Opinion
No. 12–P–172.
2013-01-17
COMMONWEALTH v. Robert SCHUNK.
By the Court (VUONO, GRAINGER & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of one count of assault and battery, G.L.c. 265, § 13A; and one count of assault and battery by means of a dangerous weapon (shod foot), G.L.c. 265, § 15A( b ). We affirm.
As a lesser included offense of assault and battery causing serious bodily injury. G.L.c. 265, § 13A( b )(i).
The defendant was also acquitted of another count of assault and battery.
Prior bad acts. The defendant argues that the trial judge abused her discretion by not granting his oral motion for a mistrial. The motion followed a nonresponsive answer by the victim on cross-examination that the defendant had been arrested for domestic assault “last August.” The judge sustained the objection, struck the response, and instructed the jury to disregard it. These actions eliminated any risk of prejudice that might have flowed from the inadvertent reference by the witness, see Commonwealth v. Garrey, 436 Mass. 422, 435 (2002). The judge, therefore, did not abuse her discretion in denying the motion for mistrial. The defendant also argues that the judge abused her discretion by not sua sponte declaring a mistrial following the victim's response on redirect examination that she moved to New Hampshire “after the incident in August.” Such an oblique and obscure reference to a prior act does not require the judge to declare a mistrial on her own initiative. See Commonwealth v. Simmonds, 386 Mass. 234, 241–242 (1982); Commonwealth v. Cunneen, 389 Mass. 216, 223–224 (1983).
Although the defendant objected to this testimony, he did not move for a mistrial.
The defendant's argument that the prosecutor violated a promise to not seek to admit prior bad acts is meritless. The victim's first statement was made during defense counsel's cross-examination. The victim's second statement was in response to the prosecutor's redirect question, where she simply asked, “When was it that you moved to New Hampshire?” There is nothing to suggest that the prosecutor sought to elicit testimony about the defendant's prior arrest.
Physician's testimony. The defendant argues that the trial judge erred by permitting Dr. Barbara Masser to read, from medical records that were admitted by agreement, the victim's statements explaining the reason for her injuries. Furthermore, the defendant agreed to the admission of the redacted medical records containing these statements. There was no error in admitting the statements. Witnesses are permitted to read from admitted evidence. Commonwealth v. Morales, 440 Mass. 536, 547 n. 6, 549 (2003). Moreover, these statements qualify as those made for the purpose of diagnosis or treatment, as the doctor did not testify directly as to the defendant's guilt. See Mass. G. Evid. § 803(4) (2012); Commonwealth v. DeOliveira, 447 Mass. 56, 62 (2006). Finally, even if the statements had not been admissible, there was no prejudice, as they were cumulative of both the victim's testimony and the medical records, and “presented in an objective, unprovocative manner.” Commonwealth v. Barbosa, 463 Mass. 116, 127 (2012). See id. at 129–130.
The doctor testified that the victim stated she was grabbed by the neck, had her face pushed into a door, and was kicked in the chest and abdomen repeatedly. The doctor did not testify as to who caused the injuries, nor did she give any conclusion that the victim was assaulted or beaten.
There was no error in the admission of the redacted medical records. See G.L.c. 233, § 79; Commonwealth v. DiMonte, 427 Mass. 233, 241–242 (1998).
Defendant's competency. The defendant's argument that the judge should have sua sponte held a competency hearing during the trial is unsupported by the record. The judge had the opportunity to observe the defendant's demeanor and behavior firsthand during trial. See Commonwealth v. Painten, 429 Mass. 536, 544 (1999) (“[W]e must give weight to the judge's opportunity to observe the defendant's demeanor during the trial”). The fact that the defendant may have been agitated does not by itself warrant a competency hearing. Id. at 543. Moreover, much of the defendant's behavior at trial constituted questioning counsel about her actions, suggesting that he had “sufficient present ability to consult with his lawyer.” Commonwealth v. Scionti, 81 Mass.App.Ct. 266, 272 (2012). Pretrial proceedings led the judge to ask that defense counsel inform her whether there was any issue of competence at the time of trial. She was entitled to rely on defense counsel's representations that the defendant was competent, as well as a pretrial adjudication of competency. See id. at 272–273. In short, the record gives no reason to conclude the judge should have made a sua sponte inquiry into the defendant's competence at the time of trial.
Judgments affirmed.