Opinion
15-P-326
05-02-2016
COMMONWEALTH v. GARRETT VIL.
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 District Court, the defendant, Garrett Vil, was found guilty of assault and battery. He now appeals from his conviction. We affirm.
Background. The jury could have found the following facts at trial. The victim, the defendant's girl friend, spent the evening with friends drinking at a bar. When the bar closed, she called the defendant for a ride. He picked her up, and the two went to a house party. At the party, the victim consumed a little more alcohol. The two left the party after a short time, and went to a McDonald's restaurant. The victim did not remember going to the restaurant. They then went across the street to a Quality Inn to stay for the night. At the inn, the two got into an argument. The defendant hit the victim, pulled her hair, and choked her. The next morning, she went across the street to McDonald's, where she saw a relative who allowed her to use his phone to call a friend to pick her up. As she was leaving McDonald's and walking toward a Big Lots store where she was to meet her friend, the defendant drove up, again pulled her hair, and forced her to get into his car. When her friend arrived, the defendant told the victim to get out of the car. The victim had bruises on her face, lips, and arms.
Discussion. 1. Nickname. The defendant argues that it was prejudicial error for the judge to admit evidence of what he terms his "alias." In a motion in limine, the defendant requested that the judge forbid reference to him as any name other than "Mr. Vil" or the defendant. The judge did not rule on the motion because he did not anticipate that the Commonwealth would introduce any such evidence during trial. However, during the testimony of one witness, who volunteered that she knew the defendant by the name "Jersey," the prosecutor and the witness cumulatively referred to the defendant by his nickname, "Jersey," five times. The judge allowed this over the defendant's objection. Apparently the witness referred to the defendant as "Jersey" because that is the name by which she knew him.
"Aliases can be suggestive of bad character and prior criminality, and therefore raise a possibility that the jury will improperly consider criminal propensity." Commonwealth v. Carter, 423 Mass. 506, 514 (1996). However, the Supreme Judicial Court has found references to far more suggestive nicknames not to be so prejudicial as to require reversal. See id. at 514-515 (repeated use of alias, "Kilo," did not create a substantial likelihood of a miscarriage of justice). See also Commonwealth v. Martinez, 458 Mass. 684, 697 (2011) (no prejudicial error where judge allowed reference to nickname, "Pinocchio").
In this case, the nickname "Jersey" is not pejorative or indicative of any criminality, and the prosecutor did not rely upon or draw attention to the existence of the nickname. Cf. Commonwealth v. Martin, 442 Mass. 1002, 1002 (2004). We discern no prejudice to the defendant by the isolated references to his nickname during the testimony of a single witness.
2. Improper vouching. The defendant also contends that the prosecutor's closing argument included improper statements of personal belief and support for the credibility of the Commonwealth's witness. Specifically, the prosecutor stated that in the Commonwealth's opinion, there was very clear evidence, and that it was not a case where there was "a lot of vagueness." She also noted that the victim had been "very candid in the Commonwealth's opinion" about which parts of the evening she could and could not remember. These comments were in response to defense counsel's closing in which he suggested that the victim had been so intoxicated that she was not credible, pointing out the numerous aspects of the evening she did not remember. The prosecutor did not express her personal belief about the credibility of the witness. See Commonwealth v. Bourgeois, 391 Mass. 869, 878 (1984). She permissibly responded to defense counsel's attack on the credibility of the witness and commented on the strength of the Commonwealth's case. See Commonwealth v. Chavis, 415 Mass. 703, 713 (1993). See also Commonwealth v. Grimshaw, 412 Mass. 505, 508 (1992).
The defendant further argues that the judge neglected to instruct the jury to disregard what he has characterized as the prosecutor's improper statements. "[T]he judge's careful and clear instructions concerning the role of the closing arguments and how to determine the credibility of witnesses adequately offset any semblance of impropriety, were we to determine that one occurred." Commonwealth v. Brewer, 472 Mass. 307, 315 (2015).
3. Sentencing. The trial judge had also presided over the dangerousness hearing before trial. During sentencing, he considered all the exhibits presented by the Commonwealth during that previous hearing. The defendant argues that the judge improperly relied upon dismissed charges of assault and battery against other women, which were introduced at the dangerousness hearing, in deciding to sentence him to the statutory maximum of two and one-half years.
A judge has considerable discretion to "fashion an appropriate individualized sentence." Commonwealth v. Mills, 436 Mass. 387, 399 (2002). While a sentencing judge may not punish a defendant for untried crimes, id. at 400, nothing prevents the judge from viewing dismissed charges. Commonwealth v. Lender, 66 Mass. App. Ct. 303, 307 (2006). Evidence of similar criminal conduct has relevance at the sentencing stage, even if it would not be admissible at trial. See Commonwealth v. Goodwin, 414 Mass. 88, 92-93 (1993). Such evidence may be considered relevant to "the defendant's character and his amenability to rehabilitation." See id. at 93. Nothing in the record indicates that the judge punished the defendant for uncharged conduct; it only appears that he considered the defendant's history in arriving at the sentence. Cf. Commonwealth v. Henriquez, 56 Mass. App. Ct. 775, 780 (2002), S.C., 440 Mass. 1015 (2003) (judge made comment connecting deviation from guidelines to uncharged conduct).
Finally, the judge did not, as the defendant argues, fail to properly complete a statement giving his reasons for departing from the guidelines under G.L. c. 211E, § 3(h), in imposing the sentence. The sentencing guidelines have not been enacted into law, and, therefore, are not in effect. See G. L. c. 211E, § 3(a)(1), inserted by St. 1996, c. 12, § 9 (sentencing guidelines "shall take effect only if enacted into law").
Judgment affirmed.
By the Court (Cypher, Cohen & Neyman, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 2, 2016.