NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-631
COMMONWEALTH
vs.
ADAM T. LICCARDI.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of two counts
of aggravated rape and one count of rape. A panel of this court
affirmed the convictions but vacated a portion of the order
denying a new trial and, as to certain information the
Commonwealth erroneously withheld during discovery, remanded for
the same judge who had presided over the trial and new trial
motion to determine, in the exercise of his discretion, the
effect that omitted evidence would have had on the collective or
individual judgments of twelve lay people. On remand, the judge
denied the defendant's motion for a new trial after a
nonevidentiary hearing, concluding that the undisclosed evidence
"did not influence the jury, or had but very slight effect."
See Commonwealth v. Kostka, 489 Mass. 399, 411 (2022). The
defendant requested reconsideration and the judge held an evidentiary hearing at which the trial prosecutor, her second
chair, the defendant's trial counsel, and a codefendant's trial
counsel testified. Thirty-six exhibits were entered in evidence
and considered by the judge. Applying the proper standard, the
judge again denied the motion. The defendant appeals from the
order denying his motion for a new trial. He also claims error
in the prosecutor's closing argument, asserting that the issue
was not addressed in his first appeal. Finally, the defendant
appeals from the judge's order denying his motions for
postconviction discovery. We affirm.
Background. We summarize the facts presented to the jury,
reserving additional facts for later discussion. In the fall of
2012, the victim began her freshman year at the University of
Massachusetts (UMass). Sometime between 11 P.M. and midnight on
a Friday in October, the defendant and his three codefendants
arrived uninvited at the victim's dormitory. Although none of
the men attended UMass, security permitted them to enter the
building. The victim knew the four men but had not invited
them, and her friends had told them not to visit that evening.
The four men entered the victim's room and spent several hours
there consuming alcohol and marijuana that they had brought with
them. The victim became so intoxicated that she could not sit
up or walk without assistance. Eventually, the victim's friends
carried her to bed. When they left to sleep in their own room,
2 the victim was unconscious or asleep. Two of the men, including
the defendant, remained in the victim's room and the other two
returned a short time later.
The four men took turns sexually assaulting the victim in
her room while she passed in and out of consciousness. 1 After
three of the men left, the victim again passed out. She woke up
to the defendant penetrating her vagina with his penis.
In the morning, the victim woke up in severe pain and with
internal bleeding. She told a friend that she was sexually
assaulted by all four men. Later that day, the victim exchanged
text messages with one of the codefendants, Emmanuel Bile. In
one text message, the victim demanded $500 from the four men,
"[o]r else I'm taking you to court." 2 She also wrote, "Thank you
all for raping me while I was passed out and couldn't move."
The following day, the victim reported the rapes to police and
underwent a physical examination by a sexual assault nurse
examiner at a nearby hospital.
During the police investigation, the defendant initially
denied sexual contact with the victim. He told a detective that
1 Separate juries convicted each codefendant of aggravated rape.
2 The victim testified that she demanded the money because she did not want anyone, particularly her parents, to know about the rapes, but she wanted to be able to pay for her resulting medical expenses.
3 he kissed the victim at the same time his codefendant Justin
King had consensual vaginal sex with her. After the defendant
was informed that the victim had undergone a sexual assault
examination, he admitted to the detective that all four men
penetrated the victim's body with their penises, sometimes
simultaneously. The defendant acknowledged that his penis
penetrated the victim's mouth and vagina and stated that "it
[w]as a group thing." He admitted that the victim cried while
he was penetrating her vagina.
The defense at trial was that the victim was raped by Bile,
but any sex acts with the defendant were consensual and the
victim lied about being raped by all four men because she wanted
money.
Discussion. 1. Motion for a new trial. We review a
judge's decision on a motion for new trial for error of law or
abuse of discretion. See Commonwealth v. Tavares, 491 Mass.
