Opinion
22-P-900
07-12-2024
COMMONWEALTH v. LUIS A. MERCED-NAVAEZ.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant appeals from his conviction, after a jury trial, of assault and battery on a pregnant person (ABPP), G. L. c. 265, § 13A (b) (ii). He raises five issues on appeal. First, he argues that the prosecutor improperly used evidence of inadmissible prior acts to establish the defendant's propensity toward criminality and the victim's propensity toward lawfulness. Second, he argues that the prosecutor improperly elicited the victim's opinion about the credibility of her own testimony and the defendant's testimony. Third, he argues that the prosecutor improperly solicited irrelevant testimony that appealed to the jury's sympathy. Fourth, he asserts that improper statements in the prosecutor's closing argument resulted in a substantial risk of a miscarriage of justice. Finally, he claims that trial counsel rendered ineffective assistance because counsel failed to object to the purported errors. We affirm.
Background.
"We summarize the facts the jury could have found, reserving additional facts for later discussion." Commonwealth v. Beal, 474 Mass. 341, 343 (2016). The defendant and victim started dating around 2012. The couple had one son together in 2016. Around July 2019, the victim learned that she was pregnant with a second child from the defendant. The couple separated around August of 2019.
On August 5, 2019, the victim visited the defendant at his sister's house in Boston. She was accompanied by their son. The defendant and the victim got into an argument, which escalated, and the defendant hit the victim with the cord of a phone charger "five or six times," using it like a whip against her back and legs, causing bruises. The incident lasted around fifteen to twenty minutes. The victim left with the son, and the defendant left at the same time because he had to take the same bus route as the victim. Two days later, on August 7, 2019, the victim reported the episode to the officers at her local police department in Lynn who took photographs of the victim's injuries but told her to report it to the Boston police department since the incident occurred there. The victim reported the incident to the Boston police department five days later, on August 12, 2019.
The defendant was originally charged with assault and battery by means of a dangerous weapon on a pregnant person, G. L. c. 265, § 15A (c) (ii). On October 22, 2020, a Boston Municipal Court judge dismissed so much of the complaint as alleged that the assault and battery was carried out by means of a dangerous weapon. After a jury trial, in which a different judge presided, the defendant was found guilty of ABPP and was sentenced to two and one-half years in the house of correction to serve concurrent with a sentence he was already serving. This appeal followed.
Discussion.
Prior acts.
The defendant argues that the prosecutor improperly used evidence of inadmissible prior acts to attempt to establish the defendant's propensity toward criminality and the victim's propensity toward lawfulness. "Evidence of a defendant's prior or subsequent bad acts is not admissible to show 'bad character or criminal propensity.'" Commonwealth v. Howard, 479 Mass. 52, 67 (2018), quoting Commonwealth v. Lally, 473 Mass. 693, 712 (2016). Mass. G. Evid. § 404(a)(1) (2024). However, this type of evidence "generally is admissible for another purpose such as to establish a defendant's 'common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive.'" Howard, supra, quoting Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). Mass. G. Evid. § 404(b)(2).
Here, the defendant argues it was error for the jury to hear the victim testify that she had suffered "blows . . . from previous fights." We agree but note that defense counsel objected and moved to strike this testimony, which the judge sustained. As a result, we must presume that the jurors followed the judge's instructions. See Commonwealth v. Silva, 93 Mass.App.Ct. 609, 615 (2018).
Next, the defendant takes issue with two pieces of the victim's testimony that were entered without objection: first, on direct examination, the victim testified that the incident in this trial was the "last one," and second, on cross-examination, the victim stated, "[m]y concerns were . . . if he was starting to go back to do the bad things that . . . he used to do." He argues that the jury impermissibly considered this testimony as propensity evidence. Where the defendant does not object to such testimony at trial, he is left to argue that its introduction caused a substantial risk of a miscarriage of justice. See Commonwealth v. Madera, 76 Mass.App.Ct. 154, 160 (2010). "An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not 'materially influence[]' the guilty verdict." Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
Here, the victim did not elaborate on any of the defendant's acts or indicate that the defendant in fact had a history or propensity for violence. See Howard, 479 Mass. at 67. The challenged statements were generic and vague, so even assuming without deciding that the admission of these statements was an error, and considering the strength of the Commonwealth's case, we discern no substantial risk of a miscarriage of justice. The jury was able to consider the victim's testimony about the incident at issue and could consult the photographic evidence of the alleged assault in making their credibility assessments. See Commonwealth v. Diaz Perez, 484 Mass. 69, 78 (2020), overruled in part on other grounds by Commonwealth v. Tavares, 491 Mass. 362 (2023).
