Opinion
14-P-228
04-13-2015
COMMONWEALTH v. TYRONE J. FERREIRA-HOUTMAN.
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 appeals from his conviction of assault and battery by means of a dangerous weapon, arguing that evidence of a dangerous weapon was insufficient, that the trial judge erroneously excluded the victim's medical records, that the prosecutor's closing argument was improper, and that he was denied effective assistance of counsel. We affirm.
Background. Because the defendant challenges the sufficiency of the evidence, we summarize the facts the jury could have found in the light most favorable to the Commonwealth. See Commonwealth v. Linton, 456 Mass. 534, 536 (2010). On July 7, 2013, Danielle Costa reported to a New Bedford police officer, who was in his police cruiser, that her car had been stolen. As she and the officer were discussing the theft, the defendant walked by and called Costa a "f***ing rat" and other nasty names. After the officer drove away, the defendant followed Costa, who was also walking, and continued to insult her.
Kenny Hayes was outside of the Madiera Sports Club (Club) in New Bedford when he observed the defendant and Costa arguing. After overhearing Costa asking the defendant to leave her alone, Hayes told the defendant to leave Costa alone. He also suggested that Costa come inside the bar to get away from the defendant. Costa and Hayes went inside the Club, and the defendant followed.
Hayes, Costa, and the defendant knew each other.
Hayes and Costa believed that the defendant was not allowed in the Club.
Arguments continued inside the Club for the next ten minutes, until the defendant told Hayes he wanted to talk to him outside. The men left through the Club's front door. Once outside, the defendant told Hayes he wanted to talk behind the building. Hayes lost sight of the defendant for a few seconds while the men walked around to the back. Suddenly, Hayes was struck in the face with an object. Hayes saw the defendant hit him with the object and felt repeated kicks to his face and head after he had fallen to the ground. Hayes lost consciousness and awoke in a pool of blood. He lost two teeth as a result of the blows. The defendant took off running when someone exited the bar, saw the two men, and started yelling. He was arrested nearby a short time later; no object or weapon was ever recovered.
Hayes thought "it was either a pipe or a stick or something."
The defense at trial was that Hayes was not credible because he was too intoxicated that night to remember what happened. Trial counsel highlighted the lack of physical evidence and the fact that Hayes could not identify the weapon. After the jury returned a guilty verdict, the judge found the defendant to have violated probation on two unrelated cases by virtue of the new conviction. He denied defense counsel's request to extend the date for sentencing, and counsel argued for a sentence concurrent with the sentence for violating probation.
Discussion. 1. Evidence of a dangerous weapon. Contrary to the defendant's argument, there was ample evidence to support the jury's conclusion that he hit Hayes with a dangerous weapon. Hayes testified that he saw the defendant hit him in the face with a hard object which he believed to be a stick or a pipe. Hayes's testimony that he lost consciousness, blood, and two teeth was corroborated by the testimony of other witnesses. In the light most favorable to the Commonwealth, such testimony "warrant[s] an inference beyond a reasonable doubt that [the] defendant, in fact, had some instrumentality in his possession." Commonwealth v. Howard, 386 Mass. 607, 611 (1982). This evidence also permitted an inference that the object was a dangerous weapon. See Commonwealth v. Tarrant, 367 Mass. 411, 416 n.4 (1975); Commonwealth v. Cruz, 430 Mass. 182, 195 (1999). "Because the defendant . . . had the opportunity to dispose of the [object] before he was arrested," it was up to the jurors to decide whether he possessed the object when he assaulted Hayes. Commonwealth v. Jackson, 419 Mass. 716, 724 (1995). Their conclusion that he did was supported by the evidence. See Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 923 (1984) (the victim's testimony and the nature of the victim's injuries provided sufficient evidence for the jury to find that the defendant wore boots, which he used as a dangerous weapon).
2. Victim's medical records. The defendant claims prejudicial error because the judge denied his motion to introduce the victim's medical records. The two-page summary discharge record from the hospital shows that a blood test was performed on Hayes after the assault. The record contains measurements without explanation, and indicates that the level of alcohol in Hayes's blood that evening was "abnormal." The judge excluded the medical records, because "absent testimony to explain those records because they're -- they're not otherwise relevant."
There was no abuse of discretion. See G. L. c. 233, § 79; Commonwealth v. Hubbard, 371 Mass. 160, 175 (1976) (medical records admissible in judge's discretion). Records showing that Hayes had consumed alcohol would have been cumulative of Hayes's and the bartender's testimony that Hayes had been drinking for several hours before the assault. See Commonwealth v. Brown, 449 Mass. 747, 770 (2007). "The [defendant] did not provide any testimony explaining what the test results mean," Commonwealth v. Johnson, 59 Mass. App. Ct. 164, 168 (2003), and defense counsel was able to question Hayes's ability to perceive the events of that evening through cross-examination of Hayes and direct examination of the bartender. Medical records showing the precise amount of alcohol in Hayes's system would not assist the jury in deciding whether the defendant was the person who assaulted Hayes and whether he used a dangerous weapon; therefore, the judge did not abuse his discretion in excluding the records as irrelevant. See Commonwealth v. Copeland, 375 Mass. 438, 442 (1978) (to be admissible, medical records must be relevant to a material issue in the case).
Defense counsel also argued in her closing that Hayes should not be believed because he was intoxicated.
3. Remaining claims. We see nothing improper in the prosecutor's closing argument that the defendant was "looking for a fight" on the night of the assault. The argument was a fair inference from evidence of the defendant's unprovoked verbal attack on Costa, the defendant following and continuing to berate Costa after she asked him to leave her alone, the defendant following Hayes and Costa inside the Club, where they went to get away from him, and the defendant asking Hayes to "go outside" the Club "to talk" with him. See Commonwealth v. Grimshaw, 412 Mass. 505, 509 (1992) (prosecutor may "analyze the evidence and suggest what reasonable inferences the jury should draw from that evidence"). There is no merit to the defendant's claim that he was denied effective assistance of counsel because the trial judge refused to extend the sentencing date -- defense counsel argued mitigating facts including the defendant's troubled childhood, his struggles with addiction and mental illness, and his planned participation in a treatment program. There was no error. See Commonwealth v. Rancourt, 399 Mass. 269, 277-278 (1987).
Judgment affirmed.
By the Court (Cypher, Kantrowitz & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 13, 2015.