Opinion
16-P-736
06-20-2017
COMMONWEALTH v. Elmer ROMERO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Elmer Romero, appeals from his convictions of assault and battery on a household member, in violation of G. L. c. 265, § 13M(a ), assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A(b ), and malicious destruction of property over $250, in violation of G. L. c. 266, § 127. First, the defendant argues that the judge abused his discretion in admitting prior bad act evidence. Second, he contends that the judge erroneously denied his motion for a required finding of not guilty on the charge of assault and battery by means of a dangerous weapon. Third, the defendant claims that the judge abused his discretion by keeping him physically restrained during trial. We affirm.
Background. We summarize the facts as the jury could have found them, in the light most favorable to the Commonwealth, reserving certain facts for later discussion. Commonwealth v. Miranda, 441 Mass. 783, 784 (2004).
The defendant and the victim lived together in an apartment in Chelsea, along with their seven year old daughter. In the late afternoon of August 14, 2014, the defendant and the victim had an argument about whether the victim was having telephone (phone) conversations with other men. The defendant became angry and broke the victim's phone by hitting it against the headboard of a bed and against the floor.
The argument continued into the next day, where the defendant abruptly confronted the victim in the bedroom. He grabbed the victim by the arms and threw her on the floor. The defendant then began to hit the victim in her chest and arms with a closed fist. He also kicked the victim's feet with his own feet, which were shod with tennis shoes. The victim thought that if she did not get away, the defendant was going to kill her. The victim eventually was able to extricate herself from the defendant.
The victim endured pain for a week after the attack. She went to the hospital for her injuries but could not be seen because she did not have proper insurance. The victim experienced swelling in her feet, bruising in her chest and arms, which lasted for three to four weeks, and bruising on her back that was still visible on the first day of trial.
Discussion. 1. Prior bad act evidence. The defendant argues that the judge abused his discretion in admitting evidence of prior bad acts by the defendant. We disagree.
Before trial, the Commonwealth made an oral motion in limine to introduce evidence of two prior instances of alleged violence between the defendant and the victim. Defense counsel objected, and the judge stated that he would allow the evidence for the limited purpose of demonstrating the hostile nature of the relationship between the defendant and the victim. The judge further noted that the evidence would be permitted "de bene subject to a motion to strike [by defense counsel] if somehow [the Commonwealth's presentation] doesn't pan out and does not amount to evidence of prior bad acts demonstrating the nature of the relationship between the parties."
At trial, the victim testified that in 2007 she had an argument with the defendant and that the defendant grabbed the victim's arm. The Commonwealth also presented testimony from the officer who responded to the 2007 incident. The officer testified that he observed redness and discoloration on the victim's left forearm and that the victim appeared upset when he spoke to her.
The victim also testified to a second alleged incident of violence, occurring in 2010. During this altercation, the defendant grabbed the victim by the arm twice.
"Evidence of a defendant's prior or subsequent bad acts is inadmissible for the purpose of demonstrating the defendant's bad character or propensity to commit the crimes charged." Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). However, such evidence may be admissible to demonstrate "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Mass. G. Evid. § 404(b)(2) (2017). Such evidence "is inadmissible where its probative value is outweighed by the risk of unfair prejudice to the defendant, even if not substantially outweighed by that risk." Crayton, supra at 249 n.27.
Here, the judge properly admitted the evidence of the defendant's prior bad acts as relevant to show "the hostile nature of the relationship between [the] victim and [the] defendant." Commonwealth v. Miller, 475 Mass. 212, 229 (2016). See Commonwealth v. Butler, 445 Mass. 568, 575 (2005). We discern no abuse of discretion in his weighing of its probative value against its prejudicial potential. See Commonwealth v. McCowen, 458 Mass. 461, 478 (2010) ("Whether evidence of prior bad acts is relevant, and whether the probative value of such evidence is outweighed by its potential for unfair prejudice, are determinations committed to the sound discretion of the trial judge and will not be disturbed by a reviewing court absent 'palpable error' "); L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (abuse of discretion is where there is " ‘a clear error of judgment in weighing’ the factors relevant to the decision," such that it "falls outside the range of reasonable alternatives" [citations omitted] ).
Further, even if we assume that the judge's admission of the defendant's prior bad acts was error, such admission does not require reversal. Here, the defendant did not preserve his objection. Although he objected to the admission of the prior bad act evidence once before trial, and once at trial before the witness testified, he did not object to the testimony and did not move to strike it from the record despite the judge's invitation to do so. See Commonwealth v. Womack, 457 Mass. 268, 272-273 (2010) ("Defense counsel successfully objected to the statement that contained the first allegedly accusatory statement, but he did not move to strike the statement. This matter is not preserved"). The judge informed the defendant twice that he would allow the admission of the defendant's prior bad act evidence de bene and that the defendant could bring a motion to strike the testimony if the evidence did not demonstrate the hostile nature of the relationship between the defendant and the victim. See Commonwealth vs. Navarro, 39 Mass. App. Ct. 161, 166 (1995) ("Where evidence is admitted conditionally it is incumbent upon the objecting party later to move to have it struck" [quotation omitted] ). Therefore, we review under the substantial risk of a miscarriage of justice standard. See ibid. See also Commonwealth vs. Almele, 474 Mass. 1017, 1018 (2016).
