Opinion
No. 11–P–1603.
2012-08-27
COMMONWEALTH v. Luis MERCADO.
By the Court (BERRY, MILKEY & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant was convicted of rape, two counts of assault and battery by means of a dangerous weapon, one count of assault by means of a dangerous weapon, and three counts of violating a restraining order. On appeal, the defendant argues that: the trial judge erroneously admitted evidence of the defendant's methadone use, the evidence of assault and battery by means of dangerous weapon was insufficient, and the prosecutor's closing argument improperly vouched for the victim's credibility and improperly asked the jury to hold the defendant accountable. We affirm.
1. Background. The trial evidence can be summarized as follows. The victim and the defendant began a romantic relationship in 2006. Subsequently, the two moved in together and had a child. Their relationship was tumultuous, and sometimes violent. The defendant habitually accused the victim of infidelity. In a violent episode occurring on November 26, 2009, the defendant again accused the victim of infidelity and assaulted her. The defendant straddled the victim, brandished a knife, and threatened to kill the victim. The defendant held the knife against the victim's neck and side. The victim begged the defendant to stop and offered him money. The defendant asked the victim how much money she had. The defendant told the victim to remove her clothing and lie face down. He then raped her.
The next day, the victim and the defendant went shopping, and the victim withdrew from an automated teller machine (ATM) and gave to the defendant $200. Later, the victim went to the police station and told Officer Andrew Beaver what had happened. The defendant was arrested and served with an abuse prevention order under G.L. c. 209A, which the defendant subsequently violated three times. First the defendant telephoned the victim from the police station, promising to “clear out of here” if the victim would drop the charges and forgive him for “the old habits of Haverhill.” Days later, the defendant left the victim a voicemail message apologizing and asking the victim not to go to court. Later in December, the defendant sent the victim a letter apologizing again, asking the victim not to “put [him] away for ever” by pressing the charges, and stating, “Please don't go to court. All I have to do is ride it out to trial and if you didn't show for the hearings they'll drop the charges.”
2. Admission of methadone evidence. Evidence concerning the defendant's methadone use was referenced twice during the trial. The first occasion was when the prosecutor asked the victim whether the defendant had any insecurities. The victim referenced the defendant's drug use. The second occasion was when the prosecutor inquired whether the defendant was dealing with a problem that he had “by going to a methadone clinic.” The victim answered in the affirmative. There was no objection to either of the prosecutor's questions or to the victim's answers.
The judge had allowed the Commonwealth's pretrial motion to introduce evidence of the defendant's methadone use in connection with his need for money and with the apparent reason the defendant ended the assault. During trial, this connection was not developed. As a result, the judge concluded that the methadone testimony, while not prejudicial, may not have been relevant, and instructed the prosecutor not to mention methadone again. The judge further inquired whether defense counsel wanted the methadone references stricken and the jury so instructed. The defense counsel declined both offers.
Thus, there was neither an objection nor an accepted offer to strike the testimony. “In the absence of proper objections at trial, our review is limited to a determination whether the alleged errors created a substantial risk of a miscarriage of justice.” Commonwealth v. Gabbidon, 398 Mass. 1, 7 (1986). We discern no such substantial risk of a miscarriage of justice. Methadone was mentioned only in passing in the testimony and was not mentioned in the closings.
Moreover, the direct evidence of guilt was powerful. In addition to the victim's testimony describing the assault, the defendant made the previously described incriminating statements in recorded telephone calls and a handwritten letter, including pleas for forgiveness and repeated requests that the victim drop the charges. In short, there was little chance that the methadone testimony materially influenced the verdict. Commonwealth v. Randolph, 438 Mass. 290, 298 (2002).
3. Sufficiency of evidence. The defendant contends that the evidence of assault and battery by means of a dangerous weapon was insufficient because the victim testified that, at one point during attack, the defendant held the knife but did not then touch her with it.
That statement must be taken in context. Specifically, the statement answered the limited question, “When [the defendant poked the knife towards your chest], was he actually touching you at all at that point?” Immediately thereafter, however, when the prosecutor asked if at “some point” the defendant touched her with the knife, she answered, “He touched me.” Furthermore, in describing the continuing assault with the knife, precedent to the rape, the victim said, “[H]e put the knife right up against me.” These were consistent descriptions of different parts of the assault. In any event, under Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), we review the evidence in the light most favorable to the Commonwealth.
Touching is a material element of assault and battery by means of a dangerous weapon under G.L. c. 265, § 15A. Commonwealth v. Cruzado, 73 Mass.App.Ct. 803, 807 (2009).
4. Challenged references in prosecutor's closing argument. The defendant contends that certain comments in the prosecutor's closing argument were improper because the references constituted vouching for the victim's credibility and improperly used the word “accountable.”
Having reviewed the closing, we do not see the prosecutor's challenged statements as improperly vouching for the victim. Rather, the statements properly drew the jury's attention to certain trial evidence and the reasonable inferences drawn from it. See Commonwealth v. Jones, 42 Mass.App.Ct. 378, 384 (1997) (“[H]e was talking about the scope of permissible inferences from the evidence, rather than suggesting that he had any personal knowledge of the facts”).
With respect to the reference that the jury hold the defendant “accountable” for what the defendant had done to the victim, it was not proper for the prosecutor to so argue. See Commonwealth v.. Jenkins, 458 Mass. 791, 796–797 (2011). Notwithstanding that, we are not persuaded that this word by itself gave rise to a substantial risk of a miscarriage of justice, such as would warrant reversal.
Judgments affirmed.