Opinion
No. 11–P–1263.
2012-05-18
COMMONWEALTH v. Gary OAKLEY, Jr.
By the Court (COHEN, GRAINGER & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals his convictions for assault and battery, G.L. c. 265, § 13A, and assault and battery by means of a dangerous weapon on a person over 60 years of age, G.L. c. 265, § 15B. He takes issue with the judge's failure to exclude alleged character evidence, the prosecutor's remarks during the Commonwealth's summation, and an erroneous jury instruction regarding the burden of proof applicable to the defense of accident. We affirm.
Discussion. We set forth the facts, as the jury and the motion judge could have found them, in conjunction with our discussion of the legal issues. The defendant was living with his mother in Saugus following the breakup of his marriage, his ongoing divorce, and unemployment. On September 8, 2010, the defendant picked up a plastic gate used to contain his dog and hit his mother in the face with it. At trial, he defended himself by saying that he was placing the gate close to where his mother was sitting, and the contact was accidental. The Commonwealth, in seeking to disprove this theory, sought to introduce evidence of motive by relating incidents of the defendant's recent behavior towards his mother and events related to his ongoing legal problems in Connecticut.
Character evidence. “It is correct that ‘[a]s a general rule, evidence of a person's character is not admissible to prove that he acted in conformity with that character on a particular occasion.’ “ Commonwealth v. Bonds, 445 Mass. 821, 829 (2006), quoting from Liacos, Brodin, & Avery, Massachusetts Evidence § 4.4.1, at 130 (7th ed.1999). In addition, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Mass. G. Evid. § 404(b) (2011). Other crimes, wrongs, or acts may be used, however, to “show a common scheme, pattern of operation, absence of accident or mistake, identity, intent or motive.” Commonwealth v. Helfant, 398 Mass. 214, 224 (1986).
Here, the prior acts admitted in evidence tended to show the absence of accident in the defendant's striking of his mother. The defendant's prior threats and outbursts, his ongoing legal problems in Connecticut, as well as the victim's actions and feelings, demonstrated the defendant's erratic and threatening state of mind and contradicted his theory that striking his mother was inadvertent. Further, in her instructions, the judge told the jury that it could not use other acts committed by the defendant as proof of criminal propensity.
Closing argument. The defendant objects to various comments by the Commonwealth in its closing, ranging from references to motherhood to alleged misstatements about the defendant's testimony. None of the comments that are challenged on appeal were objected to at the trial. Accordingly we review for a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
“A prosecutor is entitled to argue forcefully for the defendant's conviction.” Commonwealth v. Wilson, 427 Mass. 336, 350 (1998). “ ‘[E]nthusiastic rhetoric, strong advocacy, and excusable hyperbole’ are not grounds for reversal.” Ibid. quoting from Commonwealth v. Costa, 414 Mass. 618, 628 (1993). On our review, the record does not support the defendant's claims.
The prosecutor's closing may be characterized as short, almost summary, covering two and one-half pages of transcript. Seven references to motherhood are found in these remarks, of which two merely acknowledge the fact that the victim is the defendant's mother. Three others are argument, entirely permissible and based on the evidence, that a mother's familiarity with her own son lends credibility to her conclusion that the battery was no accident. The remaining references invite the jury to rely on their own maternal experience, to the extent applicable, in assessing the evidence, particularly the unusual circumstance of a son picking up a gate and striking his mother accidentally. This was not improper vouching, see Commonwealth v. Rosario, 460 Mass. 181, 190 (2011), nor did it impermissibly appeal to the emotions or bias of the jury, see Commonwealth v. Sevieri, 21 Mass.App.Ct. 745, 754 (1986).
A reference to the apparent indifference of the defendant to having struck his mother was not improper, inasmuch as it was a “reasonable” inference derived from the evidence, albeit not “inescapable.” Commonwealth v. Lao, 460 Mass. 12, 21–22 (2011), citing Commonwealth v. Marquetty, 416 Mass. 445, 452 (1993).
The prosecutor's reference to the witness' characterization of the defendant's “grunting” during the attack was also proper. A review of the audio recording indicates that this is a permissible interpretation of the witness' description of the noise.
The defendant's claim of burden shifting is without merit.
We view the closing as a whole, Commonwealth v. Lyons, 426 Mass. 466, 471 (1998), and in that light it was not improper. The absence of objection also suggests that the closing was not unduly prejudicial. See Commonwealth v. Mello, 420 Mass. 375, 380 (1995).
The prosecutor was clear: “And make no mistake, in every case the defendant has a right to remain silent. They never have to testify. The Commonwealth has the burden of proof on each element.”
Jury instructions. In her instructions to the jury regarding the Commonwealth's burden of proof on accident, the judge erroneously stated that, “[i]f the Commonwealth has failed to prove to you beyond a reasonable doubt what occurred was not an accident, then you may find the defendant not guilty.” Commonwealth v. Podkowka, 445 Mass. 692, 699 (2006) (accident must be disproved beyond a reasonable doubt by Commonwealth). Again, there was no objection by the defendant.
While this remark was incorrect, we find that “in the context of the charge as a whole, ‘a reasonable juror could not have misunderstood or have been misled by this slip of the tongue.’ “ Commonwealth v. Gunter, 427 Mass. 259, 267 (1998), quoting from Commonwealth v. Grant, 418 Mass. 76, 85 (1994). In the sentence just before the incorrect statement of law, the judge correctly told the jury that “the Commonwealth must prove beyond a reasonable doubt that what occurred was not an accident.” Further, the judge instructed the jury that they must find beyond a reasonable doubt that the defendant's assaultive acts were intentional. Later in her charge, the judge then told the jury that the question of whether “what occurred was a pure and simple accident” went to the intent element of the charged crimes. A reasonable jury would understand, despite the fleeting use of the word “may,” that they must find the absence of an accident beyond a reasonable doubt. “We are persuaded that it did not materially influence the guilty verdict.”
Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (internal quotation omitted).
The defendant's reliance on Commonwealth v. Hill, 57 Mass.App.Ct. 240, 248–249 (2003), is unavailing. In that case, unlike this one, the judge never instructed the jury with the proper standard.
Judgments affirmed.