Opinion
20-P-931
05-06-2021
COMMONWEALTH v. Marvin E. CARR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury convicted the defendant of assault and battery on a family or household member, his wife, in violation of G. L. c. 265, § 13M (a ) . On appeal, the defendant claims that the judge erred in allowing evidence of other bad acts and refusing to instruct the jury on prior inconsistent statements. The defendant also claims that the prosecutor made impermissible comments in her opening statement and closing argument. We affirm.
A witness intimidation charge, G. L. c. 268, § 13B, was dismissed prior to trial.
Background. Based on the evidence at trial, the jury could have found that the defendant angrily confronted the victim when she returned from work shortly after midnight on a Wednesday. The defendant grabbed the victim by the neck and brought her to the bedroom, where the conflict continued. The defendant again grabbed the victim's neck and, later, cocked his fist and told her that if she said "one more word," he would "knock [her] block off." The defendant was angry and posed himself as if he were going to punch the victim. When the victim attempted to go to sleep around 2 A.M. , the defendant indicated that he wanted to have sex. The victim rebuffed him. The defendant then mounted the victim and put his hands around her neck for a third time. After the victim rolled off the bed, the defendant grabbed the back of her neck and "pressured [her] head into the floor ... two or three times." The force of this action caused the victim to defecate on herself. Once the defendant allowed her to get up, the victim cleaned herself and then went to sleep.
At 6:30 A.M. , the victim got up to go to work. At the defendant's instruction, she gave the defendant a ride, believing she "wouldn't have made it to work" had she refused. In the car, the defendant took out a pocket knife and said, "[Y]ou're lucky that I love you." The victim dropped the defendant off at a train station, and then went to work. Thereafter, she went to a hospital, where she was examined, and then stayed with a family member.
Two days later, the victim reported the assault to police. The victim testified that she had delayed reporting the incident because she loved her husband, and because he had previously threatened to kill her if she called the police.
The defense at trial was that the conflict centered around an accusation that the victim had cheated on the defendant, which was enough to give the victim reason to lie.
Discussion. Other bad acts. The defendant argues that the judge erred in allowing evidence of three other bad acts. First, the defendant contends that the victim should not have been permitted to testify that the defendant had threatened (on some unspecified previous occasion[s]) that she would be dead before police arrived should she ever call them. This threat was originally the subject of a witness intimidation charge that was dismissed before trial. That charge having been dismissed, the defendant argues that it was error to allow the threats to be introduced. Second, the defendant argues that the responding police officer should not have been allowed to testify (in response to a question on cross-examination) that he believed the victim's old bruises were from a prior "attack." Third, the defendant contends that the victim should not have been permitted to testify that the defendant displayed a pocket knife in the car the day after the attack.
"It is well established that in appropriate cases, a defendant's prior acts of domestic violence may be admitted for the purpose of showing a ‘defendant's motive and intent and to depict the existence of a hostile relationship between the defendant and the victim.’ " Commonwealth v. Oberle, 476 Mass. 539, 550 (2017), quoting Commonwealth v. Linton, 456 Mass. 534, 551 (2010). Such acts are also admissible (1) "to rehabilitate the Commonwealth's witness by explaining why, after a long period of silence, [the victim] complained of the defendant's conduct," and (2) "as evidence of explanation of the victim's fear of going to the police." Commonwealth v. Hall, 66 Mass. App. Ct. 390, 394 (2006), quoting Commonwealth v. Errington, 390 Mass. 875, 881 (1984). The admission of the defendant's preassault threats and postassault display of a knife fell easily within these parameters. The evidence was also admissible to rebut the defendant's claim that the victim's delay in reporting the attack was evidence of fabrication and the absence of "tangible evidence." See Commonwealth v. Butler, 445 Mass. 568, 574-575 (2005) (evidence of prior bad acts may be admissible for other relevant purposes).
"Whether evidence of prior bad acts is relevant, and whether the probative value of such evidence is outweighed by its potential for unfair prejudice, are determinations committed to the sound discretion of the trial judge and will not be disturbed ... absent ‘palpable error.’ " Commonwealth v. McCowen, 458 Mass. 461, 478 (2010). Moreover, given the judge's contemporaneous instruction confining the jury's consideration of the evidence solely to the victim's delay in contacting the police, the judge did not abuse his discretion in concluding that the evidence would not be unduly prejudicial. See Commonwealth v. Gonzalez, 469 Mass. 410, 421 (2014) ; McCowen, supra. See also Commonwealth v. Anderson, 445 Mass. 195, 214 (2005) (presumption that jury follows instruction).
By contrast, it was error not to strike the officer's testimony that he believed the victim's old bruises related to a previous attack. To begin with, the testimony was not responsive to defense counsel's question on cross-examination, which sought only a "yes or no" answer about what was in the officer's report. Moreover, the police officer had no independent knowledge of how the victim received the bruises and to the extent his belief was based on information he received from the victim, it was hearsay.
The defendant objected to the answer as soon as it was uttered, but the judge denied the objection, apparently reasoning that there was no basis for the objection given that the testimony was in response to defense counsel's own question. This reasoning was incorrect. A witness's nonresponsive answer may -- and usually should -- be stricken upon timely request. See Commonwealth v. Almonte, 465 Mass. 224, 238–239 (2013). A party should not be saddled with an answer to a question it did not ask.
