Commonwealth v. Wood

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14-P-1389 Appeals Court

COMMONWEALTH vs. JAMES WOOD.

No. 14-P-1389.

Middlesex. October 7, 2015. - September 16, 2016.

Present: Katzmann, Rubin, & Wolohojian, JJ.

Assault by Means of a Dangerous Weapon. Evidence, Illustrative
exhibit, Best and secondary. Practice, Criminal,
Instructions to jury, Argument by prosecutor.

Indictments found and returned in the Superior Court
Department on March 10, 2011.

The cases were tried before Sandra L. Hamlin, J.

Joseph J. Mazza for the defendant.
Jessica Langsam, Assistant District Attorney, for the
Commonwealth.

KATZMANN, J. The 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
2

and highlighted by the Commonwealth, and the trial judge's

instruction on absence of right or excuse.1 We affirm.

Background. The 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 vehicle2 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

1
The jury also convicted the defendant of conspiracy to
distribute marijuana. He does not appeal that conviction. The
jury found the defendant not guilty of armed assault with intent
to murder and armed assault with intent to rob.
2
When police later inspected Serpa's vehicle, they observed
blood and a bloody shirt on the passenger seat.
3

answers to their questions to be vague and likely not entirely

truthful.

One of 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.

In the 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.

It was 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)
4

monitoring device, an ankle bracelet, as a condition of his

probation.

Based 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.3 For his service in

the transaction, Serpa would pocket $150.

A 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

3
The text message sent from the defendant's cell phone to
Serpa read: "I can give you a half blue on the sleev to help u
some." Serpa's message to Diceglie asked: "u want a half of
blue dream?" The meanings of the text messages were decoded at
trial.
5

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.

Detective 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.

On June 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
6

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 was arrested.

In 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.

In his 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.
7

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.

Serpa 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.

Discussion. The 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
8

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.

Although 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 of justice.

1. Exhibit 42. a. Standard of review. Because 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 Commonwealth v. 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 reasonable alternatives." L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014) (quotation omitted).

b. Admissibility. Exhibit 42 was based on a "PowerPoint"

presentation that the Commonwealth used as a demonstrative to

assist the jury in following some of the testimony of Detective

Goulding, the lead investigator of the stabbing. The PowerPoint
9

presentation was projected on a screen in the court room, but

jurors were also each given an individual printout of at least

some of the PowerPoint slides showing Serpa's text messages.

These printouts were collected from the jury at the conclusion

of the relevant portion of Goulding's testimony. Defense

counsel also requested that jurors have at least some portions

of the text messages for her cross-examination of Goulding.

When defense counsel finished with the portion of the PowerPoint

presentation containing the text messages, the judge again had

the jury return the printouts returned to the court officer.

As ultimately admitted in evidence, Exhibit 42 is a

compilation of various pages chosen from previously-admitted

exhibits. Specifically, Exhibit 42 incorporates subscriber

information identifying the registered owners of various cell

phone numbers believed to have been used by the defendant,

Serpa, Diceglie, and friends and associates of the defendant; a

condensed version of the content of Serpa's text messages on May

16, 2010, showing exchanges between the defendant's cell phone

and Serpa and between Serpa and Diceglie; call logs from the

cell phone registered to the defendant for a period of time

beginning one week before the stabbing and continuing through

the two days following the stabbing;4 and maps depicting Serpa's

4
Some of the pages from the defendant's cell phone call log
are repeated multiple times in Exhibit 42, ostensibly to
10

movements on the evening of May 16, 2010, based on the tracking

data from his GPS ankle bracelet.

Exhibit 42 was thus a hybrid document, combining aspects of

summary compilation and attorney argument. Some of the

combinations in the exhibit are not, on their own, clearly

intended to reinforce the Commonwealth's arguments. For

example, although the jurors could have cross-referenced cell

phone numbers from the text messages and call logs with

separately admitted subscriber information, it was arguably more

convenient to have all of that information in one place. See

Dyecraftsmen, Inc. v. Feinberg, 359 Mass. 485, 487 (1971)

("[T]ranscription of records present in the court room . . . was

admissible, in the discretion of the judge, as a matter of

convenience").

