Opinion
16-P-520
03-24-2017
COMMONWEALTH v. Scott L. GUARENTE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Scott L. Guarente, appeals from his conviction of assault and battery, in violation of G. L. c. 265, § 13A(a ). He raises several arguments contending that his conviction should be reversed. The defendant also alleges that the prosecutor made improper comments in her closing statement that warrant him to be granted a new trial. We affirm.
The defendant was also found guilty of wanton destruction of property, in violation of G. L. c. 266, § 127, but was found not guilty of threatening to commit a crime. He raises no argument regarding the guilty verdict on wanton destruction of property. We affirm that conviction.
Background . The evidence at trial, taken in the light most favorable to the Commonwealth, established the following. See Commonwealth v. Latimore , 378 Mass. 671, 677-678 (1979). The defendant and the victim began dating in 2011. On September 14, 2013, the defendant went to Logan Airport to pick up the victim, who was returning from a trip to Chicago to attend her nephew's graduation.
When they arrived at the victim's house, the defendant accused the victim "of going to Chicago to have sex with [her] ... nephew." The victim asked the defendant to leave. In response, the defendant punched a hole in the hallway wall of the victim's house.
The defendant then pushed the victim down to the floor by her shoulders. The victim "[g]ot up, [and] chased [the defendant] down the stairs to get him out of the house." When the defendant was half-way out the front door, he threatened the victim that "he was going to kill [her]." The victim tried to shut the door, but the defendant was "pushing [on] the front door" and "reaching in" in an attempt to get back into the house. The defendant hit the victim with the door, causing her to fall over. He then "beat[ ] [the victim] with the door" "by closing it on [her]." Throughout the incident, the defendant was yelling loudly and calling the victim a "whore," "slut," "asshole," and "pig bitch."
The defendant testified that he pushed on the front door to return the victim's house key.
Discussion . 1. Assault and battery charge . The defendant alleges that his conviction for a single count of assault and battery was improper because it violated the rule against duplicity, and the charge required a specific unanimity instruction. See Commonwealth v. Crocker , 384 Mass. 353, 357 (1981) ; Commonwealth v. Matchett , 386 Mass. 492, 511 (1982).
The defendant waived his duplicity objection by failing to raise it prior to trial. G. L. c. 277, § 47A. Therefore, we review under the substantial risk of a miscarriage of justice standard. See generally Commonwealth v. Donoghue , 23 Mass. App. Ct. 103 (1986). "Duplicity is the charging of several separate offenses in a single count." Commonwealth v. Rollins , 470 Mass. 66, 78 (2014), quoting from Commonwealth v. Barbosa , 421 Mass. 547, 553 n.10 (1995). However, the Commonwealth may introduce evidence of multiple abusive acts "on the theory that any of those [acts] may be sufficient to support [a] conviction." See Rollins , supra . See also United States v. Valerio , 48 F.3d 58, 63 (1995) ; Commonwealth v. Smiley , 431 Mass. 477, 480 (2000). "Thus, there is no duplicity problem here." Rollins , supra .
We conclude that the defendant's reliance on Barbosa , supra , is unpersuasive. In addition to its factual distinctions with this case, Barbosa contemplated art. 12 violations that are not present here. See id . at 551 (finding "a very real possibility that the defendant was convicted of a crime for which he was not indicted by a grand jury").
Turning to the defendant's second argument, a specific unanimity instruction is warranted "when, on a single charged offense, the prosecutor presents evidence of separate, discrete incidents, any one of which would suffice by itself to make out the crime charged." Commonwealth v. Santos , 440 Mass. 281, 284-285 (2003). "[I]n order to find the defendant guilty of the charged offense, the jury must all agree as to at least one, specific incident."Ibid . However, a specific unanimity instruction is not required "[w]hen a single count is charged and where the spatial and temporal separations between acts are short, that is, where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents." Commonwealth v. Shea , 467 Mass. 788, 798 (2014).
The defendant alleges that the absence of an unanimity instruction created a substantial risk of a miscarriage of justice because he was charged with one count of assault and battery. Specifically, the defendant takes issue with the prosecution's presentation of two acts committed by the defendant as evidence to support this charge: that the defendant pushed the victim down to the floor and that he battered her with a door. Here, these two acts were not only "spatially separated by the short distance between" the top of the stairs and the bottom of the stairs, where the front door was located, but also, they were "temporally separated by" a short period of time. Ibid . Thus, the facts in this case demonstrate a continuous course of conduct and the "absence of [a specific unanimity] instruction did not create a substantial risk of a miscarriage of justice." Ibid . See Commonwealth v. Keevan , 400 Mass. 557, 567 (1987) ("[T]here is no substantial risk of a miscarriage of justice if the evidence satisfies each element of the statute and is sufficient to defeat a motion for a required finding of not guilty").
The defendant did not request a specific unanimity instruction at trial.
