Opinion
10-P-61
02-11-2015
COMMONWEALTH v. BOBBY ROBINSON.
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 his conviction of murder in the second degree, the defendant, Bobby Robinson, contends that (1) admission of the substitute medical examiner's testimony violated his confrontation rights under the Sixth Amendment to the United States Constitution, (2) the expert testimony was improper because it touched on ultimate issues in the case, (3) the judge erred in excluding certain third-party culprit prior bad act evidence, and (4) the errors in the prosecutor's closing argument require reversal. We affirm.
1. Substitute medical examiner's testimony. The defendant contends that the admission of Dr. Evans's testimony, to the extent that it involved testifying to facts contained in Dr. Phillips's and Dr. Dryja's reports, violated his Sixth Amendment right to confrontation. Specifically, the defendant asserts that Dr. Evans should not have testified to the bruising Dr. Phillips found under the victim's chin and jawline, or the victim's retinal hemorrhaging and retinal fold that Dr. Dryja described in his report. We agree, but conclude that Dr. Evans's testimony, while improper, does not warrant reversal.
At trial, the emergency room physician who treated the victim testified that the victim had bruising under her chin and on her neck, and retinal hemorrhaging. Similarly, the Commonwealth's expert, Dr. Newton, testified that based on the victim's medical records, the victim had retinal hemorrhaging and a retinal fold. Accordingly, Dr. Evans's improper testimony was cumulative of properly admitted evidence, and thus did not give rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Avila, 454 Mass. 744, 763 (2009).
Even were we to assume that Dr. Evans's testimony about the victim's bruising was not cumulative of properly admitted evidence, its admission did not give rise to a substantial risk of a miscarriage of justice; the defendant used the evidence to undermine the Commonwealth's theory regarding the victim's exact injuries. See Commonwealth v. Nardi, 452 Mass. 379, 395-396 (2008) (admission of improper testimony did not warrant reversal where defendant used testimony to further his trial strategy).
We reject the defendant's claim that defense counsel's objection during Dr. Evans's discussion of Dr. Dryja's report was sufficient to preserve his confrontation clause claim. To the contrary, the objection was clearly concerned with Dr. Evans's expertise and qualifications to testify regarding the victim's eye injuries.
2. Expert testimony. Similarly, we reject the defendant's contention that Dr. Newton's testimony as to the amount of force required to inflict the victim's injuries gave rise to a substantial risk of a miscarriage of justice. "[A]n expert may testify on matters within his or her field of expertise whenever it will aid the jury in reaching a decision, even if the expert's opinion touches on the ultimate issues that the jury must decide." Commonwealth v. Lugo, 63 Mass. App. Ct. 204, 208 (2005). Indeed, "[a]n expert's opinion that touches on the ultimate issues before the jury is generally admissible as long as the expert does not offer an opinion as to the defendant's guilt or innocence." Ibid.
We reject the defendant's claim that the objection to Dr. Newton's testimony was preserved. Although defense counsel objected to Dr. Newton's testimony, the objection concerned Dr Newton's qualifications as an expert on shaken baby syndrome, not the substance of her testimony.
Here, we discern no error in the admission of Dr. Newton's testimony. Although her testimony touched on an ultimate issue in the case -- whether the injuries were inflicted intentionally or accidentally -- Dr. Newton did not offer an opinion as to the defendant's ultimate guilt or innocence. See id. at 209 (expert opinion that fire was set intentionally was not "an opinion of the defendant's guilt or innocence"). See also Commonwealth v. Roderiques, 462 Mass. 415, 428-429 (2012) (expert testimony that baby's injuries were "not accidental" was proper, despite touching on an ultimate issue). Moreover, the judge specifically instructed the jury that an expert opinion is not dispositive and the jury were free to reject it. See Commonwealth v. Lugo, supra at 208. Accordingly, Dr. Newton's testimony was proper and did not give rise to a substantial risk of a miscarriage of justice.
For the same reasons, we conclude that Dr. Newton's testimony as to the time at which the injuries were inflicted was proper.
3. Exclusion of certain third-party culprit evidence. The defendant's claim that the judge erred in excluding evidence suggesting that the victim's mother had dropped the victim on the ground almost a year before the victim's death is meritless. Although a defendant has a right to "introduce evidence that tends to show that another person committed the crime," that right is not without limits. Commonwealth v. Harris, 395 Mass. 296, 300 (1985). See Commonwealth v. Wood, 469 Mass. 266, 276-277 (2014). Indeed, "where a defendant seeks to admit prior bad acts of an alleged third-party culprit, he must show that 'the acts of the other person are so closely connected in point of time and method of operation as to cast doubt upon the identification of [the] defendant as the person who committed the crime.'" Id. at 276, quoting from Commonwealth v. Conkey, 443 Mass. 60, 66 (2004).
Here, the judge properly excluded the evidence of the mother's alleged prior bad act because the incident was too remote in time and involved readily distinguishable circumstances. See id. at 276-277 (evidence properly excluded where it was not "closely connected in time to the murder" and was otherwise irrelevant). See also Commonwealth v. Hoose, 467 Mass. 395, 410 (2014) (evidence properly excluded where it was unrelated to the killings and would require "significant speculation on the part of the jury"). Accordingly, we agree with the judge that the prior bad act evidence that the defendant sought to introduce was more prejudicial than probative and thus was properly excluded.
