Opinion
11-P-656
03-14-2012
COMMONWEALTH v. MAMADOU DIAKITE.
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
The defendant, Mamadou Diakite, appeals from his conviction at a jury-waived trial of aggravated assault and battery under G. L. c. 265, § 13A(b). Diakite asserts that he was prejudiced when two statements of his were introduced in evidence by the Commonwealth, and that the judge demonstrated bias when he questioned a witness about the defendant's statements. Because both of the defendant's statements were fully admissible as admissions of a party-opponent and the judge's questioning was reasonable, we affirm.
Detective Gregory Sirois testified that, the day after the assault, the defendant told him that he was having an argument with the victim, and as the victim approached him, he 'may have bent down and struck him with his head.' He further testified that, at a probable cause hearing, the defendant stated that he thought he had dropped his keys, and when he went to pick up his keys, he may have struck the victim with his head. Both statements are plainly relevant to the issues whether the defendant struck the victim and broke his nose, and whether he did so intentionally or by accident. To the extent they were false or inconsistent, they were also relevant to consciousness of guilt. See Commonwealth v. Bonomi, 335 Mass. 327, 348 (1957). The Commonwealth was permitted to admit them as admissions of a party-opponent. See Mass. G. Evid. § 801(d)(2) (2011). '[T]here is no requirement of admissibility that the statement of a party opponent be contradictory or against his own interest.' Care & Protection of Sophie, 449 Mass. 100, 110 n.14 (2007). See Matton v. Pittsfield, 56 Mass. App. Ct. 124, 137 (2002) ('any statement of a party is admissible against him when offered by an opponent, if not objectionable on grounds other than hearsay'). The fact that the trial judge stated different reasons for his ruling is also not material. See, e.g., Commonwealth v. Charros, 443 Mass. 752, 765 n.6, cert. denied, 546 U.S. 870 (2005), quoting from Commonwealth v. Signorine, 404 Mass. 400, 403 n.1 (1989) ('if the evidence is admissible, 'it is of no consequence whether the reason assigned by the judge was accurate''). The admission of these statements was not erroneous or an abuse of discretion.
The defendant also takes issue with the judge's questioning of Detective Sirois. The judge asked Sirois to recount one of the defendant's prior statements mentioned above, then the other. It is apparent from the record that the judge's purpose in asking the witness these two questions was to clarify the timing and contents of the defendant's two extrajudicial statements. 'A judge may properly participate in the questioning of a witness so long as the questioning is not partisan in nature.' Commonwealth v. Lucien, 440 Mass. 658, 664 (2004). It is appropriate for a judge to question a witness in order to clarify the witness's testimony. See Commonwealth v. Dias, 373 Mass. 412, 417 (1977), S. C., 402 Mass. 645 (1988). The judge's questions do not demonstrate partisanship or bias. The defendant's contention to the contrary is without merit, and there was no error.
Judgment affirmed.
By the Court (Grasso, Kafker & Milkey, JJ.),