Commonwealth v. Hector Jiminez.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-103

COMMONWEALTH

vs.

HECTOR JIMINEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a Superior Court jury trial, the defendant was

convicted of armed robbery while masked (second or subsequent

offense) and larceny over $250. He appeals, arguing that

(1) the evidence was insufficient to prove his identity as the

perpetrator of the crimes, (2) the lead investigator improperly

opined on his guilt during trial, (3) the judge erred in denying

his motions in limine to exclude surveillance video recordings

and to suppress his statements, and (4) the judge erred in

denying his motion for new trial premised on ineffective

assistance of counsel and the Commonwealth's failure to disclose

exculpatory evidence. Discerning no error or abuse of

discretion, we affirm.

Discussion. 1. Identity of perpetrator. The defendant

contends that the judge erred in denying his motion for required
finding of not guilty because the evidence failed to establish

his identity as the perpetrator of the crimes. In reviewing the

denial of a motion for a required finding of not guilty, we

consider whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.

Commonwealth v. Scott, 464 Mass. 355, 360 (2013). An essential

element to be proven in any case is the identity of the

defendant as the perpetrator of the crimes charged. See

Commonwealth v. Farley, 443 Mass. 740, 745-746, cert. denied,

546 U.S. 1035 (2005). Proof of identity may be established in a

number of ways including through circumstantial evidence. See

Commonwealth v. Quinones, 95 Mass. App. Ct. 156, 162 (2019).

The jury is entitled to draw reasonable inferences from the

evidence. See Commonwealth v. Blackmer, 77 Mass. App. Ct. 474,

483 (2010). Where conflicting inferences are possible, it is

for the jury to determine where the truth lies because the

weight and credibility of the evidence is wholly within the

province of the jury. See Commonwealth v. Platt, 440 Mass. 396,

401 (2003).

Examining the evidence in the light most favorable to the

Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677-

678 (1979), the jury could have found the following facts. On

May 26, 2015, at approximately 10:30 P.M., the victim entered a

Bank of America ATM vestibule in the stairway plaza at

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Chelmsford Street, Lowell in order to deposit money. The victim

was beginning a transaction when a man holding a knife entered

the ATM area and said, "give me your money or I'll stab you."

The robber was wearing a gray hooded sweatshirt with black

piping along the zipper, cuffs, and pockets, and a pair of blue

and black checkered pajama pants. The victim cancelled the

transaction and handed her money to the robber. During the

exchange, the victim's phone fell on the ground and the robber

grabbed it. The victim asked for her phone but the robber said

he couldn't give it back because it had his fingerprints on it.

The victim followed the robber as he left the vestibule and

asked for her phone again. The robber wiped the phone with his

sweatshirt, tossed it back to the victim, and left on bicycle.

The victim called the police and reported the crime. The

police then reviewed surveillance video recordings of the

robbery itself and were able to observe the clothing worn by the

robber, as well as to determine that he left on bicycle. Other

surveillance video recordings from the surrounding area of the

robbery, around the time frame of the robbery, showed a person

dressed consistently with the robber, riding a black and white

bicycle to the ATM just prior to the robbery, and riding the

bicycle to the back of an adjacent apartment complex at

Chelmsford Street, after the robbery. Three days later, on the

evening of May 29, 2015, in the area of the ATM robbery, the

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police spotted the defendant riding a black and white bicycle

consistent with the bicycle the robber had been riding. That

night, the police found, in the defendant's mother's apartment

located at Chelmsford Street, clothing consistent with that the

robber had been wearing. Specifically, the police found a gray

hooded sweatshirt with black piping along the zipper, cuffs, and

pockets under a bed, and a pair of blue and black checkered

pajama pants in a hamper. The evidence thus amply supported the

defendant's identification as the perpetrator.

