Opinion
19-P-1282
06-12-2020
COMMONWEALTH v. MANUEL BELLO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
A jury convicted the defendant of assault and battery on a family or household member. On appeal the defendant argues that the prosecutor's closing argument was improper and that the judge abused his discretion in responding to a jury question. We affirm.
Background. The victim (the defendant's wife) and the defendant gave conflicting accounts of the incident that led to the conviction. The victim testified that she was in the bathroom around 9 P.M. coloring her hair, when the defendant entered and asked, "[W]ho were you on the phone [with]?" When the victim would not say, the defendant hit her, grabbed her by the shoulders, and slammed her to the floor.
The defendant testified that, after working late, he came home around 11 P.M. and asked the victim if there was any food in the house. When the victim said no, the defendant went to bed. Around 1 A.M. he got up to go to the bathroom and saw that the victim was on the telephone. The defendant did not ask who was on the phone, but the victim "just mentioned . . . the name of a guy." As the defendant started collecting his clothes, the victim said, "So you're leaving?" and hit him with a stick, bit him, and came after him with a knife.
Closing argument. The defendant contends that the prosecutor twice misstated the evidence and vouched for the victim's credibility -- first, by suggesting that there was no reason why the victim would attack the defendant, and second, by commenting that there was no other testimony supporting the defendant's version of events. We disagree. A "prosecutor may comment on evidence developed at trial and draw inferences from such evidence" and "may make a fair response to an attack on the credibility of a government witness." Commonwealth v. Chavis, 415 Mass. 703, 713 (1993). Particularly in light of defense counsel's argument that the defendant was credible and the victim was not, it was permissible for the prosecutor to give the jury reasons why they should believe the victim, including that she had no motive to attack the defendant first. See id. at 714. Moreover, no vouching occurred as the prosecutor did not "express[] a personal belief in the credibility of a witness, or indicate[] that he . . . ha[d] knowledge independent of the evidence before the jury." Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). The argument was based in the evidence. There was no error and no substantial risk of a miscarriage of justice.
It appears that the defendant is challenging the following statement: "Now [the defendant] says he came in after a long day's work, asks whether there is any food in the house, she said no, and then for some reason she just attacked him, jumped him."
Precisely, the prosecutor stated, "There's no testimony here that explains why [the victim] would have been the first one to attack [the defendant] . . . other than that he said that's the way it happened."
Response to jury question. During deliberations the jury sent the judge a note asking, "Can you define more assault and battery?" Without consulting the parties, the judge responded by reinstructing the jury on the elements of assault and battery. Once the jury had left the court room, the judge asked, "Everyone all set?" Defense counsel replied, "Yes, Your Honor," raising no objection.
The defendant now argues that the judge abused his discretion by failing to reinstruct the jury that the Commonwealth had the burden to prove that the defendant did not act in self-defense. No such reinstruction was required. As the defendant acknowledges, the judge thoroughly instructed on self-defense in his main charge. Where, as here, "[t]he jury's question was a limited one . . . 'the judge was not required to repeat the whole or any part of his original instructions.'" Commonwealth v. Barros, 425 Mass. 572, 577 (1997), quoting Commonwealth v. King, 366 Mass. 6, 11 (1974). As the defendant raises no claim that the judge's response inaccurately stated the elements of assault and battery, there was no error and -- despite the judge's failure to consult with the parties -- no substantial risk of a miscarriage of justice. See Commonwealth v. Dyer, 460 Mass. 728, 740 (2011) ("The judge should have consulted with counsel on the [jury's] question, but . . . where the judge repeated her earlier instruction . . . almost verbatim and where there was no error in the substance of the instruction, we conclude there was no substantial likelihood of a miscarriage of justice").
The Commonwealth concedes that the judge should have consulted defense counsel and the prosecutor before responding to the jury's question.
Judgment affirmed.
By the Court (Massing, Shin & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 12, 2020.