Commonwealth v. Jose L. Gomes.

• Court: Massachusetts Appeals Court
• Decided: June 20, 2025
• Docket: 23-P-1476
• Status: Unpublished

Opinion

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-1476

COMMONWEALTH

vs.

JOSE L. GOMES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Jose Gomes, appeals from his conviction of

assault and battery causing serious bodily injury. The

defendant was charged after he bit off part of the victim's ear

during a fight. At trial, the defendant called a percipient

witness who testified that the victim punched the defendant

first. On appeal, the defendant maintains that the prosecutor's

cross-examination of this witness impermissibly shifted the

burden of proof, creating "urgent circumstances" that required a

mistrial. We affirm.

"We review the denial of a motion for a mistrial for abuse

of discretion." Commonwealth v. Martinez, 476 Mass. 186, 197

(2017), citing Commonwealth v. Lao, 460 Mass. 12, 19 (2011). "[A] judge's discretionary decision constitutes an abuse of

discretion where we conclude the judge made a clear error of

judgment in weighing the factors relevant to the decision . . .

such that the decision falls outside the range of reasonable

alternatives" (quotation and citation omitted). L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014). "[A] trial judge

is in the best position to determine whether a mistrial, an

extreme measure available to a trial judge to address error, is

necessary" (citation omitted). Commonwealth v. Santana, 477

Mass. 610, 626 (2017).

"As a general rule, a 'prosecutor . . . cannot make

statements that shift the burden of proof from the Commonwealth

to the defendant.'" Commonwealth v. Johnson, 463 Mass. 95, 112

(2012), quoting Commonwealth v. Amirault, 404 Mass. 221, 240

(1989). "Such burden shifting typically arises where a

prosecutor . . . calls the jury's attention to the defendant's

failure to call a witness or witnesses, or . . . to contradict

testimony" (quotations and citations omitted). Johnson, supra.

During cross-examination, the prosecutor sought to impeach

the defendant's witness by eliciting testimony that the witness

had not come forward with potentially exculpatory information

before the first day of trial. After establishing that the

witness had not told anyone earlier about the victim's striking

2 the defendant, the prosecutor asked the witness whether "anyone"

had said, before the first day of trial, that the victim hit the

defendant.

Before the witness could respond, the judge called the

parties to sidebar and told the prosecutor that the question

suggested that the defendant "should have said something." The

judge sustained the defendant's objection and warned the

prosecutor to be careful with her line of questioning.

The prosecutor next elicited testimony that the witness did

not report the exculpatory information sooner because he "didn't

want to get involved." She then asked the witness how he knew

when to come to court. The judge cut off the witness's answer,

cautioned the prosecutor again at sidebar, and limited the

response to "the defendant asked [the witness] to come." The

defense then moved for a mistrial, which the judge denied.1

The prosecutor's questions were proper cross-examination.

The challenged questions appropriately probed the witness's

credibility in a situation where he could reasonably have been

expected to come forward sooner with any exculpatory evidence.

See Commonwealth v. Hart, 455 Mass. 230, 238 (2009); cf.

1 The defendant did not renew his motion for a mistrial, and we consider only the evidence that was before the judge at the time his motion was made. See Commonwealth v. Torres, 453 Mass. 722, 736 (2009).

3 Commonwealth v. Ivy, 55 Mass. App. Ct. 851, 859 (2002) (cross-

examination of defendant about failure to produce exculpatory

evidence did not shift burden of proof). The judge's careful

rulings on objections excluded questions that suggested the

"defendant has an affirmative duty to bring forth evidence of

his innocence, thereby lessening the Commonwealth's burden to

prove every element of a crime" (citation omitted). Johnson,

463 Mass. at 112. The jury are presumed to follow the judge's

instructions and to disregard questions to which an objection

was sustained. See Commonwealth v. Watkins, 425 Mass. 830, 840

(1997), citing Commonwealth v. Albert, 391 Mass. 853, 859

(1984). We discern no error.

Judgment affirmed.

By the Court (Sacks, Hershfang & Tan, JJ.2),

Clerk

Entered: June 20, 2025.

2 The panelists are listed in order of seniority.