1. Deficiencies in the Commonwealth’s response to pretrial discovery orders. At the inception of the trial, the defense moved to dismiss on the ground that certain items the Commonwealth had been ordered to furnish had not been included in the Commonwealth’s reponse to discovery. Those items were: (1) the criminal record (it was never established that there was any) of the hospital patient who allegedly had paid for the sexual favor; (2) an unexpurgated statement made by the patient (on the copy furnished to the defense, certain clinical diagnostic information had been blotted out); (3) documents in possession of the Medfield police department; and (4) police photographs of the defendant. As to the first two items, we can cut through some befogging controversy about the defendant’s follow-up on her requests, both before and at trial, because the defendant has not established that the patient’s record and statement (the patient was not called as a witness by either side) had any relevance to the defense. There is a suggestion by the defense that more information about the patient and what he had said would tend to prove that the government had enforced the prostitution statute in a discriminatory fashion by complaining against the defendant Bibby, but not the patient. See Commonwealth v. King,
Items 3 and 4 which the defendant claims not to have received were documents such as booking sheets, property logs, evidence lists, and intake sheets and a photograph of the defendant. The lack of those, defense counsel argues, impaired his ability to cross-examine Officer Flesh, the government’s sole witness. As we read the record, the trial judge found that the government had turned over “everything” of consequence and defense counsel did not at the time say that matters lay otherwise. We will not entertain on appeal an opportunistic attack on the adequacy of the prosecution’s production of documents that was not pressed below. One may add that at no point during the appeal did the defense identify what pertinent document had been withheld. Concerning the photograph of the patient, the prosecutor had responded she did not have one but that one might be in the possession of the Medfield police. How a photograph of the patient would have assisted defense counsel is a question the defendant’s brief does not confront. In any event, it was the responsibility of defense counsel to follow up with the Medfield police whether they had a picture of the defendant.
2. Discriminatory prosecution. For reasons discussed in connection with the previous point, the trial judge correctly declined to dismiss the complaint as discriminatory prosecution.
3. Scope of prosecution’s cross-examination. Among the witnesses called by the defense was James McNulty, a mental health worker at Medfield State Hospital who had observed the events that gave rise to the charges against Bibby. The strategic purpose of the defense seemed to be to expose differences in what McNulty saw and heard and what the prosecution’s witness, Flesh, saw and heard. During cross-examination of Mc-Nulty, the prosecutor put two questions which evoked testimony that the patient’s mental condition had deteriorated following the incident with Bibby and that he had been moved from an unlocked unit in Medfield State Hospital to a locked unit. The defendant objected that the government’s questions had gone beyond the subject of the direct questioning. The judge permitted McNulty to answer. What is permissible scope of cross-examination is within the sound discretion of the trial judge. Commonwealth v. Greenberg,
4. Improper closing argument by prosecutor. In the course of her closing argument, the prosecutor urged upon the jury the idea that by reason of the patient’s mental status, the crime charged was not a victimless one. For the assertion that the patient’s circumstances within the hospital worsened after the incident with Bibby there was evidence and the prosecutor was on the verge, but not over the limits, of acceptable comments on the evidence. There was some risk that a jury might consider a crime of the sort described as trivial. When the prosecutor asked the jury “to remember the specter of [the patient] who is now virtually locked up without privileges .... I would ask you to remember the man who wasn’t here to testify today,” she crossed the line of propriety and the Commonwealth concedes as much. No specific objection was made by defense counsel to that remark, see Commonwealth v. Bourgeois,
We consider what the prosecutor said about consequences to the patient in the context of the entire argument. Commonwealth v. Fitzgerald,
5. Severity of the sentence. The judge sentenced the defendant to one year in a house of correction.
6. Constitutionality of G. L. c. 272, § 53A. On appeal the defendant makes a half-hearted attack on G. L. c. 272, § 53A, as “unconstitutionally vague, overbroad, and ambiguous” in proscribing the solicitation, ac
7. Denial of the motion for a new trial. About fourteen months after her conviction, the defendant moved for a new trial on the basis of statements by a former security officer at Medfield State Hospital and a security officer employed there at the time of the motion. The trial judge held an evidentiary hearing, on the basis of which she made careful findings and denied the motion for a new trial.
In her appeal from that denial, the defendant first argues that Officer Flesh was exposed as a “shameless perjurer” and that, therefore, a new trial is mandatory. The trial judge expressly, however, found the testimony purporting to show Flesh’s untruthfulness at the trial unconvincing. For that determination there is evidence in the record, to which the judge has specifically referred. See Commonwealth v. Gagliardi,
The second ground urged for a new trial is that the defendant produced evidence that Flesh had a reputation as a liar. The judge could reasonably conclude that the reputation evidence, whose purpose was to impeach, was neither powerful nor genuinely new. See Commonwealth v. Ortiz,
Disposition of a motion for a new trial will not be reversed by an appellate court unless the motion judge’s action is manifestly unjust, Commonwealth v. Moore,
Judgment affirmed.
Order denying motion for new trial affirmed.
Notes
The defendant had elected first instance jury trial.
General Laws c. 272, § 53A, inserted by St. 1983, c. 66, § 2, so far as pertinent, provides: “Any person who engages, agrees to engage, or offers to engage in sexual conduct with another person in return for a fee, or any person who pays, agrees to pay or offers to pay another person to engage in sexual conduct . . . may be punished. . . .”
A single justice of this court stayed execution of the sentence pending appeal.