Opinion
14-P-106
12-23-2014
COMMONWEALTH v. CYNTHIA HUNTER.
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
After a jury trial in the Boston Municipal Court, the defendant was convicted of one count of assault and battery upon Daphne Hernandez, arising from an attack outside a residence where both had attended a party. On appeal, the defendant raises two claims of error: (1) the admission of testimony that the defendant had pushed the victim earlier that night, and (2) the admission of the victim's testimony that a mutual friend told her that the defendant had threatened to hit the victim. We affirm.
The defendant was acquitted of one count of assault and battery upon Alba Bodden.
The defendant was tried together with three codefendants -- Lena Hunter, Jennifer Rodriguez, and Jessica Guzman, all of whom were acquitted of all charges.
Background. The jury could have found the following facts. On the night in question, the victim and two friends, Alba Bodden and Debra Castillo, attended a party in the basement of a residence in Dorchester. The defendant arrived shortly thereafter with her sister, Lena. Also present were the defendant's friends, Jennifer Rodriguez and Jessica Guzman. All told, there were fifty to sixty people present.
Later that night, the victim and Bodden stepped outside to smoke. When they reentered the basement, Bodden heard Lena say that she was "going to fuck up the bitch that's fucking with [her] sister's man." Bodden understood the target of these remarks to be the victim, who was dating a man who used to date the defendant. The victim and Bodden ignored Lena's comment. About twenty minutes later, when the victim tried to enter the bathroom, she was confronted by the defendant and Lena. The defendant asked the victim if she was "looking for her [and] wanted to fight with her." When the victim tried to walk away, the defendant pushed her toward the bathroom door. Bodden stepped in and brought the victim back to the party. Then, while the victim was dancing, Lena repeatedly kicked or nudged the victim's foot.
About thirty minutes later, the victim and her friends left the party through a door that led to the back yard. As soon as the victim came out, the defendant and others attacked her. The defendant grabbed the victim's hair and punched her repeatedly in the face; and, while she was lying on the ground, other assailants kicked and punched her. The victim suffered bruising to her eye, scratches to her body, head pain, and injuries to her ears.
Discussion. Neither of the issues was properly preserved below. Accordingly, we review only to determine if any error created a substantial risk of a miscarriage of justice. Commonwealth v. Haggett, 79 Mass. App. Ct. 167, 173-174 (2011).
The defendant asserts that, as to the first issue, despite her failure to object she is entitled to the benefit of the harmless error standard under Commonwealth v. Vasquez, 456 Mass. 350, 362 (2010). However, that case is entirely distinguishable for the reasons stated in the Commonwealth's brief, at pages 11-12. As for the second argument, only a codefendant objected; the defendant did not preserve her rights.
1. Evidence of the push. There is no merit to the argument that evidence of the defendant pushing the victim should have been excluded as a prior bad act. The encounter outside the bathroom was part of the chain of events leading to the attack in the yard, and was relevant to the defendant's state of mind. See Commonwealth v. Phim, 462 Mass. 470, 477 (2012). The judge was not required to give a limiting instruction sua sponte; nor did the absence of such instruction create a substantial risk of a miscarriage of justice. See Commonwealth v. Oliveira, 74 Mass. App. Ct. 49, 55 (2009).
Contrary to the defendant's position, the evidence of the push was not so similar to the charged conduct that the jury may have convicted her on an uncharged crime. As revealed by the transcript, the parties' focus throughout the trial was on the attack in the yard, which was of a considerably different nature and magnitude from the push. We discern no substantial risk that the jury would have been confused as to which conduct was at issue.
2. Hearsay testimony. No substantial risk of a miscarriage of justice was created by the victim's testimony that a mutual friend had conveyed a message that the defendant was going to hit the victim when the defendant saw her. Even if hearsay, the testimony was cumulative of other evidence (that had been received without objection) that the defendant wanted to fight the victim because she was dating the defendant's former boyfriend. See Commonwealth v. Delong, 72 Mass. App. Ct. 42, 46 (2008). The defendant's further argument that, at a minimum, she was entitled to a limiting instruction, again is without merit. See Commonwealth v. Oliviera, supra.
Judgment affirmed.
By the Court (Kafker, Cohen & Vuono, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: December 23, 2014.