Opinion
14-P-1816
04-14-2016
COMMONWEALTH v. DAVID RAMOS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant was convicted by a jury in the District Court of three counts of domestic assault and battery, G. L. c. 265, § 13A. He brings a consolidated appeal from his convictions and the denial of his motion for a new trial. We affirm.
At the conclusion of the Commonwealth's case, the judge allowed the defendant's motion for a required finding of not guilty to a charge of malicious destruction of property.
The charges stem from a police response to a neighbor's report of a domestic altercation between the defendant and Brianna Palumbo, his live-in girl friend. The police observed Palumbo with three injuries to her head, one of which was bleeding; she stated at the time that these were the result of three blows struck by the defendant.
Palumbo recanted her accusations before trial, and asserted a privilege under the Fifth Amendment to the United States Constitution. After conducting a hearing pursuant to Commonwealth v. Martin, 423 Mass. 496 (1996), the motion judge assessed Palumbo's credibility, concluded that she had no valid Fifth Amendment privilege, and ordered her to testify at trial. The evidence at trial thus included both the police testimony about Palumbo's statement at the scene and her own testimony recanting that statement.
Ineffective assistance of counsel. The defendant asserts that his trial counsel was ineffective in three respects. The first assertion concerns the argument that the police testimony relating Palumbo's statement was inadmissible hearsay. Although counsel made a timely objection to the testimony, the defendant faults her for failing to elicit statements on cross-examination that would discredit the Commonwealth's argument that Palumbo's accusation of the defendant was an excited utterance. The defendant claims that evidence about Palumbo's demeanor and incentive to lie to the police would have resulted in the exclusion of her accusation. In support of this claim, the defendant submitted an affidavit of trial counsel to support his motion for a new trial in which counsel denies that her failure to argue that Palumbo's statements were testimonial was based on strategic considerations.
The defendant also argues that because such statements were testimonial, and because the judge declined to rule on their admissibility prior to trial, his trial counsel was ineffective in failing to object when the prosecutor referred to them during his opening statement.
We need not address these contentions, as the judge was entitled to conclude from the strength and detail of the Commonwealth's evidence that Palumbo's utterances were excited and spontaneous, hence admissible. The defendant was not deprived of "an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The police witness testified to the following: that Palumbo was "standing right behind [the defendant]." "She was crying," "shaking," and "looked very upset." "[H]er head was bleeding." The responding officers separated the parties. Officer O'Leary took the victim into the hallway, while Officer Anderson entered the apartment to speak with the defendant. The victim was still "crying," "upset," and said she "was afraid." The officers' first concern was for safety. The victim was bleeding from a laceration on her head; blood was coming down her face and onto her shirt. She also had a "big bump" on the left side of her head, and another on the back of her head.
The defendant also claims his counsel was ineffective for failure to move to dismiss two of the three assault and battery charges as duplicative. The evidence, notably three separate injuries, allowed the jury to conclude that three separate blows were delivered by the defendant. A victim who has received three blows, however close in time, has not been assaulted and battered the same number of times as one who was struck once. This claim of ineffective assistance is also without merit.
Charge to the jury. The defendant claims error in the judge's instruction to the jury that they might consider the testimony about Palumbo's statement to the police accusing the defendant of having attacked her for the truth of the matter. We discern no error in the instruction for the same reason that the judge did not err in admitting the officer's testimony about Palumbo's statement. The defendant now argues that the jury were also instructed to the contrary, namely that the victim's characterization of her previous statement during her recantation at trial could only be considered to assess her credibility. We perceive negligible differences between the versions presented by the police and the victim herself. Accordingly, even were we to find error in the disparate level of consideration the jury were told to apply, we discern no prejudice.
There was no objection to the charge.
Motion for a new trial. Motions for a new trial are "addressed to the sound discretion of the judge." Commonwealth v. Moore, 408 Mass. 117, 125 (1990). Here, the trial judge was also the motion judge. See Commonwealth v. Candelario, 446 Mass. 847, 859 (2006). The underlying specific claims advanced by the defendant in support of his motion are unavailing for the reasons set forth, supra. More generally, the judge found from his own observation that "[t]he defendant received zealous and effective assistance of counsel." There was also no abuse of discretion in the trial judge's determination that an evidentiary hearing was not warranted. See Fogarty v. Commonwealth, 406 Mass. 103, 107, 110-111 (1989).
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Grainger, Sullivan & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 14, 2016.