Further, this is not a case where "the evidence presented to the jury would warrant a conviction on one ground, but not on another." Rollins , supra , citing Matchett , supra at 511. Here, both acts were within a continuous course of action that supported the conviction of the charge of assault and battery.
2. Prior bad acts . The defendant argues that the judge improperly admitted evidence of the defendant's prior abusive conduct toward the victim. While "[i]t is well settled that the prosecution may not introduce evidence of a defendant's prior or subsequent bad acts for the purpose of demonstrating bad character or propensity to commit the crimes charged," there are "a range of permissible relevant purposes" for which such evidence may be introduced. Commonwealth v. Butler , 445 Mass. 568, 574 (2005). Here, the judge properly admitted the defendant's prior acts of abuse toward the victim as evidence to "demonstrate the hostile nature of the relationship between the defendant and [the victim]." Id . at 575.
Further, the judge provided limiting instructions to the jury, both at the time of the victim's testimony about these acts and in his final charge, instructing them that such evidence could not be used to show "that the defendant has a criminal personality or bad character." Therefore, there was no error. See ibid . See also Commonwealth v. Vallejo , 455 Mass. 72, 84 (2009) ("Jurors are presumed to follow a judge's instructions"); L.L . v. Commonwealth , 470 Mass. 169, 185 n.27 (2014) (abuse of discretion is where "the [judge's] decision falls outside the range of reasonable alternatives").
The defendant's argument that the judge abused his discretion in not granting the defendant a mistrial because of Officer Russo's testimony that the defendant was served with a restraining order is unpersuasive. The judge sustained the defendant's objection and excluded that portion of the testimony from the record. The judge also instructed the jury that they may not consider any testimony that is excluded or stricken. Therefore, there was no abuse of discretion. See Commonwealth v. Cunneen , 389 Mass. 216, 223-224 (1983) ("[I]t was a vague and fleeting comment, not likely to influence, or even to seize the attention of the jury"); Commonwealth v. Gallagher , 408 Mass. 510, 518 (1990).
3. Closing argument . The defendant argues that he should be granted a new trial because the prosecutor mischaracterized evidence in closing argument. The defendant did not raise any objection to the prosecutor's closing argument during trial. We therefore consider whether these statements created a substantial risk of a miscarriage of justice. Commonwealth v. Ferreira , 460 Mass. 781, 788 (2011).
"When a defendant raises a claim of error regarding a prosecutor's closing argument, [this Court will] consider (1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusions." Commonwealth v. Kater , 432 Mass. 404, 422-423 (2000).
We reject the defendant's other objections to the prosecutor's closing argument. First, the prosecutor's statement that "[t]his is not a case of he said, she said" was not an error. See Commonwealth v. Mitchell , 428 Mass. 852, 857 (1999) ("The jury are presumed to recognize that the prosecutor is an advocate, not a witness"); Commonwealth v. Siny Van Tran , 460 Mass. 535, 555 (2011) ("Where credibility is at issue, it is certainly proper for counsel to argue from the evidence why a witness should be believed"). See also Commonwealth v. Cabral , 69 Mass. App. Ct. 68, 75 (2007) ("A prosecutor may argue the strength of the evidence"). Nor was it improper for the prosecutor to comment on the defendant's prior bad acts, which were properly admitted in evidence to demonstrate the hostile nature of the relationship between the defendant and the victim. Commonwealth v. Burgess , 450 Mass. 422, 437 (2008) (a prosecutor may "attempt to assist the jury in their task of analyzing, evaluating, and applying the evidence").
"Remarks made during closing argument are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Whitman , 453 Mass. 331, 343 (2009). "A prosecutor must limit comment in closing statement to the evidence and fair inferences that can be drawn from the evidence." Commonwealth v. Cole , 473 Mass. 317, 333 (2015). We agree with the defendant that the prosecutor erred in stating during closing argument that the defendant "threw" or "pushed" the victim "down [the] stairs." Indeed, this was in direct contravention with the victim's testimony that she "chased [the defendant] down the stairs to get him out of the house."
The prosecutor stated twice that the defendant "threw her down those stairs" and once commented that the defendant "pushed her down those stairs."
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However, this error does not rise to the level of a substantial risk of a miscarriage of justice. See Commonwealth v. LeFave , 430 Mass. 169, 174 (1999) (a substantial risk of a miscarriage of justice is where there is "serious doubt whether the result of the trial might have been different had the error not been made"). Here, the prosecutor's mischaracterization of the victim's testimony went to a collateral matter as the Commonwealth's case was centered on two acts committed by the defendant, that the defendant pushed the victim to the floor and battered her with the door. Moreover, the judge minimized any prejudice that resulted by instructing the jury that closing and opening statements are not evidence and that it is the jury's memory of the evidence that controls. Therefore, the defendant is not entitled to a new trial. See LeFave , supra ; Commonwealth v. Guadette , 441 Mass. 762, 771 n.9 (2004). See also Commonwealth v. Auclair , 444 Mass. 348, 360 (2005) ( "Juries are presumed to follow [the judge's] instructions").
Judgments affirmed.