Opinion
No. 12–P–1421.
2013-06-18
COMMONWEALTH v. Francisco VICENTE.
By the Court (TRAINOR, GRAHAM & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals the denial of his motion for new trial of his jury conviction of two counts of indecent assault and battery on a child under fourteen years of age, in violation of G.L. c. 265, § 13B.
The sole issue on appeal is the defendant's contention that a substantial risk of a miscarriage of justice occurred when he was impeached with his prior conviction, including sentence information.
The defendant also was charged with two counts of rape of a child under the age of sixteen, in violation of G.L. c. 265, § 22A, and was found not guilty by the jury of both counts.
See Commonwealth v. Eugene, 438 Mass. 343, 352–353 (2003) (rather than assisting jury on issue of witness credibility, “references to the sentence imposed ‘has the potential to cause unfair prejudice to the witness by inviting the jury to speculate about the details and seriousness of the conviction’ ”), quoting from Commonwealth v. Kalhauser, 52 Mass.App.Ct. 339, 343 (2001). For substantially the reasons set forth in the Commonwealth's brief at pages 11 through 16, we affirm. The victim, the seven year old daughter of the defendant's live-in girlfriend testified at trial that, on the evening of December 21, 1999, the defendant, who at the request of the victim's mother was performing emergency babysitting, touched her “private part” both inside and out with his hand. The victim testified further that the defendant had touched her in that manner more than once. There was corroborative evidence.
In his motion for new trial, the defendant argued that his counsel was ineffective for failing to object when the defendant testified on cross-examination that he was sentenced to from five to seven years on a conviction of possession of cocaine with intent to distribute. The defendant, however, has conceded that trial counsel was not ineffective. The Commonwealth argues that the issue on appeal was not preserved at trial nor previously raised and therefore, in this appeal, the defendant should be limited to arguing only the ineffective assistance of counsel. Deciding the case as we do, we need not address that issue.
The victim's mother testified that she returned home and found the defendant in bed with the victim. The victim's teachers described the victim's demeanor at school the following day as dejected, sad, quiet, and withdrawn, in contrast to her normally happy and enthusiastic self. In addition, Dr. Edward Bailey, director of general pediatrics at Baystate Medical Center, examined the victim and opined that she had abnormalities in the area of her hymen due to the area being “repeatedly touched and repeatedly injured ... by something touching it and passing through it.”
The defendant testified at trial and denied the charges. On cross-examination the prosecutor asked whether he was sentenced to from five to seven years in prison for his prior conviction of drug possession with intent to distribute. There was no objection by counsel and the defendant answered, “Yes.”
In Commonwealth v. Kalhauser, supra at 342–343, decided August 24, 2001, after the defendant's trial (which concluded on April 6, 2001) and before the defendant's appeal was entered, we concluded that “[t]he nature of the crime charged and conviction of it have a bearing on credibility, but the sentence imposed does not.”
For the following reasons, we conclude that the error here did not result in a substantial risk of a miscarriage of justice.
The evidence of the defendant's guilt was strong, the challenged testimony was brief and limited, and the trial judge gave the jury a strong limiting instruction (“You may not consider [the conviction and the sentence] for any purpose other than whether you believe that that circumstance affects your evaluation of the credibility of” the defendant). Moreover, because the jury found the defendant not guilty of two of the four charges, we can say with fair assurance that the challenged testimony did not have a significant impact on the jury's decision.
A substantial risk of a miscarriage of justice exists when we have “serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. Azar, 435 Mass. 675, 687 (2002), quoting from Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).
Order denying motion for new trial affirmed.