Opinion
15-P-712
05-06-2016
COMMONWEALTH v. WILLIAM D. CAOUETTE.
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
The defendant was convicted after a jury trial of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b). On appeal, he argues (1) that the judge committed reversible error by admitting certain testimony, and (2) that there was insufficient evidence that the shovel as used by the defendant was a dangerous weapon. We affirm.
1. Evidentiary claims. The defendant argues that testimony from the victim and another of the Commonwealth's percipient witnesses, Mary Harrigan, was irrelevant, more prejudicial than probative, and inadmissible hearsay. We review evidentiary rulings for an abuse of discretion and preserved errors for prejudice. Commonwealth v. Torres, 86 Mass. App. Ct. 272, 278-280 (2014). We review unpreserved errors for a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 294 (2002). The testimony at issue describes the reaction of two youths who happened upon the altercation between the victim and the defendant. The victim testified that these bystanders yelled at the defendant "yo, dude" and "chill out." Of these two pieces of testimony, only "yo, dude" was objected to at trial. Harrigan testified that the bystanders "were trying to diffuse what was going on." This testimony was not objected to.
None of this testimony was inadmissible. First, the testimony was relevant because it bore on the central issue of the case: whether it was the defendant who hit the victim with a shovel or the other way around. See Commonwealth v. Mejia, 88 Mass. App. Ct. 227, 233 (2015) (quotation omitted) ("The trial judge has substantial discretion in deciding whether evidence is relevant, and whether the prejudicial implications of such evidence outweigh its probative value"). Harrigan's testimony was relevant to proving that the altercation occurred. Second, it was within the judge's substantial discretion to decide whether the testimony was more probative than prejudicial. Other than identifying the defendant as the aggressor at the time the comments were made, the bystanders' statements do not describe the incident at all. This diminished any prejudicial impact of the testimony. And finally, the testimony was not hearsay. As a greeting and an imperative, respectively, "yo, dude" and "chill out" fail to contain a truth that could be asserted. See Commonwealth v. Purdy, 459 Mass. 442, 452 (2011) ("An out-of-court statement is hearsay where it is offered in evidence to prove the truth of the matter asserted"). But even if hearsay, we would find no prejudice from the admission of "yo, dude" and no substantial risk of a miscarriage of justice from the admission of "chill out."
The defendant's remaining evidentiary claim is that the judge erred in allowing testimony from both the victim and Harrigan that they spoke to police after the altercation. Though the fact that the victim and Harrigan spoke to police was irrelevant to any material issue in the case, and therefore should have been excluded, the testimony was not objected to, and its admission did not create a substantial risk of a miscarriage of justice. The defendant's attempt to argue otherwise by citing cases discussing the first complaint doctrine is unavailing. The first complaint doctrine is applicable only in cases involving sexual assault. See Commonwealth v. King, 445 Mass. 217, 218-219 (2005) ("Under the [first complaint] doctrine, to be applied only in sexual assault cases . . . the recipient of a complainant's first complaint of an alleged sexual assault may testify about the fact of the first complaint and the circumstances surrounding the making of that first complaint" [emphasis supplied]).
2. Insufficiency. The defendant argues that the evidence at trial was insufficient to support the conclusion that the shovel was a dangerous weapon. See G. L. c. 265, § 15A. We decide insufficiency claims by reviewing the evidence in the light most favorable to the Commonwealth and then asking whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) (quotation omitted).
"The term 'dangerous weapon' encompasses two categories: (1) weapons that are dangerous per se, instrumentalities designed and constructed to produce death or great bodily harm, e.g., firearms, daggers, and brass knuckles; and (2) objects that are dangerous as used." Commonwealth v. Lednum, 75 Mass. App. Ct. 722, 724 (2009) (quotation omitted). "The essential question, when[, as here,] an object which is not dangerous per se is alleged to be a dangerous weapon, is whether the object, as used by the defendant, is capable of producing serious bodily harm." Commonwealth v. Strickland, 87 Mass. App. Ct. 46, 60 (2015) (quotation omitted). "Generally it is held to be a question for the fact finder whether the instrument was so used in a particular case." Commonwealth v. Appleby, 380 Mass. 296, 304 (1980). Here, the evidence, in the light most favorable to the Commonwealth, was that an adult man aggressively swung a shovel having a metal edge at the victim's upper body. It requires no leap of imagination to infer that a shovel deployed in this manner could produce serious bodily harm, particularly when aimed at a person's upper body, including the head. See Strickland, supra at 60-61 (finding sufficient evidence that plastic, tubular wand used to strike child on back of hands was dangerous weapon).
Judgment affirmed.
By the Court (Grainger, Wolohojian & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 6, 2016.