Opinion
13-P-1313
01-06-2015
COMMONWEALTH v. DAVID BROHAWN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals his conviction of assault and battery by means of a dangerous weapon, following a jury trial in the Boston Municipal Court. He contends that evidence of his use of a dangerous weapon, namely his footwear, alleged as "boots" in the complaint, was insufficient to support the submission of the case to the jury, that the judge erroneously permitted certain evidence to be admitted, and that counsel was ineffective. We affirm.
First, we note that the defendant did not make an argument specifically challenging the lack of evidence of the dangerous weapon element, as he waived argument after filing his motion. Nonetheless, we consider the evidence on this element to be sufficient. "Footwear, such as a shoe, when used to kick, can be a dangerous weapon." Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922 (1984). "The essential question, when an object which is not dangerous per se [such as footwear] is alleged to be a dangerous weapon, is whether the object, as used by the defendant, is capable of producing serious bodily harm." Ibid. See also Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001). "Resolution of these questions is invariably for the fact finder . . . and involves not only consideration of any evidence as to the nature and specific features of the object but also attention to the circumstances surrounding the assault and the use of the object, and the manner in which it was handled or controlled." Tevlin, supra, quoting from Marrero, supra. The percipient testimony from Inspector Walsh that described the defendant's wearing of boots and kicking the victim was adequate to permit the jury's consideration and verdict.
The defendant's claim of error in connection with the admission in evidence of a statement of the victim to the effect that the defendant would kill her if he knew that she was talking to police, was not preserved by contemporaneous objection. Accordingly, we review this claim to ascertain whether a substantial risk of a miscarriage of justice was thereby created. We discern no such risk. The victim made the statement when Officer Rushton approached her; he described her as "cowering behind a rack, . . . crying, . . . almost hyperventilating, . . . very nervous, scared, visibly upset[,] and crying" at the time. As such, the victim's statement was admissible as an excited utterance, see Tevlin, supra at 318-319, and Commonwealth v. Santiago, 437 Mass. 620, 624 (2002), and to show her state of mind, see Commonwealth v. Montanez, 439 Mass. 441, 447-448 (2003), and Commonwealth v. Butler, 445 Mass. 568, 576 (2005).
See Commonwealth v. Whelton, 428 Mass. 24, 25-26 (1998) (trial objection necessary to preserve appellate rights notwithstanding motion in limine).
The defendant's claim of ineffective assistance of counsel can be read to include this unpreserved claim, see note 3, infra. Since there was neither error nor risk of a miscarriage of justice in its admission, counsel was not ineffective for failing to object.
Moreover, and to the extent the defendant argues otherwise, the victim provided substantive testimony in addition to having denied that she had made this statement and that the defendant had kicked her. The victim also testified about her relationship with the defendant and an argument during which the defendant kicked, according to her, some inanimate objects near where she lay. Therefore, it is apparent that she was not called to testify merely for the purpose of being impeached by the testimony from Officer Rushton, and, accordingly, the rule of Commonwealth v. Benoit, 32 Mass. App. Ct. 111, 114-115 (1992) (forbidding party from calling a witness solely for the purpose of impeaching that witness with hearsay evidence), was not violated.
Last, we review the contention that trial counsel's failure to object to the testimony from Officers McGillicuddy and Rushton that they went to the scene to respond to a report of an assault and battery in progress, amounts to ineffective assistance of counsel. We review such a claim to determine whether there was created a substantial risk of a miscarriage of justice; we discern no such risk. The defendant's reliance upon Commonwealth v. Rosario, 430 Mass. 505 (1999), is misplaced. The testimony at issue comported with Rosario, as it was based on the officers' personal knowledge, limited to the general subject of the call and without reference to additional details, and relevant to explaining why the two officers were dispatched to the scene. See id. at 509-510; Commonwealth v. Rupp, 57 Mass. App. Ct. 377, 383-384 (2003) (testimony by officer that he responded to a 911 call "[r]egarding a firearm" admissible under Rosario because "evidence was relevant and necessary to explain both why the police had arrived at the [scene] and also why they acted as they had when they got there"). It was clear by the evidence that the police were being summoned to investigate an assault and battery.
See Commonwealth v. Azar, 435 Mass. 675, 686-687 (2002) ("[W]hether we view the unpreserved claim of error . . . [by] utilizing the substantial risk of a miscarriage of justice standard, or . . . by focusing on counsel's ineffectiveness in failing to object to the error, our approach is essentially the same, and . . . the result would be the same."
Judgment affirmed.
By the Court (Cohen, Fecteau & Massing, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: January 6, 2015.