Opinion
16-P-392
03-31-2017
COMMONWEALTH v. John T. SAWYER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury convicted the defendant of assault and battery of a household member (the girlfriend with whom he then was living). We affirm.
Background . The victim and the defendant dated for approximately three years, and they lived together in her home. She testified that the defendant kicked her on the evening of October 5, 2014, prompting her to call 911. The police responded, and the defendant left with them, but he returned a half-hour or so later. According to the victim's testimony, the defendant assaulted her again, pushing her into a radiator, punching her on the back of her head, and burning her with a lit cigarette. The Commonwealth introduced photographs substantiating various injuries, including bruises and a mark where the victim testified the defendant had burned her with the cigarette.
The defendant testified at trial. He admitted that he "shoved" the victim, after which—he claimed—she tripped and fell onto the radiator, causing her bruises. His defense was that he acted in self-defense. Specifically, he claimed that he was responding to the victim's burning him on the upper lip with a lit cigarette. The jury found him guilty of assault and battery on a household member, while acquitting him of assault and battery by means of a dangerous weapon (the lit cigarette).
He denied punching the victim but admitted that he had "pushed her and slapped her."
Discussion . The defendant raises three claims of error, which we address in order.
Evidence of the defendant's drinking . The victim testified to various statements that suggested that the defendant abused alcohol. For example, she testified that after he moved out, she "found 50 bottles of blackberry brandy all over the house," and she noted that she learned that the defendant had gone to a local store to buy alcohol on the night of the incident and "they wouldn't serve him the bottle." The defendant did not object to such testimony at trial, and he is left to argue that its introduction caused a substantial risk of a miscarriage of justice. See Commonwealth v. Madera , 76 Mass. App. Ct. 154, 160 (2010). Even if we assume arguendo that such testimony amounted to inappropriate propensity evidence, we discern no substantial risk of a miscarriage of justice. Both the victim and the defendant testified, and the jury had a full opportunity to assess their credibility. During his own testimony, the defendant admitted that he had drunk "about three beers" on the night of the incident, and he twice volunteered that he drank "frequently" and once characterized his drinking as "daily." Thus, the victim's testimony as to which the defendant now complains was largely cumulative of his own. In these circumstances, we are confident that any added force stemming from the victim's testimony about the defendant's drinking habits did not affect the jury's verdict.
The defendant's argument fares no better when recast as a claim of ineffective assistance. See Commonwealth v. Azar , 435 Mass. 675, 686-687 (2002) (equating the second prong of the ineffective assistance inquiry under Commonwealth v. Saferian , 366 Mass. 89, 96 [1974] with the substantial risk of a miscarriage of justice standard).
Booking photograph . At his counsel's request, the defendant's booking photograph was admitted in evidence, and counsel elicited from the arresting officer that the photo was a "fair and accurate depiction of how he looked" on the day of his arrest (which was twenty-three days after the incident). The photo shows the defendant with a close cropped beard (including a moustache). The defendant now claims that the admission of the photo amounted to ineffective assistance of counsel. He argues that because the photo reveals no signs of injury, it "devastated his only defense" that his actions were in reaction to the victim's burning him with a cigarette. Where, as here, a defendant seeks to raise a claim of ineffective assistance on direct appeal, he can prevail only if it "appears indisputably on the trial record." Commonwealth v. Adamides , 37 Mass. App. Ct. 339, 344 (1994).
He additionally complains that the photo was admitted in evidence without redaction, thus suggesting that he had a criminal record. However, the jury already were aware that the defendant must have been arrested for this crime (after all, he was on trial) and that the photograph was for this arrest, not some past arrest. In addition, when—shortly before the photograph was introduced—the arresting officer mentioned that he arrested the defendant, the judge issued a forceful curative instruction that "[t]he fact of the arrest, is irrelevant to your consideration ... It's not to be considered by you, the fact that the officer—however—arrested the defendant is not to be considered by you."
To be sure, the prosecutor did seek to use the photo to the Commonwealth's advantage by highlighting that it revealed no physical signs that the defendant had been burned by a cigarette to his face. However, the defendant never claimed that the victim's alleged use of the cigarette caused any significant damage to his face, stating instead that "it didn't really leave a big scar or anything." Moreover, although the defendant's beard was closely cropped, its presence still interfered with the jury's ability to make a close examination of the defendant's skin under that beard. In sum, while the photo may have done little to advance the defendant's case, neither did it "devastate[ ] his only defense" as he claims. Therefore, even if we assumed arguendo that his counsel's offering the photo in evidence fell "measurably below [behavior] which might be expected from an ordinary fallible lawyer," the defendant would be unable to show that this "likely deprived [him] of an otherwise available substantial ground of defence." Commonwealth v. Saferian , 366 Mass. 89, 96 (1974).
If the photo had not been introduced and the defendant had gone on to testify to greater injuries, the Commonwealth presumably could have introduced a redacted version of the photo on rebuttal.
The defendant did testify that the cigarette had "singed" his moustache hair, but—given how closely his moustache was cropped—the jury readily could have accepted his testimony that the moustache could have grown out in the twenty-three days between the incident and his arrest.
Closing argument . The defendant claims that the prosecutor's closing argument amounted to improper burden shifting. This argument warrants little comment. The prosecutor was free to argue, based on the evidence, that the victim was credible and the defendant was not. Commonwealth v. Krepon , 32 Mass. App. Ct. 945, 946-947 (1992). Nothing in his argument improperly suggested that the defendant bore any burden of proof. The judge instructed the jury that the Commonwealth bore the burden of proving each element beyond a reasonable doubt, and we have no reason to believe the jury was confused on this point. We discern no error in the prosecutor's closing argument, much less a substantial risk of a miscarriage of justice.
Again, the defendant fares no better by recasting such an argument in the form of one claiming ineffective assistance of counsel. See note 2, supra .
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Conclusion . Whether his arguments are taken individually or together, the defendant has not demonstrated any reversible error.
Judgment affirmed .