Opinion
11-P-374
04-13-2012
COMMONWEALTH v. JORGE A. PORTILLO.
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, Jorge A. Portillo, was convicted of one count of assault and battery on the mother of his son in violation of G. L. c. 265, § 13A. On appeal the defendant argues that the judge abused his discretion when he permitted the mother, M.D., to testify that she had sought a restraining order some twelve days after the events leading to the conviction. We affirm.
The evidence at trial, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), was that in the early morning hours of January 1, 2009, the defendant grabbed M.D. by the hair and shook her repeatedly, while at the same time holding their infant son by the waistband over the steps of the third floor apartment. M.D. did not report the incident initially, stating that she was afraid to do so. Over the next several nights she woke up in the middle of the night to find the defendant, who did not reside with her, standing at the foot of the bed in which she and the baby slept. On January 12, 2009, she went to the District Court and sought a restraining order. The case was tried as a credibility case in which M.D. was the sole witness. The theory of the defense, as articulated in the first words of the opening statement, was 'Actions speak louder than words.' The defense also stated in its opening that there had been 'no calls, no responding police officers, no calls to police' at the time the events occurred.
Anticipating this defense, the Commonwealth brought a motion in limine at the onset of trial to allow testimony that M.D. sought the restraining order. The judge did not abuse his discretion when he allowed M.D. to testify to the fact that she came to the court for a restraining order and 'told her story' to two police officers. It was permissible for the Commonwealth to anticipate the defendant's well-telegraphed effort to impeach M.D.'s credibility by pointing to the fact that she did in fact make a report. See Commonwealth v. Errington, 390 Mass. 875, 880-881 (1984) (Commonwealth may rehabilitate a witness by explaining why a report was made after a period of silence); Commonwealth v. Kebreau, 454 Mass. 287, 299 (2009) (Commonwealth may question witness concerning application for restraining order to counter cross-examination regarding same). Rehabilitation on direct examination is permissible where the defendant has raised the credibility of the witness during his opening statement. Commonwealth v. Hall, 66 Mass. App. Ct. 390, 394-395 (2006) ('That the impeachment first occurs during cross-examination, as in Errington , or was introduced during the opening statement, as happened here, is a distinction without a difference').
The judge excluded any testimony concerning what was said to the officers when the restraining order was sought, the order itself, and the action of the court on the order. The defendant's argument that the jury 'likely inferred' that the order had been granted is speculation.
The defendant also argues that M.D.'s statement that she 'told her story' to the police involved self-corroboration by the witness and the improper admission of a prior consistent statement. See Mass. G. Evid. § 613(b)(2011). See also Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008). The defendant opened the door in his opening statement, and the Commonwealth was then permitted to introduce evidence that may have otherwise been inadmissible. See Commonwealth v. McCowen, 458 Mass. 461, 479 & n.15 (2010) (allowing evidence of five prior restraining orders to explain trooper's state of mind in arresting defendant).
Nor was the admission of the evidence, or references to the evidence in the prosecutor's opening and closing arguments, unduly prejudicial. See ibid. The Commonwealth was permitted to point to the application for restraining order and M.D.'s explanation for the delay in reporting the incident to counter the defendant's suggestion that the failure to report for twelve days created a reasonable doubt as to whether M.D. was telling the truth. See Commonwealth v. Chavis, 415 Mass. 703, 714 (1993); Commonwealth v. Sanders, 451 Mass. 290, 297 (2008) (prosecutor may within the bounds of the evidence make arguments as to why prosecution witness should be believed). The judge limited the testimony to the bare fact that the restraining order was sought and a report of the incident was made. M.D. did not recount what was said nor did any other witness. Neither the admission of the evidence nor the argument were improper or prejudicial.
Judgment affirmed.
By the Court (Sikora, Carhart & Sullivan, JJ.),