Opinion
No. 11–P–966.
2012-06-21
COMMONWEALTH v. Thomas CIMENO.
By the Court (SIKORA, CARHART & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury found the defendant, Thomas Cimeno, guilty of three counts of assault and battery and of one count of assault. The defendant argues on appeal that the prosecutor improperly shifted the burden of proof to him by encouraging the jury to draw an adverse inference from his failure to produce certain witnesses. He argues further that his convictions are duplicative and violative of his right against double jeopardy.
The defendant presents this contention in section III of his brief. In accordance with the process prescribed in Commonwealth v. Moffett, 383 Mass. 201, 208 (1981), assigned counsel for the defendant has dissociated herself from that argument.
Background. The jury received the following evidence. The victim, Lynda Hetel, and the defendant met through an on-line dating site and had been dating since January of 2008. Throughout the course of the relationship the couple argued about the defendant's contacts with other women. In particular, Hetel was concerned about the defendant's relationship with Pamela Baker, whom Cimeno had previously dated for approximately eight years and with whom he had two children. The events in question occurred on June 27, 2008. On that evening Hetel came home from work around 6:30 P.M. The defendant was already at her house. Hetel discovered that the defendant had made a recent telephone call to Baker; the defendant and she began to argue. According to the defendant, Hetel then struck him in the head with a frying pan and inflicted a substantial wound; he then grappled with her in self-defense against further battery.
Hetel was unaware that the defendant had children with Baker. She believed that Baker was merely the defendant's former hairdresser. Hetel was aware that the defendant had some ongoing interaction with Baker.
Additionally, both the defendant and Baker testified that the defendant left Hetel's house and met Baker around 8:15 P.M. to deliver a child support payment. Baker testified that, after Cimeno left that meeting, Hetel arrived and that an argument flared up between the two women. Cimeno claimed that the physical confrontation with Hetel at her house occurred after his meeting with Baker.
According to Hetel, the confrontation at her house began outside and then moved inside. It turned violent. The defendant grabbed Hetel's shoulders and pushed her down onto the ceramic tile kitchen floor. Her shoulders and head struck the floor. The defendant then knelt on top of Hetel and punched her several times as he held her down. She retreated to the bathroom. The defendant followed, pushed her up against the bathroom wall, and then punched her in the kidneys.
Hetel then attempted three times to call her best friend, Linda Urban. Each time the defendant seized the telephone and hung up. Urban testified that she had called back twice and each time had the call disconnected. She called again; the defendant answered and said that Hetel was too busy to talk. Urban heard the victim screaming in the background, and insisted that the defendant put her on the phone. The defendant handed the cellular telephone to Hetel and left. Hetel then spoke with Urban and told her not to call the police.
On the following day, Saturday, June 28, Hetel visited the hospital. On Sunday, she went to a Worcester police station to report the incident. A Worcester police officer, Anthony Larange, testified that he met with the victim at her home on June 29. Officer Larange noticed that the victim had marks and bruises under each eye, on her lips, forehead, arms and kidney area. He was present as another officer photographed the victim's injuries. The photographs came into evidence.
At trial, the defendant testified that Hetel had first battered him with the frying pan, inflicted the head wound, and caused him to react in self-defense. He related also that on the night of the incident and during the following day he had visited six persons: his uncle, Mike Matheson; his roommate, Wes Schifone; friends named Ed Lopez, Sean Gilfoy, and Richie Cunha; and Baker. He testified that these witnesses had seen the head wound inflicted by Hetel's frying pan battery. Only Baker and Matheson testified accordingly. The remaining four witnesses did not appear.
The jury found the defendant guilty of assault as a lesser included offense within the charge of attempted murder; of assault and battery by seizure of Hetel and throwing her to the floor; of assault and battery by reason of punching Hetel after throwing her to the floor; and of assault and battery by punching Hetel in the kidneys after pushing her up against the wall in the bathroom.
Analysis. 1. Burden shifting. The defendant's main contention is that, both by cross-examination and by closing argument, the prosecutor improperly encouraged the jury to draw an adverse inference against the defendant's claim of a head wound and of the related necessity for self-defense by reason of the absence of four probable friendly witnesses able to corroborate his claim of a head wound and the absence of any photographs or medical records in substantiation of his head wound.
