, of a motion to vacate his convictions. We affirm.

1. Background. The defendant was convicted in 2012 of three counts of armed robbery with a firearm while masked. The first and third robbery were of a pizza shop and the second robbery was of a convenience store. The defendant was sentenced to ten to fifteen years in the State prison. He appealed from his convictions, and the Supreme Judicial Court granted the Commonwealth's application for direct appellate review. The convictions were vacated and the matter was remanded to the Superior Court for entry of judgments of guilt on the lesser included offenses of unarmed robbery, and for resentencing. Commonwealth v. Garrett, 473 Mass. 257, 257-258, 267 (2015). Thereafter, the defendant was resentenced to a term of five to eight years. Over the next nine months, the defendant, proceeding pro se, filed a number of motions including a motion challenging the sufficiency of the evidence under Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995), and a motion to vacate the convictions pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001). As regards the latter motion, the trial judge understood the defendant to claim he was entitled to relief based on alleged errors in presenting the case to the grand jury, erroneous admission of DNA evidence, double jeopardy, prosecutorial misconduct, and ineffective assistance of counsel. Concluding that none of these claims was meritorious, the judge denied the motion. On appeal, the defendant appears to challenge so much of the judge's order as denied his rule 30 motion on the grounds of insufficient evidence, double jeopardy, and clerical errors.

2. Discussion. "We review the denial of a motion brought under [ rule 30 (a) ] for abuse of discretion or error of law." Commonwealth v. Perez, 480 Mass. 562, 567 (2018). We discern neither here.

a. Sufficiency of evidence. Passing on the issue whether the defendant's claim that he was entitled to a required finding of not guilty is properly before us, we agree with the Commonwealth that the evidence presented to the jury, as recited by the Supreme Judicial Court, was sufficient to prove the elements of the offenses beyond a reasonable doubt. See Commonwealth v. Garrett, 473 Mass. at 258-259. We further conclude that the judge did not abuse his discretion in not conducting an evidentiary hearing on this issue. See Commonwealth v. Ortiz, 67 Mass. App. Ct. 349, 361 (2006).

b. Double jeopardy. To the extent the defendant argues that his right to be free from double jeopardy was violated when the case was remanded by the Supreme Judicial Court to the Superior Court for resentencing, the claim is unavailing. Resentencing that does not result in any increase in punishment does not violate the principle of double jeopardy. See Commonwealth v. Parrillo, 468 Mass. 318, 321 (2014). Here, after remand, the defendant's sentence of ten to fifteen years was reduced to five to eight years. Accordingly, the judge correctly denied relief on this ground.

c. Remaining claims. The defendant's remaining arguments barely constitute appropriate appellate argument. We have nonetheless reviewed the record and discern nothing improper related to the presentation of the case to the grand jury, arrest and warrant procedures, or in the correction of certain clerical errors.

Order dated March 17, 2017, affirmed.

      The motion also sought dismissal of the indictments.

      The judge's order also denied the rule 25 motion and a motion for jail credits.


text:
    COMMONWEALTH v. Christopher BRODERICK.
    17-P-1386
    Appeals Court of Massachusetts.
    Entered: October 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   On December 4, 2008, the defendant, Christopher Broderick, pleaded guilty in the Boston Municipal Court to three counts of assault and battery on a police officer and one count of resisting arrest. Approximately eight years later, on September 29, 2016, the defendant filed a motion to vacate plea and for new trial. On December 12, 2016, the motion judge, who also presided at the 2008 plea hearing, conducted a nonevidentiary hearing on the defendant's motion, which she denied on the record. This appeal ensued. For the reasons stated below, we affirm.

The defendant argues that the judge erred in denying his motion, because his guilty plea was not knowingly, voluntarily, and intelligently made, and because his plea counsel rendered ineffective assistance. In support of his motion, the defendant submitted his own affidavit, which averred, inter alia, that his attorney coerced him to plead guilty, failed to explain the consequences of the guilty plea, failed to explain the elements of the crimes to which he was pleading guilty, and failed to advise him of the legal rights he would waive by pleading guilty.

"A motion to withdraw a guilty plea is treated as a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001)." Commonwealth v. Lavrinenko, 473 Mass. 42, 47 (2015), quoting Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). Motions for a new trial are committed to the sound discretion of the judge, Commonwealth v. Moore, 408 Mass. 117, 125 (1990), and "are granted only in extraordinary circumstances." Commonwealth v. Comita, 441 Mass. 86, 93 (2004). "[A]s the motion judge was also the plea judge, we accord substantial deference to [her] decision to deny the motion". Commonwealth v. Williams, 71 Mass. App. Ct. 348, 354 (2008). "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.' " Commonwealth v. Scott, 467 Mass. 336, 344 (2014), quoting Commonwealth v. Stewart, 383 Mass. 253, 260 (1981).

In the present case, the judge made several observations on the record in denying the defendant's motion. First, she stated that the defendant failed to provide any affidavit from plea counsel, much less one supporting the defendant's claim that he was not advised of his legal rights. See Commonwealth v. Vasquez, 55 Mass. App. Ct. 523, 533 (2002) ("Conspicuously absent in these circumstances is an affidavit from ... counsel"). Second, the judge reasoned that "other than [the defendant's] self-serving statement that he was coerced, I don't have -- there's no evidence before me of that, or that he didn't get properly advised by the Court, or that he didn't get properly advised by his attorney." See id. (defendant's affidavits filed with motion for new trial were "suspiciously self-serving" and "conclusory"); Commonwealth v. Wheeler, 52 Mass. App. Ct. 631, 637 (2001) ("In those instances where the defendant's attack on his conviction or his plea by a rule 30 [b] motion proceeds, necessarily, on a basis extrinsic to an unavailable contemporaneous record, a judge is not required to accept the defendant's self-serving affidavit as sufficient to satisfy his burden"). Third, she noted that the trial court docket contradicted various claims made by the defendant, including his claim that he was held in custody following a dangerousness hearing. See Commonwealth v. McCants, 20 Mass. App. Ct. 294, 297 (1985) ("Docket entries are prima facie evidence of the facts recorded there"). Fourth, the judge stated that she does "a complete colloquy with everybody that I take a plea from, and if I'm not satisfied that the person understands what he or she is doing, I won't accept the plea." To this we add that the defendant and his counsel signed the tender of plea form (i.e., the "green sheet"), containing the waiver of rights notice to the defendant and certification by plea counsel that he explained the waiver of jury trial and other rights, "so as to enable the defendant to tender his or her plea of guilty or admission knowingly, intelligently and voluntarily."

