Opinion
20-P-869
02-18-2022
COMMONWEALTH v. ROCKIE WHITE.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury waived trial, a judge of the Superior Court found the defendant guilty of assault and battery causing serious bodily injury and assault. On appeal, the defendant argues that the judge erred by permitting his former girlfriend to testify that she was afraid of him and by allowing testimony from various witnesses detailing the investigation. We affirm.
The defendant was found not guilty of home invasion, and additional charges stemming from the same incident were nolle prossed prior to trial.
Background.
The judge could have found the following facts. On July 1, 2017, the victim, Matthew Goon, was expecting his friend, Leah Perry, to visit his home at 7 A.M. to purchase some marijuana. Unbeknownst to Goon, Perry's boyfriend, the defendant, accompanied Perry, and, when Goon opened the door, the defendant followed Perry into the home. Once inside, the defendant pulled out a gun, demanded money from Goon, and threatened to hurt him if he failed to comply. Perry left after being told to do so. Thereafter, the defendant pointed the gun at the back of Goon's head, pushed Goon into his bedroom, and continued to demand money. When Goon refused to comply, the defendant struck Goon in the head with the gun, breaking Goon's nose and cutting his face. After a brief scuffle, the defendant left. Goon then sought aid from a roommate who drove him to the hospital.
Perry testified that she did not see a gun or witness any physical altercation inside the home and that she left after the defendant had "yelled at [her] to get out."
At the time of trial, Goon had a scar over his right eyebrow and suffered from vision problems in his left eye.
Goon was interviewed by a police officer after receiving medical treatment for his injuries and provided a description of the assailant. Ultimately, Goon explained that he knew the person who had assaulted him, and that his name was "Chase." On four or five prior occasions, "Chase" had approached Goon and told him that he was a confidential informant for the Burlington police department and demanded money from him in exchange for not reporting Goon to the authorities. On one occasion Goon gave "Chase" $2,000 to "clear [his] name." About a week after the incident, on July 6, 2017, Goon selected the defendant's photograph from a photographic array and identified him as the person who assaulted him.
Based on information provided by Goon, the police spoke with Perry, who initially denied that she knew the assailant and provided a description of a fictitious person. At the request of the police, Perry also gave a description of the defendant. At some point after she was charged with criminal offenses stemming from her role in the incident, Perry decided to cooperate and testified at the defendant's trial pursuant to a cooperation agreement. She acknowledged that she was dating the defendant and that he was aware of her plan to meet Goon on the morning of July 1, 2017. She also admitted that the defendant accompanied her to Goon's house that morning. She further explained that she did not identify the defendant to the police because she was afraid that if the defendant had hurt Goon over money, then he would do the same to her and her family. The defendant later told Perry to refrain from divulging who the assailant was and to maintain her original story otherwise he would kill her.
Discussion.
The defendant first argues that Perry's testimony regarding her fear about what the defendant might do to her and her family if she told the police the truth amounted to inadmissible prior bad act evidence. We discern no error in the admission of this testimony and, even if there was error, the defendant was not prejudiced.
To begin with, as the Commonwealth notes in its brief, the challenged testimony cannot be properly characterized as prior bad act evidence because Perry's fear was based on the defendant's charged conduct and not on the defendant's prior conduct. In any event, even if we were to assume that the testimony should not have been admitted, it did not create reversible error Under the prejudicial error test, which is "quantitatively more favorable to a defendant," we inquire whether there was a "reasonable possibility that the error might have contributed to the [fact finder's] verdict" Commonwealth v Alphas, 430 Mass. 8, 23 (1999) (Greaney, J, concurring). In determining whether an error contributed to the verdict, we examine various factors, including the "weight or quantum of evidence of guilt." Commonwealth v. Rodriguez, 92 Mass.App.Ct. 774, 780 (2018), quoting Commonwealth v. Dagraca, 447 Mass. 546, 553 (2006). Here, the evidence supporting the defendant's guilt was strong. Goon identified the defendant based on his prior contact with him and selected the defendant's photograph from a photographic array. Furthermore, Perry testified that she was with the defendant the night before the incident and confirmed that he accompanied her to Goon's house on the morning of July 1, 2017. Goon's testimony about the injuries he sustained during the incident was corroborated by medical records, photographs, and testimony from his roommate and the police. Given this evidence, we are confident that even if Perry's testimony about being afraid of the defendant was erroneously admitted, it had no effect on the verdict.
We note that the defendant's prior abusive conduct toward Perry was the subject of a motion in limine that was allowed. The parties do not agree on the appropriate standard of review; the defendant contends that the issue was preserved, and that our review is thus for prejudicial error, while the Commonwealth argues that we review only for a substantial risk of a miscarriage of justice. We need not resolve this dispute because the argument is not availing under the more favorable standard of prejudicial error.
Lastly, we do not share the defendant's view that the judge, as fact finder, was unfairly influenced by the testimony. To the extent the evidence could be characterized as prior bad acts or improper character evidence, we are confident that the judge was appropriately familiar with the applicable law and correctly applied it. See Commonwealth v. Healy, 452 Mass. 510, 514 (2008) .
The defendant next argues that the judge abused his discretion by admitting evidence regarding certain aspects of the investigation. Specifically, he challenges the testimony provided by Officer Vito Costa, Detective Albert Gagne, and Perry explaining that Perry provided the police with a false description of the assailant. The defendant asserts that there was no legitimate reason to introduce this evidence because it was not relevant to any contested issue. We disagree. The testimony was relevant in that it provided the fact finder with a framework of the investigation. See Commonwealth v. Dorisca, 88 Mass.App.Ct. 776, 786-787 (2015) ("The extent to which the prosecutor is permitted to inform the [fact finder] of the nature and extent of the police investigation as part of its case-in-chief is best left to the sound discretion of the judge"). More importantly, the Commonwealth was required to prove the identity of the defendant as the culprit beyond a reasonable doubt, and the challenged evidence tended to establish that the police acted diligently to locate the person responsible for Goon's injuries. We therefore conclude that the probative value of the testimony at issue was not outweighed by the risk of prejudice. See Commonwealth v. Espinal, 482 Mass. 190, 202 (2019).
The parties disagree as to the applicable standard of review on this issue as well. Once again, we need not resolve the dispute because we discern no error.
Judgments affirmed.
The panelists are listed in order of seniority.