On the other hand, an examination of the content of Exhibit

42 in the context of the trial reveals its strategic purpose in

the Commonwealth's case against the defendant. The text

messages in Exhibit 42 formed the basis of the narcotics

conspiracy that, in addition to being a separately charged

offense, brought the defendant and Serpa together on Myrtle

Street where the stabbing occurred. The inclusion of Serpa's

GPS ankle bracelet records was an attempt to bolster Serpa's

demonstrate differences in calling patterns before and after the
incident.
11

testimony by confirming movement consistent with his text

messages and his trial testimony. Exhibit 42 also appears

intended to prove that the cell phone number registered to the

defendant was in fact used by the defendant, countering an

argument that the defendant raised at trial. Most importantly,

the sequencing and highlighting of the defendant's cell phone

records demonstrated the abrupt cessation of contact between the

defendant and Serpa after Serpa was stabbed, in contrast to the

continuing communications between the defendant and his other

key contacts, which continued after the stabbing. The

Commonwealth argued that this last point was particularly

probative of the defendant's guilt. We are therefore persuaded

that Exhibit 42, as a whole, was not merely a neutral summary.

It was "more akin to argument than evidence since [it] organizes

the jury's examination of testimony and documents already

admitted in evidence." United States v. Bray, 139 F.3d 1104,

1111 (6th Cir. 1998) (quotation omitted).5

In admitting Exhibit 42 over the defendant's objection, the

trial judge stated: "Well, I've looked at the exhibits that it

reflects, and I think that it would [be] unfair to ask the jury

5
Although denominated as Exhibit 42, the judge's statement
that she was "going to allow this to be marked as an aid to the
jury" is more consistent with language allowing it to be used as
a chalk or other demonstrative aid which is marked for
identification but not introduced into evidence as an exhibit.
See note 9, infra.
12

to go through each page of those exhibits. So I'm going to

allow this to be marked as an aid to the jury, and there's no

indication that it doesn't accurately reflect what the evidence

is." As he did at trial, the defendant raises numerous

challenges to the admissibility of Exhibit 42 on appeal. He

maintains that Exhibit 42 was not properly admitted because it

represents more of an argumentative device than a summary. He

also contends that it was not helpful to the jury to have a

collection of portions of exhibits that had already been

introduced, that such a collection was a needless presentation

of cumulative evidence, and that the exhibit's probative value

was substantially outweighed by the danger of unfair prejudice.

Specifically, the defendant contends that Exhibit 42 improperly

emphasized only a portion of the Commonwealth's case and

distracted the jury from weaknesses in the case because the jury

could have mistakenly believed that Exhibit 42 was additional

evidence, rather than a compilation of previously admitted

evidence.

In determining whether Exhibit 42 was properly admitted,

we look to the case law and the Massachusetts Guide to Evidence

(2016). Because the Federal rules at play in Federal decisions

"clarify[ing] the landscape," United States v. Milkiewicz, 470

F.3d 390, 395 (1st Cir. 2006), are analogous to guidelines at

issue here in the Massachusetts Guide to Evidence, we also find
13

the Federal precedent a useful touchstone.6 See N.E. Physical

Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 365-

366 (2013). Cf. Shuman v. The Stanley Works, 30 Mass. App. Ct.

951, 952-953 (1991) ("We are . . . guided by judicial

interpretation of the parallel Federal rule [of procedure],

absent compelling reasons to the contrary or significant

differences in content").

Section 1006 of the Massachusetts Guide to Evidence

provides:

"Summaries to Prove Content[.] The proponent may use
a summary, chart, or the like to prove the content of
voluminous writings or records that cannot be
conveniently examined in court. The proponent may
make the originals or duplicates available for
examination or copying, or both, by other parties at a
reasonable time and place. And the court may order
the proponent to produce them in court."

