Opinion
No. 11–P–1413.
2012-07-17
COMMONWEALTH v. Benjamin CARRASQUILLO.
By the Court (VUONO, SIKORA & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from convictions of attempted murder by drowning, G.L. c. 265, § 16, assault and battery, G.L. c. 265, § 13A, and threatening to commit a crime (G.L. c. 275, § 2), to wit, murder.
In connection with the charge of attempted murder by drowning, the defendant avers the judge erred in excluding the testimony of a purported expert, offered by the defense to specifically opine on the issue whether the victim medically presented a case of “near drowning.”
The defendant was also charged with, but acquitted of, assault and battery by means of a dangerous weapon (a wooden chair), G.L. c. 265, § 15A, and intimidation of a witness (the victim's sister), G.L. c. 268, § 13B.
The defendant also contends that the judge improperly allowed the Commonwealth to rehabilitate the victim by introducing evidence of her prior, consistent statements to police. We affirm.
There is no challenge on appeal to the judge's denial of the defendant's motion for a required finding of not guilty.
This court will only review a trial judge's admission or exclusion of expert testimony for an abuse of discretion. Commonwealth v. Richardson, 423 Mass. 180, 182 (1996). While the defendant contends the exclusion in this instance constitutes such an abuse as he was deprived of his constitutional right to present testimony, we find the judge acted within her discretion in excluding the proffered opinion testimony. Relying on Commonwealth v. Dixon, 34 Mass.App.Ct. 653, 657 (1993), the defendant contends that medical testimony describing the physical condition of the victim was relevant to support his underlying defense that the defendant failed to commit an act that constituted “more than preparation” and “very near to accomplishment” of drowning the victim; therefore, exclusion of the expert opinion effectively deprived the defendant of his constitutional right. The defendant's reliance on Dixon is misplaced.
In Dixon, the court reversed a conviction of assault and battery as a lesser included offense within the crime of attempted murder by strangulation, reasoning the two crimes were distinct, as there is “the possibility of an attempted murder by strangulation without any physical touching,” and ultimately concluding that such a verdict option was improperly given to the jury. Ibid. The defendant's reading of Dixon necessarily ignores this rationale, which, in full, opined that “[t]he overt act required for an attempt must, after all, be more than preparation and must come very near to accomplishment of the result. Yet it is possible that such an act might occur as, for example, where plainly imminent strangulation is interrupted by an external event.” Dixon, supra (citations omitted).
It necessarily follows that in order to prove an attempted murder by drowning, it is likewise unnecessary to prove that the victim was near death by drowning; the essential inquiry is what overt acts the defendant committed and what result he intended to achieve, rather than what physical harm to the victim resulted as a consequence of committing said acts.
As an example, the Dixon court contemplated “a case in which a perpetrator, intending to cause a person's death, sneaked up behind the person with a garotting cord and, just as the perpetrator reached his arms over the person's head, someone burst into the room and interrupted the attempt.” 34 Mass.App.Ct. at 657 n. 3.
Specifically we opined, “with respect to attempts to murder by drowning, we think the statute was probably intended to reach the conduct of one who, hypothetically, tries to overturn a rowboat knowing that the occupant cannot swim as well as the conduct of one who succeeds in throwing the occupant into the water.” Dixon, 34 Mass.App.Ct. at 656.
Here, there was ample evidence that the defendant committed the requisite acts, namely several batteries, including forcing the victim's head under water, and expressed an intent to kill the victim. By all indication, drowning was imminent but the victim's sister intervened in the course of events. Whether the victim's physical condition after these events qualified as “near death,” in the medical sense, was not relevant to a material issue in the case, as it was the nature of the prior overt acts and the intent underlying them that fulfilled the essential elements set forth by the statute. To the extent that the purported expert testimony was offered to show that the defendant had not committed an overt act since the victim was not “near death,” it was also excludable, in the discretion of the judge, as confusing or misleading to the jury.
See Mass. G. Evid. § 403 (2011).
The defendant's expert was permitted, however, to testify to underlying facts, including that the victim's medical records showed, on examination, that there was no water in her lungs and that her blood oxygenation level was near normal.
The defendant alternatively complains the judge erred in allowing the Commonwealth to introduce testimony that substantiated the victim's testimony describing the events that transpired on the day in question. We likewise discern no error.
At trial, the defendant sought to impeach the victim with evidence from an investigating police officer highlighting several inconsistencies between the victim's testimony and the statement she gave the officer while being treated in the hospital after the incident in question. On redirect examination, the Commonwealth was permitted to have the police officer read to the jury the complete statement the victim made to him. Admission of such testimony in evidence was proper for both verbal completeness (see Commonwealth v. Aviles, 461 Mass. 60, 75–76 (2011); Mass. G. Evid. § 106) and to rehabilitate the victim against an implied claim of recent contrivance or fabrication. See Commonwealth v. Brookins, 416 Mass. 97, 102–103 (1993); Mass. G. Evid. § 613(b)(2). Moreover, the judge gave contemporaneous and final instructions limiting the jury's consideration of this evidence to the issue of credibility. There was no error.
Judgments affirmed.