Opinion
13-P-1368
08-11-2015
COMMONWEALTH v. PAUL COPLEY.
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
The defendant was indicted on charges of breaking and entering a building in the daytime with intent to commit a felony, and being a habitual offender. After a Superior Court jury found him guilty of the breaking and entering offense, the Commonwealth elected not to proceed on the habitual offender portion of the indictment. After hearing, the judge sentenced the defendant to from nine to ten years in State prison.
In this, the defendant's direct appeal, the defendant argues: (1) the prosecutor's references in closing argument to the pregnancy of the victim's wife were improper appeals to sympathy; (2) the prosecutor's cross-examination of the defendant's investigator resulted in the erroneous admission of the victim's prior consistent statements; and (3) defense counsel was ineffective in conjunction with sentencing. We affirm.
Background. The jury could have found the following facts. On November 23, 2011, the victim, Luis Ramirez, resided with his then-pregnant wife on the first floor of a multifamily home in Fall River. As a result of a work-related accident in which he lost the top portion of three fingers, Ramirez was not employed and was attending "New England Tech."
That morning, Ramirez's wife had gone to work, and Ramirez was alone in the bedroom, studying. Ramirez heard the window blinds rattling in another room and, knowing that the window had been closed, went to investigate. When he got there, he found the defendant crouching near a bookshelf and reaching for a jar of coins. Ramirez also noticed that the window was open. Ramirez did not know the defendant and had never had any dealings with him.
Ramirez picked up a baseball bat and hit the defendant on the head. Ramirez then went to get a gun from his bedroom. When he returned, he saw the defendant leaving through the back door and followed him outside. The defendant began to flee, but then turned and rushed towards Ramirez. Ramirez pointed his gun at the defendant, and when the defendant did not stop, fired a shot into the air. The defendant proceeded to run around the house and left the premises through the front gate.
Ramirez told his neighbor, a Fall River police officer, who telephoned the police. Later, Ramirez was taken to a nearby spot to view a person matching the description he had given to the police. Ramirez identified the defendant as the intruder.
The defense was that Ramirez had fabricated the story about a break-in to deflect attention from the fact that he had illegally fired his gun in an encounter with the defendant. The defendant admitted going to see Ramirez that day, but denied that he ever went into Ramirez's house. The defendant stated that he had come into the yard to collect money that Ramirez owed him for marijuana, and that they had been doing business for three or four months. On cross-examination, however, the defendant admitted that he could not have met Ramirez three or four months earlier.
Outside the presence of the jury, the Commonwealth had established on voir dire examination of the defendant that he had been incarcerated until about two and one-half months before the incident.
Discussion. 1. Closing argument. Without having objected at trial, the defendant argues that the prosecutor's references to Ramirez's pregnant wife in closing argument were prejudicial. Viewed in context, at least some of those references were a fair response to defense counsel's closing argument, which attempted to portray Ramirez as an unemployed drug user. See Commonwealth v. Whitman, 453 Mass. 331, 346 (2009). The prosecutor argued, based on the evidence, that Ramirez was a family man who was not working due to an injury, and who regretted that his pregnant wife needed to work. In any event, even if some references to the wife's pregnancy were repetitious and gratuitous, they were of little consequence and not inflammatory. There was no substantial risk of a miscarriage of justice. See Commonwealth v. Delaney, 425 Mass. 587, 598 (1997).
2. Prior consistent statements. During cross-examination of the defendant's investigator, the prosecutor elicited details of the investigator's interview with Ramirez. There was no objection, but eventually the judge terminated this line of inquiry sua sponte. We agree with the defendant that if there had been a proper objection, he may have been entitled to the exclusion of Ramirez's prior consistent statements. See Commonwealth v. Darden, 5 Mass. App. Ct. 522, 527 (1977). Regardless, however, we discern no substantial risk of a miscarriage of justice.
Because the evidence was cumulative of other properly received evidence, the testimony by the investigator would have had very slight effect. See Commonwealth v. Martinez, 431 Mass. 168, 176 (2000); Commonwealth v. Bruce, 61 Mass. App. Ct. 474, 482 (2004). Furthermore, Ramirez's version of events was corroborated by the baseball bat wounds to the defendant's head. Finally, the investigator testified to other statements by Ramirez that did not support his (Ramirez's) testimony, and, hence, we are unable to rule out the possibility that defense counsel made a strategic choice not to object in order to take advantage of the inconsistencies. See Commonwealth v. Madera, 76 Mass. App. Ct. 154, 164 (2010).
3. Sentencing. The defendant argues that his trial counsel was ineffective during the sentencing process. As this is not one of those rare instances where the issues do not implicate factual questions more appropriately resolved by the trial judge, we decline to entertain the claim on direct appeal. See Commonwealth v. Zinser, 446 Mass. 807, 811 (2006); Commonwealth v. Keon K., 70 Mass. App. Ct. 568, 574 (2007).
Judgment affirmed.
By the Court (Cohen, Hanlon & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 11, 2015.