Opinion
16-P-453
03-30-2017
COMMONWEALTH v. Michael J. FORD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction by a District Court jury of strangulation in violation of G. L. c. 265, § 15D(b ). He argues that the judge erred in several of her evidentiary rulings, that the prosecutor's closing argument was improper, and that the evidence of strangulation was insufficient. We affirm.
The defendant also was convicted of assault and battery on a family or household member in violation of G. L. c. 265, § 13M(a ). He makes no argument on appeal regarding this conviction and it is therefore waived. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Background . Based on the evidence at trial, the jury could have found the following facts. In November, 2014, the defendant and his wife, the victim, had been married for twenty-two years and had three daughters between the ages of twelve and eighteen. They owned a Toyota Sequoia sport utility vehicle and a sedan. On November 15, 2014, the victim asked the defendant if he needed to use the Sequoia and he responded in the negative. The victim and her youngest daughter used the vehicle, returned to the house, and began to collect things to take over to the home of the victim's friend. Earlier in the week, the victim had agreed to loan the Sequoia to this friend so that the friend could drive her family to dinner that evening. Although the defendant was home when the victim and their daughter arrived, the victim could not recall speaking to him.
By that point, the victim had decided to divorce the defendant and she "didn't talk to him much at all."
The victim and her daughter arrived at the friend's house and were socializing with the family when the defendant knocked on the door and demanded the keys to the Sequoia. The defendant was pushing his way in and "yelling loud enough that [their] daughter and her friend upstairs came running down the stairs crying." The victim refused to give the defendant the keys and she, her friend, and the friend's fiancé pushed the door closed. The defendant left. The victim consoled her daughter, and then they left.
The victim testified that the defendant is five feet, ten inches tall, weighs 250 pounds, is "[s]tocky," and was a college football player. She is five feet, eight inches tall and weighs 127 pounds, and the defendant is "much stronger" than her.
The next morning, the defendant and the victim argued about their marriage and about the previous evening's events. The defendant yelled at the victim, then lunged at her with both hands. "One hand grabbed [her] shoulder and the other hand grabbed [her] neck and he slammed [her] against the wall, which was maybe two feet behind [her]." The defendant held the victim against the wall with his hands around her neck. She "couldn't breathe," "couldn't catch [her] breath," and "couldn't get [him] off of [her]" for what "felt like forever." The whole time defendant was yelling, "You bitch. You bitch. You bitch." The defendant finally let go of the victim at the same time she was pushing him. He "threw himself up against the wall" and "put his hands up against the wall like that, like I let go kind of thing." The victim picked up the telephone and had started to dial 911 when the defendant came up behind her, put her "in a big bear hold," and squeezed the hand holding the phone. In her ear, he whispered that he couldn't believe she would "fucking do this today"—the day of their middle daughter's important swim meet. The victim put down the phone, got her youngest daughter, got into the Sequoia, locked the doors, and called 911. The defendant got into the sedan and was attempting to drive away when Acton police officers arrived and placed him under arrest.
The next day, a criminal complaint issued charging the defendant with the two crimes of which he was convicted. Before trial, the defendant moved in limine to exclude, and the Commonwealth moved to admit, evidence of prior bad acts which occurred in 2012 and 2013. The Commonwealth also sought to admit evidence regarding the events of November 15. In response to both motions, the judge ruled that the Commonwealth could introduce evidence from November 15, but not from 2012 or 2013.
At trial, and over the defendant's objection, the Commonwealth played for the jury a recording of the victim's 911 call. Over the Commonwealth's objection, the judge allowed the defendant to ask the victim about her relationship with Christian Bright "because it does go to [her] motive and bias," assuming that defense counsel knew "that once he opens up the door that the Commonwealth will then be free to raise other issues that may have occurred between [the defendant] and Mr. Bright." Defense counsel asked the victim whether she knew Bright prior to November 16, 2014, and whether she had an affair with him. On redirect examination, the Commonwealth asked the victim when the affair began and ended, whether the defendant knew about it, and how the defendant reacted when he saw her with Bright. The victim testified that, in 2012, the defendant "slammed a car into us and tried to kill us."
