Opinion
15-P-1608
02-01-2017
COMMONWEALTH v. John NELSON, Jr.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, John Nelson, Jr., appeals from three convictions of violating an abuse prevention order, under G. L. c. 209A, § 7. First, the defendant argues that the motion judge abused his discretion by joining the three criminal complaints against him. Second, the defendant contends that he should be granted a new trial because the prosecutor mischaracterized facts in her closing argument. We affirm.
One of the criminal complaints originally contained two charges of violating an abuse prevention order, but one of the charges was subsequently dismissed at the Commonwealth's request.
Background . On January 13, 2014, the victim, the defendant's then wife, sought and obtained an abuse prevention order, under G. L. c. 209A, from the Lynn District Court. The abuse prevention order mandated that the defendant not abuse the victim. On February 6, 2014, the abuse prevention order was modified to include a no-contact provision, ordering the defendant to remain one hundred yards away from the victim, her residence, and her workplace.
The first alleged incident on which the defendant was charged occurred on March 3, 2014. Around 7:00 A.M. , the defendant called the victim's son, Manuel Custodio. When the victim answered her son's cellular telephone, she recognized the defendant's voice. The defendant asked to speak with Manuel, and the victim disconnected the call. The victim filed a complaint with the police later that day.
The second alleged incident occurred on May 18, 2014. The victim's son, Eraldo Custodio, was riding in a car traveling on Marianna Street toward the victim's apartment on Griffin Terrace. Eraldo observed what he thought to be the defendant driving in a Honda Civic towards him in the opposite direction on Marianna Street. Eraldo testified that when the defendant saw his car stop, he turned onto Lambert Street. Eraldo later returned to the victim's apartment and walked to the corner of Griffin Terrace and Marianna Street in an effort to see if the Honda Civic would drive by again. About ten minutes after first seeing the Honda Civic, Eraldo saw the same car drive by Marianna Street and again turn onto Lambert Street. The victim and Eraldo both called the police. The victim provided a copy of the abuse prevention order to the responding police officer. The officer verified that the order was valid and had been served on the defendant.
The trial transcripts and the defendant's brief incorrectly spell the name of one of the victim's sons that we reference here. We use the correct spelling as reflected in the Commonwealth's brief, as well as the supporting affidavit of the abuse prevention order and the police report. See Commonwealth v. Pratt , 42 Mass. App. Ct. 695, 696 n.2 (1997).
Eraldo testified that he believed the defendant was the driver based on the shape of the driver's head that he had seen through the windshield.
Lambert Street is located off Marianna Street and runs in the opposite direction from Griffin Terrace.
The victim's apartment was approximately fifty yards from the corner of Griffin Terrace and Marianna Street.
The victim testified that she was observing from her stoop and saw the car drive by on Marianna Street passing Griffin Terrace. She stated that she saw the defendant behind the wheel of her 2012 light blue Honda Civic.
The third alleged incident occurred on June 1, 2014, when the defendant and the victim exchanged cars as ordered pursuant to their divorce proceedings. After the exchange, the defendant attempted to sell his car at a dealership. However, he was informed by a salesperson that he had the wrong registration for the vehicle. The defendant notified the police and requested that they contact the victim regarding the error. When the defendant later drove to the police station to exchange the vehicle registration, the victim also was arriving at the station. As she approached the entrance, the victim noticed the defendant quickly walking towards her. The defendant came very close to the victim and told her that "he needed to talk to [her] and that he loved [her]." The victim gave the police her registration and waited in the police station until the defendant left. She filed an incident report the next day.
The victim's attorney made the car exchange with the defendant at the police station on the victim's behalf.
The three criminal complaints were joined by the judge upon the Commonwealth's motion.
In its motion, the Commonwealth also sought to join an additional complaint that charged the defendant with assault and battery, but that was denied.
Discussion . 1. Joinder . The defendant argues that the judge's joinder of the criminal complaints was an abuse of discretion. "[T]he decision whether to join offenses for trial is a matter left to the sound discretion of the judge and will not be reversed unless there has been ‘a clear abuse of discretion.’ " Commonwealth v. Pillai , 445 Mass. 175, 179-180 (2005), quoting from Commonwealth vs. Walker , 442 Mass. 185, 199 (2004).