In short, the judge determined that the defendant's self-serving claims lacked factual support and credible evidence. See Wheeler, 52 Mass. App. Ct. at 640-641 (denial of motion for new trial upheld where defendant's claim lacked reliable and credible proof and ran counter to presumption of regularity). Combined with the evidence from the docket contradicting the defendant's argument, and the other factors described by the judge at the motion hearing, we cannot say that she abused her ample discretion in denying the motion.

Order denying motion to vacate plea and for new trial affirmed.

      The defendant's motion and supporting documents contained additional details of his arrest, including allegations that the arresting officers acted as the aggressors and never provided Miranda warnings to him.

      Where, as here, a motion for a new trial is also based on ineffective assistance of counsel, the defendant must show that the "behavior of counsel [fell] measurably below that [of] an ordinary, fallible lawyer" and that such failing "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

      Citing Commonwealth v. Ciampa, 51 Mass. App. Ct. 459, 463 (2001), the defendant contends that the judge's reliance on her "customary practice" was erroneous because she failed to state on the record the date on which that customary practice began and that the advisement included all warnings. The argument is unavailing. In Ciampa, this court remanded the case to the Superior Court where the motion judge "relied solely on a general statement of customary past practice" to deny a motion to vacate a guilty plea due to an alleged failure to provide the immigration advisements mandated by G. L. c. 278, § 29D. Id. at 463-464. Here, by contrast, the judge did not rely "solely" on her customary past practice in denying the defendant's motion, but relied upon the numerous factors delineated supra.

      In view of the judge's conclusions regarding the absence of evidence supporting the motion, the defendant has likewise failed to meet his burden of establishing that plea counsel rendered ineffective assistance. See Commonwealth v. Ubeira-Gonzalez, 87 Mass. App. Ct. 37, 41, 45 (2015).

      To the extent we do not discuss other arguments made by the defendant, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).


text:
    HERITAGE HILL FINANCE CO., INC. v. KINAEDA CORP. & another.
    17-P-1171
    Appeals Court of Massachusetts.
    Entered: October 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      Michael N. Miller.

   The defendant, Michael N. Miller, appeals from an order dismissing his underlying appeal. We affirm.

As alleged, Kinaeda Corp. (Kinaeda) took out a $2 million loan; the note later was assigned to Heritage Hill Finance Company, Inc. (Heritage). Miller guaranteed Kinaeda's loan. Kinaeda was current on the note until late 2010 but made no payments thereafter, leaving a balance then due of about $580,000. Heritage commenced this action in 2013 for, relevant here, breach of Miller's guarantee.

Following a jury-waived trial, judgment in the total amount of about $402,188.28, with interest, entered in Heritage's favor. Miller noticed a timely appeal and took initial steps to have a trial transcript produced but, in February, 2016, was notified that the electronic trial recording could not be located and no trial transcript could be produced. Miller took no further steps to perfect his appeal.

In January, 2017, Heritage moved to dismiss Miller's appeal. In substance, Heritage argued that as Miller had neither filed and served a statement of evidence and proceedings, see Mass. R. A. P. 8 (c), as amended, 378 Mass. 932 (1979), nor made any attempt to have an agreed statement of the case on appeal approved, see Mass. R. A. P. 8 (d), as amended, 378 Mass. 932 (1979), Miller had not prosecuted his appeal with the diligence required by Mass. R. A. P. 9 (c), as amended, 437 Mass. 1602 (2002). Miller made no attempt to recreate the record after Heritage moved to dismiss but, instead, moved for an enlargement of time and opposed Heritage's motion, suggesting, in his multiple affidavits, that his underlying appeal had merit and that the missing trial recording "made my job of perfecting the appeal very hard." Following an April, 2017, hearing, the same judge who presided at the trial dismissed Miller's appeal.

Rule 10 (c) of the Massachusetts Rules of Appellate Procedure provides that an appeal may be dismissed upon a finding that the appellant's dilatory, uncured conduct was due to "inexcusable neglect." Mass. R. A. P. 10(c), as amended, 417 Mass. 1602 (1994). While "inexcusable neglect" is a somewhat amorphous concept, it "does not embrace [a] flat mistake ... about the meaning of a ... rule" or other "garden-variety oversights." Neuwirth v. Neuwirth, 85 Mass. App. Ct. 248, 257 (2014), quoting Mailer v. Mailer, 387 Mass. 401, 406 (1982). See Doten v. Doten, 395 Mass. 135, 139-140 (1985). We review an order dismissing an appeal for abuse of discretion, remaining "mindful ... that the burden was on [Miller], as appellant, to pursue his appeal, and to provide an adequate record for his appeal." Scheuer v. Mahoney, 80 Mass. App. Ct. 704, 708 (2011), quoting Spivey v. Neitlich, 59 Mass. App. Ct. 742, 744 (2003).

Rule 8 of the Massachusetts Rules of Appellate Procedure specifically contemplates that electronic trial recordings may be unavailable, providing specific procedures to be employed in that event. See notes 2 & 3, supra, and accompanying text. As the record reflects here, Miller failed to utilize the procedures delineated in rule 8. See, e.g., Commonwealth v. Flint, 81 Mass. App. Ct. 794, 800-804 (2012) (delineating steps to reconstruct record on appeal when transcript is unavailable). Miller does not claim ignorance of his duties under rules 8 and 9 of the Massachusetts Rules of Appellate Procedure ; nor does he claim any circumstances beyond his control (other than that the electronic recording was not available), mistake, misunderstanding, or even simple oversight. Instead, Miller contends, in substance, that opposing counsel allegedly, on a single occasion, did not return Miller's telephone call -- an allegation counsel disputes -- and that the missing recording made it difficult to prepare his appeal. In this light Miller's conduct properly may be characterized as "inexcusable." Compare Neuwirth, 85 Mass. App. Ct. at 257-258.

Nor did the judge erroneously deny Miller's request for an enlargement. We note that Miller made no effort to take advantage of the cure provisions provided by Mass. R. A. P. 10 (c) even though more than three months passed between the date Miller received Heritage's motion and hearing on that motion. Nor, as noted, did Miller adequately explain what efforts, if any, he took to reconstruct the record during the previous year. In the meantime, as Miller's delays accrued and the parties' and trial judge's recollections faded, Heritage remained unable to execute on its judgment.

We appreciate that Miller's counsel withdrew shortly after judgment entered and that Miller now is unrepresented. While "some leniency" may therefore be appropriate when reviewing Miller's appellate efforts, he nonetheless remains, "as all other litigants" are, bound by the rules of procedure. Brown v. Chicopee Fire Fighters Ass'n., Local 1710, IAFF, 408 Mass. 1003, 1004 n.4 (1990). In this case Miller's failure to take steps to recreate the record has both prejudiced Heritage and rendered us unable, from "both a legal and a practical" perspective, to conduct any meaningful review. Kellogg v. Board of Registration in Med., 461 Mass. 1001, 1003 (2011). We are thus unable to say that the judge committed " 'a clear error of judgment in weighing' the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).

