Opinion
13-P-655
11-03-2014
COMMONWEALTH v. PABLO RIVERA.
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
On appeal from a conviction of assault and battery by means of a dangerous weapon, the defendant contends that (1) the motion judge erred in denying his motion to dismiss the indictment, and (2) the prosecutor's closing argument gave rise to a substantial risk of a miscarriage of justice. We affirm.
1. The motion to dismiss. The defendant maintains that the prosecutor's withholding of evidence that would have greatly undermined the credibility of the victim, Pedro Machicote, impaired the integrity of the grand jury proceeding. See Commonwealth v. Clemmey, 447 Mass. 121, 130 (2006). In particular, the defendant faults the prosecutor for failing to disclose the entire content of a written statement from the defendant's mother and codefendant, Olga Cruz. In that statement, Cruz asserted that the defendant had nothing to do with the stabbing of Machicote and acted only to defend Cruz from abuse, and that she stabbed Machicote in defense of her son when Machicote stabbed and broke a chair over him.
While it might have been preferable for the Commonwealth to introduce Cruz's unsworn statement, we do not view the entirety of Cruz's letter as evidence of such import as to greatly undermine Machicote's credibility and affect the grand jury's decision to indict. Indeed, while exculpating her son, Cruz's letter was notably self-serving -- setting forth her related defense of another claim. See Commonwealth v. Roman, 414 Mass. 642, 648-649 (1993). To the extent that there were inconsistencies between Machicote's testimony and Cruz's assertion that Machicote was the aggressor who took out a knife and attacked the defendant, the grand jury were aware that Cruz submitted a letter to the prosecutor's office that claimed Machicote was abusing her, her son was defending her, and she was defending her son from an attack when she stabbed Machicote. The grand jury were also aware that Machicote had read Cruz's statement, denied abusing or arguing with her, denied having a knife on his person, admitted that he may have cut the defendant's ear while struggling to take a folding knife from him, acknowledged that he broke a chair over the defendant in order to get out of the apartment, and acknowledged that Cruz would not have stabbed him had she not been protecting her son. Although exculpatory of the defendant (and herself), the portions of Cruz's letter not expressly disclosed to the grand jury did not materially undermine Machicote's credibility any more than the disclosed portions did. See Commonwealth v. LaVelle, 414 Mass. 146, 150-151 (1993), quoting from Commonwealth v. McGahee, 393 Mass. 743, 746 (1985) (prosecutor must disclose evidence that greatly undermines "credibility of evidence likely to affect the grand jury's decision to indict").
Nor do we agree that disclosure of the entirety of Cruz's letter (including her statement that the defendant never stabbed Machicote) would likely have affected the grand jury's decision to indict. Even if disclosed, and even if viewed by the grand jury as something more than the manifestation of a mother's instinct to protect her child from prosecution, Cruz's assertion that the defendant never tried to "cut" Machicote, had nothing to do with this "incident," and only tried to protect her from Machicote's abuse, likely would not have affected the grand jury's decision to indict the defendant given the testimony of Machicote and Officer Norberto Diaz that detailed the circumstances of the attack, Machicote's immediate report to the police, the multiple bloody stab wounds to Machicote's arms, chest and back, and the discovery of the defendant hiding in a neighbor's closet.
3. The prosecutor's closing. For substantially the reasons set forth in the Commonwealth's brief at pages twelve through eighteen we discern no error, much less a substantial risk of a miscarriage of justice, arising from the prosecutor's closing argument. We examine the prosecutor's closing in light of the entire argument, as well as the judge's instructions to the jury and the evidence at trial. See Commonwealth v. Christian, 430 Mass. 552, 564 (2000). Here, the prosecutor's argument did not misstate the evidence, vouch for the victim's credibility, or appeal to juror sympathy. Rather, the prosecutor made a fact based argument that suggested why the jury should believe the victim's account that the defendant attacked him. See Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989); Commonwealth v Raposa, 440 Mass. 684, 694-695 (2004).
The absence of any objection by defense counsel is some indication that, in context, the prosecutor's words were more innocuous than is now maintained. See Commonwealth v. Mello, 420 Mass. 375, 380 (1995). Moreover, the judge properly instructed the jury on the function of argument, their role in assessing witness credibility, and that their verdict must be based on the evidence, and not on emotion, sympathy, or prejudice. We presume the jury follow the judge's instructions. See Commonwealth v. Degro, 432 Mass. 319, 328 (2000).
The exhortation to "look at where the bloodstains are" and argument that "the bloodstains around the pocket of [the defendant's jeans] were consistent with a bloody knife having been placed there after it had been used" were permissible inferences from Machicote's testimony that the defendant stabbed him with a folding knife (that could not be found), and Officer Sean Condon's observation that the defendant had "blood on the front, sides, . . . back" and near the left pocket of his pants when he was found hiding in a neighbor's closet. See Commonwealth v. Cohen, 412 Mass. 375, 385-386 (1992).
Viewed in context, the prosecutor's argument that Machicote was a "human being" who "laid his life open for questioning and inspection by [twelve] strangers and the defense" did not amount to an impermissible comment on a victim's willingness to testify. Rather, the challenged argument was a proper attempt to humanize and rehabilitate Machicote against the attack on his credibility because of his drug and alcohol consumption and prior convictions. See Commonwealth v. Smith, 450 Mass. 395, 408 (2008).
Finally, the prosecutor's use of the word "crack head" was not an improper attempt to evoke sympathy and inflame the passions of the jury, but an attempt to refute the defense's claim that Machicote should be disbelieved based, in part, on his habitual drug use.
Judgment affirmed.
By the Court (Grasso, Kantrowitz & Meade, JJ.),
Clerk Entered: November 3, 2014.