Commonwealth v. Jose J. Rodriguez.

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

21-P-1064

COMMONWEALTH

vs.

JOSE J. RODRIGUEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of assault

and battery causing serious bodily injury, which was a lesser

included offense of the originally indicted charge of assault

and battery by means of a dangerous weapon causing serious

bodily injury. On appeal, he raises a variety of claims which

lack merit, and we accordingly affirm his conviction.

1. Gang affiliation and bias. The defendant claims the

judge erred by foreclosing inquiry of a witness regarding her

gang affiliation to establish her potential bias.1 The defendant

maintains that this restriction on his cross-examination

violated his right to confrontation. We disagree.

1 The defendant raised the issue in a motion in limine, which the
judge denied. Although the motion sought leave to impeach both
the victim and the witness, the victim did not testify and,
thus, there is no remaining claim relative to him.
"The Sixth Amendment to the United States Constitution and

art. 12 of the Massachusetts Declaration of Rights entitle a

defendant to cross-examine prosecution witnesses for bias or

prejudice." Commonwealth v. Chicas, 481 Mass. 316, 320 (2019).

A judge may not "bar all inquiry into the subject" when the

defendant makes a "plausible showing" of "alleged bias."

Commonwealth v. Moorer, 431 Mass. 544, 547 (2000), quoting

Commonwealth v. Bui, 419 Mass. 392, 400-401, cert. denied, 516

U.S. 861 (1995). Absent a plausible showing of bias, "the judge

may restrict or entirely exclude the inquiry." Chicas, supra.

Indeed, a judge may limit cross-examination based on concerns

of, among others, "prejudice, confusion of the issues, the

witness's safety, or interrogation that is repetitive or only

marginally relevant." Commonwealth v. Johnson, 431 Mass. 535,

540 (2000).

Here, the defendant failed to make a plausible showing of

bias relative to the witness and gang activity. The defendant

offered mere speculation about the witness's claimed gang ties,

through a nine year old Federal Bureau of Investigation press

release, which purported to show that she had been arrested for

a drug offense along with members of the "Latin Kings" gang.

The defendant also offered another press release which indicated

that the victim's son had pleaded guilty in connection with a

Federal prosecution of the "Latin Kings" in New Bedford.

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The proffered basis for the witness's potential bias was

attenuated and grounded in speculation. Moreover, as in Bui,

419 Mass. at 401, the connection between the witness and the

"Latin Kings" was too removed and "tenuous" to show that the

witness would lie while on the stand because of the connection.

Finally, there was no evidence or suggestion that the victim was

aware of the witness's claimed gang ties. It was not an abuse

of discretion for the judge to foreclose the inquiry regarding

claimed gang affiliation.

2. Jury instructions. The defendant claims, for the first

time on appeal, that the judge invaded the province of the jury

when he instructed them that if they determined that the

Commonwealth had not proved the greater offense, then the

Commonwealth had proved the lesser included offense. We

disagree.

"Our review of claimed jury instruction errors requires us

to 'evaluate the instruction as whole, looking for the

interpretation a reasonable juror would place on the judge's

words.'" Commonwealth v. Coutu, 88 Mass. App. Ct, 686, 698

(2015), quoting Commonwealth v. Trapp, 423 Mass. 356, 361, cert.

denied, 519 U.S. 1045 (1996). "We do not consider bits and

pieces of the instruction in isolation." Commonwealth v. Young,

461 Mass. 198, 207 (2012).

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As part of his claim, the defendant sets out three

instructions on lesser included offenses. The one that is

relevant here, and upon which the defendant was convicted, is

the following:

"If the Commonwealth has proved beyond a reasonable doubt
all the other requirements through the charge of assault
and battery with a dangerous weapon causing serious bodily
injury but has not proved that the defendant touched [the
victim] with a dangerous weapon, then the Commonwealth has
proved the lesser included offense of assault and battery
causing serious bodily injury."

According to the defendant, this instruction was "muddled

and confusing," included facts found by the judge and his

opinion, and "compelled the jury to find guilt." The

defendant's claim, however, requires us to read bits and pieces

of the instruction out of context, and to ignore what the judge

actually instructed. We decline the invitation.