The record before us does not show that Miller made any objection or argument below that the judge should have recused himself. Miller thus waived the claim. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006). See also Matter of a Care & Protection Summons, 437 Mass. 224, 239 (2002) (belated request for recusal "suggests a tactical decision in the face of an adverse ruling"). In any event, "[t]here has been no showing in what is before us that the [judge] was biased in this case, or that his ruling was 'influenced by any considerations other than the law.' " Erickson v. Commonwealth, 462 Mass. 1006, 1007 (2012), quoting Commonwealth v. Daye, 435 Mass. 463, 470 n.4 (2001).

To the extent we have not specifically commented, we have considered Miller's remaining arguments and have found them unavailing. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954). The orders entered on April 21, 2017, dismissing defendant Miller's appeal and denying his motion for an enlargement of time are affirmed.

So ordered.

Affirmed

      Although Heritage filed suit against Kinaeda and Miller, Kinaeda dissolved before the date of the trial, leaving Miller as the only defendant.

      As relevant here, rule 8 (c) provides that "the appellant may, within thirty days after the notice of appeal is filed, file a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may file objections or proposed amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments thereto shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal."

      As relevant here, rule 8 (d) provides that "the parties may, within thirty days after the notice of appeal is filed, prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the lower court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented."

      The docket reflects that the judge allowed Heritage's motion for "substantially the reasons set forth in [Heritage's] memorandum." Despite his duty as the appellant, see Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975), Miller did not include in his appendix copies of: (i) the judge's endorsement; (ii) Heritage's moving papers; or (iii) Heritage's memorandum in support of its motion. Accordingly, we infer the judge's conclusion of inexcusable neglect and "a finding of every fact essential to support it." Commonwealth v. One 1969 Mercedes-Benz Auto., 375 Mass. 663, 666 n.3 (1978).


text:
    COMMONWEALTH v. Mark A. CRICHLOW.
    17-P-1223
    Appeals Court of Massachusetts.
    Entered: October 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   The defendant appeals from his conviction, after a jury trial, for aggravated rape and abuse of a child, G. L. c. 265, § 23A (b ). His primary arguments on appeal concern various aspects of the admission of DNA evidence; he also argues that the judge failed to adequately examine prospective jurors to ensure that they understood the Commonwealth's burden of proof and the defendant's presumption of innocence. We affirm.

We briefly summarize the evidence, reserving additional facts to our discussion infra of the defendant's arguments. The conviction arises from the victim's allegation that the defendant, who is her uncle, raped her within days of his release from prison in September, 2013. The rape occurred in the enclosed porch of the family home; the victim was fourteen years old at the time. She reported the incident shortly thereafter, and a SANE examination was conducted at a local hospital. The victim refused to allow the SANE nurse to take a vaginal swab and was unwilling to disrobe in front of the nurse. Accordingly, the nurse instructed the victim on how to take the swab. Although the nurse could not verify that the victim followed the instructions (because she did not observe the victim take the swab, nor did she observe her disrobe), the victim testified that she followed the nurse's instructions. The victim then handed the swab to the SANE nurse.

The vaginal swab, together with the remainder of the SANE evidence collection kit, was transmitted to the State laboratory where a criminologist extracted the vaginal swab and found sperm cells. A DNA profile was then generated by an analyst who did not testify at trial.

A police officer took a buccal swab from the defendant on February 4, 2015. The officer did not say what he did with that sample, or where he sent it. However, in response to a generalized question that he describe "how" a buccal sample is taken, the officer testified:

"We basically swab the inside of the cheeks on the inside of the mouth, the right-side cheek, the left-side cheek and also underneath the tongue, put it on a sample card, seal[ ] [it] and sen[d] [it] to the lab."

A forensic scientist in the State lab, Kira Snyder, compared the victim's vaginal swab DNA profile to a buccal swab taken from the defendant. Like the vaginal swab, the buccal swab was profiled by an analyst who did not testify at trial. Snyder determined that the DNA profile from the vaginal swab matched the DNA profile from the buccal swab.

1. Confrontation -- nontestifying DNA analysts. The defendant argues that Snyder's testimony violated his confrontation right under the Sixth Amendment to the United States Constitution and under art. 12 of the Massachusetts Declaration of Rights because the analysts who prepared the DNA profiles upon which Snyder's opinion was based did not testify.

"We allow an expert to testify to his or her independent opinion even if based on data not in evidence; we do not allow expert witnesses to testify to the specifics of hearsay information underlying the opinion on direct examination." Commonwealth v. Greineder, 464 Mass. 580, 592 (2012) (Greineder II ). Here, on direct examination, Snyder testified only to the fact that she compared the DNA profile from the vaginal swab with the DNA profile from the buccal swab and determined that the defendant could not be excluded as a possible contributor, given also the statistical likelihood that the DNA profile from the vaginal swab would be found in the general population. She did not testify about the work of the analysts who prepared the profiles, nor did she testify to any of the specifics (hearsay or otherwise) of the information underlying her opinion. Neither the Sixth Amendment nor art. 12 precludes "an expert's independent opinion testimony, even if based on facts or data not in evidence and prepared by a nontestifying analyst." Id. at 593. See Commonwealth v. Jones, 472 Mass. 707, 712 (2015), quoting Commonwealth v. Nardi, 452 Mass. 379, 388 (2008) (in this context, "the protection provided by art. 12 is coextensive with the guarantees of the Sixth Amendment"). No confrontation issue was raised by Snyder's testimony on direct.

Under our bifurcated common-law confrontation evidentiary rubric, "the defendant can open the door on cross-examination to testimony regarding the basis for the expert's opinion," Commonwealth v. Barbosa, 457 Mass. 773, 785 (2010), and if the defendant has a fair opportunity to cross-examine the expert witness regarding both the expert's opinion and the underlying data and procedures, the defendant's common-law confrontation rights are not violated. See Greineder II, 464 Mass. at 594-595 ; Barbosa, supra at 786. If, however, the defendant does not have such an opportunity, then his common-law confrontation right is violated. Compare Greineder II, supra at 596-597 (no confrontation right violation where expert was employed by DNA testing laboratory and as such "in a unique position to speak to the DNA testing process"), with Commonwealth v. Tassone, 468 Mass. 391, 401-402 (2014) (confrontation right violated where expert did not work for laboratory and could not testify to procedures, protocols, and reliability of data on which expert's opinion was based).