A judge "shall join the charges for trial" when the offenses are related, "unless he determines that joinder is not in the best interests of justice." Mass.R.Crim.P. 9(a)(3), 378 Mass. 859 (1979). "[O]ffenses are related ... if they are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan." Mass.R.Crim.P. 9(a)(1). A judge may consider factors such as "factual similarities, and closeness of time and space" when determining whether offenses are related. Pillai , supra at 180 (citation omitted). The defendant "bears the burden of demonstrating that the offenses were unrelated, and that prejudice from joinder was so compelling that it prevented him from obtaining a fair trial." Ibid ., quoting from Commonwealth v. Gaynor , 443 Mass. 245, 260 (2005).
Here, the evidence in the record demonstrated that all three complaints against the defendant encompassed the same victim and the same abuse prevention order. See Commonwealth v. Delaney , 425 Mass. 587, 594 (1997). Moreover, the alleged violations were certainly close in time and space as they took place within three months of each other. See ibid . ("Time and space play an important role in determining whether offenses are related for the purposes of joinder").
Further, the defendant has not demonstrated that he endured prejudice from the joinder. See Commonwealth v. Sullivan , 436 Mass. 799, 805 (2002). The evidence of all three offenses would be admissible even if the complaints against the defendant were tried separately. See Delaney , supra at 595 ("[I]f the charges were tried separately, much testimony would be duplicated at each trial merely establishing the relationship between the victim and the defendant"); Pillai , supra at 180-181. The record also shows that the defendant participated in this series of criminal episodes despite his knowledge of the directives in the abuse prevention order. See Delaney , supra at 596 (violations under G. L. c. 209A, § 7, "require[ ] no more knowledge than that the defendant knew of the order"). Therefore, the motion judge did not abuse his discretion in joining these complaints.
2. Prosecutor's closing argument . The defendant argues that the prosecutor's mischaracterization of evidence requires that he be granted a new trial. Considering the fact that the defendant did not object to the prosecutor's statements at trial, we review under the substantial risk of a miscarriage of justice standard. See Commonwealth v. Ferreira , 460 Mass. 781, 788 (2011).
In reviewing a defendant's claim of error in a prosecutor's closing argument, a reviewing court considers: "(1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusion." Commonwealth v. Kater , 432 Mass. 404, 422-423 (2000).
The prosecutor argued throughout her closing statement that the defendant violated the abuse prevention order because he was still in love with the victim and wanted to reunite with her. These statements were based on reasonable inferences from the victim's testimony that the defendant had approached the victim outside of the police station and told her that "he needed to talk to [her] and that he loved [her]." See Commonwealth v. Kater , 432 Mass. 404, 422 (2000), quoting from Commonwealth v. Kozec , 399 Mass. 514, 516 (1987) ("A prosecutor may argue ‘forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence’ "). Further, the reasons and motive behind the defendant's several violations of the order, as proposed by the Commonwealth, did not create a substantial risk of a miscarriage of justice because a violation of an abuse prevention order is a general intent crime. See Delaney , supra at 596.
The defendant also argues that the prosecutor improperly stated that there were at most "four people driving down" the victim's street at the time Eraldo saw the defendant. However, the record consisted of testimony that Griffin Terrace is a "very small" "dead end street," with "only three houses." The prosecutor's inference that a small number of cars were driving on Griffin Terrace was, therefore, reasonable.
The defendant also alleges that the prosecutor misstated that the defendant had driven on Griffin Terrace. However, in reviewing the record, the prosecutor made no such statement.
Even if this statement were a minor mischaracterization, it would not have affected the jury as the judge instructed the jury that they were the sole arbiters of the facts. See Commonwealth v. Bregoli , 431 Mass. 265, 277 n.22 (2000).
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Moreover, any alleged prejudice caused by the prosecutor's statements was mitigated by the judge's jury instructions. The judge instructed the jury that "closing arguments are not evidence," and that the jurors should "decide this case based solely on the evidence that [they] received in the course of the trial." See Commonwealth v. Weeks , 77 Mass. App. Ct. 1, 14 (2010).
Judgments affirmed .