Opinion
14-P-598
03-29-2016
COMMONWEALTH v. JAY DIRICO.
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, Jay Dirico, appeals from his conviction of assault and battery on a police officer. We affirm.
He was acquitted of four additional charges.
Background. The jury could have found the following facts. In 2012, the defendant and Corinne Nelson were dating, and the two lived together at the defendant's home in Chicopee. On April 14, 2012, the couple had a physical altercation. The next day, Officer Randy Couture of the Chicopee police department accompanied Nelson to collect some of her belongings from the defendant's home. Nelson and the defendant began fighting, and the officer intervened. The defendant thereupon punched the officer numerous times in the head and face and slammed his head on the floor.
Discussion. 1. Prior misconduct. Over the defendant's objection, the judge permitted the Commonwealth to introduce evidence of prior physical violence between the defendant and Nelson to show the nature of their relationship and the reasonableness of Nelson's fears of the defendant. Nelson testified that the defendant had abused her five times in the past. On those occasions, he punched her, choked her, kicked her, picked her up by the hair, and pinched her nipple, making her bleed. The judge acted well within her discretion in admitting this evidence to show the hostile nature of the relationship between Nelson and the defendant and to explain why Nelson sought the assistance of a police officer. See Commonwealth v. Fordham, 417 Mass. 10, 22 (1994). See also Commonwealth v. Bianchi, 435 Mass. 316, 322 (2001).
Two of the indictments on which the defendant was acquitted pertained to his alleged assault of Nelson.
Although this evidence was admitted only with regard to the alleged assault and battery on Nelson, the defendant argues that it was highly prejudicial. In view of the prophylactic steps taken by the judge, the argument is without merit. The judge forcefully instructed the jury, before Nelson's testimony and in the final charge, that they were not to consider the evidence as proof of the defendant's criminal propensity, and that they were only to consider it with regard to the relationship between the defendant and Nelson. See Commonwealth v. Hanlon, 44 Mass. App. Ct. 810, 822 (1998). We presume that the jury followed the judge's limiting instructions. Commonwealth v. Jackson, 384 Mass. 572, 579 (1981). Furthermore, the acquittal of the defendant on the charges related to Nelson confirms that the jury were not unduly swayed by this evidence.
2. Hospital records. The defendant argues that the judge abused her discretion by admitting portions of the officer's hospital records. However, G. L. c. 233, § 79, as appearing in St. 1959, c. 200, "permits the admission in evidence, in the judge's discretion, of certified hospital records 'so far as such records relate to the treatment and medical history' with the proviso that 'nothing therein contained shall be admissible as evidence which has reference to the question of liability.'" Commonwealth v. Dargon, 457 Mass. 387, 394 (2010), quoting from Commonwealth v. Dube, 413 Mass. 570, 573 (1992). Because § 79 is construed liberally, a "record which relates directly and mainly to the treatment and medical history of the patient, should be admitted, even though incidentally the facts recorded may have some bearing on the question of liability." Dargon, supra, quoting from Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998).
Here, the judge ruled that references to the fact that the officer had been "assaulted" would be redacted, but that references to the officer's statements to medical providers that he had been punched, or hit in the face with a closed fist would remain. Because the unredacted statements were "fact-specific references to the reported cause of [the officer's] injuries," and were made for the purposes of obtaining medical treatment, the judge's ruling was not an abuse of discretion. Dargon, supra at 396, quoting from DiMonte, supra.
Notably, there was no dispute that the defendant's hand came into contact with the officer's face. The defendant, himself, testified to that effect; his position was that the officer had initiated the use of physical force without provocation or cause.
3. Police officer's testimony. During a heated defense cross-examination, the officer made the following unsolicited statement, "I don't remember. If he [the defendant] testifies, then he can tell you that." The defendant argues that the trial judge erred in denying a motion for a mistrial, as this statement undermined his right not to testify and was a structural error.
"The decision whether to declare a mistrial is within the discretion of the trial judge." Commonwealth v. Bryant, 447 Mass. 494, 503 (2006). Here, the officer's statement did not impinge upon the defendant's right not to testify, and any risk of prejudice was minimal. Defense counsel had stated in his opening that the defendant was going to testify, and the defendant later did testify. In addition, the judge immediately gave emphatic, repeated instructions telling the jury to disregard the officer's statement and reminding them that the defendant had the right not to testify. The judge did not abuse her discretion in relying upon these curative instructions to preclude any potential prejudice. See Commonwealth v. Smallwood, 379 Mass. 878, 892 (1980).
Judgment affirmed.
By the Court (Cohen, Trainor & Katzmann.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 29, 2016.