The defendant had -- and exercised -- that opportunity here. Voir dire established that Snyder worked in the same lab as the nontestifying analysts, was familiar with the processes they used, the procedures and protocols of the lab, and with each step that the analysts employed to document the administrative and technical accuracy of their work. The defendant was free to cross-examine Snyder on all of these topics. He also had the opportunity to cross-examine Snyder about the fact that she accepted, without independent review, knowledge, or verification, the profiles generated by the nontestifying analysts. The fact that counsel chose not to explore these avenues on cross-examination (although she did so in voir dire) does not mean that she was deprived of the opportunity to do so. See Barbosa, 457 Mass. at 790-791. Instead, it appears from the transcript that counsel's strategy was to focus on other lines of attack: first, that Snyder had no independent knowledge that the DNA on the vaginal swab actually came from a vagina, let alone from the victim (which tied into the defense that the defendant had had sex with other women on the porch during the same timeframe); and second, that Snyder had no independent knowledge that the buccal swab came from the defendant. She also established that Snyder's statistical testimony pertained to unrelated persons, while the victim and the defendant were closely related.

2. Evidence submission form. The defendant makes three arguments with respect to the admission of the evidence submission form, which was the only direct evidence that the buccal swab profile analyzed by Snyder came from the defendant. First, he contends that the judge abused his discretion by admitting the form given the Commonwealth's failure to adequately authenticate it. Second, he contends (and the Commonwealth agrees) that the form contains inadmissible hearsay to the extent that it was offered to prove that the defendant was the source of the DNA. Third, he contends (and the Commonwealth does not dispute) that the contents of the form are testimonial. We examine each of these contentions in turn.

Because the defendant preserved his objection that the evidence submission form was inadequately authenticated, we review to determine whether the judge abused his discretion to admit it, see Zucco v. Kane, 439 Mass. 503, 507 (2003), and if so, whether the document's admission resulted in prejudicial error. There was no error. "The requirement of authentication as a condition precedent to admissibility of real evidence is satisfied by a foundation sufficient to support a finding that the item in question is what its proponent claims it to be." Commonwealth v. Siny Van Tran, 460 Mass. 535, 546 (2011). See Mass. G. Evid. § 901(a) (2018). "A proponent adequately lays the foundation for admission when a preponderance of the evidence demonstrates that the item is authentic." Siny Van Tran, supra. "If the object is one the witness can particularly identify, it will be sufficient." Commonwealth v. Herring, 66 Mass. App. Ct. 360, 365 (2006). Here, although the safer practice would certainly have been to have the person who created the form establish its authenticity, authenticity was sufficiently established by Snyder's testimony that such evidence submission forms regularly accompany buccal swabs when they are submitted to the lab for testing, that the evidence form in this case pertained to the defendant, and that it bore the defendant's name and date of birth as well as various case-identifying numbers.

The defendant preserved his hearsay objection, and we thus examine whether its admission resulted in prejudicial error. "An error is nonprejudicial only '[i]f ... the conviction is sure that the error did not influence the jury, or had but very slight effect .... But if one cannot 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, it is impossible to conclude that substantial rights were not affected.' " Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983).

Although we acknowledge that the evidence submission form supplied the only direct evidence that the buccal swab tested at the lab was the same swab taken from the defendant, we conclude that its admission did not rise to the level of prejudicial error. To begin with, weaknesses in the chain of custody do not normally require reversal because they go only to the weight, not the admissibility, of evidence. See Commonwealth v. Caruso, 476 Mass. 275, 286 n.7 & 287 n.8 (2017). Moreover, although the evidence submission form was the only direct evidence establishing the chain of custody of the buccal swab, there was circumstantial evidence that supported the same conclusion. The officer who took the buccal swab testified that he took a buccal swab from the defendant, identified the defendant in court, and identified his date of birth. He also testified that, as a general practice, buccal swabs are sent to the lab for testing. It is true that the officer did not state that he sent this particular swab to the lab, but it was open to the jury to infer that he did so given his description of the general practice. A further link was supplied when Snyder testified that the evidence submission form bore the same birth date as that identified by the officer. More broadly still, the victim testified that the defendant raped her, testimony that was buttressed by the fact that the vaginal swab taken from her contained sperm. Circumstances buttressed the victim's testimony, including the physical layout of the house, and the chronology of events (the timing of the defendant's release from jail, the timing of the victim's report to her family, and the timing of the SANE examination -- all of which happened in close proximity). Finally, the vaginal swab profile matched that of the buccal swab. In these circumstances, we conclude that admission of the hearsay evidence to supply the missing link in the chain of custody of the buccal swab does not require reversal.

For the same reasons, it did not result in a miscarriage of justice even though its admission violated the defendant's confrontation rights. And, again for the same reasons, we reject the defendant's unpreserved argument that weaknesses in the chain of custody made testimony relating to the DNA testing and its results substantially more prejudicial than probative such that it should not have been admitted.

3. Jury empanelment. The defendant argues that the judge abused his discretion by seating four jurors who revealed during voir dire that they did not understand the presumption of innocence or the Commonwealth's burden of proof. The issue is unpreserved either because the defendant failed to challenge the particular jurors for cause, or failed to exercise one of his peremptory challenges, or both. See Commonwealth v. Clark, 446 Mass. 620, 629 (2006).

"Article 12 of the Massachusetts Declaration of Rights and the Sixth Amendment to the United States Constitution, applied to the States through the due process clause of the Fourteenth Amendment, guarantee to the criminally accused the right to a trial by an impartial jury." Commonwealth v. Susi, 394 Mass. 784, 786 (1985). "The failure to grant a defendant a fair hearing before an impartial jury violates even minimal standards of due process." Id. "A trial judge is accorded considerable discretion in the jury selection process and his finding that a juror stands indifferent will not be disturbed except where juror prejudice is manifest." Clark, supra at 629-630. This is because the trial judge "who saw the juror was in the best position to determine whether the juror understood the question[s] or whether further questions were required." Commonwealth v. Lattimore, 396 Mass. 446, 450 n.6 (1985).

We discern no abuse of discretion here. After careful follow-up questioning of each of the four jurors in question, the judge repeated his instructions regarding the proper allocation of the burden of proof. Each juror then affirmed his or her understanding of that instruction and willingness to both follow and apply it. It is clear from the record that the judge's decision was based on his first-hand assessment of the jurors' response, including his assessment of the jurors' sincerity and credibility -- matters not open to our review.

For these reasons, we affirm the judgment.

So ordered.

Affirmed.

      The defendant's motion for a directed verdict was allowed at the close of the Commonwealth's case with respect to a charge of indecent assault and battery on a person over fourteen, G. L. c. 265, § 13H.

