Opinion
10-P-1928
04-06-2012
COMMONWEALTH v. MARLANE E. NUSSBAUM.
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
The defendant appeals from her conviction of assault and battery by a jury of six in the District Court. She alleges improper prosecutorial conduct and asserts error in the judge's failure to sever her case from that of her codefendant. We affirm.
The jury returned a verdict of not guilty for the codefendant on a charge of malicious destruction of property under $250.
Background. The jury could have found the following facts. This case arose out of an altercation at a house party in Stow. The defendant, her friend, and the codefendant arrived at the party without an invitation from the host. The defendant and her friend were not on amicable terms with the victim, who was also a guest at the party. When told they were not welcome, the defendant and her friend went outside but remained on the lawn. After the victim called the defendant's mother to inform her that the defendant was at a party uninvited, the victim's sister grabbed the phone and went outside. The victim later also went outside. A fight ensued and the defendant kicked the victim. At trial, a defense witness claimed that several of the victim's friends at the party were armed with knives and that someone yelled that a gun was present. The parties agree that at this point in the testimony the codefendant laughed audibly, although the trial transcript does not indicate any laughter.
During the Commonwealth's closing, the prosecutor referred to this laugh to highlight the defense witnesses' lack of credibility. In addition, during the summation, the prosecutor contrasted the crime rate of Stow with that of inner city Boston and stated that if the defendant's story were to be believed, then the Stow police should be fired for not conducting a proper investigation. The defendant did not object to the closing. We reserve the recitation of further facts for our discussion.
Discussion. We review unpreserved claims of error under the 'substantial risk of a miscarriage of justice' standard. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). 'The failure of defense counsel to object to statements made by a prosecutor during the closing is a matter to which we attach significance. It is not only 'a sign that what was said sounded less exciting at trial than appellate counsel now would have it seem,' Commonwealth v. Deveau, 34 Mass. App. Ct. 9, 14 (1993), but it is also 'some indication that the tone [and] manner . . . of the now challenged aspect of the prosecutor's argument were not unfairly prejudicial." Commonwealth v. Leach, 73 Mass. App. Ct. 758, 768 (2009), quoting from Commonwealth v. Toro, 395 Mass. 354, 360 (1985).
The defendant claims that the prosecutor's reference to Stow being unlike 'Blue Hill Avenue' or 'Dorchester' with respect to crime was meant to stir up racial prejudices in the jury. Despite the defendant's assertion, the transcript does not reveal that in the context of this case there was any racial component or connotation to this remark. Further, this part of the closing was based on the evidence, as one of the witnesses, who had testified that there were knives and talk of a gun at the party, testified in response to the prosecutor's scrutiny of this claim on cross-examination that Stow was not comparable to inner city Boston. See Commonwealth v. Semedo, 456 Mass. 1, 12 (2010) (prosecutor must limit closing to evidence and fair inferences drawn therefrom).
The prosecutor also contrasted Stow with 'the Wild West.'
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We need not decide whether the prosecutor's remark about the codefendant's laughter was error. Irrespective of the propriety of this observation, it did not rise to the level of a substantial risk of a miscarriage of justice. The victim and an eyewitness testified that the defendant kicked the victim, a picture of the victim after the fight was entered in evidence, and there was ample testimony of ill will between the defendant and the victim. The prosecutor's reference to the codefendant's laughter was brief and was not 'sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error.' Commonwealth v. Alphas, 430 Mass. at 13, quoting from Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986).
The defendant's remaining qualms with the Commonwealth's closing argument are that the prosecutor improperly vouched for the police investigation and expressed personal opinion. These claims are without merit for the reasons set forth in the Commonwealth's brief.
Finally, the defendant asserts error in the judge's failure to sever her trial from that of the codefendant in accordance with Bruton v. United States, 391 U. S. 123 (1968) (Bruton), because of the codefendant's laughter. 'According to Bruton, severance is constitutionally required where: a codefendant's extrajudicial statements are offered in evidence at a joint trial; the statements are 'clearly inadmissible' as against the defendant; the codefendant is not subject to cross-examination because he does not testify; and, finally, there is a substantial possibility that, in determining the defendant's guilt, the jury relied on the codefendant's 'powerfully incriminating extrajudicial statements' notwithstanding any limiting instructions from the judge.' Commonwealth v. Pontes, 402 Mass. 311, 314 (1988), quoting from Bruton, 391 U.S. 128 & n.3, 135-136. The defendant's reliance on Bruton is unavailing. Nothing from the record indicates the laughter mentioned in the closing was a 'statement,' that it was 'clearly inadmissible,' or that it was 'powerfully incriminating.' Because 'the decision whether to join offenses for trial is a matter left to the sound discretion of the judge,' we do not disturb the result below. Commonwealth v. Pillai, 445 Mass. 175, 179 (2005).
Judgment affirmed.
By the Court (Graham, Grainger & Hanlon, JJ.),