Opinion
14-P-894
03-23-2016
COMMONWEALTH v. CARMEN BONIFACIO.
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
Following a jury trial, the defendant, Carmen Bonifacio, was convicted of assault and battery on her three year old son pursuant to G. L. c. 265, § 13A(a). On appeal, the defendant argues that (1) there was insufficient evidence to disprove her parental discipline defense; (2) the trial judge erred in admitting irrelevant and prejudicial evidence; and (3) the prosecutor misstated evidence and asserted facts not in evidence during closing argument. We conclude that, because on multiple occasions, over objection, the judge erroneously allowed the Commonwealth to introduce highly prejudicial evidence, the conviction must be reversed.
The defendant was charged with assault and battery "by means of a dangerous weapon, a flip flop." G. L. c. 265, § 15A(b). The jury found her guilty of the lesser included offense of assault and battery. G. L. c. 265, § 13A(a).
Insufficient evidence. The defendant argues that the judge should have allowed her motion for a required finding of not guilty because the Commonwealth presented insufficient evidence to disprove that she used reasonable force to discipline her son.
"[A] parent or guardian may not be subjected to criminal liability for the use of force against a minor child . . . provided that (1) the force used against the minor child is reasonable; (2) the force is reasonably related to the purpose of safeguarding or promoting the welfare of the minor . . . ; and (3) the force used neither causes, nor creates a substantial risk of causing, physical harm (beyond fleeting pain or minor, transient marks), gross degradation, or severe mental distress." Commonwealth v. Dorvil, 472 Mass. 1, 12 (2015). Each prong of this affirmative defense presents a question of fact, and the burden is on the Commonwealth to disprove at least one prong beyond a reasonable doubt. Id. at 13. It is left to the fact finder to determine the credibility and weight of evidence offered by either party relating to the availability of the affirmative defense. Commonwealth v. Haddock, 46 Mass. App. Ct. 246, 249 (1999).
We note that the trial took place prior to the release of Commonwealth v. Dorvil, 472 Mass. 1 (2015). However, the jury instruction on the affirmative defense of parental discipline tracked the first and second prong of the analysis in Dorvil, stating, in part: "A parent is allowed to use reasonable force to discipline her child for the purpose of safeguarding or promoting the child's welfare. If there is evidence of parental use of force to discipline or chastisement . . . it is the Commonwealth who must prove beyond a reasonable doubt that the force was excessive, and that the defendant did not use reasonable force as a means of discipline."
Under the familiar Latimore standard, we ask "whether, after viewing the evidence in the light most favorable to the [Commonwealth], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
When Officer Wilson Quiles first arrived on scene at the defendant's apartment, he heard the defendant say to her family, in Spanish, "I can't believe you called the police, and whatever you tell them, I'm just going to deny it." The defendant was very angry. Officer Quiles then spoke to the defendant separately and asked for her side of the story. After first denying that she hit her son, the defendant admitted, "You know what, I struck him three times." The defendant then changed her story, claiming she hit the child two times, and then she said she struck him once. The defendant told Officer Quiles that she used her "flip-flop" to discipline her son but also told the officer that she hit her son because she was pregnant. When Officer Quiles asked the defendant to demonstrate how she hit the boy, she took off the flip-flop she was wearing, raised it up by her head, and swung it down and across her body, towards the ground, three or four times.
Officer Quiles testified that he is fluent in Spanish and had no difficulty understanding the defendant's statements made at the scene in Spanish.
The defendant's stepdaughter, Daisa Guilarte, described the defendant's son as "really small even for his age." She testified that the three year old boy weighed between twenty-five and thirty pounds and he came up to "a little bit above [her] knees." At this weight and height, he was small enough to be held in Guilarte's arms.
We have no difficulty concluding that a reasonable juror could have found that striking a boy of this age and this size repeatedly, with the amount of force described, using a shoe, was in fact unreasonable. Further, a reasonable juror could have rejected the defendant's statement to Officer Quiles that she hit her son with a flip-flop to discipline him and instead credited her statement that she hit him because she was pregnant. See Haddock, supra. Because a reasonable juror could have found that the defendant's use of force was neither reasonable nor aimed at promoting her son's welfare, we discern no error in the judge's denial of the defendant's motion for a required finding of not guilty.
Prior bad acts. Next, the defendant argues that the judge erred in admitting, over objection, evidence of prior bad acts. We agree that some of this testimony should have been excluded.
"It is well settled that the prosecution may not introduce evidence of a defendant's prior or subsequent bad acts for the purpose of demonstrating bad character or propensity to commit the crime charged." Commonwealth v. Barrett, 418 Mass. 788, 793 (1994). Such evidence may be admitted "for some other purpose, for instance, to establish motive, opportunity, intent, preparation, plan, knowledge, identity, or pattern of operation." Commonwealth v. Crayton, 470 Mass. 228, 249 (2014) (quotation omitted). However, the judge must first be satisfied, by a preponderance of the evidence, that a reasonable jury could "conclude that the act occurred and that the defendant was the actor." Commonwealth v. Leonard, 428 Mass. 782, 785 (1999), quoting from Huddleston v. United States, 485 U.S. 681, 689 (1988). In addition to these preliminary determinations, the judge "must consider whether the probative value of the evidence is outweighed by its prejudicial effect." Leonard, supra at 786. The judge's decision "will be upheld on appeal absent palpable error." Commonwealth v. Marrero, 427 Mass. 65, 67-68 (1998) (quotation omitted).