We thus ask whether the failure to strike the testimony was prejudicial. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). An error is not prejudicial if it "did not influence the jury, or had but very slight effect"; however, if we cannot find "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," then it is prejudicial. Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983). Here, defense counsel was able to mitigate the prejudice of the testimony by establishing on cross-examination that the victim did not claim the bruises were from the assault that was at issue in the case. The police officer also acknowledged that he did not witness the assault. Defense counsel ably stressed these points during his closing argument. Thus, there was no basis for the jury to find that the bruises bore on the only charge before them. In addition, the prosecutor neither directed the jury's attention to the officer's testimony about the bruising, nor asked the jury to consider it in any way.
Prior inconsistent statements. The defendant also argues that he was prejudiced by the denial of his request for an instruction on prior inconsistent statements. See Commonwealth v. Biancardi, 421 Mass. 251, 253-254 (1995) (written request preserves issue for appeal). Such an instruction is required "if there is evidence that a witness made prior inconsistent statements," Commonwealth v. Kessler, 442 Mass. 770, 778 (2004), quoting Commonwealth v. Ortiz, 39 Mass. App. Ct. 70, 71 (1995), defined as "one that ‘either by what it says or by what it omits to say, affords some indication that the fact was different from the testimony of the witness whom it is sought to contradict.’ " Commonwealth v. Perez, 460 Mass. 683, 699 (2011), quoting Commonwealth v. West, 312 Mass. 438, 440 (1942). While the defendant claims that the victim made an inconsistent statement to the officer regarding the portion of her body the defendant grabbed to "pressure" her head into the floor, the officer did not testify to any such statement, and at trial, the victim consistently stated that the defendant had grabbed her by the back of the neck. In these circumstances, a prior inconsistent statement instruction was not required.
The statement was recorded in the police report, which was not admitted in evidence at the trial.
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Opening and closing statements. Finally, the defendant argues that the prosecutor impermissibly vouched for the victim's credibility during her opening statement by referencing "concerned co-workers" and "encouragement from family and friends." With respect to the closing, the defendant claims that the prosecutor misstated the evidence and improperly commented on the defendant's decision not to testify. Because the defendant did not object at trial, we review to determine whether any error resulted in a substantial risk of a miscarriage of justice, see Commonwealth v. Staines, 441 Mass. 521, 534-535 (2004), taking into consideration "the entire argument, the judge's instructions to the jury, and the evidence actually introduced at trial." Commonwealth v. Thomas, 429 Mass. 146, 158 (1999).
The prosecutor did not vouch for the victim's credibility by outlining in her opening statement the victim's expected testimony. See Commonwealth v. Morgan, 449 Mass. 343, 360 (2007) (prosecutor "is permitted to state what he or she expects to prove by evidence"). It does not matter that the testimony was ultimately excluded. See Commonwealth v. Halstrom, 84 Mass. App. Ct. 372, 383-384 (2013). The prosecutor did not "assert [a] personal opinion as to the credibility of a witness," Commonwealth v. Chavis, 415 Mass. 703, 713 (1993), or "indicate that ... she has knowledge independent of the evidence before the jury." Commonwealth v. Kee, 449 Mass. 550, 560 (2007).
As to the closing argument, the defendant argues that the prosecutor misstated the evidence by stating that the attack "lasted two hours," thus implying that the victim was continuously assaulted during that period. We disagree. Although it might have been more precise to state that the attack occurred over the course of two hours, the jury would not have misunderstood the prosecutor's statement. The prosecutor did not suggest that the assault was uninterrupted, but rather that the defendant was angry with the victim from the time she came home from work to the time he finally allowed her to go to sleep over two hours later. The argument was supported by the victim's testimony that the entire episode (i.e., the beginning of the argument to the time she fell asleep) lasted about two hours, and it is well settled that prosecutors are entitled to "argu[e] forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence." Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). Moreover, the comment did not go to the heart of the case. The lack of objection indicates "that the tone [and] manner ... of the now challenged aspects of the prosecutor's argument were not unfairly prejudicial," Commonwealth v. Lyons, 426 Mass. 466, 471 (1999), quoting Commonwealth v. Mello, 420 Mass. 375, 380 (1995), and where the evidence at trial clearly laid out the timeline of the incident, we are not persuaded that the comment created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting Commonwealth v. Freeman, 352 Mass. 556, 564 (1967) ("An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not ‘materially influence[ ]’ the guilty verdict").
Finally, the defendant argues that the prosecutor impermissibly commented on the defendant's exercise of his right not to testify when she stated that "[the victim] knows what happened, she was there. The police officer ... wasn't there so he can't testify to what happened during the incident. They were only two people there." In context, the statement (although somewhat garbled) was clearly made in direct response to defense counsel's focus on the purported inconsistency between the victim's trial testimony and what she previously told the officer. A prosecutor is "entitled to ... ‘make a fair reply to the defendant's closing argument.’ " Commonwealth v. Lester, 486 Mass. 239, 251 (2020), quoting Commonwealth v. Fernandes, 478 Mass. 725, 741 (2018). The prosecutor made no reference to the defendant's election not to testify, which the judge repeatedly instructed the jury it could not consider in any event.
Judgment affirmed.