Commonwealth v. Jennifer Mendez.

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-754

COMMONWEALTH

vs.

JENNIFER MENDEZ.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A District court jury convicted the defendant of assault

and battery on a police officer (ABPO)2 and resisting arrest.3

The defendant appeals, claiming the judge impermissibly allowed

the Commonwealth's motion to amend the complaint by changing the

name of the victim of the ABPO. In addition, the defendant

claims the Commonwealth violated her right to confront witnesses

by failing to produce exculpatory evidence. We affirm.

1As is our custom, we use the defendant's name as it
appears on the complaint.

2 In violation of G. L. c. 265, § 13D.

3 In violation of G. L. c. 268, § 32B.
Background. We summarize the evidence presented to the

jury. On the evening of September 5, 2020, State police

Troopers Gilbert Gonzalez and Brian Gervais stopped the

defendant's motor vehicle because it was missing a front license

plate. There were three individuals in the vehicle: the

defendant, sitting in the driver's seat, Cesar Diya, sitting in

the front passenger seat, and Miguel Torres, sitting in the back

passenger-side seat. Trooper Gonzalez approached the driver's

side door and Trooper Gervais approached the passenger's side of

the vehicle. The vehicle's front windows were down and as

Trooper Gervais approached, he heard Diya scream for everyone in

the car to be quiet and not say anything to the police. When

Trooper Gonzalez approached the defendant and asked for her

driver's license, he noticed her eyes were bloodshot and he

smelled alcohol. As he leaned in closer to see if the alcohol

odor was coming directly from her, Diya became upset and said,

"Why are you smelling my girl, you . . . pig?" After quickly

consulting with Trooper Gervais, Trooper Gonzalez ordered Diya

to exit the vehicle. At first, Diya did not comply and pulled

out a folded knife before the troopers were able to get him out

of the vehicle and place him in handcuffs. Trooper Gonzalez

then brought Diya towards the back of the vehicle and Trooper

Gervais did the same with Torres.

2
Trooper Gervais next approached the driver's door as the

defendant was sitting in the driver's seat. He smelled alcohol

emanating from her and she appeared irate. Trooper Gervais

ordered the defendant to step out of the vehicle. She did not

comply. Trooper Gervais opened the vehicle's door to prevent

her from fleeing. After asking the defendant to exit the

vehicle several times, Trooper Gervais informed her that she was

under arrest and warned her he was going to physically remove

her from the vehicle if she did not comply with his commands.

As Trooper Gervais attempted to remove the defendant from

the driver's seat, she started thrashing her body back and forth

and pushed Gervais away from the vehicle.4 Trooper Gervais then

used his taser on the defendant on the upper, center part of her

back. Trooper Gervais and another officer who had arrived at

the scene, Fitchburg police Officer Tyler Cote, removed the

defendant from the vehicle, handcuffed her, and assisted her

back to her feet.5 After the defendant was handcuffed, two

officers led her to a cruiser and placed her in the back seat.

Discussion. a. Complaint amendment. On April 6, 2021,

approximately seventeen months before the trial commenced, the

4 This altercation formed the basis for ABPO charge against
the defendant.

5 The defendant disputed this account, claiming Trooper
Gervais slammed her to the ground, put his knee on her back, and
tased her.

3
Commonwealth moved to amend the ABPO count of the complaint by

replacing the name of the alleged victim of the ABPO from

Trooper Gonzalez to Trooper Gervais. When the judge asked

defense counsel if he wanted to be heard on this motion, counsel

responded, "No objection." The judge allowed the motion to

amend.

At the start of trial the clerk, while swearing in the

empaneled jurors, mistakenly read the original complaint which

named Trooper Gonzalez as the victim of the ABPO. The

prosecutor immediately notified the judge of the error, and the

judge then instructed the clerk to read the amended portion of

the complaint to the jury before the judge's preliminary

instructions. During the trial, the jury only heard evidence

and received instructions from the judge on assault and battery

against Trooper Gervais.

The defendant now argues for the first time on appeal that

by replacing Trooper Gonzalez with Trooper Gervais as the named

victim of the ABPO, the judge impermissibly amended the

complaint. She contends that amending the victim's name on the

ABPO count of the complaint was an amendment of substance that

violated her Sixth and Fourteenth Amendment rights under the

United States Constitution and art. 12 of the Massachusetts

Declaration of Rights. We disagree.

General Law c. 277, § 47A, provides, in pertinent part:

4
"In a criminal case, any defense or objection based upon
defects in the institution of the prosecution or in the
complaint or indictment, other than a failure to show
jurisdiction in the court or to charge an offense, shall
only be raised prior to trial and only by a motion in
conformity with the requirements of the Massachusetts Rules
of Criminal Procedure. The failure to raise any such
defense or objection by motion prior to trial shall
constitute a waiver thereof, but a judge or special
magistrate may, for cause shown, grant relief from such
waiver" (emphasis added).

