Opinion
14-P-1890
03-07-2016
COMMONWEALTH v. DEBRA BONSU.
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
After a jury trial in the District Court, the defendant, Debra Bonsu, was convicted of assault and battery by means of a dangerous weapon (a stick). On appeal, the defendant contends the judge (1) erred when he admitted hearsay evidence which undermined her defense, and (2) unfairly excluded proposed rebuttal testimony by the defendant's husband, Harry Bonsu, as to the issue of bias, creating a substantial risk of a miscarriage of justice. We affirm.
Because the defendant and her husband share a last name, we refer to the defendant's husband by his first name.
1. Hearsay testimony. The defendant asserts the judge committed prejudicial error in admitting the victim's testimony as to out-of-court statements made by her neighbors. She contends the admission of these statements undermined her theory of defense and specifically, could have led the jury to determine that the defendant used excessive force and did not act in defense of her daughter. The defendant lodged a timely objection, and therefore we review for prejudicial error. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
The victim testified that her neighbors ran outside during the altercation and they yelled, without specifying to whom the comment was directed: "Stop hitting her, stop hitting her. Why are you doing that?" We discern no error in the admission of these statements. The prosecutor was entitled to "present a full picture of the incident" to the jury. Commonwealth v. Leonardi, 413 Mass. 757, 764 (1992). The statements, if offered as an assertion that the victim was in distress, would be hearsay; however, when offered, as they were here, to explain what caused the assault to end, they would not be hearsay. Commonwealth v. Daley, 55 Mass. App. Ct. 88, 94 n.9 (2002). Here, the judge properly confined the jury's consideration of the statements to this nonhearsay purpose. In addition, the judge further instructed the jury that they could not find "that [the statement] was actually said based solely on the testimony" of the victim. We perceive no error.
Even if we assume, for argument's sake only, that the statements were inadmissible, we can say with fair assurance that the defendant experienced no prejudice. Here, other probative evidence depicted the defendant striking the victim repeatedly. Commonwealth v. O'Connor, 407 Mass. 663, 670 (1990) ("The mistaken admission of hearsay evidence, if merely cumulative of another witness's testimony, does not constitute reversible error"). The challenged testimony was merely cumulative of the properly admitted testimony of Olivia Walter, who was a percipient witness to the assault. Walter testified that she telephoned 911 when she saw the defendant "beating [the victim] with the tire iron" and said, "[G]et off of her." The victim also testified that the defendant was hitting her with a stick "the whole entire thing." On this record, the challenged testimony could not have "influence[d] the jury, or had but very slight effect." Commonwealth v. Flebotte, supra, quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983).
2. Sequestration order. The defendant next contends the judge erred in forbidding the defendant's husband, Harry, from testifying on the erroneous assumption that he had violated the judge's sequestration order. She further asserts that even if Harry violated the sequestration order, the judge should have allowed his testimony because there was no risk of perjury. Because the defendant did not preserve this claim by objection at trial, we review for a substantial risk of a miscarriage of justice. Commonwealth v. Jones, 464 Mass. 16, 18 (2012). "'The chief purpose' of sequestration is to 'prevent the commission of perjury.'" Commonwealth v. Ahart, 464 Mass. 437, 443 (2013), quoting from Commonwealth v. Gogan, 389 Mass. 255, 261 (1983). Sequestration also prevents witnesses from "'tailoring' their testimony to that of earlier witnesses; and it aids in detecting testimony that is less than candid." Geders v. United States, 425 U.S. 80, 87 (1976). See Commonwealth v. Bianco, 388 Mass. 358, 369 (1983), overruled on other grounds, Commonwealth v. Zanetti, 454 Mass. 449 (2009). "Both the sequestration of witnesses and the remedy for violating a sequestration order lie within the sound discretion of the trial judge." Commonwealth v. Pope, 392 Mass. 493, 506 (1984).
Contrary to the defendant's contention, the record here amply supports the judge's determination that the sequestration order had been violated. The witness interaction arose in the following manner. After the Commonwealth rested, the judge took a ten-minute recess. Following the recess, defense counsel announced her intention to present Harry as a witness for the limited purpose of rebutting Olivia Walter's testimony denying that she and Harry had had an extramarital affair. At this point, the prosecutor indicated that he had observed Harry ask the defendant during the recess, "What happened?" The prosecutor indicated that the two began to talk in "hushed tones." The prosecutor indicated that the defendant gave Harry a "blow by blow" description of the evidence presented in the court room and, while the prosecutor was unable to recount the witnesses' "long conversation" in specific detail, she heard the defendant state, "She's going to hell."
Defense counsel also observed the defendant -- who was present for the victim's and Walter's testimony -- speaking with Harry during the recess; upon seeing the two "sitting next to each other," defense counsel immediately said to the defendant, "You're not supposed to be talking to him." Further, the judge inquired of Harry himself and, while the judge stopped short of asking Harry the details of his conversation with his wife, Harry did confirm for the judge that he had spoken to his wife during the recess. Based upon the "hushed" nature of the conversation, and Harry's inquiry as to "[w]hat happened," we conclude the judge could reasonably infer that the defendant discussed with Harry the witnesses' testimony. Contrast Commonwealth v. Pope, supra (defendant failed to present "any evidence describing the content of the witnesses' conversation").
We also disagree with the defendant's assertion that Harry was not fully apprised of the sequestration order. The judge permissibly relied on counsel to convey the terms of the sequestration order to the defendant and any potential witnesses, including Harry, who also confirmed for the judge that he was told "not to discuss the testimony of other witnesses before [he] testified." Ibid. Under these circumstances, we view the defendant's contention that Harry did not violate the judge's order that "after [witnesses] testify they can't discuss their testimony or any cross examination with any other witness who has not yet testified," as unavailing. It was well within the judge's discretion to exclude testimony that violated the sequestration order. Commonwealth v. Jackson, 384 Mass. 572, 582 (1981). Accordingly, we discern no error and, hence, no substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002).
Harry was present in the court room when the sequestration order was issued.
We are not persuaded by the defendant's assertion that Harry's testimony was improperly excluded because it did not present a danger of perjury. "Although sequestration may be well used to prevent the occurrence of perjury, it serves an equally important function in preventing one witness' testimony from being inadvertently molded by the testimony of other witnesses." Reporters' Notes to Mass.R.Crim.P. 21, Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1598 (LexisNexis 2015-2016).
Judgment affirmed.
By the Court (Katzmann, Maldonado & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 7, 2016.