362, 365 (2023). Where, as here, the motion judge was also the
trial judge, "we give special deference to the judge's findings
of fact and the ultimate decision on the motion" (quotation and
citation omitted). Commonwealth v. Corey, 493 Mass. 674, 684
(2024).
a. Egregiousness of the prosecutor's failure to disclose
the presentment letter. "Due process of law requires that the
government disclose to a criminal defendant favorable evidence
4 in its possession that could materially aid the defense against
the pending charges." Commonwealth v. Tucceri, 412 Mass. 401,
404-405 (1992). A panel of this court concluded that the
Commonwealth erroneously failed to disclose that, nearly two
years after the rapes, the victim's attorney sent a presentment
letter to the Attorney General's office as notice of the
victim's intent to file a lawsuit against UMass and other
government entities for damages resulting from the rapes. 3
The defendant first contends that the discovery violation
was so egregious that he should not have been required to
demonstrate prejudice. 4 "[P]rosecutorial misconduct that is
egregious, deliberate, and intentional, or that results in a
violation of constitutional rights may give rise to presumptive
prejudice" (citation omitted). Committee for Pub. Counsel
Servs. v. Attorney Gen., 480 Mass. 700, 724 (2018). This
"theory should be narrowly applied, and confined to situations
3 Under G. L. c. 258, § 4, a potential plaintiff in a civil lawsuit against a public employer must make presentment of their claim to the Attorney General's office within two years after the date on which the cause of action arose, or else they are precluded from recovering any damages awarded in a trial
4 The defendant raised this argument for the first time in support of his motion for reconsideration of the order denying his motion for a new trial. Although the Commonwealth does not assert that the argument is waived, we note that a motion for reconsideration is not an "appropriate place to raise new arguments inspired by a loss before the motion judge in the first instance" (citation omitted). Commonwealth v. Teixeira- Furtado, 474 Mass. 1009, 1012 n.3 (2016).
5 where the misconduct has cast such doubt . . . as to poison the
entire investigation, and a stronger deterrent is warranted to
prevent repetition of such misconduct" (quotations and citation
omitted). Id.
The prosecutor's failure to disclose her knowledge of the
presentment letter was error. However, the judge credited the
prosecutor's motion hearing testimony that she did not connect
the defendant's discovery request to her conversation with the
victim's attorney about presentment. He found that the trial
prosecutor "showed through her conduct that she is a competent
and ethical prosecutor." Further, the judge determined that the
Commonwealth's failure to provide the presentment letter was
unintentional. Given the ample evidence supporting the judge's
findings, and the defendant's failure to present evidence that
the prosecutor's actions were deliberate or intentional, we
decline to disturb those findings. See Commonwealth v. Grant,
78 Mass. App. Ct. 450, 454 (2010) (judge's subsidiary findings
of facts not to be disturbed unless shown to be result of clear
abuse of discretion or clear error). Thus, we discern no abuse
of discretion in the judge's conclusion that the discovery
violation was not egregious, deliberate, or intentional. See
Committee for Pub. Counsel Servs., 480 Mass. at 724. The
defendant was not relieved from his burden of demonstrating
prejudice resulting from the nondisclosure.
6 b. Prejudice to the defendant from nondisclosure of the
presentment letter. The defendant next argues that he
demonstrated prejudice from the nondisclosure of the presentment
letter. Absent prosecutorial misconduct, to prevail on his
motion for a new trial, the defendant must have shown that a
"substantial basis exists for claiming prejudice from the
nondisclosure" of the specifically requested evidence.
Commonwealth v. Bateman, 492 Mass. 404, 419 (2023), quoting
Commonwealth v. Lykus, 451 Mass. 310, 326 (2008). "The verdict
and judgment must be set aside unless the reviewing court's
'conviction is sure that the error did not influence the jury,
or had but very slight effect.'" Bateman, supra, quoting
Commonwealth v. Ellison, 376 Mass. 1, 24-25 (1978).
