Opinion
No. 11–P–835.
2012-10-18
COMMONWEALTH v. Rafael CRUZ.
By the Court (GRAINGER, BROWN & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant, Rafael Cruz, was convicted of assault and battery on a child causing bodily injury, and assault and battery. He appeals these convictions on three grounds. First, Cruz argues that the trial judge abused his discretion in denying Cruz's motion to sever his case from that of the codefendant. Second, Cruz claims that the prosecutor impermissibly vouched for a witness's credibility in her closing argument and shifted the burden of proof to Cruz. Third, Cruz argues that he was prejudiced by the trial judge's denial of his motion to prohibit the introduction of certain medical records.
1. Factual background. Cruz was tried together with the codefendant, Carmen Figueroa. Cruz and the codefendant were boyfriend and girlfriend and lived together at the time of the events involved in this case. Also living in the home were Mary, the codefendant's daughter; Mary's twin children; Mary's brother; and Mary's niece. Mary's children were less than one year old when the relevant events occurred. Indictments were brought against Cruz after one of the twins was taken to the hospital following a choking episode on March 6, 2008. Doctors discovered that the baby had suffered serious injuries, including a skull fracture. The baby had been taken to the hospital on several earlier occasions after suffering from choking episodes and fevers.
A pseudonym.
On the evening of March 6, 2008, police officers interviewed Cruz, the codefendant, and Mary when they arrived home from the hospital. At this time, Mary told the officers that she did not know what had happened to her child. However, later that evening, Mary told a detective she had seen Cruz drop the baby on the floor.
Mary testified at trial that Cruz had been holding and shaking the baby while the baby laughed. Although the baby was laughing at first, he began to cry, and then Cruz dropped him to the floor. After the baby hit the floor, Cruz did nothing.
Mary further testified that she told the codefendant that she had seen Cruz drop the baby. The codefendant responded by taking Mary's cellular telephone and sending her to her room. Mary said she wanted to take the baby to the hospital, but the codefendant said that the baby would be fine. The codefendant then threatened that if Mary took the baby to the hospital, she would have Mary locked up and the Department of Children and Families would take both of the babies away.
Mary testified at the joint trial of Cruz and the codefendant. Part of her testimony included the statements made and actions taken by the codefendant after Mary had told her that she had seen Cruz drop the baby. As the codefendant did not take the stand during the trial, Cruz did not have the opportunity to cross-examine her regarding the statements.
2. Discussion. a. Motion to sever. The trial judge acted within his discretion in denying Cruz's motion to sever his case from that of the codefendant. Cruz argues that his case should have been severed because of inculpating statements made by a codefendant whom Cruz did not have the opportunity to cross-examine at trial. See Bruton v. United States, 391 U.S. 123 (1968).
“[A] defendant is deprived of his rights under the Confrontation Clause [of the Sixth Amendment to the United States Constitution] when his nontestifying codefendant's confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant.” Richardson v. Marsh, 481 U.S. 200, 201 (1987), citing Bruton v. United States, supra. The Bruton rule has been restricted “to cases where the codefendant's statement ‘expressly implicates[s]’ the defendant, leaving no doubt that it would prove to be ‘powerfully incriminating.’ “ Commonwealth v. James, 424 Mass. 770, 782 (1997), quoting from Richardson v. Marsh, supra at 208.
Bruton applies to cases where a codefendant's confession expressly implicates a defendant, while Richardson makes clear that “a codefendant's confession which neither names nor implicates the defendant does not invoke the principles enunciated in Bruton.” Commonwealth v. Keevan, 400 Mass. 557, 570 (1987). Furthermore, when the risk of contextual inculpation is not strong, curative instructions are not required in the absence of any request by the defendant. Ibid. “[T]here is a risk of contextual incrimination in cases only where the circumstances of the case and the nature of the codefendant's statement so obviously implicate the defendant in the crime itself as virtually to constitute direct incrimination.” Commonwealth v. James, supra at 783.
In the instant case, Cruz argues that the statements made by the codefendant to Mary after Mary told the codefendant that she had seen Cruz drop the baby were incriminating. However, the statements did not explicitly identify or directly implicate Cruz. In these circumstances, an appropriate limiting instruction to the jury would have been sufficient to avoid any Bruton concerns. See Commonwealth v. Keevan, 400 Mass. at 570 (noting that when the contested statement is indirectly rather than directly inculpatory, “an appropriate instruction is sufficient to obviate Bruton concerns”). No such instructions were given by the judge. However, Cruz did not request an instruction when the evidence was proferred, and there was no request to include a limiting instruction in the general instructions. In the absence of objection, our review is limited to whether there was error and, if so, whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Washington, 449 Mass. 476, 488 (2007).