The defendant contends nevertheless that the victim's

description of the robber, given during her 911 call to the

police immediately after the incident, eliminated the defendant

as a suspect because it was at odds with the defendant's actual

appearance. He reasons that the victim's account of the robbery

is supported by video recordings, such that her description of

the robber should be credited. He further argues that the jury

should have drawn negative inferences from certain missing

surveillance video recordings and that time stamps on the video

recordings indicate that the defendant could not have committed

the crime. Finally, he argues that the lack of forensic

evidence precludes a finding connecting the defendant to the

bicycle and the clothing seized.

The defendant's arguments are all premised on a view of the

evidence that favors him. When properly considered with all

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reasonable inferences in favor of the Commonwealth, the evidence

soundly supports the defendant's connection to the bicycle and

the clothing, and those items are likewise soundly connected to

the robbery. Notwithstanding any discrepancies between the

victim's description of the robber and the defendant's actual

appearance, the jury had before it video recordings of the crime

in progress. The jurors could judge the opportunity the victim

had to observe the robber. Additionally, the jurors had the

ability to view the robber, as well as the bicycle and clothing,

on video recordings and to make a comparison with the defendant

and the physical evidence submitted at trial. See Platt, 440

Mass. at 401 (resolution of conflicting evidence is for jurors,

who are entitled to draw reasonable inferences from evidence).

Viewing the evidence in the light most favorable to the

Commonwealth, and all permissible inferences drawn therefrom,

and considering "that the 'weight and credibility of the

evidence is the province of the jury,'" Commonwealth v. Sylvia,

456 Mass. 182, 191 (2010), quoting Commonwealth v. Gomez, 450

Mass. 704, 711 (2008), there was sufficient evidence presented

to identify the defendant as the perpetrator.

2. Investigator opinion on guilt. On cross-examination of

the lead investigator, defense counsel asked whether the

clothing seized at the defendant's mother's apartment had ever

been submitted for any kind of forensic testing. The

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investigator stated that it had not, that it would not have

been, and questioned what kind of testing defense counsel meant.

The following exchange took place:

"Q. You didn't test for any sort of DNA, you didn't try to
draw any hair fibers to try to link later comparison to?

"A. No, I knew who was wearing them, we didn't have to
submit them."

There was no objection or motion to strike, and defense counsel

moved to another topic, the investigator's failure to obtain

additional video footage.

To the extent that the testimony constitutes an opinion on

the defendant's guilt, see Commonwealth v. Hamilton, 459 Mass.

422, 439 (2011) ("No witness, including a police witness, may

testify as to a defendant's guilt or innocence"), we conclude

that there was no substantial risk of a miscarriage of justice.

The defendant's trial strategy was to show that the police did a

poor investigation leading to the defendant's wrongful arrest,

as highlighted by the discrepancy between the victim's

description of the robber and the defendant's actual appearance.1

The testimony of the investigator supported the defense theory,

1 In opening, defense counsel mentioned the victim's
description of the defendant during her 911 call and then
stated: "Three days later the investigation that began with
[the victim's] 911 call ended with [the defendant] being
charged." Defense counsel further stated: "I submit to you
that you will hear about an investigation that is careless,
unprofessional, cynical."

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and was used as the centerpiece of closing argument.2 Given the

video evidence and the jury's ability to make its own comparison

with the physical evidence, and the fact that the testimony

supported the defendant's theory of the case, we discern no

substantial risk of a miscarriage of justice from the

investigator's testimony. See Commonwealth v. Brum, 492 Mass.

581, 600 (2023) (although officer's testimony lacked proper

foundation, no risk of miscarriage of justice where jury "had

before them several pieces of evidence that were probative of a

comparison between the defendant's" vehicle "and the SUV in the

surveillance video footage"). See also Commonwealth v. Coutu,

88 Mass. App. Ct. 686, 693 (2015) (factors to be considered in

substantial risk of miscarriage of justice review).

3. Denial of motions in limine. The defendant contends

that the trial judge erred in denying two motions in limine, one

to exclude the defendant's statement at arrest and one to

exclude a surveillance video recording from his mother's

apartment complex.

a. Statement. The defendant had moved to suppress the

fruits of an allegedly illegal arrest. However, after an

2 "When I [defense counsel] spoke to you [in opening
statement] I told you that you would hear about an investigation
that was unprofessional, careless and cynical. Never were those
three things so clearly illustrated than yesterday, during the
testimony of [the lead investigator]."

