Opinion
14-P-89
03-06-2015
COMMONWEALTH v. OMAR S. BROWN.
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
A jury convicted the defendant of assault and battery upon a pregnant person, G. L. c. 265, § 13A(b)(ii). On appeal, he argues that (1) the judge erred by permitting the Commonwealth to call the victim for the sole purpose of impeaching her with prior inconsistent statements, and (2) admission of those prior inconsistent statements and of the victim's statements during a 911 call violated his confrontation right under the Sixth Amendment to the United States Constitution. We affirm.
The judge allowed the defendant's motion for a required finding of not guilty as to a second charge, assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b). Although the defendant was originally charged in both indictments as a habitual offender pursuant to G. L. c. 279, § 25, the Commonwealth did not proceed with this portion of the charge of which he was convicted.
1. Victim's testimony. On the morning of trial, the Commonwealth received a facsimile transmission (fax) from defense counsel in which the victim asserted her intention to recant her prior allegations against the defendant. The Commonwealth did not previously know that the victim intended to recant. Despite her stated intention, the Commonwealth called the victim to testify. The defendant argues that the Commonwealth should not have been permitted to do so because the sole purpose of calling her was to impeach her testimony with prior inconsistent statements. We disagree.
"Although G. L. c. 233, § 23, permits a party to impeach its own witness with prior inconsistent statements, 'a party cannot rely on this statutory right to call a witness whom he knows beforehand will offer no testimony relevant to an issue at trial solely for the purpose of impeaching that witness.'" Commonwealth v. Maldonado, 466 Mass. 742, 758 (2014), quoting from Commonwealth v. McAfee, 430 Mass. 483, 489-490 (1999). This rule, originally set forth in Commonwealth v. Benoit, 32 Mass. App. Ct. 111, 114 (1992), "furthers 'the sound policy of not permitting a litigant to evade the principle of hearsay exclusion and to introduce evidence which would be improper for the jury to consider for its substantive value.'" Commonwealth v. Maldonado, supra, quoting from Commonwealth v. McAfee, supra at 490.
The defendant's argument fails, if for no other reason, because the victim was called for purposes other than impeachment. Indeed, many aspects of the Commonwealth's case were established through the victim's direct unimpeached testimony. For example, the victim testified that she and the defendant had dated on and off for sixteen years and were currently in a relationship; that the defendant lived with her; that she was nine months pregnant on the night of the assault; that a police officer had photographed her injuries; and that photographs admitted in evidence fairly represented the injuries she had sustained. She also authenticated her voice on the 911 recording and authenticated her signature on an emergency restraining order application. In sum, despite her recantation, she offered relevant, valuable testimony. "The Benoit rule applies where the Commonwealth knows its witness will provide nothing of value; a showing to that effect has not been made in this case." Commonwealth v. Melo, 67 Mass. App. Ct. 71, 77 (2006). See Commonwealth v. Butler, 62 Mass. App. Ct. 836, 847-848, rev'd in part on other grounds, 445 Mass. 568 (2005). The fact that the Commonwealth received a fax stating the victim's intention to recant is of no import, since the Commonwealth still had reason to believe she would provide relevant testimony, and she did so. See Commonwealth v. Melo, supra.
Because the victim testified permissibly, the Commonwealth was permitted to impeach her with her prior inconsistent statements. Ibid. Contrast Commonwealth v. McAfee, supra at 490. The defendant's reliance on Commonwealth v. Maldonado, supra, is misplaced. In that case, unlike here, the witness was impeached with a prior statement that contained an inadmissible hearsay statement made by a third party. By contrast here, the victim's previous inconsistent statements would have been admissible had she repeated them at trial.
2. Confrontation clause. The defendant argues that the victim's prior inconsistent statements and her statements during the 911 call were testimonial and, therefore, their admission violated his confrontation right. Even assuming the defendant is correct that the statements were testimonial, the defendant's right of confrontation was satisfied because the victim testified at trial and was available for cross-examination. Commonwealth v. Sineiro, 432 Mass. 735, 743 n.8 (2000).
Judgment affirmed.
By the Court (Fecteau, Wolohojian & Massing, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: March 6, 2015.