Opinion
10-P-2154
02-22-2012
COMMONWEALTH v. JOSE HERNANDEZ.
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
Discerning no merit in the several claims of error raised by the defendant on appeal, we affirm his conviction on charges of armed robbery, assault and battery by means of a dangerous weapon, and armed assault with intent to rob. We address the defendant's claims in turn.
1. Limitation of cross-examination. Upon the assertion by the defendant's trial counsel, mid-trial, that the trial prosecutor had met with a witness while the witness was incarcerated, and while there, discussed with the witness his testimony in this case, the trial judge conducted a voir dire, out of the presence of the jury, to inquire further into the details of the exchange. The testimony developed during the voir dire did not correspond to the description given by the defendant's trial counsel, and otherwise furnished no credible basis to establish bias by the witness. The defendant made no plausible showing that further cross-examination would have elicited evidence of bias suggesting that the witness adjusted his testimony in order to gain advantage in the disposition of another pending matter. See Commonwealth v. Buzzell, 79 Mass. App. Ct. 460, 462 (2011). Moreover, the defendant otherwise argued bias to the jury, based on evidence that the witness received a favorable disposition in the other matter. There was no error.
The witness's testimony during the voir dire was that the prosecutor encountered him in the courthouse corridor, following disposition of a probation matter in which the witness had been involved, and mentioned the scheduling of the trial in the present matter. Particularly germane to the question of potential bias, the chance encounter did not occur until after disposition of the witness's probation matter already had occurred.
2. Sergeant Kearney's comment that the defendant was 'nowhere to be found.' The defendant did not object at trial to (or move to strike) the unsolicited comment by Sergeant Kearney that between February 10, 2005, and March 6, 2009, the defendant was 'nowhere to be found.' Contrary to the defendant's contention on appeal, the unelaborated comment did not suggest that the defendant had misbehaved, for the purpose of showing his bad character or propensity to commit the crime. See, e.g., Commonwealth v. Trapp, 396 Mass. 202, 206 (1985). There was no evidence that the defendant had fled to avoid arrest, and no argument to that effect by the Commonwealth. There was no error, and therefore no substantial risk of a miscarriage of justice.
Indeed, the prosecutor made no reference to Sergeant Kearney's comment in his closing argument.
As the Commonwealth observes, the general topic of the delay between the identification of the defendant and the execution of the warrant for his arrest was relevant, among other purposes, to explain the potential effect of the passage of time on the ability of certain witnesses to make an in-court identification of the defendant.
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3. Closing argument. We discern no substantial risk of a miscarriage of justice in any of the remarks in the prosecutor's closing about which the defendant complains on appeal, for substantially the reasons explained in the Commonwealth's brief at pages thirty-three to forty-two.
Judgments affirmed.
By the Court (Green, Brown & Agnes, JJ.),