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evidentiary hearing, the motion judge ruled that the arrest was

not illegal and therefore nothing was suppressed. During the

hearing, however, the lead investigator testified that, at the

time of his arrest, the defendant made certain statements

including "I saw you." At the time of trial, the defendant

moved in limine to exclude these statements. Certain statements

were excluded on the basis that they were obtained without

Miranda warnings during custodial interrogation. As to the "I

saw you" comment, however, the defendant argued that the

statement should be excluded as "speculative," "incomplete," and

"not relevant or probative." The motion judge determined that

the statement was relevant to identity and allowed the statement

to be admitted.

On appeal, the defendant argues that the statement should

have been excluded as a discovery violation and as a violation

of his Fifth Amendment right against self-incrimination. Where

the motion judge was not asked to make a determination regarding

a discovery violation or whether the "I saw you" statement was

the result of custodial interrogation, we will not do so for the

first time on appeal.3 See Commonwealth v. Yat Fung Ng, 491

3 Both claims require resolution of factual issues after
notice to the Commonwealth, so that it can seek to meet its
burden. See Commonwealth v. Santos, 95 Mass. App. Ct. 791, 797-
798 (2019) (court declined to reach suppression issue for first
time on appeal where issue depended on facts not developed in
the record below).

8
Mass. 247, 261 n.16 (2023), quoting Commonwealth v. Flynn, 362

Mass. 455, 472 (1972) (defendant "is not permitted to raise an

issue before the trial court on a specific ground, and then to

present that issue to [an appellate] court on a different

ground").

b. Video recordings. The Commonwealth provided the

defendant with surveillance video recordings it had obtained,

including video recordings from the defendant's mother's

apartment complex which captured a cyclist in the parking lot

just prior to the nearby robbery. In his motion in limine, the

defendant argued that the video recordings should be excluded

because the Commonwealth did not obtain video recordings from

the days prior to or following the robbery and that such failure

amounted to the loss of exculpatory evidence.

On appeal, the defendant contends that the judge erred in

denying the motion because additional video recordings could

have aided his defense, if those recordings did not capture the

defendant coming and going from the apartment complex.

Certainly, the Commonwealth may not destroy, fail to preserve,

or fail to disclose exculpatory information within its

possession. See Graham v. District Attorney for the Hampden

Dist., 493 Mass. 348, 361 (2024), quoting Committee for Pub.

Counsel Servs. v. Attorney Gen., 480 Mass. 700, 731 (2018) ("The

due process clauses of the Federal Constitution and the

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Massachusetts Declaration of Rights require that the

Commonwealth disclose to a defendant material, exculpatory

evidence in its possession or control [emphasis added]"). But

here, the Commonwealth never had any additional video recordings

from the defendant's mother's apartment complex in its

possession, custody, or control.

Although the Commonwealth could have requested additional

video recordings during its investigation, the "prosecutorial

duty to disclose to the defense evidence in the prosecution's

possession that is both material to the defendant's guilt or

innocence and exculpatory" does not extend "beyond the

disclosure of evidence already in existence and in the

prosecution's control, to the gathering of evidence potentially

helpful to the defense." Commonwealth v. Neal, 392 Mass. 1, 7-8

(1984). See Commonwealth v. Sasville, 35 Mass. App. Ct. 15, 19-

20 nn.3, 4 (1993). Moreover, the very claim that additional

video recordings would have been exculpatory, rather than

inculpatory, was entirely speculative. See Commonwealth v.

Maimoni, 41 Mass. App. Ct. 321, 330 (1996) (reasonable

possibility must be based on concrete evidence, not fertile

imagination). There was no error.

