Opinion
11-P-56
01-12-2012
COMMONWEALTH v. PATRICK McLAUGHLIN.
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, the defendant was convicted of assault and battery in violation of G. L. c. 265, § 13A. On appeal, he claims that the victim's hospital records were not sufficiently redacted, the audio recording of the 911 telephone call should not have been admitted in evidence, and the prosecutor's closing argument was improper. We affirm.
1. Hospital records. The defendant claims for the first time on appeal that the words 'assault' or 'assaulted,' which appeared six times in the victim's hospital records, should have been redacted. At trial, the defendant objected to the hospital records on confrontation clause grounds and because the meaning of one entry was unclear. We, therefore, review the error, if any, only to determine if there exists a substantial risk that justice miscarried. There was no such risk.
The entry read 's/p assault.' The defendant argued that because the meaning of the entry was unclear, it should be redacted. After further study of the records, the judge discovered that the entry meant 'status post assault,' and let the entry remain as it related to diagnosis and treatment.
Even though the defendant raised a confrontation clause objection to the records (which he does not raise on appeal), the judge undertook a conscientious effort to redact items in the records that did not relate to diagnosis and treatment, and those that related to the defendant or identified him as the assailant. See G. L. c. 233, § 79. However, the words 'assault' and 'assaulted' should have been redacted. Commonwealth v. DiMonte, 427 Mass. 233, 241-242 (1998).
Even though the failure to redact these words was error, we determine that no substantial risk of a miscarriage of justice was created. Contrary to the defendant's claim, the hospital records were not the only evidence of the assault and battery. Given the victim's extensive injuries, the physical evidence at the scene and in the minivan, as well as the blood on the defendant's cellular telephone, the jury easily could have inferred that the victim's injuries were the result of an assault and not from a fall, as suggested by the defendant. Also, when the police asked the defendant how the victim became injured, he said, 'Nothing, or whatever she says.' When this evidence is coupled with the 911 call, which described that the defendant had beaten her and still was beating her, the Commonwealth's case against the defendant was very strong. See Commonwealth v. Dargon, 457 Mass. 387, 398 (2010).
Also relevant to our inquiry is that the judge redacted some portions of the records that contained fact-specific details of how the injuries were inflicted and were admissible. See Commonwealth v. DiMonte, 427 Mass. at 242. Had these entries remained, the defendant's claim that the victim fell would have appeared even more specious to the jury. In addition, in the prosecutor's closing argument she referred only once to the word 'assault' in the records. See Commonwealth v. Armstrong, 73 Mass. App. Ct. 245, 257 (2008).
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2. Victim's 911 call. The defendant's argument against the propriety of the admission in evidence of the 911 call is threefold. He claims that the recording was not properly authenticated, the victim's statements do not qualify as excited utterances, and the admission of the recording violated his rights to confrontation. None of these claims has merit.
a. Authentication. As the Commonwealth properly argues, the recording was self-authenticated by the circumstances and the content of the recording itself. The victim gave her name, address, the name of the apartment's leaseholder, and the defendant's name as her assailant. When the police arrived, they spoke with the 'caller/victim.' The recording was properly admitted.
b. Excited utterances. The defendant claims that the victim's statements on the 911 call do not qualify as excited utterances. We disagree. Because the judge found that the startling event included not just the beating, but the victim's continued detention, the victim's statements were made during the startling event, and not two to three hours later. Finally, the victim's whispered voice begging for help to be sent and expressing fear of a continued beating, was sufficiently excited enough for purposes of the exception. The judge did not abuse his discretion.
c. Confrontation rights. The defendant's final argument regarding the 911 call is that its admission violated his confrontation rights. We disagree. Contrary to the defendant's claim, the victim's statements in her 911 call were not testimonial. See Commonwealth v. Nesbitt, 452 Mass. 236, 248 (2008); Commonwealth v. Beatrice, 460 Mass. 255, 257-264 (2011), analyzing Michigan v. Bryant, 131 S. Ct. 1143, 1156-1159 (2011).
3. Closing argument. The defendant claims that the prosecutor improperly used the defendant's prearrest silence to claim that he failed to explain how the victim's injury occurred. However, the prosecutor's remark that the defendant gave no explanation to the police regarding the victim falling or that she had an accident did not relate to the defendant's silence. In fact, the defendant told the police that either nothing happened or that they should accept the victim's version of events. In other words, the defendant was not silent prior to his arrest and the concerns illuminated in Commonwealth v. Haas, 373 Mass. 545, 560 (1977), and Commonwealth v. Nickerson, 386 Mass. 54, 62 (1982), do not come into play. To the extent there was any concern about the improper use of the prosecutor's remark, the judge sustained the defendant's objection, albeit without specific explanation, and later instructed the jury to disregard matters when an objection is sustained. The judge also instructed that arguments are not evidence. There was no prejudice to the defendant in these circumstances.
Finally, the defendant claims, for the first time on appeal, that the prosecutor improperly argued the strength of the Commonwealth's case. After enumerating the evidence, the prosecutor said, 'I think that there's more than enough evidence, and I would ask that you find the defendant guilty of an assault and battery.' The use of the first person in this manner does not express a prosecutor's personal opinion, and we read it as nothing more than the prosecutor suggesting the evidence is sufficient. See Commonwealth v. Mamay, 407 Mass. 412, 424 (1990). See also Commonwealth v. Mitchell, 428 Mass. 852, 857 (1999) (use of 'I think,' in context, did not express prosecutor's personal belief). This is especially true where the argument did not inject any extrajudicial facts. There was no error, and thus, no risk that justice miscarried.
Judgment affirmed.
By the Court (Graham, Brown & Meade, JJ.),