Opinion
No. 15–P–459.
08-26-2016
COMMONWEALTH v. Raizza COSME.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Raizza Cosme, was convicted of reckless endangerment of a child and three counts of assault and battery. The victims were her two daughters, Susan and Lisa. , She appeals, arguing that evidence of the fact that she had lost of custody of her children was irrelevant and therefore improperly admitted, causing prejudicial error; the child endangerment conviction cannot stand because her codefendant was acquitted of the related assault and battery charge; and she was deprived of effective assistance when trial counsel did not object to evidence that varied from a pretrial bill of particulars. We affirm.
We use pseudonyms for the children's names.
The defendant was acquitted of assault and battery by means of a dangerous weapon, to wit, a belt (count 1) of Susan, and assault and battery of Lisa (count 6). She was convicted of the lesser included offenses of assault and battery of Susan (counts 2 and 3), but acquitted of so much of each charge as alleged a dangerous weapon (handcuffs and rice). She was convicted of an additional charge of assault and battery of Susan (count 4), and also reckless endangerment of a child on Lisa (count 5).
Admission of evidence. Susan testified at trial that the defendant was her mother. During the time at issue, the defendant and Susan were living in an apartment on Williams Street in Fall River along with Lisa, who is Susan's younger sister, and the defendant's boy friend, who was the codefendant. Susan testified that, during that time, the defendant abused her physically on many occasions and the codefendant did so once. Susan also testified that, while looking through a hole in her bedroom wall, she could see into the defendant's bedroom. Once, she saw the defendant holding Lisa up by the arms while the codefendant hit the child with a closed fist in the abdomen and on her knee.
On cross-examination, Susan recalled speaking about the investigation of this case with Melanie Medeiros, a Department of Children and Families investigator, and some others, whom she could not name. Defense counsel questioned Susan extensively about whether she had showed Medeiros or anyone else any marks, welts, cuts, bleeding, or bruises on her body that she said were caused by the defendant's abuse; Susan consistently responded, “No.” She also stated that she had described the Williams Street apartment, including a broken door that was the result of a fight between the defendant and the codefendant, and a hole in her bedroom wall, but that she did not show them to Medeiros, or anyone else.
The interview between Medeiros and Susan took place sometime in December, 2009.
In fact, evidence that Susan and Lisa had been removed from the defendant's care, was first offered to the jury during the defendant's cross-examination of Susan, before the now challenged redirect examination. Specifically, defense counsel asked Susan, “Did you ever show Melanie Medeiros that door?” Susan responded, “I don't like I, after I was removed, I, we didn't go back to the house.” In addition, the defendant herself later testified that the Department of Children and Families had removed her children from her care.
During a sidebar discussion before the prosecutor's redirect examination, the judge ruled that the prosecutor could “establish ... through a properly framed leading question, that from the end of August, 2009 forward, Susan was not living with the defendants on Williams Street, and that further ... when she was interviewed by Melanie Medeiros ... she was not in the apartment in Williams Street when those interviews were conducted.” The codefendant objected, but the defendant did not. The judge also made clear that he would not permit the prosecutor to ask Susan any questions about where she was living during that time, or about the fact that she had been removed from the defendant's custody.
“The trial judge has ‘substantial discretion in deciding whether evidence is relevant, and whether the prejudicial implications of such evidence outweigh its probative value.’ “ Commonwealth v. Scesny, 472 Mass. 185, 199 (2015), quoting from Commonwealth v. Pina, 430 Mass. 66, 78 (1999). “Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence and (b) the fact is of consequence in determining the action.” Mass. G. Evid. § 401 (2016).
Susan's testimony was relevant to explain that she could not have shown Medeiros the hole in her bedroom wall or the broken door, because she was no longer living in that apartment. Nor could she have shown Medeiros any of the cuts or bruises—because the injuries would have healed before she spoke to her. The prosecutor did not ask Susan whether she had been removed from the defendant's custody, or where she was living between August and December, 2009. The now challenged evidence was necessary to provide the jurors with a complete picture of the circumstances surrounding the charges and therefore gave them “a link in the chain of proof.” Commonwealth v. Arroyo, 442 Mass. 135, 144 (2004), quoting from Commonwealth v. Yesilciman, 406 Mass. 736, 744 (1990). We see no error.
The defendant conceded on appeal that this evidence was properly admitted.
Jury verdict. The defendant next argues that the judgment on her conviction of reckless endangerment of a child should be vacated because the jury acquitted the codefendant who had been charged with assault and battery based on the same incident and the same set of facts. We disagree.
In order to convict the defendant of reckless endangerment, the Commonwealth was required to prove that the defendant “wantonly or recklessly engage[d] in conduct that create[d] a substantial risk of serious bodily injury ... to a child or wantonly or recklessly fail[ed] to take reasonable steps to alleviate such risk where there [was] a duty to act.” G.L. c. 265, § 13L, inserted by St.2002, c. 322, § 2. See Commonwealth v. Hendricks, 452 Mass. 97, 100 (2008). Susan testified that she saw the defendant holding up Lisa's arms while the codefendant punched the child in the abdomen and the knee.