Rule 1006 of the Federal Rules of Evidence "creates an exception

to Rule 1002, which requires that originals be used to prove the

content of writings, recordings and photographs. Evidence

admitted under Rule 1006 must be otherwise admissible and

remains subject to the usual objections under the rules of

6
We note that while the Federal Rules of Evidence and the
Massachusetts Guide to Evidence maintain the same numeration,
the Federal Rules of Evidence refer to "Rules" while the
Massachusetts Guide to Evidence refers to "Sections." In
contrast to the Federal Rules of Evidence, however, Mass. G.
Evid. § 102 states: "The provisions contained in this Guide may
be cited by lawyers, parties, and judges, but are not to be
construed as adopted rules of evidence or as changing the
existing law of evidence."
14

evidence and the Constitution." United States v. Milkiewicz,

470 F.3d at 396. "[W]hile in most cases a Rule 1006 chart will

be the only evidence the fact finder will examine concerning a

voluminous set of documents, in other instances the summary may

be admitted in addition to the underlying documents to provide

the jury with easier access to the relevant information." Id.

at 396-397 (citations omitted). Cf. Commonwealth v. Carnes, 457

Mass. 812, 825 (2010) ("Summaries of testimony are admissible,

provided that the underlying records have been admitted in

evidence and that the summaries accurately reflect the

records"). With respect to summaries admitted in evidence,

"care must be taken be taken to insure that [the] summaries

accurately reflect the contents of the underlying documents and

do not function as pedagogical devices that unfairly emphasize

part of the proponent's proof." Welch v. Keene Corp., 31 Mass.

App. Ct. 157, 165-166 (1991), quoting from United States v.

Drougas, 748 F.2d 8, 25 (1st Cir. 1984).7

7
As discussed in the cases, "pedagogical devices" subsumes
argumentative aids. The Sixth Circuit provides a useful
definition of the term "pedagogical device," explaining: "We
understand the term 'pedagogical device' to mean an illustrative
aid such as information presented on a chalkboard, flip chart,
or drawing, and the like, that (1) is used to summarize or
illustrate evidence, such as documents, recordings, or trial
testimony, that has been admitted in evidence; (2) is itself not
admitted into evidence; and (3) may reflect to some extent,
through captions or other organizational devices or
descriptions, the inferences and conclusions drawn from the
underlying evidence by the summary's proponent. This type of
15

We agree with the defendant that Exhibit 42 is not a

"summary, chart, or the like" used "to prove the content of

voluminous writings or records that cannot be conveniently

examined in court" as described in Mass. G. Evid. § 1006. See

Commonwealth v. Guy, 454 Mass. 440, 446 & n.5 (2009)

("notebooks" mirroring and visually summarizing lengthy and

complex DNA testimony could have been admitted within the

judge's discretion); Commonwealth v. Carnes, 457 Mass. at 825-

826. The case before us is not one where the proponent prepared

a freestanding chart to tally the dates, times, and number of

cell phone calls between various parties in order to summarize

extensive, separate underlying business records. Compare ibid.;

United States v. Drougas, 748 F.2d at 26 ("We find that the

charts . . . pictorially summarized over one hundred calls

placed during the period of the conspiracy and were properly

received under Rule 1006"). In Carnes and Drougas, the exhibits

in question were independent creations derived from the "raw

data," Commonwealth v. Carnes, supra at 826, of the previously

admitted records and testimony. Exhibit 42, on the other hand,

combined portions of multiple exhibits and superimposed the

Commonwealth's gloss on some of the previously admitted records

exhibit is more akin to argument than evidence since [it]
organizes the jury's examination of testimony and documents
already admitted in evidence." United States v. Bray, 139 F.3d
at 1111 (quotation omitted).
16

themselves. As we have noted, rather than summarize the

underlying records, the Commonwealth placed certain pages from

individual exhibits alongside pages from other exhibits, and

then altered some of those pages to highlight the portions of

the raw data evidence relevant to the Commonwealth's theory of

the case. The exhibit thus falls outside the scope of

admissible evidence. See Commonwealth v. Welch, 31 Mass. App.

Ct. at 165-166; Mass. G. Evid. § 1006. It was error for the

judge to admit the exhibit.

