Opinion
14-P-1041
06-30-2015
COMMONWEALTH v. DENNIS CONNOLLY.
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
After a jury trial, the defendant was convicted on two counts of assault and battery. He appeals, arguing that the prosecutor, in her closing argument, improperly asserted her personal observations of the defendant during the trial and also misstated the evidence. In addition, he claims that the judge erred in not providing a curative instruction to the jury after the defendant objected to the argument. We affirm.
Background. The jury heard evidence that both the defendant and the victim were homeless and using alcohol at the time of the alleged assault. The victim testified that the defendant woke her up when she was sleeping on cardboard over a heating vent in the exit to a train station near Newbury Street in Boston. Afterwards, the defendant had "stalked" her, following her "everywhere," "yelling and saying threatening things" and scaring her; she had tried very hard to get away from him and thought she had succeeded. When the defendant woke her up in the morning, she walked away from him, but he approached her again, showing her two bottles of vodka. He then stood over her and punched her repeatedly in the face. "[H]e just punched me in the head . . . ,then punched my nose and my head bashed against the steel girder."
Inexplicably, despite this testimony, the trial judge sent only two assault and battery charges to the jury and allowed the defendant's motion for a directed a verdict of not guilty on so much of the indictment as charged the defendant with using a dangerous weapon. Cf. Commonwealth v. Strickland, 87 Mass. App Ct. 46, 60-61 (2015). ("'The essential question, when[, as here,] an object which is not dangerous per se is alleged to be a dangerous weapon, is whether the object, as used by the defendant, is capable of producing serious bodily harm.' Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922 (1984) . . . . See, e.g., Commonwealth v. Appleby, 380 Mass. 296, 303-305 (1980) (riding crop); Commonwealth v. Cruz, 430 Mass. 182, 194-195 (1999) (duct tape); Commonwealth v. Barrett, 12 Mass. App. Ct. 1001, 1002 (1981) (aerosol spray can); Commonwealth v. Rossi, 19 Mass. App. Ct. 257, 261 (1985) (large ring worn on hand); Commonwealth v. Marrero, 19 Mass. App. Ct. at 922-923 (boots); Commonwealth v. McIntosh, 56 Mass. App. Ct. 827, 830-831 (2002) (windowpane)").
The defendant claims that the prosecutor made several statements in her closing argument that constituted prejudicial error. Specifically, he contends the prosecutor improperly argued that the victim's injuries were consistent with a left-handed punch, without supporting expert testimony, and that she improperly inserted her personal observation that the defendant had been writing with his left hand during the trial. He also argues that Paul Gerrish, an MBTA employee, had testified only that he saw the defendant "yelling but [] couldn't make out what it was he was saying," and not, as the prosecutor stated, that the defendant was "screaming" at the victim.
As to the first argument, there was evidence that the victim's injuries appeared on the right side of her face. Given that, the prosecutor's argument that her injuries were consistent with a left-hand punch was a fair inference drawn from a "simple marshalling of the evidence." Commonwealth v. Boyajian, 68 Mass. App. Ct. 866, 869 (2007). See Commonwealth v. Junta, 62 Mass. App. Ct. 120, 127-128 (2004) ("There was no error, . . . in . . . the prosecutor's appealing, in closing argument, to the common sense of the jury in suggesting that bruises are not immediately visible but may take a day or two to appear. No expert medical testimony was required to support this argument").
The responding emergency medical technician testified that, when he responded to the scene, he observed the victim with a nose bleed and bruising to the right side of her face. The medical and emergency medical treatment records were admitted at trial as exhibits one and two; however, the trial exhibits were not included in this record.
In addition, the victim testified that the defendant had told her that he was a former "south paw," which she interpreted to mean "a left-handed boxer." The defendant testified on cross-examination that he was able to use his left hand as well as his right hand; he did not dispute the prosecutor's premise that he had been writing with his left hand throughout the trial. As a result, the prosecutor's comment in closing argument that the defendant had been writing with his left hand during the trial was based on the evidence, and she did not thereby make herself a witness or comment on facts not in evidence. We see no error.
The defendant testified that he was "equally [dexterous] with both hands." When he was asked whether he had been writing with his left hand during the trial, he responded "I do a lot of things with my left hand; I do a lot of things with my right hand. . . . I can use both hands." In response to the question, "Do you know what [the] term 'southpaw' means?" the defendant responded, "That's the way I protect myself."
The prosecutor's statement that the defendant was screaming at the victim was supported by the evidence presented at trial. Gerrish testified that, after being told by an unidentified passenger that "a woman [was] being [whaled] on up in the -- up in the bus way," he exited the station to the street and saw the defendant standing across the street in the bus stop shelter. Initially, the defendant was blocking the victim from Gerrish's view, but then Gerrish could see that the defendant was "standing over her," "waving around" his arms; Gerrish could hear the defendant "yelling but [he] couldn't make out what it was he was saying." He saw that the victim was "cowering" and "she had her hands up like she was in a defensive position." The use of the word "screaming," as opposed to "yelling," cannot reasonably be described as a misstatement of the evidence. In addition, the jury reasonably could infer from the testimony that the defendant was directing his actions towards the victim.
"Yell" is defined as "to utter a loud cry, scream, or shout Webster's Third New International Dictionary 2649 (1993).
Finally, the defendant argues that the judge erred in not providing a curative instruction after the prosecutor's argument. First, because there was no error, no curative instruction was required. In addition, "the judge instructed the jury both at the outset of the trial and in his charge that a closing argument is not evidence and that the jurors were responsible for assessing the credibility of the evidence." See, Commonwealth v. Rivera, 52 Mass. App. Ct. 321, 327 (2001). The defendant did not object after the judge's final instruction to the jury, indicating that "he acquiesced in the final charge, and so waived the right of full substantive review." Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 372 (2004).
Judgments affirmed.
By the Court (Kantrowitz, Kafker & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: June 30, 2015.