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13-P-750                                               Appeals Court

                  COMMONWEALTH   vs.   MIGUEL LOPEZ.


                             No. 13-P-750.

           Hampden.      February 6, 2014. - July 30, 2014.

              Present:   Cypher, Graham, & Carhart, JJ.


Rape. Assault and Battery. Constitutional Law, Speedy trial.
     Evidence, Hospital record, Disclosure of evidence.
     Practice, Criminal, Speedy trial, Discovery, Disclosure of
     evidence.



     Indictments found and returned in the Superior Court
Department on July 27, 2011.

     A motion to dismiss was heard by C. Jeffrey Kinder, J., and
the cases were tried before Bertha D. Josephson, J.


     David M. Skeels, Committee for Public Counsel Services, for
the defendant.
     Deborah D. Ahlstrom, Assistant District Attorney, for the
Commonwealth.


     CYPHER, J.   The defendant, Miguel Lopez, was convicted by a

jury of rape, G. L. c. 265, § 22(b), and assault and battery,

G. L. c. 265, § 13A(a).     He appeals, claiming (1) that he was
                                                                     2


prejudiced by the lack of a speedy trial and (2) that the

Commonwealth failed to provide mandatory discovery.    We affirm.

     Background.    On July 27, 2011, a Hampden County grand jury

returned indictments against the defendant on the underlying

charges.    The defendant was arraigned on August 9, 2011, and

counsel was appointed.    On November 15, 2012, the defendant

filed a motion to dismiss on speedy trial grounds, with a

supporting memorandum.    After a hearing on the motion five days

later, the judge denied the motion.

     A jury trial began on December 11, 2012, after which the

defendant was found guilty on both charges.    On December 19,

2012, the defendant was sentenced on the rape conviction to a

term of not more than ten years, and not less than nine years,

to be served at the Massachusetts Correctional Institution at

Cedar Junction.    On the assault and battery conviction, the

defendant was sentenced to the Hampden County house of

correction for two and one-half years, the sentence to run

concurrently with the sentence to be served on the rape

conviction.

     Facts.    A jury could have found the following facts.   On

July 11, 2010, the victim, Valerie, 1 was living in an apartment

with her stepdaughter.    The defendant lived upstairs in the same


     1
         A pseudonym.
                                                                     3


apartment building with his wife, who was out of town at the

time.    Valerie knew the defendant because he was a good friend

of Valerie's former boyfriend, Frank, 2 who had recently ended

their relationship.     Valerie was also a friend of the

defendant's wife.

     At 6:00 A.M. on the morning of July 11, 2010, Valerie

received a telephone call from the defendant, who told Valerie

that Frank had called the defendant and requested that he

retrieve Frank's dog.     Valerie told the defendant to have Frank

call her directly, but the defendant told her that he had spoken

to Frank and Frank wanted Valerie to bring the dog upstairs to

the defendant's apartment.     Valerie got dressed, took the dog

upstairs, and knocked on the defendant's back door.

     The defendant answered the door wearing boxer shorts and a

tank top.    Valerie handed the leash to the defendant and then

turned to leave.    The defendant grabbed Valerie by the wrist and

dragged her to his bedroom in the front of the apartment.

     The defendant forced Valerie onto his bed and, as he held

her wrists in one hand and leaned on her with his chest, he

pulled down her pants and her underwear.     The defendant told

Valerie "that he always wanted [her]" and "he didn't care what

[Frank] had to say or do."     The defendant forced his penis into


     2
         A pseudonym.
                                                                     4


Valerie's vagina.   The whole time, Valerie was yelling and

telling him to stop.    Valerie tried, but was unable to push the

defendant off of her.   Valerie was not sure how long the rape

lasted, but when the defendant ejaculated, he let Valerie go and

she ran back to her apartment.