Finally, the defendant takes issue with the victim's testimony that she had no criminal record for the last fourteen years. "Ordinarily, 'evidence whose purpose is not to prove material facts but merely to bolster credibility generally may not be admitted unless and until there has been an attack on credibility.'" Commonwealth v. Oliveira, 74 Mass.App.Ct. 49, 58 (2009), quoting M.S. Brodin & M. Avery, Massachusetts Evidence § 6.24 (8th ed. 2007). Here, the defense counsel challenged the credibility of the victim in his opening, when he stated, "you will also see some glaring inconsistencies and irregularities in things that perhaps don't make a great deal of sense in light of her testimony." On cross-examination, in an effort to suggest the victim had reason to fabricate the assault, defense counsel asked the victim whether a U Visa would "improve [her] immigration status;" she answered affirmatively in response to that question but also stated that she was "eligible for other types of visa[s]." On redirect, the prosecutor asked the victim what other visas she was eligible for to which she responded the "10 year law" because she had maintained a "clean good record" since the time she entered the country fourteen years prior. The victim's answer was responsive to a permissible question and explanatory; as such we conclude there was no error in the admission of the testimony. See Oliveira, supra at 58.
See 8 U.S.C. § 1101(a)(15)(U); Commonwealth v. Sealy, 467 Mass. 617, 618 n.1 (2014) (providing overview of U-Visa application process).
Credibility assessment. The defendant next argues that the prosecutor improperly elicited the victim's opinion about the credibility of the defendant's testimony as well as her own. See Commonwealth v. Alphas, 430 Mass. at 17, quoting Commonwealth v. Triplett, 398 Mass. 561, 567 (1986). Specifically, he argues that, by having the victim reiterate on redirect that her reason for testifying was not to obtain a U Visa, she was impermissibly declaring that the assault actually occurred. As mentioned above, the victim was permitted to explain her reasons for testifying in response to the defendant's attack on her credibility. See Oliveira, 74 Mass.App.Ct. at 58.
Sympathetic testimony.
Next, the defendant asserts that the prosecutor improperly solicited instances of irrelevant testimony from the victim designed to portray her in a sympathetic light. We disagree. "The prosecutor has a particular obligation not only to argue the Commonwealth's case forcefully and aggressively, but also to do so in a way that states the evidence clearly and fairly and inspires confidence that the verdict was reached based on the evidence rather than sympathy for the victim and her family." Commonwealth v. Santiago, 425 Mass. 491, 494 (1997).
The defendant claims that the prosecutor's question to the victim about whether her son witnessed the assault was irrelevant and prejudicial. However, when the prosecutor asked the victim, "Did [your son] see the defendant hit you with the phone charger," the defense counsel objected to the question, and it was sustained. See Silva, 93 Mass.App.Ct. at 615.
Next, the defendant takes issue with the victim's motive for testifying, specifically her testimony that she was testifying on behalf of her children, especially her daughter who "suffered the most." The defendant argues that the jury would have understood this testimony to mean that the victim's children had also suffered violence from the defendant. However, this testimony was elicited by the prosecutor on redirect after defense counsel had asked the victim whether she was testifying to obtain the U Visa, and defense counsel did not object. As a result, this was a permissible response. See Oliveira, 74 Mass.App.Ct. at 58.
Finally, the defendant challenges an exchange on direct examination related to the victim's son. After the victim volunteered in response to a question about her children's ages that her son was "here," the prosecutor asked, "where is he?," to which the victim replied, "I had him in a room here." The defendant argues that this invited the jury to focus on how the assault impacted the son rather than focusing on the incident itself. We agree that this testimony was irrelevant and would have been best left unsaid. Nevertheless, defense counsel did not object, and the judge specifically instructed the jury to disregard sympathy, which we assume they followed. See Commonwealth v. Gordon, 422 Mass. 816, 831 (1996).
The judge instructed the jury, "[a]ll we ask is that you, individually, and as a group, do your best to resolve this case based upon the evidence and the law without sympathy, bias, or prejudice, to the best of your ability as human beings" (emphasis added).
Closing argument.
The defendant for the first time on appeal argues that the prosecutor made errors in his closing resulting in a substantial risk of a miscarriage of justice. See Commonwealth v. Sanders, 101 Mass.App.Ct. 503, 511 (2022) (unpreserved errors in closing argument reviewed for substantial risk of miscarriage of justice).
Specifically, he argues that the prosecutor used several hyperbolic statements to appeal to the jury's sympathy when he described why there was a gap in the time between the assault and the reporting, when he repeatedly used the word "flog" to describe the assault, and when he emphasized that the victim testified on behalf of her children. "While a prosecutor has a duty to argue the public's case aggressively, '[i]t is the evidence, not the sympathy, that must be the foundation of the jury's decision.'" Commonwealth v. Kozec, 21 Mass.App.Ct. 355, 363 (1985) S.C., 399 Mass. 514 (1987), quoting Commonwealth v. Smith, 387 Mass. 900, 909-910 (1983). "'Enthusiastic rhetoric, strong advocacy, and excusable hyperbole' are not grounds for reversal." Commonwealth v. Wilson, 427 Mass. 336, 350 (1998), quoting Commonwealth v. Sanna, 424 Mass. 92, 107 (1997).