In this case, there was no error, much less a substantial risk of a miscarriage of justice. “Absent a constitutional requirement for severance, joinder and severance are matters committed to the sound discretion of the trial judge.” Commonwealth v. McAfee, 430 Mass. 483, 485 (1999). Typically, severance is mandated only if the defenses of the codefendants are “mutually antagonistic and irreconcilable.” Id. at 486. In this case, the defenses offered by Cruz and the codefendant were not in conflict, let alone irreconcilable. The focus of both defenses was to attack Mary's credibility. Further, since the codefendant's statements do not directly inculpate Cruz and “the circumstances of the case and the nature of the codefendant's statement” do not “so obviously implicate [Cruz] in the crime itself as virtually to constitute direct incrimination,” the constitutional requirement for severance first developed in Bruton is not implicated. Commonwealth v. James, 424 Mass. at 783 (stating standard for when there is risk of contextual incrimination). The inference that the codefendant was attempting to protect Cruz when she told Mary to go to her room and refrain from calling for help is not compelled. The jury could have decided that the codefendant made these statements to protect herself or even to protect Mary from the suspicion of hospital workers. Even though a jury may have believed that the codefendant was protecting Cruz, her statements did not “virtually ... constitute direct incrimination.” Ibid.
Compare Commonwealth v. Pontes, 402 Mass. 311, 314–315 (1988); Commonwealth v. James, 424 Mass. at 783;Commonwealth v. Vallejo, 455 Mass. 72, 83–84 (2009).
b. Impermissibly vouching for Mary's credibility, and burden shifting. Cruz maintains on appeal that the prosecutor's closing arguments exceeded the limits of permissible advocacy. Since Cruz did not object to the prosecution's closing argument at trial, our review is limited to determining whether there has been a substantial risk of a miscarriage of justice. See Commonwealth v. Reid, 73 Mass.App.Ct. 423, 431–432 (2008). A prosecutor's remarks are reviewed in the “context of [her] entire closing argument, the judge's instructions to the jury, and the evidence produced at trial.” Commonwealth v. Lyons, 426 Mass. 466, 471 (1998).
The defendant contends that the prosecutor impermissibly vouched for Mary's credibility by suggesting to the jurors that she had no reason to lie. In her closing argument, the prosecutor stated “[Mary] is a credible witness.” The prosecution asked the jury to consider what motive Mary had to lie, and “if it was her hurting her child, ... [w]hy not play stupid.”
The prosecutor's remarks pertaining to Mary's credibility—albeit somewhat inelegant—were made to rebut the defense's principal argument that Mary was lying about the entire episode. The defense had stressed that “this case hinged on the credibility, the believability of [Mary]” and that Cruz was a convenient scapegoat. Further, the defense argued that Mary was “physically capable of inflicting these injuries, and the timing is suspect because, remember, the injuries only start to occur when she regains legal custody.”
In making a “fair response to an attack on the credibility of a government witness,” the prosecution is allowed to argue that a witness has no motive to lie. Commonwealth v. Leach, 73 Mass.App.Ct. 758, 767 n. 10 (2009), quoting from Commonwealth v. Smith, 450 Mass. 395, 408, cert. denied, 555 U.S. 893 (2008). Given the defense's strategy of attacking Mary's credibility, the prosecutor's statements in her closing argument were not impermissible. We have allowed a prosecutor to state that a victim “has absolutely no motive to lie or distort the truth” and that “there is absolutely no reason to distrust [her] testimony” when such statements are made in response to an attack on a witness's credibility. Commonwealth v. Leach, supra at 767.
The defendant also claims that the prosecutor shifted the burden of proof to Cruz by stating that Cruz had “no explanation” for the baby's injuries and that “on Ra[f]ael Cruz's watch,” the baby had a choking episode “that no one else witnessed.” As previously noted, the defense's strategy was to attack Mary's credibility and to argue that she was capable of having harmed the baby herself. Taken in context, the prosecutor's argument did not shift the burden of proof but merely pointed out that there was no evidence supporting the defense's alternate hypothesis.
Finally, we note that the judge instructed the jury that they were to draw no inference from the fact that Cruz did not testify, that the verdict “must be based upon the evidence,” that nothing said in opening or closing statements constituted evidence, and that the “attorneys' opinions about the evidence are not evidence, nor are they of any value to the [jury's] decision.” Even if the prosecutor's closing statements had crossed the line, the judge's admonitions prevented any substantial risk of a miscarriage of justice.
c. Redaction of medical records. The issue of the redaction of the baby's medical records was not properly preserved for appeal. Cruz filed a motion in limine seeking to prohibit portions of the baby's medical records from being admitted in evidence. The judge denied the motion. Before the case was submitted to the jury, the judge asked both parties to review the verdict slip, and he specifically directed their attention to the medical records. At this point, the defendant said that he was satisfied and did not object.
“It is well established that a motion in limine, seeking a pretrial evidentiary ruling, is insufficient to preserve appellate rights unless there is an objection at trial.” Commonwealth v. Whelton, 428 Mass. 24, 25 (1998). Since the defendant failed to object at trial, the issue of the redaction of the medical records was not preserved for appeal.
Again, in the absence of an objection, we examine whether any such error created a “substantial risk of a miscarriage of justice.” Commonwealth v. Durning, 406 Mass. 485, 498 (1990). We note at the outset that the medical reports did not contain any statement that Cruz was guilty of the crimes charged. Although the records indicated that Cruz was the baby's caretaker while Mary was in school, this fact was not disputed at trial. There was other evidence at trial that showed that Cruz was the caretaker, including his own statements to a police officer and the fact that he had called for an ambulance for the baby while Mary was at school. Even if it was error to admit the medical records without further redaction, there was no substantial risk of a miscarriage of justice because the medical record was cumulative of the trial testimony, which already reflected Cruz's role as the baby's caretaker.
Judgments affirmed.