“ ‘[T]he rule is well established in criminal cases that mere inconsistency in verdicts, one of which is an acquittal, will not render the verdict of guilty erroneous even though such inconsistency may have indicated the possibility of compromise on the part of the jury.’ [Commonwealth v. Scott, 355 Mass 471, 475 (1969) ].... There are two principal reasons for this rule. The first is that each charge represents a separate indictment that may stand or fall on its own. See Dunn v. United States, [284 U .S. 390,] 393 [ (1932) ]; Commonwealth v. Scott, supra. The second is our reluctance to subject a jury's verdicts to logical scrutiny: there are ‘any number of factors having nothing to do with the defendant's actual guilt’ that can drive an acquittal. See Commonwealth v. Cerveny, [387 Mass. 280,] 285 [1982].” Commonwealth v. Medeiros, 456 Mass. 52, 57 (2010).
The defendant argues that Medeiros compels a different result, but the “limited circumstances” of that case are distinguishable. Id. at 58. In Medeiros, the codefendant's acquittal of the aggravated rape charge made it legally impossible to prove the defendant's guilt of that same charge because proving a “joint enterprise” between the two was the Commonwealth's only means of proving the “aggravated” element of aggravated rape charge. Id. at 60. Here, by contrast, it was within the province of the jury to find credible Susan's testimony that, looking through a quarter-sized hole in her bedroom wall, she saw the defendant commit the crime of reckless endangerment by holding Lisa “really tight ... with her arms up,” while Lisa was standing on the bed crying—in order to permit the codefendant to strike her. That testimony sufficed to support the crime of reckless endangerment of a child.
In addition, the judge instructed the jury that, to find the codefendant guilty of assault and battery, the Commonwealth was required to prove that he intentionally touched Lisa without having any right or excuse for doing so and that “the touching was either likely to cause bodily harm or was done without the consent of the child.” It also was within the province of the jury to conclude that Susan was mistaken or not credible when she testified that the codefendant in fact punched Lisa repeatedly and that, therefore, his behavior did not meet the definition of assault and battery as the judge defined the offense.
In all of the circumstances, we are satisfied that the verdicts were not inconsistent. See Commonwealth v. Sylvia, 456 Mass. 182, 196 (2010) (“A legally inconsistent verdict arises ‘when there exists no set of facts that the government could have proved in the particular case that would have resulted in the verdict at issue.’ [Commonwealth v. Gonzalez, 452 Mass. 142, 151 n. 8 (2008) ]. Factually inconsistent verdicts, on the other hand, ‘occur when two or more verdicts in a single case, considered together, suggest inconsistent interpretations of the evidence presented at trial.’ [Ibid. ] ‘[A] defendant is not entitled to relief where a jury returns factually inconsistent verdicts.’ Commonwealth v. Elliffe, 47 Mass.App.Ct. 580, 584 (1999). Indeed, ‘the rule is well established in criminal cases that mere inconsistency in verdicts, one of which is an acquittal, will not render the verdict of guilty erroneous even though such inconsistency may have indicated the possibility of compromise on the part of the jury.’ Commonwealth v. Scott, 355 Mass. [at] 57”).
Ineffective assistance. Finally, the defendant argues that counsel was ineffective because he failed to object at trial to testimony about the reckless endangerment charge that differed from the bill of particulars. This argument also fails.
“The function of a bill of particulars ‘is to give a defendant reasonable knowledge of the nature and character of the crime charged.’ “ Commonwealth v. Pillai, 445 Mass. 175, 188 (2005), quoting from Commonwealth v. Crawford, 429 Mass. 60, 69 (1999). “Even when the bill of particulars and the evidence at trial contrast as to an element or theory of the crime charged, relief is warranted only on a showing that the bill of particulars failed to provide the defendant with ‘notice to prepare [her] defense.’ “ Ibid., quoting from Commonwealth v. Amirault, 404 Mass. 221, 234 (1989).
In this case, paragraph six of the Commonwealth's response to the defendant's motion for a bill of particulars states that the defendant and the codefendant struck both children “with an open hand”; paragraph seven states that the defendant and the codefendant lifted Lisa “by her hands/wrists, with the arms above the victim's head.” As noted, Susan testified that she saw the defendant holding Lisa tight “with her arms up,” and that Lisa was standing on the bed crying while the codefendant was punching her with a closed fist in the abdomen and on her knee. Considering the slight variation between the acts specified in the bill of particulars and the evidence presented, the defendant has failed to demonstrate that she received inadequate notice of the charges against her prior to trial. As a result, the defendant cannot satisfy even the first prong of Saferian, that is, to show that trial counsel's behavior fell “measurably below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Judgments affirmed.