      Additional information (in the form of representations of counsel and information elicited during the voir dire of Ms. Snyder, a State forensic scientist) concerning the DNA evidence was before the judge when he made various evidentiary rulings at issue on appeal.

      Sexual assault nurse examiner.

      The buccal swab was submitted to the lab with an evidence submission form that identified the defendant as the source of the buccal swab.

      Relying on Snyder's brief reference that she did DNA analysis of the vaginal swab, the Commonwealth argues that she is the person who created the DNA profile from the swab. However, that position is at odds with Snyder's testimony during voir dire and with the prosecutor's unambiguous statement at trial that a different analyst, Maureen McCabe, prepared the sample.

      Snyder testified that "[t]he expected frequency of occurrence of this DNA profile is approximately one in 1.488 sextillion unrelated African-American individuals, one in 1.571 sextillion unrelated Asian individuals, and in 67.43 sextillion unrelated Caucasian individuals, and one in 24.99 sextillion unrelated Hispanic individuals."

      The defendant does not (and did not below) challenge the reliability of the DNA profiling, the methodology used, or of Snyder's reliance on it. In other words, the defendant's argument is (and was) not based on Commonwealth v. Lanigan, 419 Mass. 15 (1994).

      The Commonwealth appears to suggest that the evidence submission form may qualify as a business record. However, the foundation for that position was not established below and, furthermore, we note that the document was created after this criminal proceeding. See Mass. G. Evid. § 803(6)(A) (2018).

      The Commonwealth contends that the hearsay objection was not preserved. However, the defendant specifically identified hearsay as the basis for his objection the first time it was raised. The defendant was not required to repeat the basis each time he subsequently renewed his objection or when the judge preserved it when the document was admitted.

      For this reason, the defendant's argument that weaknesses in the chain of custody made Snyder's DNA testimony more prejudicial than probative such that it should have been excluded fails.

      After the indictments in this case, the Commonwealth moved to compel the defendant to produce a DNA sample by way of buccal swab. That motion was supported by an affidavit from a State lab employee who averred that a buccal swab was necessary so that "[a]n expert opinion could then be rendered as to whether or not the defendant was or was not a probable source of the biological substances recovered from the evidence." The evidence submission form is accordingly testimonial because it was "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Commonwealth v. Parenteau, 460 Mass. 1, 8 (2011), quoting Crawford v. Washington, 541 U.S. 36, 52 (2004).


text:
    ADOPTION OF ARETHA.
    17-P-1520
    Appeals Court of Massachusetts.
    Entered: October 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

      A pseudonym.

   The father appeals from a Juvenile Court judge's decision terminating his parental rights to his daughter, Aretha. On appeal, the father primarily contends that because the Department of Children and Families (DCF) failed to make sufficient efforts to reunify him with his daughter, the decree terminating his parental rights and denying posttermination contact must be vacated. We affirm.

1. Background. We draw on the judge's comprehensive findings of fact, which find ample support in the record. The mother and father married in 2005 and their daughter, Aretha, was born in 2008. The three lived together until 2009, when Aretha was about fifteen months of age, and the mother and father subsequently divorced in 2011.

The father has a lengthy criminal history and domestic violence history as well as mental health diagnoses. The father has had stints of incarceration and his convictions include assault by means of a dangerous weapon, assault and battery, threats to kill, and assault and battery on a child with injury to the child. Numerous G. L. c. 209A restraining orders have been taken out against the father, including by Aretha's mother, who obtained one in 2009 and one in 2013.

The incident precipitating the 2013 restraining order involved the father going to the mother's home in the night, at which time he threatened the mother and destroyed and stole her property. The responding officer and the Quincy District Court victim witness advocate filed G. L. c. 119, § 51A, reports (51A reports) as a result of this incident.

The father visited Aretha sporadically after he separated from the mother, and after DCF's intervention he had multiple supervised visits with Aretha. The visits that occurred went well, with the father and Aretha initiating hugs and kisses at the end of some visits. However, Aretha expressed fear and reluctance about some of the visits and refused to attend a visit in April of 2015, resulting in DCF cancelling the visit. Then, in August, 2015, after Aretha expressed that she did not want to visit with the father, the visits were suspended, and the father agreed to the suspension.

During its involvement with the family, DCF created service plans for the father. Although the father began some of the programs, he failed to follow through with the tasks, recommendations, and services established in the plans. Indeed, he completed none of them. Moreover, by May of 2015 the father refused to have any contact with DCF's social worker, telling the social worker that he did not intend to have any further contact with DCF.

Prior to the entry of the decree at issue, on August 28, 2015, the judge found both parents unfit and granted DCF permanent custody of Aretha. In April, 2016, the termination case proceeded as to the father only. On January 4, 2017, the judge entered a decree terminating the father's parental rights. This appeal ensued.

2. Discussion. We review the father's claims to determine whether the judge abused her discretion or committed a clear error of law. Adoption of Imelda, 72 Mass. App. Ct. 354, 360 (2008). An abuse of discretion exists where the reviewing court determines that "the judge made a clear error of judgment in weighing the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives" (quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Here, the judge's findings are specific and detailed, and demonstrate that close attention was given to the evidence. See Adoption of Anton, 72 Mass. App. Ct. 667, 673 (2008).

a. Waiver of visitation. The father contends that the judge erred by permitting DCF to suspend his visits with his daughter during the pendency of the care and protection proceedings and then failing to take into account DCF's lack of effort to facilitate visits when making the final termination decision. The short answer to this contention is that the judge did not err because the issue was not before her. The father did not raise this issue during the course of the proceedings or otherwise preserve this issue at trial. The father did not file an abuse of discretion motion to challenge DCF's actions at the time DCF, with his agreement, suspended his visitation, or any time thereafter. See Adoption of Gillian, 63 Mass. App. Ct. 398, 408 (2005) (issue of visitation waived where parents did not raise it at trial). "Generally, issues not raised by a losing party in the trial court are not addressed on appeal, absent exceptional circumstances." Adoption of Mary, 414 Mass. 705, 712 (1993). The father argues that this case presents such an exceptional circumstance due to the fundamental importance of visitation. However, as discussed below, the record does not support the father's contentions.

b. Abuse of discretion and visitation. Even assuming, arguendo, that the issue of visitation had been properly raised below, we find no abuse of discretion. As stated above, the record reflects the father's extensive criminal history, domestic violence history, mental health diagnoses, complete failure to comply with DCF's service plans, and unwillingness to work with DCF. Although certain visits went well, Aretha also expressed fear of her father and refused to visit with him.

