Opinion
2015-P-0116
07-11-2017
COMMONWEALTH v. James D. WATSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the District Court, the defendant was convicted of assault and battery. On appeal, he contends that (1) the judge erred in admitting certain portions of the victim's medical records, (2) the Commonwealth's misstatements in closing argument deprived him of a fair trial, (3) his trial counsel was ineffective, and (4) the judge erred in denying his motion for a new trial. We affirm.
Background. The conviction arose out of a physical altercation between the defendant and his then girl friend. At trial, the victim testified that the defendant had been resting in her upstairs bedroom because he did not feel well. Around 9:00 P.M. , she woke the defendant and offered him soup and a beer. She was surprised when, a few minutes later, the defendant came downstairs with a backpack, prepared to leave.
When the victim tried to stop the defendant from leaving, he knocked her to the floor, knelt on her chest and choked her, pushed her into walls, grabbed her by her neck, and pulled her "up and over" a table. After the defendant left, the victim called 911. One of the officers who responded to the call testified at trial that the victim was very scared, crying, and timid. He observed red marks around her neck. The victim did not want to go to the hospital at that time, but went the following morning as she had difficulty breathing and walking, and "was covered in bruises and red marks." Officers met her at the hospital and photographed her injuries. The victim testified that, in addition to the bruising, she had fractured a rib.
Discussion. 1. Admission of medical records. The defendant contends that the judge erred in admitting the victim's medical records both because the Commonwealth failed to comply with G. L. c. 233, § 79G, and the records contained inadmissible statements, such as references to the victim having been assaulted. The defendant did not object to the admission of the records generally at trial, thus any claim of error is unpreserved and we review only for a substantial risk of a miscarriage of justice. See Commonwealth v. Palacios, 90 Mass. App. Ct. 722, 725 (2016).
The defendant's claim is unavailing for two reasons. First, the defendant ignores that the records were admissible under G. L. c. 233, § 79, which provides that records kept by hospitals shall be admissible "so far as such records relate to the treatment and medical history." G. L. c. 233, § 79, as amended through St. 1959, c. 200. Such records, when "certified by the affidavit of the person in custody thereof to be a true and complete record," delivered to the clerk of the court, and made available for examination by all parties, "shall be deemed to be sufficiently identified to be admissible in evidence if admissible in all other respects." Ibid. See also Mass. G. Evid. § 803(6)(B) (2016). Here, the record demonstrates, and the defendant does not dispute, that the medical records contain the certification of the authorized custodian thereof and aver that the "attached record is a true copy of the medical record" of the victim. Therefore, they are generally admissible under § 79.
Second, § 79"has long been construed to permit the admission of a record that relates directly and primarily to the treatment and medical history of the patient, ‘even though incidentally the facts recorded may have some bearing on the question of liability.’ " Commonwealth v. Dube, 413 Mass. 570, 573 (1992), quoting from Leonard v. Boston Elevated Ry., 234 Mass. 480, 482-483 (1920). Such records are presumed reliable because they are made by medical professionals "charged with the responsibility of making accurate entries ... relied on in the course of treating patients." Bouchie v. Murray, 376 Mass. 524, 528 (1978). See Commonwealth v. Russo, 30 Mass. App. Ct. 923, 926 (1991). We have reviewed the medical records and conclude that the statements highlighted by the defendant were either relevant to treatment and medical history, and thus admissible under § 79, or properly excluded by the judge, even if the records incidentally contained some facts bearing on the issue of liability. See Commonwealth v. Concepcion, 362 Mass. 653, 655-656 (1972) ; Commonwealth v. Dimonte, 427 Mass. 233, 242 (1998). We discern no error.
The judge allowed the defendant's pretrial motion to redact portions of the records that did not relate to diagnosis and treatment. The few remaining references in the medical records to an assault typically contained qualifying phrases such as "alleges" or "presumably."
Even assuming arguendo that the records should not have been admitted, the alleged error did not create a substantial risk of a miscarriage of justice. The evidence of guilt was strong, particularly in view of the officer's observations of the victim and the red marks on the victim's neck shortly after the incident. Also, the defendant was found not guilty of assault by means of a dangerous weapon, which supports the conclusion that the jury carefully weighed the evidence and held the Commonwealth to its high burden of proof. See Commonwealth v. Sosnowski, 43 Mass. App. Ct. 367, 372 (1997) ; Commonwealth v. Petrillo, 50 Mass. App. Ct. 104, 109-110 (2000).
