Opinion
15-P-407
03-14-2016
COMMONWEALTH v. MICHELLE P. MONTES.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
Following a jury trial, the defendant was convicted of assault and battery on a person sixty or older. On appeal, she claims multiple prosecutorial and judicial errors. We affirm.
1. Closing arguments. The defendant claims the prosecutor's closing argument contained numerous improper remarks regarding the defendant's and victim's credibility that precluded her right to a fair trial. We disagree. First, she argues that a comment on the defendant's inconsistent testimony was not only inaccurate, but also prejudiced the defendant and warrants reversal. Although the Commonwealth concedes that the unobjected-to comment was inaccurate, the remark did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Taylor, 455 Mass. 372, 384-385 (2009). The misstatement over whether the victim exited the car may have touched on, but had little, if any, impact on credibility. Indeed, it was a collateral and brief point relative to the closing argument overall. See Commonwealth v. Burgos, 462 Mass. 53, 72 (2012) ("relatively brief point of focus" did not require reversal). Furthermore, the judge instructed the jury that their memory of the evidence, not the attorneys', prevails to negate any risk of potential prejudice. See Taylor, supra at 385. The remark did not create a substantial risk of a miscarriage of justice.
The prosecutor argued in closing that the defendant testified inconsistently in first claiming that the victim never exited his car during their confrontation, but later suggesting that he did. The Commonwealth conceded in its brief that the record does not support this statement.
The defendant also claims that the prosecutor improperly bolstered the victim's credibility by highlighting his status as a court clerk. We disagree. Contrary to the defendant's assertions, the prosecutor's reference to the victim's job did not "guarantee his credibility" to the jury, but instead suggested that the victim was a credible and ordinary citizen who, by virtue of his employment, understood and was familiar with the oath he took before testifying. See Commonwealth v. Smith, 450 Mass. 395, 408 (2008) ("a prosecutor is permitted to make a fair response to an attack on the credibility of a government witness" [quotation omitted]); Commonwealth v. Wood, 469 Mass. 266, 286 (2014). Such a statement was not improper. Even if it were, the statement comprised only a brief part of the closing remarks on credibility and did not create a substantial risk of a miscarriage of justice.
The prosecutor stated: "[The victim] took the stand today under oath, the same oath that he administers every day for 17 years and he said to you clearly what happened that day."
The defendant's claim that the judge improperly considered the victim's status as an aggravating factor in sentencing is likewise meritless. Although the judge did refer to the victim's "very important work" in sentencing, the context suggests that the judge considered the aggravating factor to be that the assault occurred on an otherwise ordinary person over sixty on his way to work. Contrary to the defendant's assertions, the judge does not appear to attribute particular significance to the victim's status, especially given the lenient sentence of eighteen months' probation and order to attend an anger management program.
Finally, the defendant contends that the prosecutor's comment regarding the defendant's pauses during her responses to questions on cross-examination cast a negative light on her interpreter-aided testimony. We disagree. When read in context, the comment properly asked the jury to consider the defendant's behavior and demeanor on the witness stand, not her use of an interpreter. See Commonwealth v. Felder, 455 Mass. 359, 368 (2009). While the prosecutor did ask the jury to "pay close attention" to how both the defendant and victim testified, including "how quick they were able to answer questions," she did so after noting that the defendant was calm and "willing to answer questions right away in a friendly matter" on direct examination, but that this demeanor notably changed on cross-examination. In contrast, she asserted, the victim's demeanor did not change. Taken in context, these comments on the defendant's behavior and the challenged aspects of the prosecutor's closing were proper; there was no error.
2. Consciousness of guilt. The defendant also claims that the judge improperly allowed testimony, and instructed the jury, on consciousness of guilt. We disagree. "[W]hen there are multiple possible explanations for a defendant's flight, it is for the jury to decide if the defendant's actions resulted from consciousness of guilt or some other reason." Commonwealth v. Morris, 465 Mass. 733, 738 (2013), quoting from Commonwealth v. Prater, 431 Mass. 86, 97 (2000). Here, the jury could have considered and inferred consciousness of guilt from either the defendant's (1) departure from the scene of the confrontation, or (2) absence from the residence listed on the registration for the car she drove when the police attempted to locate her. Because the defendant knew the victim called 911, she could have reasonably inferred the police would come to the scene, especially in response to the victim's accusations of the violence towards him. This knowledge, combined with her flight, supports a valid inference of consciousness of guilt.
The defendant testified that the victim told her he was calling 911. Her voice is audible in the recording.
The jury could similarly infer that the defendant was avoiding arrest from the evidence that police were unable to find the defendant at the address where the car she drove was registered. Even though the police did not specify that the car was registered to the defendant or that the registration necessarily matched where she lived, the jury could fairly consider the possibility that her absence from her presumable home suggested consciousness of guilt. While the defendant's departure and the efforts to stay away from her home could have innocent explanations, the prosecutor's evidence of, and the judge's instructions on, consciousness of guilt enabled the jury as fact finder to appropriately consider either possibility. See Commonwealth v. Toney, 385 Mass. 575, 585 (1982).
We reject the defendant's contention that defense counsel's failure to object to the consciousness of guilt instruction amounted to ineffective assistance of counsel. As discussed above, there was no error in providing the instruction. Even if there were, it is not apparent on the record, nor is there any support for the argument that failure to object in this instance was manifestly unreasonable. See Commonwealth v. Keon K., 70 Mass. App. Ct. 568, 573-574 (2007).
3. Hearsay. Finally, the defendant contends the judge erred in admitting the victim's 911 call. Specifically, she claims the first half of the call is hearsay not within the excited utterance exception to the hearsay rule. We disagree. A judge may, in his or her discretion, admit an otherwise inadmissible hearsay statement "if it follows an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of an observer, if the statement's utterance [is] spontaneous to a degree which reasonably negates premeditation or possible fabrication and . . . tends to qualify, characterize and explain the underlying event." Commonwealth v. Linton, 456 Mass. 534, 548 (2010) (quotation omitted).
Although the defendant objected to the admission of the first half of the call, once admitted, she requested that the entire call be admitted in evidence.
In this instance, the victim's statements that he was being struck occurred simultaneously or within moments of the assault and battery. See Commonwealth v. Beatrice, 460 Mass. 255, 258-259 (2011). Even though the victim lacked any serious injury, and regained his composure during the call, there was evidence that the startling event prompted him to make spontaneous statements that fall within the excited utterance exception to the hearsay rule. See Commonwealth v. Simon, 456 Mass. 280, 296 (2010). Moreover, the recording provided probative, direct evidence of the actual interaction between the defendant and victim. See Commonwealth v. Galicia, 447 Mass. 737, 745 (2006). As such, the judge did not abuse his discretion or err in admitting the recording.
Judgment affirmed.
By the Court (Trainor, Meade & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 14, 2016.