Opinion
18-P-1116
09-05-2019
COMMONWEALTH v. STEVEN BOULEY.
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
The defendant appeals from his conviction by a District Court jury of assault and battery on a household member (G. L. c. 265, § 13M [a]). On appeal, the defendant argues that (1) the prosecutor, in closing argument, improperly commented on his remaining silent after police arrived at the scene of an altercation between the victim and him, and (2) there was insufficient evidence that the victim was a household member. We affirm.
The defendant was found not guilty of resisting arrest (G. L. c. 268, § 32B) and of strangulation (G. L. c. 265, § 15D [b]). In addition, the judge allowed the defendant's motion for a required finding of not guilty on a charge of witness intimidation (G. L. c. 268, § 13B).
Background. The jury could have found that the defendant and the victim lived together in the victim's apartment. During an argument in the apartment concerning the defendant's having damaged the victim's car while driving it, there was a physical struggle, and the defendant struck the victim. The victim left, then returned a short time later with her friend Alyssa. The defendant came out of the apartment and became involved in a confrontation with Alyssa. The defendant himself then called 911. When Dracut Police Officers Daniel Nyoro and Tyler Gibson arrived, they spoke to the defendant, and then placed him under arrest.
The victim also testified that the defendant put his hands around her neck and prevented her from breathing for about fifteen seconds. The defendant denied having done so.
Both officers testified that the defendant struggled with them when they attempted to arrest him. The defendant denied having done so.
Discussion. 1. Prosecutor's closing argument. The defendant asserts that in the prosecutor's closing argument he improperly commented on the defendant's silence when the police arrived. We begin by recounting in some detail the evidence relevant to that issue.
Officer Nyoro testified that when he arrived at the scene, he asked the defendant "if he's a boyfriend to [the victim]," and the defendant answered that he was. Officer Nyoro then asked "what had happened" and the defendant replied that "[h]e had been in some sort of argument with his girlfriend and not much from there." Officer Nyoro was not asked to provide further details on what the defendant had said, nor did Officer Nyoro testify that the defendant said nothing at all further. Officer Gibson also testified, but he was not asked to, and did not, provide further pertinent details about any statements made by the defendant.
Officer Nyoro did testify that, once he said he was placing the defendant under arrest, the defendant said "no," he was "not going." But this occurred after their conversation about earlier events.
The defendant testified at trial and offered in evidence a recording of his 911 call, in which he told the dispatcher, "You have one woman spitting in my face and you have one woman hitting me. The one woman hitting me is my girlfriend." The defendant repeated these assertions in his testimony: that his girlfriend had hit him in the apartment, and that Alyssa had spat in his face outside. He further testified that when the police arrived, he had given them the same information. He also testified that when the officer asked him what had happened between him and his girlfriend in the apartment, he replied that "there was an altercation because I used the car."
In closing argument, the prosecutor said that although the defendant claimed he called 911 because the victim and Alyssa were assaulting him, "he never said a word of this to police. Not once. Why would two officers make up an entire[ly] different story?" On this basis, the defendant argues that the prosecutor improperly commented on his (the defendant's) silence as evidence of his guilt. See Doyle v. Ohio, 426 U.S. 610 (1976); Commonwealth v. Mahdi, 388 Mass. 679, 694-696 (1983).
The defendant did not, however, clearly raise any such objection at trial. Rather, trial counsel objected only that the argument constituted impermissible burden shifting. The judge replied that it was his practice to give a "very good defense instruction [on] the burden of proof," and counsel, apparently satisfied, did not pursue the matter further. As a part of his final charge, the judge instructed that the burden of proof was on the Commonwealth, not the defendant. At that point, counsel was free to object that the instruction was insufficient to correct any errors in the prosecutor's argument, but counsel did not do so.
Counsel had the opportunity to object; indeed, after the charge, he renewed his objection to the judge's refusal to give certain other requested instructions. Those instructions are not at issue in this appeal. Counsel's failure to raise any issue regarding a supposed comment on the defendant's silence provides some indication that the comment was not objectionable for that reason. See Commonwealth v. Johnson, 32 Mass. App. Ct. 989, 992 (1992).
Plainly, the judge never understood counsel's objection to relate to any prosecutorial comment on the defendant's silence, and counsel bypassed two opportunities (one precharge, the other postcharge) to make his objection clearer to the judge. In these circumstances, the issue was not preserved. See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005) (where, in response to objection to prosecutor's closing argument, judge gives curative instruction, defense counsel must object again if she considers curative instruction inadequate and wishes to preserve issue); Mass. G. Evid. § 1113(c) (2019). Thus we review to determine whether any error created a substantial risk of a miscarriage of justice. Beaudry, supra.
The Commonwealth concluded that the defendant did preserve his objection. On our independent review, we determine, for the reasons we have set forth, that the Commonwealth's concession is in error. See, e.g., Commonwealth v. Poirier, 458 Mass. 1014, 1015 (2010); Commonwealth v. McClary, 33 Mass. App. Ct. 678, 686 n.6 (1992), cert. denied, 510 U.S. 975 (1993). Therefore we apply the standard of a substantial risk of a miscarriage of justice.
That question turns on whether we have "a serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). We consider, among other things, "the strength of the Commonwealth's case against the defendant[,] . . . the nature of the error, [and] whether the error is sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error" (quotation and citation omitted). Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). See Commonwealth v. Kozec, 399 Mass. 514, 518 & n.8 (1987).
