Opinion
12-P-807
02-12-2016
COMMONWEALTH v. ROBERT P. MULVEY, JR.
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
The defendant, Robert Mulvey, Jr., appeals from his convictions of assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A, and intimidation of a witness, in violation of G. L. c. 268, § 13B, as well as the denial of his motion for a new trial. The defendant maintains that his convictions should be reversed for four reasons. First, the defendant argues that the judge abused his discretion in several of his evidentiary rulings and that the judge deprived him of his constitutional right to present a defense. Second, the defendant contends that the prosecutor's closing argument was improper and gave rise to a substantial risk of a miscarriage of justice. Third, the defendant maintains that defense counsel rendered ineffective assistance of counsel. Fourth, the defendant argues that the judge abused his discretion by denying his motion for a new trial. We affirm.
Background. We summarize the facts as the jury could have found them, in the light most favorable to the Commonwealth, reserving some facts for later discussion. Commonwealth v. Sanna, 424 Mass. 92, 93 (1997).
The defendant began dating Amanda Perkins (Perkins) when she was seventeen years old and he was twenty years old. In 2007, when Perkins was twenty-one years old, she and the defendant had a daughter, Payton. Shortly after Payton was born, Perkins and the defendant moved in together. Soon the couple begun to argue. After an incident of verbal and physical abuse, Perkins moved back to her parents' house. As a result of the incident, Perkins applied for a restraining order.
At the time of trial in 2011, Perkins was twenty-six years old.
The defendant and Perkins eventually reconciled and had their second child, Hadley, in December, 2008. While Perkins was four months pregnant with Hadley, she and the defendant got into an argument. This incident also consisted of verbal and physical abuse. Perkins reported the incident at the police station but did not file for a restraining order. The defendant and Perkins ended their relationship.
On Thanksgiving Day, November 25, 2010, Perkins drove to the defendant's residence to drop off the children. The defendant, who was outside waiting for Perkins when she arrived, got into Perkins's car and asked her to buy him cigarettes. When Perkins refused to purchase cigarettes for the defendant, he got angry and refused to take the children. The defendant then grabbed Perkins by the neck and slammed her head against the center console of the car.
At some point during the altercation, Perkins noticed a police cruiser drive up. The defendant said, "Sit there and be quiet. If I go to jail again, I will kill you." Perkins testified that she was put in fear by this statement. When the situation calmed down, the defendant got the children from the back of the car. Because Perkins had never seen the defendant physically hurt their children, she did not think they were in danger or that he would do so. On January 6, 2011, Perkins went to the police station to fill out a report about the altercation that took place on Thanksgiving Day.
Perkins testified that she was honking the horn during the altercation "hoping that someone would hear and maybe look outside."
Discussion. I. Evidentiary rulings. The defendant makes several challenges to the judge's evidentiary rulings. The defendant contends that the judge improperly allowed the prosecutor to introduce propensity and bad act evidence, improperly appealed to jury sympathy, and improperly admitted inadmissible totem pole hearsay. Further, the defendant argues that the judge violated his constitutional rights to present a defense. We review a judge's evidentiary rulings for an abuse of discretion, Commonwealth v. Dargon, 457 Mass. 387, 400 (2010), and will evaluate the challenges in turn.
The defendant's challenges revolve around criticism of the prosecutor for the introduction of the now contested evidence. However, "[w]e note that generally a prosecutor cannot be criticized for the introduction and use of evidence that has been admitted, even if the judge's rulings on the admission of such evidence are ultimately determined to be erroneous. . . . We will therefore address the defendant's allegations of 'prosecutorial misconduct' as questions of judicial error, unless the question requires a different analysis." Commonwealth v. Mendes, 441 Mass. 459, 463-464 (2004).
