Opinion
15-P-68
01-19-2016
COMMONWEALTH v. LAURIE ANN REDMAN.
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
On appeal from her conviction of assault and battery, the defendant claims error in the admission in evidence of a statement she made to police at the time of her arrest, and in the prosecutor's closing argument. We affirm.
1. Admission of defendant's statement to police. Over objection by defense counsel, Officer Mulkerin was allowed to testify at trial that, at the time Officer Gould attempted to handcuff the defendant while placing her under arrest, the defendant stated that she could not be arrested inside of her home. The defendant contends that the statement constituted improper evidence of prior bad acts. In response, the Commonwealth contends that the statement illustrated consciousness of guilt, as it displayed awareness by the defendant that the reason for police presence at the scene was in response to an assault and battery against the victim. We need not reconcile the disagreement, since we can say that any error in the admission of the statement "did not influence the jury, or had but very slight effect." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). The statement arose in the context of other testimony by Officer Mulkerin (to which the defendant did not object) describing the defendant's angry and agitated demeanor at the time of her arrest. Contrary to the contention by the defendant, the testimony did not suggest that the defendant had committed another uncharged offense or that she had a propensity to commit assault and battery, nor did the prosecutor make reference to it in his closing argument.
During his closing, the prosecutor briefly referred to the defendant's demeanor at the time of her arrest, to suggest that an assault and battery had occurred. However, his argument on that point relied on other testimony by Officer Mulkerin describing her demeanor, to which the defendant did not object at trial. The prosecutor made no mention of the defendant's statement.
2. Prosecutor's closing argument. Despite a ruling on the defendant's motion in limine that the prosecutor should refrain from use of the word "victim" to refer to the victim, the prosecutor used that term multiple times during his closing argument. The defendant objected and moved for a mistrial. We discern no abuse of discretion by the trial judge in her assessment that the references, though inappropriate following the judge's ruling on the motion in limine, caused no undue prejudice to the defendant. Cf. Commonwealth v. Krepon, 32 Mass. App. Ct. 945, 947 (1992) (no prejudice by judge's use of "victim" rather than "alleged victim" in his instructions to the jury). The judge repeatedly instructed the jury that closing arguments are not evidence, and that the complaint is only an accusation and not evidence of guilt.
In her objection, the defendant asserted that the prosecutor used the term thirteen times, while on appeal she asserts that the prosecutor used it seventeen times. The precise number is immaterial.
Contrary to the defendant's separate contention, the prosecutor did not impermissibly argue that the defendant's dismayed reaction to her arrest was evidence of her propensity to commit assault and battery. Instead, the prosecutor suggested that the defendant's demeanor at the time of her arrest (the evidence of which came in without objection) was a result of the fact that an assault and battery had occurred.
We likewise do not view the prosecutor's description of the victim's testimony as "candid" to constitute impermissible vouching. In context, the jury would have understood the prosecutor to have been arguing, from the evidence, that the victim was credible, and not that he held independent or superior knowledge of the victim's credibility.
Judgment affirmed.
By the Court (Green, Vuono & Meade, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 19, 2016.