Opinion
13-P-1065
11-10-2014
COMMONWEALTH v. GLEN W. GRUBER.
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 was charged with assault and battery for grabbing his girlfriend's throat during an argument. After a jury trial in District Court, he was convicted. He was simultaneously tried for assault and battery by means of a dangerous weapon (ABDW) for allegedly kicking the girlfriend, Melanie Barton, with his boots during the same argument. However, before the case went to the jury, the judge issued a required finding of not guilty as to the ABDW (boots) charge. The boots nevertheless remained in evidence, and the defendant argues on appeal that this requires reversal of the assault and battery conviction. Unpersuaded by this and the defendant's other arguments, we affirm.
The defendant also faced various other charges: the jury acquitted him of witness intimidation and of a second count of assault and battery; a required finding of not guilty entered on a second count of assault and battery by means of a dangerous weapon (rocks); and a charge of kidnapping was nol prossed.
At trial, Barton testified that the defendant "grabbed [her] by the neck, and tossed [her] across the room," causing her to fall and scrape herself on the defendant's rock collection that was strewn on the floor. Barton also testified that, after she had fallen, the defendant "nudge kick[ed]" her once with his boot, and then kicked her harder a second time. On direct examination of Barton, the prosecutor entered the defendant's boots in evidence, and defense counsel did not object. In fact, on cross-examination counsel sought to use the boots to impeach Barton's credibility by raising contradictions in her testimony regarding the kicking.
After the judge allowed the defendant's motion for a required finding on the ABDW charge that was based on the boots, and after the closing arguments and jury instructions, the prosecutor eventually raised the question of whether the boots would remain in evidence. The judge then signaled his intent to leave them in evidence. The defendant raised no objection to this, and indeed his counsel had tried to make use of the boots in his summation (again suggesting that the boots undermined Barton's credibility).
The judge dismissed the ABDW (boots) charge based on his view that there was insufficient evidence to permit an inference that the defendant kicked with the boots in a manner capable of causing serious bodily harm. See Commonwealth v. Charles, 57 Mass. App. Ct. 595, 599 (2003). Because Barton testified that the defendant in any event did kick her, the judge could have reduced the ABDW charge to the lesser included charge of assault and battery. In obtaining dismissal of the ABDW (boots) charge in its entirety, the defendant would appear to have received more than was his entitlement.
Defense counsel invoked the boots as an example of inconsistencies in Barton's testimony:
"And I suggest to you when you take into account all the inconsistencies in [Barton's] statements: The fact that there's no broken ribs, bruising to her side, with steel-toed boots. And you'll get to take these in there (indicating). These are pretty substantial boots. You would expect someone to have some real injury if they were kicked with those as she alleged."
On appeal, the defendant now argues that, once the ABDW charge related to the boots was dismissed, the boots were no longer relevant in the case and therefore should have been excluded. He further argues that the boots remaining in evidence was so prejudicial that it created a substantial risk of a miscarriage of justice. See Commonwealth v. Azar, 435 Mass. 675, 687 (2002).
The defendant's own use of the boots for impeachment purposes demonstrates that they remained relevant even after the ABDW (boots) charge was dismissed. The defendant is therefore left to argue that the judge still should have excluded them because their prejudicial impact substantially outweighed their probative value. See Mass. G. Evid. § 403 (2014). However, the defendant is at a loss to explain what prejudicial effect flowed from the boots' remaining in evidence. The defendant has affirmatively disavowed making any argument that there was something about the nature or characteristics of the boots that could have unduly prejudiced the jury against him. Rather, he argues only that leaving the boots in evidence may have caused significant confusion regarding the charges against him.
We disagree. The trial judge made it plain to the jury that the ABDW (boots) charge been withdrawn from their consideration, and that the assault and battery charge of which they eventually convicted him was based on the defendant's grabbing Barton's throat. See Commonwealth v. MacKedon, 60 Mass. App. Ct. 901, 902 (2003). Compare Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 490 (2004). "We presume the jury follow the judge's instructions." Commonwealth v. Stokes, 440 Mass. 741, 751 (2004). The jury's split verdict, see note 1, supra, also suggests the jury were able to carefully distinguish between the various charges at issue. See, e.g., Commonwealth v. Petrillo, 50 Mass. App. Ct. 104, 109-110 (2000). Because the defendant has demonstrated neither error in the boots being allowed to remain in evidence, nor any prejudice flowing from this, there was no substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 303 (2002).
For essentially the same reasons, the defendant cannot show that his counsel was constitutionally ineffective for not seeking to exclude the boots. See id. at 295-296. In addition, the record before us in this direct appeal strongly suggests that counsel made a reasonable tactical choice in not seeking exclusion of the boots.
Finally, the defendant contends that the prosecutor's single reference in her closing argument to Barton as "the victim" unduly prejudiced the jury. Defense counsel did not object, and accordingly we confine our review to whether the usage created a substantial risk of a miscarriage of justice. Commonwealth v. Pearce, 427 Mass. 642, 646 (1998). We consider this isolated remark in the context of the entire argument, and in light of the judge's instructions to the jury. Commonwealth v. Ruiz, 442 Mass. 826, 835 (2004). Although the defendant is correct that references to an alleged victim as "the victim" are better avoided, it is doubtful that the prosecutor's considering Barton as the victim of a crime would come as any surprise to the jury (or that this suggested that there was additional evidence, not presented, on which the prosecutor's view was based). Especially where the judge instructed the jury that remarks in the attorneys' closing statements were not evidence, the prosecutor's isolated reference did not create a substantial risk of a miscarriage of justice.
At the end of her closing argument, the prosecutor stated, "So ladies and gentlemen, I'd ask you to look at all of the evidence, look at what [sic] all the evidence that corroborates the statements that you heard from the victim, the statements that she makes in her medical records, and I ask you to find the defendant guilty . . ." (emphasis added).
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Judgment affirmed.
By the Court (Kafker, Trainor & Milkey, JJ.), Clerk Entered: November 10, 2014.