Simply enough, the judge explained that the consequence of

the jury finding all the elements of assault and battery causing

serious bodily injury, but not finding that the defendant

employed a dangerous weapon, was that the defendant was guilty

of the lesser included offense. This was a correct statement of

the law. The judge subsequently instructed the jury to "not

misinterpret any of [the] instructions as suggesting any opinion

on what the facts of the case are or what [the jury's] verdict

should be." When the judge's jury instructions are viewed as a

whole, no reasonable juror could have improperly interpreted it

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as the defendant now suggests. As there was no error, there was

no risk that justice miscarried.

3. Missing witness instruction. The defendant also claims

that the judge erred by declining to give a missing witness

instruction relative to the victim. The judge noted the

defendant's objection on the matter. In this posture, we review

for prejudicial error. There was none.

"The decision to provide a missing witness instruction to

the jury is 'within the discretion of the trial judge, and will

not be reversed unless the decision was manifestly

unreasonable.'" Commonwealth v. Figueroa, 79 Mass. App. Ct.

389, 400 (2011), quoting Commonwealth v. Saletino, 449 Mass.

657, 667 (2007). "A missing witness instruction is appropriate

when a party 'has knowledge of a person who can be located and

brought forward, who is friendly to, or at least not hostilely

disposed toward, the party, and who can be expected to give

testimony of distinct importance to the case,' and the party,

without explanation, fails to call the person as a witness."

Figueroa, supra, quoting Saletino, supra.

Here, the prosecutor informed the judge that the police had

difficulty locating the victim throughout the pendency of the

case. They searched for him at his last known address, left a

summons for his appearance, and sought to determine if he was

incarcerated. The prosecutor also voiced a concern that the

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victim might assert a Fifth Amendment to the United States

Constitution privilege if he were called to testify and

indicated to the judge that the victim had been hostile towards

the Commonwealth's prosecution throughout the case. Under these

circumstances, the judge's refusal to give a missing witness

instruction was not manifestly unreasonable.

4. Bowden instruction. The defendant also claims that the

judge abused his discretion by refusing to instruct the jury

that they could draw a negative inference against the

Commonwealth based on inadequacies in the police investigation.

See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). We

disagree.

Bowden's only mandate is that a judge may not prevent a

defendant from arguing a defense based on the inadequacy of the

police investigation. See id. Trial judges are not required to

give Bowden instructions. See Commonwealth v. Lao, 460 Mass.

12, 23 (2011); Commonwealth v. Daye, 411 Mass. 719, 740-741

(1992).

Here, while the judge declined to give the requested

instruction, he expressly told defense counsel that he was free

to argue the matter to the jury, which defense counsel later

did. There was neither error, nor an abuse of discretion.

5. Prosecutor's closing argument. Next, the defendant

claims that the prosecutor's closing argument, in which she

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posed a variety of rhetorical questions, improperly shifted the

burden of proof to the defendant, and exploited the defendant's

decision not to testify. The defendant also claims that the

prosecutor's closing argument made an improper appeal to

sympathy. Both claims were preserved by objections, but neither

has merit.2

The defendant's first claim focuses on the following

portion of the prosecutor's argument:

"If [the defendant is] so concerned about his personal
safety, death or [that] serious bodily injury is imminent,
wouldn't he just get in his car and go.

. . .

"Is it reasonable that if this defendant was in fear of
death or serious bodily injury, he wouldn't just get into
his car and go. No. He pulls a knife and then
surreptitiously, he doesn't brandish it and say, oh, get
away from me and I'm afraid and run to my car."

Because the defendant preserved his claims by timely objections,

we must review for prejudice. An error is nonprejudicial only

if we are "sure that the error did not influence the jury, or

2 In an argument heading and in a single introductory sentence,
the defendant also states that the judge's denial of his motion
for a mistrial was an abuse of discretion, but he fails to make
an argument to that effect in his brief. In that posture, the
claim is waived. See Mass. R. A. P. 16 (a) (9), as appearing in
481 Mass. 1628 (2019). However, given our resolution of the
closing argument claims, the judge did not abuse his discretion
in denying the request for a mistrial or to otherwise cure the
prosecutor's argument.