Finally, we note that we have found instructive the

tripartite taxonomy of summary evidence that has been

articulated by Federal courts, see, e.g. United States v. Bray,

139 F.3d at 1112, and recognized by the United States Court of

Appeals for the First Circuit in United States v. Milkiewicz,

470 F.3d at 396-398.8 In addition to the (1) primary evidence

summaries which we have already discussed, the taxonomy includes

two types of summary evidence not considered here by the parties

or by the court: (2) pedagogical device summaries or

illustrations (such as chalkboard drawings, graphs,

8
The First Circuit has noted that "[t]he Federal Rules of
Evidence offer multiple options for an attorney who wishes to
summarize complex evidence and bring it to the jury's attention
in the form of a chart. The various rules are not always
mutually exclusive, and so it is unsurprising that confusion
sometimes arises . . . over the appropriate basis for admitting
a particular summary." United States v. Milkiewicz, 470 F.3d at
395.
17

calculations, or listings of data taken from the testimony of

witnesses or documents in evidence) that are intended to

summarize, clarify, or simplify testimonial or other evidence

that has been admitted, but which are not themselves admitted in

evidence as they are used only to aid the presentation and

understanding of the evidence, see Mass. G. Evid. § 611(a)(1);9,10

9
Massachusetts Guide to Evidence § 611(a) recognizes the
trial court's common-law authority to "control" the "mode" of
"presenting evidence." Trial judges have broad discretion to
control the mode and order in which evidence is presented
subject to proper balancing for risk of needless presentation of
cumulative evidence and risk of unfair prejudice. See Mass. G.
Evid. §§ 403, 611(a). Although the Massachusetts Guide to
Evidence does not address the admissibility of "chalks," it is
plain that "[a] judge . . . has considerable, but not
unrestrained, discretion as to the degree to which chalks can be
used." Commonwealth v. Mimless, 53 Mass. App. Ct. 534, 539
(2002), quoting from Commonwealth v. DiFonzo, 31 Mass. App. Ct.
921, 923 (1991). Chalks are not exhibits in evidence. See
Aselbekian v. Massachusetts Turnpike Authy., 341 Mass. 398, 402
(1960) ("The judge, in his discretion, could reasonably have
refused to admit the plan as an exhibit, while permitting it to
be used as a chalk"). A judge's assessment whether a documents
qualifies as a chalk or as an exhibit can change during the
course of a trial. See, e.g., Commonwealth v. Shagoury, 6 Mass.
App. Ct. 584, 593 (1978) (judge did not abuse his discretion in
reducing a sketch first entered as an exhibit to "the status of
a chalk").
10
The First Circuit has observed that while "[t]he lines
between [Fed.R.Evid. 1006 and 611(a)] summary documents are
easily blurred," the latter are more akin to argument in that
they "may reflect to some extent, through captions or other
organizational devices or descriptions, the inferences and
conclusions drawn from the underlying evidence by the summary's
proponent." United States v. Milkiewicz, 470 F.3d at 397-398
(citation omitted). "A summary that is admissible under Rule
1006 -- and is thus most appropriately introduced under that
rule -- could properly be offered under Rule 611(a) if the
supporting material has been admitted into evidence. Likewise,
18

and (3) secondary evidence or hybrid summaries that are a

combination of the first two types of summaries "in that they

are not prepared entirely in compliance with Rule 1006 and yet

are more than mere pedagogical devices designed to simplify and

clarify other evidence in the case. These secondary-evidence

summaries are admitted in evidence not in lieu of the evidence

they summarize but in addition thereto, because in the judgment

of the trial court such summaries so accurately and reliably

summarize complex or difficult evidence that is received in the

case as to materially assist the jurors in better understanding

the evidence. In the unusual instance in which this . . . form

of secondary evidence summary is admitted, the jury should be

instructed that the summary is not independent evidence of its

subject matter, and is only as valid and reliable as the

underlying evidence it summarizes." United States v. Bray, 139

F.3d at 1112.11

a chart that originally was offered as a jury aid to assist with
review of voluminous underlying documents already in evidence --
and which accurately summarizes those documents -- alternatively
could be admitted under Rule 1006 if the court concluded that
the supporting documents could not be examined conveniently in
court. To complicate matters, a court also has discretion under
Rule 703 to provide the jury in some circumstances with the
'facts or data' underlying an expert's opinion, and such
material may be presented in the form of a summary chart."
Ibid.
11
The Sixth Circuit has warned that "a summary containing
elements of argumentation could very well be the functional
equivalent of a mini-summation by the chart's proponent every
19

It does not appear that either of the latter two kinds of

summary evidence could be the basis for admission of Exhibit 42.