4. Motion for new trial. The defendant claims that the

judge erred in denying his motion for new trial, which was based

on ineffective assistance of counsel and the prosecution's late

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disclosure of a surveillance video recording. A trial judge may

allow a motion for new trial only "if it appears that justice

may not have been done." Mass. R. Crim. P. 30 (b), as appearing

in 435 Mass. 1501 (2001). "A judge's decision to deny a motion

for a new trial . . . will not be disturbed unless a review of

the defendant's case shows that the decision, if not reversed,

will result in 'manifest injustice.'" Commonwealth v. Watson,

409 Mass. 110, 114 (1991), quoting Fogarty v. Commonwealth, 406

Mass. 103, 110 (1989). "Where, as here, the motion judge was

also the trial judge, the decision of the motion judge is

entitled to special deference." Commonwealth v. Barnette, 45

Mass. App. Ct. 486, 493 (1998).

a. Ineffective assistance. In his motion, the defendant

claimed that he received ineffective assistance because his

trial counsel failed to properly investigate and challenge the

Commonwealth's video evidence. To establish a claim of

ineffective assistance of counsel, a defendant must show both

that trial counsel's performance fell "measurably below that

which might be expected from an ordinary fallible lawyer," and

that prejudice resulted from the inadequacy. See Commonwealth

v. Saferian, 366 Mass. 89, 96 (1974).

Here, the defendant claimed that, if his trial counsel had

focused the jury's attention on the time stamps, she could have

argued that the Commonwealth's theory of the robbery was

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impossible and therefore he could not have been the robber. The

defendant argued that the video recording purporting to show the

defendant returning to his mother's apartment complex after the

robbery has a time stamp indicating that it took place minutes

before the robbery began. As the judge noted, the defendant's

theory is premised on all of the video recordings from three

separate sources being accurately time stamped and synchronized.

Additionally, the defendant's theory would have meant that there

were two individuals, built and dressed similarly, riding

similar bicycles in the same general area in the same general

time frame -- one robbing the victim, and the other traveling to

the defendant's mother's housing complex.

The judge determined that the defendant's theory was

inherently implausible and therefore could have been easily

"debunked" by the prosecution. We agree that the defendant

failed to establish inadequate performance on the part of trial

counsel. The judge did not abuse discretion in denying the

motion for new trial on the basis of ineffective assistance of

counsel.

b. Late disclosure of video recording. In his motion, the

defendant claimed that the prosecution failed to disclose a

thirty-six second video recording from camera four (labeled

"file 4"), located outside of the ATM, which shows the entrance

to the driveway of the defendant's mother's apartment complex.

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The issue arose after appellate counsel entered the case and

could not locate the original video recordings that had been

provided in pretrial discovery. The Commonwealth thereafter

reproduced the video recordings for defense counsel; those video

recordings included file 4, which the Commonwealth had not

presented at trial.

The defendant bears the burden of proving facts necessary

to support a claim that the Commonwealth failed to disclose

potentially exculpatory evidence. See Commonwealth v. Pope, 489

Mass. 790, 799 (2022). Here, the defendant provided an

affidavit from trial counsel which contained no statement

concerning file 4. The defendant also submitted his own

affidavit in which there was no statement concerning file 4.

Appellate counsel's affidavit states that file 4 is contained

within one of the video recording files reproduced by the

Commonwealth but otherwise gives no indication whether file 4

was earlier provided in discovery. By contrast, the

Commonwealth submitted an affidavit of the prosecutor

responsible for providing discovery in the case; he detailed the

history of discovery provided by the prosecution, and averred

that all video recordings collected were turned over to the

defense, including specifically file 4. Where the defendant

provided no factual support for his position and the

Commonwealth specifically contradicted it, there was no error in

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the judge's finding that the defendant had failed to meet his

burden. The judge did not abuse discretion in denying the

motion for new trial on the basis of failure to disclose

potentially exculpatory evidence.

Judgments affirmed.

Order denying motion for new
trial affirmed.

By the Court (Rubin, Singh &
Hershfang, JJ.4),

Assistant Clerk

Entered: April 9, 2024.

4 The panelists are listed in order of seniority.

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