Opinion
11-P-1723
05-07-2015
COMMONWEALTH v. ROBBY B. BENNETT.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of assault and battery by means of a dangerous weapon. On appeal from the judgment and the order denying his motion for new trial, he claims that he received ineffective assistance of counsel and the judge erred in admitting in evidence partially redacted medical records. We affirm.
1. Ineffective assistance. a. Adjutant evidence. The defendant claims that counsel failed to use evidence of the victim's "prior bad acts" to show the victim was the initial aggressor in support of the defendant's claim of self-defense. See Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005). We disagree. The first incident occurred in September, 2008, and it involved a verbal argument between the victim and the defendant. The second incident involved a physical assault on the defendant by the victim's friend, Alphee, which the victim is alleged to have instigated. In neither instance was counsel presented with "evidence of specific acts of prior violent conduct that the victim is reasonably alleged to have initiated, to support the defendant's claim of self-defense." Ibid. Even if these incidents qualified as Adjutant evidence, defense counsel testified at the evidentiary hearing on the motion for new trial that his decision not to offer this evidence was based on his concern that it could be rebutted with the defendant's own prior bad acts, including a prior conviction of assault and battery on the same victim. As the motion judge (who was also the trial judge) properly found, this was a sound strategic decision that did not deprive the defendant of an otherwise available, substantial ground of defense. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
b. DNA testing. The defendant also claims that counsel provided ineffective assistance in failing to request that DNA testing be conducted on the weapon at issue, i.e., a two-by-four. We disagree. As the judge properly found, given the length of time that passed between the assault and the recovery of the two-by-four, it was not unreasonable for defense counsel to conclude that the possible absence of the victim's DNA would not aid the defendant's case. Indeed, the theory of the defense was that the defendant hit the victim in self-defense with his fists, not a two-by-four. Instead, defense counsel chose to exploit the victim's fortuitous discovery of the two-by-four on the eve of trial and to question the quality of the police investigation, which had not discovered it earlier. This was a sound tactical choice. See ibid.
The defendant also claims defense counsel provided ineffective assistance in failing to introduce evidence of the injuries the defendant received from Alphee after rebuffing Alphee's sexual advances. However, as the judge found (in accordance with the defendant's testimony), the defendant did not tell defense counsel that Alphee had been making sexual advances, but only that Alphee hit him, which the judge found not to be relevant. Counsel cannot be faulted for not employing a choice of which he was not aware.
2. Medical records. The defendant claims the judge erred by admitting in evidence certain unredacted medical records in violation of G. L. c. 233, § 79. Assuming the claim is properly preserved, we find it lacks merit. In particular, the defendant claims error in the admission of hospital records with notations indicating that the "[patient] reports he was hit on head [with] 2x4," and the "[c]omplaint occurred by blunt trauma, direct blow."
Despite the parties' and the judge's intent to redact all references to the two-by-four, two references to the two-by-four were not redacted. The defendant lodged no objection to these omissions.
The statute establishing the medical records exception to the hearsay rule, G. L. c. 233, § 79, "is not to be interpreted as rendering admissible all the contents of hospital records." Bouchie v. Murray, 376 Mass. 524, 528 (1978). Rather, § 79 makes admissible only those portions of records relating to "treatment and medical history." Commonwealth v. Dwyer, 448 Mass. 122, 136 (2006), quoting from G. L. c. 233, § 79. Conversely, medical records that include statements on the question of liability (or culpability) must be redacted. See Mass. G. Evid. § 803(6)(B) (2014).
Here, the judge carefully redacted the defendant's identity, the nature of the parties' relationship, and any legal conclusion regarding the crime. The manner in which the victim was injured, and the means by which it was accomplished, i.e., the two-by-four, were relevant to the victim's treatment and medical history, and thus admissible under § 79. See Commonwealth v. DiMonte, 427 Mass. 233, 241-242 (1998); Commonwealth v. Dargon, 457 Mass. 387, 396 (2010). There was no error.
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Grainger, Meade & Fecteau, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 7, 2015.