While pursuant to the pedagogical device summary or

illustrations category Exhibit 42 could have been marked for

identification and shown to the jury as a chalk or demonstrative

aid, as such it did not qualify as evidence. See note 9, supra;

Vedensky v. Vedensky, 86 Mass. App. Ct. 768, 776 n.10 (2014)

(chalk is not evidence). Nor does it appear that Exhibit 42

would have properly been admitted in evidence under the third

category of admissible secondary evidence or hybrid summaries,

where the evidence was not particularly complex or voluminous.

c. Prejudice. Having concluded that the admission of

Exhibit 42 was error, we now consider whether the defendant was

prejudiced by its admission. An error preserved by objection is

nonprejudicial "if we are sure that the error did not influence

the jury, or had but very slight effect." Commonwealth v.

Graham, 431 Mass. 282, 288 (2000), quoting from Commonwealth v.

Flebotte, 417 Mass. 348, 353 (1994). Where all of the material

in Exhibit 42 was previously admitted in evidence and the

limited duplication, sequencing, and highlighting of the

exhibits by the Commonwealth added little to the Commonwealth's

case and detracted little from the defendant's theory at trial,

time the jurors look at it during their deliberations." United
States v. Bray, 139 F.3d at 1110.
20

we conclude that, even without a limiting instruction, Exhibit

42 exerted little or no effect on the outcome.

Although we are concerned about the risks of "mini-

summation," see United States v. Bray, 139 F.3d at 1110, posed

by hybrid exhibits that duplicate, resequence, and annotate

previously admitted exhibits, the risks posed by Exhibit 42 were

minimal. That is, to the extent the compilation and

highlighting of exhibits was argument, it was not particularly

powerful. Moreover, it was not damaging to the defendant.

At trial, the defendant himself pointed to Serpa's text

messages because the story told therein of the defendant trying

to help Serpa by extending him drugs on credit with no

expectation of immediate payment that evening was inconsistent

with the defendant demanding money and then stabbing Serpa.

Thus, corroboration of Serpa's movements consistent with the

text messages and cell phone calls arranging the "meeting" was

hardly prejudicial.

If the repetition and sequencing of Serpa's GPS ankle

bracelet records were intended to bolster Serpa's credibility to

confirm that he was where he said he was on the day he was

stabbed, they were hardly damaging to the defendant's case,

given that the defendant had no reason to dispute Serpa's

veracity in this regard and those records did nothing additional

to substantiate Serpa's belated identification of the defendant
21

as his attacker.12 Nor is it likely that anything in Exhibit 42

distracted the jury from the multiplicity of reasons they had

been given to discredit Serpa, including, inter alia, his

inconsistent accounts of the stabbing, his prior convictions,

the shorter sentence he received in exchange for his

cooperation, and the conflict between his trial testimony and

the blood pattern that detectives discovered on Myrtle Street.13

To the extent that Exhibit 42 emphasized the evidence

showing that the defendant himself used the cell phone

registered in his name on the day in question, it was tantamount

to repetition of an open secret that the defendant emphasized

throughout his closing argument. Although the defendant was

ostensibly reluctant at trial to explicitly admit that he was

responsible for the texts messages and cell phone calls

attributed to him for purposes of the narcotics charge, he was

willing for the jury to accept that he was going to meet Serpa

to conclude a drug transaction for purposes of the ABDW-SBI

12
Moreover, duplication of Serpa's GPS ankle bracelet may
have helped the defendant by reminding the jury of Serpa's
probation status and, hence, his criminal past.
13
The defendant contends that admission of Exhibit 42 was
prejudicial because the duplication of evidence regarding the
intended drug deal obscured the weakness in the Commonwealth's
case, which was based on Serpa's implausible account of an
unprovoked attack that was inconsistent with a drug transaction
on credit and with Serpa's initial statements to the police.
22

charge.14 Thus, the defendant was not prejudiced by anything in

Exhibit 42 that simply reinforced a point on which he was

relying as well.