The judge did not abuse his discretion when he allowed the introduction of evidence of the defendant's prior bad acts. Although the Commonwealth may not introduce a defendant's prior or subsequent bad acts for the purpose of showing a propensity to commit the crime charged or bad character, the evidence is admissible for other relevant probative purposes. See Commonwealth v. Tobin, 392 Mass. 604, 613 (1984). This evidence was admissible for several reasons. First, it demonstrated the hostile nature of the relationship between the defendant and Perkins. See, e.g., Commonwealth v. Sarourt Nom, 426 Mass. 152, 160 (1997) (protective orders obtained by victim against defendant admissible because relevant to show status of their relationship); Commonwealth v. Eugene, 438 Mass. 343, 348-349 (2003) (evidence that victim obtained abuse protection order admissible to demonstrate evidence of hostile relationship between the victim and the defendant); Commonwealth v. Butler, 445 Mass. 568, 575 (2005) (evidence of protective orders to show continuous hostile relationship and that parties had been sufficiently estranged). Second, the evidence admitted was also admissible because it allowed the prosecutor to "present a full picture of the incident" to the jury. See Commonwealth v. Leonardi, 413 Mass. 757, 764 (1992). Finally, the evidence of the prior abuse was also admissible because it presented the victim's state of mind, fear, which was relevant to the witness intimidation charge. See Commonwealth v. Johnson, 45 Mass. App. Ct. 473, 479 (1998).
We note that the judge gave the jury an appropriate limiting instruction regarding the properly admitted prior bad act evidence. The judge stated:
"You have heard mention of other acts allegedly done by the defendant. You may not take that as a substitute for proof that the defendant committed the crimes charged. Nor you may [sic] consider it as proof that the defendant has a problem with personality or bad character. But you may consider solely an issue of hostility between the parties. You may not consider this evidence for any other purpose. Specifically, you may not use it to include [sic] that if the defendant committed the other acts he must have committed the charges, these charges."The jury are presumed to follow the judge's instructions, see Commonwealth v. Maynard, 436 Mass. 558, 571 (2002), and where "[t]he judge's instructions were clear . . . we must presume the jury followed them." Commonwealth v. Helfant, 398 Mass. 214, 228 (1986).
Next, the defendant alleges that the prosecutor inflamed the jury and prejudiced the defendant by emphasizing that Perkins was four months pregnant at the time of the 2008 assault. However, evidence that a woman is pregnant is not intrinsically unfairly prejudicial and the likelihood of prejudice is minimized by a specific limiting instruction. See Commonwealth v. Dunn, 407 Mass. 798, 807 (1990). Here, the evidence was used to provide context to the reconciliation of the defendant and Perkins's relationship. Furthermore, the judge instructed the jury to consider the evidence without sympathy and prejudice and we presume the jury followed the judge's instructions. See Commonwealth v. Helfant, 398 Mass. 214, 228 (1986).
The defendant alleges that the prosecutor elicited damaging totem pole hearsay from Perkins regarding Payton's statements to a family friend. The statements included Perkins testifying that "my daughter, Payton, kept bringing it up," and "my daughter was talking about it." Perkins also testified:
"[The friend] then called my father and said, 'I do not know if you know, but this happened to [your] daughter.' And my father had spoken to me and said, 'I think you should report this,' and at that point I had thought that I should do so anyway because my daughter would not stop talking about it, and I need to set an example for my children."These statements were properly admitted for nonhearsay purposes, that is, not for the truth of the matter asserted, and used to explain Perkins's state of mind as to why she waited so long to report the incident. See Commonwealth v. Montanez, 439 Mass. 441, 447-448 (2003); Commonwealth v. Cheremond, 461 Mass. 397, 409-410 (2012). This evidence was also highly probative of Perkins's credibility, which the defendant put at issue.
Finally, the defendant contends that the judge deprived him of his right to present a defense by allowing the admission of subsequent bad act evidence if he called a percipient witness. Prior to trial, the Commonwealth orally moved to admit evidence of subsequent bad acts between the defendant and his then wife, Patrice Cotter (Cotter), if she were called to testify as to her observations regarding the Thanksgiving Day incident. The judge did not decide the motion but stated that "once she takes the stand, she is -- her credibility comes into play, and any question related to her credibility is fertile ground for examination. If there is some history between the two of them, and I don't know exactly what she is going to testify to[,] that may give the Commonwealth the opportunity to certainly make inquiry." The defendant did not object or comment on this ruling. The defendant ultimately decided not to call the witness. The defendant's decision to not call Cotter as a witness was not a violation of his constitutional right to present a defense. See Commonwealth v. Francis, 375 Mass. 211, 213-215, cert. denied, 439 U.S. 872 (1978). The defendant has not shown how he was prejudiced by his own decision not to call a witness after the judge stated that Cotter's credibility, like all witnesses, would be fertile ground for cross-examination.