The father's contention that DCF did not make reasonable efforts to "promote regular and frequent" visits is unavailing. 110 Code Mass. Regs. § 7.128 (2008). Here, Aretha expressed fear of her father and expressed that she did not want to attend certain visits with him, and, importantly, the father agreed to suspension of the visits. Moreover, there was evidence that Aretha "spoke about being afraid of her father and seeing her father fighting with her mother, biting and choking her mother which caused her to be frightened of him." In addition, visitation remained part of DCF's service plans for the father. Given these combined factors, the father did not demonstrate a lack of reasonable effort on DCF's part.

c. Findings of fact. The father contends that four of the judge's subsidiary factual findings are contrary to the evidence at trial. A subsidiary finding is "clearly erroneous when there is no evidence to support it, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed" (quotation omitted). Custody of Eleanor, 414 Mass. 795, 799 (1993). Specifically, the father disputes the findings that "months would go by" without the father visiting Aretha, that Aretha did not want to visit with the father on a particular date, and that the father cancelled a particular visit. The father also contends that the judge should have found that the visits were terminated and not "temporarily suspended." The findings are not clearly erroneous. As detailed, supra, and when analyzed as a whole, the judge's findings are well supported by the evidence presented.

d. Termination of parental rights. The father argues that the judge's decision to terminate his parental rights was flawed. "Once a parent is found to be unfit, the judge must then ascertain whether the parent's unfitness is such that it would be in the child's best interests to end all legal relations between parent and child" (quotations omitted). Adoption of Imelda, 72 Mass. App. Ct. at 360. Here, the judge fully and properly considered the required factors set forth in G. L. c. 210, § 3 (c ), and found factors (ii), (iii), (iv), (vi), (viii), and (xi) applicable to her determination.

Citing Petition of Boston Children's Serv. Ass'n to Dispense with Consent to Adoption, 20 Mass. App. Ct. 566 (1985), the father contends that the judge failed to take into account his support for the guardianship petition filed by Aretha's maternal grandparents. This argument is without merit. The father's testimony that he would "walk away" if Aretha were placed with a family member hardly shows that his continued involvement in her life would further her best interests. Contrast id. at 572-574 (while mother recognized that she was not capable of having physical custody, she "made every effort to maintain contact with the children" and demonstrated capacity to assist in decisions about children's welfare). The judge did not abuse her discretion in terminating the father's parental rights.

Decree affirmed.

      The child did not submit a brief but instead submitted an amicus brief in support of visitation with the father. We allow the amicus brief only to the extent that it supports the arguments made by the father.

      The father has received diagnoses of attention deficit disorder and bipolar disorder and has been prescribed medications for treatment.

      Another 51A report alleging neglect of Aretha by the mother had been supported in November of 2013 following an emergency G. L. c. 119, § 51B, investigation (51B investigation). In September, 2014, the DCF social worker assigned to the family filed a 51A report alleging the mother's neglect of Aretha. A 51B investigation followed, an emergency removal of Aretha was conducted, and she was placed with her maternal great aunt. This underlying care and protection petition was then filed.

      The father did not file an abuse of discretion motion against DCF or seek other relief at this time.

      Neither the parents nor Aretha appealed this determination.

      The father's counsel emphasized the importance of visitation in her brief and at oral argument, noting studies and cases that express the value of visitation. The Supreme Judicial Court recently emphasized the importance of visitation. See Care & Protection of Walt, 478 Mass. 212, 229 (2017) ; L.B. v. Chief Justice of the Probate & Family Court Dep't, 474 Mass. 231, 242 (2016).


text:
    COMMONWEALTH v. Erich G. SORENSON.
    17-P-1512
    Appeals Court of Massachusetts.
    Entered: October 5, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the District Court, the defendant, Erich G. Sorenson, was convicted of one count of assault and battery. On appeal, he contends for the first time that the judge's failure to adopt the "true threat" doctrine, sua sponte, created a substantial risk of a miscarriage of justice. We affirm.

Background. The critical facts are not in dispute. The defendant and other prisoners were transported to the Billerica house of correction and temporarily detained in a "holding cell" in the intake area prior to being "booked in" to the facility. At some point, the defendant approached the victim and punched him in the face multiple times. The punches resulted in a two-to-three inch laceration under the victim's eye, several small lacerations to the side of his face, and profuse bleeding. The victim received medical attention, including stitches under his eye. Video of the attack was played for the jury.

The defendant claimed that he acted in self-defense. He testified that he knew the victim prior to the assault, had rented a room from the victim, and had failed to pay the victim $400 that he owed to him. While they waited in the holding cell, the victim asked the defendant if he "had the money." After the defendant replied that he did not, the victim purportedly stated, "I'm going to fucking kill you." The defendant testified that he attacked the victim because he feared for his safety, was "caged in with [the victim]," and believed that he was "going to be imminently attacked." The defendant confirmed that the victim did not hit him and did not fight back.

Discussion. The defendant claims error in the judge's failure to adopt the "true threat" doctrine, and failure to provide a new self-defense instruction that was not requested at trial. As the defendant did not object to the instruction, our review is limited to whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). This standard requires us to "review the evidence and the case as a whole, considering the strength of the Commonwealth's case, as well as the nature and significance of the alleged errors." Commonwealth v. Chase, 433 Mass. 293, 299 (2001). We will reverse "only in the extraordinary situation where, after such a review, we are left with uncertainty that the defendant's guilt has been fairly adjudicated." Id. No such extraordinary circumstances are present here.

It is black letter law that "[s]pecific requests for jury instructions must be brought clearly to the judge's attention ... so that the judge has an opportunity to correct any error before the jury retire to deliberate." Commonwealth v. White, 452 Mass. 133, 137 (2008). No such request was made here. Moreover, we are unaware of any authority requiring the application of the so-called "true threat" doctrine to circumstances akin to the present case. In addition, the defense contended, consistent with the self-defense instructions provided by the judge, that the defendant had no alternative and acted out of fear of imminent attack. The instructions were clear, and we presume the jury followed them. See Commonwealth v. King, 460 Mass. 80, 83, 88 n.5 (2011).

Further, the defendant argued that viewed in context -- i.e., in a holding cell, in the face of a threat, with no place to go -- his actions were justified and reasonable. Consistent with this argument, the judge instructed the jury, in relevant part, that the Commonwealth had the burden to prove that the defendant did not act in self-defense; that the Commonwealth had to prove "beyond a reasonable doubt that there was no overt act, either words or gesture or some other action, that gave rise to a reasonable belief of attack or immediate danger"; and that in considering self-defense, the jurors could consider evidence about the "relative size or strength of the persons involved, [and] where the incident took place ... among other things." Far from the defendant's claim, the instructions did not deprive the defendant of his sole theory of defense. To the contrary, the instructions required the jury to consider the very defense pursued at trial.

