Opinion
10-P-1872
10-13-2011
COMMONWEALTH v. EWANDRO P. MICULIS.
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
Upon review of the briefs, record appendix, and transcript, we find no merit in the defendant's various claims of error. Accordingly, we address each in a summary manner, for the most part relying on the Commonwealth's brief and, where appropriate, merely citing relevant case law.
1. Testimony. a. The defendant argues that the victim's testimony that he asked her to strike him with a kitchen knife and that he stabbed the couch was erroneously admitted, creating a substantial risk of a miscarriage of justice. The admission of this testimony was not error, much less a substantial risk of a miscarriage of justice. That evidence was inextricably intertwined with the offenses on trial. See, e.g., Commonwealth v. Irving, 51 Mass. App. Ct. 285, 292 (2001). Moreover, as the knife incident occurred moments after the defendant assaulted the victim, viewed in context, it was relevant to show the defendant's intent and hostility toward the victim and provide an explanation of the victim's actions afterwards. See Commonwealth v. Butler, 445 Mass. 568, 575-576 (2005).
b. The defendant contends that the judge abused his discretion by allowing the victim to testify, over objection, that she imagined herself being in the couch's place. We do not agree. Evidence that the victim was afraid of being stabbed by the defendant was properly admitted. See and compare Commonwealth v. Breese, 381 Mass. 13, 16-17 (1980).
2. Mistrial. The judge did not abuse his discretion by declining to grant a mistrial. The judge acted properly, promptly striking the offending testimony and instructing the jury not to consider testimony about anything other than what occurred on the night in question. See, e.g., Commonwealth v. Bryant, 447 Mass. 494, 503 (2006).
3. Closing argument. We review the entire argument, the instructions, and the evidence at trial. Commonwealth v. Freeman, 430 Mass. 111, 118 (1999). It has not been shown that there was any error warranting reversal.
In sum, based substantially on the reasoning and authorities set out in the Commonwealth's brief, we affirm the judgments.
So ordered.
By the Court (Trainor, Brown & Carhart, JJ.),