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had but very slight effect" (citation omitted). Commonwealth v.

Flebotte, 417 Mass. 348, 353 (1994).

Contrary to the defendant's claim, the prosecutor's

argument was a request for the jury to evaluate the defendant's

conduct as it was depicted on the surveillance video. As the

judge noted when he overruled the objection and denied the

request for a mistrial, the prosecutor was arguing the reasons

why the jury should reject the self-defense claim. See

Commonwealth v. Williams, 450 Mass. 879, 888-889 (2008). That

was the context of the argument. See Commonwealth v. Allison,

434 Mass. 670, 687 (2001). The prosecutor neither commented on

the defendant not testifying, nor shifted the burden of proof.

The defendant also claims that it was improper for the

prosecutor to argue that the defendant nearly "chopped . . .

off" the victim's ear as that was not supported by the evidence,

and because that was an improper appeal to sympathy. We

disagree. The evidence showed that the victim suffered a five-

centimeter laceration to his right ear, and a piece of his ear

was missing, which left him deformed. The prosecutor's argument

was based on a fair inference from the evidence, and it was not

an appeal to sympathy. See Commonwealth v. Rutherford, 476

Mass. 639, 644 (2017) ("jury are presumed to understand that

prosecutor is advocate, and statements that are [e]nthusiastic

rhetoric, strong advocacy, and excusable hyperbole" do not

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require reversal [quotation and citation omitted]). Because

there was no error, there was no improper influence on the jury.

6. Impeachment evidence. Finally, the defendant claims

that the judge abused his discretion by allowing the

Commonwealth's motion in limine to permit, if the defendant

chose to testify, impeachment of him with his prior conviction

for threatening to commit a crime. We disagree.

Under G. L. c. 233, § 21, a defendant's prior convictions

may be used to impeach his credibility but not "for the purpose

of establishing the defendant's bad character or propensity to

commit the crime charged." Commonwealth v. Daley, 439 Mass.

558, 563 (2003). We review to determine whether the judge

abused his discretion.3 See Commonwealth v. Little, 453 Mass.

766, 772 (2009). In making that assessment, we consider various

factors, including whether the required balancing test was

conducted, and whether the prior convictions are "substantially

similar" to the crimes for which the defendant is on trial. Id.

at 773. It is "difficult, if not impossible, to show an abuse

of discretion" where the earlier and current crimes are not

substantially similar. Commonwealth v. Brown, 451 Mass. 200,

3 An abuse of discretion occurs where the judge makes "a clear
error of judgment in weighing factors relevant to the decision,
such that the decision falls outside the range of reasonable
alternatives" (quotation and citation omitted). L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).

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203 (2008), quoting Commonwealth v. Drumgold, 423 Mass. 230, 250

(1996).

Here, the Commonwealth's motion in limine offered two

certified prior convictions for impeachment. The first was for

threatening to commit a crime, and the second was for assault.

At the hearing, the judge carefully employed the correct legal

standard. Among other things, he probed the factors of

timeliness4 and similarity. The defendant agreed that both prior

convictions were timely but argued that they were too similar.

As he does on appeal, the defendant argued that even though he

was not on trial for making threats, it was alleged that he

threatened to kill everyone inside and outside the store where

the assault of the victim occurred. After performing a proper

balancing of probative value and prejudicial effect, the judge

exercised his discretion and agreed that the assault was too

similar to the crime for which the defendant was on trial but

ruled that the threats conviction could be fodder for

impeachment.5 There was no abuse of discretion as the judge's

4 Pursuant to G. L. c. 233, § 21, witnesses may be impeached with
prior convictions, subject to strict timing limitations -- five
years for a misdemeanor and ten years for a felony.

5 The defendant also claims that "[i]ntroduction of the prior
conviction for [a]ssault would have painted [the defendant] as a
bad person with a propensity toward violence." However, the
judge did not permit the use of the assault conviction because
it was too similar to the crime being tried.

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decision fell comfortably inside the range of reasonable

alternatives. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014).

Judgment affirmed.

By the Court (Meade,
Desmond & Hand, JJ.6),

Clerk

Entered: February 28, 2023.

6 The panelists are listed in order of seniority.

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