Opinion
20-P-80
12-21-2020
COMMONWEALTH v. TOREE G. MORRIS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
After a two-day jury trial in the District Court in which the defendant, Toree G. Morris, represented himself, the defendant was convicted of one count each of assault and battery, carrying a dangerous weapon, and unlawful possession of ammunition. On appeal, the defendant argues that the judge abused her discretion in excluding from evidence a statement that the defendant made to the police, and that improprieties in the prosecutor's opening statement and closing argument presented a substantial risk of miscarriage of justice, requiring reversal. We disagree, and affirm the judgments.
The defendant was acquitted of assault and battery on a family or household member.
Background. We recite facts as the jury could have found them, reserving certain of them for later discussion.
On November 29, 2017, the police were called to an apartment building in Lynn for a report of a woman calling for help. Directed to a specific apartment within the property, the police heard a male voice yell, "Shut up." They found the door to the apartment broken, the apartment in disarray, and apparent drug paraphernalia in view. They saw the defendant at the end of a bed, standing over the female victim. The victim was out of breath, crying, and had a cut under one eye. The police did not think either the defendant or the victim was intoxicated. The victim told the police that the defendant had grabbed her by the ribs, dragged her to the apartment, and choked her. The police arrested the defendant, and later discovered a live round of ammunition and a set of brass knuckles in the defendant's pockets. They took photographs of the victim, depicting her condition shortly after their arrival at the apartment. The police also obtained a video recording made by a building security camera, which included silent footage of the defendant's interaction with the victim in a hallway of the apartment building. Both the photographs of the victim and the video recording from the security camera were admitted in evidence at trial.
Discussion. 1. Exclusion of defendant's statement. At booking, the defendant told the police that the victim was "addicted to heroin and had just used," and that he would not let her leave because she was "all fucked up." Prior to trial, the Commonwealth filed a motion in limine to exclude the defendant's statement to the police; the defendant did not object, and the motion was allowed.
The defendant did not testify at trial, but sought to introduce his statement about the victim's condition and the reason for his unwillingness to let her leave through cross-examination of the officer to whom he made it. The Commonwealth objected on the grounds that the statement was hearsay; the defendant argued, in essence, that because the Commonwealth's case was based on hearsay (the victim had not appeared at trial, and her statements were admitted as excited utterances), he should also be permitted to rely on hearsay in defending the case. The judge sustained the hearsay objection.
In his primary brief on appeal, the defendant, now represented by counsel, argues that the excluded statement was the key to his ability to present a necessity defense at trial and contends that his statement to the police was not hearsay because it was an "admission by a party opponent." Presented with the Commonwealth's opposition refuting this argument, the defendant filed a reply brief in which, for the first time, he argues that the statement was not hearsay because it was evidence of his state of mind. Neither argument is availing.
The defendant's first argument falters because the admissibility of a statement that is otherwise hearsay, as an admission or statement of an opponent, "depends upon whether there is an adversity of interests between the introducing party and the party who made the statement." Commonwealth v. Lester, 70 Mass. App. Ct. 55, 62 (2007). See Mass. G. Evid. § 801(d)(2)(A) (2019) (statement not hearsay where made by opposing party and offered against that party). No such adversity existed where the defendant attempted to introduce his own statement through the police officer as a defense to the assault and battery charges.
The defendant's second argument, that the statement was admissible to show his state of mind in refusing to allow the victim to leave because he believed that she was under the influence of drugs, is raised only in his reply brief. It is therefore waived. See Commonwealth v. McGowan, 400 Mass. 385, 390 n.4 (1987) ("We need not pass on grounds for reversal raised for the first time in a reply brief").
2. Prosecutor's opening statement. In making her opening statement, the prosecutor told the jury that the case was about the defendant's "choices." Elaborating on that theme, she suggested that on November 29, 2017, the defendant had chosen
"to attack and beat his girlfriend of just over a month . . . . A choice he made because when a woman tries to walk away from [the defendant], [the defendant} doesn't
take no for an [answer]. No, what [the defendant] does, is he follows that woman. As she attempts to flee from him, he follows her."The prosecutor then detailed the anticipated evidence of the defendant's following the victim into the hallway, grabbing her, and dragging her back to the apartment where she was found by the police.
The defendant argues, and we agree, that the prosecutor's argument suggested that the defendant had a propensity for victimizing women, a proposition that was both improper and without evidentiary support. "It is a fundamental rule that the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purpose of showing his bad character or propensity to commit the crime charged." Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 233-234 (2016), quoting Commonwealth v. Dodgson, 80 Mass. App. Ct. 307, 312 (2011). It is equally plain that a prosecutor may not argue propensity to the jury. See Lugo, supra. Here, in suggesting to the jury that the defendant had a pattern of bullying noncompliant women, rather than limiting her remarks to the evidence of the defendant's conduct with the victim in this case, the prosecutor "strayed over the boundary of permissible argument." Commonwealth v. Chartier, 43 Mass. App. Ct. 758, 763 (1997).