The demonstration that contact between Serpa and the

defendant stopped after May 16, 2010, is the only fact

reinforced by Exhibit 42 that the defendant was not himself

prepared to concede. But the inference itself was fair game

from the underlying evidence and had already been suggested,

without objection, during Detective Goulding's testimony. This

was so subtle a point that the jurors might have misperceived

its significance if not for the reinforcement in Exhibit 42. It

is doubtful that any additional emphasis on that point in

Exhibit 42 had any impact on the verdict.

In addition to focusing on what the Commonwealth might have

hoped Exhibit 42 would accomplish, to assess its impact on the

verdict we also point out what Exhibit 42 could not do. Putting

aside the defendant's arguments on the use of his cell phone,

14
Consider the following statements in the defendant's
closing argument: "If you believe that that was James Wood on
the phone, James Wood is trying to help out Carlos Serpa, giving
him a half a pound of marijuana, not asking for any money up
front. . . . And they make arrangements to meet, he and
whoever's on the Wood phone. And if you want to believe that
story that it was James Wood, they meet . . . ." "If you are to
believe Carlos Serpa's story on December 9th, why -- why would
James Wood stab him? He's meeting him to help him. He's
meeting him to give him drugs, without asking for any money."
"But I suggest that even if you say, okay, it had to be James
Wood on the phone that night, it still makes no sense."
23

the defense at trial was essentially that the defendant had no

motive to attack Serpa and that Serpa's account of the attack

could not be trusted. Exhibit 42 did no more to address those

holes in the Commonwealth's case than the individual underlying

exhibits and testimony that the jury heard when they had copies

of some of the PowerPoint slides during Goulding's testimony.

Thus, if Exhibit 42 was intended as a "roadmap[] to conviction"

to the ABDW-SBI charge, United States v. Best, 939 F.2d 425, 428

(7th Cir. 1991), it was not sufficient to get the jurors

materially closer to that destination than (i) the implicit

concessions made by the defendant that essentially acknowledge

the planned drug transaction and (ii) the clear import of the

underlying exhibits and testimony on their own.

For all of the foregoing reasons, after "review of the

entire trial," Commonwealth v. Barbosa, 463 Mass. 116, 124

(2012), we conclude that the defendant was not prejudiced by the

admission of Exhibit 42.

2. Absence of right or excuse. The defendant also

challenges the judge's jury charge on the ABDW-SBI offense in

which the judge instructed the jury as a matter of law that

there was no right or excuse for the defendant to have touched

Serpa. Specifically, he contends that comments by the

prosecutor in closing argument anticipating the instruction

combined with the instruction itself to direct a verdict against
24

him. The relevant portions of the Commonwealth's closing and

the judge's instructions and are set out in the margin.15

a. Standard of review. The defendant did not object to

the instruction on right or excuse at the charge conference or

after the jury were charged. The defendant also failed to raise

any objection to the Commonwealth's closing argument.

Accordingly, the defendant has failed to preserve his claim of

error, and our review is limited to the substantial risk of a

miscarriage of justice standard. See Commonwealth v. Randolph,

438 Mass. 290, 294-295 (2002).

b. Jury instruction. The defendant contends that the

judge's instruction on lack of right or excuse was erroneous.

15
In his closing argument, the prosecutor stated:

"When [the defendant] gets out of the car and goes into the
back seat, he's decided I'm getting my money, I'm not
giving him anything, and I'm going to kill him. And your
evidence of it is Carlos Serpa is unarmed. And the judge
is actually going to instruct you on that. In this case,
you will be instructed that there is no evidence of excuse
or justification for this assault, none. You don't have to
speculate why, in terms of whether there's an excuse or
justification, because you're being told there isn't one.
He just stabbed him. And how many times do you need to
stab an unarmed man to get your point across, if your
intent isn't to kill him?"

