Opinion
10-P-1718
04-06-2012
COMMONWEALTH v. BERTRAM DEAN-LOPEZ.
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
The defendant appeals from his conviction by a jury in the Superior Court of assault and battery upon a child causing substantial bodily injury, G. L. c. 265, § 13J. He asserts error in the scope of testimony introduced through an expert witness called by the Commonwealth and in the prosecutor's closing remarks. We refer to the facts as they inform our discussion of the issues.
Expert witness. The Commonwealth called Dr. Rebecca Moles, Chief of the child protection program at the University of Massachusetts Memorial Childrens' Medical Center. Dr. Moles examined the child on the day after her admission to the hospital. She testified to her observations, in other words she reported the injuries that she observed as an examining physician. She also provided opinion testimony as to the possible cause of the injuries she observed, for example, that the child's head injuries were consistent with an inflicted injury, such as forcible shaking.
From this the defendant argues that the testimony contained an impermissible combination of opinion and percipient report, relying on Commonwealth v Grissett, 66 Mass. App. Ct. 454 (2006), and cases cited therein. We disagree. Grissett involved an arresting officer who provided both testimony about the defendant's apprehension and opined that the quantity of narcotics seized at the time of arrest was consistent with trafficking rather than personal use. See id. at 456. The cases cited in Grissett involve similar opinion testimony by police officers who testified that a person in possession of a certain amount of narcotics was involved in criminal activity. See, e.g., Commonwealth v. Woods, 36 Mass. App. Ct. 950, 951-952 (1994), S. C., 419 Mass. 366, 375 & n.13 (1995); Commonwealth v. Delgado, 51 Mass. App. Ct. 661, 663 (2001); Commonwealth v. Andujar, 57 Mass. App. Ct. 529, 531 (2003). Accordingly, and bearing in mind that expert opinion testimony may only 'touch' on an ultimate issue in the case, a witness who observed the conduct underlying the charge must be constrained from expressing an opinion as to the defendant's guilt or innocence. Grissett, supra at 458, citing Commonwealth v Tanner, 45 Mass. App. Ct. 576, 579 (1998). In this case the witness examined the child as would any physician called upon to provide an opinion on the severity, scope and possible cause of injuries. Contrary to the defendant's characterization of the witness, the fact that the child was also her patient did not make Dr. Moles a percipient witness to the alleged infliction of the injuries. The judge instructed the jury properly with respect to their right to believe or disbelieve opinion testimony, and Dr. Moles did not express any opinion on the ultimate question whether the defendant criminally assaulted and battered the child. There was no error.
Prosecutor's closing. During the Commonwealth's summation the prosecutor repeatedly called the defendant a liar. The Commonwealth also characterized some of the defendant's behavior as 'approaching evil.' In addition, the prosecutor, referring to the jury, stated that 'every time you've come into this courtroom, we have stood,' that 'we are all . . . going to stand for your [sic]' and 'I am asking you make sure you respect your verdict.' Defense counsel did not object to the Commonwealth's closing argument, therefore we review under the substantial risk of a miscarriage of justice standard. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). 'That defense counsel at trial did not object to this portion of the closing argument is a sign that what was said sounded less exciting at trial than appellate counsel now would have it seem.' Commonwealth v. Deveau, 34 Mass. App. Ct. 9, 14 (1993).
Taken in context, counsel's repeated use of the term 'liar' was not error. There was evidentiary support for this reference because the defendant himself testified that he did not tell the truth to multiple people. See Commonwealth v. Kelly, 417 Mass. 266, 270 (1994)('A prosecutor must limit comment in closing statement to the evidence and fair inferences that can be drawn from the evidence'); Commonwealth v. Coren, 437 Mass. 723, 733 n.9 (2002) (calling the defendant 'a liar' in closing argument is permissible where the evidence clearly supports the inference that the defendant lied . . .').
The prosecutor's remarks about the jury respecting their verdict was not an impermissible statement that the jury should do their duty and convict the defendant. Instead, it was a fair response to, or even a reiteration of, the defendant's closing, during which he told the jury how much respect was accorded to them as the judge of the facts. Commonwealth v. DeJesus, 17 Mass. App. Ct. 1020, 1021-1022 (1984) (stating that prosecutor has right of 'fair reply . . . to impressions created by defendant's closing').
The prosecutor's use of the term 'evil' to describe the defendant, albeit on only one occasion, was clearly improper. 'We consider the challenged comments in light of the entire argument, the judge's instructions, and the evidence at trial.' Commonwealth v. Burns, 49 Mass. App. Ct. 677, 679 (2000). Applying this standard of analysis, there was no substantial risk of a miscarriage of justice. The evidence against the defendant was strong, his testimony revealed inconsistencies in his account of what occurred on the night the victim was injured, the comment was fleeting, and the judge instructed the jury that the closing argument is not evidence. We do not condone this language and consider it to reflect poorly on the Commonwealth; however, we cannot say it influenced the result.
Judgment affirmed.
By the Court (Vuono, Grainger & Carhart, JJ.),