Heard: October 7, 2015.
found and returned in the Superior Court Department on March
cases were tried before Sandra L. Hamlin, J.
J. Mazza for the defendant.
Jessica Langsam, Assistant District Attorney, for the
Present: Katzmann, Rubin, & Wolohojian, JJ.
defendant appeals from his conviction by a Superior Court
jury of assault and battery by means of a dangerous weapon
causing serious bodily injury (ABDW-SBI). He challenges the
admission in evidence of a compilation of portions of
previously admitted exhibits that had been sequenced and
highlighted by the Commonwealth, and the trial judge's
instruction on absence of right or excuse. We affirm.
jury could have found as follows. Around 9:20 P..M. on May
16, 2010, Carlos Serpa arrived at Lawrence Memorial Hospital
suffering from multiple stab wounds: one to his back, two to
his left leg, and one to his left arm. He had been driven to
the hospital in his own vehicle by his friend Michael
Diceglie, who had insisted on securing Serpa medical
treatment despite the latter's protestations when he
showed up bleeding at Diceglie's front door. Although
neither Serpa nor Diceglie telephoned 911, hospital personnel
notified the police as required when a patient presents as a
victim of a stabbing. When uniformed officers from the
Medford police department arrived, Serpa -- who was on
probation following his release from prison on a sentence
arising from armed robbery convictions -- told the officers
that he was stabbed by an unknown dark-skinned male in dark
clothing, who tried to rob him as he was getting out of his
vehicle in front of Diceglie's apartment on Myrtle Street
in Medford. The officers considered Serpa's answers to
their questions to be vague and likely not entirely truthful.
the uniformed officers then visited Myrtle Street and located
a blood trail, prompting him to secure the crime scene and
notify detectives. Medford police Detectives Michael Goulding
and Patricia Sullivan arrived at Myrtle Street later that
same evening and began investigating the blood trail.
meantime, Serpa had been transferred to Massachusetts General
Hospital (MGH). After leaving the crime scene on Myrtle
Street, Detectives Goulding and Sullivan went to see Serpa at
MGH in the early morning hours of May 17, 2010. Serpa told
the detectives the same story he had told the uniformed
officers at Lawrence Memorial Hospital, that he was attacked
by a dark-skinned male in dark clothing as he was getting out
of his car.
quickly apparent that Serpa's story did not add up. The
detectives concluded that the blood trail on Myrtle Street
was not consistent with Serpa's account. Neighborhood
canvases the evening of the incident and in the days that
followed yielded no witnesses who had heard or seen anything
unusual that night, despite Serpa's claims that he had
yelled for Diceglie and banged on his door after the attack.
The detectives were aware that Serpa was wearing a global
positioning system (GPS) monitoring device, an ankle
bracelet, as a condition of his probation.
on the inconsistencies between the physical evidence and
Serpa's account of the stabbing, Detective Goulding
subpoenaed cellular telephone records from Serpa's
cellular telephone (cell phone) and discovered calls and text
messages on the day of the incident between Serpa and a cell
phone number registered to the defendant. Goulding then
obtained a search warrant for the content of Serpa's text
messages. Goulding discovered that a text message from the
defendant's cell phone was sent to Serpa around 3:30 P.M.
on May 17, 2010, offering Serpa one-half pound of
high-quality marijuana on credit. Serpa quickly lined up a
buyer, arranging via text message to resell that same
one-half pound of marijuana to Diceglie, who was not
acquainted with the defendant, at a mark-up. For his
service in the transaction, Serpa would pocket $150.
series of text messages then followed throughout the rest of
the day between the defendant's cell phone and Serpa, and
between Serpa and Diceglie, in which Serpa finalized plans
for both legs of the transaction. Ultimately, arrangements
were made in which the defendant and Serpa would meet near
Diceglie's Medford apartment around 9 P.M., at which
point Serpa and the defendant would go together to give
Diceglie the marijuana and get their money.
