MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial, the defendant, Deolindo Lobo, was convicted of larceny under $1,200. See G. L. c. 266, § 30 (1).
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In this consolidated appeal, the defendant asserts that (1) the judge abused his discretion in denying a motion for new trial where photographs admitted in evidence over objection were not disclosed to the defendant until after the trial had begun; and (2) the evidence of larceny was insufficient. We affirm.
Background. The motion judge, who was also the trial judge, heard the following evidence at trial and made the findings noted below after hearing the motion for new trial. Patrolman Eric Davoll was dispatched to a Catholic church and school in response to reports of a larceny in progress. Davoll was familiar with the area and was aware that there were donation bins on site. The dispatcher provided a description of a car driving away from the area, and Davoll stopped a car that matched the description. The defendant, a passenger, and several bags stuffed with clothing were in the car. Davoll ordered the defendant and passenger out of the car and asked the defendant about the bags of clothing. The defendant told the officer that he worked for a cleaning company, that he was given the clothing after cleaning out a house, and that he planned to donate the clothes. Davoll told the defendant why he had been stopped, and the defendant admitted that he “did steal three bags out of the container and ․ was willing to put them back.” Davoll asked if Lobo could identify the bags that he had removed and he did so. Ultimately, the police recovered seventy-five bags of clothing from the car.
Before trial, counsel jointly submitted a pretrial conference report certifying that discovery was complete. Within moments of beginning the direct examination of the officer, however, the prosecutor sought to introduce photographs of the donation bins and bags of clothing that had not been disclosed to the defense. The defendant objected on that ground, and the prosecutor stated that it was her understanding, based on a check mark in the file made by a previous prosecutor, that the photographs had been produced. The judge admitted the photos over the defendants objection, stating “Ill give them whatever probative value I decide that theyre entitled to receive.” The judge found the defendant guilty of larceny, acquitted him of the other charges, and sentenced him to a year of probation.
The defendant then filed a motion for new trial claiming that he had been prejudiced by the failure to disclose the photographs in advance of trial. After a nonevidentiary hearing, in which the prosecutor made representations about when and how she received the photos, the judge found (contrary to his previous understanding) that the prosecutor received the photos for the first time on the morning of trial, that the photographs should have been turned over before the trial began, that the photographs had not been provided to the defense in advance of trial, and that the nondisclosure was “basically [an] unintentional ambush.” The judge went on to say that he needed to assess the egregiousness of the discovery violation, and whether a change in defense strategy may have changed his mind or that of another judge. The judge determined, and the defendant agreed, that the Commonwealths nondisclosure was not deliberate or in bad faith. Later that day, the motion was denied.
Discussion. 1. Discovery violation. “In reviewing the denial of the defendants motion for a new trial, we examine the motion judges conclusion only to determine whether there has been a significant error of law or other abuse of discretion” (quotation and citation omitted). Commonwealth v. Stote, 433 Mass. 19, 22 (2000). The Commonwealth concedes the discovery violation. See Mass. R. Crim. P. 14 (a) (1) (A) (vii), as amended, 444 Mass. 1501 (2005). “When the ground for a motion for a new trial involves late disclosure by the prosecution, without any showing of bad faith on its part ․ a defendant is required to show material prejudice from the [delay in] disclosure before a new trial can be considered” (quotation and citation omitted). Stote, supra. See Commonwealth v. Chambers, 93 Mass. App. Ct. 806, 818 (2018). “In measuring prejudice, it is the consequences of the delay that matter, not the likely impact of the nondisclosed evidence, and we ask whether the prosecutions disclosure was sufficiently timely to allow the defendant “to make effective use of the evidence in preparing and presenting his case.”” Commonwealth v. Nolin, 448 Mass. 207, 224 (2007), quoting Stote, supra at 23, quoting Commonwealth v. Wilson, 381 Mass 90, 114 (1980). Any such claims must be based on a “reasoned argument,” not mere speculation (citation omitted). Commonwealth v. Janvrin, 44 Mass. App. Ct. 917, 919 (1998).
The defendant has not met his burden to establish prejudice. First, he contends that he would have objected to the officers testimony regarding the larceny in progress had he known the photographs existed. However, if the defendant believed the officers testimony regarding the larceny in progress should have been excluded, he should have moved to strike that portion of the officers testimony once the photographs were offered. See Commonwealth v. Grady, 474 Mass. 715, 719-720 (2016) (where question is proper and answer is not, motion to strike is required). This case is thus distinguishable from those in which the defendant claims the nondisclosure impacted his ability to present expert testimony or other evidence dependent upon pretrial preparation. See, e.g., Commonwealth v. Rodriguez-Nieves, 487 Mass. 171, 179 (2021). Cf. Commonwealth v. St. Germain, 381 Mass. 256, 263-264 (1980) (mistrial as sanction for discovery violation appropriate if “given a timely disclosure, the defense would have been able to prepare and present its case in such a manner as to create a reasonable doubt that would not otherwise have existed”); Chambers, 93 Mass. App. Ct. at 817.
The defendant also claims that he would have changed his defense strategy. He did not seek a continuance to do so, cf. Nolin, 448 Mass. at 224; Chambers, 93 Mass. App. Ct. at 817-818, and on appeal, the new strategy is essentially unspecified, and thus conjectural. See Commonwealth v. Fossa, 40 Mass. App. Ct. 563, 569-570 (1996). Given that this was a bench trial, there may well have been strategic reasons to go forward knowing that the fact finder was aware of the non-production. In fact, the judge found the defendant not guilty of the depository count, thus ameliorating any claim of prejudice. At the hearing on the motion for a new trial, the judge stated that he gave scant weight to the photos and instead relied on the officers testimony. Under these circumstances, there was little or no prejudice to the defendant from the admission of the photographs.
Finally, the assertion that the Commonwealth would have entertained a plea if he sought to pursue one is purely speculative. See Commonwealth v. Cundriff, 382 Mass. 137, 149-150 (1980). The judge did not abuse his discretion in denying the motion for a new trial.
2. Sufficiency. “In reviewing the denial of motions for directed verdicts in criminal cases ․ we must consider and determine whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient ․ to permit the [fact finder] to infer the existence of the essential elements of the crime charged” (quotation and citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
“To prove larceny, the Commonwealth must show that (1) the defendant took and carried away property; (2) the property was owned or possessed by someone other than the defendant; and (3) the defendant did so with the intent to deprive that person of the property permanently.” Commonwealth v. Rodriguez, 476 Mass. 367, 373 (2017). While the defendant concedes that he admitted to stealing “three bags out of the container,” he claims this evidence alone was insufficient because the Commonwealth had the burden to prove that the bags the defendant took came from the charity bin. However, the defendants admission was sufficient to prove that the “property was owned or possessed by someone other than the defendant.” Id.
Judgment affirmed.
Order denying motion for new trial affirmed.
FOOTNOTES
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. He was acquitted of breaking into a depository and receiving stolen property. See G. L. c. 266, § 16; G. L. c. 266, § 60.