The alleged incident the defendant sought to introduce occurred sometime in late 2000 or early 2001, almost a year before the victim's murder in October of 2001. Moreover, the incident involved an accidental dropping of the infant, not an intentional and violent shaking.
4. The prosecutor's closing argument. Finally, the defendant contends that errors in the prosecutor's closing argument, taken collectively, require reversal of his conviction. Where, as here, the defendant timely objects to a closing argument, we review first for error, and then consider "whether the improper statements made by the prosecutor 'constituted prejudicial error.'" Commonwealth v. McCravy, 430 Mass. 758, 764 (2000), quoting from Commonwealth v. Santiago, 425 Mass. 491 (1997) (other citations omitted). "An error is not prejudicial if it 'did not influence the jury, or had but very slight effect.'" Commonwealth v. Cruz, 445 Mass. 589, 591 (2005), quoting from Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). In evaluating whether an error is prejudicial, we consider the entire closing argument, the evidence presented at trial, and the judge's instructions to the jury. See Commonwealth v. Ruiz, 442 Mass. 826, 835 (2004).
Here, the defendant asserts that the prosecutor made numerous remarks during his closing argument that were purely speculative and aimed at inflaming the passions of the jury. Specifically, the defendant focuses on five statements made by the prosecutor: (1) the victim's crying prompted the defendant to choke her; (2) the defendant saw the "terror" and "pain" in the victim's eyes; (3) the defendant choked the baby "face to face"; (4) the attack began with a choke hold, then involved slamming the victim's head, and ended with the defendant shaking the victim; and (5) the defendant tried to hide the victim's "pink vomit." We conclude that only the first two statements were error, and deal with them in turn.
The defendant also claims, for the first time on appeal, that the prosecutor misstated the evidence on two occasions. After considering the prosecutor's entire argument, the judge's instructions to the jury, and the strength of the evidence, we conclude that neither of the alleged misstatements gives rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Walker, 421 Mass. 90, 103-104 (1995).
After reviewing the record, we conclude that the prosecutor's other three statements were based on the evidence and reasonable inferences drawn therefrom, and thus were not error. See Commonwealth v. Lucien, 440 Mass. 658, 666 (2004). The prosecutor's statement that the defendant choked the baby "face to face" was permissible given the evidence of the fingerprint shaped marks on the victim's neck. Moreover, the prosecutor's statements regarding the sequence of events leading to the victim's death were supported by Dr. Evans's and Dr. Newton's testimony, and were not presented "as fact," but rather as "possible scenarios." See ibid. Finally, we agree with the judge that the prosecutor's argument regarding "pink vomit" was permissible given the evidence of the pink stains found on the crib sheet and a pillowcase.
First, we agree with the defendant that the prosecutor's suggestion that the victim's crying prompted the defendant to choke her was unsupported by the evidence, and thus, error. We conclude, however, that the improper statement was not prejudicial to the defendant. Here, the judge not only provided "appropriate and timely curative instruction[s]," but also struck the prosecutor's improper reference to the crying baby. See Commonwealth v. Hrabak, 440 Mass. 650, 657 (2004). Likewise, the prosecutor corrected his remark and explained to the jury that there was no evidence that the victim was actually crying. See Commonwealth v. Thomas, 400 Mass. 676, 683 (1987) (no reversible error where prosecutor corrected improper remark and judge provided curative instruction). Finally, "the prosecutor's error was limited to the collateral issue of motive." Commonwealth v. Perez, 444 Mass. 143, 152 (2005).
Similarly, we agree with the defendant that the prosecutor's suggestion that the defendant saw the "terror" and "pain" in the victim's eyes was improper, but again conclude that it did not prejudice the defendant. First, the evidence against the defendant was overwhelming. See Commonwealth v. Wilson, 427 Mass. 336, 353 (1998); Commonwealth v. McCravy, 430 Mass. at 765 ("[E]ven grossly improper statements by a prosecutor will not require a new trial when the evidence of guilt is overwhelming"). Moreover, although the prosecutor's statement went to intent, a central issue in the case, ample evidence was presented from which the jury could conclude that the defendant acted with malice. See Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 235-236 (2013) (error not prejudicial despite touching on "a central issue in the case" where jury could base verdict on other evidence from trial). Finally, the judge instructed the jury at several points during the trial that closing arguments are not evidence and that it is the jury's "collective memory that controls." See Commonwealth v. Masello, 428 Mass. 446, 452-453 (1998) ("We may rely on the jury's ability to distinguish hyperbole, and their attention to the judge's instructions, to cure otherwise prejudicial errors in arguments").
In sum, although the prosecutor was overzealous, and his statement that the defendant saw the "terror" and "pain" in the victim's eyes was unnecessary and ill-advised, we conclude that the defendant was not unduly prejudiced by the collective errors because the judge provided adequate curative instructions and the evidence of the defendant's guilt was overwhelming.
Judgment affirmed.
By the Court (Kafker, Grainger & Agnes, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 11, 2015.