Opinion
15-P-33
03-07-2016
COMMONWEALTH v. BAYRON FAJARDO.
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
Following a jury trial in the Superior Court, the defendant was convicted of two counts of armed assault with intent to murder, two counts of assault and battery by means of a dangerous weapon, carrying a dangerous weapon, and discharging a firearm within 500 feet of a building. On appeal, he claims that (1) his attorney should have requested an honest but mistaken identification instruction, (2) the judge erred in admitting prior bad acts evidence, and (3) the prosecutor committed reversible error during her closing argument. We affirm.
1. Factual background. The jury could have found the following facts. The victim and the defendant had been involved in an on-and-off dating relationship for several years and are the parents of one child. During the early morning hours of April 30, 2011, the victim left the restaurant where she had finished her shift and began walking to her vehicle, a Nissan Sentra. As she approached the Sentra, she saw someone hiding in the backseat. She immediately ran back toward the restaurant, but was hit in the lower back by gunshot fire. A coworker, who had followed to escort her to her car, was hit in the buttocks. The victim told police immediately after the incident that she could not identify the shooter. Shortly before trial, however, she told police that the man in the back of the Sentra was the defendant, and that she did not identify him before because she was scared, as the defendant had not yet been apprehended in connection with the shooting.
2. Ineffective assistance of counsel. During the course of the trial, defense counsel initially asked for an honest but mistaken identification instruction, but later withdrew his request, citing Commonwealth v. Pressley, 390 Mass. 617 (1983). The defendant now claims that counsel's withdrawal of the requested instruction constituted ineffective assistance of counsel.
The claim is without merit. The instruction set forth in Commonwealth v. Pressley, supra, regarding an honest but mistaken identification, should be given "when the facts permit it and the defendant requests it." Commonwealth v. Pires, 453 Mass. 66, 69 (2009). A "good faith error" instruction may not be required, however, when "the parties are so well known to each other or so closely related that under sufficient lighting and with appropriate physical proximity, the identification by the victim is either true or the victim is lying." Commonwealth v. Pressley, supra at 619.
As a general rule, ineffective assistance of counsel claims are best raised in a motion for new trial under Mass.R.Crim.P. 30, as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006).
Here, defense counsel concluded that the instruction was not warranted because the victim and the defendant were well known to each other. That decision was not manifestly unreasonable. See Commonwealth v. Norris, 462 Mass. 131, 141-142 (2012). Defense counsel's application of Pressley to the facts of this case was sensible, particularly given that the defense strategy at trial targeted the victim's credibility. In so doing, defense counsel also avoided the confusion of adding an alternate theory of mistaken identification. In sum, counsel cannot now be criticized for reasonably applying case law, and making what appears to have been a valid strategic decision to adopt an all or nothing defense strategy.
Defense counsel stated: "I think that from the facts of the case, this defendant is so well known to [the victim], either she saw him, or she's lying. And I think Commonwealth v. Pressley is the case on that. So I -- I did not include that in my request for instructions. After reviewing the case law, I was in error."
In any event, any possibility of prejudice was diminished by the judge's instruction to the jurors, consistent with Commonwealth v. Rodriguez, 378 Mass. 296, 310 (Appendix) (1979), that they must consider whether the victim had "the capacity and opportunity to make a reliable observation."
3. Prior bad act evidence. The defendant claims the judge improperly allowed the victim to testify that a few days before the shooting, on April 22, 2011, the defendant violated a restraining order obtained by her, detained her for several hours, retained her car keys after she fled by use of a spare key, and when he later telephoned her, she told him that she had contacted the police.,
As a result of the April 22, 2011, incident, the defendant was convicted of kidnapping, intimidation of a witness, and violating a restraining order. The events arose when the victim attempted to pick up her and the defendant's daughter at the defendant's house.
Although the defendant opposed the Commonwealth's motion in limine to admit the evidence, he failed to lodge an objection at the time the testimony was offered. We accordingly review for a substantial risk of a miscarriage of justice. See Commonwealth v. Whelton, 428 Mass. 24, 25-26 (1998).
We discern no error. The evidence was admitted to show the hostile nature of the defendant's relationship with the victim as well as his motive or intent to commit the charged crimes. See Commonwealth v. Gil, 393 Mass. 204, 215-217 (1984); Commonwealth v. Bianchi, 435 Mass. 316, 322 (2001); Mass. G. Evid. § 404(b) (2015). Further, any possible prejudice was diminished by the judge's forceful instructions to the jury, on multiple occasions, of the limited purpose of the testimony. See Commonwealth v. Butler, 445 Mass. 568, 576 (2005).
3. Closing argument. There is no merit to the claim that the prosecutor's closing argument misstated the evidence or the role of the jury in evaluating the victim's testimony. The comment that the victim was "terrorized" by the defendant was properly drawn from her demeanor on the stand, as the prosecutor suggested, and her testimony that she was scared of the defendant. Further, although the evidence of the April 22 incident was limited in nature, the judge clarified to the jurors that they could consider such evidence "[t]o the extent that [it] may be relevant [to] the relationship of the parties on or before . . . April 30th" and the "state of mind and any prejudice or bias [the victim] might have had toward [the defendant]." Finally, the prosecutor's comment that the jurors were not being asked to judge the victim was within the larger context of the prosecutor's suggestion that the victim was credible despite the inconsistent statements she gave to police following the shooting. See Commonwealth v. Felder, 455 Mass. 359, 368 (2009). There was no error.
Judgments affirmed.
By the Court (Katzmann, Maldonado & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 7, 2016.