Opinion
19-P-1091
08-25-2020
COMMONWEALTH v. VINCENT PHINIZY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
A Superior Court jury found the defendant guilty of assault and battery by means of a dangerous weapon causing serious bodily injury. The conviction was based on the stabbing of John Lucas while Lucas was on a date with Sylvie Goncalves, the defendant's former girlfriend and mother of his children. As we discuss in more detail later, at the time of the stabbing, Goncalves identified the defendant as the culprit to police officers. At trial, however, she testified that she did not remember talking to the police and did not know who stabbed Lucas. The police officers who spoke with Goncalves also testified at trial. One of them, Officer Jordan Ferreira, testified that Goncalves told him that the defendant "produced a knife" and chased Lucas around the block. The sole issue on appeal concerns the admissibility of this out-of-court identification. For the reasons that follow, we affirm.
The defendant also was charged with two counts of assault and battery by means of a dangerous weapon stemming from the same incident. However, those charges were dismissed prior to trial by agreement.
Background. The jury could have found the following facts. The defendant and Goncalves were in a relationship for about ten years and had two children together. The relationship ended at some point prior to August 1, 2014, when Goncalves and Lucas went on their second date. That night, the defendant attempted to contact Goncalves by telephone, but Goncalves did not respond. In addition, earlier that day, the defendant went to Goncalves's home looking for her. Upon learning from Goncalves's sister that Goncalves was not home, the defendant began to yell, prompting the sister to "close[] the door in his face." The sister testified that the defendant and Goncalves had been arguing that day.
Like Goncalves, the sister gave one version of events to the police and then testified to a different version at trial. Her prior inconsistent statements were admitted for impeachment purposes while her identification of the defendant at the scene of the stabbing (that the defendant was wearing a white T-shirt) was admitted substantively.
Eventually, after socializing and drinking with friends, Goncalves and Lucas returned to Goncalves's home in New Bedford between 3 and 4 A.M. As they were walking through the yard, a car pulled up and the defendant got out. The defendant approached Goncalves and Lucas and began to argue with Goncalves about her not being home and not answering her phone. Then, "out of the blue," the defendant stopped arguing with Goncalves and "sucker punched" Lucas. The defendant and Lucas fought. The defendant's brother, who had remained in the car, joined in the fight. When Lucas realized he had been stabbed, he said, "OK, you got me," and walked away. Meanwhile, Goncalves continued to argue with the defendant, who followed Lucas. Before long, Lucas returned. He was dazed and bleeding heavily from stab wounds in his stomach, chest, arm, and leg. Lucas could not identify the defendant and did not know who stabbed him. Goncalves called 911 and, ultimately, Lucas was transported to the hospital where he was treated for his wounds.
A number of police officers were dispatched to the scene. Goncalves told two of them, Officers Agnieszka Ciarka and Ferreira, that the defendant stabbed Lucas. Among other things, Goncalves told Officer Ciarka that her ex-boyfriend, the defendant, approached her and Lucas while the two were walking towards her house. The defendant called out to Goncalves and said, "What the fuck are you doing?" Goncalves told the defendant to leave, but he did not do so. Instead, he chased Lucas around the block and stabbed him. She told Officer Ferreira that after the defendant approached her and Lucas and yelled at them, the defendant produced a knife and chased Lucas around the block, and that while Lucas was being chased by the defendant, Lucas was stabbed. Goncalves's statements to Officers Ciarka and Ferreira were admitted for substantive purposes through the officers' testimony after Goncalves testified during her direct examination that she had been drinking and had no memory of speaking with the police. Goncalves further testified that the defendant was "happy" when he saw her and did not argue with her or Lucas. She said there was a festival in the area that night and that it "was just random" that the defendant "happened to be driving by" and saw her.
Not long after the stabbing, the defendant and his brother were found and apprehended. The defendant was arrested while the brother was permitted to leave and had no further involvement with the police. Subsequent investigation disclosed that the defendant had small amounts of Lucas's blood on his sneakers and jeans.