II. Prosecutor's summation. The defendant argues that the prosecutor improperly vouched for the credibility of the alleged victim during her closing argument. In the instant case, credibility of the witnesses was a main issue. "When credibility is an issue before the jury, it is certainly proper for counsel to argue from the evidence why a witness should be believed." Commonwealth v. Freeman, 430 Mass. 111, 119 (1999) (quotations and citations omitted). "It is not improper vouching for the prosecutor to point to reasons why a witness's testimony, or portions of a witness's testimony, should logically be believed." Commonwealth v. Rolon, 438 Mass. 808, 816 (2003).
We discern no error in the closing remarks of the prosecutor that related to Perkins's credibility. The defendant put Perkins's credibility at issue. "[T]he prosecutor may make a fair response to an attack on the credibility of a government witness." Commonwealth v. Chavis, 415 Mass. 703, 713 (1993). The judge instructed, in both his preliminary and final instructions, that arguments of counsel were not evidence and that the jurors were the sole judges of the credibility of the witnesses. See Commonwealth v. Yesilciman, 406 Mass. 736, 746 (1990) ("In analyzing a claim of improper argument, the prosecutor's remarks must be viewed in light of the entire argument, as well as in light of the judge's instruction to the jury") (quotations and citations omitted).
The defendant also challenges the prosecutor's closing because it referenced Perkins's pregnancy as well as the defendant's prior involvements with law enforcement. For the same reasons stated in part I, above, there was no substantial risk of a miscarriage of justice.
The defendant also argues that the prosecutor's remarks regarding Perkins's tears while testifying was an improper appeal to the jury's sympathy. The comments made by the prosecutor about Perkins's demeanor while testifying were more akin to a logical reason that she should be believed than comments made to appeal to the jury's sympathy. See Freeman, 430 Mass. at 119. We also note that the closing, which was unobjected to, did not cause a substantial risk of a miscarriage of justice.
III. Ineffective assistance of counsel. The defendant argues that his trial counsel was ineffective for failing to object to prejudicial evidence, totem pole hearsay, and the prosecutor's closing arguments. To determine if there has been ineffective assistance of counsel we must "see whether there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We believe that trial counsel's performance did not fall below what is expected from an ordinary fallible lawyer.
The defendant also challenges trial counsel's failure to request a mistrial based on the errors of the prosecutor, judge, and defense counsel. However, "[i]t is not ineffective assistance of counsel when trial counsel declines to file a motion with a minimal chance of success." Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983). As explained above, these grounds ultimately would have been unsuccessful, and therefore did not give rise to ineffective assistance of counsel.
IV. Record properly before court. Finally, the defendant claims that the motion judge, on the motion for a new trial, abused his discretion by denying the motion for a new trial because there was an inaudible sidebar. The trial judge denied the defendant's motion to correct the record with respect to the inaudible sidebar. However, defense counsel's affidavit claims the trial judge sua sponte precluded him, over his objection, from inquiring of Carlos Amado (Amado), an investigator for the Department of Children and Families (DCF), about the out-of-court statements of Payton. Even so, Amado's proffered testimony, specifically that Payton had answered "no" when asked if anyone was crying or if she saw anybody hit anybody on Thanksgiving Day, would have been inadmissible even if we make "assumptions which are most favorable to the defendant" as to the inaudible portion of the sidebar discussion. See Commonwealth v. Barry, 19 Mass. App. Ct. 995, 995 (1985). These statements would have been inadmissible as hearsay. Contrast Commonwealth v. Cohen, 412 Mass. 375, 393 (1992). We conclude that the judge did not abuse his discretion by denying the defendant's motion for a new trial.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Cohen, Trainor & Katzmann, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: February 12, 2016.