Finally, the evidence against the defendant was overwhelming. The attack, captured on video that was played for the jury, was excessive. See King, 460 Mass. at 89 (no substantial risk of miscarriage of justice where "sufficient evidence for the jury to conclude that the defendant used unreasonable force in the circumstances"). See also Commonwealth v. Proulx, 61 Mass. App. Ct. 454, 466 (2004) (no substantial risk of miscarriage of justice where overwhelming evidence that injuries could only have been caused by act creating plain and strong likelihood of death). Even by the defendant's own account, the victim did not strike him, attempt to strike him, or fight back.

Judgment affirmed.

      We further note that although defense counsel referenced "context" in his closing argument, he did not reference or explain any "true-threat" doctrine to the jury, and did not advise the judge that he was proceeding under the admittedly "novel" theory that he now describes on appeal.

      In the context of the First Amendment to the United States Constitution, "true threats" do not receive constitutional protection. See Virginia v. Black, 538 U.S. 343, 358-359 (2003) ; Commonwealth v. Walters, 472 Mass. 680, 690-691 (2015) (discussing "true threat" exception to First Amendment protection). " 'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Black, supra at 359. The Supreme Judicial Court has described "true threats" as "direct threats of imminent physical harm" and "words or actions that -- taking into account the context in which they arise -- cause the victim to fear such harm now or in the future and evince intent on the part of the speaker or actor to cause such fear." O'Brien v. Borowski, 461 Mass. 415, 425 (2012).

      The defendant contends that the judge erred in instructing the jury that "[a]ny speculation about any events that might occur in the future, during any time that anybody might be incarcerated that you heard no evidence about, are not to be speculated about and are not evidence." We disagree. The prosecutor objected to the portion of defense counsel's closing argument that referenced certain facts not in evidence. The judge provided the above-quoted instruction without objection. Viewed in context, we discern no error in the instruction, which reminded the jurors to focus on the evidence and not to speculate. Even assuming, arguendo, some form of error, the instruction did not create a substantial risk of a miscarriage of justice, particularly in view of the strength of the Commonwealth's case.

      Where we discern no substantial risk of a miscarriage of justice, we likewise discern, on the record before us, no ineffective assistance of counsel. See Commonwealth v. Millien, 474 Mass. 417, 432 (2016) (second prong of ineffective assistance test met if there is substantial risk of miscarriage of justice arising from counsel's failure).


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    COMMONWEALTH v. Jose MADRID.
    17-P-568
    Appeals Court of Massachusetts.
    Entered: October 4, 2018
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial in the Superior Court, the defendant was convicted of two counts of indecent assault and battery on a child under the age of fourteen ( G. L. c. 265, § 13B ). On appeal, he contends that (1) the two indictments violate double jeopardy because the conduct was one continuous criminal act; (2) the trial judge erred in declining to answer a jury question as to whether the jury could come to a conclusion on one count and not on the other; (3) the judge erred in denying the defendant's request for an honest but mistaken belief instruction; and (4) the Commonwealth's expert's testimony was impermissible. We affirm.

Background. In the afternoon of July 30, 2014, William Gore was working as a contractor on the second floor of a house in Chelsea along with his coworker, Philip Farrell. They were in separate rooms. Gore heard a child crying and looked out the open window from which he could see into the kitchen of the adjacent home. He saw the defendant pry open the legs of the victim, the defendant's two year old niece, and repeatedly poke her in the vaginal area with his finger. Gore called to Farrell, who then joined Gore at the window and together they observed the defendant touch the victim's buttocks, backside, and inner thighs. The defendant attempted to kiss the victim's backside. Apparently noticing the contractors watching him, the defendant put the victim down, changed his shirt, and left the apartment. Gore called 911 and reported the conduct. When the responding police officers arrived, a neighbor alerted the defendant that police officers were at the house. The defendant returned to the apartment. The victim was examined by a physician and exhibited no signs of physical trauma.

The defense at trial was that Gore and Farrell had misunderstood the conduct of the defendant, who was known to be physical with his family members, including tickling them.

Discussion. Double jeopardy. The defendant contends that his criminal conduct constitutes a single crime such that charging him with two separate counts -- one for touching the victim's vaginal area and one for touching the victim's inner thighs, lower back, and buttocks -- violates double jeopardy. Because the defendant engaged in two distinct acts, neither of which was necessary or incidental to the other, we disagree. Gore witnessed the first act -- the defendant's poking his finger into the victim's vaginal area. Later, both Gore and Farrell witnessed the second act -- the defendant's touching of the victim's inner thighs, lower back, and buttocks. Thus, one act was not "sufficiently bound up with and necessary" to the commission of the other act that "due process forbids separating the conduct into discrete units for prosecution" (quotation omitted). Commonwealth v. Rodriguez, 83 Mass. App. Ct. 267, 274 (2013).

Jury question. Next, the defendant maintains that the judge erred in his response to one of the three questions posed by the jury during their deliberations. Specifically, the jury asked two questions related to the definition of vaginal area and also asked, "Can we come to a conclusion on one count and not go to a conclusion on the second count?" Reasoning that it was premature to give a Tuey-Rodriquez charge because there was no indication that the jury were deadlocked, the judge responded:

"I am going to decline to answer this question at this time as it seems a bit too hypothetical to me. I've just given you answers to some questions which may assist you in reaching a verdict on at least one of the indictments. I suggest that you now return and deliberate further on the case having gotten those instructions. If you are in fact having difficulty reaching unanimity on either indictment and wish to bring that to my attention or seek instruction about that situation, you may do so if you wish and when that occurs."

Viewed in light of the jury instructions as a whole, Commonwealth v. Bois, 476 Mass. 15, 26 (2016), which here included instructions that each indictment was separate and that the verdict on each indictment had to be unanimous, we discern no abuse of discretion in the judge's response. See Commonwealth v. Rodriquez, 364 Mass. 87, 100 (1973) ("[T]he charge has a sting and our approval of it is not to be taken as an indication that it may be used prematurely or without evident cause").

Honest but mistaken belief instruction. Citing Commonwealth v. Pressley, 390 Mass. 617, 619-620 (1983), the defendant also argues that the judge erred in declining his request for an honest but mistaken belief instruction with regard to the contractors' observations of the defendant's actions against the victim. Pressley, supra at 619, concerns the issue of misidentification of the assailant by an eyewitness. See Commonwealth v. Gomes, 470 Mass. 352, 366 (2015) (discussing scientific consensus regarding variables affecting reliability of eyewitness identification). Here, however, there was no dispute as to the identity of the assailant. Further, the judge instructed the jury to consider several factors when evaluating a witness's credibility, including, inter alia, the probability or improbability of the testimony, the witness's opportunity to see the facts to which he testified, and the accuracy of the witness's memory. Accordingly, there was no abuse of discretion.

