Opinion
15-P-167
02-24-2016
COMMONWEALTH v. JORGE M. ESTRADA.
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 of assault and battery by a District Court jury in connection with a domestic violence incident involving the mother of his child. He appeals, contending that the judge erred in allowing the Commonwealth to call his mother as a rebuttal witness. We affirm.
The defendant was acquitted of attempted assault to murder by strangulation.
Background. The victim's testimony described a violent encounter with the defendant that took place in his bedroom at his mother's house in Brockton on March 31, 2012. The victim testified that after a verbal dispute escalated to mutual pushing and shoving initiated by the defendant, the defendant grabbed her by the neck and slammed the back of her head into a wall so hard that it left a hole. In the course of the victim's slapping, scratching, and hitting the defendant in an effort to free herself, he either pushed her, or they both fell, to the floor. While on the floor, the defendant put his knee on her chest and both of his hands on her throat so that she could not breathe or talk. At some point during the struggle, the defendant hit or slapped the victim in the face. The incident ended when the defendant's mother, Candida Vedro, entered the room and removed the couple's child, who had been sitting on the bed above them during the fight.
According to the victim, the defendant's younger sister, Cindy Enriquez, was not home on the day in question. Testifying as the sole defense witness, however, Enriquez, who was fifteen years old at the time of the incident, told the jury that she had been home all day. In addition, her testimony contradicted other details in the victim's testimony regarding events preceding the violent struggle. With respect to the incident itself, Enriquez testified that she spent time with the defendant and the victim in the defendant's bedroom while the couple and their daughter were on the defendant's bed watching a cartoon movie and that at some point they began arguing about going to the store. She testified that at the conclusion of this argument, the defendant remained on the bed but the victim got up and began getting the child dressed. Enriquez said that she herself stayed on the bed with her brother. The victim continued yelling, prompting Vedro to come into the bedroom and direct her daughter, Enriquez, to leave. According to Enriquez, during the entire time that she was in the room with the victim and the defendant, the argument never turned physical.
After Enriquez testified, the trial judge allowed the Commonwealth to call Vedro as a rebuttal witness over the defendant's objection. Vedro's testimony was consistent with Enriquez's regarding background events, including Enriquez's presence in the house. With respect to the argument between her son and the victim, she said that she came into the defendant's bedroom when she heard the victim talking loudly. When she entered the room, Vedro saw the defendant holding the victim by her arms on the ground. Vedro said that she removed the defendant from the room. However, Vedro also testified that she did not observe any physical marks on the victim or any holes or indentations in the walls in the defendant's room and that she has not had to repair the walls.
Vedro testified that the defendant was doing this so that the victim would calm down.
Discussion. We discern no error in the trial judge's decision to allow Vedro's rebuttal testimony. A party who has rested his case-in-chief is entitled, as a matter of right, to present rebuttal evidence to "refute evidence of the other side." Drake v. Goodman, 386 Mass. 88, 92 (1982). See Mass. G. Evid. § 611(d) (2015). Even in cases where the party does not have a guaranteed right of rebuttal, a judge has substantial discretion to permit rebuttal testimony. See Drake v. Goodman, supra. "Rebuttal is legitimate when it responds to the opponent's case; in this circumstance, at any rate, the judge, as controller of the trial, has a nearly unreversible discretion to allow it." Commonwealth v. Johnson, 41 Mass. App. Ct. 81, 89 (1996) (citation omitted).
Vedro's testimony of her observations upon entering the defendant's bedroom directly refute the account given by Enriquez. Enriquez's testimony suggested to the jury that the victim had fabricated the allegations of violence (apparently including her own pushing, slapping, and scratching) and indicated that the defendant's mother, who both the victim and Enriquez agree arrived in the bedroom in the course of the dispute, would not have seen any physical contact between the defendant and the victim when she entered the room, a point not clearly addressed by the victim's testimony. After Enriquez's testimony, therefore, the jury would have been left with the impression that no one else who was present in the home at the time of the argument could corroborate the victim's claim that the argument became violent. Vedro's testimony on rebuttal simultaneously refuted this implication as well as the broader suggestion that the claims of violence were entirely made up.
Although the record indicates that Enriquez had been summonsed by the Commonwealth, there is no indication that the trial prosecutor had reviewed her anticipated testimony and, indeed, the Commonwealth did not end up calling her as a witness. Prior to Enriquez's taking the stand for the defense, the trial judge and the prosecutor discussed the latter's inability to predict exactly what Enriquez's testimony would be and the resulting possibility of a need for rebuttal testimony.
Vedro's account also permissibly eroded Enriquez's credibility. Vedro's testimony about her observations upon entering the room directly contradict those of her daughter on the key issue of physical contact. Where this contradictory testimony came from another witness from the defendant's own family who would ostensibly also be sympathetic to the defendant, it was properly admitted on rebuttal to undermine Enriquez's credibility. The rebuttal here was thus "responsive" and thus "legitimate." Johnson, 41 Mass. App. Ct. at 89.
As discussed above, even if the rebuttal testimony was not a direct refutation such that the Commonwealth was entitled to present it as a matter of right, the analysis above demonstrates that the trial judge would have been permitted in his discretion to allow it as rebutting the defendant's theory of fabrication. See Commonwealth v. Howell, 49 Mass. App. Ct. 42, 50-51 (2000). The cases cited by the defendant, Urban Inv. & Dev. Co. v. Turner Constr. Co., 35 Mass. App. Ct. 100, 103-104 (1993), and Teller v. Schepens, 25 Mass. App. Ct. 346, 351 (1988), are not to the contrary.
Judgment affirmed.
By the Court (Cohen, Katzmann & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 24, 2016.