First, Guilarte testified that she and her brother lived in a basement apartment below the defendant and they would often hear children screaming and crying in the daycare center the defendant operated from her home. The crying would sometimes last for two hours.
Next, Guilarte testified that, over an eighteen-month period, she had observed scratches, bruises, and two black eyes on the defendant's son. When Guilarte asked the defendant what happened to the child, the defendant responded that "he was a very active child and he would just fall or trip and he would hit his face on the doorknob."
Lastly, Guilarte testified that on one occasion she "heard like a lot of crying for a good half hour or one hour," and she went upstairs to investigate. She knocked on the defendant's door and asked, "Carmen, can you open? . . . What's going on with [the son]?" As the defendant opened the door, Guilarte saw her simultaneously open the bathroom door and the son came out of the bathroom, crying. Guilarte asked the defendant, "What happened to him? Why is he so upset? Was he locked in the bathroom?"
The judge did not err in admitting evidence that Guilarte observed the defendant's son with a black eye on two prior occasions. Based on Guilarte's testimony, the judge could have rejected the defendant's explanation that he hit a door knob, which was arguably implausible given his small size and, instead, been satisfied, by a preponderance of the evidence, that the defendant caused these injuries. See Leonard, supra at 785. Further, the judge could have found that these prior bad acts were similar enough to the crime charged to be admissible on the issue of intent. See Crayton, supra.
It was, however, error to admit, over objection, evidence about frequent and prolonged crying from children in the defendant's daycare center and the bathroom incident. This testimony was not about the defendant's prior bad acts, but instead can best be described as suspicion and speculation that on other occasions, the defendant may have harmed her son and possibly other children. Because Guilarte's suspicions, particularly in regard to why the children were crying in the daycare center, were based on speculation, they were irrelevant. See Commonwealth v. Martin, 417 Mass. 187, 190 (1994). Without more, Guilarte's testimony was insufficient to support a finding that the defendant had, in fact, harmed a child on another occasion. See Leonard, supra at 785-786. The comments about the daycare center were also potentially highly prejudicial as the judge originally recognized.
During the motion in limine hearing, when the defendant requested the reference to her daycare center be stricken from the medical record, the judge specifically noted, "I agree because I can see one of the jurors saying 'Well, we need to protect the five other children.'" However, when such testimony was objected to at trial, the judge overruled the defendant's objection.
Because the defendant preserved these issues, we review for prejudicial error. Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). An error is prejudicial if we cannot conclude, "with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." Ibid. (quotation omitted). The evidence at trial was not overwhelming; no witnesses to the beating testified at trial. Certainly upon hearing evidence that children were often screaming and crying at the defendant's daycare center, the jury could have been swayed to convict the defendant, not based on the evidence before them, but instead based on their desire to protect other children. We therefore conclude that the judge's ruling was prejudicial error requiring a reversal. Other errors discussed below also significantly compounded the prejudice resulting from the admission of this evidence.
Medical record and closing argument. The defendant contends that the judge should not have allowed certain notations in the son's emergency room medical record to be admitted in evidence because they were irrelevant and unduly prejudicial. We agree that the judge should have redacted more of the medical record. Although an argument could be made that one or two of the challenged notations may have fallen within G. L. c. 233, § 79, as "records relate[d] to the treatment and medical history" of the defendant's son, the six references to "abuse" or "chronic abuse" in the medical record were excessive and some or all should have been stricken.
The defendant challenges the following medical record notations: (1) "Complaint of Child Abuse, Unspecified" in three separate places; (2) "Patient is here for evaluation after concern for abuse"; (3) "History of black eyes is concerning for chronic abuse"; and (4) "Impression: Abuse/Neglect Child(ren)."
The defendant also claims that the prosecutor improperly argued facts not in evidence when she stated that the defendant hit her son out of "rage" and "frustration" and she stated the flip-flop had a "hard plastic sole." See Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). We agree, and the Commonwealth concedes, that the prosecutor improperly misstated that the flip-flop had a "hard plastic sole" when the testimony was that it had a "soft rubber sole." See ibid. We discern no error in the prosecutor arguing that the defendant hit her son out of frustration. The reference to rage is more problematic, albeit arguably hyperbole.
The defendant also challenges the prosecutor's statement that the defendant raised the flip-flop "above her head" when testimony indicated she raised it "to [her] head." We discern no error here as it is a distinction without a difference.
We conclude that these errors, although not objected to, significantly compounded the prejudice resulting from the other improperly admitted evidence.
Judgment reversed.
Verdict set aside.
By the Court (Kafker, C.J., Rubin & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 23, 2016.