Opinion
No. 15–P–1340.
11-29-2016
COMMONWEALTH v. George W. HOOKER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Dorchester Division of the Boston Municipal Court, the defendant, George W. Hooker, was convicted of assault and battery. On appeal, he contends that (1) the admission of "mugshot" evidence constituted prejudicial error, and (2) misstatements in the prosecutor's opening statement and closing argument created a substantial risk of a miscarriage of justice. We affirm.
Background. We summarize the facts as follows, reserving certain details for our analysis of the issues raised on appeal. On February 23, 2012, the victim, William Nahim, drove his vehicle to the area of his insurance agency on Dorchester Avenue, and attempted to parallel park. At or near the time that Nahim backed his vehicle into a parking space, the defendant pulled his vehicle into the same space behind Nahim's vehicle. The defendant parked with the back end of his vehicle protruding into the roadway, as he needed space to load mattresses from a nearby furniture store.
Nahim asked the defendant, "What are you doing, that's my spot, I'm trying to park in here," to which the defendant replied, "Fuck you." Nahim exited his vehicle and asked the driver, "Why are you being a dickhead, what's the need for this?" The defendant and another man exited the defendant's vehicle and made their way toward the furniture store. Nahim exited his vehicle from the driver's side and walked around the rear of his vehicle to his passenger-side door to retrieve some paperwork.
Nahim testified that the defendant remained outside the furniture store, and, as Nahim retrieved the paperwork from his vehicle, the defendant asked, "Are you trying to pull on me?" and told his companion to "[g]o get the blade." Nahim testified that he "reached over," grabbed his wallet, and showed the defendant his identification and badge "hopefully to stop whatever was coming or whatever was going to happen." Nahim testified that he put his credentials back in his pocket. After he put the wallet away, "that's when [the defendant] struck me in the ... left side of my face with a right punch." The defendant hit Nahim four or five times on the face and head until Nahim fell to the ground and rolled back.
The defendant testified that he hit Nahim because he "assumed [Nahim] was going to pull something out, a gun or a knife or something" when Nahim made a reaching motion. He testified that he hit Nahim twice, then helped Nahim to his feet. He further contended that: Nahim was the aggressor; Nahim offered to fight the defendant in the park; in response to Nahim's invitation to fight in the park, he responded that he did not "have time for this foolishness"; Nahim yelled at him and threatened him; and he acted in self-defense
The defendant testified that Nahim "did like this," which apparently referenced a physical gesture made by Nahim. Although both defense counsel and the prosecutor commented on the nature of Nahim's movements in closing argument, the record does not specify whether this gesture constituted a deliberate or furtive movement. However, the defendant consistently testified that Nahim made a quick movement, and Nahim similarly testified that he was scared and felt that he needed to act "quickly."
After the defendant left the area, Nahim called 911. Officer Caetano Teixeira and another officer responded to the scene. Nahim told the officers that he had been assaulted, described the defendant, and provided the license plate number from the defendant's vehicle. Detective Edward Garvey subsequently ran a check of the license plate number, determined that the defendant was the registered owner of the vehicle, and generated a photograph of the defendant for a photo line-up. On February 28, 2012, one of Detective Garvey's colleagues showed the line-up to Nahim. Nahim identified the defendant as the man who hit him.
Discussion. 1. Photographic array. The defendant claims that testimony regarding "mugshot-related evidence" was unnecessary, damaged his credibility, and constituted prejudicial error. As a general rule, a judge has wide discretion to allow the prosecutor to satisfy the Commonwealth's burden of proof as to every element of the charged offense. Here, the judge determined that the Commonwealth had the "right to prove how they got to [the defendant]," and was not obligated to accept the defendant's concession that he was the individual in question. See Commonwealth v. Taghizadeh, 28 Mass.App.Ct. 52, 60–61 (1989) ("[E]ven if the defendant had not contested the existence of a specific intent to maim and disfigure his wife, the Commonwealth was obligated to prove each element of its case beyond a reasonable doubt despite the stipulations of the defendant"). We agree that the manner in which the police conducted their investigation and came to focus on the defendant, who was previously unknown to Nahim, was relevant. Compare Commonwealth v. Cohen, 412 Mass. 375, 393 (1992) (noting relevance of nonhearsay testimony regarding state of police knowledge which "impelled the approach to the defendant" [quotation omitted] ).
That the evidence had some probative value does not complete our analysis. As the defendant persuasively counters, in a case where the defendant admitted that he hit Nahim and focused on self-defense, the "mugshot" evidence arguably injected prejudice into the case. We have reviewed the entire record and conclude that although the better practice would have been to avoid the topic of the identification process, we discern no prejudicial error for the following reasons. First, contrary to the language in the defendant's brief, the word "mugshot" was not used by any witness or the judge in the presence of the jury. Second, neither the photographic array nor the photograph of the defendant was admitted in evidence or seen by the jury. Contrast Commonwealth v. Smith, 21 Mass.App.Ct. 619, 623 (1986), S.C., 400 Mass. 1002 (1987) (prejudicial error where photograph of defendant admitted in evidence in circumstance where defendant conceded identification, jury heard evidence that photograph was taken nearly two years prior to events at issue and apparently came from police, and jury were left to surmise that photograph related to "some anterior criminality"). Finally, the judge provided a comprehensive instruction in his final jury charge that advised that the police have photographs for many different reasons and directed the jury "not to draw any adverse inference against the Defendant because the police may have had his photograph." The instructions were clear, and we presume that the jury followed them. Commonwealth v. Williams, 450 Mass. 645, 651 (2008). Moreover, defense counsel stated that he was satisfied with the instructions.
2. Opening statement and closing argument. The defendant alleges that certain comments in the prosecutor's opening statement and closing argument combined to create a substantial risk of a miscarriage of justice. We disagree. The defendant takes issue with the prosecutor's attribution of the following remarks to Nahim: "I don't mean any harm, I just wanted to know why you took my spot, I don't want to cause any trouble." This comment, viewed in context, described Nahim's state of mind when he grabbed his wallet and showed the defendant his identification and badge. Indeed, this portion of the prosecutor's opening statement was consistent with, and supported by, Nahim's testimony that he was scared, and that he produced his identification and badge because he feared he would "get stabbed" in light of the defendant telling his friend to "go get the blade." Viewed in full context, Nahim essentially testified that he attempted to diffuse the encounter. Indeed, he testified on cross-examination that such was the case. Thus, the prosecutor's opening statement fairly summarized that evidence.
In his closing argument, defense counsel contended that his client acted in self-defense, because Nahim reached "so fast" that the defendant had a "split second decision" to make. The prosecutor described Nahim's reaching as slow, "not some furtive movement as defense counsel will have you believe." Accepting the defendant's argument, raised for the first time on appeal, that the prosecutor's description of the speed of Nahim's retrieval of his wallet contradicted the evidence at trial, we do not conclude that it created a substantial risk of a miscarriage of justice. First, Nahim testified that he showed his credentials to the defendant, returned the wallet to his pocket, and then the defendant punched him several times. Accordingly, the speed at which Nahim initially retrieved his wallet was not material to his version of the events at issue. Secondly, the jurors viewed and heard Nahim and the defendant testify, and they were in the best position to make fact and credibility determinations. Indeed, the judge instructed the jury that they are the finders of fact and the sole judges of the credibility of the witnesses. Finally, the judge instructed, myriad times, that openings statements and closing arguments are not evidence. Once again, the instructions were clear and we must presume the jury followed them. Williams, supra. There was no substantial risk of a miscarriage of justice.
To the extent that we have not specifically addressed subsidiary arguments in the defendant's briefs, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Judgment affirmed.