2. Commonwealth's closing argument. The defendant contends that statements made by the prosecutor in closing argument were improper and deprived him of a fair trial. We disagree. The statements were as follows:
"Counsel has made something of [the victim] bringing a couple of beers to the house. Insinuating that she has, perhaps a substance abuse problem. There is nothing before you that says that. It's not in evidence, there are no signs she was drinking th[at] evening."
The defendant did not object, so we again review to determine whether the alleged error created a substantial risk of a miscarriage of justice.
At trial, the victim admitted that she had been treated for depression and "self-medicating that depression with alcohol." She testified that she had purchased beer at the defendant's request, and testified that she had brought the defendant a beer on the night of the incident. However, there was no testimony or other evidence that she had been drinking that evening. Thus, the argument that there was no evidence the victim had been "drinking [that] evening" was proper.
By contrast, the statement regarding the absence of evidence of the victim's substance abuse problem was improper, as the judge, at the Commonwealth's request, had ordered references in the medical records to the victim's substance abuse issues to be redacted. Nonetheless, the misstatement was isolated and brief, and the judge clearly instructed at the beginning and end of trial that closing arguments are not evidence. For these reasons, as well as those delineated in section 1 supra, the misstatement did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Burns, 49 Mass. App. Ct. 677, 682–683 (2000).
3. Ineffective assistance. The defendant contends that trial counsel provided ineffective assistance by (1) failing to redact, suppress, or challenge the admissibility of the victim's medical records, (2) failing to object to the Commonwealth's closing argument, and (3) failing to summons a different officer to impeach the victim's credibility. The claims are unavailing.
To demonstrate ineffective assistance of counsel, the defendant must show that the behavior of counsel fell below that of an ordinary fallible lawyer and that such failing "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The second prong of the ineffective assistance test is met if there is a substantial risk of a miscarriage of justice arising from counsel's failure. See Commonwealth v. Millien, 474 Mass. 417, 432-433 (2016).
With respect to the medical records and closing argument, even assuming that the defendant satisfies the first prong of the Saferian test, he cannot satisfy the second prong for the reasons delineated in sections 1 and 2, supra. As to the failure to summons a police officer, the defendant contends that the victim had previously lied to an "Officer Rynne," falsely accusing the defendant of violating an abuse prevention order. The defendant argues that the failure to call Officer Rynne as a witness constituted ineffective assistance, as his testimony would have discredited the victim. We disagree. The claim is speculative. Moreover, decisions involving whether, when, and how to impeach a witness are tactical and left to the discretion of trial counsel. See Commonwealth v. Britto, 433 Mass. 596, 603 (2001). Indeed, the decision not to raise the existence of collateral claims involving restraining orders and alleged prior misconduct by the defendant against the victim was not manifestly unreasonable. See Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979). We further note that trial counsel effectively cross-examined the victim, and obtained an acquittal on the most serious charge. Accordingly, this is not a case where we have "serious doubt whether the jury verdict would have been the same had the defense been presented." Millien, supra at 432.
4. Motion for new trial. We review the denial of a motion for new trial "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1996). The judge's ruling "will not be reversed unless it is manifestly unjust, or unless the trial was infected with prejudicial constitutional error." Ibid., quoting from Commonwealth v. Tennison, 440 Mass. 553, 566 (2003). Further, we accord substantial deference to the motion judge here, as he was also the trial judge. See Commonwealth v. Schand, 420 Mass. 783, 787 (1995) (reversals are "particularly rare" where the motion and trial judge are one and the same). For the myriad reasons detailed above, the judge did not abuse his considerable discretion. ,
We have reviewed the transcript of the hearing on the motion for new trial, and are not persuaded by the defendant's claim that the failure to call an expert witness to discuss the medical records and the victim's alleged mental illness was manifestly unreasonable. The expert's testimony was speculative, and the decision not to employ an expert did not create a substantial risk of a miscarriage of justice.
To the extent we do not discuss other arguments made by the defendant, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Judgment affirmed.
Order denying motion for new trial affirmed.