     When Valerie returned to her apartment, she took off all

her clothes and got into the shower.    She felt disgusted and was

unable to control her anxiety and her crying.   At approximately

6:30 A.M., Valerie's stepdaughter awoke when she heard the back

door slam shut.   She went to the bathroom and found Valerie

there, sitting in the bathtub with the shower on, crying.     The

stepdaughter tried to calm Valerie down, but she kept crying and

repeating, "I feel disgusted. I didn't want him to.   I didn't

want him to."   Eventually the stepdaughter got Valerie out of

the bathroom, clothed, and into the stepdaughter's bedroom.

There, Valerie told her stepdaughter what had happened.   After

learning about the rape, the stepdaughter called her father who,

in turn, called the police.

     Officer Peter Manolakis of the Springfield police

department arrived at the apartment at approximately 7:45 A.M.

and met Valerie and her stepdaughter.   The stepdaughter was

sitting on the couch with her arm around Valerie, who the

officer described as distraught.   Officer Manolakis called for

an ambulance and then collected the clothes that Valerie had
                                                                     5


been wearing.    Valerie received medical attention and biological

evidence was collected with a rape kit.

     Peggy Rodriguez, a deoxyribonucleic acid (DNA) analyst at

Orchid Cellmark (Cellmark), a private genetic testing facility,

analyzed the samples from the rape kit and compared the results

with the known DNA profiles.    Rodriguez concluded that the

epithelial fraction from the vaginal swab had a mixture that was

consistent with a woman and a man.    The sperm fraction from the

vaginal swab contained a mixture from at least three

individuals, including at least one male.    Rodriguez identified

the defendant as a contributor 3 and Valerie as a potential

contributor.    Frank was excluded as a potential contributor.

     Testifying on his own behalf, the defendant said that he

met Valerie as the result of his friendship with Valerie's

former boyfriend, Frank.    The defendant claimed that at some

point prior to July, 2010, his relationship with Valerie changed

and they started having an intimate relationship.    They would


     3
       Rodriguez estimated that the probability of the occurrence
of the defendant's genetic profile at thirteen loci was one in
8.033 quintillion unrelated individuals for the black
population; one in 764.4 quadrillion unrelated individuals in
the Caucasian population; one in 4.129 quintillion unrelated
individuals in the southwest Hispanic population; one in 2.645
quintillion unrelated individuals in the southeast Hispanic
population; and one in 3.582 quintillion unrelated individuals
in the general Asian population. Rodriguez produced a chart of
the DNA profiles and explained it to the jury. The DNA chart
was admitted in evidence.
                                                                     6


have sexual relations in Valerie's apartment when Frank was not

around, according to the defendant's testimony.    The defendant

said that he and Valerie would have a couple of beers, smoke

some marijuana, and then have sex.

     According to the defendant, Valerie came to his apartment

at about 10:00 P.M. on the night of July 10, 2010.    They drank a

couple of beers, smoked marijuana, and had consensual

intercourse.   Valerie left the defendant's apartment a little

after midnight.   But before Valerie left, she and the defendant

got into a "little argument."    The defendant was concerned that

Valerie's relationship with his son was inappropriate.    The

defendant called Valerie a slut and a whore.    Valerie, in

return, called the defendant some bad words.

     After an angry exchange of about ten minutes, Valerie left

the defendant's apartment.   The defendant denied calling Valerie

about the dog and disputed her claim that she had come to his

apartment at 6:00 A.M. on July, 11, 2010.

     1.   Speedy trial claims.   The defendant argues that the

prosecutor was unreasonably lacking in diligence in bringing the

defendant to trial because he waited over eleven months after

the arraignment date before obtaining a court order for the

victim's medical records, a delay that was extended when the

records were not delivered to court for another five months.

According the defendant, he was prejudiced by this delay because
                                                                      7


he was in custody awaiting trial.

       In contrast to the defendant's speedy trial claim that was

presented below and primarily grounded on the case management

provisions found in Mass.R.Crim.P. 36(b), 378 Mass. 909 (1979),

the claim on appeal is pressed solely as a constitutional

violation under the State and Federal Constitutions, 4 and

Mass.R.Crim.P. 36(c), 378 Mass. 912 (1979), the portion of the

rule that encompasses the "fundamental constitutional guarantee"

to a speedy trial. 5     Reporters' Notes to Rule 36(c), Mass. Ann.

