Opinion
13-P-996
03-18-2015
COMMONWEALTH v. JAMES FRARY.
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
Having been convicted by a Superior Court jury of assault and battery on a child under fourteen years of age causing bodily injury, the defendant now appeals. We affirm.
1. Witness testimony. On redirect examination of Shauna-Leigh LeBlanc (whose name was Shauna-Leigh Depaz in June, 2010), the Commonwealth asked, "What did you think when you saw that baby stop crying?" The defense objected. The objection was overruled on the ground that, during cross-examination, the defense had questioned LeBlanc's memory; the judge found that the Commonwealth was rehabilitating LeBlanc in this regard.LeBlanc answered, "I thought the baby might be dead." The defendant contends that this was an inflammatory and unduly prejudicial statement.
The judge put the reason for his ruling on the record at a sidebar conference.
"The scope of redirect examination is within the sound discretion of the trial judge." Commonwealth v. Arriaga, 438 Mass. 556, 577 (2003). "The purpose of redirect examination is to explain or rebut adverse testimony or inferences developed during cross-examination." Commonwealth v. Marrero, 427 Mass. 65, 69 (1998) (Marrero), quoting from Commonwealth v. Hoffer, 375 Mass. 369, 375 (1978). See Commonwealth v. Olszewski, 416 Mass. 707, 718 (1993). Where cross-examination opens an issue, the Commonwealth is allowed to address the issue on redirect examination. See Marrero, supra. We conclude that the question asked by the Commonwealth was intended to rehabilitate LeBlanc in response to the issues raised by the defense during cross-examination regarding her perception as well as her memory, and it was therefore permissible. Her response lends to her credibility as a witness, as well as to the validity of the immediate report to police. Her statement reestablishes the credibility of her visual perception at the time of the incident, supports her testimony that the baby was "punched" three times, and rebuts the defendant's claim that he was rubbing the baby's chest and stomach.
Moreover, the evidence was not more prejudicial than probative. "Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, . . . or needless presentation of cumulative evidence." Mass. G. Evid. § 403 (2014). At trial, the weighing of the prejudicial effect of evidence compared to its probative value is "entrusted to the trial judge's broad discretion and [is] not disturbed absent palpable error." Commonwealth v. Spencer, 465 Mass. 32, 48 (2013), quoting from Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010). Here, the evidence was relevant to the evaluation of LeBlanc's perception, a central issue in her testimony. We conclude that the judge did not abuse his discretion by admitting in evidence the testimony. We also note that defense counsel used the testimony on recross to attempt to weaken LeBlanc's credibility, showing that, contrary to her perception, in fact the baby had not died. In short, the testimony was not inflammatory and was no more damaging to the defendant's case than testimony provided by LeBlanc about the defendant punching the baby three times. Finally, on numerous occasions throughout the trial and in his final instructions, the judge instructed the jurors not to render their decision on the basis of emotion or sympathy. In sum, there was no error in allowing the testimony by LeBlanc on redirect examination in response to this question.
2. Closing argument. On appeal, the defendant now claims that the prosecutor's closing argument was inflammatory and improperly appealed to juror sympathy because it impermissibly referenced the evidence that the eyewitness thought that the baby might be dead. Specifically, the defendant points to the Commonwealth's opening sentence of its closing argument, "I thought the baby died." However, while, as noted above, he objected to the testimony, he did not object to the reference to this statement in closing argument. To preserve an issue for appellate review concerning the Commonwealth's closing argument, the defendant must object and identify the error with some particularity. See Commonwealth v. Ortiz, 50 Mass. App. Ct. 304, 310 (2000) (Ortiz). "[T]rial counsel need not achieve perfection in identifying every impropriety . . . so long as the objection alerts the judge to the grounds" of the objection concerning a closing argument. Commonwealth v. Hollie, 47 Mass. App. Ct. 538, 541 n.3 (1999). Because the defendant did not object to the use of this statement in closing argument, we review to determine whether the Commonwealth's closing argument created a substantial risk of a miscarriage of justice. Ortiz, supra.
The Commonwealth is "entitled to argue the evidence." Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231 (1992). Here there was no error in referencing testimony that was properly admitted. Moreover, the prosecutor properly referenced it in response to the defendant's argument that the eyewitness should not be believed. "Remarks made during closing arguments are considered in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial." Ibid. See Commonwealth v. Coren, 437 Mass. 723, 730-731 (2002). Taken with the judge's instruction to the jury that closing arguments by counsel are not evidence, we conclude that there was no error, let alone a substantial risk of a miscarriage of justice.
To the extent the defendant argues that the evidence of bodily injury was insufficient, we conclude after review of the evidence that the evidence was sufficient. Viewed under the familiar standard in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence, which was supported in part by the expert testimony of Dr. Edward Bailey, was that the punches by the defendant inflicted on June 15, 2010, to the victim's chest, fractured his clavicle and posterior ribs 2 and 3, or 3 and 4, thereby causing bodily injury to him.
Judgment affirmed.
By the Court (Katzmann, Hanlon & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 18, 2015.