The defendant asserts that trial counsel could have used
the presentment letter to demonstrate that the victim had a
financial motive to lie. In fact, trial counsel vigorously
pursued financial motive impeachment, to no avail. Among other
attempts to undermine the victim's credibility, trial counsel
cross-examined the victim about her demand for money from the
defendants. The defendant also introduced the text message from
the victim demanding $500. Defense counsel closed, in part, by
arguing that the victim's allegations were "about money. She
wanted $500. She made a demand for $500." As the judge stated,
"[a]t trial, zealous and experienced trial counsel for the
7 defendant, extensively and vigorously, cross-examined the victim
. . . on her demand for money." There is no prejudice where
undisclosed evidence "would have served only as weak and
cumulative impeachment evidence." Commonwealth v. Watkins, 473
Mass. 222, 232 (2015).
The judge fully considered the separate impact the
presentment letter might have had on the jury and concluded it
would not have materially aided the defense. As the person who
saw the evidence and the jury, the judge was in the best
position to make this assessment and we defer to his view.
Tucceri, 412 Mass. at 409. We agree with the judge that the
letter was of limited usefulness, because the defendant would
have had to argue to the jury that the victim falsely accused
all four men of rape to reap rewards from a civil lawsuit
against UMass that she still had not filed two years after the
fact -- even though such a suit would have required her to meet
only a civil standard of proof and would not be dependent on any
of her assailants having been criminally convicted. Moreover,
the defendant did not dispute that the victim was raped, only
that his own acts were consensual. 5 As the judge put it, "[o]n
this record, evidence that a college student who was raped in
5 The defendant testified that he stood and watched as Bile, who was ultimately convicted of two counts of aggravated rape, raped the victim.
8 her dorm room intends to file a tort lawsuit against her school
does not undercut the strong evidence that she was raped." See
Commonwealth v. Drayton, 479 Mass. 479, 490 (2018) ("evidence
that tends merely to impeach the credibility of a witness will
not ordinarily be the basis of a new trial" [citation omitted]).
In addition, the judge considered the value of the
presentment letter in the overall context of the trial evidence.
He found that "the jury heard . . . overwhelming evidence of the
[victim's] inability to have consented to sex." This amply
supports his decision not to grant the defendant a new trial.
See Drayton, 479 Mass. at 490 (order denying motion for new
trial on basis of newly discovered evidence affirmed where case
against defendant overwhelming); Lykus, 451 Mass. at 330
(nondisclosure does not warrant new trial where case against
defendant overwhelming). Indeed, in addition to the victim's
testimony, two witnesses whom the judge concluded "ha[d] not
been shown to have had any financial or other incentive to lie"
testified that when they left the victim with the defendant, she
was so intoxicated that she could not walk without assistance
and appeared to be unconscious. 6 The judge also considered the
defendant's contention that the presentment letter might have
6 The judge properly rejected the defendant's speculation that the witnesses might also have had financial motives rooted in the UMass lawsuit.
9 led to information that would have bolstered trial counsel's
impeachment of the victim by showing that her financial motive
"snowballed" from the $500 demand to a request for victim
compensation and assistance division (VCAD) funds to,
ultimately, a lawsuit against UMass. According to the
defendant, the victim may have maintained her ruse for years in
order to receive VCAD funds "for services that were unrelated to
the alleged rapes." Correctly applying the prejudice standard
applicable when evidence not specifically requested has been
erroneously withheld, the judge concluded that there was not a
substantial risk that evidence relating to the VCAD fund request
would have impacted the jury's decisions. He reasoned that such
evidence likely would have exposed the jury to "the financial
burdens [the victim] incurred as a result of the rapes,
including the cost of therapy," and that in any event if the
victim did receive VCAD funds, it could only be because VCAD had
concluded she "was, in fact, the victim of a crime and that she
suffered personal physical or psychological injury as a direct
result." Moreover, as discussed above, the jury did hear other
evidence that, according to the defendant, showed that the
victim fabricated the rapes to get money.
The defendant further contends that if trial counsel had
possessed the presentment letter, he might have changed his
trial strategy. Trial counsel's 2020 affidavit stated that with
10 that letter he "may have shifted" the defense more toward
undermining the victim's credibility, "may have advised" the
defendant not to testify, 7 and "would have considered" not
introducing the victim's text message demanding $500 in
evidence. 8 The defendant now argues that the judge abused his
discretion by failing to consider the impact these hypothetical
changes in trial counsel's strategy might have had on the jury
when taken together with supposed improprieties in the
prosecutor's closing argument. We are aware of no legal
authority to support this proposition, nor did the defendant
cite any in the six lines he dedicated to it in his brief.
