Opinion
18-P-1300
10-24-2019
COMMONWEALTH v. Jamie BENT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in Essex Superior Court, the defendant was convicted of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b ). On appeal, the defendant raises two issues. First, he contends that the evidence identifying him as the assailant was insufficient. Second, he maintains that the prosecutor's comment during closing argument urging the jury to hold the defendant "accountable" created a substantial risk of a miscarriage of justice. We affirm.
The defendant was acquitted of armed assault with intent to murder, G. L. c. 265, § 18 (b ).
Sufficiency of the evidence of identification. Viewed in the light most favorable to the Commonwealth, the evidence was as follows. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The victim was stabbed multiple times near the Peabody Essex Museum in Salem. The assault was captured on surveillance video recordings (videos).
The victim was largely uncooperative with the investigation, and eventually drew a sketch of his assailant, whom he described as a "Hispanic male in his twenties with a ponytail riding a BMX-style bicycle." Officers showed the victim a photographic array, which included the defendant's photograph; rather than select the defendant, the victim selected the photograph of a different white male as "definitely" the man who stabbed him. At trial, however, the victim testified that the sketch was of someone he identified in the area, not necessarily the assailant; he also testified that he was heavily medicated at the time he drew it.
Nicole Cameron, who was dating the defendant "for a few weeks" at the time of the stabbing, testified pursuant to a cooperation agreement with the district attorney's office. She explained that, moments before the stabbing, the victim had called her a "crack whore" and spit on her as she and the defendant passed the victim. Thereafter, the defendant and the victim engaged in a fist fight, during which Cameron kicked the victim several times and called the victim a "racial slur."
Pursuant to the agreement, Cameron's criminal charges were reduced to one count of assault and battery for which she was to receive a suspended jail sentence with probation in exchange for her testimony. The judge instructed the jury regarding this cooperation agreement and the need for them to evaluate Cameron's credibility in light of the agreement. These instructions were given after Cameron's testimony and in the final jury charge.
Cameron identified herself and the defendant on the surveillance videos, which she had not seen prior to trial. She testified that, during the fight, the defendant pulled out a knife. Pointing to the surveillance videos, Cameron identified the knife, which flew onto the ground. Before Cameron could kick it away, the defendant grabbed it. The defendant is shown in the surveillance videos wielding the knife that he had grabbed and making multiple slashing motions against the victim.
The assailant shown on the surveillance videos had a bald spot. At trial, the judge allowed a physical demonstration by the defendant of his bald spot.
Cameron testified that the defendant carried a knife because, a few days before the stabbing, he had been assaulted. The defendant had a black eye due to the prior assault, which is visible in booking photographs of the defendant at the time of his arrest.
At some point, Cameron walked away and headed toward a graveyard where the defendant later met her. The two buried the knife. Days later, Cameron returned to the graveyard, dug up the knife, and put it in her backpack.
Cameron testified that she retrieved the knife because she "didn't want anyone to get in trouble."
Contrary to the defendant's position, the evidence and the reasonable inferences drawn therefrom were sufficient to warrant a finding that the defendant was the assailant. Accordingly, "[t]he judge properly denied the motion [for required finding] and left the assessment of the weight and credibility of the evidence for the jury." Commonwealth v. Forte, 469 Mass. 469, 481 (2014). As the defendant concedes, this is not a case where the surveillance videos contradict the witnesses' testimony. To the contrary, the videos are consistent with Cameron's account of what happened, and "[i]nterpretation of the footage in relation to the witnesses' testimony was for the jury." Id. at 482 n.23.
The defendant's reliance on Berry v. Commonwealth, 393 Mass. 793 (1985), is misplaced. In Berry, a small child died while in the care of both the defendant and his wife -- each of whom had the opportunity, ability, and motive to commit the assault on the infant. Id. at 796. Here, the surveillance videos show a white male, fitting the defendant's description, holding an object that appears to be a knife while engaged in a fight with the victim. Furthermore, Cameron identified the white male as the defendant. While the defendant argues that Cameron is not credible, issues of credibility were for the jury. See Commonwealth v. Cole, 473 Mass. 317, 334 (2015), abrogated on other grounds by Commonwealth v. Wardsworth, 482 Mass. 454, 464 n.18 (2019). This is true even though Cameron entered into a cooperation agreement with the government -- a fact that the judge properly instructed the jury to consider. See Commonwealth v. Ciampa, 406 Mass. 257, 261, 266 (1989).
Closing argument. The defendant also contends that the prosecutor's statement, during closing argument, that the defendant "must be held accountable" was an improper appeal to juror sympathy. Specifically, after reviewing the evidence of identity, including Cameron's testimony and the surveillance videos, the prosecutor stated:
"The judge will instruct you, however, that you may find some mitigating factors in this case, including reasonable provocation, heat of passion induced by sudden combat, or excessive use of self-defense, and if you find that any of these elements are present you may convict [the defendant] on a lesser included charge of assault to kill. Whatever you decide his motive that night, whatever you determine his actions were, the fact remains he stabbed [the victim] three times, twice in the chest, once in the thigh, and he must be held accountable for that. Please do so with your verdict."
In context, the prosecutor's words were not a plea to the jury to convict the defendant based on passion or sympathy; instead, the prosecutor specifically referenced the facts in evidence as well as potential mitigating factors favoring the defendant. See Commonwealth v. Molle, 56 Mass. App. Ct. 621, 631 (2002) ("It is not improper, however, for a prosecutor to argue that a defendant should be held accountable for his actions"). Compare Commonwealth v. Torres, 437 Mass. 460, 465 (2002) (improper for prosecutor to ask jury to answer victim's calls to her dead father for justice and now hold defendant accountable). Accordingly, the statement did not cross the line into improper argument, a conclusion that is buttressed by the failure of defense counsel to lodge a contemporaneous objection. See Commonwealth v. Miller, 457 Mass. 69, 80 (2010). In any event, the brief statement was made at the end of a closing argument that occupied ten pages of transcript. Thus, even assuming arguendo that the statement was improper, it caused no substantial risk of a miscarriage of justice especially in view of the judge's admonition regarding the nonevidentiary nature of closing arguments and instruction to decide the case on the evidence, not passion or sympathy. See id.
Judgment affirmed.