Opinion
10-P-1083
09-06-2011
COMMONWEALTH v. DOUGLAS COUGHLIN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of assault and battery. On appeal, he argues that the judge committed prejudicial error by admitting in evidence the recording of a 911 telephone call from the victim; the prosecutor committed prosecutorial error by playing the 911 recording during his closing argument; and the judge's sentencing of the defendant violated his due process rights. We affirm.
He was found not guilty of breaking and entering in the nighttime with intent to commit a felony, and not guilty of assault and battery by means of a dangerous weapon.
a. Admissibility of 911 recording. Shortly after the incident at issue, the victim made two telephone calls, one to a 911 emergency line and a second, immediately afterwards, to her daughter. The Commonwealth, in a motion in limine, argued that the daughter's testimony about her mother's statements in the telephone call was admissible under the excited utterance exception to the hearsay rule. The judge conducted a voir dire hearing and both the victim and her daughter testified. After the victim's testimony, the judge inquired about the 911 call and the prosecutor played the tape recording; defense counsel did not object. The daughter then testified, and defense counsel objected on hearsay grounds. He also argued that the admission of both the 911 recording and the statements the victim made during the telephone call to her daughter would be prejudicial and suggested that only the 911 recording should be introduced, as it was 'first in time.' Concerned about the effects of 'piling on,' the judge ruled that he would admit, under the excited utterance exception, either the 911 recording, or the statements made to the daughter, but not both. The next day, when the judge asked whether there was a stipulation to the admissibility of the 911 recording, defense counsel made a general objection, which was overruled. The recording was then played for the jury.
On appeal, the defendant argues, for the first time, that admission of the 911 recording was prejudicial error as it 'amounted to an inadmissible prior consistent statement.' The evidence was not offered or admitted as a prior consistent statement, but rather as an excited utterance. The defendant offers no argument why that ruling was not correct, perhaps because such an argument would be unavailing. The judge properly concluded that both the 911 recording and the telephone call to the daughter were admissible as excited utterances. Perhaps unnecessarily, the judge then limited the Commonwealth to presenting only one of the two; the Commonwealth offered the 911 call. This ruling could only have assisted the defendant. Certainly, there was no prejudicial error. See Commonwealth v. DiMonte, 427 Mass. 233, 236 (1998); Commonwealth v. Carter, 54 Mass. App. Ct. 629, 631 (2002) (trial judge has broad discretion in determining whether to admit something as excited utterance); Commonwealth v. Beatrice, 460 Mass. 255, 261 (2011).
During the voir dire hearing on the admissibility of the daughter's testimony, the judge noted that the victim sounded 'pretty stressed, to say the least, on that 911 tape.' He further explained, '[S]he can barely speak when she makes that call and then it concludes and then she makes this additional call. . . . It would appear that she's still in the [throes] of this whole event and, therefore, you know, she.s not in a position to be making things up but stating what it is she says happened.'
b. Prosecutor's closing argument. The defendant next claims, also for the first time, that the prosecutor made an 'improper emotional appeal to the jury' when he played the 911 recording during his closing argument and made certain comments while introducing it. The tape of the 911 call, which lasted approximately one minute, had been admitted in evidence. It was not improper for the prosecutor to play it again for the jury. See Commonwealth v. Semedo, 456 Mass. 1, 13 (2010) ('In closing argument, a prosecutor may analyze the evidence and suggest reasonable inferences the jury should draw from that evidence'); Commonwealth v. Lao, 460 Mass. 12, 21 (2011), quoting from Commonwealth v. Drayton, 386 Mass. 39, 52 (1982) ('A prosecutor is 'entitled to marshal the evidence and suggest inferences that the jury may draw from it''). The defendant's attempt to compare the prosecutor's comments, and the playing of the 911 tape, to the argument this court found improper in Commonwealth v. Rosa, 73 Mass. App. Ct. 540, 546-548 (2009), is unpersuasive. In Rosa, the prosecutor's repeated references to the victim's status as a firefighter and the seriousness of his injuries 'were excessive in the context of the argument, and amounted to an improper appeal to sympathy.' Id. at 545. Nothing comparable occurred here.
'Don't for a second think that he's a victim. Not for a second. You want to hear a victim? I'll give you one.'
There were nineteen references in eight pages of transcript. Commonwealth v. Rosa, 73 Mass. App. Ct. at 545.
The prosecutor's closing was also a 'fair response' to the assertions made during the defense counsel's closing argument regarding the credibility of the victim, a key issue in this case. See Commonwealth v. Grandison, 433 Mass. 135, 143 (2001); Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 12-14 (2010).
Specifically, during the defendant's closing, trial counsel said, '[I]t's [going to] be an issue here, a fact for you to decide is whether [the victim] was being a drama queen at three in the morning.' He also referred to the victim as a 'fraud,' 'capable of misleading people,' someone who was motivated to recoup money she was owed by the defendant. Also, he referenced the 911 telephone call in his closing and, assuming the prosecutor would play the recording during closing, told the jury to listen to the tape again and '[t]ake that into consideration of the big picture here.'
c. Sentencing. The defendant also argues that the trial judge relied upon improper factors when sentencing the defendant, including the two charges for which he was acquitted, as well as the judge's belief that the defendant had committed perjury during the trial. We review the sentencing decision to determine whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).
During sentencing, the judge said, 'I listened to this guy. This guy is as full of baloney as anybody who's ever taken the stand. My only regret is that I can only give him two and a half years, 'cause frankly if the jury came back with something else, I'd give him two and a half, plus two and a half, plus two and a half, 'cause he's earned it. He's a coward. Take him out. Two and a half committed.'
A sentencing judge may consider various factors, including the defendant's record of prior convictions. See Commonwealth v. Medina, 64 Mass. App. Ct. 708, 722 (2005). Here, the defendant had two prior convictions for assault and battery by means of a dangerous weapon; he had received a split sentence on each. There were 'numerous [other] offenses' on a four-page record. There was a strong victim impact statement and the facts of the case were serious -- a violent attack inside the victim's home at 3:00 in the morning.
A 'split sentence' is a sentence that comprises both a period of incarceration and a period of probation. This defendant had twice received a sentence of two and one-half years in a house of correction, with one year to serve, and the remaining eighteen months suspended for a period of probation.
'A judge has considerable latitude within the framework of the applicable statute to determine the appropriate individualized sentence.' Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993). The defendant argues that the sentencing guidelines call for a maximum sentence of twenty-four months. However, the guidelines are advisory, not mandatory. See Commonwealth v. Russo, 421 Mass. 317, 322-323 (1995).
Finally, the defendant contends that the judge's statements at sentencing demonstrate the judge's belief that the defendant committed perjury and that he was guilty of the two additional crimes for which he was found not guilty. We do not draw those inferences from the judge's remarks, and we see no abuse of discretion in the sentence imposed.
Judgment affirmed.
By the Panel (Rapoza, C.J., Cypher & Hanlon, JJ.).