Instead, the defendant relies on three cases he provided in a
post oral argument letter: Commonwealth v. Pope, 489 Mass. 790
(2022); Commonwealth v. Ellis, 475 Mass. 459 (2016); and
7 It is noteworthy that by the time the defendant testified, the jury already had heard evidence of the self-incriminating and inconsistent statements he made to police about his sexual acts.
8 We note the contrast between this noncommittal language and counsel's statement in the same affidavit that, if he had the presentment letter at the time of trial, he "would have" used the letter itself in specific ways. At the 2022 hearing on the motion for reconsideration, counsel testified that he "most likely" would have modified his trial theory, but he explained this by stating that the presentment letter itself would have provided "more meat on the bone."
11 Commonwealth v. Daniels, 445 Mass. 392 (2005). 9 These cases are
readily distinguishable from the present case.
In Pope, 489 Mass. at 805, withheld documents contained
inconsistent statements from a witness who was the "linchpin of
the Commonwealth's entire case." The documents would have
supported the defendant's strategic focus on the witness's
credibility and cast doubt on the police investigation. Id. at
801, 804-805. The court concluded it was "likely" counsel would
have used the documents to impeach the key witness, id. at 803,
and "quite likely" counsel would have used them to present a
"Bowden defense." Id. at 804, citing Commonwealth v. Bowden,
379 Mass. 472, 486 (1980).
In Ellis, 475 Mass. at 465-466, evidence discovered after
the defendant's murder conviction showed that the victim
participated in crimes of police corruption with several Boston
police detectives who investigated the victim's homicide. The
court concluded that, with this evidence, "a reasonable jury
likely would have had diminished confidence in the integrity and
thoroughness of the police investigation in general." Id. at
479. Although the court made a passing reference to what else
counsel could have done differently at trial had he known of the
relationship between the victim and the detectives, its analysis
See Mass. R. A. P. 16, as appearing in 481 Mass. 1628 9
(2019).
12 was fundamentally an evaluation of the impact the newly
discovered evidence would have had on the jury. Id. at 478-479.
Finally, in Daniels, 445 Mass. at 407, an eyewitness
identification of the defendant "was the peg on which the
defendant's conviction hung or fell." The defendant appealed
from a judge's order denying a request for posttrial discovery
based on newly discovered information that concerned the
credibility of the identification. Id. at 392, 400 & n.21. The
court explained that the prejudice standard applicable to a new
trial motion based on the erroneous withholding of specifically
requested evidence is due in part to the impact of such
withholding on defense counsel's strategic decisions. Id. at
404-405. However, the court had no difficulty agreeing that on
the record before it, the defendant's new trial motion had been
properly denied, i.e., the standard had not been met. Id. The
court's principal focus was instead on the standard for
posttrial discovery based on newly discovered evidence, which
requires in pertinent part that a defendant "make specific, not
speculative or conclusory, allegations that the newly discovered
evidence would have materially aid[ed] the defense" (quotation
and citation omitted; emphasis added). Id. at 407.
In each of these cases, the undisclosed evidence related to
a material aspect of a critical witness's testimony in an
otherwise weak case. Here, in contrast, the undisclosed
13 evidence was only "weak and cumulative impeachment evidence."
Watkins, 473 Mass. at 232. As the judge found, "[t]he
presentment letter did not corroborate the defendant's story,
did not cast doubt on any material element of the prosecution's
version of events, and did not diminish the credibility of key
prosecution witnesses." In addition, to the extent Pope, Ellis,
and Daniels touch on trial tactics, they do not suggest that a
defendant's speculative claim in hindsight regarding the impact
of undisclosed evidence on a potentially different trial
strategy is enough to establish "a substantial basis . . . for
claiming prejudice from the nondisclosure" (citation omitted).
Bateman, 492 Mass. at 419.