Here, assuming arguendo there was some error, when considered in the context of the trial as a whole, it had little if any effect on the jury. If anything, the jury would have been puzzled by the prosecutor's argument that the defendant "never said a word" to police on the scene about having been hit by the victim and spat upon by Alyssa. After all, it was indisputable that the defendant had made those assertions to the 911 dispatcher immediately before the police arrived. Thus, whether or not he repeated them to the officers at the scene, there could be no contention that he had invented this story for trial. Thus, when the prosecutor followed up his "never said a word" comment by rhetorically asking, "Why would two officers make up an entire different story," the jury would likely have wondered how this could matter. Although we agree that the Commonwealth's case was not overwhelming, we see no risk that the comment had any substantial effect on the jury.
The propriety of commenting on a defendant's silence turns in part on whether the silence occurred before or after arrest. Compare Commonwealth v. Gardner, 479 Mass. 764, 769-771 (2018) (prearrest), with Mahdi, 388 Mass. at 694-696 (postarrest). Because the issue was not raised below, the judge had no occasion to determine whether what the prosecutor referred to had occurred before or after arrest. The testimony of both Officer Nyoro and the defendant suggests that, before the defendant was arrested, the defendant gave the officer some information about the events preceding the 911 call. Although we need not resolve the issue, it appears that the prosecutor's comment would most naturally be understood as referring to the defendant's prearrest statements.
First, the judge instructed the jury that closing arguments were not evidence and that, if their memory of the testimony differed from what was asserted in closing arguments, their memory controlled. The prosecutor's argument would have been viewed in that light.
Second, in spite of the prosecutor's argument, the jury appeared to adopt a discerning approach to the defendant's credibility. For example, the defendant testified that he had neither put his hands around the victim's neck nor physically resisted arrest. The jury found him not guilty of both strangulation and resisting arrest, notwithstanding the victim's and the officers' clear testimony to the contrary.
Finally, although the jury apparently disbelieved the defendant's denial that he hit the victim, the prosecutor's comment did not relate directly to that central question. Rather, it went to a collateral issue: whether the defendant had told the police -- as he undeniably had said to the 911 dispatcher a few minutes earlier, and as he reiterated at trial -- that his girlfriend had hit him and that another woman had spat in his face. Even if the prosecutor's comment caused the jury to conclude that the defendant had omitted those details from what he told the police, we fail to see how that omission would have played any significant role in the jury's evaluation of the defendant's credibility.
In sum, the prosecutor's statement is most accurately characterized, as courts have done in similar cases involving asserted references to a defendant's silence, as "a vague and fleeting comment, not likely to influence, or even to seize the attention of the jury." Commonwealth v. Springer, 49 Mass. App. Ct. 469, 478 (2000), quoting Commonwealth v. Johnson, 32 Mass. App. Ct. 989, 992 (1992). There was no substantial risk of a miscarriage of justice.
We see no merit in the defendant's related claim that the prosecutor's closing argument impermissibly commented on the defendant's silence by asserting, in connection with the defendant's alleged physical resistance to arrest, that Officer Nyoro "tried many times to discuss it with the [d]efendant and to give him the opportunity to stand up to come with him." The comment made no clear reference to any response or lack of response by the defendant, there was no objection on this ground, and the defendant was found not guilty of resisting arrest.
2. Sufficiency of evidence. The defendant argues that the Commonwealth failed to introduce sufficient evidence that he and the victim were household members, and so the judge erred in denying his motion at the close of the Commonwealth's case for a required finding of not guilty on the charge of assault and battery on a household member. Reviewing the Commonwealth's evidence under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), we are not persuaded.
Although the transcript does not clearly indicate whether the defendant's motion encompassed this charge, we have reviewed a copy of the defendant's motion obtained from the District Court file and determined that it did.
Under G. L. c. 265, § 13M (c), a "'household member' shall mean persons who . . . (iii) are or have been in a substantive dating or engagement relationship." The statute further provides:
"[T]he trier of fact shall determine whether a relationship is substantive by considering the following factors: the length of time of the relationship; the type of relationship; the frequency of interaction between the parties; whether the relationship was terminated by either person; and the length of time elapsed since the termination of the relationship."Id. But these factors "are not themselves elements of the offense. There does not need to be evidence as to each factor, let alone proof beyond a reasonable doubt as to any one or more of them." Commonwealth v. Dustin, 476 Mass. 1003, 1006 n.7 (2016). "It is enough that the evidence on these factors, taken as a whole, warrants a finding of a substantive dating relationship beyond a reasonable doubt." Id.
Here, Officer Nyoro testified that the defendant stated at the scene that he was the victim's "boyfriend" and that she was his "girlfriend." See Dustin, 476 Mass. at 1004, 1006 (sufficient evidence of substantive dating relationship where defendant and victim testified that they were in "boyfriend-girlfriend" relationship, although not living together); Brossard v. West Roxbury Div. of the Dist. Court Dep't, 417 Mass. 183, 185 (1994) (that defendant referred to victim as "former girlfriend" tended to prove they were in substantive dating relationship). The victim was twenty-four years old and had a three year old daughter, the defendant had a four year old daughter, and all four of them were present in the apartment at the time of the argument. The victim further testified that, after she and the defendant argued, the defendant told her to "get yourself out of the house," whereupon the victim took her daughter and departed, thereby suggesting that the defendant exercised some control over the premises. The victim also testified that on the date of the incident, the defendant had "used [her] car . . . to go out and do whatever he was doing," after which he "returned," suggesting both that the apartment was the defendant's default location and that his relationship with the victim was such that he used her car.
Although the evidence at the close of the Commonwealth's case was not as strong as it might have been, it was sufficient, if only barely, under Latimore. The defendant's motion was properly denied.
The Commonwealth neglected to ask the victim about the length or nature of her relationship with the defendant.
Judgment affirmed.
By the Court (Henry, Sacks & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: September 5, 2019.