Opinion
13-P-969
11-06-2014
COMMONWEALTH v. MICHAEL CATES.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of assault and battery causing serious bodily injury in violation of G. L. c. 265, § 13A(b)(i). On appeal, he claims there was insufficient evidence that the victim suffered a serious bodily injury, the judge improperly permitted the Commonwealth to elicit evidence of gang affiliation, and ineffective assistance of counsel. We affirm.
1. Sufficiency of the evidence. The defendant claims that where neither the victim, nor his treating doctors, nor a medical expert to interpret the victim's medical records, testified, there was insufficient evidence for the jury to conclude that the victim suffered a serious bodily injury. We disagree. The victim's medical records stated that his right eye had been swollen shut for three days prior to his surgery for a "right orbital floor blowout fracture." To correct or treat the eye injury, a titanium reinforced implant was used in the victim's eye socket, which was affixed to the "infraorbital rim" with self-drilling titanium screws. From this evidence, the jury were entitled to rationally conclude that the victim suffered a serious bodily injury due to the "impairment of a bodily function." G. L. c. 265, § 13A(c), inserted by St. 2002, c. 35, § 1. See Commonwealth v. Baro, 73 Mass. App. Ct. 218, 219-220 (2008) (serious bodily injury where victim suffered "orbital blow out fracture" and temporary loss of sight in one eye).
The defendant's reliance on Commonwealth v. Scott, 464 Mass. 355 (2013), is misplaced. In Scott, the Supreme Judicial Court held that medical records, without expert testimony explaining the import of the records, were insufficient to support the defendant's conviction of assault and battery causing serious bodily injury. Id. at 363-364. Specifically, the victim's medical record indicated that she suffered a "grade II hepatic laceration" to her liver. Id. at 362. This type of injury fell within the "impairment of an organ" category of the statute. Id. at 357. However, the medical records did not indicate how the injury affected the functioning of the victim's liver. Id. at 362.
Here, the victim's injury falls in the category of "impairment of a bodily function," and the medical records indicate that his right eye was swollen shut for days after the incident, which prevented or impaired the bodily function of sight from that eye. G. L. c. 265, § 13A(c). The impairment need not be permanent. Commonwealth v. Marinho, 464 Mass. 115, 118 (2013). Finally, unlike the victim in Scott, the victim here required surgery to repair his fractured eye socket. When these facts are combined, and viewed in the light most favorable to the Commonwealth, the jury were entitled to conclude that the victim suffered a serious bodily injury.
2. Gang affiliation. Prior to trial, the codefendant, Errin Crawford, moved in limine to exclude any testimony or reference to the codefendant's alleged membership in the Magnolia Street gang. There is no indication in the record that the defendant joined the motion. The judge took no action on the motion because the prosecutor stated that he did not intend to offer such evidence. The defendant now claims error in the prosecutor's references to gangs in his cross-examination of the defendant and in his closing argument. We disagree.
At the pretrial hearing on motions in limine, the judge asked the defendant's counsel if he had a chance to review the codefendant's motion, and counsel told the judge that he was reading it. Thus, it appears that it was not a joint motion, and the defendant did not ask to join the motion.
As an initial matter, the motion in limine was neither brought nor joined by the defendant, and thus, he cannot claim any error related to it. Even if we were to assume he did join the motion, or that he became the beneficiary of the prosecutor's indication that he did not intend to refer to his codefendant's alleged affiliation in the Magnolia Street gang, there was no error.
The defendant's brief fails to note these facts, and instead claims that he submitted the motion in limine at issue.
The prosecutor did not introduce or refer to gang affiliation in the Commonwealth's case-in-chief. During his cross-examination of the defendant, the prosecutor asked if the victim and the victim's friend, Paulino Miranda, were in a gang. The defendant said it was possible, but he was not sure. When the defendant was asked if he knew "the different groups that are out in the streets," the judge sustained the defendant's objection. Thus, all that the jury learned was that the victim and Miranda were possibly in a gang, not the defendant or the codefendant. Also, because the question regarding the defendant's knowledge of various street "groups" was sustained, the jury were not provided with any evidence that would implicate even the most generous reading of what the prosecutor agreed not to introduce.
For the first time on appeal, the defendant also claims that the prosecutor improperly argued these facts in his closing argument in support of a motive for the assault. There was no objection. As the evidence was properly admitted, the prosecutor was free to argue its import in support of the Commonwealth's case. There was no error, let alone any risk of a miscarriage of justice. In this posture, there is likewise no merit to the defendant's claim that counsel was ineffective for not objecting to the prosecutor's closing argument. See Commonwealth v. Curtis, 417 Mass. 619, 624-625 n.4 (1994); Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 100 (2010).
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3. Ineffective assistance. The defendant also claims for the first time on appeal that counsel was ineffective for failing to object to the admission of five photographs that depicted blood on the walls, door, and floor of the crime scene. At the outset, we note that because the defendant did not file a motion for new trial, we are without any findings by the judge. We are similarly without any indication from trial counsel as to whether his decision to not object was a strategic choice.
However, putting aside the performance prong of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), we are hard pressed to conclude that the defendant has established prejudice. Photographs are not rendered inadmissible merely because they are gruesome. See Commonwealth v. Liptak, 80 Mass. App. Ct. 76, 83 (2011). As noted above, the photographs depicted the area of the crime scene. Thus, they could have properly assisted the jury's understanding of where and how the altercation took place, as the photographs depicted more than just blood. To the extent the photographs did reveal the bloody crime scene, the amount of blood shed would also be relevant to the seriousness of the victim's injuries. At bottom, even if there had been an objection, it would have been properly overruled, and the defendant was not deprived of a substantial ground of defense due to the absence of an objection. See ibid.
Judgment affirmed.
By the Court (Grasso, Kantrowitz & Meade, JJ.),
Clerk Entered: November 6, 2014.