While we acknowledge the possibility that in appropriate
circumstances a defendant may be able to establish prejudice
based on a properly supported claim of impact on trial strategy,
this is not that case. Here, the defendant relied on the 2020
affidavit of trial counsel filed in support of his motion for
reconsideration, which stated only that counsel "would have
considered" strategic changes, "may have advised" the defendant
not to testify, "may have shifted" the defense, and "may have
relied more heavily" on a different theme if he had the
presentment letter. This speculative language falls well short
of what is required for the defendant to establish a substantial
14 basis that undisclosed evidence caused prejudice. 10 Cf.
Commonwealth v. Clarke, 460 Mass. 30, 47 (2011) (where defendant
sought to vacate plea on basis that he "would not" have pleaded
guilty but for counsel's errors, "[a]t a minimum . . . the
defendant must aver that to be the case"). A new trial is not
warranted based on assertions that it may, possibly, be
conducted differently than the initial trial.
We thus discern no error or abuse of discretion in the
judge's fully considered conclusion that the presentment letter
"did not influence the jury or had but very slight effect." See
2. Closing argument. The defendant challenges the
prosecutor's closing argument on five grounds. Because the
defendant objected to the first two challenged remarks, "we
evaluate whether the defendant was prejudiced [by any improper
remarks], considering the remarks in the context of the entire
argument, the trial testimony, and the judge's instructions to
the jury." Commonwealth v. Beaudry, 445 Mass. 577, 584 (2005).
First, the defendant asserts that the prosecutor improperly
vouched for the victim's credibility when she stated that the
10 Although the judge did not specifically address the credibility of these assertions, it is notable that trial counsel did not make them in his 2017 affidavit, which was the basis for the initial new trial motion as well as the motion on remand.
15 victim "ha[d] no reason to lie." 11 Although a prosecutor may not
argue that a victim is credible simply because she appeared to
testify in court, Beaudry, 445 Mass. at 587, "a prosecutor may
marshal the evidence in closing argument to urge the jury to
believe the government witnesses and disbelieve those testifying
for the defendant" (quotation and citation omitted).
Commonwealth v. Polk, 462 Mass. 23, 39 (2012). Here, the
prosecutor properly argued from the evidence that the victim had
no motive and little time to formulate a lie to her friend, the
morning after, that all four men had raped her. The prosecutor
did not exceed the bounds of permissible advocacy by asserting
that the victim's version of events was more plausible than the
defendant's version.
The defendant's second claim of error is that the
prosecutor misstated the evidence by arguing that the defendant
had testified that the victim was sober at the time of the
rapes. "In closing argument, [p]rosecutors are entitled to
marshal the evidence and suggest inferences that the jury can
draw from it" (quotation and citation omitted). Commonwealth v.
11The Supreme Judicial Court has found nothing improper in a prosecutor's argument that witnesses had no motive to lie, where the defendant's closing had attacked those witnesses' credibility. See Commonwealth v. Smith, 450 Mass. 395, 408, cert. denied, 555 U.S. 893 (2008); Commonwealth v. Helberg, 73 Mass. App. Ct. 175, 179 & n.5 (2008); Mass. G. Evid. § 1113(b)(2) & note (2024).
16 Parker, 481 Mass. 69, 74 (2018). Here, although the defendant
did not testify in so many words that the victim was sober, he
stated that the victim was awake, had no difficulty walking, did
not slur her speech, and did not appear unusual in any way.
Where ample evidence supported the prosecution's theory that the
victim was too intoxicated to consent to sexual intercourse, the
prosecutor was entitled to marshal that evidence to rebut the
defendant's testimony. See Commonwealth v. Barbosa, 477 Mass.
658, 670-671 (2017) ("[T]he prosecutor's remarks were
characteristic of enthusiastic rhetoric, strong advocacy, and
excusable hyperbole" [quotation and citation omitted]).
Because the defendant did not object to the remaining three
challenged remarks, we review any error for a substantial risk
of a miscarriage of justice. See Commonwealth v. Shruhan, 89
Mass. App. Ct. 320, 326 (2016). "The defendant has a
considerable burden to demonstrate that an alleged error, or
combination of errors, by the prosecutor in the closing
argument, caused a substantial risk of a miscarriage of
justice." Id.
