Opinion
19-P-1073
12-21-2020
COMMONWEALTH v. LUIS ENRIQUE POLANCO-ARIAS.
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 convicted the defendant of strangulation, assault and battery causing serious bodily injury, and three counts of assault and battery on a household or family member. The convictions were based on evidence that the defendant strangled and severely beat his girlfriend after learning that she had been fondled by another woman. On appeal, the defendant claims that (1) the prosecutor's opening statement was impermissibly argumentative and inflammatory, (2) the prosecutor's closing argument improperly appealed to the jurors' sympathies, vouched for the credibility of the victim, and shifted the burden of proof to the defendant, and (3) the judge erred in instructing the jury regarding separate and distinct acts. We affirm.
1. Opening statement. "The purpose of an opening statement is to 'outline in a general way the nature of the case which the counsel expects to be able to prove or support by evidence.'" Commonwealth v. Brown, 477 Mass. 805, 818 (2017), quoting Commonwealth v. Fazio, 375 Mass. 451, 454 (1978). The defendant argues that the prosecutor exceeded the bounds of a proper opening statement by using a narrative style that "was calculated to be deliberately provocative and to inflame the passions and appeal to the sympathies of the jurors." The Commonwealth contends that everything said in the prosecutor's opening was borne out by the evidence at trial, and, to the extent that the prosecutor's description of the evidence was inflammatory, "that was inherent in the odious . . . nature of the crime[s] committed." Commonwealth v. Barbosa, 477 Mass. 658, 670 (2017), quoting Commonwealth v. Johnson, 429 Mass. 745, 749 (1999). We are confident that, even if the prosecutor's opening was unduly argumentative, it did not materially influence the guilty verdicts. See Commonwealth v. Alphas, 430 Mass. 8, 13, 14 (1999) ("[W]e consider the strength of the Commonwealth's case"; "[h]ere the case against the defendant was virtually irrefutable").
It is not necessary to repeat each statement to which the defendant assigns error. By way of example, the defendant highlights the following language by the prosecutor: "he wanted to teach her a lesson, and he violently and viciously beat her and attacked her, severely injuring various parts of her body, strangling her, and the evidence will show that he wanted to punish her, and punish her he did."
Because the defendant did not object to the prosecutor's opening statement, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016). "The substantial risk standard requires us to determine 'if we have a serious doubt whether the result of the trial might have been different had the error not been made.'" Id., quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass. 72 (2005). "[W]e review the evidence and the case as a whole" in making this determination, and "consider the strength of the Commonwealth's case, the nature of the error, the significance of the error in the context of the trial, and the possibility that the absence of an objection was the result of a reasonable tactical decision." Dirgo, supra, quoting Azar, supra.
The defendant did not dispute that the victim was severely beaten. Rather, his defense was to attack the victim's credibility and argue that she misidentified the defendant as her attacker. The evidence that the defendant was the assailant, however, was virtually unassailable. The victim testified that the defendant, her boyfriend of seven months, beat her because another woman approached her at a party and fondled her breasts. There was photographic evidence showing that the defendant and the victim went out together on the evening in question. After the initial beating, upon returning home, the defendant dragged the victim into the apartment where they lived together and used his hands to strangle her. The victim's mother, who lived in the apartment with the victim and the defendant, testified that she was present when the victim and the defendant returned to the apartment. She heard them arguing; the victim appeared to have been badly beaten; and the defendant told her "grandma, let me explain."
We have reviewed the medical records and photographs of the victim's injuries admitted at trial. They reveal bruising and abrasions on the victim's face, eyes, legs, hands, and buttocks, which are consistent with her description of the assault. The victim's left eye was swollen shut and she suffered a concussion.
A police officer who responded to the victim's 911 call testified that he was in the apartment speaking with the victim's mother when she received a telephone call from a male she identified as the defendant. The victim's mother put the defendant on speakerphone, and the officer heard him say "that [the victim] deserved it." The defendant then told the victim's mother to "put eyes on her. I have to kill her, that's what I have to do, for being a lesbian." When the police found the defendant at the home of an ex-girlfriend shortly thereafter, he was hiding under a bed. Thus, the evidence that it was the defendant who beat and strangled the victim was overwhelming. See Alphas, 380 Mass. at 13-14.
Moreover, the judge instructed the jury that opening statements were not evidence, and we presume the jury followed those instructions. See Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 237 (2013). In short, nothing the prosecutor said causes us to believe that the result would have been different if the challenged statements had not been made. See Commonwealth v. McGann, 484 Mass. 312, 322 (2020).
In this context we need not decide if the prosecutor exceeded the bounds of a proper opening statement. It bears repeating, however, that "prosecutors in particular, because they deal with subject matter that tends to be emotional, [should] proceed with caution that their opening statements do not slip into emotionally provocative argument." Commonwealth v. Degro, 432 Mass. 319, 322 n.4 (2000).
2. Closing argument. The defendant claims that the prosecutor erred on multiple occasions in her closing argument by using inflammatory language, vouching for the victim's credibility, and using rhetorical questions that shifted the burden of proof. Again, we need not separately analyze each of these unpreserved claims. We have carefully reviewed each statement in the context in which it was made and conclude that, while the prosecutor may have engaged in some hyperbole in summation, her statements were supported by the evidence and responsive to the defendant's argument challenging the victim's credibility. See Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 10 (2019). Even were we to conclude otherwise, there was no substantial risk of a miscarriage of justice for the reasons outlined above.
3. Jury instruction. The defendant claims that the judge failed to adequately instruct the jury regarding separate and distinct acts, creating a risk that the jury based two convictions on the same blow to the victim's face. Specifically, the defendant argues that because count two, assault and battery causing serious bodily injury, G. L. c. 265, § 13A (b) (i), and count three, assault and battery on a household or family member, G. L. c. 265, § 13M, both alleged blows to the victim's face, the judge erred by not adequately instructing the jury that those charges must be based on separate and distinct acts, and that the jury must be unanimous as to the act supporting each charge. Because the defendant raises this issue for the first time on appeal, we review to determine if any error created a substantial risk of a miscarriage of justice. See Alphas, 430 Mass. at 13.
The judge carefully outlined the conduct upon which the indictments were based and instructed the jury to consider each charge separately. Twice she stated that "[y]our verdict must be unanimous as to each charged offense." We see little risk of juror confusion where (1) the evidence showed multiple blows to the victim's face, (2) the jury were specifically instructed that count two alleged an assault and battery "causing serious bodily injury to the eyes", and count three alleged an assault and battery involving a "strike in the face," and (3) the verdict slips submitted to the jury described the contact charged in each attached indictment. Finally, because assault and battery on a household or family member and assault and battery causing serious bodily injury are separate crimes requiring different elements of proof, the same blow to the victim's face could be the basis for both convictions. See Commonwealth v. Porro, 458 Mass. 526, 531-532 (2010); Commonwealth v. Pileeki, 62 Mass. App. Ct. 505, 518 (2004) (Brown, J., concurring in result). There was no error in the jury instructions, much less an error that created a substantial risk of a miscarriage of justice.
Judgments affirmed.
By the Court (Wolohojian, Blake & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 21, 2020.