Opinion
14-P-599
05-12-2015
COMMONWEALTH v. JENNIFER LEMELIN.
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
After a jury trial, the defendant, Jennifer Lemelin, was convicted of assault and battery on a child under the age of fourteen causing bodily injury in violation of G. L. c. 265, § 13J(b). On appeal, the defendant asserts that: (1) the trial judge erred in denying the defendant's motion for a required finding notwithstanding the verdict, (2) the admission of the defendant's alleged prior bad acts in evidence constituted prejudicial error, and (3) the defendant is entitled to a new trial due to the ineffective assistance of her counsel. We affirm.
Discussion. 1. Required finding. The defendant argues error in the denial of her motion for a required finding notwithstanding the verdict. In our review of the defendant's claim, we consider the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the Commonwealth, then ask whether this evidence was sufficient to satisfy a rational juror of each element of the offense beyond a reasonable doubt. See Commonwealth v. Brown, 401 Mass. 745, 747 (1988); Commonwealth v. Charlton, 81 Mass. App. Ct. 294, 302 (2012). We conclude that there was sufficient evidence to establish the defendant's guilt beyond a reasonable doubt.
In order to convict the defendant of assault and battery on a child under the age of fourteen causing bodily injury, the jury had to find that: (1) the victim was a person under fourteen years of age, (2) the defendant touched the person of the victim, in a manner or with a degree of force that exceeded any right or justification the defendant may have had for touching the victim, (3) the defendant intended to touch the victim, and (4) the unlawful touching caused bodily injury to the victim. See Instruction 6.220 of the Criminal Model Jury Instructions for Use in the District Court (2011); G. L. c. 265, § 13J(b).
Here, the Commonwealth presented evidence that the defendant, a daycare teacher who was responsible for the care and custody of the six month old victim on the day he fell seriously ill, committed the assault and battery that resulted in the baby's head injury. That this evidence was largely circumstantial does not undermine the Commonwealth's case. See Cramer v. Commonwealth, 419 Mass. 106, 110 (1994); Commonwealth v. Roman, 427 Mass. 1006, 1007 (1998). The Commonwealth presented testimony that the victim arrived at daycare on the day in question in good health. The victim was primarily under the defendant's care that day, and multiple witnesses testified that the defendant was frustrated and using more force than was necessary with the victim. Dr. Stephen Boos, the medical expert called by the Commonwealth, testified that the victim's brain injuries were nonaccidental and inflicted within minutes of the victim becoming symptomatic. Moreover, the defendant testified that moments before the child was observed to be turning blue, she had "plopped" the child down in his crib. "[This] evidence established a solid foundation of the defendant's guilt," without resort to conjecture or surmise, and therefore, the defendant's guilty verdict must stand. Commonwealth v. Anderson, 48 Mass. App. Ct. 508, 511-512. (2000).
2. Prior bad acts evidence. The defendant challenges the admission of testimony from Amanda Thompson, the bus monitor for the daycare center, regarding statements made by the defendant and the defendant's treatment of the victim on the day in question. The defendant asserts that this testimony was unduly prejudicial, and was likely improperly used by the jury as propensity evidence. Given that the defendant properly preserved the issue with a timely objection, we review for prejudicial error. Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). Of course, "[w]hether evidence is relevant in any particular instance, and whether the probative value of relevant evidence is outweighed by its prejudicial effect, are questions within the sound discretion of the judge," and the judge's determination of these questions will not be overturned absent palpable error. Commonwealth v. Dunn, 407 Mass. 798, 807 (1990). We conclude that the trial judge's decision to admit the testimony of Thompson was proper.
Although evidence of a defendant's prior bad acts is inadmissible to prove bad character or a defendant's propensity to commit the crime with which he is charged, Commonwealth v. Mamay, 407 Mass. 412, 417 (1990), this evidence may be relevant for other purposes, such as illuminating the relationship between the defendant and the victim, which is probative of the defendant's motive, state of mind, and intent. See Commonwealth v. Howard, 469 Mass. 721, 738-741 (2014).