The defendant asserts that the prosecutor misstated
evidence when she argued that the defendant's testimony -- that
his codefendant, Caleb Womack, did not have sexual contact with
the victim -- was contradicted by the fact that Womack's
deoxyribonucleic acid (DNA) was found on the comforter of the
17 bed. The defendant testified that Womack sat on the bed at one
point. The Commonwealth's expert testified that the DNA found
on the comforter was not necessarily from sperm cells. Still,
the prosecutor's statement that the DNA was deposited during
Womack's rapes of the victim was a reasonable inference from the
evidence and thus fair argument. See Commonwealth v. Roy, 464
Mass. 818, 824 (2013) (inferences need only be reasonable and
possible, not necessary or inescapable).
The defendant further contends that the prosecutor
misstated evidence by saying that the defendant did not want to
pay any portion of the $500 because he "took care of the
problem" and "chilled her . . . out." The prosecutor
extrapolated from one of Bile's text messages to King, where he
stated that the defendant did not want to pay the victim. The
defendant does not dispute that the text message "represented
[that the defendant] was not willing to pay." Additionally,
based on the defendant's testimony, the defendant argued in
closing that he comforted the victim after the rapes. The
prosecutor merely inferred that the defendant was unwilling to
pay because he believed that he comforted the victim after the
rapes. Again, this statement essentially asked the jury to draw
a fair inference from the evidence. See Roy, 464 Mass. at 824.
Finally, the defendant contends that the prosecutor
overstepped by arguing that the defendant did not want his
18 statement to police recorded so that there would be no evidence
that he altered his version of events. The defendant refused to
be recorded, his testimony contradicted the interviewing
detective's version of the statement, and the accuracy of the
detective's version was challenged on cross-examination and in
closing because he did not have a recording to corroborate his
version of the statement. The defendant also directly
challenged the detective's version of the unrecorded interview.
Once again, the prosecutor's remarks were a fair argument,
asking the jury to draw a reasonable inference from the
evidence. There was no error, and no substantial risk of a
miscarriage of justice.
3. Denial of discovery and rule 17 requests. The
defendant further appeals from the order denying his motions for
postconviction discovery pursuant to Mass. R. Crim. P.
30 (c) (4), as appearing in 435 Mass. 1501 (2001). We uphold
discovery rulings, "unless the appellant can demonstrate an
abuse of discretion that resulted in prejudicial error"
(citation omitted). Commonwealth v. Torres, 479 Mass. 641, 647
(2018). "Discovery in the context of a new trial motion under
[rule 30 (c) (4)] is not a matter of right." Commonwealth v.
Arriaga, 438 Mass. 556, 569 (2003). "A defendant cannot use a
motion for postconviction discovery to engage in a fishing
expedition" (quotation omitted). Commonwealth v. Ware, 471
19 Mass. 85, 94 (2015). Rather, the defendant "must make a
sufficient showing that the discovery is reasonably likely to
uncover evidence that might warrant granting a new trial"
(citation omitted). Id.
Here, the defendant's postconviction discovery motions
sought the prosecutor's notes from two meetings with the victim,
the victim's counseling and medical records, the victim's health
insurance records, and records from the law firm representing
the victim in her civil suit against UMass. The defendant
asserts that these records could reveal impeachment evidence and
evidence of prosecutorial misconduct. Because he offers only
speculation regarding what he hopes to find in such records, the
defendant "has not demonstrated sufficiently that [the sought-
after] evidence actually existed." Commonwealth v. Camacho, 472
Mass. 587, 600 (2015). Further, the defendant made no showing
that additional impeachment evidence would have "materially
benefited the defense and would have factored into the jury's
20 deliberations." Id. at 598. Thus, the judge properly denied
the defendant's motions for postconviction discovery.
Orders denying motions for a new trial and for postconviction discovery affirmed.
By the Court (Neyman, Sacks & Brennan, JJ. 12),
Clerk
Entered: September 30, 2024.
12 The panelists are listed in order of seniority.