Laws Court Rules, Rules of Criminal Procedure, at 1728

(LexisNexis 2013).

       "[T]he relevant factors in determining whether a

defendant's [Federal] constitutional right [to a speedy trial]

has been denied, see Barker v. Wingo, 407 U.S. 514, 530 (1972),

are:       the length of the delay, the reasons for the delay, the


       4
       On appeal the defendant claims violations of the
Fourteenth Amendment to the United States Constitution, and art.
11 and art. 12 of the Massachusetts Declaration of Rights. His
motion to dismiss cited the Sixth and Fourteenth Amendments and
art. 11, but it did not cite art. 12.
       5
       Contrary to the Commonwealth's contention on appeal, the
defendant's claim under Mass.R.Crim.P. 36(c) was preserved below
where he argued in his motion that he was entitled to a
dismissal on grounds that the prosecutor was unreasonably
lacking in diligence in bringing the case to trial and he was
thereby prejudiced; the Commonwealth responded to this claim in
its opposition memorandum; and the motion judge denied the
motion "for the reasons set forth in the Commonwealth's
opposition."
                                                                    8


extent of the defendant's assertion of his right to a speedy

trial, and the prejudice, if any, to the defendant."

Commonwealth v. Willis, 21 Mass. App. Ct. 963, 964 (1986)

(quotations and citation omitted).   Here, "the defendant's

constitutional right [to a speedy trial] under the Barker v.

Wingo analysis will be protected by considering the factors

entitling the defendant to a dismissal under [rule] 36(c) . . .,

that is, if '(1) the conduct of the prosecuting attorney in

bringing the defendant to trial has been unreasonably lacking in

diligence and (2) this conduct on the part of the prosecuting

attorney has resulted in prejudice to the defendant'" (footnote

omitted).   Ibid.

     The difficulty with the defendant's claim is that the

sluggishness with which the hospital records were produced had

little bearing on the progress of the case because they were

largely cumulative of the Commonwealth's proof.   The independent

evidence of the crime consisted of the victim's testimony that

she had been battered and raped, the first complaint witness who

articulately outlined the victim's distraught demeanor and

description of the crime within thirty minutes of it having

occurred, police testimony confirming the victim's distraught

demeanor, the hospital nurse who explained how evidence is

collected using the rape kit, the testimony of the emergency

room doctor who described the physical examination, and DNA
                                                                   9


evidence that revealed a match between DNA profile obtained from

the sperm detected in the victim's vagina hours after the crime

and a known sample from the defendant.

     To the extent the hospital records were relevant, they were

primarily of assistance to the defense.   Trial counsel used the

records to elicit from the hospital nurse that the victim had

been proscribed Prozac, Albuterol, and Percocet, as well as

testimony from the emergency room doctor that there was

absolutely no physical indication of trauma, tearing, or even

redness, in any part of the victim's genital area.   That the

records were exculpatory is bolstered by counsel's agreement to

their admission.

     Although it is certainly true that the Commonwealth

included the need to obtain the medical records as among its

reasons for requesting a continuance on July 17, 2012, about

eleven months after the arraignment date, the continuance was

not objected to by the defendant.   Moreover, unlike the

situation presented in Commonwealth v. Balliro, 385 Mass. 618

(1982), in which the prosecutor's delay prevented the trial from

going forward, the Commonwealth did not need the medical records

to try the defendant.   See id. at 621-623 (although the

Commonwealth had known for several weeks that no charge based on

the operation of a motor vehicle while under the influence of

alcohol could be proved, it waited until the day of trial to
                                                                    10


correct the error).     In these circumstances, there is no

evidence that the delay in obtaining the hospital records

evinces proof that the prosecutor was unreasonably lacking in

diligence in bringing the defendant to trial.

