Opinion
11-P-722
02-28-2012
COMMONWEALTH, v. ENOH A. JOHNSON.
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 violating an abuse prevention order issued pursuant to G. L. c. 209A. He argues on appeal that the judge erroneously admitted certain testimony of the police officer who took the victim's statement, and that his motion for a mistrial should have been allowed because the prosecutor's closing argument was improper. We affirm.
Background. The abuse prevention order in question was obtained on December 22, 2008, by the defendant's former girlfriend, and provided, in relevant part, that the defendant was to have no contact with her. The defendant was charged with violating the order as a result of leaving voicemail messages on the victim's cellular telephone on April 8, 2009. One of the messages contained the statement, 'Bitch, I will put your boyfriend in jail, take your son, then kill you . . . don't mess with me.'
The victim went to the police station to report the violation, spoke with Boston police Officer John Harden, and provided him with her cell phone. Officer Harden listened to the voicemail message and prepared a report of his interview with the victim.
The voicemail message no longer was available at the time of trial. When the Commonwealth endeavored to question Officer Harden about the content of the message, the judge sustained the defendant's objections; however, the judge permitted Officer Harden to testify to the fact that he had listened to the voicemail and heard a male voice, and that the content of the message was 'consistent with' what the victim had told him.
1. Hearsay. We reject the defendant's claim that the officer's testimony constituted inadmissible hearsay. Officer Harden's testimony that the content of the voicemail message was consistent with the victim's statement was not hearsay, as the purpose for which it was offered was to establish the fact that the communication was made, and to whom, and not the truth of the statements contained therein. See Commonwealth v. McKay, 67 Mass. App. Ct. 396, 402-403 (2006), citing Commonwealth v. Sullivan, 410 Mass. 521, 526 (1991). See also Commonwealth v. Lenahan, 50 Mass. App. Ct. 180, 185 (2000). If anything, the defendant derived an undeserved benefit from the judge's limitation on the scope of Officer Harden's testimony.
The content of the voicemail did not have to be abusive or offensive to constitute a violation of the abuse prevention order, as the order barred the defendant from contacting the victim in any way. See Commonwealth v. Mendonca, 50 Mass. App. Ct. 684, 686-687 (2001).
There is no merit to the defendant's argument that the testimony improperly bolstered the victim's credibility with respect to her identification of the defendant's voice. The victim was the only person in a position to identify the voice, and the officer's statement could not and did not bolster her identification of the defendant. Additionally, the judge gave a a proper instruction to the jury on assessing credibility.
2. Closing argument. The defendant argues that various errors in the Commonwealth's closing argument necessitate granting his motion for a mistrial. Specifically, he objects to the prosecutor's remark that the officer 'was not able to tell you the substance of what he heard on that message,' and a comment about the paternity of the victim's son. Because the defendant objected to the statements, we review under a prejudicial error standard. See Commonwealth v. Loguidice, 420 Mass. 453, 455-456 (1995). Viewing the remarks in the context of the entire argument, the testimony, and the evidence presented at trial, we discern no error. Furthermore, the judge's instructions to the jury regarding closing argument would have cured any conceivable potential prejudice.
Judgment affirmed.
By the Court (Cypher, Cohen & Wolohojian, JJ.),