Acton police Officer Michael Cogan, who responded to the victim's 911 call, testified that the victim was "visibly upset," "crying," and "definitely shaken, upset, holding onto her chest while she" explained to him what had happened on November 16. He filled in "a domestic violence work-up sheet" and did not observe any injuries on the victim, although he did note that she had a "raspy voice," which, based upon his training and experience, signified to him "[s]ome sort of strain on her neck area." The defendant's motion to strike this testimony was denied, as were his oral motions for required findings of not guilty.
Discussion . 1. Evidentiary issues . The defendant's first claim of error is in the admission of the victim's testimony that, in 2012, the defendant slammed a car into and tried to kill her and Bright. The judge allowed the defendant's motion in limine to exclude this evidence, but overruled counsel's objections to its introduction on redirect examination. There was no abuse of discretion. Commonwealth v. Rosa , 468 Mass. 231, 237 (2014).
The judge told counsel that questioning the victim about Bright could open the door to "other issues that may have occurred." During cross-examination, counsel raised the affair. Defense counsel must have thought that any prejudice from the prior bad acts evidence was outweighed by the impeachment value of the affair. Once the defendant opened the door to the defendant's knowledge of the affair, the victim's testimony was admissible "to show its effects upon the defendant." Commonwealth v. McGee , 469 Mass. 1, 13 (2014). "The judge was alert to the possibility of prejudice [from the prior bad act evidence] from the beginning of the defendant's trial," id . at 11 n.15, she closely guarded her ruling on the motions in limine, and there was no prejudice because, after the prosecutor improperly used the evidence in closing argument as discussed infra , the judge struck from the record "mention of other acts allegedly done by the defendant," "emphasiz[ing] to [them] that [they] are not to consider those references to other alleged acts at all."
There are no claims that counsel was ineffective.
The testimony also was admissible, in the judge's discretion, to show absence of mistake by the defendant, intent, motive, and "to give the jury a view of the entire relationship between the defendant and the alleged victim." Commonwealth v. Dwyer , 448 Mass. 122, 128-129 (2006).
Next, the defendant claims error in allowing the prosecutor to play a recording of the victim's 911 call. The judge determined that the recording was not hearsay because it was an excited utterance. There was no abuse of discretion. See Commonwealth v. Santiago , 437 Mass. 620, 624 (2002). The victim had just finished testifying that the defendant had tried to attack her moments earlier and that he approached the car and was standing within one or two feet of her when she made the call, that he was speaking in a raised voice, that she was screaming, that she was crying, and that she was "[s]cared. Really scared." The "exciting event" that "give[s] rise to the exception" was still unfolding, ibid .; accordingly, the statements were not testimonial. See Commonwealth v. Beatrice , 460 Mass. 255, 259 (2011).
The correctness of the judge's ruling is reinforced by Cogan's testimony that the victim was "visibly upset," "crying," and on the phone with the 911 dispatcher when he arrived. He described her demeanor at that time as "definitely shaken, upset, holding onto her chest."
Finally, there is no merit to the defendant's claim that Cogan gave an expert opinion. As it was entitled to do, the Commonwealth called Cogan as a percipient witness who could corroborate the victim. He testified to his personal observations and to their significance to him, based upon his training and experience. He offered no opinion as to whether or not the strangulation occurred. In any event, we see no prejudice where it seems fairly obvious that pressure to the neck may cause a raspy voice. See Commonwealth v. Santiago , 425 Mass. 491, 498 (1997) ("Jurors should use common sense to assist in reaching their verdict").
2. Sufficiency . The defendant's challenge to the sufficiency of the evidence of strangulation lacks merit. In the light most favorable to the Commonwealth, see Commonwealth v. Latimore , 378 Mass. 671, 676-677 (1979), the victim's testimony that the defendant grabbed her neck, slammed her against the wall, held her against the wall with his hands around her neck, and that she "couldn't breathe" or "catch [her] breath" provided ample evidence that the defendant intentionally interfered with "the normal breathing or circulation of blood by applying substantial pressure on the throat or neck of another." G. L. c. 265, § 15D(a ), inserted by St. 2014, c. 260, § 24.