     2.    Mandatory discovery claim.   The defendant next argues

that his convictions should be vacated and the case dismissed

because the Commonwealth failed to disclose an electronic mail

message (e-mail) exchange between the Cellmark analyst, her

technical reviewer, and the State police crime laboratory (State

lab).     According to the defendant, the e-mail exchange reveals

that the Cellmark analyst changed her report after communicating

her original analysis to the State lab.     Both the original and

the revised reports were provided to the defendant prior to

trial.

     The defendant is correct that the prosecution had a duty to

provide the defense with "statements of persons the party

intends to call as witnesses" prior to the pretrial conference.

Mass.R.Crim.P. 14(a)(1)(A), as amended, 444 Mass. 1501 (2005).

The mandatory disclosure includes all relevant evidence in the

custody of "persons who have participated in investigating or

evaluating the case and either regularly report to the

prosecutor's office or have done so in the case."     Ibid.   See

Commonwealth v. Martin, 427 Mass. 816, 824 (1998).     In

Commonwealth v. Martin, supra at 817, the trial judge granted
                                                                   11


the defendant a new trial because of the "effect of the

Commonwealth's failure to timely disclose . . . evidence [to

defense counsel] combined with defense counsel's failure to

present a competent rebuttal of the prosecution's case."    The

case before us does not present a similar circumstance causing

prejudice to the defendant because, as the Commonwealth points

out, the two Cellmark reports were provided to defense counsel

as required.   The original report (dated November 30, 2011)

stated:   "The DNA profile obtained from the sperm fraction of

the vaginal swabs is a mixture of at least three individuals,

including at least one unknown male."   The revised report (dated

December 21, 2011) stated:   "The DNA profile obtained from the

sperm fraction of the vaginal swabs is a mixture of at least

three individuals, including at least one male."   Whether the

third person was male or female, or whether that person's

identity was "unknown," is inconsequential since the defendant

was consistently identified in both reports as having

contributed to the mixture, identity was not an issue at trial,

and, as the defendant's brief notes, the victim's medical

records indicate that she had reported having consensual sexual

intercourse eighty-four hours before the rape.

     The substance of the e-mail communication between Cellmark

and the State lab therefore cannot be considered exculpatory

under the facts of this case.   Furthermore, withholding such e-
                                                                   12


mails was not prejudicial because those e-mails would not have

any tendency to prove the defense's theory that the sexual

contact was consensual.   The defendant testified at trial that

he had an ongoing sexual relationship with the victim and that

he had consensual sexual intercourse with the victim on the

evening of July 10, 2010.    The victim testified that she never

had consensual sexual intercourse with the defendant and that

the defendant had raped her on the morning of July 11, 2010.

The fact that sexual contact had occurred between the defendant

and the victim was not in dispute at trial and neither was the

credibility or competency of the Cellmark DNA analysis.      The

jury had only to decide the issue of consent.    Neither the

evidence showing the DNA of a third party, nor the medical

records containing information about the victim's consensual

sexual activity hours before the rape, aids the defense theory

that the contact was consensual.

     In Commonwealth v. Jewett, 442 Mass. 356, 360 (2004), the

defendant argued that the prosecutor improperly deprived the

jury of material evidence.    In affirming the defendant's

convictions of rape and other charges, the Supreme Judicial

Court held that the evidence showing the presence of old sperm

on the victim, even if admissible, "could not have [been]

considered as new, material, or helpful in any way, much less

potentially 'dispositive' as the defendant claim[ed]."    Id. at
                                                                     13


362.    There, as here, the defendant claimed that the sexual

conduct was consensual and ongoing.    The court reasoned that

"the allegedly exculpatory documents cannot be said to be

material to his defense . . . that he and the victim had sexual

intercourse prior to the night" of the rape.    Ibid.   Similarly,

the e-mail communication in the case before us was neither

material nor prejudicial.

       Conclusion.   We reject the defendant's arguments and affirm

his convictions on the charges of rape and assault and battery.

                                      Judgments affirmed.
