Opinion
14-P-98
04-28-2015
COMMONWEALTH v. MICHAEL DAVID TINNEY.
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 appeals from his conviction of assault and battery after a jury trial in the District Court. He complains of various prosecutorial improprieties during opening statement, direct examination of the victim, and closing argument. He also contends that he received the ineffective assistance of counsel for counsel's failure to seek redaction of the victim's medical records introduced in evidence. Discerning no risk of a miscarriage of justice, we affirm.
He was originally charged with assault and battery by means of a dangerous weapon, to wit, a kitchen cabinet, and threatening to commit a crime; the jury acquitted him on the threatening count and returned a verdict of guilty of the lesser included offense of assault and battery.
The defendant's claims are unpreserved by objection below and, thus, we review them for a substantial risk of a miscarriage of justice. See Commonwealth v. Azar, 435 Mass. 675, 686-687 (2002). A substantially equivalent standard applies to the defendant's claim of error predicated on counsel's purported failures at trial. See ibid. ("[W]hether we view the unpreserved claim of error . . . [by] utilizing the substantial risk of a miscarriage of justice standard, or . . . by [applying the Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), test for ineffective assistance of counsel], our approach is essentially the same").
The defendant first contends that the prosecutor misstated expected evidence: he described what was actually an "x-acto" knife, later identified as such by the victim when she described the defendant's use of the knife, inflicting wounds to himself while threatening harm to her and to himself, as a box cutter, and reversed the order in which the defendant armed himself with the knife in relation to the victim running out of the apartment.
The victim testified that before the defendant grabbed the knife, he said he was going to kill her and then himself.
"In an opening statement, a prosecutor is permitted to state what he or she expects to prove by evidence." Commonwealth v. Morgan, 449 Mass. 343, 360 (2007). Even if the passages complained of were in fact misstatements, no substantial risk of a miscarriage of justice occurred. As the judge explained, opening and closing statements of counsel were not evidence. The victim testified to the events in question, and there was a sufficient basis in that testimony to permit the opening given by the prosecutor. Moreover, any comments by the prosecutor that primarily concerned the defendant's use of a knife were only in connection with the charge of threatening to commit a crime, and therefore necessarily did not prejudice the jury, since he was acquitted of that offense.
Second, the defendant contends that the prosecutor's questioning of the victim, during which he used, multiple times, a characterization of the defendant's "smacking" or "bashing" the victim's head into the kitchen cabinet (descriptions used by the victim in her testimony) as "slamming" her head, and inquiring how the various aspects of the assault made her feel, was all an effort to gain sympathy for her and inflame the jury against the defendant, is likewise without merit. Such questioning was relevant to the later expression of threats by the defendant. At no time did the victim reject the characterization or seek to alter its meaning. Moreover, defense counsel also used the same term during cross-examination. In any event, the jury again were not influenced because the defendant was acquitted of the use of a dangerous weapon in connection with the battery charge, as well as the threatening.
Third, the defendant avers that the prosecutor's closing argument unfairly and improperly sought to inflame the jury and engender sympathy for the victim. A prosecutor is entitled to marshal the evidence, suggest inferences to the jury, and call upon the jury's knowledge and experience. See Commonwealth v. Ridge, 455 Mass. 307, 330 (2009). "While generally great latitude is permitted in argument, counsel must be careful to avoid misstating principles of law, infringing or denigrating constitutional rights, and provoking undue sympathy or bias." Commonwealth v. Marquetty, 416 Mass. 445, 450-451 (1993) (citation omitted). However, neither "enthusiastic rhetoric" nor "strong advocacy" are grounds for reversal. Commonwealth v. Sanna, 424 Mass. 92, 107 (1997). See Commonwealth v. Wilson, 427 Mass. 336, 350 (1998). "We have never criticized a prosecutor for arguing forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence." Commonwealth v. Kozec, 399 Mass. 514, 516 (1987).
We view neither the content nor tone of the prosecutor's words as improper, as the argument was fairly based on testimony given by the victim. With respect to the defendant's specific claim that the prosecutor argued facts not in evidence, the defendant's anger and actions towards the victim, including the various assaultive contact, all appear to stem from his having viewed photographs on the victim's cellular telephone, so the passage complained of is viewed instead as a reasonable amalgam of the defendant's words and actions. As succinctly stated in Commonwealth v. Kozec, id. at 517, "we must and do recognize that closing argument is identified as argument, the jury understands that, instructions from the judge inform the jury that closing argument is not evidence, and instructions may mitigate any prejudice in the final argument. A certain measure of jury sophistication in sorting out excessive claims on both sides fairly may be assumed. In this case, the jury may have done just that kind of sorting out because they in part rejected the position of each side, returning a verdict of not guilty on one charge and guilty on the other." (Citations omitted.)
Last, we disagree with the defendant's contention that trial counsel was ineffective for failing to request redaction of the victim's medical records. Making such an assertion on direct appeal rather than by a motion for new trial is dependent on grounds that appear indisputably on this record, which is not the case here. See Commonwealth v. Zinser, 446 Mass. 807, 811 (2006), quoting from Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002) ("[A]n ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight"). Consequently, we decline to consider it.
Even if we were inclined to consider it, no substantial risk of a miscarriage of justice is discerned. This claim appears suitably controlled by Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998), quoting from Commonwealth v. Concepcion, 362 Mass. 653, 656 (1972) ("[A] record which relates directly and mainly to the treatment and medical history of the patient, should be admitted, even though incidentally the facts recorded may have some bearing on the question of liability").
Judgment affirmed.
By the Court (Kantrowitz, Trainor & Fecteau, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 28, 2015.