Discussion. The defendant asserts error in the admission of Goncalves's statement to Officer Ferreira that the defendant produced a knife and chased Lucas. The defendant objected to the testimony, arguing that because Goncalves had not testified about "seeing a knife or not seeing a knife or anything like that," the statement at issue was not admissible for impeachment purposes. The judge mistakenly believed that Goncalves had testified about seeing a knife and overruled the objection. The defendant's argument on appeal is slightly different. He now argues that Officer Ferreira's testimony was inadmissible because the prosecutor did not specifically ask Goncalves about seeing a knife during direct examination. According to the defendant, the admission of the testimony violated the procedural rule announced in Commonwealth v. Herndon, 475 Mass. 324, 334 (2016), that requires the Commonwealth to question a putative identification witness concerning an alleged prior identification before the Commonwealth seeks to introduce substantive evidence of that identification through a third party.
Before we address the defendant's argument, we must first determine the proper standard of review. The defendant claims that the argument is preserved and that therefore he is entitled to review for prejudicial error. The Commonwealth, on the other hand, asserts that the defendant's objection was based on a different ground than the one he raises on appeal and, therefore, our review is limited to determining whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). Although we agree with the Commonwealth, in this case it matters not which of the two standards of review applies because we conclude there was no error.
Although the defendant refers to "harmless error" in his brief, he cites Commonwealth v. Flebotte, 417 Mass. 348, 352 (1994), and we understand him to be referring to prejudicial error.
This case is unlike the situation presented in Herndon where the identification witness had not been asked about his alleged prior identification before two other witnesses testified on that topic. Here, as the Commonwealth notes in its brief, Goncalves was asked a series of questions about her prior identification of the defendant as the person who stabbed Lucas. It is true the prosecutor did not ask Goncalves precisely the question, "Did you tell Officer Ferreira that the defendant produced a knife and chased Lucas?" Regardless, the questions that she did pose were similar in nature and were directed to ascertaining whether Goncalves had identified the defendant as the perpetrator. For example, at one point the prosecutor asked the following lengthy question: "You don't recall telling the police that Mr. Phinizy began to chase Mr. Lucas, and you had to run after them? That they ran easterly on Hazard Street to Hazard Court and then up and around the whole block, and that Mr. Phinizy's brother was trying to chase after Mr. Phinizy to stop Mr. Phinizy; and that when they got back around to Hazard Street, Mr. Phinizy got into a blue Hyundai with his brother and took off . . . and that it was Mr. Phinizy who stabbed Lucas? Do you recall telling the police that?" These questions were sufficient to alert the defendant of the issue and gave him the opportunity to cross-examine Goncalves about her out-of-court identification in a timely manner. Accordingly, we discern no error.
In any event, even if we were to assume that we should review for prejudicial error and that the prosecutor should have asked Goncalves -- specifically -- whether she saw the defendant produce a knife and chase Lucas before eliciting that same testimony from Officer Ferreira, the defendant suffered no prejudice. First, Goncalves's identification of the defendant as the perpetrator was properly introduced as substantive evidence through Officer Ciarka. In addition, there was considerable circumstantial evidence from which the jury could have reasonably concluded that the defendant was guilty. The Commonwealth's theory of the case was that the defendant was angered that his ex-girlfriend and the mother of his children was out with another man and that he attacked Lucas because he was jealous. The evidence fully supported that theory. The defendant had been looking for Goncalves earlier in the day and called her on the telephone during the evening. Despite Goncalves's testimony that there were people on the street attending a festival and that the defendant just happened to pass by, the jury could reasonably have concluded that the defendant was waiting for Goncalves to return home and that he confronted her. When Goncalves told the defendant to leave, he punched Lucas and then stabbed him during the fight that ensued. Given these facts, even if we were to assume error, we are persuaded that the admission of the challenged testimony "did not influence the jury, or had but very slight effect." Commonwealth v. Alphas, 430 Mass. 8, 13 n.7 (1999), quoting Flebotte, 417 Mass. at 353.
Judgment affirmed.
By the Court (Vuono, Meade & Wolohojian, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 25, 2020.