Goulding was also able to track the defendant's and
Serpa's movements during the relevant time period to
corroborate the planned drug meet. Data from Serpa's GPS
ankle bracelet provided his whereabouts leading up to the
stabbing, and Goulding obtained cell phone tower location
data for the cell phone registered to the defendant for May
16 and May 17. The defendant's cell phone location data
showed that his cell phone "hit off" towers in the
vicinity of Diceglie's apartment in the minutes before
Serpa was stabbed. Although the data indicated that both the
defendant's cell phone and Serpa were in the area of
Myrtle Street that night, deoxyribonucleic acid (DNA)
analysis confirmed that the blood found on the sidewalk, the
steps and interior of Diceglie's apartment, and
Serpa's clothing and his vehicle came only from Serpa.
16, 2010, one month after the incident and with the stabbing
investigation continuing, Detectives Goulding and Sullivan
met with Serpa again. They hoped Serpa could provide more
information concerning the stabbing. Goulding told Serpa that
he knew what had happened that night and that Serpa's
story did not add up, but Goulding did not confront Serpa
with any of the specific information he had gleaned from the
cell phone calls, texts, and tower location data, nor did he
inform Serpa that he had collected any of that information.
Serpa, however, stuck to his story, repeating the account of
an unknown assailant that he had provided to the police a
month before. As a result of the investigation, charges
ultimately issued against Serpa and Diceglie for conspiracy
to violate the drug laws and witness intimidation for lying
to the police who were investigating the stabbing, and Serpa
December, 2010, more than six months after the stabbing,
Serpa appeared at court for a probation violation hearing
based on the new conspiracy and witness intimidation charges.
Serpa, who had recently become a father, faced the
possibility of a substantial sentence on the probation
violation, in addition to any potential sentences imposed if
he was eventually convicted on the new charges. At this
point, Serpa broke down, cried, changed his story, and
implicated the defendant.
testimony at trial, Serpa named the defendant as his attacker
the evening of May 16, 2010. Serpa said that when he and the
defendant arrived in front of Diceglie's apartment in
accordance with their plan to sell the marijuana, they parked
on opposite sides of the one way street. Serpa approached the
defendant's vehicle, explaining that he, Serpa, had to go
upstairs to get the money. The defendant told Serpa that he
would retrieve the marijuana from the back of the vehicle.
Serpa backed away from the defendant's driver's side
door toward the vehicle's bumper to allow the defendant
access to the back seat area. The defendant reached into the
rear of his vehicle behind the driver's seat with his
back to Serpa, and when he emerged from the vehicle again, he
swung his hand and hit Serpa on his left triceps with what
felt to Serpa like a "punch." It was only after the
second punch to Serpa's back that Serpa saw that the
defendant was holding a knife. The defendant also stabbed
Serpa on the front of his left thigh.
did not understand what was happening and asked the
defendant, "[W]hat the fuck are you doing?" The
defendant responded, "Where's the fucking
money?" Serpa retreated down the street, and the
defendant got into his vehicle and fled. Serpa then went to
Diceglie's apartment building and Diceglie drove him to
the hospital. The entire interaction between Serpa and the
defendant on Myrtle Street lasted approximately two minutes
and the attack was over in five to ten seconds.
defendant raises two challenges to his ABDW-SBI conviction:
(1) that the judge abused her discretion in admitting in
evidence over the defendant's objection a PowerPoint
presentation, denominated Exhibit 42 at trial, prepared by
the Commonwealth that combined portions of various
previously-admitted exhibits, some of which were modified
with highlighting; and (2) that the judge's instruction
on lack of right or excuse in the final jury charge
essentially directed a verdict against the defendant on this
charge, especially in combination with comments made by the
prosecutor in his closing argument.
Exhibit 42 should not have been admitted as substantive
evidence, for the reasons discussed below we conclude that
the defendant was not prejudiced by its admission. We discern
no error in the jury instruction and thus the
Commonwealth's reference to the instruction in its
closing did not result in a substantial risk of a miscarriage
Standard of review.
the defendant objected to the admission of Exhibit 42, we
review first to determine whether the trial judge abused her
discretion in admitting the exhibit and, if so, whether the
defendant was prejudiced thereby. See Commonwealthv.Rosario, 460 Mass. 181, 193 (2011). We
grant "great deference to the judge's exercise of
discretion" and determine whether the judge made a
"clear error of judgment . . . such that the decision
falls outside the range of ...