Preliminarily, the Commonwealth contends that the defendant has failed to preserve the issue by his omission of a contemporaneous objection at trial. However, at the conclusion of both cross-examination of the defendant and of the prosecutor's closing argument, defense counsel, at sidebar, requested the judge to provide the jury with a curative instruction to the effect that the burden of proof remained upon the prosecution to establish the charged offenses. Those requests effectively preserved the issue of burden shifting.
The judge characterized the cross-examination of the defendant as a “fair” challenge to his credibility. She did not give a “missing witness” instruction to the jury in her final charge. Defense counsel did not object to the absence of that instruction before the jury began deliberation. The judge did instruct the jury that the prosecution must prove each element of each charged offense beyond a reasonable doubt and that “[t]his burden of proof never shifts. The defendant is not required to call any witnesses or to produce any evidence, since he is presumed innocent.” She also instructed the jury that “opening statements and closing arguments of the attorneys” do not constitute evidence.
The defendant contends that, in response to trial counsel's objection to the potential burden-shifting effect of the prosecutor's cross-examination and closing comments, the judge should spontaneously have given the jury a “missing witness” instruction. In the circumstances, and for the following reasons, the omission of a spontaneous missing witness instruction did not harm the defendant.
The decision to give or to withhold that instruction lies in the sound discretion of the judge. See Commonwealth v. Thomas, 429 Mass. 146, 151 (1999); Commonwealth v. Ivy, 55 Mass.App.Ct. 851, 860 (2002). While the safer practice would have the prosecutor request prior permission from the judge to urge inferences from the absence of witnesses in support of the defendant, Commonwealth v. Broomhead, 67 Mass.App.Ct. 547, 551 (2006), we conclude that this case falls into the category in which the failure to request permission is not harmful because the Commonwealth had effectively set the evidentiary foundation entitling it to the instruction if it had explicitly asked. The judge appears implicitly to have accepted the presence of such a foundation. See Commonwealth v. Caldwell, 36 Mass.App.Ct. 570, 582 (1994); Commonwealth v. Smith, 49 Mass.App.Ct. 827, 830 (2000).
The foundational elements are “(1) whether the case against the defendant is [so strong that,] faced with the evidence, the defendant would be likely to call the missing witness if innocent; (2) whether the evidence to be given by the missing witness is important, central to the case, or just collateral or cumulative; (3) whether the party who fails to call the witness has superior knowledge of the whereabouts of the witness; and (4) whether the party has a ‘plausible reason’ for not producing the witness.” Commonwealth v. Ortiz, 61 Mass.App.Ct. 468, 471 (2004), quoting from Commonwealth v. Alves, 50 Mass.App.Ct. 796, 802 (2001).
In the circumstances of this case, (1) the evidence was so strong [the detailed testimony of the victim, of her friend Urban, and photos taken of her face and body by the police] that the defendant would have called one or more of the four absent witness in support of his position; (2) the evidence to be given by those witnesses was central to his defense of self-defense [their observation of his substantial head wound initially inflicted by the victim] and did not relate to a merely collateral matter or cumulative evidence; (3) the defendant had superior knowledge, if not exclusive knowledge, of the whereabouts of the four friendly witnesses whom he had visited during the day and one-half after the incident; (4) he did not have a convincingly “plausible reason” for the failure to produce them. While he might argue that their testimony was cumulative of the information from Baker and Matheson, those two witnesses were closely partisan in their relationship as the mother of his children and as his blood uncle. The support of nonfamilial witnesses was very important. He testified that he was going to have Gilfoy come but failed to follow up; that he simply did not ask Lopez to come; and that he did not “see the relevance” of Cunha's testimony. In sum, the Commonwealth would have received, and was entitled to, permission to argue the importance of the missing witnesses and to receive an instruction explaining that importance. No prejudicial harm resulted to the defendant from the judge's allowance of the pertinent cross-examination and closing argument.
Our analysis applies as well to the omission of documentary evidence (photographs; medical records) in corroboration of a head wound. Once the defendant introduced the theory of injury and self-defense, the Commonwealth was entitled to challenge its evidentiary weaknesses.
