Opinion
11-P-100
03-28-2012
COMMONWEALTH v. MANUEL LOPEZ.
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, Manuel Lopez, was convicted of murder in the second degree, having killed his girlfriend's ten month old son. He appeals, claiming that (1) the prosecutor's closing argument was improper in suggesting that the defendant caused the victim's preexisting rib fracture; (2) a videotaped Sex Abuse Intervention Network (SAIN) interview of the victim's four year old sister should have been played for the jury; and (3) evidence of malice was lacking. We affirm.
Closing. The defendant argues that the prosecutor committed reversible error in intimating to the jury that the victim suffered his prior rib injuries due to abuse by the defendant. Given that the comment was fairly based upon the evidence, there was no error. Additionally, the judge instructed the jury to consult their notes on the issue, and that closing arguments were not evidence.
In her closing arguments, the prosecutor stated, 'It's not until [the victim's aunt] gets a job at Sears and the defendant starts babysitting and now all of a sudden what happens? There's a five- or seven-day old rib fracture. And then there's a dead baby.' At the close of arguments, defense counsel objected to the inference. The judge decided, 'I'm going to bring it to their attention and tell them to consult their notes and they must draw a fair and reasonable inference on that testimony. I am going to say that.'
'You must consult your notes and your memories of what the testimony is . . . and whether or not that evidence leads to the conclusion that in the period during -- when the baby suffered a rib fracture, there was an increase in babysitting responsibilities on the part of Mr. Lopez.'
SAIN interview. While the defendant wished to have the jury hear the interview of the then four year old child, there was no hearsay exception that permitted its introduction in evidence. Further, the judge conducted a competency hearing of the now six year old witness and concluded that the child was currently incompetent to testify, as she had no recollection of the events of the case. The judge also, permissibly in our view, indicated that the statements made by the child were not reliable. In addition to the child making contradictory statements on the tape, the judge pointed out that '[t]here is also evidence in the record that causes the [c]ourt to question in a very strong way whether or not the child is relying upon her observations as opposed to information relayed to her from others. She testifies to knowing that the child stopped breathing. How would she know that?' We discern no error in the ruling.
The evidence also contradicted the defendant's theory of the case, that the victim's aunt committed the crime.
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Malice. Malice is proven if one of three elements is established: '(1) the defendant intended to cause the victim's death; (2) the defendant intended to cause grievous bodily harm to the victim; or (3) the defendant committed an intentional act which, in the circumstances known to the defendant, a reasonable person would have understood created a plain and strong likelihood of death.' Commonwealth v. Earle, 458 Mass. 341, 346 (2010).
Suffice it to say, the evidence as established permitted the inference that the young child's head was struck against a door or another hard object with enough force to kill him, and, thus, satisfied the element of malice.
For these reasons, as well as substantially those in the brief of the Commonwealth, we affirm.
So ordered.
By the Court (Kantrowitz, Berry & Vuono, JJ.),