Here, Thompson testified to the defendant's vocalizations of her frustration with the victim ("I hate that . . . baby") and her behavior towards the victim, including pulling the victim by his arm, shoving his pacifier into his mouth, roughly rocking the victim in his "Pack 'n Play," and throwing a blanket over his head. These observations were "inextricably intertwined with the description of events on the day of the crime charged," Commonwealth v. Gollman, 51 Mass. App. Ct. 839, 844 n.3 (2001) (quotation omitted), and the judge properly instructed the jury to consider them only in regard to the defendant's "state of mind, intent, pattern of conduct, relationship between the defendant and the alleged victim, and absence of mistake or accident."
Given the limited purpose of the testimony, and the judge's instructions to the jury, there was no error in admitting the testimony and the defendant suffered no undue prejudice as a result. See Commonwealth v. Bonds, 445 Mass. 821, 835 (2006) ("[T]he instruction given was adequate to minimize the potential for prejudice").
3. Ineffective assistance of counsel. The defendant argues that he is entitled to a new trial due to the ineffective assistance of his trial counsel, as demonstrated by counsel's failure to call (1) Johanna Reyes, a coworker of the defendant who was present at the daycare center on the day in question, and (2) an expert to rebut the testimony of the Commonwealth's expert medical witness. To satisfy the burden of such a claim, the defendant must demonstrate both "(a) a serious incompetency, inefficiency, or inattention of counsel and (b) that counsel's conduct deprived the defendant of something substantial that was likely to have made a difference in the result." Commonwealth v. Anderson, 398 Mass. 838, 839 (1986). In addition, since the defendant challenges counsel's tactical decision not to call specific witnesses, the defendant must show that counsel's judgments on this matter were manifestly unreasonable when made. Commonwealth v. Martin, 427 Mass. 816, 822 (1998). Contrast Commonwealth v. Beauchamp, 49 Mass. App. Ct. 591, 610 (2000). On the record before us, we are not persuaded that trial counsel's decisions were manifestly unreasonable.
Our decision begins by emphasizing that the defendant raised this claim in his direct appeal, a method strongly disfavored by our case law. Commonwealth v. Zinser, 446 Mass. 807, 809 n.2 (2006). The recommended course would have been to argue ineffectiveness via a "motion for a new trial accompanied by affidavits, with the potential for an evidentiary hearing and findings." Commonwealth v. McCormick, 48 Mass. App. Ct. 106, 107 (1999). Without affidavits from trial counsel, Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002), or the proposed witnesses, Commonwealth v. Ortega, 441 Mass. 170, 178-79 (2004), we may only resolve ineffective assistance claims on direct appeal "when the factual basis of the claim appears indisputably on the trial record." Zinser, 446 Mass. at 811.
In the case at hand, the record makes clear that over the course of the police and DCF investigations, Reyes gave conflicting accounts of the day in question with each account varying in its level of exculpatory and inculpatory value. From the vantage of the defendant's direct appeal, it is impossible to say which of these accounts Reyes would have delivered if she had been called as a witness and thus how much would have been inculpatory as well as exculpatory. Moreover, even if she were to give some testimony beneficial to the defendant, she would then face questions of credibility on cross-examination due to the inconsistency of her prior statements. A decision not to call such a witness is not manifestly unreasonable. See Commonwealth v. Knight, 437 Mass. 487, 501 (2002); Commonwealth v. McMaster, 21 Mass. App. Ct. 722, 735 (1986).
As for the alleged failure to utilize a medical expert, analysis of the record reveals that counsel sought the opinion of a medical expert, though he ultimately did not call her as a witness. Without resorting to "[u]nsupported speculation," Commonwealth v. Horton, 434 Mass. 823, 834 (2001), these facts can only lead us to conclude that counsel's decision was "consistent with the proposition that [the expert witness] would not have been helpful to the defendant." Commonwealth v. Cormier, 427 Mass. 446, 450-451 (1998). Thus, the decision was not manifestly unreasonable.
Conclusion. For the reasons articulated above, we affirm the defendant's conviction.
Judgment affirmed.
By the Court (Cypher, Kafker & Green, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: May 12, 2015.