In her instructions, the judge stated:

"Now, the first element, that the defendant touched the
person of Carlos Serpa, however slightly, without having
any right or excuse for doing so, I instruct to a matter of
law that in this case there is no right or excuse for doing
so, and so you're not to consider that in any way."
25

We disagree. The essence of the defendant's trial strategy was

to deny that he was Serpa's attacker and to sow reasonable doubt

by exploiting Serpa's credibility problems and the

inconsistencies between and within Serpa's varying accounts of

the attack. The defendant understandably did not attempt to

elicit any evidence of self-defense or of a right or excuse for

the alleged battery. Consistent with this approach, the

defendant's trial counsel informed the judge that she did not

intend to argue self-defense in closing and therefore had no

objection to the Commonwealth's motion to preclude such argument

and to instruct the jury on the lack of right or excuse with

respect to the ABDW-SBI indictment. See Commonwealth v. Conley,

34 Mass. App. Ct. 50, 58 (1993) (noting that where the defendant

claimed that an attack never happened, "[a] self-defense

instruction would be contrary to his defense"). In these

circumstances, we have held that "it was proper for the judge

. . . to give the instruction concerning the lack of evidence as

to right and excuse." Ibid.

The defendant suggests that an instruction stating that

there was no evidence of right or excuse in this case might have

been acceptable but that in instructing the jury that, as a

matter of law, the defendant had no right or excuse for touching

Serpa and that the jury were not to consider that in any way,

the judge went too far. We do not see a meaningful difference
26

in the distinction the defendant seeks to tease from the trial

judge's wording. "The method and extent of a jury charge is

within the discretion of the trial judge." Commonwealth v.

Carrion, 407 Mass. 263, 269 (1990). "We do not require that

judges use particular words, but only that they convey the

relevant legal concepts properly." Commonwealth v. Kelly, 470

Mass. 682, 697 (2015). The judge's instruction here properly

conveyed the applicable legal concept that, consistent with the

defendant's theory at trial, this was not a case where there was

any evidence that the defendant had an excuse to touch Serpa.

See Commonwealth v. Reed, 427 Mass. 100, 103 (1998).

The defendant raises numerous additional challenges to the

instruction, all of which lack merit. He contends that the

instruction deprived him of defenses based on a reasonable fear

for his safety. Again, such a defense would have been

completely inconsistent with the defendant's theory of the case.

See Commonwealth v. Tevlin, 433 Mass. 305, 318 (2001) ("The

theory on which a case is tried will not be ignored on appeal").

The defendant also suggests that the instruction undermined his

argument that an unidentified third party was responsible for

the attack by suggesting to the jury that no one had a right or

excuse to attack Serpa. By its terms, however, the instruction

only applied to the question of the defendant's right or excuse

to touch Serpa. The instruction was silent on the question
27

whether anyone else might have had a right or excuse to touch

Serpa and, crucially, left to the jury the question whether the

Commonwealth has proved beyond a reasonable doubt that it was

the defendant who committed the battery. The instructions as a

whole made it clear that the defendant was presumed innocent

until and unless the jury unanimously decided that the

Commonwealth had proved that the defendant was guilty of each

and every element of a particular charge beyond a reasonable

doubt. "The legal adequacy of a particular instruction to the

jury can only be judged in the context of the whole charge, and

not on the basis of limited or isolated portions of it. This is

because it is impossible to gauge the over-all impact on a

reasonable juror of any one piece parsed out of an instruction

without examining the entire charge in which it was delivered."

Commonwealth v. Carrion, 407 Mass. at 270 (citations omitted).

