Opinion
18-P-1324
02-18-2020
COMMONWEALTH v. Melissa MALDONADO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant was convicted of disorderly conduct and trespass. On appeal, the defendant claims error in the admission of evidence, the prosecutor's closing argument, and the jury instructions. As there was no objection to any of the claimed errors at trial, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Steed, 95 Mass. App. Ct. 463, 469 (2019).
She was acquitted of threatening to commit a crime.
1. Evidentiary issues. a. Expert testimony by lay witnesses. The defendant first claims that lay witnesses impermissibly gave expert medical opinions at trial. See Commonwealth v. Canty, 466 Mass. 535, 541-542 (2013) (expert opinion is based on witness's "scientific, technical, or other specialized knowledge that will assist the jury in understanding a fact in issue," while lay opinion "lies within the realm of common experience"). Specifically, she contends that two security officers who worked at the hospital gave medical opinions concerning (1) the triage process when patients enter the emergency room and (2) whether patients in the emergency room appeared to be in pain, sick, or on edge. Contrary to the defendant's claim, neither witness gave a medical opinion.
The first security officer testified that he observed a triage nurse in the emergency room attempting to bring the defendant into the triage area so that the nurse could "do an initial assessment, vitals, temperature, 02 saturation," that is, "oxygen saturation in your blood." This was not an opinion, but rather a statement of fact of what takes place in triage. Given that the security officer had worked at the hospital for two years and at another hospital before that, it is reasonable to infer that he gained knowledge of the triage process from his employment. See Commonwealth v. Cintron, 435 Mass. 509, 521 (2001) (testimony that defendant was gang member permitted where foundation had been laid as to basis for witness's personal knowledge). See also Mass. G. Evid. § 602 (2019) (witness may testify to matter if there is sufficient evidence introduced to support finding that witness has personal knowledge of matter).
The second security officer testified that the defendant did not appear to be in pain based on the way she was physically acting. This was a permissible summary description of how the defendant appeared to the witness, based on the witness's observation of the defendant. See Commonwealth v. Bonomi, 335 Mass. 327, 339 (1957) (witness permitted to testify that another appeared to be nervous or happy). See also Mass. G. Evid. § 701 (2019) (lay witness may testify to opinion rationally based on perception and not scientific, technical or specialized knowledge). The security officer's testimony that the defendant needed to be removed from the emergency room, because "people in there are sick," and that unchecked disruptive behavior might put them "on edge," likewise contained no medical opinion. It was a common sense observation that people in an emergency room are presumably sick (because they are seeking medical treatment) and an explanation for the defendant's removal. Given that the witness was a security supervisor with thirty-six years' experience working at the hospital, he was competent to testify regarding the actions necessary to maintain order at the hospital based on his experience. See Mass. G. Evid. § 602 (2019).
b. Hearsay testimony. The defendant next argues that the trial was infected by "multiple hearsay," but fails to identify any actual statement alleged to be hearsay. She contends that three witnesses "relied on" what they were told by someone else, yet she makes no argument that any out-of-court statement was admitted to establish the truth of the matter asserted. See Commonwealth v. Silanskas, 433 Mass. 678, 693 (2001) (statements not hearsay when not offered for their truth). Her claim that the conviction was "based on rank hearsay," is also unsupported. There was ample evidence from witnesses who observed the defendant's conduct to convict her for both trespass and disorderly conduct.
2. Prosecutor's closing argument. The defendant contends that the prosecutor misstated the evidence when she "argued in closing that [the defendant] arrived in the emergency room at approximately 5:45 A.M." Yet, the prosecutor made no such statement. Rather, the prosecutor recounted a security officer's testimony that the defendant arrived at the hospital, that she was wheeled in, and within minutes she was already getting angry. This was an accurate summary of the witness's testimony. See Commonwealth v. Kozec, 399 Mass. 514, 516 (1987) (prosecutor may deliver forceful closing argument based on facts in evidence and reasonable inferences therefrom).
The defendant also claims that the prosecutor argued that "nobody cared and [the defendant] did not care where she made the call for a ride as long as she was away from [hospital] property." She contends that this was inappropriate because the prosecutor failed to acknowledge the defendant's testimony that she was concerned for her safety. Yet, the prosecutor accurately summarized the security staff's testimony and the prosecutor had no obligation to give credence to the defendant's theory of the case. See Commonwealth v. Roy, 464 Mass. 818, 829-830 (2013) (in closing, prosecutor entitled to marshal evidence in Commonwealth's favor and "it is for the jury to determine where the truth lies" [citation omitted] ).
The prosecutor's actual statement was: "The police officer said that he was just trying to get her to leave. He didn't care where she called her boyfriend. She didn't care where she was getting a ride from. She just had to be off the property." In context, it appears that when the prosecutor said, "[s]he didn't care," she may have been referring to the police officer and not the defendant.
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Finally, the defendant challenges the prosecutor's conclusion to her closing argument:
"She was there with other patients who were already there waiting to be seen. And her unnecessary behavior after multiple people just tried to calm her down, just tried to get her to leave, and she wouldn't do that. Does that message finally get to you?"
Citing Commonwealth v. Coyne, 44 Mass. App. Ct. 1, 8 (1997), the defendant argues that the rhetorical question was "inappropriate" because "prosecutors should resist using rhetorical cliches that may result in reversal." In Coyne, where the prosecutor used the phrase "run and hide" to characterize the defendant's trial strategy, the court noted that the phrase could be understood as a comment on the defendant's silence at trial and therefore could be a basis for reversal. Id. By contrast here, the defendant has failed to articulate how the prosecutor's statement could be viewed in any way which risked reversal.
3. Jury instructions. The defendant claims that the judge erred in failing to sua sponte instruct the jury that they could draw an adverse inference against the hospital for destroying a potentially exculpatory video. Yet, the defendant has failed to establish the factual premise for this argument. The record contains the defendant's motion for production of a video from the hospital, which was allowed. The docket entries indicate that the defendant later filed a motion to dismiss which was denied with "[c]opies of decision" sent to the parties. The record does not disclose the basis for the motion to dismiss or the denial. Although the defendant cross-examined witnesses concerning security video at the hospital, at no point did the witnesses indicate that a video depicting this incident had been destroyed. As a result, we need not consider this claim. See Roby v. Superintendent, Mass. Correctional Inst., Concord, 94 Mass. App. Ct. 410, 411-412 (2018) (appellant responsible to ensure record is adequate for appellate review).
Judgments affirmed.