Expert witness. Finally, the defendant asserts that the scope of the Commonwealth's expert's testimony regarding the absence of physical signs of abuse exceeded the bounds of appropriate expert testimony. We disagree. "[I]t is well within the province of a medical expert witness to explain that an absence of physical findings does not necessarily indicate an absence of [child sexual] abuse" (quotation omitted). Commonwealth v. Lawton, 82 Mass. App. Ct. 528, 540 (2012).

Judgments affirmed.

      The defendant was alone with the victim for approximately thirty minutes.

      See Commonwealth v. Rodriquez, 364 Mass. 87, 101-102 (1973) ; Commonwealth v. Tuey, 8 Cush. 1, 2-3 (1851).


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    COMMONWEALTH v. Balfour B. MCLEAN.
    17-P-1366
    Appeals Court of Massachusetts.
    Entered: October 4, 2018.
    MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
   Following a jury trial, the defendant was convicted of armed assault with intent to murder ( G. L. c. 265, § 18 [b ] ), assault and battery by means of a dangerous weapon resulting in serious bodily injury ( G. L. c. 265, § 15A [c ] [i] ), unlawful possession of a firearm ( G. L. c. 269, § 10 [a ] ), and unlawful possession of a loaded firearm ( G. L. c. 269, § 10 [n ] ), each stemming from a shooting at the Ashmont Massachusetts Bay Transportation Authority (MBTA) station. On appeal, he principally contends (as he did at trial) that there was insufficient evidence of his identity as the shooter. We affirm.

Sufficiency of the evidence. We review the defendant's claim that the evidence was insufficient to determine "whether the evidence offered by the Commonwealth, together with reasonable inferences therefrom, when viewed in its light most favorable to the Commonwealth, was sufficient to persuade a rational jury beyond a reasonable doubt of the existence of every element of the crime charged." Commonwealth v. Lao, 443 Mass. 770, 779 (2005), quoting Commonwealth v. Campbell, 378 Mass. 680, 686 (1979). Here, despite minor discrepancies in witnesses' descriptions of certain details of the assailant's attire, the jury could rationally have found beyond a reasonable doubt that the defendant was the assailant. See Lao, supra at 780.

In particular, the defendant was geographically and temporally proximate to the scene of the shooting. He matched the complexion and build of the assailant and wore attire matching the assailant's. Specifically, the assailant wore dark pants with a unique reflective striping on the lower portion of each pant leg that was captured on video surveillance. Photographs of the pants worn by the defendant at the time of his arrest, as well as the pants themselves, were shown to the jury, and from this evidence the jury could find that the particular pants of the assailant in the video matched those worn by the defendant. See Commonwealth v. Doucette, 408 Mass. 454, 461 (1990). Furthermore, unlike others who were scattering and ducking as they fled from the scene, the defendant was sprinting away from the scene. Along his flight path, police found a black hat matching the description of the hat worn by the assailant at the time of the shooting. This hat bore a pattern -- a peace symbol -- matching the same symbol on the defendant's sneakers. Also found on the defendant's flight path was a firearm wrapped in a black shirt. See Commonwealth v. Dyette, 87 Mass. App. Ct. 548, 552-553 (2015). These items were found within minutes of the shooting. Following his arrest, the defendant admitted he was at the MBTA station at the time of the shooting. Taking the evidence together, the jury could rationally find that the defendant was the shooter beyond a reasonable doubt. See Commonwealth v. Lodge, 431 Mass. 461, 465 (2000).

Missing witness instruction. Next, the defendant claims that the trial judge erred by declining his request to give a missing witness instruction. "We review a judge's decision to give or not give a missing witness instruction under the abuse of discretion standard." Commonwealth v. Williams, 450 Mass. 894, 901 (2008). Here, there was no such abuse. To begin, there is no reason to believe that the witness, Travis White, was not equally available to both the Commonwealth and the defendant. See Commonwealth v. Franklin, 366 Mass. 284, 293 (1974). Moreover, there is no reason to believe that White would have provided unique testimony adverse to the Commonwealth's case; instead, the defendant offers only speculation that White might have been able to identify the shooter's face. "Because the inference [from a missing witness instruction], when it is made, can have a seriously adverse effect on the noncalling party -- suggesting, as it does, that the party has wilfully attempted to withhold or conceal significant evidence -- it should be invited only in clear cases, and with caution." Commonwealth v. Schatvet, 23 Mass. App. Ct. 130, 134 (1986). Accordingly, the trial judge's decision not to give a missing witness instruction was not manifestly unreasonable and did not constitute error.

Bystanders' statements. The defendant finally contends that the judge erred in permitting a responding officer to testify that, as he was running towards the MBTA station, bystanders indicated, "Over there. That way. He's going that way." Because this statement was not used to prove the truth of the matter asserted, we disagree. See Commonwealth v. Silanskas, 433 Mass. 678, 693 (2001). The statements were admitted for the limited purpose of showing the effect on the officer, who, in response, ceased running towards the MBTA station (from which the gunshots emanated), turned around, and proceeded down Ashmont Street. See Commonwealth v. Miller, 361 Mass. 644, 659 (1972) ("The hearsay rule forbids only the testimonial use of reported statements. It does not preclude the use of such statements for other valid purposes such as, in the case before us, the state of police knowledge which impelled the approach to the defendant"). See also Mass. G. Evid. § 801 (2018). Furthermore, the judge contemporaneously instructed the jury that the bystanders' statements were admitted for the limited purpose of why the officer did what he did. The defendant did not object to the instruction given. Accordingly, we discern no error, let alone a substantial risk of a miscarriage of justice.

Judgments affirmed.

      The defendant had also been charged with said possession "as an armed career criminal" (G. L. c. 269, § 10G ), but the Commonwealth filed a nolle prosequi as to this portion of the indictment.

      The defendant also was convicted of possession of ammunition without a firearm identification card (G. L. c. 269, § 10 [h ] ); however, this charge was dismissed as duplicative.

      The defendant only challenges the sufficiency of the evidence with regard to the identity of the shooter.

      Surveillance videos showed the shooter held a black cloth item in his hand as he fled.

      This speculation is particularly dubious in light of White's position relative to the shooting as shown on the video surveillance and the testimony of the victim that he was unable to identify the assailant. The defendant also argues that, had White been called, the defendant would have impeached his statement to police that he was across the street when the shooting happened with the video showing that White was in his vehicle parked on the same side of the street as the MBTA station when the victim exited his vehicle. But the defendant had elicited this testimony from another witness.