During closing, the prosecutor stated, "[T]his could not have been an easy afternoon as [the victim] testified about [the assault and battery]. You even saw that she choked up into tears at times. Imagine what it must've been like when the wounds were fresh, when the pain was fading away, and she had to grapple with the fact that the father of her child was someone she had to report to the police."
The prosecutor stated that the defendant "flogged" the victim "like a man whips a beast," and, "this case is about a man who flogged the mother of his child. It is about nothing else. You heard from [the victim] right here before you today, about how the defendant was the father of not only her son, but also her daughter. And, that on August 5 of 2019, the father of her daughter, as her daughter was in her belly, flogged her . . . a woman cowering as her back was flagellated by the father of her child" (emphasis added).
The prosecutor stated, "You may ask yourselves . . . why didn't she call police earlier . . . she had a young child in tow, [her son]. [Her son] who she still has to keep in tow. You heard how she had to keep him in this courthouse during this trial while she was testifying. She had to put him in another room while she was testifying before you. This young kid that she had in tow, whose life was in her hands."
Here, the repeated use of the phrase "flog" in opening and closing went over the excusable bounds of acceptable rhetoric. See Kozec, 21 Mass.App.Ct. at 363. Additionally, with respect to the other statements, even though the prosecutor was reiterating what the victim stated in her own testimony, these statements came close to appealing to the jury's sympathy. Nevertheless, that defense counsel did not object is "some indication that the tone, manner, and substance of the now challenged aspects of the prosecutor's argument were not unfairly prejudicial." Commonwealth v. Toro, 395 Mass. 354, 360 (1985). The absence of any objection, the strength of the Commonwealth's case, and the curative instructions given by the judge convince us that there was no substantial risk of a miscarriage of justice. See Alphas, 430 Mass. at 13; Gordon, 422 Mass. at 831.
Next, the defendant argues that the prosecutor misstated several pieces of evidence and misconstrued the defendant's arguments. There was no reversible error. While these statements were not exact representations of the facts or the defendant's arguments, they did not go beyond the bounds of appropriate advocacy. See Commonwealth v. Kozec, 399 Mass. 514, 516 (1987).
First, the prosecutor stated that "the defendant followed [the victim] all the way to Forest Hills," when in reality the two had to take the same bus route to get to their own homes. It is true that the defendant was not "following" the victim home. Additionally, the prosecutor stated that the "defendant asks you to find that [the victim] is a liar about everything," and that the defendant wanted the jury to "look away from" the photographic evidence. The defendant contends that this misconstrued his arguments since defense counsel had only stated that there would be "inconsistencies" in the victim's testimony. The defendant also takes issue with the prosecutor's assertion that there were no inconsistencies in the evidence.
In his opening statements, defense counsel stated, "You will hear. . . [the victim's] testimony. You will see photos. You will see medical records. And, I imagine, and I suspect, that through these three sources of evidence, you will also see some glaring inconsistencies and irregularities in things that perhaps don't make a great deal of sense in light of her testimony."
Moreover, even if error, there is no claim that the judge did not properly instruct the jury that closing statements are not evidence, and thus any potential errors did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Anderson, 445 Mass. 195, 214 (2005).
During the judge's opening statements, he stated, "I instruct you that the closing argument of the attorneys, like the opening statements, are not evidence," and after closing arguments, he once again stated, "The opening statements and closing arguments of the lawyers are not a substitute for the evidence."
Ineffective assistance of counsel.
Finally, the defendant argues that his trial counsel should have objected to the errors, and the failure to do so rendered his counsel ineffective. Notably, he did not provide an affidavit from his trial counsel. See Commonwealth v. Martinez, 86 Mass.App.Ct. 545, 551 (2014). To prevail on a claim of ineffective assistance of counsel, a defendant must establish that counsel's performance fell "measurably below that which might be expected from an ordinary fallible lawyer" and "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "When assessing whether[] counsel's behavior fell below the standard of an ordinary, fallible lawyer, we focus on whether[] counsel 'failed to raise a significant and obvious issue . . . which . . . may have resulted in a reversal of the conviction, or an order for a new trial" (citation omitted). Commonwealth v. Aspen, 85 Mass.App.Ct. 278, 282 (2014). Without an affidavit from trial counsel, we see no basis on this record on which to conclude that counsel was ineffective. Furthermore, as already discussed, there was no substantial risk of a miscarriage of justice caused by trial counsel's lack of objection to the testimony or closing.
Judgment affirmed.
The panelists are listed in order of seniority.