Because the defendant did not raise this issue prior to trial,

and it is not based on "a failure to show jurisdiction in the

court or to charge an offense," id., it is statutorily waived.6

See Commonwealth v. Lamont L., 438 Mass. 842, 845 (2003);

Commonwealth v. Hrycenko, 417 Mass. 309, 312 (1994). See also

Commonwealth v. Doughty, 491 Mass. 788, 804 (2023).

b. Failure to produce exculpatory evidence. The defendant

also argues that the Commonwealth denied her constitutional

right to confront witnesses against her by failing to produce

court-ordered discovery. Specifically, she alleges the

Commonwealth improperly withheld a supplemental Fitchburg police

report, a daily administrative journal (DAJ) database entry, a

taser data report, and a use of force report.

6 We do not review the defendant's waived argument for a
substantial risk of a miscarriage of justice under Commonwealth
v. Freeman, 352 Mass. 556, 564 (1967), because G. L. c. 277,
§ 47A, which was amended in relevant part in 1979, following
Freeman, controls as to waiver of the claim. Moreover, the
defendant has failed to show cause for relief from the
statutorily mandated waiver.

5
"To prevail on these claims, [the defendant] must show that

the undisclosed evidence existed and was exculpatory, [she] made

a specific request for it, the prosecution failed to produce it,

and a 'substantial basis exists for claiming prejudice from the

nondisclosure'" (citations omitted). Commonwealth v. Bateman,

492 Mass. 404, 419 (2023). The defendant may demonstrate

prejudice from nondisclosure by showing "there is a reasonable

possibility that the nondisclosed evidence would have made a

difference." Commonwealth v. Laguer, 448 Mass. 585, 594 (2007).

Regarding the Fitchburg police report, DAJ database entry,

and taser data report, the defendant cannot establish a

discovery violation because she did not offer evidence that any

of these documents exist.7 See Bateman, 492 Mass. at 419. See

also Commonwealth v. Hudson, 446 Mass. 709, 728 (2006)

(defendant failed to establish Commonwealth withheld exculpatory

documents where there was no evidence that documents existed).

Concerning the use of force report, the Commonwealth does

not dispute that the defendant was entitled to the report before

trial, and further, that it did not provide the report to her

7 Appellate defense counsel conceded at oral argument that
there was no evidence of the existence of a Fitchburg police
report. Concerning the taser report and DAJ database entry, in
preparation for this appeal, the Commonwealth contacted a State
police trooper involved with this case to inquire whether the
taser report and DAJ database entry existed. The trooper
reported there were no such records on file.

6
until after trial.8 However, the defendant has not demonstrated

that the Commonwealth's failure to disclose the report was

prejudicial to the defendant because the information contained

in the use of force report was cumulative of Gervais's trial

testimony.9 Additionally, the contents of the use of force

report had been effectively incorporated into Gervais's arrest

report which the Commonwealth provided to the defendant well in

advance of trial.10 Contrast Commonwealth v. Watkins, 473 Mass.

222, 232 (2015) (defendant did not demonstrate prejudice where

undisclosed evidence "would have served only as weak and

8 The Commonwealth claims it was not aware of the report's
existence until Gervais testified to it at trial. The
Commonwealth obtained the report and provided it to the
defendant in preparation of this appeal.

9 The use of force report described the defendant's
resistance to include exhibiting body language that was "rigid,
tense, mouth clenched, clenched steering wheel." This report
also referenced that the defendant "screamed that she refused to
exit [motor vehicle]," and actively resisted by "pull[ing] arms
away, push[ing] herself further into the [motor vehicle], . . .
pushing [Gervais]." As compared with Gervais's incident report,
the use of force report contained no new information.
Accordingly, the defendant has not demonstrated that she was
prejudiced by the late disclosure of this report. See
Commonwealth v. Watkins, 473 Mass. 222, 232 (2015). See also
Commonwealth v. Hamilton, 426 Mass. 67, 70 (1997) ("without any
showing of bad faith on [the prosecution's] part . . . a
defendant is required to show material prejudice from the
nondisclosure before a new trial can be considered").

10The defendant does not claim Gervais's arrest report was
either withheld or produced in an untimely manner. The
Commonwealth's certificate of discovery compliance indicates it
had provided Gervais's arrest report by September 10, 2021.

7
cumulative impeachment evidence"), with Commonwealth v.

Caldwell, 487 Mass. 370, 377-778 (2021) (defendant prejudiced by

improper nondisclosure because specific facts relating to key

witness's cooperation, including hope for favorable treatment

and reduction of sentence, not cumulative of police report that

simply noted witness's cooperation with law enforcement).

Conclusion. For the reasons discussed above, we affirm the

judgments.

So ordered.

By the Court (Meade, Walsh &
Smyth, JJ.11),

Clerk

Entered: February 3, 2025.

11 The panelists are listed in order of seniority.

8