For the same reasons, the instruction did not remove the

question of Serpa's credibility from the jury. Nor did the

instruction somehow bolster Serpa's credibility. The jury were

instructed that they were the sole and exclusive judges of the

facts, that they alone were to determine the weight, effect, and

value of the evidence as well as the credibility and

believability of each and every witness, that they must

consider, measure, evaluate, and carefully weigh all of the

testimony of all witnesses, and that they could believe all of
28

what a witness said, some of what a witness said, or none of

what a witness said. The instructions specifically invited

jurors to consider a witness's motive for testifying, how

probable or improbable the testimony was, and the effect of

prior inconsistent statements on credibility. The judge also

explicitly instructed the jurors that they could consider

evidence of Serpa's prior convictions and his probation status

for purposes of deciding whether to believe his testimony and

how much weight to give it. Where Serpa's credibility was a

live issue, there is no basis to believe that jurors

misconstrued the judge's proper instruction on absence of right

or excuse as an endorsement of Serpa. Moreover, the judge also

told the jurors that none of what she told them about the law

was to be taken as any indication of how they should determine

the issues of fact in the case, adding: "If you believe the

Court has expressed or, in any way, indicated an opinion about

the facts, you should disregard it." See Commonwealth v.

Kelly, 470 Mass. at 697 ("We evaluate jury instructions as a

whole and interpret them as would a reasonable juror"). There

was no error and thus no substantial risk of a miscarriage of

justice. See Commonwealth v. Randolph, 438 Mass. at 298;

Commonwealth v. Kelly, supra at 698.

c. Closing argument. We agree that the prosecutor's

incorporation of the anticipated jury instruction in his closing
29

argument was inartful, note 15, supra, and that insofar as his

argument could be construed as stating that the jury would be

instructed that the defendant had assaulted Serpa, this was

impermissible. However, we conclude that any error did not give

rise to a substantial risk of a miscarriage of justice.

As discussed above, the judge's actual instruction on

absence of right or excuse that followed closing arguments was

proper. Moreover, the judge instructed the jury that they had

to find each element beyond a reasonable doubt. See

Commonwealth v. Dagley, 442 Mass. 713, 725 (2004) ("That the

judge's final instruction did not include any express correction

of the prosecutor's mischaracterization does not mean that the

instruction was inadequate to cure any confusion caused by that

mischaracterization"). Cf. Commonwealth v. Montez, 450 Mass.

736, 748 (2008) ("Although not dispositive of the issue, the

absence of [an objection on this precise point and the absence

of a request for a curative instruction] from experienced

counsel is some indication that the . . . substance of the now

challenged aspects of the prosecutor's argument were not

unfairly prejudicial" [citation omitted]).16

16
The defendant's failure to object is particularly
problematic where the challenged comments in the prosecutor's
closing argument related to an anticipated jury instruction and
so would have been susceptible to a curative instruction from
the judge during the final charge if she deemed it necessary.
30

In general, the Commonwealth's closing argument was

dedicated to reviewing the evidence of the cell phone call logs,

the GPS ankle bracelet records, and the defendant's cell phone

tower data, and to showing the jury how that evidence supported

Serpa's trial testimony. The prosecutor made a particular point

of trying to show that Serpa could not have concocted the story

to conform to the evidence and to explain the apparent

inconsistencies between the blood trail and Serpa's trial

testimony. In addition, the prosecutor tried to explain to the

jury why the defendant might have attacked Serpa, explaining

that because of the defendant's unfamiliarity with street-level

narcotics transactions, he found himself in the unenviable

position of meeting Serpa, a convicted armed robber, after dark

in unfamiliar territory. The prosecutor characterized the

stabbing as the defendant's foolish reaction to finding himself

in this predicament. All of this argument was designed to

persuade the jury that the defendant committed the attack and

would have been unnecessary had the jury been instructed as a

matter of law that the defendant had stabbed Serpa.

Thus, "in the context of the entire closing, and the manner

in which the case was prosecuted," Commonwealth v. Gray, 465

Mass. 330, 341 (2012), the prosecutor's incorporation of the

anticipated instruction on absence of right or excuse would not

have confused the jury about the fundamental question before
31

them, which was whether the defendant was in fact the assailant

who stabbed Serpa. See Commonwealth v. Cass, 12 Mass. App. Ct.

928, 929-930 (1981). We are therefore satisfied that any error

did not "materially influence[]" the verdict and that the

defendant was not prejudiced. Commonwealth v. Randolph, 438

Mass. at 298.

Judgments affirmed.