There was no substantial risk of a miscarriage of justice as a result of the judge's admission of the defendant's prior bad acts, especially since this case was conducted as a bench trial. See Commonwealth v. Healy, 452 Mass. 510, 514 (2008) ("[W]e assume that the trial judge correctly instructed himself on the law" [quotations omitted] ). See also Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 75 (2005) ("[J]udges in jury-waived trials are presumed to know and correctly apply the law").
2. Motion for a required finding. The defendant argues that the judge erroneously denied his motion for a required finding on the charge of assault and battery by means of a dangerous weapon. We disagree.
In reviewing the denial of a required finding motion, we "must consider and determine whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant, is sufficient ... to permit the jury to infer the existence of the essential elements of the crime charged." Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) (quotation omitted). "The evidence may be primarily or entirely circumstantial, provided that, when viewed in the light most favorable to the Commonwealth, it ‘and the inferences permitted to be drawn therefrom [are] "of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt." ’ " Commonwealth v. Jansen, 459 Mass. 21, 27 (2011), quoting from Latimore, supra at 677.
The defendant's contention that no rational juror could infer that the defendant's use of his shod foot was a "dangerous weapon" as contemplated by G. L. c. 265, § 15A(b ), is unavailing. "The essential question, when an object which is not dangerous per se [such as sneakers] is alleged to be a dangerous weapon ... [is] ‘whether the object, as used by the defendant, is capable of producing serious bodily harm’ " (emphasis supplied). Commonwealth v. Tevlin, 433 Mass. 305, 310 (2001), quoting from Commonwealth v. Mercado, 24 Mass. App. Ct. 391, 397 (1987). "Resolution of these questions is invariably for the fact finder and involves not only consideration of any evidence as to the nature and specific features of the object but also attention to the circumstances surrounding the assault and the use of the object, and the manner in which it was handled or controlled." Commonwealth v. Fernandez, 43 Mass. App. Ct. 313, 315 (1997), quoting from Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922 (1984).
"Footwear, such as a shoe, when used to kick, can be a dangerous weapon." Fernandez, supra, quoting from Marrero, supra. Here, the Commonwealth presented evidence that the defendant continuously kicked the victim's feet with his tennis shoes while she was on the floor. The victim testified that she had pain and swollen feet as a result of the defendant's violent acts. The intensity of the defendant's conduct was also supported by the victim's testimony that she thought that the defendant was going to kill her. Thus, based on the evidence in the light most favorable to the Commonwealth, there was adequate evidence to permit a juror to infer "that the victim was kicked with shod feet in a manner which was capable of causing serious bodily injury." Commonwealth v. Charles, 57 Mass. App. Ct. 595, 599 (2003). See Marrero, supra at 923-924 (sufficient evidence that defendant's shod foot was used as a dangerous weapon).
We reject the defendant's argument that the use of his shod foot could not constitute a dangerous weapon because the victim did not have "serious injuries." The nature and extent of the victim's injuries are not dispositive of the dangerous weapon analysis. See Fernandez, 43 Mass. App. Ct. at 315 ("Concededly, there was no evidence as to the manner in which the defendant kicked the officers, or any indication of the degree of force used"); Commonwealth v. Leonard, 90 Mass. App. Ct. 187, 188, 191 (2016) (concluding defendant's use of a syringe was "capable of producing serious bodily harm" [quotation omitted] despite the victim's testimony that she "felt better" as a result).
3. Defendant's physical restraint at trial. The defendant argues that the judge erroneously permitted him to be physically restrained during trial and that such restraint caused prejudice to him. We disagree.
"The trial judge has a range of discretion in this matter, and an appellate court will not reverse his decision unless it is shown to have been arbitrary or unreasonable." Commonwealth v. Montgomery, 23 Mass. App. Ct. 909, 911 (1986). First, the defendant's allegation that he was physically restrained throughout the course of trial is undermined by the record. The record indicates that defense counsel asked the judge on the second day of trial if the defendant could be un-manacled, and the judge granted defense counsel's request. Then, on the third day of trial, before the court took a brief recess, defense counsel asked the judge if the defendant could "remain un-manacled during the [remainder of the trial]," and the judge answered in the affirmative and instructed a court officer after the break to "un-cuff [the defendant's] hands." See Commonwealth v. Meuse, 11 Mass. App. Ct. 966, 967 (1981) ("The defendant was not handcuffed or shackled while in the courtroom.... Any notion that this case bears a resemblance to that of Commonwealth v. DeVasto, 7 Mass. App. Ct. 363 [1979], is frivolous").
Second, the potential prejudice that is typically of concern in cases involving a shackled defendant is absent here because this case was tried by a bench trial, where the judge was the trier of fact. See Commonwealth v. Brown, 364 Mass. 471, 475 (1973) ("Shackling and other unusual security measures ... tend to create prejudice in the minds of the jury by suggesting that a defendant is a bad and dangerous person whose guilt may be virtually assumed"); Commonwealth v. Montanez, 439 Mass. 441, 450 (2003) ("[W]hen a judge is the fact finder, we take into consideration the greater likelihood that he will not be influenced by extraneous factors"). Indeed, the judge stated that the defendant was being uncuffed "so [that] he could write, take notes, communicate, whatever he wishes to do." See Montgomery, supra at 911-912 ("Here, any risk of prejudice ... was mitigated, at least to some degree, by the fact the defendant was allowed to sit at counsel table, which also enabled the defendant to participate fully in the trial"). Therefore, there was no prejudicial error.
The lack of prejudice is further demonstrated by defense counsel's questioning of the defendant during direct examination, where he elicited testimony that the defendant had been in custody since his arrest.
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Judgments affirmed.