Opinion
13-P-1607
01-08-2015
COMMONWEALTH v. RICARDO GARCIA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant was convicted of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b), resisting arrest, G. L. c. 268, § 32B; and two counts of assault and battery on a public employee, G. L. c. 265, § 13D. The jury acquitted the defendant on a charge of armed assault with intent to murder, G. L. c. 265, § 18(b). The defendant appeals, asserting that the prosecutor's closing argument was improper. Although portions of the summation were better left unsaid, we do not find that the argument as a whole amounted to prejudicial error. Accordingly, we affirm.
Where, as here, the defendant preserved his claims of improper summation with timely objections, we must determine whether the prosecutor's statements resulted in prejudicial error. Commonwealth v. McCoy, 59 Mass. App. Ct. 284, 290 (2003). First, the defendant claims that the prosecutor misstated the evidence by repeatedly stating that the defendant "shoved" a knife into the victim's armpit. This characterization of the defendant's action was properly drawn from facts in evidence and "did not exceed the bounds of fair inference." Commonwealth v. Correia, 65 Mass. App. Ct. 27, 31 (2005). At trial, the victim testified that the defendant stabbed him in his armpit, and the medical testimony showed that the stab wound was two centimeters deep. Paramedics discovered a blood-stained knife in the defendant's pocket immediately following the incident. A prosecutor is permitted to "argu[e] forcefully for a conviction based on the evidence and on inferences" reasonably drawn from it. Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). We conclude that these statements were proper.
Next, the defendant contends that the prosecutor disparaged the defendant's medical expert, Dr. William Stuart, by asserting that the defendant paid for Stuart's opinion. While a prosecutor may remind the jury that an expert witness was retained by the defendant, see Commonwealth v. O'Brien, 377 Mass. 772, 778 (1979), she may not suggest that the expert's testimony was "bought." Commonwealth v. Shelley, 374 Mass. 466, 469 (1978). In the absence of evidence that an expert was paid more than his customary fee, we presume that his testimony was fairly procured. Id. at 469-470.
The only evidence regarding Stuart's fees was his testimony regarding the hourly rate that he ordinarily charged for his services. He testified during cross-examination that he charged $237.50 per hour, and that his total compensation was calculated from the hours spent preparing for, and testifying at, trial. Although Stuart also stated that "[m]ore time" meant "more money," his testimony did not establish, and no other evidence suggested, that the rate he charged the defendant was more than what was customary. The prosecutor's statements, therefore, "crossed the line between appropriate argument and improper insinuation." Commonwealth v. Bishop, 461 Mass. 586, 598 (2012).
The prosecutor's statements, albeit improper, do not rise to the level of prejudicial error. We are confident that they "did not influence the jury, or had but very slight effect." Commonwealth v. McCoy, 59 Mass. App. Ct. at 290, quoting from Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Based on the Commonwealth's expert's opinion that the victim suffered life-threatening injuries, the jury could have reasonably inferred that the defendant assaulted the victim with the intent to kill. Stuart testified that the victim's life was never in danger, and the jury ultimately acquitted the defendant of the charge of armed assault with intent to murder. "[W]e are confident that the jury took the criticized argument with a grain of salt," Commonwealth v. Bishop, 461 Mass. at 598 (citation omitted).
The prosecutor concluded her closing remarks by stating her "opinion" that once the jurors had gone over "all of the information" at trial, they would "return the one true verdict" in the case: that the defendant was guilty of all charges. The defendant contends that the prosecutor prejudiced the jury with this statement by imposing her personal opinion of the defendant's guilt.
As the trial judge correctly stated, in response to defense counsel's objection, it was "incorrect and improper" for the prosecutor to "have an opinion and to push that opinion on the jury." The judge promised to address this error during his charge to the jury, which he did with the following instruction: "The personal beliefs or the opinions of counsel or of the court on any issue in this case, and whether stated in the opening, or in the closing, or at any other time, that is not evidence in this case." We are confident that in light of the judge's curative instruction, this isolated instance of injecting personal belief did not prejudice the defendant.
Finally, we conclude that the prosecutor's statement regarding the "one true verdict" the jurors would derive from "all of the information" at trial amounted to fair comment on the strength of the Commonwealth's case. This statement falls within the range of appropriate forceful argument based on the evidence. Commonwealth v. Kozec, 399 Mass. at 516. Moreover, this language was consistent with the judge's own statements during the jury empanelment. At one point, the judge asked prospective jurors, "Is there any reason why you cannot or would not stand indifferent and impartial as a juror in this case and be able to render a true and a just verdict based solely on the evidence?" (emphasis supplied). He later told the sworn jurors, "If you follow your oath and try the issues in this case without fear or prejudice or bias or sympathy, then you will arrive at true and just verdicts, whatever those verdicts may be" (emphasis supplied).
Significantly, after defense counsel had objected to the prosecutor's use of the phrase, the trial judge did not repeat it in his final instructions.
In conclusion, we believe, "with fair assurance," that the two errors in the prosecutor's closing argument did not prejudice the defendant. Commonwealth v. McCoy, 59 Mass. App. Ct. at 290 (citation omitted).
Judgments affirmed.
By the Court (Cypher, Fecteau & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 8, 2015.