While we are mindful of the need to be vigilant in protecting against the effects of implicit bias on the fairness of our justice system, we are not persuaded here by the defendant's argument that the prosecutor's opening "played to" juror biases. The prosecutor did not refer to race in any way in her opening. To the extent that she referred to the defendant's unusual height, that feature of the defendant's appearance was obvious to the jury before whom he appeared, and did not bear any relationship to his race.
The defendant did not object to the prosecutor's opening, and so we review for a substantial risk of a miscarriage of justice. See, e.g., Commonwealth v. Miranda, 458 Mass. 100, 114 (2010). "An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not materially influence[] the guilty verdict" (quotation and citation omitted). Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). In our analysis, "we consider the strength of the Commonwealth's case against the defendant (without consideration of any evidence erroneously admitted), the nature of the error," and "whether the error is 'sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error'" (citation omitted). Id. We also consider "whether it can be inferred 'from the record that counsel's failure to object was not simply a reasonable tactical decision'" (citation omitted). Id.
We conclude that the prosecutor's error did not present that risk here. The objectionable portion of the opening was relatively brief, amounting to some ten lines of an opening that covered five and one-half pages of transcript. See Commonwealth v. Thomas, 429 Mass. 146, 156 (1999) (reference in opening statement improper but nonprejudicial where only small part of "lengthy" statement). Additionally, after these first improper sentences, the prosecutor focused her remarks on the evidence relating to the defendant's actions in this case, and did not return to the theme of the defendant's conduct toward any other woman or women. See Commonwealth v. McDonagh, 480 Mass. 131, 142-143 (2018), quoting Commonwealth v. Kolenovic, 478 Mass. 189, 201-202 (2017) (no prejudicial error where improper propensity argument was not "a principal focus" of otherwise proper closing). Stepping back and considering the trial evidence, we conclude that the Commonwealth's case against the defendant was strong, see McDonagh, supra at 143 (Commonwealth's "strong" case against defendant mitigated against conclusion that improper argument created prejudicial error), particularly given the video recording shown to the jury of the defendant interacting with the victim inside the apartment building in which the police discovered them. Cf. Commonwealth v. Asher, 471 Mass. 580, 590 (2015) (video recording of incident as "strong evidence" of unfolding events). Finally, both in her introductory remarks and her final jury charge, the judge instructed the jury that opening statements and closing arguments were not evidence. See Commonwealth v. Donahue, 430 Mass. 710, 718 (2000) (proper jury instructions can "render[] any potentially prejudicial evidence harmless"); Commonwealth v. Vera, 88 Mass. App. Ct. 313, 322 (2015) (instructions throughout trial sufficient to prevent undue prejudice). The error did not create a substantial risk of a miscarriage of justice.
The video recording depicted the defendant following the victim as she walked away from him, grabbing her from behind and turning her around, then, after the victim fell, picking her up by the torso and continuing to hold her body as he walked her off-camera, slapping her in the face as he did so.
3. Closing argument. By contrast, we discern no error in the prosecutor's reference, in her summation, to the defendant's touching the victim three times. "In closing argument, '[p]rosecutors are entitled to marshal the evidence and suggest inferences that the jury may draw from it.'" Commonwealth v. Roy, 464 Mass. 818, 829 (2013), quoting Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). "Those inferences need only be reasonable and possible." Roy, supra.
Here, the prosecutor explicitly tied her argument to the video recording that had been admitted in evidence and played for the jury in the courtroom. Although the video recording could be seen to show a continuous touching from the time the defendant first stopped the plaintiff at the top of a staircase through the time that he walked her off-camera, it is susceptible of more than one interpretation; the prosecutor's characterization of the incident as a series of touchings was not, in our view, a misstatement of the evidence. Additionally, we note that based on the police officers' observations of the parties' relative positions on the officers' arrival in the apartment, the victim's assertion that the defendant had choked her, and the evidence of the victim's physical appearance and presentation, the jury could have inferred that an additional harmful and unconsented-to touching occurred after the defendant had moved the victim out of view of the security camera.
The prosecutor argued,
"[The victim] attempts to leave that location. [The defendant] follows her; he grabs her; he drags her. She hits the ground. Her shirt comes up over her face exposing her chest. . . . As he drags her, he makes his way there and slaps her in the face and has his arm around her neck as you see her hands come up trying to get that pressure from her neck. He doesn't touch her in a way that she clearly, as demonstrated by that video, she doesn't want to be touched. Not once. Not twice. Three times."
Judgments affirmed.
By the Court (Rubin, Singh & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 21, 2020.