58 N.E.3d 1056
Mass. App. Ct.2016Background
- On May 16, 2010, Carlos Serpa arrived at a hospital with multiple stab wounds; he initially told police an unknown assailant attacked him while getting out of his car near Diceglie’s apartment in Medford.
- Investigators found inconsistencies between Serpa’s account and physical evidence (blood trail), learned Serpa wore a GPS ankle monitor, and obtained cell‑phone records showing texts/calls between Serpa and the defendant arranging a drug transaction that evening.
- Texts showed the defendant offered a half‑pound of marijuana to Serpa on credit; arrangements were made for a meeting near Diceglie’s apartment around 9:00 PM.
- Serpa later changed his story and identified the defendant as his attacker; trial testimony described a brief altercation and stabbing during the arranged meet.
- At trial the Commonwealth introduced a PowerPoint compilation (Exhibit 42) that combined portions of previously admitted exhibits, resequenced pages, and highlighted material; the defendant objected.
- Defendant convicted of assault and battery by means of a dangerous weapon causing serious bodily injury (ABDW‑SBI) and conspiracy to distribute marijuana; he appeals the admission of Exhibit 42 and the judge’s instruction on absence of right or excuse.
Issues
| Issue | Commonwealth's Argument | Wood's Argument | Held |
|---|---|---|---|
| Admissibility of Exhibit 42 (PowerPoint compilation) | Exhibit 42 was a useful jury aid compiling otherwise‑admitted materials and facilitating jurors' review; judge properly admitted it as an aid/evidence. | Exhibit 42 was an argumentative, hybrid compilation (resequencing/highlighting) that went beyond a permissible Rule/§1006 summary, risked mini‑summation, and was unfairly prejudicial. | The exhibit was admitted in error (not a proper §1006 summary), but the error was harmless — no prejudice to defendant. |
| Jury instruction that there was no right or excuse to touch the victim | The instruction was appropriate given defendant’s theory (he denied the assault) and counsel did not assert self‑defense; instruction clarified law and did not infringe credibility determinations. | The instruction (and prosecutor’s anticipatory comments) effectively directed a verdict by precluding consideration of excuse/self‑defense and bolstering the victim's credibility. | No reversible error. Instruction, read in context of the whole charge and trial strategy, was proper; prosecutor’s inartful comment did not create substantial risk of miscarriage of justice. |
Key Cases Cited
- Commonwealth v. Rosario, 460 Mass. 181 (standard of review for preserved evidentiary objections) (Mass. 2011) (deference to trial judge's discretion)
- United States v. Milkiewicz, 470 F.3d 390 (Federal guidance on Rule 1006 summaries and their limits) (1st Cir. 2006)
- United States v. Bray, 139 F.3d 1104 (warning that hybrid/argumentative summaries may be "mini‑summations") (6th Cir. 1998)
- United States v. Drougas, 748 F.2d 8 (charts summarizing voluminous call records admissible under Rule 1006) (1st Cir. 1984)
- Commonwealth v. Carnes, 457 Mass. 812 (admissibility of summaries of testimony when underlying records in evidence) (Mass. 2010)
- Welch v. Keene Corp., 31 Mass. App. Ct. 157 (care required to ensure summaries accurately reflect underlying evidence and do not unfairly emphasize part of proponent's proof) (Mass. App. Ct. 1991)
- Commonwealth v. Randolph, 438 Mass. 290 (preservation rules and "substantial risk of a miscarriage of justice" standard) (Mass. 2002)
- Commonwealth v. Kelly, 470 Mass. 682 (jury instructions judged in context of whole charge; reasonable juror standard) (Mass. 2015)