3. Closing argument . Contrary to the Commonwealth's assertions made in its brief and at oral argument, several of the prosecutor's statements in his closing argument crossed the boundaries of proper argument.
For example, "it is improper for an attorney in closing argument to disparage opposing counsel personally, or characterize counsel as ‘obscuring the truth or intentionally misleading the jury.’ " Commonwealth v. Lewis , 465 Mass. 119, 130 (2013), quoting from Commonwealth v. Fernandes , 436 Mass. 671, 674 (2002). This prosecutor opened his closing argument as follows: "Well folks, that was quite a performance, what you just saw [for] 30 minutes. Counsel said that he's no Perry Mason, but I think that performance would certainly prove otherwise." The prosecutor improperly "expresse[d] a personal belief" in the victim's credibility, Commonwealth v. Kee , 449 Mass. 550, 560 (2007), quoting from Commonwealth v. Ortega , 441 Mass. 170, 181 (2004), when he argued that the victim was "honest" about the affair and that he "didn't hear any lies" from her. He improperly "indicate[d] that he ... ha[d] knowledge independent of the evidence before the jury," ibid ., and "invite[d] the jury to decide the case on general considerations," Commonwealth v. Lewis , supra , when he stated that "[d]omestic violence ... affects thousands of people across the country every day," that domestic violence victims don't immediately report abuse "[b]ecause they love" their abuser and "[b]ecause they're terrified," and that "[i]t takes a while for ... marks to appear" when someone sustains an injury.
More disturbingly, the prosecutor referred to the defendant as an "abusive husband" and "longtime abuser" of the victim. See Commonwealth v. Lewis , supra (prosecutor may not "use insulting names designed to evoke an emotional, rather than a rational, response from jurors," or "refer to a defendant with epithets that suggest he has a criminal record where the evidence does not support such a finding"). He also argued that the "defendant snapped [on November 16], just like he snapped when he saw [the victim] get into the car with Chris Bright" in 2012. While the Commonwealth argues that these statements were not erroneous when taken in "context," we think them "a classic example of a forbidden propensity argument." Commonwealth v. Baker , 440 Mass. 519, 531 n.12 (2003). We are concerned that a prosecutor would make these improper arguments, as counsel should know the boundaries of proper argument.
In response to the defendant's objection to these statements, the judge stated that she would "stop and talk about both of those" closing arguments in her final instructions. The judge did just that, giving a thorough curative instruction with specific reference to the parties' closings, the 911 tape, and any "references to general statements about domestic violence." With respect to the events of November 15, the judge instructed the jury to consider that evidence "solely on the limited issue of the defendant's state of mind on the date of the offenses for which he is charged." She told them that they "may not take that as a substitute for proof that the defendant committed the crimes charged," and that they "may not use [that evidence] to conclude that if the defendant committed the other act the night before that he must also have committed these charges." She instructed the jury that they may "consider only the evidence properly admitted in this case," and her instruction on the presumption of innocence immediately followed.
The end of that sentence is "inaudible," but we presume the judge was talking about the closings.
As previously noted, the judge struck evidence regarding the 2012 act.
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In these circumstances, the "arguments by the prosecutor, while in error, [we]re not unduly prejudicial." Commonwealth v. Santiago , 425 Mass. at 495. "[W]hatever prejudice [the improper remarks] might have caused was alleviated" by the curative instruction, id . at 498, which we presume the jury followed. See Commonwealth v. DaSilva , 471 Mass. 71, 84 (2015). The victim's testimony provided overwhelming evidence of the defendant's guilt, the judge gave "forceful instructions to the jury that the argument was inappropriate and should be disregarded," and we are unpersuaded that the argument "possibly ma [d]e a difference in the jury's conclusions." Commonwealth v. Kozec , 399 Mass. 514, 518 (1987). The convictions may be upheld "in spite of the error [s]." Id . at 519.
Judgments affirmed .