Independently, the judge appears properly to have viewed the cross-examination and summation upon the subject as a fair effort to impeach the credibility of the defendant once he had decided to testify in his own behalf. Commonwealth v. Santiago, 53 Mass.App.Ct. 567, 573 (2002). “Where incriminating evidence has been introduced by the Commonwealth and explanations consistent with his innocence could be produced by the defendant through witnesses other than himself, his failure in this respect may be deemed by the judge to be fair matter for comment.” Commonwealth v. Franklin, 366 Mass. 284, 293–294 (1974). We cannot conclude that the trial judge abused her discretion.
2. Prosecutor's closing argument that the defendant tailored his testimony. The defendant contends that the prosecutor improperly infringed upon his Federal and Massachusetts constitutional rights to remain silent by closing argument that the defendant “sat here, ... listened to the testimony” of the Commonwealth's witnesses, and then contrived his response. We review this unpreserved claim for substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 297–298 (2002). In Commonwealth v. Person, 400 Mass. 136, 140 (1987), the court wrote that a prosecutor should not argue “that the jury should draw a negative inference from the fact that the defendant remained silent until he testified.”
As the Commonwealth argues in response, the United States Supreme Court subsequently observed that “it is natural and irresistible for a jury, in evaluating the relative credibility of a defendant who testifies last, to have in mind and weigh in the balance the fact that he heard the testimony of all those who preceded him.” Portuondo v. Agard, 529 U.S. 67 (2000). Consequently, in Commonwealth v. Gaudette, 441 Mass. 762, 767 (2004), the Supreme Judicial Court concluded that “a prosecutor may ... attack the credibility of a defendant on the ground that his testimony has been shaped or changed in response to listening to the testimony of other witnesses.” In this instance, the Commonwealth was entitled to argue that the defendant had shaped his story of the frying pan battery in reaction to the victim's testimony and to submit that issue of credibility to the jury. In effect that argument aims not at the defendant's constitutional right to silence, but rather at the quality of his testimony. The judge's allowance of the argument was not error. As mentioned, she instructed the jury that closing argument did not constitute evidence.
3. Duplicative charges and double jeopardy. The defendant asserts that the four convictions arising from the same course of conduct are so closely related in fact that they constitute only one crime; and that the multiple convictions cause him double jeopardy and violate the due process standards of the Fifth and Fourteenth Amendments to the Federal Constitution and art. 12 of the Massachusetts Declaration of Rights. No objection of this character arose at trial. We therefore inspect only to determine whether a substantial risk of miscarriage of justice has occurred. Commonwealth v. Mamay, 407 Mass. 412, 418 (1990).
The defendant claims also that defense counsel's failure to raise the present argument at trial constituted ineffective assistance under the standard of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Ineffective assistance cannot result from trial counsel's omission of an unmeritorious or futile strategy, argument, motion, or objection. See, e.g., Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983); Commonwealth v. Comita, 441 Mass. 86, 90–91 (2004).
Multiple convictions and sentences are permissible if each conviction is premised on a distinct criminal act, even where the offenses arise from the very same criminal event. Commonwealth v. Vick, 454 Mass. 418, 435–436 (2009). When the defendant is charged with multiple counts of the same offense, the jury must determine whether the defendant's acts are “so closely related in fact as to constitute in substance but a single crime.” Id. at 435, quoting from Commonwealth v. St. Pierre, 377 Mass. 650, 662–663 (1979). The character of a defendant's actions as separate and distinct acts or as a single crime is a question of fact for the jury to resolve. See Commonwealth v. Maldonado, 429 Mass. 502, 509 (1999); Commonwealth v. Vick, 454 Mass. at 435 n. 16.
Here, the defendant's convictions of one count of assault and three separate counts of assault and battery are not duplicative. They rested upon separate physical acts by the defendant against the victim. The jury could properly find (1) one count of assault and battery resulting from the defendant's seizure of the victim and throwing her to the floor; (2) one count of assault resulting from holding the victim down on the kitchen floor; (3) a second count of assault and battery resulting from punching the victim after throwing her to the floor; and (4) a third count of assault and battery resulting from punching the victim in the kidneys after pushing her up against the wall in the bathroom. The resulting convictions and sentences were valid.
Judgments affirmed.